Fundamental Principles of Criminal Law

The main motivation behind criminalising negligence probably stemmed from a conceptual mix-up with rashness. In R v Bateman22, the court explained that criminal negligence is a negligence that is criminal. 23 Hidden behind this apparent circularity is a sentiment to punish those who exhibit a culpable disregard for human life. 24 In essence, this equates criminal negligence to recklessness because one cannot disregard or be indifferent towards human life without knowing that he is generating an unreasonable risk via his conduct.

Similarly PP v Poh Teck Huat was mistaken to claim that 'negligence does not end nicely where rashness begins and there is a certain measure of overlap'. 25 It is submitted that negligence and rashness are different conceptual tools that do not cross each other's boundaries. While the rash actor chooses to disregard the risk despite being subjectively aware; the negligent actor is ignorant to the risk however unreasonable this ignorance might be. Hence, the former, but not the latter can be deterred.

A covers sufficient grounds of justice by punishing rashness in the absence of negligence. In conclusion, negligence should be decriminalised. Prospects of civil liability are sufficient to deter a person from behaving negligently. There is no utilitarian value by inflicting additional pains on the accused on top of the loss suffered by the victim if the accused was merely negligent. Rashness alone is capable of dealing with people who shows a disregard for human life, and rashness can be deterred because it involves a choice.

Criminal law very often involves balancing between the interest of the individual and the public. In professor Ramraj's words: 'While We all want the criminal law to protect us from harm, we recoil at the idea that we might be punished for harming someone accidentally so as to serve as an 'example' for others. '26 There is always a danger of criminalising too much, especially when no 'greater good' is served.

1 Chan, Hor, Ramraj 'Fundamental Principles of Criminal Law' 2 Michael Moore, 'Placing Blame (1997)' 30-33 3 Professor Sornarajah, 'The interpretation of the penal codes (1991)' 3 Malayan Law Journal cxxix 4 Vaughan v Menlove (1837) 132 ER 490, as per Tindal CJ. RFV Heuston and RA Buckley, Salmond and Heuston on the Law of Torts (21st Edition, London: Sweet & Maxwell, 1996) 5 Stanley Yeo, 'Fault Elements of Crimes' Draft Chapter from Neil Morgan, Chan Wing Cheong and Stanley Yeo, Criminal Law (Lexis Nexis) (Forthcoming).