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

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18 SAcLJ 314 Managing Mens Rea in Singapore 36390 In a similar vein is PP v Ng Chee Kheong, which refused to holdthat the offence of insider trading was one of strict liability. The courtdescribed the mens rea requirement to be “an intention to use theundisclosed information knowing that the information was pricesensitiveand unavailable to the public” 147and rejected the entreaties ofthe Prosecution to the contrary in this fashion: 148[N]o legislative intent would be served by adopting a strict liabilityapproach toward trading by an insider as it would discourage competententrepreneurial persons from holding directorial positions in companies.Furthermore, … to interprete the offence as a strict liability one wouldplace morally innocent persons at risk of being convicted for merepossession of inside knowledge especially when the test of what ismaterial information is an objective one. Such an interpretation isclearly not consonant with the consequences of conviction. Under s 104 ofthe Act, the convicted person can be fined up to $50,000 or imprisonedup to seven years. Under s 105, he is also liable to pay compensation tothe other party to the transaction who has suffered loss. [emphasisadded]91 Surely, the same considerations apply with equal force, mutatismutandis, to every context in which strict liability is urged upon thecourt. Strict liability will always discourage people from engaging in theactivity in question. The morally innocent will always be at risk if mensrea is done away with. It is simply not the case that the court has aparticularly good track record of preventing offences with seriouspenalties from being construed as offences of strict liability. Even theLegislature, which normally leaves such matters to the courts, respondedwith alacrity to this uncharacteristic display of liberalism. 14992 We turn now to decisions which went the other way. In TanCheng Kwee v PP, 150 the court opted for strict liability in the context of theoffence of causing a heavy vehicle, which was in excess of the permittedheight, to be driven on a public road. The court reasoned as follows: 151It was patently clear to me that s 79(1) of the Act fell within that class ofstatutory offences that dealt with public safety …147 Supra n 129, at [48] (emphasis added).148 Id, at [45].149 The amended provisions on insider dealing are now found in Pt XII, Div 3,Securities and Futures Act (Cap 289, 2002 Rev Ed). They were drafted in directresponse to this decision: Singapore Parliamentary Debates, Official Report (5 October2001), vol 73, cols 2136–2137.150 [2002] 3 SLR 390.151 Id, at [17]–[21].
364Singapore Academy of Law Journal (2006)The severity of the penal sanction is but one of the many factors that thecourt has to take into account in trying to ascertain Parliamentaryintent. While a slight penalty may be a factor in favour of construing anoffence as one based on strict liability, there is by no means a definitivecorrelation. Parliament has the power to prescribe severe penalties forstrict liability offences in order to achieve its legislative purpose.A strict liability reading would rigorously promote the intention ofParliament by encouraging, or coercing, drivers and owners of heavymotor vehicles to exercise a fair degree of care and consideration intheir activities. On the contrary, imputing a state of mind as a necessityfor every single element of the offence would not only severely stultifythe legislative purpose but would actually go against its very grain. Afterall, drivers and owners of heavy motor vehicles with high loads riskedcausing serious public harm if they did not positively take care. Harmmight also be done if they were merely passive, knew nothing or werehonestly mistaken about the facts and did not know that they had toobtain the requisite licences that would immediately tell them whichroads were out of bounds to their vehicles.[emphasis added]93 The attitude of the court is completely different, but not on thebasis of any apparent principle. Causing a vehicle which is beyond thepermitted height to be driven on public roads is indeed a matter of publicsafety, but so too the unauthorised disclosure of official secrets. Indeed itmight be argued that the potential damage to the nation is likely to be farless for the over-height vehicle. The severity of punishment, which playeda significant role in the insider trading decision, and which ought to haveweighed even more heavily here with the mandatory imprisonment ofone year, is now downplayed without explanation. In the official secretsand insider trading decisions, the court could see no legitimategovernmental purpose to be served by strict liability – here the courtsweepingly declares that the legislative purpose cannot be served withoutstrict liability. Once again, no convincing reason is advanced, nor are thetwo earlier pro-mens rea decisions even deserving of mention. The courtis now particularly impressed with the harm that might be doneregardless of mens rea, a consideration curiously and inexplicably absentfrom both the official secrets and insider dealing decisions. Gone is thetender concern about the conviction of the “morally innocent”, and so isthe potential disincentive to people who might embark on the activity inquestion.
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