2. Managing Mens Rea in Singapore - Singapore Academy of Law

316Singapore Academy of Law Journal (2006)(d) if the person committing the act knows that it is so imminentlydangerous that it must in all probability cause death, or such bodilyinjury as is likely to cause death, and commits such act without anyexcuse for incurring the risk of causing death, or such injury asaforesaid.[emphasis added]3 Section 302 demonstrates what is at stake:Whoever commits murder shall be punished with death.4 Section 300(c) sticks out like a sore thumb. The other limbs linkthe mens rea directly to the harm caused – death must be intended orknown to be likely. Section 300(c) stops short of that – no doubt theinjury must have been intended, but there is no apparent requirementthat the likelihood of death must be known or foreseen. This flouts theclassic conception of mens rea – if the accused person is to be heldaccountable for the death, as opposed to just the injury, he or she must beproved to have known that death would be likely to ensue. The gravamenof murder is surely that the accused person chose to embark on a courseof conduct, knowing that death (and nothing less) would be the likelyresult. The chilling s 302 prescribes one, and only one, punishment formurder: death. No sentencing discretion is needed for the crime is of thehighest order: the knowing deprivation of human life.5 It is surprising that there is little evidence that s 300(c) wasnoticed until relatively recently. For decades after the promulgation of thePenal Code, there seems to have been no consciousness that s 300(c)contained the seeds of a highly subversive idea. 7 Prosecutions proceeded7 The Penal Code was promulgated in 1871 and came into force a year later in theStraits Settlements (of which Singapore was a prominent part), but murderprosecutions for decades after that seemed to adopt a studied ignorance of s 300(c)and appeared to assume that an intention to cause death was invariably required.See, for example, R v Ong Choon [1938] MLJ 227, the Court of Criminal Appeal ofthe Straits Settlements quoted this jury direction of the trial judge without censure:He was intending to do something and his intention must be considered by hisconduct: whether he had a murderous intention or whether he had simply anintention to do a minor injury or whether he had an intention to killSo tenacious was this assumption that well into the era of s 300(c) awareness, and ona s 300(c) charge, a trial court could say, in PP v Ow Ah Cheng [1992] 1 SLR 797 at805, [42]:We considered carefully whether the acts and intention of the accused on thatfateful day would constitute murder within s 300(c) of the Code. It was finallydecided that the evidence adduced was not consistent only with murder. Thefact that the deceased was strangled did not prove beyond a reasonable doubtthat the accused intended to cause the death of Ah Lian.