REQUIREMENT OF FAULT IN STRICT LIABILITY

• Date: 01 December 1999
• Citation: (1999) 11 SAcLJ 98
• Author: CHAN WING CHEONG
• Published date: 01 December 1999

Offences of strict liability are, despite its proliferation in number,1 commonly regarded as an exception to the general rule that proof of mens rea is a prerequisite to criminal liability. Its acceptance in Singapore is twice anomalous given the structure of the Penal Code (“the Code”),2 which does not provide for the continued reception of common law principles including those on strict liability,3 and that many of the defences found in Chapter IV of the Code (“General Exceptions”) provide that there can be no criminal liability without proof of some form of guilty mind.4 The provisions of Chapter IV apply to both offences found within the Code as well as those without,5 unless excluded by statute.6

The state of the law in Singapore is further complicated by the fact that, just as in England, no clear or consistent principles can be deciphered for imposing strict liability. The courts normally resort to labeling an offence as a “public welfare” offence or being “quasi-criminal” in justifying the use of strict liability, but this serves to obfuscate rather than to explain. Other proposed rationales involve fostering greater vigilance and care amongst the public and the difficulties of proof otherwise. However, if these utilitarian goals are to be taken seriously, it threatens to supplant the basic premise that criminal liability may only be imposed where a person commits a prohibited act or causes a forbidden harm and his actions are accompanied by a blameworthy state of mind.7 The conflicting local cases and the apparent ability of judges to choose whether to impose

strict liability or not as they please suggest that the approach is nothing more than one of expediency. This has led one local commentator to remark:

It seems almost that for every case in which the courts here have opted for mens rea another case on the same or similar offence can be found in which liability has been held to be strict, and vice-versa. 8

The coup de grâce for the case for strict liability must surely be that it is unnecessarily blunt. It fails to distinguish between those who acted with all reasonable care in avoiding the proscribed act or omission from those who did not. Punishing the first group of persons can have little effect in preventing other persons in the future from committing the similar offence. Thus, it has been proposed that in order to carry out the object of the statute in creating the offence satisfactorily,9 it is sufficient to impose liability based on proof of negligence.10 In R v City of Sault Ste Marie, Dixon J, as he then was, questioned:

[The argument for imposing liability without fault] rests upon assumptions which have not been, and cannot be empirically established. There is no evidence that a higher standard of care results …. If a person is already taking every reasonable precautionary measure, is he likely to take additional measures, knowing that however much care he takes, it will not serve as a defence in the event of a breach? If he has exercised care and skill, will conviction have a deterrent effect upon him or others? Will the injustice of conviction lead to cynicism and disrespect for the law, on his part and on the part of others? These are among the questions asked.11

In view of the above criticisms, it is not surprising to find alternatives being suggested. The term “halfway house” has been used to describe the various possible alternatives.12 Locally, Michael Hor has also called on the courts to devise a “revitalised common law” in picking the degree

of mens rea and placing the burden of proof appropriate to each offence where the legislature had been silent as to the mens rea requirement. He conceives the choice available as spanning five categories:

1. 1. prosecution to prove intention or knowledge

2. 2. prosecution to prove negligence

3. 3. defence to disprove intention or knowledge

4. 4. defence to disprove negligence

5. 5. intention, knowledge, or negligence irrelevant to liability.13

Categories 1 and 5 embody the traditional common law approach in statutory interpretation of a provision which does not contain any express mens rea words. This is conceived as a straight-forward choice between requiring full mens rea or inferring that mens rea is dispensed with.

In two recent cases the Singapore courts have indicated that they are willing to consider a wider range of options than previously understood to be available. These developments will be analysed and assessed. Comparisons between these developments and the Penal Code provisions are also made.

I. THE TRADITIONAL COMMON LAW APPROACH

In order to set the advances made in the recent cases in context, it is appropriate to revisit the choice traditionally thought available to the courts when confronted with a statutory offence which does not expressly state that mens rea is required in its commission.

The starting point for the statutory construction of such offences is that there is a presumption that mens rea is required before a person can be held guilty of a criminal offence. This presumption is particularly strong where the offence is “truly criminal” in character, and can be displaced only where the statute is concerned with an issue of social concern.14

Where the presumption is displaced either expressly or by necessary implication from the effect of the statute, presence of mens rea is irrelevant to criminal liability. On the other hand, if the presumption is not displaced, the prosecution must show beyond reasonable doubt the existence of the guilty intention or knowledge. No via media is available between these extremes, except by the express intervention of the legislature.15

Despite dicta where it was said to be pointless to impose criminal liability on those who could not through reasonable efforts have prevented the commission of the proscribed act,16 English law did not take the final step of construing offences silent on mens rea as ones requiring proof of negligence as the basis of criminal liability. Extra-judicially, Lord Devlin has explained the difficulty of imposing negligence liability in such situations this way:

The conception of negligence, which has come to play so great a part in the civil law, has been excluded from the law dealing with minor offences where one would have thought it would have been most appropriate to find it. After all, what one wants to punish in these offences is carelessness in one form or another. …But as a general principle the courts have never taken the step of treating negligence as meeting in this type of offence the requirement of mens rea….

…It is not easy to find a way of construing a statute apparently expressed in terms of absolute liability so as to produce the requirement of negligence. Take, for example, an offence like driving a car while it has defective brakes. It is easy enough to read into a statute a word like ‘wilfully’ but you cannot just read in ‘carelessly’. You cannot say that no one should carelessly drive a car with defective brakes; you are not trying to get at careless driving. What you want to say is that no one may drive a car without taking care to see that the brakes are not defective. That is not so easy to frame as a matter of construction and it has never been done.17

Another reason suggested by Lord Devlin is the distinct difference in meaning ascribed to negligence in civil law as compared to criminal law:

Negligence in criminal law has always meant the sort of recklessness that justifies the crime of manslaughter. It would have been a big step to introduce the civil concept of negligence into criminal law, and even bigger to introduce the wider concept of failing to keep an organization up to mark. At any rate it never has been done.18

This is not relevant to our system of criminal law which is different from English law. The standard of negligence required under the Penal Code in offences such as sections 304A, 336, 337, 338 has been held to be no different from that of the civil law.19

The other alternative is to impose criminal liability on a showing of the commission of the proscribed act, unless the defendant is able to disprove negligence on his part. Thus, the defendant may be excused if he shows, on a balance of probabilities, that he laboured under an honest and reasonable belief in a state of facts which, if true, would make his act innocent. Despite it being recognised in the earlier English case of R v Tolson20 and in other common law jurisdictions such as Canada, New Zealand and Australia,21 this option was thought to be not possible in England22 in view of the decision of the House of Lords in Woolmington v DPP. 23

II. TWO RECENT LOCAL DEVELOPMENTS

A. PP v Bridges Christopher24

Lord Reid in Warner v MFC opined:

If … there is to be a halfway house between the common law doctrine and absolute liability, there could be an objective test: not whether the accused knew, but whether a reasonable man in his shoes would have known or have had reason to suspect that something was wrong.25

In Sweet v Parsley, Lord Reid again said:

It would often be much easier to infer that Parliament must have meant that gross negligence should be the necessary mental element than to infer that Parliament intended to create an absolute offence.26

This approach appears to have been adopted locally in Bridges Christopher with regards to section 5(1)(c)(i) of the Official Secrets Act:27

If any person having in his possession or control any … information which … has been made or obtained in contravention of this Act … communicates directly or indirectly any such information …to any person other than a person to whom he is authorised to communicate it or to whom it is his duty to communicate it …shall be guilty of an offence.

Despite the position in the UK28 and in Malaysia29 that the equivalent offence under their Official Secrets Act30 was an “absolute” one in that the accused need not...