MISTAKE AND STRICT LIABILITY
Strict liability offenses concern the specific provision and not on the whole act itself, and also, strict liability offenses are concerned with the public’s social welfare. For instance, in Price Control Act stated that there must be a price tag upon any item sold in the shop. Failure to do so render the owner liable in breaching the provision’s requirement. In determining whether an offense is a strict liability could perceive into two views. Which is on the presumption of mens rea via common law or based on the Penal Code. Nevertheless, Malaysian criminal law adopted a hybrid approach. Thus, the creation of absolute liability.
In regards to absolute liability, no defense is available. The provision expressly states that no general exceptions under chapter IV of the Penal Code could be applied. No requirement to prove an intention on behalf of the accused to commit the offence. The state of mind of the accused and the circumstances surrounding the offence are irrelevant, and a person will be convicted no matter the context. In contrast, defenses against strict liability offences are still possible (stated in chapter IV of the Penal Code). For instance, the offence of speeding. If a person were caught speeding but could prove that the car’s speed meter was faulty and they honestly and reasonably believed they were actually below the speed limit, this would be a valid defense.
In the case of Common Ltd v AG Hong Kong, the judge stated that in determining whether an offence is a strict liability offences or there is a presumption that mens rea is required depends on certain factors. Namely, when there is a presumption on law, mens rea is required for the accused’s conviction to be held guilty of criminal offences or when there is a presumption that the offence is truly criminal. The presumption applies to the statutory offences and can be displaced only if it is clear or by necessary implication on the effect of the statute. The only situation in which the presumption can be displaced is where the statute deals with social concerns, and where public safety is an issue. Nevertheless, 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 in promoting the objects of the statute. It can be done by encouraging greater vigilance to prevent the commission of the prohibited act.
The offence of strict liability and how Malaysia Criminal Law dealt with it can be further illustrated in a decided case of Mohamed Ibrahim v Public Prosecutor. In this case, the appellant was convicted with the offence contrary to section 292 of the Penal Code, having in his possession the sale of 65 copies of a book entitled ‘Tropic of Cancer.’ The book was found to be an obscene book. It is offensive to morality and could cause an uncontrolled sexual desire book. The accused appealed that he could not read nor write in English. Therefore, he could not have known nor have any reason to know that the book was obscene and offensive.
The court held that the purpose of section 292 of the Penal Code is to protect those members of the public, especially the younglings who may be tempted to buy such a book. Subsequently exposed themselves to the corrupting influence of the obscene book. Ignorance of the English language could not be a defence in this case. He has to make sure that his book or merchandise such that the public who buys from him do not suffer from his ignorance. In this case, the prosecution can be expected to prove not about the knowledge but the existence of means of acquiring knowledge in which the accused had the benefit of the assistance of an English speaking clerk in ordering the books. He could have easily asked his assistant but did not do so. Thus, by looking into the statute to protect the public, even though the accused could not have known he was committing an offence, it is classified as strict liability offences.
Based on the cases above, it can be concluded that strict liability offences could render a person guilty of a criminal offence based on their action alone (actus reus). There is no need for the determination of mens rea. Meaning that a person who had no criminal intent could also be convicted if the offence is classified under strict liability. However true this is, defences are available for those were to be charged for an offence classified as a strict liability under a certain provision. One of them is the defence of mistake of facts.
The defence of mistake could be available against strict liability charges. However, it must be a mistake of fact and not a mistake of law. Also, the mistake must be an honest and reasonable mistake of fact that will prevent an offender from being convicted of a strict liability offences.
A mistake of fact is not defined in the Penal Code. A mistake of fact is an error as to the existence of any state of thing. It may arise from inadequate or wrong information, forgetfulness, negligence or superstition. By virtue of section 79 of the Penal Code,
“ Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of law in good faith believes himself to be justified by law in doing it.”
The defence of mistake of fact under section 79 of the Penal Code requires the accused to prove on a balance of probabilities. The elements are whether the (i) accused had been induced by mistake to commit the act in question, (ii) the mistake was one of fact and not of law, (iii) the accused mistakenly believed he or she was bound or justified by the law in doing the criminal act and (iv) the mistake was believed by the accused in good faith.
- Induced by mistake to commit the criminal act
The first element needed to be satisfied to plead under the defence of mistake is that the accused was induced by mistake to commit the criminal act. A mistake of fact consists of an unconsciousness, ignorance or forgetfulness of a fact. In Malaysia, the court only enquired whether a person’s ignorance or mistake had been made in good faith or not. In the case of Sulong bin Nain v PP, the accused was apprehended with two hand grenades in his possession. The accused then claim the defence of mistake since he believed in good faith that he was bound or justified by law to surrender the hand grenade to the police. However, the court rejected his appeal because the court took into consideration that the act is a mistake of law and not a mistake of fact.
In regards to strict liability cases, the commission of the crime done by mistake. The offender must have done the crime mistakenly and not intending to commit the crime intentionally. If it can be shown that the act of crime done by mistake, the first element to plead the defence of mistake had fulfilled.
- The mistake was one of fact and not of law
The second element is that the mistake was one of fact and not of law. Section 79 of the Penal Code requires the accused’s mistake to pertain to a factual matter instead of a legal one. Glanville Williams explains the definition of a mistake of a law where he stated that “Generally speaking a fact is something perceptible by the senses, while the law is an idea in the mind of individuals. The definition of a fact as something perceptible by the senses needs qualification in one respect. A state of mind is also a fact, though not directly perceptible by the senses.
In Arumugam v R, the two appellants and a third person were members of the police force who were convicted of an offense under the Foodstuffs Movement Restriction Order for moving rice without a permit. The appellants claimed that they were acting under the orders of the third person who was their superior. The appellate court quashed their convictions on the ground that they mistakenly believed that the third person was acting in good faith. Although not discussed by the court, the mistake appeared to have been one of mixed fact and law.
Indian case authorities hold that a mistake of mixed fact and law will be treated as a mistake of fact so as fall within ss 76 and 79. In the Indian Supreme Court in State of Bombay v Jaswantial Manilal Akhaney, the accused was the managing director of a bank charged with criminal breach of trust for transferring the securities of a ledger bank. He invoked that s 79 defence on the ground that his act of transfer based on a mistake of fact. Also, he contended that the pledger bank was indebted to his bank, as well as a mistake of law that his bank had the right to effect such transfer. The Supreme Court prepared to apply the s 79 defence provided the accuse was able to prove not only that he believed the law entitled him to deal with the securities as the property of his bank, but also that he believed in good faith that the pledger bank was indebted to his bank.
Concerning these two cases, it can be seen that the mistake must be a mistake of fact and not a mistake of law. One cannot simply plead that he committed the crime because he had mistakenly believed that the law justifies his actions. If done so, the plea must be rejected by the court. In contrast, if the crime were committed because the offender had wrongly or mistakenly believed a wrong fact that eventually led to the commission of the crime, the offender could plead for the defence of mistake.
iii. Bound or justified by the law
In the case of Emperor v Gopalia Kallaiya, the accused was a police officer who had a warrant to arrest a particular person. He arrested the complainant whom he is mistakenly believed, despite making reasonable inquiries, to be the person mentioned in the warrant. The charge against the accused of wrongful confinement dismissed based on section 76. However, it is for the person who is authorized, such as the police or army, bound by the law.
On the other hand, for section 79 to be succeeded, the accused must have mistakenly believed that he or she was justified by law to do the criminal act. For instance, in the illustration of section 79 in the Penal Code, A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment exerted in good faith of the power which the law gives to all persons of apprehending murderers in the act, seizes Z, in order to bring Z before the proper authorities. A has committed no offense, though it may turn out that Z was acting in self-defense.
Hence, it can be concluded that the offender must have mistakenly believed that the law justifies him or her in committing the crime, which eventually is a strict liability offences. If the offender could prove that he is bound by the law to do so, certainly so he could raise the defence of mistake.
- A mistake done must be in good faith.
The fourth element is that the mistake done must be in good faith. Sections 76 and 79 of the Penal Code require the accused to have ‘in good faith’ believed him to be bound or justified by the law in doing a criminal act. In both sections, good faith relates to the accused’s perception of the factual circumstances rather than his criminal act’s performance. The perception must have been lead to the accused believing that he was bound or justified by the law in doing the thing complained of. Section 52 of the Penal Code defines ‘in good faith’ in terms of due care and attention.
In the case Tan Khee Wan Iris v PP, it was held that the test determines whether a mistake was made in good faith and not whether the mistake was an easy one to make nor whether a reasonable person could make a mistake. The mistake may be a natural one to make, and it may be one that a reasonable person often makes. Nevertheless, the defence is not made out unless shown on a balance of probabilities that the appellant had exercised due care and attention.
In the case of State v Ram Bahadur Thappa, the accused had attacked what he, in good faith, believed to be a ghost and not a human being and that he was therefore justified by the law in defending himself against it. The court held that he could successfully rely on the section 79 defence even though it was shown that, he could exercise extra care and attention, the incident may have been averted. Certainly, an accused’s appropriate conduct would often support his or her belief that he or she was bound or justified by law. But a court must ensure that the inquiry into ‘in good faith’ under ss 76 and 79 does not stop at the accused’s conduct but proceed from there to consider his or her belief.
Likewise, on offences of strict liability, an offender could plead the defence of mistake if he or she can prove that the act was done in good faith. For instance, in the case of PSGB v Storkwain, the pharmacist, in this case, had genuinely, in good faith, believed that the prescription made were valid. Good faith here is the due care and attention that eventually lead him to believe that it was correct and never in his mind that it could be wrong. However, the court, in this case, held that the pharmacist is still liable because the offence was classified as strict liability. He could not establish a necessary argument to rebut the presumption of crime on him.
Case of Strict Liability and Defence of Mistake
Ultimately, it can be said that to raise a defence of mistake against the offence of strict liability could be difficult and hard to prove. In the light of the discussion, the case of Proudman v Dayman is the epitome for any discussion of the applicability of mistake of fact as a defence to offences in strict liability. This case is an Australian case. In this case, the accused were charged with an offence under the Road Traffic Act. The accused were charged in allowing an unlicensed driver to drive his car. On behalf of the accused, he contended that for his conviction, it must be shown that not only the driver was unlicensed, but also the accused must be aware and have knowledge that the person is unlicensed.
Nevertheless, the accused were convicted and dismissed his appeal. His argument that he thought the driver was a licensed driver was insufficient to provide a defence. In this case, the judge stated that had the reason contented by the accused be a reasonable one, he could have been acquitted. The sole contention of not knowing whether the other person was not licensed was found by the court not sufficient as a defence to the commission of the crime. His conviction was based on his negligence in not finding out.
Thus, it can be seen from this case that wherever strict liability offences involve a conditional factor, an honest and reasonable mistake of fact will provide a significant defence to the offence. The defence is based on sound policy grounds. If all reasonable precautions were taken by the accused to prevent the commission of the prohibited act, no objective is achieved by his conviction and punishment. Hence, the purpose of imposing strict liability, which is as a deterrent, could not be served. Instead, it could be an injustice to the accused.
In conclusion, the position of mistake in strict liability is up to the interpretation and depends on the fact of the case. If the act committed was an honest and reasonable mistake of fact, then the offender of a strict liability offence cannot be convicted as the defence of mistake is available in his arsenal. However true this may be, the reality is that it is difficult to prove so, and the argument to justify his mistake in committing the act must be thoroughly discussed. Due diligence and attention (precaution step not to do the act) must also be taken into account. This is because, if the act were found to be done by the accused because of his negligence, then the defence of mistake in the context of strict liability could not be raised.