Strict Liability

Prepared By:
Rozana Roslan
Muhammad Mushrin Bin Esa
Question
Explain what an offence of strict liability is and
discuss the two criteria that have been
developed by the courts in considering whether
an offence is intended to be of strict liability.

April, 2008
STRICT LIABILITY
What is Strict Liability?
An offence is where the element of mens rea is absence.
It is an exception to the general rule whereby criminal
act does not require any intention, recklessness or which
forms one or more elements of actus reus.
In this situation, accused can be found guilty despite
there being no mens rea and there will be no question
that the court has erred in convicting the accused.


What is an offence of Strict
Liability?
There a few offences of this strict liability including the
offences relating to the preparation of food, possessing
unlawful weapons and drugs, sexual intercourse with minor
and driving offences such as drink driving and speeding.
In the case of PP v Osman Bin Apo Hamid (1978)
Fact: The respondents were found carrying bags containing rice in
the quantity far exceeding the amount specified in their permit.
All of them were detained and charged. Both respondents
admitted to having knowledge of the fact that they were
transporting 130 bags of rice but they denied having any
knowledge as to the permitted quantity in their permit ie; 80
bags only

Court held : Offence is one of strict liability in which the mental element
is negative by the legislature. The legislature intended that the category
of physical acts in this nature must itself constitute an offence if only
because the alternative would mean that the apprehension of offences
of this nature would be well high difficult if not impossible.

Pharmaceutical Society of Great Britain v Storkwain Ltd
(1986)
The respondent dispensed controlled drugs according to the
prescription purported to be signed by a Dr. Irani. The prescription
was later found out to be forgery. The respondent had acted
dishonestly without fault and recklessness. It seems that forgery itself
is sufficient to fool the pharmacists in the absence of any short-
comings on their part.
Court held : The offence was construed to be one of strict liability and
criminal liability accordingly ensued despite a complete absence of
mens rea.
Likewise in Mohamed Ibrahim v PP (1963)
The appellant was convicted under the S 292(a) of the Penal
Code for having in possession, for the purpose of sale, 65
copies of the book Tropic of Cancer, which is obscene
material. He appealed against the conviction on the ground
that he could neither read nor write English, and he does not
know and has no means to know that the book is obscene.
Court held : the test of obscenity is this, whether the tendency of
the matter charged as obscenity is to deprave and corrupt those
whose minds are open to such immoral influences and into whose
hands a publication of this sort may fall.
In cases of statutory rape, the age of the victim becomes the vital
question and not whether or not the victim has consented to
having sexual intercourse with the accused.


In Dr AN Mukerji v State (1969)
It was said that there is no question of whether or not there is
consent for cases under this S375. Having sexual intercourse
with a girl below the age of 16 in India is rape, regardless of
whether yes or not there is a consent .

Criteria that have been developed by the courts in considering
whether an offence is intended to be of Strict Liability are :
I. Depends on the size of the penalty ie; the larger the penalty,
the less likely Strict Liability will be imposed
II. Depends on the wording of the Act there are several key
words and phrases that court look at in the statue to decide
III. The interpretation of these words-what decides whether or
not a mens rea of intention, recklessness or negligence is
required