Anatomy of a Crime - MR

Question 1

5 Fault Elements?

Answer 1

1. Intention
2. Knowledge
3. Rashness
4. Recklessness
5. Negligence

Question 2

Intention

Answer 2

A. Purposeful doing of a thing to achieve an end. [Jai Prakash (IN)]

B. Oblique intention: Doing something with foresight of virtual certainty of a result.

C. Intention is NOT motive. Motive is emotional force behind D’s conduct.

D. Intention can be formed in spur of the moment. [Ismail bin Hussein]

Question 3

Knowledge

Answer 3

Awareness of certain facts with absolute conviction or certainty as to their existence.
[PP v Tan Kiam Peng]

Question 4

Rashness

Answer 4

Awareness of the risk involved in the act, BUT not amounting to intention or knowledge.

Question 5

Recklessness

Answer 5

A. 2 views:

• Same as rashness
• Knowledge of OBVIOUS risk (objective criterion)

B. Not clear whether recklessness = rashness.

C. Used in s 66 RTA.

Question 6

Negligence

Answer 6

A. Objective form of fault.

B. Same as the civil standard. [Lim Poh Eng]

Question 7

Sweet v Parsley (HL), as cited by Winnie Chan and A P Simester, “Four functions of MR” (2011)

Answer 7

MR is a presumed element that reflects an underlying idea that, unless the harm is caused advertently, or at least negligently, the attentions of the criminal law are inappropriate.

While MR is closely linked to culpability, it serves other purposes that are distinct and important.

Question 8

Winnie Chan and A P Simester, “Four functions of MR” (2011):

2 classes of functions, 4 sub groups?

Answer 8

1. MR can be used to establish a wrong
   a. Contributes to finding culpability
   b. Does so beyond findings of culpability; MR constitutes the morally wrongful character of D by identifying what kind of action D is performing.
2. Fair warning, sets limits to liberty
   a. MR notifies citizens in advance that they risk violating the criminal law through their conduct.
   b. MR plays a key mediating role in criminalisation, being the trade-off between protection of potential Vs, and preservation of liberties of potential Ds.

Question 9

Winnie Chan and A P Simester, “Four functions of MR” (2011):

Establishing the wrong?

Answer 9

Intention-dependent wrongs:
A. E.g. Theft: Need to prove ‘intention to permanently deprive’ and ‘dishonesty’.

In such cases, D’s mental state is integral to the moral character of his action; without it, there is nothing to think that D’s conduct is wrong

B. Also in pre-emptive crimes: E.g. purchasing fertiliser to make bombs.

Hence, pre-emptive offences often involve trade-off between AR and MR.

Suggested that it is sometimes better to criminalise a specific AR, e.g. possession of a firearm.

Question 10

Winnie Chan and A P Simester, “Four functions of MR” (2011):

Fair Warning - General principle?

Answer 10

Protection of citizens from state intervention:
The ‘fair warning’ rule provides for a rule of law that rules should offer advance guidance to the persons who are subject to them.

Allows citizens to make choices and plan their lives without ever contravening any laws.

Question 11

Winnie Chan and A P Simester, “Four functions of MR” (2011):

Fair Warning - 2 guiding principles?

Answer 11

A. No one should be punished under a law unless it is sufficiently clear and certain to enable one to know what conduct is forbidden before one does it.

B. No one should be punished for any act which was not clearly and ascertainably punishable when the act was done.

Question 12

Winnie Chan and A P Simester, “Four functions of MR” (2011):

Fair Warning - Particularly important in…?

Answer 12

Result crimes.

MR addresses the problem of result- and omission-based crimes to ensure that the commission of the offence did not happen out of the blue.

Liability for inadvertent harms can make it too difficult for citizens to pursue their own lives without fear of unexpected criminal charges.

Therefore, there always requires some reckless or intentional wrongdoing.

Question 13

Winnie Chan and A P Simester, “Four functions of MR” (2011):

Fair Warning - Why are different kinds of MR required for different types of offences?

Answer 13

Different kinds of protection are needed in each case, depending on how obviously dangerous the activities are.

E.g. Rape: act of sex is not criminalised. MR requires lack of consent on V’s part, and only an irresponsible actor would not be alert to his partner’s will.

In some cases, negligence is criminalised because it would otherwise deprive potential Vs of protection from unlooked-for intrusions by other citizens.

Question 14

Winnie Chan and A P Simester, “Four functions of MR” (2011):

How can MR constrain state power?

Answer 14

By limiting the scope of negligence, which reduces the risk of unexpected liability and restricts the deterrent scope of the law’s prohibitions.

Question 15

Intention:

Definition?

Answer 15

Left to the Courts.

Jai Prakash: Purposive nature of intention by contrasting it with knowledge.

Yeo Ah Seng v PP: Common law maxim that ‘every man intends the natural and probable consequences of his act’ should not be applied as intention must be strictly proved. If they find reasonable doubt as to whether there was such intention, they must find in favour of the accused.

Question 16

Jai Prakash v State (IN):

Purposive nature of intention?

Answer 16

“as compared to knowledge, “intention” requires something more than the mere foresight of the consequences, namely, the purposeful doing of a thing to achieve a particular end”

“knowledge…signifies…a bare state of conscious awareness…in which the human mind remains simple and inactive”.

“Intention” is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end.

Shaping of one’s conduct so as to bring about a certain event.

Question 17

Intention:

Is it motive?

Answer 17

No.

Intention: purposeful doing of a thing to achieve a certain result.

Motive: emotional force behind defendant’s conduct.

Question 18

Intention:

Where can it be found?

Answer 18

Can be formed on the spur of the moment, need not be pre-meditated.

Ismail bin Hussin v PP: D shot and killed V, thinking he was a terrorist. D had no pre-meditation to kill.

Held (CA): Held that intention for murder can be formed at the spur of the moment.

Question 19

Actual Knowledge, Wilful Blindness:

Definition?

Answer 19

Actual knowledge: Entails high degree of certainty, to be inferred from circumstances. [PP v Tan Kiam Peng]

Wilful blindness: Where actual knowledge is irresistible and is the only rational inference from the facts. [Nagaenthram v PP]

Wilful blindness is the legal equivalent of actual knowledge. [PP v Tan Kiam Peng]

Question 20

Actual Knowledge, Wilful Blindness:
PP v Tan Kiam Peng [2008] 1 SLR(R) 1, SGCA - General?

[A transported Class A drugs into SG from Malaysia, driven by dire financial straits. Sentenced to death.]

Answer 20

Wilful blindness is the legal equivalent of actual knowledge.
- As knowledge entails a high degree of certainty, “it is a fact that has to be inferred from the circumstances”, as with a finding of wilful blindness.

• Given that actual knowledge and wilful blindness are both often inferred from the facts and circumstances of the case, the line between the two is a fine one and may even be blurred.

Question 21

Actual Knowledge, Wilful Blindness:
PP v Tan Kiam Peng [2008] 1 SLR(R) 1, SGCA - 4 Principles to Consider?

[A transported Class A drugs into SG from Malaysia, driven by dire financial straits. Sentenced to death.]

Answer 21

1) No legal obligation not to turn a blind eye, but can amount to wilful blindness if he does so.

2) Must have suspicion, which is firmly grounded and targeted on specific facts and the level of suspicion must then lead to a refusal to investigate further, thus resulting in ‘blind eye knowledge’.
Otherwise, negligence at best.

3) Must deliberately shut his eyes to the obvious.
4) Doctrine of wilful blindness ultimately a fact-cantered inquiry.

Question 22

Actual Knowledge, Wilful Blindness:
Nagaenthran a/l K Dharmalingam v PP [2011] 4 SLR 1156, SGCA

[A transported heroin into SG from Malaysia willingly. Sentenced to death.]

Answer 22

Actual knowledge is proved because the inference of knowledge is the only rational inference available on the facts. (Subjective concept)

Wilful blindness not negligence or inadvertent failure to make inquiries.
Refers to the blindness of a person to facts which, in the relevant context he deliberately refuses to inquire into. Such failure to inquire may sustain an inference of knowledge of the actual or likely existence of the drug.

Question 23

Actual Knowledge, Wilful Blindness:
PP v Hla Win [1995] 2 SLR 104, CA

[Thought he was carrying gems. Actually drugs. Counsel proved his story.]

Answer 23

Yong Pung How CJ (dissenting):
Concept of wilful blindness qualifies the requirement of knowledge.

“Deliberately shutting his eyes to the obvious, because he does not want to know, he is taken to know” (Glanville Williams)

Defence only if there is no reason for suspicion and no right and opportunity of examination.

Question 24

Actual Knowledge, Wilful Blindness:
Chiaw Wai Onn v PP [1997] 3 SLR 445, SGHC

[A knew computers were stolen. Put up money with another party to buy the computers and received a share of the profits.]

Answer 24

If it can be shown that appellant had deliberately shut his eyes to the obvious, can be inferred from the present circumstances that he had the requisite guilty knowledge.

Question 25

Actual Knowledge, Wilful Blindness:

Khor Soon Lee v PP [2011] 3 SLR 201, CA

Answer 25

A agreed to transport drugs (which did not attract death penalty) into SG but was found to be in possession of diamorphine instead. Argued that he did not know that the drugs were diamorphine. Previously, A had sought assurances from supplier that he would not be trafficking diamorphine as he was afraid of the death penalty and on numerous previous occasions, he had only trafficked the other drugs.

Held: A was, at most, either negligent or reckless in not checking the package, but not wilfully blind.

Question 26

Actual Knowledge, Wilful Blindness:
Dinesh Pillai a/l K Raja Retnam v PP [2012] 2 SLR 903, CA

[Given brown packet to bring into SG. Doubted supplier’s claim that it was food but simply obeyed instructions to not open it.]

Answer 26

Presumption of knowledge NOT REBUTTED if accused made no effort to find out what he was bringing into SG in circumstances which would have alerted a reasonable person that he was being asked to do something illegal.

Question 27

Actual Knowledge, Wilful Blindness:
Muhamed Farid v PP [2015] 3 SLR 16, CA

[A had previously agreed with supplier to transport less than 250g meth. Caught with 386.7g. Found on balance of probabilities that A had no reason to believe he was carrying more than 250g.]

Answer 27

Suspicion not firmly grounded on specific facts but arose simply by the risky venture which he undertook.

[32] Nothing out of the ordinary to arouse his suspicion, insufficient to ground a finding of wilful blindness.

Question 28

Actual Knowledge, Wilful Blindness:
Masoud Rahimi v PP [2017] 1 SLR 257

[Mogan took 4 bundles, passed a bundle of diamorphine to A. A’s notebook entries and texts suggested A knew he was dealing in drugs. A sentenced to death.]

Answer 28

[56] Subjective state of knowledge of drugs in accused’s possession must be evaluated against objective circumstances surrounding the offence.

[59] Reasonable man perspective is evidential aid in assessing accused’s state of knowledge.

Question 29

Actual Knowledge, Wilful Blindness:

Drugs cases?

Answer 29

1. PP v Hla Win [1995] 2 SLR 424, CA
2. Khor Soon Lee v PP [2011] 3 SLR 201, CA
3. Dinesh Pillai a/l K Raja Retnam v PP [2012] 2 SLR 903, CA
4. Muhamed Farid v PP [2015] 3 SLR 16, CA
5. Masoud Rahimi v PP [2017] 1 SLR 257

Question 30

Wilful blindness v Mere Negligence/Recklessness

Answer 30

Involves suspicion followed by (and coupled with) a deliberate decision not to make further investigations.

Question 31

Wilful blindness v Actual Knowledge

Answer 31

Involves level of suspicion and cannot be equated with virtual certainty.

Question 32

Recklessness:

Definition?

Answer 32

Wilful and callous disregard for safety

Subjective awareness of risk but unreasonably running the risk. [Wang Ziyi Able; Madhavan Peter]

Must be proven beyond reasonable doubt.

Question 33

Recklessness:

Madhavan Peter v PP [2012] 4 SLR 613

Answer 33

Recklessness comprises of

(1) subjective awareness of a risk; and
(2) unreasonableness on the part of the offender in taking that risk.

Question 34

Recklessness:

Seah Siak How v PP [1965] 1 MLJ 53

Answer 34

Recklessness requires conduct to be characterised or distinguished by heedless rashness.

Question 35

Recklessness:

PP v Zulkifli Bin Omar [1998] 6 MLJ 65 - Reckless Driving

Answer 35

To be guilty of reckless driving, D must have created an obvious and serious risk of injury or damage to property. Must have given no thought to the possibility of that obvious risk, or have seen the risk and decided to run it.

As per R v Reid:
A. D must have recognised that there was some risk of that kind involved, but nevertheless went on to take it; or
B. Despite him driving in such a manner, he did not address his mind to the possibility of there being any such risk, and the risk was in fact obvious.

Question 36

Rashness:

Definition?

Answer 36

Acting with the consciousness that mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precaution to prevent their happening. [S Balakrishnan v PP]

The imputability arises from acting despite the consciousness (per Holloway J in Re Nidamarti Nagabhushanam).

Question 37

Rashness:

S Balakrishnan & Anor v PP [2005] 4 SLR 249

Answer 37

Ingredients to find rashness:
 Consciousness of danger in the activity
 Regardless of danger, act was still carried out

Confirmed dictum in PP v Teo Poh Leong [1992] 1 SLR 15

Question 38

Rashness:

Dictum in PP v Teo Poh Leong [1992] 1 SLR 15?

Answer 38

Not knowing that illegal and mischievous effect will follow his act, but in circumstances which show that the actor had not exercised the caution incumbent upon him, and that if he had he would have known.

Question 39

Rashness:

Mohamad Iskandar bin Basri v PP [2006] 4 SLR 440

Answer 39

A was firefighter responding to an emergency. Failed to stop at red light and collided with a taxi, resulting in a death of 1 passenger and injury to 3 others. Charged with doing rash act not amounting to culpable homicide by failing to conform to the red traffic light signal under s 304A PC.

Held: Rash in driving. While appellant took precaution of turning on the vehicle’s siren and blinking lights, he sped across the rather wide junction despite having a blind spot to his right (caused by the lorry which had stopped). Despite his position as a public servant responding to an emergency, this did not warrant rashness

Question 40

Rashness:

PP v Tiyatun [2002] 2 SLR 246

Answer 40

Rs’ act of force feeding child was rash.

Conscious that death was at least a possible consequence of their actions yet, in spite of an awareness of the possibility of the inherent risk involved, they carried on with their method of force feeding.
 Their rashness, in running the risk that the possibility of death might ensue, that made them criminally culpable under s 304A PC.

Question 41

Rashness:

PP v Hue An Li v PP [2014] 4 SLR 661

Answer 41

While “advertence to risk will generally be an essential element of rashness”, there is a class of cases where the risks may be said to be so obvious had the offender paused to consider them that it would be artificial to ignore this fact. 
(Some element of objectivity in rashness)

Question 42

Rashness:

Jali bin Mohd Yunos v PP [2014] 4 SLR 1059, SGCA

Answer 42

Concept of recklessness ought to be interpreted differently in the context of road traffic offences as compared to offences involving criminal damage.

Element of objectively applies to road traffic offences only.

Question 43

Negligence:

Definition?

Answer 43

Acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the consciousness.

The imputability arises from the neglect of the civic duty of circumspection.

Question 44

Negligence:

Lim Poh Eng v PP [1999] 1 SLR (R) 428

Answer 44

Criminal standard for negligence is the same as the civil standard. (Standard of a reasonable man (objective test))

Recognised difficulties in applying intermediate standard in practice (i.e too elusive a concept to be workable).

Question 45

Negligence:

Ng Keng Yong v PP [2004] SGHC 171

Answer 45

Certainty of a general standard is preferable to the vagaries of a fluctuating standard (approved Megaw LJ in Nettleship v Weston).

Question 46

Negligence:

Chinpo Shipping Co (Pte) Ltd v PP [2017] 4 SLR 983

Answer 46

Calls for a prospective inquiry which the court must undertake objectively to assess whether such a person would have appreciated the risk.

Question 47

Negligence:

PP v Hue An Li [2014] 4 SLR 661

Answer 47

Negligence is regarded as the omission to do something which a reasonable person would do, or the doing of something which a reasonable person would not do.