Tan Khee Wan Iris v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 07 April 1995
• Neutral Citation: [1995] SGHC 94
• Docket Number: Magistrate's Appeal No 226/94/01
• Date: 07 April 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: Philip Jeyaretnam (Helen Yeo & Partners)
• Citation: [1995] SGHC 94
• Defendant Counsel: Ong Hian Sun (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Proof of evidence,Criminal Law,s 18(1)(a) Public Entertainments Act (Cap 257),ss 52 & 79 Penal Code (Cap 224),Strict liability,Due care and attention,Offence one of strict liability,Burden on accused to prove validity of licence,s 107 Evidence Act (Cap 97),Whether sufficient to show that mistake was a natural one,Whether defence available,Public Entertainments Act,Defence of mistake of fact,Statutory offences,Onus of proof,Evidence,Providing public entertainment without licence

This is an appeal by the appellant Iris Tan Khee Wan against her conviction by the learned district judge Hamidah Ibrahim on a charge of having provided or assisted in providing public entertainment without a licence, contrary to s 18(1)(a) of the Public Entertainments Act (Cap 257) (`the Act`). After hearing the appeal, I dismissed it. I now give my reasons.

The facts of this case are not in dispute. The appellant was originally charged under s 18(1)(c) of the Act for breaching a condition of the licence issued to her by allowing a performer to cut his pubic hair and expose his buttocks. This occurred at about 12.20am on 1 January 1994. The learned district judge dismissed the charge and acquitted the appellant because in her view the licence issued was only valid till 31 December 1993. This was due to an oversight on the part of the licensing officer. Since no licence was proved, no breach of a condition of the licence can be proven.

On appeal by the prosecution, the district judge`s decision on the s 18(1)(c) charge was upheld by me. However, I ordered the charge to be amended to the present one and remitted the case back to the district judge for the appellant`s defence on it to be called. [See [1994] 3 SLR 214 .]

Before the district judge, it was not disputed that the licence was only valid until 31 December 1993 and that the appellant was providing public entertainment in the early hours of 1 January 1994. It was also not disputed that the irregularity on the licence was due to a mistake on the part of the licensing officer. The licensing officer`s intention was to issue a licence that would be valid until 1 January. The only issue in the district court was whether the appellant was entitled to rely on s 79 of the Penal Code (Cap 224) as a defence and whether s 18 of the Act creates a strict liability offence. The learned district judge held that the offence under s 18 was one of strict liability and convicted the appellant.

It was conceded before me that s 79 of the Penal Code applies to an offence under s 18 of the Act. That being the case, the only issue remaining was whether the appellant was able to establish the defence of mistake of fact under s 79.

Section 18(1) of the Act states:

Any person who provides or assists in providing any public entertainment not being a public entertainment exempted under section 15 -

(a) without a licence issued under this Act;

(b) while the licence is suspended;

(c) in contravention of any condition of a licence; or

(d) in contravention of this Act or any rules made thereunder,

shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000.

Section 79 of the Penal Code states:

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.

However, s 79 is qualified by s 52 which provides that:

Nothing is said to be done or believed in good faith which is done or believed without due care and attention.

It would also be useful at this stage to set out what was written on the licence. At the beginning of the licence, it stated that the appellant was:

... hereby licensed to provide public entertainments as described hereunder:

Type Date Time No of Shows

Variety show (See programme att`d ) 25 + 31/12/93

The `programme attached` referred to in the licence stated that the programme was a 12-hour event that would continue until 6am on 1 January 1994. The natural meaning of this, therefore, was that the appellant was licensed to provide the public entertainment stated in the attached programme. Accordingly, the appellant was licensed to provide public entertainment until 6am on 1 January 1994. Unfortunately, further down on the licence, it stated that `This licence will continue in force until the 31st day of December 1993 ...`. There was therefore a contradiction on the face of the licence. On one hand, the appellant was stated to be licensed to provide public entertainment until 6am on 1 January 1994. On the other hand, that licence expired on 31 December 1993. In my view, it is impossible to reconcile the contradiction and it is impossible to say one way or the other whether there was a valid licence for the period between midnight of 31 December 1993 and 6am on 1 January 1994 (`the relevant period`).

Section 107 of the Evidence Act (Cap 97) states:

When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances.

In , it was held by the Court of Appeal that where an enactment prohibits the doing of an act save in specified circumstances or by persons of a specified class or with specified...