Seminar 6 Strict Liability

Strict Liability
The role of Mens Rea
Mens rea: represents and reflects the moral blameworthiness of the individual Different levels of blameworthiness
different levels of punishment
Some crimes dont need any mens rea, blameworthiness of individual does not matter Crimes of absolute liability
all that prosecutor needs to show is actus reus
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Singapore Criminal Law
Does the Singapore criminal justice system permit crimes without MR? YMC position
Should always be interpreted to have MR General Exceptions may apply On what basis? Cf. Art. 30 ICC Unless otherwise provided, a person shall be criminally responsible if the material elements are committed with intent and knowledge
Singapore criminal law
Common law position Absolute liability Legislature can pass such statutes
Based on utilitarian considerations Simple to evade law otherwise Administrative efficiency
English common law approach
Present approach
presume that MR is required
But MR presumption may be displaced

Based on legislative wording/intent, is this MR presumption displaced?
Once displaced, absolute liability

cannot argue that took due care to observe statute or in performing function Other defences still open to him e.g. not voluntary
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Factors displacing MR presumption
Gammon
Truly criminal vs regulatory Clear implication of statute Social concern, public safety If effectively promotes observance of the law
Teo Kwang Kiang

Vegetable importer snowpeas found to have sulphur disulphate in excess of the permissible amount. Environmental Public Health Act
No person shall have in his possession any article of food intended for human consumption which is unsound or unfit for human consumption. Penalty: max fine of $5000.
Lower courts argument

Was waiting for ministry to check food (so no intention to sell( No control over vegetables on the Malaysian end
Appeal
Public safety requires that D bear the consequences of importing food unfit for human consumption
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The due diligence approach
Matter of statutory interpretation MR presumption still applies Statute can create strict liability (vs. absolute liability)
A will be acquitted if s/he exercised reasonable care (ie due diligence) Prosecutor does not have to prove MR A can argue that he took all reasonable steps to prevent occurrence of the prohibited harm.
The due diligence approach
Strict liability as a halfway house

A is convicted on some form of culpability A has to demonstrate exercised reasonable care.
Cf. offences having MR as negligence
Balakrishnan

A convicted of permitting employee to drive lorry (Class 4), employee only had Class 3 license S. 35 (1) Road Traffic Act no person shall employ or permit another person to drive a motor vehicleunless the person so employed is the holder of such a driving licence MR presumption - considerations
Absence of MR word Nature of crime, punishment, social stigma, kind of har, field of activity Holistic textual consideration Objective: determine parliaments intent
What factor deemed most important?
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Balakrishnan
Differentiate between absolute liability and strict liability As did not take all due care
Factual examination Why?
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The Chapter IV Approach

o
Is it proper for our courts to have adopted the approach of due diligence? Chapter IV of Penal Code
o the defence of mistake of fact under s 79? o s 40(2) which states that Chapter IV defences apply to all offences.
Recall Abdullah v R (mistake of fact applied to the offence of statutory rape); and Tan Khee Wan Iris (mistake of fact applied to strict liability offence regulating public entertainment).
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Chapter IV approach
S. 40 (2)
In Chapters IVoffence denotes a thing punishable under this Code or under any other law for the time being in force.
Chapter IV defenses apply to all offences
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Chapter IV approach
Penal Code defense of mistake Act done by a person justified, or by mistake of fact believing himself justified by law
79. Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law, in doing it.
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Chapter IV approach
Good faith 52. Nothing is said to be done or believed in good faith which is done or believed without due care and attention.
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Iris Tan
A convicted of providing public entertainment without a license - breach of the Public Entertainments and Meetings Act A requested license to include 1st January - licensing officer had mistakenly issued it only until 31st December S 79 defense of mistake applied Contradiction on the face of license impossible to reconcile the contradiction, impossible to say one way or the other whether there was a valid license
Then why was Iris convicted?
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Iris Tan
Mistake in good faith exercised due care and attention

Doesnt matter if easy mistake to make Must still exercise due care and attention Can use the fact that easy mistake to make to try and discharge burden of showing exercise due care and attention
What kind of mistake?

Mistake not apparent but nevertheless patent and manifest Duty to ask? minimal duty Accused did not read entire license
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Mixed approach
Some courts have seemed to applied due diligence approach but justified based on Chapter IV s. 79 Difference between s. 79 and due diligence approach? Mistaken as to what? Should have taken care to do what?
Taken care to ascertain particular fact vs. taken care to ensure observe statute or act carefully
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Comfort Management
A authorized a foreign worker to drive a vehicle contrary to work permit and contrary to s 5 of the Employment of Foreign Workers Act. The offence is one of strict liability and D could plead that he took reasonable care to comply with the statutory requirements. Taking such reasonable care is equated with s 79 of the Penal Code.
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Strict Liability

The role of Mens Rea

Singapore Criminal Law

Singapore criminal law

English common law approach

But MR presumption may be displaced

Once displaced, absolute liability

Factors displacing MR presumption

Teo Kwang Kiang

Lower courts argument

The due diligence approach

The due diligence approach

Strict liability as a halfway house

Cf. offences having MR as negligence

What factor deemed most important?

The Chapter IV Approach

Chapter IV defenses apply to all offences

Mistake in good faith exercised due care and attention

What kind of mistake?

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