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

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18 SAcLJ 314 Managing Mens Rea in Singapore 347than its inadvertent counterpart. After some uncertainty, the court soughtto impose a more or less strict sentencing guideline prescribingimprisonment for rashness and fines for mere negligence. 100Unfortunately, there is now indication that that the court does notconsider this to be a hard-and-fast rule, and where it feels so movedmight sentence a negligent offender to a term of imprisonment. In PP vPoh Teck Huat, the court explained it as follows: 101A simple examination of the language of s 304A shows that Parliamenthad clearly accorded the sentencing court a discretion to impose a fineor sentence of imprisonment regardless of whether death is the result ofa rash or negligent act.…In examining the moral culpability of an offender, the scale would startwith mere negligence and end with gross recklessness. Howevernegligence does not end nicely where rashness begins and there is acertain measure of overlap. As such, it is possible for the moralculpability of an offender who has committed a rash act to be akin tothat of a negligent act.[emphasis added]62 The omnibus offence begins to mislead the court. The sentimentseems to be that the sheer proximity of the two states of mens rea, as itappears in the section, must mean that, although they are different, theyare not all that different. Of course, properly conceived, negligence(inadvertent risk-taking) can never overlap with rashness (advertent risktaking).Conscious risk-taking must always be morally more culpable. 102The solution is again simple – the Legislature needs to say clearly that thisis so, and it should do that by creating out, of the omnibus offence, twodifferent offences, named differently and punished differently. The casefor structurally discriminating between the states of mens rea applies withgreater force for offences like those in the Terrorism Act which involve, inan all-encompassing offence, mens rea of a spectrum of culpability and100 Id, at 17, [8]:[T]he mere fact that a human life is lost due to negligent driving of a motor cardoes not justify a custodial sentence in the absence of an allegation ofcallousness and it is no part of the duty of the courts to punish with savagesentences every motorist who has the misfortune to have an accident, whichresults in a loss of life, even though the accident be due to an error of judgmenton the part of the driver.See also PP v Gan Lim Soon [1993] 3 SLR 261, and PP v Tiyatun [2002] 2 SLR 246.101 [2003] 3 SLR 299 at 302–303, [14] and [20].102 Given that the risk taken is of the same order of seriousness.
348Singapore Academy of Law Journal (2006)punishment of a far greater range of severity. Clearly a different and moresophisticated approach is needed if the mens rea of negligence is to be anincreasingly important feature of the criminal landscape. Simply tackingon words like “reasonable grounds to believe” after “knowing” carrieswith it the danger of confusing two distinct mens rea of very differentblameworthiness.63 What does criminal negligence mean? This has proven to be oneof the most persistent problems in the history of Singapore criminal law.With the advent of the age of negligence, the question assumes an evengreater significance. Criminal negligence has received the most judicialattention in the context of s 304A of the Penal Code which containsabsolutely no explication of the concept of the negligence which itemploys. This eventually led to the courts of British Malaya and theirsuccessor courts squabbling over its precise meaning for decades. Theyfell into three camps. There were those who could see no reason why theEnglish common law standard of “gross negligence” should not apply 103 –the civil law may define its own negligence for its purposes, but thecriminal law chooses to punish only if negligence attains a certain degreeof seriousness. There were those who were set against the standard ofgross negligence, 104 either for reasons of autonomy or of policy – the PenalCode should not be a slave of the English common law, and if thestandard of gross negligence were to be imposed, jury convictions mightbe impossible to achieve. Of those who opposed gross negligence, somehinted at some sort of intermediate standard, 105 while others were of the103 Notably, the Federated Malay States decision of Cheow Keok v PP [1940] 1 MLJ 103.This decision was subsequently overruled by the Federal Court of Malaysia in Adnanbin Khamis v PP [1972] 1 MLJ 274, now the governing decision in Malaysia, but theFederal Court was unclear as to what was to stand in place of the test of grossnegligence: “mere carelessness or inadvertence, without anything more, is notenough, in our opinion, to establish guilt … [but the test to be applied is] whether ornot a reasonable man in the same circumstances would have been aware of thelikelihood of damage or injury to others resulting from such conduct”.104 Principally the Court of Appeal of Sarawak, North Borneo and Brunei in PP v Mills[1971] 1 MLJ 4 (“Mills”). The Singapore case of Mah Kah Yew v PP [1969–1971]SLR 441 felt itself bound by Mills for reasons of stare decisis.105 This was the position in Lai Tin v PP [1939] 1 MLJ 248 (“Lai Tin”), a Perak decision,and of at least Whitton J in Woo Sing v R [1954] MLJ 200 (“Woo Sing”), a Singaporedecision. Murray-Aynsley who had authored Lai Tin (“I would not go so far as to saythat the degree of negligence necessary to support a civil action should be appliedwithout reservation. A criminal charge and a civil action should be approached in adifferent spirit”), presided over Woo Sing as Chief Justice of Singapore and hadbecome rather more enigmatic – he no longer thought it “necessary to lay down adifferent standard of negligence in civil and criminal cases”.
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