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

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18 SAcLJ 314 Managing Mens Rea in Singapore 36187 While the use of a “common law” version of due diligence istechnically difficult to defend in view of (the enacted) s 79, there ispragmatic sense in the result that the “common law” defence is not boundby the peculiar limitations of reasonable mistake in s 79. Be that as it may,due diligence or reasonable mistake, this development is one of the fewbright spots in a bleak landscape. Again, although it has not beenexplicitly decided that either due diligence or reasonable mistake isinvariably available – in Canada it is limited to offences which put theaccused in risk of imprisonment 139 – the indications are that they are. 140The result is perhaps the complete abolition of strict liability itself, 141called absolute liability in Canada, 142where mens rea of any kind isirrelevant to liability. No doubt it is the lowest form of mens rea –negligence with the burden reversed – but it is mens rea no less. Werecases like PP v Mohamed Ibrahim 143 and PP v Teo Kwang Kiang 144 to bedecided today, the result may or may not be different – but at least theaccused persons will now have the opportunity of showing that they hadbehaved reasonably, which is all that can be legitimately expected ofthem.88 But all is not well at the first stage – the preservation of theprocess of presumption and rebuttal of mens rea (which the prosecutionhas to prove) has meant the continuation of all the arbitrariness andillogicality that has plagued it in the past. If one were to line up the casesin which the presumption prevailed against those in which it was held tobe rebutted, one would search in vain for any convincing distinguishingfeature between them. Consider, on the one hand, Bridges Christopher vjurisprudence, and would require strict justification to survive Charter scrutiny.Imposing a burden of production is less intrusive and requires less justification.139 Or imprisonment in default.140 In Comfort Management Pte Ltd v PP, supra n 130, the court applied the duediligence defence to an offence which carried a maximum penalty of a $5,000 fine.All fines in Singapore are potentially subject to imprisonment in default:s 224(b)(iv), Criminal Procedure Code (Cap 68, 1985 Rev Ed).141 Although it remains to be seen if the courts will resile from its current position ofstrict liability (ie, Canadian absolute liability) for the offence of contempt of court:see, for example, AG v Lingle [1995] 1 SLR 696, AG v Wain [1991] SLR 383. Thesedecision pre-date the invention of “due diligence” in the late 1990s. In principle,there is no reason to treat contempt of court differently, but it is such a peculiaroffence that it is not immediately obvious what due diligence might mean in thatcontext.142 The recent trend, since the adoption of Canadian due diligence, has been forSingapore courts to use the strict–absolute liability dichotomy.143 Supra n 125 (accused held strictly liable for being in possession of obscene books forsale).144 [1992] 1 SLR 9 (accused held strictly liable for possession of contaminated vegetablesfor sale).
362Singapore Academy of Law Journal (2006)PP 145 where the court upheld the presumption of mens rea in the contextof an offence of communicating an official secret in these terms: 146[T]here must be knowledge that the information is secret officialinformation. The same applies to the other things mentioned in s 5(1). Ido not see how removing the requirement of knowledge will beworkable ... It is a fact of life that the actual duty of communication isoften delegated to subordinates ... The person actually doing thecommunication may well turn out to be a very junior officer …It is no part of the duty of the junior officer to question each and everyorder from his superiors to communicate the information to whomeverhe is directed to. Adopting a strict liability approach would mean thatthe junior officer would have committed an offence under this Act if,unknown to him, his superior or someone higher up actually has noauthority to order the release of the information or has wrongly (orwrongfully) classified certain information as not being secret officialinformation …An officer or government servant is entitled to rely on his or hersuperior’s representation that any particular piece of information is notsecret official information … The entire civil service cannot operate likethe secret police. In any event, the deputy public prosecutor has notexplained how imposing strict liability on a member of the public canfurther the objective of protecting government secrets.[emphasis added]89 It is certainly not true that making official secrets offences strictliability, especially when there is now the recourse to the defence of duediligence, would be “unworkable”. There are in existence regimes of strictliability where many people currently operate with just such a sword ofDamocles suspended over them. Also, the court could not have beenserious about the failure of the prosecution to explain how the objectivesof the Act will be protected by strict liability. The answer is simple and isthe same as for any justification for strict liability. All those who woulddeal with official secrets will redouble their efforts to make sure that suchinformation is not leaked to the public. What the court was perhaps reallysaying was that it would be unfair to impose strict liability – with theresult that totally blameless people would be guilty of a criminal offence.However, strict liability is always unfair, and it is not more so simplybecause those who would be slain by it happened to be governmentservants.145 [1997] 1 SLR 406.146 Id, at [74]–[76].
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