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

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18 SAcLJ 314 Managing Mens Rea in Singapore 349firm view that the neatest solution would be to equate the standard ofcriminal negligence with civil negligence. 10664 Two decisions, both of which had Yong CJ sitting as a High Courtjudge, 107 purported to clear this matter up once and for all in favour of thelast view. The first was the decision in Lim Poh Eng v PP, 108where theequation between the criminal and civil standard was justified in thismanner: 109While there is no doubt a need to maintain a distinction between civilliability and criminal liability, it is questionable whether it is necessaryto have an intermediate standard of negligence in order to maintain thatdistinction. Even without a different standard of negligence, there arestill two essential differences between a tort in negligence and criminalliability which involves negligence. First, in a crime which involvesnegligence, the breach of the civil standard of negligence has to beproved beyond reasonable doubt, as opposed to a balance of probabilities.Secondly, in a crime which involves negligence, negligence is not the solecriteria of liability. For example, in the case of an offence involving s 338of the Penal Code, in addition to proving negligence, the Prosecutionhas to prove grievous hurt to a person and that the act endangeredhuman life or the personal safety of others …An additional problem with the use of an intermediate standard ofnegligence is the difficulty of applying it in practice. While there isabundant case law which defines what the civil standard of negligence isin different situations, there is a dearth of authority which explainswhat the intermediate standard would be. The problem is compoundedby the fact that, even within the law of tort, the civil standard varies inaccordance with the circumstances.…In view of the variations even within the civil standard of negligence, anintermediate standard of negligence would be too elusive a concept tobe workable.[emphasis added]65 The court itself acknowledges that a distinction between civil andcriminal negligence must be maintained. The reason is not hard to find. It106 The earliest clear articulation of this was in Anthonysamy v PP [1956] MLJ 247(“negligence for the purposes of s 304A and of other sections in the Code wherenegligence is an ingredient of the offence is the same as in civil matters”).107 The Court of Appeal has yet to pronounce on the matter and it must remain apossibility that it may not agree with the former Chief Justice.108 [1999] 2 SLR 116 (“Lim Poh Eng”).109 Id, at [27]–[28].
350Singapore Academy of Law Journal (2006)stems from the fundamental difference between the focus of the civil lawon the compensation of private individuals, and the preoccupation of thecriminal law on punishment on behalf of the State. No doubt both civiland criminal negligence are predicated on a conception ofblameworthiness. Yet the role that moral culpability plays in civilnegligence is much more nuanced and muted. Civil negligence issometimes not simply about whether a particular individual wassufficiently blameworthy, but about the relative blameworthiness ofseveral parties. Civil negligence is ultimately concerned about who is tobear a loss that has already occurred, and because of this, factors whichhave little to do with culpability sometimes impinge – the primaryexample being the “deep pockets” phenomenon. 110The cornerstone ofcivil negligence is objective foreseeability. We can expect all others tobehave like ordinary or reasonable persons would and to order our livesaccording to that expectation. If someone else behaves in a manner whichis out of the ordinary or unreasonable and in the course of which I aminjured or my property damaged, I can expect to be compensated. Civilliability attaches because of a failure to live up to an objective standardand ultimately is unconcerned with individual culpability. Looking at itfrom a more pragmatic or institutional perspective, there are negligentacts which do not sufficiently engage the public interest, and for whichthe imposition of civil liability at the behest of the party wronged isresponse enough. The heavy hand of the criminal law may not yet bewarranted. If we move up the ladder of severity, conceivably there comesa point when the public interest is sufficiently implicated and theconcurrent imposition of criminal punishment is thought necessary. Theissue is what difference is difference enough.66 The court admitted that a distinction exists and indeed ought tobe maintained. It was, however, of the view that because othermechanisms exist to demarcate the civil from the criminal, the standardof negligence need not be different. Gross or intermediate negligence isunnecessary and indeed would make too much of a difference betweencivil and criminal negligence. The reasons which the court gives for thisbelief are far from convincing. It is said that the difference in burdens ofproof is a sufficient difference – criminal liability requiring the higherburden of proof beyond reasonable doubt. Underlying the superficialappeal of this piece of reasoning is a fundamental misunderstanding of110 Yong CJ himself acknowledged this in Ng Keng Yong v PP [2004] 4 SLR 89 at [77],describing some of these non-culpability factors as “extraneous considerations ofinsurance and risk allocation’’.
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