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

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18 SAcLJ 314 Managing Mens Rea in Singapore 369drugs and immigration cases demonstrate how negligence has muscledin, even where the Legislature has been explicit that only knowledgeshould be the mens rea. A parallel development has been the equating ofcriminal with civil negligence, both in terms of the standard of care andthe rather extreme objectivist view of it, resulting in a significant loweringin the threshold of what has to be shown for criminal negligence. A littlemore promising have been developments in strict liability where it canperhaps be cautiously declared that true strict liability no longer exists inSingapore. This has been the work of bold judicial innovation in thedevelopment of the defence of due diligence and the presumption ofnegligent mens rea. Yet the danger is real that the existence of thesehalfway houses will tempt the court to opt for negligence where it mighthave decided on full mens rea in the past. Instrumental arguments aboutthe unworkability of the principle of full mens rea have been very farfrom convincing – the courts in turn accepting or rejecting them forreasons yet to be discerned. The ethical and symbolic cost of punishingthe innocent must not be forgotten. The plea here is for the appropriatescrutiny, both judicial and legislative, of claims that the requirement offull mens rea would adversely and intolerably affect the criminal justicesystem. The bureaucracy will almost invariably try to make their job ofenforcement easier. 158 Our judges and lawmakers must play their part inbeing a restraining influence. The plea here is also for our judges toreconsider the content of criminal negligence, a concept which probablycannot be resisted entirely. As more and more crimes of a serious orderbecome predicated on negligence, the need to set apart the criminal fromthe civil assumes a hitherto unknown urgency.VI.Postscript101 Since this article went into production, there have been somesignificant developments. Only a brief description is offered here to theput the reader on notice. A more satisfactory treatment of them will haveto wait for another day.158 I do not, of course, suggest that there is necessarily any selfish interest in this – thesaving of cost for the bureaucracy is the saving of cost for all taxpayers. Similarly,bureaucratic efficiency is normally a boon not only to the bureaucracy but to all.
370Singapore Academy of Law Journal (2006)Murder102 The Court of Appeal delivered its judgment in PP v Lim PohLye, 159 reversing the trial court and finding the accused guilty of murder.The Court of Appeal quite rightly dismissed the relevance of Tan CheeHwee, 160 and expressly sidelined Yasin 161 by quoting with approvalVisuvanathan. 162 Yasin was not overruled, only restricted to its facts, andso is technically susceptible of resurrection. It remains to be seen if theYasin “lifeline” has been cut once and for all.Knowledge versus negligence in drug cases103 There have been major judicial pronouncements defending theline between a mens rea of knowledge and a mens rea of negligence. PP vTan Kiam Peng 163contains an erudite discourse by V K Rajah J on theissue with this conclusion:The uncompromising and distinct line between recklessness andnegligence on the one hand and actual knowledge and wilful blindnesson the other must be vigilantly policed and preserved by the courts andcannot be lightly dismissed as a mere semantic nicety. 164104 In the Court of Appeal decision of Iwuchukwu Amara Tochi vPP, 165Choo Han Teck J delivered the judgment of the Court, warningagainst[creating] a wrong assumption that there was some sort of positive legalduty, meaning that the first appellant was bound in law to inspect anddetermine what he was carrying, and that consequentially, if he did notdo so, he would be found liable on account of that failure or omission.The [Misuse of Drugs] Act does not prescribe any such duty. 166[emphasis in original]159 [2005] 4 SLR 582.160 Supra n 24.161 Supra n 12.162 Supra n 15.163 [2006] SGHC 207.164 Id, at [30].165 [2006] 2 SLR 503.166 Id, at [6].
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