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

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18 SAcLJ 314 Managing Mens Rea in Singapore 357I acknowledged the second appellant’s point that Nettleship v Westonwas influenced to some extent by extraneous considerations of insuranceand risk allocation, none of which were relevant in the present case.[emphasis added]79 Yet without any explanation or justification, the point, althoughacknowledged, was dismissed. Its significance must have been this – takeaway the insurance and risk-allocation factor and there is little, if any,strength left in the holding in Nettleship.80 The poverty of any utilitarian justification is compounded by thelack of any ethical support. This was perhaps what the accused hadargued in Ng Keng Yong, although in an apparently garbled form: 122The second appellant contended that the strict approach in Nettleship vWeston was inappropriate for a criminal charge because “the status of atrainee is itself diametrically opposed to the concept of mens rea … [as] atrainee is still trained to know what is right and what is wrong.” …[T]his line of reasoning completely misses the point. Section 304A doesnot require proof of intention or knowledge.81 There is no doubt that the negligence arm of s 304A does notrequire intention or knowledge. But I do not think that counsel for theaccused could have suggested otherwise. The contention which wasprobably intended was this. Nettleship was a decision on civil liability. Theconcept of mens rea is not present in civil cases and is peculiar to criminaloffences. Mens rea has to do with blameworthiness and culpability of theperson being charged. It is therefore inconsistent to hold the accused to astandard of behaviour which he or she cannot reasonably attain, with theresult that criminal liability attaches without real culpability orblameworthiness on the part of the accused.82 It is unfortunate that with the rise of negligence as the preferredmens rea in Singapore criminal law, the court has chosen, not only toreject the idea of a different and higher level of negligence for criminaloffences, but to apply an extreme objectivist approach to negligenceunder s 304A. Such an approach is ethically indefensible and of little ifany pragmatic value. Fortunately, there is a contrary tradition in someother areas where a negligence criterion is encountered – for offenceswith the “reason to believe” formula and for the defence of provocation,the court has fashioned a sensitive, subjectivist view of negligence inkeeping with the radical differences between civil and criminal liability.122 Id at [86] and [87].
358Singapore Academy of Law Journal (2006)One can perhaps be cautiously optimistic that this alternative approachwill eventually prevail throughout the criminal law.IV.Strict liability: Spoilt for choice83 The question of what a court is supposed to do when theLegislature is silent concerning a mens rea requirement has long exercisedthe minds of observers of the Singapore criminal law. 123Earliercommentaries discern a dichotomy of approaches. 124Some courtsadopted the methodology of the English common law. 125Briefly, thisrequired the court to apply an initial presumption that the prosecution isto prove full (and actual) knowledge of the fact in question. Then thecourt is to undertake an analysis of whether the Legislature impliedlyintended mens rea not to be a requirement of the offence. Various piecesof circumstantial evidence are said to go into this task – whether thecreation of the offence was a matter of social concern or for theprotection of the public, whether the offence carried a social stigma orparticularly severe penalties, whether the omission of a mens rearequirement will promote observance of the legislation. 126If thepresumption of mens rea is not rebutted, then full knowledge must beproved by the prosecution. If the presumption is rebutted, then theoffence becomes one of strict liability and the presence or absence ofmens rea is irrelevant to liability. Cases which have used this approachhave come out one way or the other, often without any convincing reasonwhy the result ought to have been so. 12784 The other cases choose what has been called the Penal Codeapproach – so called because it focuses on s 79 of the Penal Code which123 For what is perhaps the first, see McKillop, “Strict Liability Offences in Singaporeand Malaysia”, supra n 48, which ends with an indictment (at 144) which,unfortunately still rings true: “It seems almost that for every case in which the courtshere have opted for mens rea another case on the same or a similar offence can befound in which liability has been held to be strict, and vice-versa.”124 See for example, M Sornarajah, “Defences to Strict Liability Offences in Singaporeand Malaysia” (1985) 27 Mal LR 1 at 6, which speaks of a “two track system ofcriminal law”.125 See, for example, PP v Mohamed Ibrahim [1963] MLJ 289 (offence of possession ofobscene books for sale deemed to be of strict liability), a case which is all the morestriking as it had to do with the imposition of strict liability on a Penal Code offence.126 This last factor came to the fore in a Privy Council decision from Singapore: LimChin Aik v R [1963] MLJ 50.127 See, for example, Michael Hor, “Strict Liability in Criminal Law: A Re-Examination”[1996] Sing JLS 312, my earlier attempt to explore the issue.
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