Intention Knowledge and Wilful Blindness

Yeo Ah Seng v Public Prosecutor

[1967] 1 MLJ 231 Federal court (Malaysia)

The maxim that the trier of fact in a criminal trial could presume that the accused ‘knew the natural and probable consequences of his act’ was rejected in Malaysia by the Federal Court

Suggestive of the presumption of GUILT. Hence wrong.

it is not true that a man necessarily intends the natural consequences of his act: and it is not true in law that he is compellingly presumed to do so.

The jury should be told that they are entitled to draw inferences as to the defendant’s intention from what he did, but that if they have a reasonable doubt as to his intention they must find for the defendant

PP v Hla Win

[1995] 2 SLR 424 Court of Appeal

Facts: Upon his arrival at the Changi Airport from Hatyai, Thailand, the respondent was arrested with 3,468g of diamorphine in his bag.He claimed that he was told by Maung Maung that what he had in his bag were gem stones. In response to questions asked by a customs officer, he replied that he was carrying precious ‘stones’.

He was charged with importing drugs into Singapore

Procedural History:

Trial Court (trial judge accepted the defence of the respondent that he did not know he was carrying drugs, respondent acquitted):

Court of Appeal(prosecution appealed)

Judgment or result:

Appeal dismissed

Issue presented:

Whether the respondent had knowledge of what he was smuggling, and if the court is satisfied with the claim that the respondent did not know that smuggled was drugs was true

Holding:

No – by a balance of probabilities

Trial judge

The learned trial judge considered the merits of the respondent’s defence and the credibility of the respondent’s evidence. He also considered the various aspects of the case submitted by the prosecution.

Court of Appeal

The learned trial judge considered as significant the first reactions of the respondent upon his arrest and discovery of the drugs in the bag. The respondent at that time told CCO Koh that he was carrying precious stones to Cebu for Maung Maung.

The learned trial judge found that Miss Lim’s evidence and the documentary evidence produced by Miss Teo of Thai Airways confirmed the respondent’s story. Finally, the learned trial judge considered the merits of the respondent’s defence and the credibility of the respondent’s evidence.

Decision or ratio decidendi:

He who does not have knowledge that what he is smuggling is drugs, should not be prosecuted.

Summary of reasons for judgment:

[dissenting argument] CJ Yong Pung How

Where the accused, who was not an innocent custodian (in the sense that the drugs were planted in his bag without his being aware of them) accepted the goods in circumstances which rendered the taking of the precaution of satisfying himself that the goods were what they purported to be and were not drugs an imperative, then, if he did not take the trouble to inspect them, but merely relied on another person’s assurance, he would not rebut the statutory presumption of knowledge. In fact, he would be guilty of wilful blindness to the obvious truth of the matter.

The respondent had agreed to smuggle gems knowing it was an unlawful act for a substantial reward. In itself, that was a strong reason for him to be suspicious of the contents of the bag. Moreover, the respondent’s claim to have reposed such a high degree of trust in Maung Maung was incredible. Not being a naive or gullible person, he had little reason to trust a virtual stranger’s words or oath. Also, from the questions asked by the respondent of Maung Maung and Yusoof about the contents of the bag, it was clear that he had doubts that the bag contained only gems.

Quite apart from the statutory presumption of knowledge within s 18(2) of the Misuse of Drugs Act, such wilful blindness was tantamount to knowledge.

Chiaw Wai Onn v Public Prosecutor

[1997] 3 SLR 445 High Court

Facts:

The appellant loaned $80,000 to Poon to purchase 640 stolen computers.

He claimed that he did not know that the computers were stolen.

The appellant was charged with abetting the disposal of stolen goods.

Procedural History:

District Court(appellant sentenced to 12 months imprisonment)

Appellant appealed to high court

Judgment or result:

Appeal Dismissed

Issues presented:

The issue concerns the mens rea of the appellant: whether he had knowledge or had reason to believe that the computers inside the container were stolen property

Holding:

Even if knowledge could not be inferred, the mens rea for a s 41charge would still be constituted under the alternative limb that the appellant had ‘reason to believe’ that the computers were stolen. The requirement here would be lower than actual knowledge.

Reason:

Applying the above test to the present set of facts, I concluded that the appellant would have had reason to believe that the goods were stolen. The fact that the initial loan of $70,000 was requested to be made in cash, the meetings Poon had with the other accomplices in the appellant’s presence and the manner the deal was conducted all added up to the appellant’s guilty mens rea.

The appellant’s presence throughout the day at various place which pointed to his complicity. I accepted that presence at the scene per se was insufficient to prove knowledge or intention.

Reason:

The appellant’s explanation essentially amounted to this. His presence during the theft was coincidental. Poon’s car had coincidentally broken down on the day in question when he delivered $70,000 in cash to him. The appellant, who was coincidentally free that day, agreed to fetch Poon around. Poon, of course, had coincidentally arranged to meet all his fellow accomplices on that day; this was to discuss the disposal and the storage of the stolen property and to allow the viewing of the cash. It was also coincidental that Poon forgot to take the money out from the car, although that was the very reason for meeting the appellant in the first place. Thus, he had to recall the appellant to deliver the money at the very place where the stolen goods were unstuffed! The whole sequence of theft had therefore coincidentally unfolded before the appellant’s eyes, from the time the stolen goods were trucked out of PPD until the time of unstuffing at the Penjuru warehouse.

I could not but be incredulous of the appellant’s account. The sheer coincidences were inexplicable. Moreover, if he was not a party involved in some way or another with the theft, it was inconceivable that the other participants would have readily agreed to his presence at every stage of the criminal enterprise from the planning to its execution.

Ratio Decidendi or decision:

Summary of reasons for judgment:

The appellant’s account of his presence at every stage of the criminal enterprise was incredulous. The sheer coincidences were inexplicable. Moreover, if he was not a party involved in some way or another with the theft, it was inconceivable that the other participants would have readily agreed to his presence at every stage of the criminal enterprise from the planning to its execution (see 40).

Just on the circumstantial evidence alone, there was sufficient basis to reach the inevitable and inexorable conclusion that the appellant was a participant to the criminal activity. The appellant’s presence at all the relevant stages of the theft went beyond mere presence, but indicated that he was well aware of the theft and was an active participant. And, in so far as the law was concerned, the appellant’s guilt did not need to be proven beyond a shadow of doubt, but beyond a reasonable doubt.

The appellant had sufficient reason to believe that the computers were stolen because he actually got extra profits from the loan: The trial judge noted that the loan of $70,000 was in cash without any documentary proof of the money given. The appellant was also coincidentally present throughout the scene from start to finish and was repaid $140,000, an extra $60,000 from what was loaned to Poon. The appellant’s explanation that this $60,000 was for an earlier loan was rejected by the court.

Accordingly, the trial judge was satisfied beyond a reasonable doubt that the charge against the appellant had been made out.

Mohd Aslam s/o Jahandad v Public Prosecutor

[2006] SGHC 46

Facts: The appellant was charged with: (a) abetting a company (“Eraz”) to make a false statement to the Ministry of Manpower (“MOM”) so as to obtain an employment pass (“the pass”) for a foreign worker (“the first offence”); and (b) abetting Eraz to make the same false statement to the MOM so as to obtain a renewal of the pass (“the second offence”). The false statement, which was that Eraz would employ the foreign worker (“PW1”) as a business development manager at a monthly salary of $3,000, was made in Eraz’s application for the pass (“the application form”) and in its subsequent application for renewal of the pass (“the renewal form”).

Procedural History:

Trial court ( Trial judge held that the appellant, when signing and submitting the two forms on Eraz’s behalf, “ought to know” that the material details were false. Further, the appellant “knew” that the MOM reliedon that information to issue the pass.)

Appeal to High court

This was an appeal against conviction in respect of two offences under s 57(1)(k) of the Immigration Act (Cap 133, 1997 Rev Ed) read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed), namely:

(a) abetting a company (“Eraz”) in making a false statement to the Ministry of Manpower (“MOM”) so as to obtain an employment pass for PW1, an Indian national (“the first offence”); and

(b) abetting Eraz in making a false statement to the MOM so as to obtain a renewal of PW1’s employment pass (“the second offence”).

Judgment or result:

Allowed the appeal in respect of the first offence, but dismissing it with respect to the second offence

Issues presented:

-whether or not the Prosecution had proved the requisite mens rea – namely, the appellant’s knowledge, when signing and submitting the two forms, that the material details were false – beyond reasonable doubt. Knowledge in this context included both actual knowledge and “wilful blindness” in the sense of wilfully shutting one’s eyes to the obvious:

Holding and reasoning:

With regard to first offence:

For the first offence, the only evidence as to mens rea was PW1’s assertion that shortly after arriving in Singapore, he found, contrary to what he had been led to believe, that there was no job for him. Since this evidence was uncorroborated, before the trial judge could rely solely on it to convict the appellant, he had to scrutinise the evidence carefully and assess whether it was so compelling that it could in itself secure a conviction. As the trial judge failed to do so, the appellant’s conviction of the first offence was unsupportable and had to be set aside

In signing and submitting those two forms on Eraz’s behalf, the appellant performed “an act of positive assistance” in connection with the s 57(1)(k) offence: Awtar Singh s/o Margar Singh v PP [2000]

3 SLR 439 (“Awtar Singh”) at [47]. As such, his conviction could be set aside only if he lacked the requisite mens rea when he carried out such act.

With regard to second offence:

There was sufficient proof that the appellant was wilfully blind to the falsity of the material details when he signed and submitted the renewal form. By that time, the appellant was clearly aware of PW1’s poor command of English. It must thus have been obvious to him that PW1’s job title as stated in the renewal form and, in turn, the declared salary could not be true.

It was significant, in relation to the second offence, that PW1 was not proficient in English.

Clearly then, the appellant was aware of PW1’s poor command of English when he signed and submitted the renewal form in July 2004. By that time, he had met PW1 at least once, on which occasion the two men had communicated in Urdu. (In contrast, the appellant did not have any personal contact with PW1 prior to filling in the application form in June 2003.) Without a working knowledge of English, PW1 could not possibly have carried out his duties as the company’s business development manager. It must, therefore, have been obvious to the appellant when he completed the renewal form that PW1 could not have been working for Eraz in that capacity. This must in turn have aroused his suspicions as to whether PW1 was truly receiving a monthly salary of $3,000 as stated in the form.

Ratio Decidendi or reason:

Public Prosecutor v Tan Kiam Peng

[2006] SGHC 207 High Court

Facts: The accused (“Tan”) was placed under arrest at the customs clearance point in Woodlands (“the Woodlands checkpoint”) when he attempted to import ten packets of a yellow powder into Singapore. The ten packets weighing 3.28829kg, turned out to contain 145g of pure heroin, a controlled drug under the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“MDA”). Tan was charged under s 7, punishable under s 33, of the MDA. The accused claimed that he did not know that what he was transporting was heroin

Procedural History:

High Court

Judgment or result:

Defendant prosecuted

Issues presented:

(Not whether the CNB officers could identify the drugs but) whether the accused knew the nature of the drugs

Whether the accused possessed the required mens rea, which connotes actual knowledge.

Holding:

It was reasonable to conclude that when a reference was made to illicit drugs, the phrase “number 3” would usually refer to one particular type: heroin. Given the circumstances under which Tan stated that the drugs were “number 3”, this was not an innocent reference but a clear and express admission that he was carrying heroin. Tan knew full well that he was carrying heroin and his statements indicating that the drugs were “number 3” were not, by any stretch of imagination, benign references to the numerical digit three: at [51] and [52].

Moreover, the fact that he instantly and unhesitatingly connected Uncle’s three fingers to the precise type of drugs in question unerringly points to knowledge of the nature of the drug

Ratio Decidendi:

Recklessness, Rashness, Negligence

Seah Siak How v PP

[1965] MLJ 53 High Court(Singapore)

Facts: The appellant caused the death of Lee Goh Thong by failing to exercise due care and attention while driving

He was charged with driving reckless and failing to exercise due care and attention.

He hit the trishaw while passing it, hence killing the trishaw rider.

Procedural History:

Trial court(accused sentenced to 4 months imprisonment and disqualification from driving for a period of 3 years)

High court

Judgment or result:

Issue presented:

Whether the accused could be charged for driving ‘recklessly’ where the driver of the vehicle must be heedless of the state of affairs on the road

Holding:

No – insufficient evidence to find a conviction for reckless driving. There were only two ‘eye witnesses’ who could only testify to say that ‘almost immediately after the trishaw was overtaking a parked vehicle the trishaw was hit by a car behind’

Decision:

The charge was changed to negligence.

PP v Zulkifli Bin Omar [1998]

6 MLJ 65

Facts:

A trailer-lorry, carrying a load of iron rods and driven by the defendant, collided into a group of 41 Rakan Muda members travelling in the opposite direction, killing five of them and injuring four others. The defendant was charged for an offence under s 41(1) of the Road Transport Act 1987 (`the Act`) for `causing death by reckless or dangerous driving`. On 9 February 1998, after ` trial before the learned magistrate in Kangar, the defendant was convicted as per charged and sentenced to 30 days` imprisonment and a fine of RM7,000, in default six months` imprisonment. He was also disqualified from holding or obtaining a driving licence for a period of 12 months. The deputy public prosecutor appealed against the sentence.

Procedural History:

Judgment or result:

Appeal dismissed. in addition to the RM7,000 fine imposed by the magistrate, the defendant should be sentenced to three years` imprisonment and be disqualified from holding or obtaining a driving licence for a period of four years

Issue presented:

Holding:

magistrate erred in not giving any or sufficient regard or consideration to the serious and aggravating features of the case as the result of the highly culpable recklessness of the defendant`s management of the trailer-lorry

in the public interest, where the facts warrant, the courts ought not hesitate to mete out robust deterrent custodial sentences against reckless drivers; the sentence must be commensurate with and closely reflect the high degree of culpability and recklessness on the part of the defendant, as aggravated by the magnitude of the carnage that he had caused by his rash act.

The principle of law in this case: To be guilty of recklessness, the driver must have created an obvious risk and must either had given no thought to the risk or have seen the obvious risk, yet have decided to run it.

Whereas to be guilty of rashness,

Decision or ratio decidendi:

Mohamad Iskandar bin Basri v PP [2006]

4 SLR 440 High Court

Facts: The appellant, a firefighter in the Singapore Civil Defence Force (“SCDF”), responded to an emergency call that there was a fire. He was driving to the site of the fire when he failed to stop at a cross junction while the traffic lights were red against him. The appellant’s vehicle collided with a taxi resulting in the death of one of three passengers. The taxi driver and remaining passengers suffered various injuries.

The appellant pleaded guilty to charges of: (a) doing a rash act not amounting to culpable homicide by failing to conform to the red traffic light signal under s 304A of the Penal Code (Cap 224, 1985 Rev Ed) (“PC”); (b) causing grievous hurt by doing an act so rashly as to endanger human life under s 338 of the PC; and (c) causing hurt by doing an act so rashly as to endanger the personal safety of others under s 337 of the PC.

The rash act was that he failed to check his blind spot before beating the red light. He believed that he had taken sufficient precaution to prevent their happening hence distinguishing this from a reckless act.

Procedural History:

Trial Court: The appellant was sentenced to a total of 15 months’ imprisonment and disqualified from obtaining or holding a driving licence for all classes of motor vehicles for eight years, pursuant to s 42 of the Road Traffic Act (Cap 276, 2004 Rev Ed)

Appealed to High Court

Judgment or result:

Appeal allowed. The sentence was changed to a total of seven months’ imprisonment

Issue presented:

Whether sentence imposed by trial judge manifestly excessive

Holding:

1) imprisonment could be imposed for a negligent act if the facts warranted it

(2) The appellant’s act of driving at a high speed across the junction in spite of the red lights was clearly a reckless act. Given that the red lights had come on for some time and that a large vehicle was blocking his view, it was incumbent for the appellant to slow down and scan the junction before charging into it

(3) Firefighters, ambulances, police officers and doctors rushing to save lives and/or property in emergency situations had to be viewed with greater charity when they made mistakes of judgment, however egregious they appeared to be in retrospect. However, emergencies did not justify rashness. A duty of care was still owed to other road users whatever the emergency was: at [26].

(4) While the appellant’s rash act in the circumstances was not such an unusual case justifying a non-custodial sentence, the terms imposed by the district judge were manifestly excessive for a firefighter rushing to attend to an emergency. The sentences imposed might have been appropriate for a reckless driver speeding across a junction contrary to the light signals for no particular reason other than out of habit or for the sheer thrill of it or because he has had a little too much of intoxicating drinks. The “one transaction” principle was applicable as the fatality and injuries sustained by three others all stemmed

PP v Tiyatun [2002]

2 SLR 246

Facts: The respondents, Tiyatun and Sakdiah, were feeding the deceased, a child aged 21 months, in the toilet attached to his bedroom. Tiyatun, the elder of the pair, directed Sakdiah to press the child’s nostrils together while holding down his hands so as to temporarily incapacitate his movements. The purpose of such an exercise was to force him to open his mouth, whereupon Tiyatun used a plastic cup to pour food into his mouth. In the course of so doing, the child had difficulty breathing. He started gasping for air and his face turned a bluish hue. The child passed away three days later.

The respondents were both charged under s 304A read with s 34 of the Penal Code (Cap 224) for acting in furtherance of a common intention to cause the death of the child, by doing a rash act not amounting to culpable homicide. They pleaded guilty to their respective charges and were convicted and sentenced to a term of nine months’ imprisonment each. The public prosecutor appealed against the sentence on the ground that it was manifestly inadequate.

THE ACT WAS RASH BECAUSE:…….

There was no dispute that the acts of the respondents in force feeding the child were rash. The respondents had confirmed that they had chosen to run the risk of force feeding the child in spite of being aware that death was at least a possible consequence of their action.

Procedural History:

District Court: Respondents sentenced to 9 months imprisonment each

High Court

Judgment or result:

Issue presented:

Whether the sentence was manifestly inadequate

Holding:

Yes. The sentence of nine months’ imprisonment was an adequate reflection of the degree of culpable rashness exhibited by the respondents. In this respect there was no reason for enhancing the sentence which was sufficient to create awareness of the risk inherent in force feeding as well as to deter individuals with a similar practice from so doing

Decision or ratio decidendi:

There was no reason for enhancing the sentence which was sufficient to create awareness of the risk inherent in force feeding as well as to deter individuals with a similar practice from so doing

S Balakrishnan & Anor v PP [2005]

4 SLR 249 High Court

Facts: The 80th Combat Survival Training Course (“80th CST course”) was organised by the Singapore Armed Forces in August 2003. As a result of the treatment meted out to trainees by means of dunking in a water tub during the course, one trainee (“Sgt Hu”) died and another trainee (“Capt Ho”) was seriously injured.

The first appellant (“WO Balakrishnan”) and second appellant (“Capt Pandiaraj”) were charged in their respective roles as course commander and supervising officer of the 80th CST course. Both were charged with causing the death of Sgt Hu and the grievous hurt of Capt Ho

Procedural History:

Judgment or result:

Dismissed the appeals against conviction and sentence, and enhancing the sentences of both appellants

Issue presented:

Whether abettor having to be present at scene of offence for abetment to be made out

In any event, it was clear that even if Capt Pandiaraj did not witness the treatment meted out to Capt Ho and Sgt Hu, he had, by his own admission, observ.ed the treatment of other trainees. Various trainees testified that their mouths and noses were blocked by the instructors and that they were not given adequate time to catch a breath between dunks. It is safe to say that their experiences were not uncommon. The fact that Capt Pandiaraj did not intervene even though he was responsible for safe conduct of the course suggested strongly that he endorsed what was being done.

Whether appellant possessing mens rea of culpable rashness

While culpable rashness requires the actor to act with the consciousness that mischievous and illegal consequences may follow, culpable negligence requires him to act without that consciousness. I found that WO Balakrishnan clearly had the consciousness necessary for a finding of culpable rashness and should be sentenced accordingly.

Whether sentences for offences manifestly excessive

A custodial sentence should be imposed when a defendant has caused grievous injury or death by a rash act, whereas a fine may suffice if the act has only been negligent: Ngian Chin Boon v PP [1999] 1 SLR 119 for s 338 and PP v Gan Lim Soon [1993] 3 SLR 261 for s 304A. A further factor considered by the judge was that since public interest was at stake, imposition of a fine would not be appropriate for the appellants.

Whether abuse of position of trust and authority factor to be considered in sentencing

Holding:

Decision or ratio decidendi:

PP v Teo Poh Leong [1992]

1 SLR 15 High Court(Singapore)

Facts:

As the respondent was negotiating a left bend, she lost contraol of her vehicle, which veered to the left side and careened out of control. The said vehicle hit the left side road kerb and cut diagonally across Delta Avenue. It mounted the road pavement and hit the two deceased and Ho Kuen Hoe, who were walking on the road pavement. The impact caused them to be flung up into the air before landing on the ground

Procedural History:

Trial Court(PP appealed on the ground that the sentence was manifestly inadequate)

High Court

Judgment or result:

Appeal allowed – fine increased from S$5,000 to S$10,000. A sentence of imprisonment of three months was imposed. The respondent was also disqualified from driving all classes of vehicles for life.

Issue presented:

Whether the sentence was manifestly inadequate

Holding:

Yes – sentence must reflect to a certain extent the degree of damage caused as a result of the negligent act of the respondent

Decision or ratio decidendi:

The mere fact that a human life is lost due to negligent driving of a motor car does not justify a custodial sentence in the absence of an allegation of callousness ……… The circumstances of each case must be considered in imposing a sentence

Ng Keng Yong v PP [2004]

SGHC 171 High Court(Singapore)

Facts:

There was a collision at sea between a Republic of Singapore Navy vessel, RSS Courageous, and a merchant vessel, ANL Indonesia. Four crewmembers of the Courageous died, and the appellants who were the Officer-of-the-Watch (OOW) and the trainee OOW were charged under section 304A of the Penal Code for causing their death by negligently navigating the Courageous across the path of the ANL.

The appellants argues that their actions were not negligent; that the change in course by the ANL had broken the chain of causation; and that the second appellant, a trainee OOW, should not be held to the same standard of care as a qualified OOW

Procedural History:

Trial Court(Appeal against conviction)

High Court

Judgment or result:

Appeals against conviction dismissed

Issue presented:

1.Whether actions of the appellants were negligent

2.Whether a trainee OOW should be held to the same standard of care as a qualified OOW

Holding:

Yes –

1.Although the appellants were not negligent in navitaing the Courageous, it was incumbent on them to take all the necessary safety measures including the maintenance of a sufficient CPA[Closest point of approach]

2. To subject her to a lower standard of care would unfairly place the safety of everyone else around her at risk

Decision or ratio decidendi:

The duty of care should be tailored not to the actor, but rather to the act which he or she elects to perform