Anatomy of a Crime - Strict Liability

Question 1

Strict Liability?

Answer 1

Offences which do not require PP to prove a specific fault element but allow the accused to avoid liability on proof of due diligence or reasonable mistake of fact.

Question 2

Absolute liability?

Answer 2

Offences which do not allow accused to raise due diligence or reasonable mistake of fact as defence.

** In our PC, defences apply globally.

Question 3

Approach of the courts?

Answer 3

Traditional Common Law Approach: Courts are aware of the common law approach of presumption of MR.

Question 4

Presumption of MR:

Sweet v Parsley [1970] AC 132, HL

Answer 4

Unless a statute, either clearly or by necessary implication, rules out MR as a constituent part of a crime, the court should not find a man guilty of an offence unless he has a guilty mind.

Question 5

Presumption of MR:

Lim Chin Aik v R [1963] 1 MLJ 50

Answer 5

Presumption of MR can be displaced either by statute creating the offence or by the subject matter with which it deals and both must be considered.

Pertinent to inquire whether putting D under strict liability will assist in the enforcement of regulations, i.e. help protect the public on public interest grounds (i.e. food safety, road offences).

Question 6

Presumption of MR:
PP v Yong Heng Yew [1996] 3 SLR 566

[Littering]

Answer 6

Littering is a strict liability offence.

Absurd to require prosecution to prove that the person intended to litter beyond a reasonable doubt.

Question 7

Presumption of MR:
PP v Teo Kwang Kiang [1991] 2 SLR(R) 560

[Veg seller unknowingly selling contaminated food]

Answer 7

Presumption of MR is particularly strong in offences which are truly criminal in character.

Can be displaced where the statute concerned with an issue of social concern, and public safety is such an issue.

Even where the statute is concerned with such an issue, the presumption of MR still remains unless it can be shown that the creation of SL will be effective to promote the objects.

Question 8

Presumption of MR:
Tan Cheng Kwee v PP [2002] 2 SLR (R) 122

[Height limitation of vehicles]

Answer 8

Intention of statute was to curb recklessness (public safety) - PP did not have to prove that accused had MR of recklessness or any MR element.

Courts reminded themselves that there is a presumption of MR, and then ask themselves whether this has been displaced by the clear language of the statutory provision.

Question 9

Presumption of MR:

PP v Yue Mun Yew Gary [2013] 1 SLR 39

Answer 9

Weight of the public interest protected by the statute must be sufficient to displace the presumption of MR.

Question 10

Criticism of presumption of MR:

YMC - Agreement on whether an offence is a true crime?

Answer 10

In most cases, very hard to find agreement on whether particular offence is a true crime or regulatory violation.

E.g., Prosecution of the employment of an illegal immigrant. Can argue that it is inherently morally wrong to do so or that it is merely a regulatory violation.

Offenders still are prosecuted in criminal courts in a manner similar to true criminals. Stigma attached is the same.

Question 11

Criticism of presumption of MR:

YMC - Similar to negligence?

Answer 11

Strict liability is argued to operate as a general deterrence to others.

However, if this means that liability is imposed if there was something else that a reasonable person would have done, then this form of liability is no different from negligence (which requires a fault).

Question 12

Criticism of presumption of MR:

YMC - All or nothing approach to MR element?

Answer 12

Dangerous.

Presumption of MR approach only recognises liability either on basis of proof of intention or knowledge, or if presumption is rebutted, without any requirement of fault on part of accused.

Arguably pervades justice.

Question 13

Exercise of Reasonable Care / Due Diligence:

Due diligence approach?

Answer 13

PP only has to show AR of the offence without having to prove fault.

Accused then bears the burden of proof that he acted with due diligence in preventing the prohibited harm from occurring to be acquitted.

Question 14

Exercise of Reasonable Care / Due Diligence:
Tan Cheng Kwee v PP [2002] 2 SLR (R) 122

[Height limitation of vehicles]

Answer 14

Further imputing state of mind as a necessity would stultify legislative purpose.

Question 15

Exercise of Reasonable Care / Due Diligence:
Chng Wei Meng v PP [2002] 4 SLR 595

[Driving under disqualification]

Answer 15

Courts should refrain from construing an offence as SL unless it can be shown that SL will effectively promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.

Implies that a defence of reasonable care must be available to persons who have tried to comply with the statutory requirements.

Since statute in question did not create an absolute liability offence, once PP had proved elements of the offence beyond reasonable doubt, the burden then shifted to D to prove that he had exercised reasonable care to comply with the requirements of the provision.

D must show that he had made diligent inquiries about his qualification status or had an honest or reasonable belief that he could still drive.

Question 16

Exercise of Reasonable Care / Due Diligence:
MV Balakrishnan v PP [1998] SGHC 416

[Driving without licence]

Answer 16

Held (Yong CJ):
Principle favoured by AU and CA cases (e.g. City of Salt St Maria): reasonable failure of not knowing the facts concerned was a defence, absence of negligence was a defence, and proof that he had taken all reasonable steps was also a defence in SL cases. A man could not be convicted without the presence of some sort of fault. (Halfway point)

In the present case, accused could’ve escaped liability if he had shown that he had taken reasonable care to prevent his employee from carrying out the prohibited act – a defence not clearly indicated in the statutory provision in the RTA.

Question 17

Criticism of Exercise of Reasonable Care / Due Diligence:

On PC provisions of defence?

Answer 17

Improperly ignores PC provisions relating to defence of mistake.

Question 18

Criticism of Exercise of Reasonable Care / Due Diligence:

Distinction between strict and absolute liability offences?

Answer 18

If due diligence approach is adopted, hard to see distinction.

R v Sault Ste Marie demonstrated that tools for deciding if an offence is absolute liability are the same as the ones used in presumption of MR approach.

Colvin argues that criteria in distinguishing between SL and absolute liability offences as to be so obscure and vague to be meaningless.

Question 19

What is the Chapter IV Approach?

Answer 19

Ss 6, 40(2), 79, 80 PC.

The ways that accused can escape liability is strictly limited to the defences found under Chapter IV PC. This approach is similar to the due diligence approach in that an accused may escape liability by proving absence of fault.

So, how ‘strict’ is SL?

Question 20

Chapter IV Approach:

Abdullah v R [1954] MLJ 195

Answer 20

Consent of a minor is immaterial.

Policy of the law is to protect children of such immature age against sexual intercourse.

Question 21

Chapter IV Approach:

Buergin Juerg v PP [2013] 4 SLR 87

Answer 21

Commercial sex with minor under 18, minor used elder sister’s identity card.

Held: Charged under s 376B PC.
S 377D PC precluded accused from raising the defence of mistake.

Question 22

Presumption of MR:

Lie Xing-Long v PP [2014] 4 SLR 1024

Answer 22

Where statutory provision creates an offence, there is a presumption that MR is an essential ingredient.

Can be displaced expressly or by necessary implication by the language of the statute or by the subject matter with which the statute deals (Thean J in PP v Phua Keng Tong adopting the approach in Lim Chin Aik and Sweet v Parsley).

Question 23

Chapter IV Approach:
Tan Kheen Wan Iris v PP [1995] 2 SLR 63

[Public entertainment without licence]

Answer 23

Not enough for A to show that she was mistaken - must show that she believed in good faith that she had a valid licence.

A’s defence was that she did not read the whole of the licence. Insufficient to discharge burden of proof.

= Good faith has a very high standard.

Question 24

Chapter IV Approach:

Comfort Management Pte Ltd v PP [2003] 2 SLR 67

Answer 24

D employed foreign worker as an electrician and mistakenly allowed him to drive company vehicle in breach of the conditions of the work permit, an offence under s5(3) Employment of Foreign Workers Act.

Held: s5(3) was a strict liability offence. Still, the company is entitled to be acquitted if it could prove on balance of probabilities that it had taken due care and attention to comply with the statutory requirements.

Question 25

Chapter IV Approach:

Comment on Comfort Management Pte Ltd v PP [2003] 2 SLR 67?

Answer 25

This does not seem like an application of the Chapter IV defence since the due care and attention that D needed to prove was vis-à-vis compliance.

This is in contrast to a straightforward application of Chapter IV defence which is based on D’s mistaken belief that he was justified in doing the act, e.g. that he complied with statute.

Question 26

Chapter IV Approach:

Chinpo Shipping Co (Pte) Ltd v PP [2017] 4 SLR 983

Answer 26

Strict liability offence does not mean that accused’s knowledge is irrelevant. Accused is still entitled to defence.

If evidence can be shown that accused had knowledge, this would constitute a seriously aggravating offence.

Question 27

Chapter IV Approach:

YMC - Recommendation to use Chapter IV approach?

Answer 27

Principles are stated in PC. Unless there is express or implied statutory displacement of PC defences, always open to accused to prove absence of fault through one of the defences.

Promotes better consistency and certainty.

Strikes balance between effective crime control and fairness to the accused by requiring D to prove one of the PC defences to avoid liability (unlike presumption of MR approach where there should be an element of fault).