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

346Singapore Academy of Law Journal (2006)did not actually know but ought to have known, that is sufficient. Theproblem is not new and has never been satisfactorily resolved. In oneother similar situation, 98the court applied the negligence standardwithout addressing the problem of inconsistency with words indicating ahigher degree of mens rea. One might have thought that the principle thatinterpretational ambiguities ought to be settled in favour of the accusedwould have applied. The drafting solution is simple – either adopt one orthe other, not both. One is tempted to speculate that the failure to identifyand fix such a long-standing problem stems from a certain legislativeawkwardness when it comes to the handling of negligence as a criminalconcept. Second, there is a massive bunching together of vastly differentdegrees of mens rea – from intention (which presumably means that themotive of the accused is to aid terrorist activity), to knowledge, tonegligence. Problems of fair labelling arise – it would be akin to creatingone large offence of homicide from intentional to negligent killing.Problems of proportionate punishment portend. Again, this is not new,and has emerged in the context of the famous s 304A of the Penal Code:Whoever causes the death of any person by doing any rash or negligentact not amounting to culpable homicide, shall be punished withimprisonment for a term which may extend to 2 years, or with fine, orwith both. [emphasis added]61 It is now established that the difference between rashness andnegligence is advertence – one is rash when one is actually aware of therisk of death, one is merely negligent when one is not so aware, but oughtto have been. 99 Advertent risk of death is of course far more blameworthy98 A similar piece of sloppy drafting is found in s 411, Penal Code, which defined theoffence of dishonest receipt of stolen property:Whoever dishonestly receives or retains any stolen property, knowing or havingreason to believe the same to be stolen property, shall be punished … [emphasisadded]This formulation is clearly nonsensical – dishonesty under the Penal Code requires,by s 24, knowledge of wrongful gain or loss. One who does not know but only hasreason to believe that the property concerned was stolen can never be dishonest.Faced with this, the court in Ow Yew Beng v PP [2003] 1 SLR 536 at [11] said:Section 411, read with s 24, clearly envisages that an individual can bedishonest, ie having an intention to cause wrongful gain or loss, even though hehas no actual knowledge, but only reason to believe that the property was stolen… Logically, dishonesty under s 411 would have to bear the broader meaning ofan intention to cause gain or loss which the accused either knows or has reason tobelieve was wrongful. [emphasis in original]There is certainly no logical way out – either s 24 or s 411 is wrong. It is just asimpermissible to add words to s 24, as it is to ignore the phrase “or having reason tobelieve” in s 411.99 PP v Teo Poh Leng [1992] 1 SLR 15.