Judgment

Abdul Razak J

1. This is an appeal against the decision of the President Sessions Court at Kemaman wherein he acquitted the accused after calling for the defence. The Deputy Public Prosecutor has appealed against the acquittal. The charge reads as follows:

   That you on 15 February 1973, at about 7.05pm at 34¼ milestone Kuantan/Kemaman road, in the District of Kuantan, in the State of Pahang, being the driver of M/Lorry No BT 9841, did remove 50 bags of rice in the said vehicle from controlled area of the State of Trengganu into Pahang, without the prior written permission of the Director General, in contravention of the Lembaga Padi dan Beras Negara (Restriction of Movement) Trengganu Regulation vide PU (A) 320/71 and that you have thereby committed an offence punishable under s 27(1) of the Lembaga Padi dan Beras Negara Act No 47 of 1971.

2. The facts are simply these: On 15 February 1973 at about 6pm an inspector from the LPN and two policemen held a road block at 34¼ milestone Kemaman/Kuantan road. They stopped a lorry driven by the first respondent with the attendant, second respondent, in it and found to be carrying bags of rice. PW(1) said the driver produced 2 permits, P(1) and P(2). The permits merely allowed the lorry to carry 80 bags of Mahsuri rice. There were, however, found 50 bags extra. Both the respondents were therefore detained and subsequently charged. The PC gave evidence more or less to the same effect. There was no doubt that 130 bags were carried because they were later counted and confirmed at the LPN office. The 50 bags of rice were later sold and $3,112.40 realised.

3. In their defence, the first respondent said he was asked to load the lorry with the rice by the hirer of the lorry. He knew he was carrying 130 bags of rice. The permit was taken by the second respondent from the LPN office but he did not read it. He said he was a driver for the last 6 years. Normally, he said, he would just keep the permit suggesting that he had had to do with permits before. He thought it covered the 130 bags. The second respondent also said they carried 130 bags of rice but he did not know what was written in the permit. In cross-examination he said he cannot read, so he did not check the permit. But later he said he could read but the figure in the permit was illegible. It was submitted by the defence that the defendants had no knowledge that they were allowed to carry 80 bags only and should not be convicted.

4. I do not think I can agree with that contention. In my view the offence is one of strict liability in which the mental element is negatived by the legislature. I have no doubt that the legislature intended that the category of physical acts of 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 nigh difficult if not impossible.

5. The creation of absolute offences is not new. Indeed Sweet v Parsley [1970] AC 132 which I shall refer to takes cognizance of this fact. Lord Reid at page 148 says:

   Our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is an end of the matter.

6. The problem faced by the legislature if in all cases mens rea is required can be quite frustrating as Lord Reid says at page 150:

   The choice would be much more difficult if there were no other way open than either mens rea in the case where an absolute offence; for there are many kinds of case where putting on the prosecutor the full burden of proving mens rea creates great difficulties and may lead to many unjust acquittals.

7. And Lord Morris at page 152 in the same vein had this to say on the requirement of mens rea:

   But as Parliament is supreme it is open to Parliament to legislate in such a way that an offence may be created of which someone may be found guilty though mens rea is lacking. There may be cases in which as Channell J said in Pearks, Gunston & Tee Ltd v Ward [1902] 2 KB 1, 11: ...the Legislature has thought it so important to prevent the particular act from being committed that it absolutely forbids it to be done; and if it is done the offender is liable to a penalty whether he had any mens rea or not, and whether or not he intended to commit a breach of the law. Thus in diverse situations and circumstances and for any one of a variety of reasons Parliament may see fit to create offences and make people responsible before criminal courts although there is an absence of mens rea.

8. Lord Pearce has given us some of the requisites to look for in offences of strict liability. He said at page 156:

   But the nature of the crime, the punishment, the absence of social obloquy, the particular mischief and the field of activity in which it occurs, and the wording of the particular section and its context, may show that Parliament intended that the act should be prevented by punishment regardless of intent or knowledge.

9. I have been asked to say that by the decision of Sweet v Parsley the rationale that mental element of mens rea can be excluded by statute has seen its last days and that case has finally laid down the rule which now is settled law that a presumption of mens rea must always be implied even in cases where the legislature merely makes the commission of the prohibited act an offence. But this apparently does not seem to be true even after the case. In the case of Alphacell Ltd v Woodward, [1972] 1 QB 127 the courts seem to have quite firmly and categorically viewed Sweet v Parsley as merely laying a general proposition of law and that courts are still free to determine whether a given statute is intended to oust the requirement of mens rea or not. In that case the statute provides that:

   a person commits an offence (under the Rivers Pollution Act 1951) if (a) he causes or knowingly permits to enter a stream any poisonous, noxious or polluting matter...

10. The defendants owned a factory which operated to discharge industrial effluents which they made to flow and collect in a tank by the side of the river. The apparatus was worked in such a manner that the water was returned to the factory to be circuitously re-used and its capacity in the tank maintained at a level as not to overflow into the river. At some stage or another the tank overflowed and the effluent was discharged into the stream although precaution was earlier taken and examination made by the defendants’ employees to see that the water level in the tank remained the same. The defendants were, nevertheless, held liable for polluting the stream by their discharge. Widgery LJ, Lord Parker CJ agreeing with him, at page 134 said:

    It may be, in my judgment, that if this were a civil action the defendants could show that they had taken reasonable care to prevent the overflow of the tanks, but it does not seem to me that their activities become any the less a cause of the pollution of the river merely because their safety devices prove ineffective and let them down in the event. Mr. Drake (counsel for the defendants) argues, however, that it is an essential constituent of this offence that the defendants should have intended the entry of the polluting effluent into the river, or should have been negligent in allowing such entry to occur. He has referred us to Sweet v Parsley [1970] AC 132, and he contends that to hold the defendants guilty in the absence of intent or negligence on their part would be to put this offence into the category of the so-called absolute offences, with the result that a landowner who brought a polluting substance on to his land could never have a defence if the substance later escaped into the river by whatever means. I do not find it necessary to consider whether this is an offence of absolute liability, because my provisional view of the case already stated does not involve the proposition that a landowner would be automatically liable under the section for the escape of polluting matter from his land.

11. In other words, Widgery LJ, was saying that short of any third party intervention once it is established that the defendant has caused the pollution he is liable regardless of whether he had knowledge of the defect or whether he had been negligent or not. He was clearly stating in terms that the mental element or mens rea has no relevance or consequence in such type of offence where the legislature expressly provides that the offence is committed by the commission of the physical act. Considering the scope and extent to which the court nevertheless was prepared in that case to consider a statute as excluding mens rea especially bearing in mind that the word “cause” therein was inextricably linked with the word “knowingly”connotating thereby the requirement of mens rea, how could it ever be said that in our case which is not even remotely near those words and phrases it was not intended to exclude the mental element of mens rea. Bearing in mind also that the act contemplated is the act of the defendant or the doer himself and not unlike Sweet v Parsley or that in Alphacell Ltd v Woodward the act or omission of the defendant’s servant or agent.

12. One has to study the purport of the LPN Act 1971 under which PU(A) 320/71 was promulgated and I think it is obvious that looking at the statute and the regulations under which it was made, it must have been intended that the latter be of strict liability, if only because in the context in which the Government deems it necessary in order to maintain a stable and proper price for paddy and rice for the consumer and the paddy planter by having their prices fixed at different levels at different States, that the movement of rice and paddy in the States and particularly that from the border State of Thailand should not be allowed unrestricted as to offset the balance of distribution of that commodity in the country as a whole and therefore to upset its expected price levels in the various States. There is always a temptation in a situation like this to circumvent the regulation by unauthorised smuggling and therefore it is of the utmost importance that the regulation should be as strict as possible as to offer the minimum opportunity for evasion and deception.

13. Be that as it may, it seems to me quite obvious from the answers given by the two respondents that they were not giving an answer which a reasonable person would expect because it is quite unthinkable that any driver with six years experience behind him and apparently having had to do with permits before would just keep the permit and never read it as the first respondent alleged that he did. As far as the second respondent was concerned he was not sure whether to say he could read or could not read. Finally he decided to say that he could read but the writing was illegible. But strange indeed that other people seemed to have no difficulty in reading the same P(1) and P(2), the permits, were in print and apart from the signature in P(1) nothing in the two documents was stated to be illegible but if in fact it was illegible what attempt did he make to get someone to explain it. We have not been given the benefit of that answer.

14. I think this was not a case of not reading the permit or not knowing to read and therefore not knowing what was inside it but simply a case of knowing what was inside the document and denying it or else they were so negligent in not caring to read it. So much so that they must be deemed to know what was inside the permit. Mistaken belief in the existence of facts which if true would make the accused’s act innocent must I venture to say be a true one; if the mistaken belief is a self-induced one then it could hardly be a defence. Otherwise it could easily be said by an accused person in an offence of this nature in order to exonerate himself that he did not look at the permit when normally one would expect that he would. But to say that he did not look at the permit when he is naturally expected to do so is to say the least being grossly negligent and that is as good as knowledge itself (see Ratanlal 22nd Ed at page 721 under the heading: Gross negligence may amount to knowledge).

15. In the circumstances, I would therefore allow the appeal and substitute the order of acquittal with that of conviction and sentence.

Cases

Sweet v Parsley [1970] AC 132; Alphacell Ltd v Woodward [1972] 1 QB 127

Legislations

Lembaga Padi dan Beras Negara (Restriction of Movement) Trengganu Regulation

Authors and other references

Ratanlal 22nd Ed

Representations

Mohamed Nor Mohamed (DPP) for the appellant.

Sri Ram for the respondents.