‘Ordinances’). The issue for the Privy Council was as to whether or not the Ordinances created offences of strict liability.
Lord Scarman:
. . . The issue in the appeal is whether the offences charged are offences of strict liability or require proof of mens rea as to their essential facts . . . In their Lordships’ opinion, the law relevant to this appeal may be stated in the following propositions . . .: (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is ‘truly criminal’ in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.
. . . Whether, therefore, a particular provision of the statute creates an offence of full mens rea or of strict liability must depend upon the true meaning of the words of the particular provision construed with reference to its subject-matter and to the question whether strict liability in respect of all or any of the essential ingredients of the offence would promote the object of the provision . . .
3.8.4 WHETHER THE IMPOSITION OF STRICT LIABILITY HELPS TO ACHIEVE THE LEGISLATIVE PURPOSE
Sherras v De Rutzen [1895] 1 QB 918 (QBD) Day J:
I am clearly of opinion that this conviction ought to be quashed. This police constable comes into the appellant’s public house without his armlet, and with every appearance of being off duty. The house was in the immediate neighbourhood of the police station, and the appellant believed, and he had very natural grounds for believing, that the constable was off duty. In that belief he accordingly served him with liquor. As a matter of fact, the constable was on duty; but does that fact make the innocent act of the appellant an offence? I do not think it does. He had no intention to do a wrongful act; he acted in the bona fide belief that the constable was off duty. It seems to me that the contention that he committed an offence is utterly erroneous . . .
Wright J:
I am of the same opinion. There are many cases on the subject, and it is not very easy to reconcile them. There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered: Nichols v Hall Law Rep 8 CP 322. One of the most remarkable exceptions was in the case of bigamy. It was held by all the judges, on the statute 1 Jac 1, c 11, that a man was rightly convicted of bigamy who had married after an invalid Scotch divorce, which had been obtained in good faith, and the validity of which he had no reason to doubt: Lolley’s case R & R 237. Another exception, apparently grounded on the language of a statute, is Prince’s case Law Rep 2 CC 154, where it was held by 15 judges against one that a man was guilty of abduction of a girl under 16, although he believed, in good faith and on reasonable grounds, that she was over that age. Apart from isolated and extreme cases of this kind, the principal classes of exceptions may perhaps be reduced to three. One is a class of acts which, in the language of Lush J in Davies v Harvey Law Rep 9 QB 433, are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty. Several such instances are to be found in the decisions on the Revenue Statutes, e.g. AG v Lockwood 9 M & W 378, where the innocent posses-sion of liquorice by a beer retailer was held an offence. So under the Adulteration Acts, R v Woodrow 15 M & W 404, as to innocent possession of adulterated tobacco; Fitzpatrick v Kelly Law Rep 8 QB 337 and Roberts v Egerton Law Rep 9 QB 494 as to the sale of adulterated food . . . . . . Another class comprehends some, and perhaps all, public nuisances: R v Stephens Law Rep 1 QB 702 where the employer was held liable on indictment for a nuisance caused by workmen without knowledge and contrary to his orders . . . Last, there may be cases in which, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right: see per Williams and Willes JJ in Morden v Porter 7 CB (NS) 641; 29 LJ (MC) 213, as to unintentional trespass in pursuit of game; Lee v Simpson 3 CB 871, as to unconscious dramatic piracy; and Hargreaves v Diddams Law Rep 10 QB 582, as to a bona fide belief in a legally impossible right to fish. But, except in such cases as these there must in general be guilty knowledge on the part of the defendant, or of someone whom he has put in his place to act for him, generally, or in the particular matter, in order to constitute an offence. It is plain that if guilty knowledge is not necessary, no care on the part of the publican could save him from a conviction . . . since it would be as easy for the constable to deny that he was on duty when asked, or to
produce a forged permission from his superior officer, as to remove his armlet before entering the public house. I am, therefore, of opinion that this conviction ought to be quashed.
Lim Chin Aik v R [1963] AC 160 (PC) Lord Evershed:
. . . What should be the proper inferences to be drawn from the language of the statute or statutory instrument under review – in this case of ss 6 and 9 of the Immigration Ordinance?
More difficult, perhaps, still, what are the inferences to be drawn in a given case from the
‘subject-matter with which [the statute or statutory instrument] deals’?
Where the subject-matter of the statute is the regulation for the public welfare of a particular activity – statutes regulating the sale of food and drink are to be found among the earliest examples – it can be and frequently has been inferred that the legislature intended that such activities should be carried out under conditions of strict liability. The presumption is that the statute or statutory instrument can be effectively enforced only if those in charge of the relevant activities are made responsible for seeing that they are complied with. When such a presumption is to be inferred, it displaces the ordinary presumption of mens rea . . .
But it is not enough in their Lordships’ opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations.
That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim . . .
Where it can be shown that the imposition of strict liability would result in the prosecution and conviction of a class of persons whose conduct could not in any way affect the observance of the law, their Lordships consider that, even where the statute is dealing with a grave social evil, strict liability is not likely to be intended. Their Lordships apply these general observations to the Ordinance in the present case. The subject-matter, the control of immigration, is not one in which the presumption of strict liability has generally been made. Nevertheless, if the courts of Singapore were of the view that unrestricted immigration is a social evil which it is the object of the Ordinance to control most rigorously, their Lordships would hesitate to dis-agree. That is a matter peculiarly within the cognisance of the local courts. But [counsel for the Crown] was unable to point to anything that the appellant could possibly have done so as to ensure that he complied with the regulations. It was not, for example, suggested that it would be practicable for him to make continuous inquiry to see whether an order had been made against him. Clearly one of the objects of the Ordinance is the expulsion of prohibited persons from Singapore, but there is nothing that a man can do about it if, before the commission of the offence, there is no practical or sensible way in which he can ascertain whether he is a prohibited person or not.
[Counsel], therefore, relied chiefly on the text of the Ordinance and their Lordships return, accordingly, to the language of the two material sections. It is to be observed that the Board is here concerned with one who is said (within the terms of s 6(3)) to have ‘contravened’ the
subsection by ‘remaining’ in Singapore (after having entered) when he had been ‘prohibited’ from entering by an ‘order’ made by the Minister containing such prohibition. It seems to their Lord-ships that, where a man is said to have contravened an order or an order of prohibition, the common sense of the language presumes that he was aware of the order before he can be said to have contravened it. Their Lordships realise that this statement is something of an oversimplifica-tion when applied to the present case; for the ‘contravenoversimplifica-tion’ alleged is of the unlawful act, prescribed by subsection (2) of the section, of remaining in Singapore after the date of the order of prohibition. Nonetheless it is their Lordships’ view that, applying the test of ordinary sense to the language used, the notion of contravention here alleged is more consistent with the assumption that the person charged had knowledge of the order than the converse. But such a conclusion is in their Lordships’ view much reinforced by the use of the word ‘remains’ in its context. It is to be observed that if the respondent is right a man could lawfully enter Singapore and could thereafter lawfully remain in Singapore until the moment when an order of prohibition against his entering was made; that then, instanter, his purely passive conduct in remaining – that is, the mere con-tinuance, quite unchanged, of his previous behaviour, hitherto perfectly lawful – would become criminal. These considerations bring their Lordships clearly to the conclusion that the sense of the language here in question requires for the commission of a crime thereunder mens rea as a constituent of such crime; or at least that there is nothing in the language used which suffices to exclude the ordinary presumption. Their Lordships do not forget the emphasis placed by [counsel] on the fact that the word ‘knowingly’ or the phrases ‘without reasonable cause’ or
‘without reasonable excuse’ are found in various sections of the Ordinance (as amended) but find no place in the section now under consideration – see, for example, ss 16(4), 18(4), 19(2), 29, 31(2), 41(2) and 56(d) and (e) of the Ordinance. In their Lordships’ view the absence of such a word or phrase in the relevant section is not sufficient in the present case to prevail against the conclusion which the language as a whole suggests. In the first place, it is to be noted that to have inserted such words as ‘knowingly’ or ‘without lawful excuse’ in the relevant part of s 6(3) of the Act would in any case not have been sensible. Further, in all the various instances where the word or phrase is used in the other sections of the Ordinance before-mentioned the use is with reference to the doing of some specific act or the failure to do some specific act as distinct from the mere passive continuance of behaviour theretofore perfectly lawful. Finally, their Lordships are mindful that in the Sherras case [1895] 1 QB 918 itself the fact that the word
‘knowingly’ was not found in the subsection under consideration by the court but was found in another subsection in the same section was not there regarded as sufficient to displace the ordinary rule.
Their Lordships have accordingly reached the clear conclusion, with all respect to the view taken in the courts below, that the application of the rule that mens rea is an essential ingredient in every offence has not in the present case been ousted by the terms or subject-matter of the Ordinance, and that the appellant’s conviction and sentence cannot stand . . .