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

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18 SAcLJ 314 Managing Mens Rea in Singapore 351the difference between the evidential function of the rules on burden ofproof and the substantive function of the rules on mens rea. The burdenof proof is significant only where the facts are in doubt – the rulesoperate to break the evidential deadlock. The principle of proof beyondreasonable doubt for criminal liability is an expression of the sentimentthat we must be extra sure of the facts before we punish. The balance ofprobabilities formula reflects the relativity of the civil calculus – asbetween two parties, the party which shows that the facts (in its favour)are more likely than not true, should win on the facts. The burden ofproof has no function when the facts are clear – as it was in both Lim PohEng and Ng Keng Yong v PP, 111 the case that followed it. When the facts arenot in doubt, the substantive law operates to decide liability. Where thereis no real factual dispute, as seems to be the case in the recent decisions, itmeans nothing to say that there is a difference in the burden of proof. Theanalogy would be saying to someone, “since I have given you so muchfood and drink, you don’t need any clothes to wear”.67 The argument for the second alleged distinction is even morepuzzling and rather easy to dispose of. The court proposes that criminalliability cannot be established by negligence alone. Taking s 338 of thePenal Code as an example, the court said that, in addition to negligence,“grievous hurt” and endangerment had to be proved as well. We look ats 338:Whoever causes grievous hurt to any person by doing any act so rashlyor negligently as to endanger human life or the personal safety of others,shall be punished with imprisonment for a term which may extend to 2years, or with fine which may extend to $1,000, or with both. [emphasisadded]68 How these two elements can be construed as being a differencebetween civil and criminal liability is a complete mystery. True enoughgrievous hurt must be proved, but how is a civil claim to succeed withoutproof of injury? Lest it might be thought that only grievous hurt willsuffice, one need only look at s 337 which imposes liability for thenegligent causing of simple hurt. The supposed requirement ofendangerment is illusory. The governing phrase is “so negligently as toendanger” – the negligence inquiry (whether a reasonable person oughtto have foreseen danger) cannot be separated from the element ofendangerment itself. The court, rather suspiciously, did not refer to111 Ibid.
352Singapore Academy of Law Journal (2006)s 304A, the provision which it was directly concerned with. There is nolanguage of endangerment there.69 Whether or not a higher standard of negligence is desirable ornot, the court was of the view that it would be too elusive andunworkable – the application of the civil standard is uncertain enough,what more if the criminal court were to impose another higher standard.One need only contemplate the disastrous consequences which mightflow from adopting the same line of reasoning for the rules on burden ofproof – the civil standard is uncertain enough, surely we cannotcountenance yet another standard for criminal cases. The truth is thatseveral major common law jurisdictions do indeed maintain precisely thisdifference in the standard of civil and criminal negligence; 112 there is noevidence that it has proven to be unworkable and elusive. One should notpretend that a higher criminal standard would be easy to define, but weknow that different degrees of negligence exists, and indeed arepresumably taken into account in sentencing. Preserving the distinctionwould give the criminal court a justifiable discretion to consider certainkinds of civil negligence not to be criminal as well. It is an uncertaintywhich we can well live with, if it means that we can have a substantivedistinction between what is civil and what is criminal.70 Failure on the standard of care front did not deter lawyers frompressing ahead with the argument that, whatever the standard of caremight be, the attributes of the reasonable person can be moresubjectivised for the purposes of criminal law. 113This was rebuffed byYong Pung How CJ sitting as a High Court judge in Ng Keng Yong. 114 Thecase was a local sensation. A naval vessel under the control of a traineeofficer had mistakenly thought that an approaching ship was on one side112 For example, see the words of the Supreme Court of Canada in the leading case of Rv Anderson [1990] 1 SCR 265:In a civil negligence case concerned with adjustment of losses, the connectionbetween conduct and consequences is often quite tenuous. The mythicalreasonable man has been equipped with a great deal of clairvoyance in order tocompensate the innocent victim. Often the defendant will not, in fact, haveforeseen the consequences of his negligent acts for which he is held accountableon an objective basis. In a criminal case the connection must be moresubstantial … That is the rationale for the requirement of a marked departurefrom the norm.In England, “gross negligence” is required: R v Adomako [1995] 1 AC 171. InAustralia, see Callaghan v The Queen (1952) 87 CLR 115.113 The issue is still open in Canada, with the Supreme Court divided in R v Tutton[1989] 1 SCR 1392.114 Supra n 110.
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