STRICT LIABILITY

STRICT LIABILITY

I. Introduction
• Since a fault element such as intention, knowledge, rashness, negligence or dishonesty is
usually prescribed, the issue of strict liability does not usually arise.
• However, the question becomes more important beyond the Penal Code where some
modern statutes do not always contain a fault element in their provisions.

Strict Liability

26H. –

(1) An offence of strict liability under this Code or any written law is one where, for every
physical element of the offence, there is no corresponding fault element.

(2) Strict liability is said to apply to a particular physical element of an offence where there
is no corresponding fault element for that physical element, regardless of whether or
not the offence is one of strict liability.

(3) To avoid doubt, an offence may be a strict liability offence even though it is not so
expressly described by any written law; and strict liability may apply to a particular
physical element of any offence even though it is not so expressly described in any
written law.

(4) It is a defence for any person charged with a strict liability offence to prove that in
committing all the acts or omissions that are physical elements of the offence, he
exercised reasonable care.

• Such a codification reflects the common law position in Chng Wei Meng v PP [Chng Wei
Meng] and M V Balakrishnan.
• Under English common law, a conviction will only follow if the prosecution can show
that the accused committed the offence with the requisite fault element (i.e. mens rea).
o However, criminal liability can sometimes be imposed if the prosecution can
simply prove that the accused committed the physical elements required by the
statutory offence (provided that the presumption of mens rea is rebutted).
• Where the statute does not contain any express fault requirement, three possible
approaches have been developed:
o The presumption of mens rea approach;
o The due diligence approach; and
o The Chapter IV approach.
• “Strict liability” is used to describe offences which do not require the prosecution to
prove a specific fault element but allow the accused to avoid liability on proof of due
diligence or a Penal Code defence such as reasonable mistake of fact (MV Balakrishnan).
o On the other hand, “absolute liability” offences are those which do not allow an
accused to use these defences.
o However, as the Court of Appeal has rightly pointed out, the focus should be on
the substance of the arguments as opposed to the label of “strict” or “absolute”
liability (Koh Peng Kiat at [55]).

1
 STRICT LIABILITY

II. Presumption of mens rea approach

• The presumption of mens rea approach allows a court faced with a statutory offence that
does not employ a specific fault element to presume that mens rea is required before the
accused can be convicted.
• Lord Scarman provided the following propositions to support the presumption of mens
rea approach (Gammon (Hong Kong) v A-G of Hong Kong [Gammon]) at [14]):

(1) There is a presumption of law that mens rea is required before a person can be held
guilty of a criminal offence;
(2) The presumption is particularly strong where the offence is “truly criminal” in
character;
(3) The presumption applies to statutory offences, and can be displaced only if this is
clearly or by necessary implication the effect of the statute;
(4) The only situation in which the presumption can be displaced is where the statute is
concerned with an issue of social concern, and public safety is such an issue;
(5) 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
to promote the objects of the statute by encouraging greater vigilance to prevent the
commission of the prohibited act.

• The presumption of mens rea approach has been adopted in Singapore (PP v Teo Kwang
Kiang [Teo Kwang Kiang]), PP v Bridges Christopher [Bridges]).

Case Facts SL?

Sweet v Parsley [Sweet] • The appellant was charged with being concerned in
the management of premises used for the purpose of
smoking cannabis resin, contrary to s 5(b) of the UK
Dangerous Drugs Act.
• Adopting the presumption of mens rea approach,
Lord Reid stated that “[i]t would often be much
easier to infer that Parliament must have meant that X
gross negligence should be the necessary mental
element than to infer that Parliament intended to
create an absolute offence” (at 150).
• The court held that the mens rea of knowledge of
what was being managed was required; since the
appellant did not know that the house was being used
for the purpose of smoking cannabis resin, she could
not be properly convicted.
Teo Kwang Kiang • A vegetable importer was charged for having in his
possession snow peas that were unfit for human
consumption because they were excessively
contaminated with a chemical.
• Convicting the importer, the High Court held that the Ö
presumption of mens rea was displaced by the fact
that the offence was meant to protect the public from
food unfit for consumption. Therefore, the importer
was convicted even though he did not know of the
contamination.

2
 STRICT LIABILITY

Bridges • The High Court quashed Bridges’ convictions of

obtaining official secrets information and divulging
it on the ground that the prosecution had failed to
prove that the information relating to the changes of
addresses was or had been “secret official” and that
the prosecution had not even established a prima
facie case that the information was official
information protected by the Act. The prosecutor
appealed as to whether an offence under s 5(1) was
one of strict liability, and if not, what were the
requisite elements of mens rea.
• Turning to s 5(1), the well-established general rule is
that mens rea is presumed to be a necessary
ingredient of an offence in the absence of clear
words to the contrary:
o A mental element is required to do any one of X
the things stated in sub-paras (i) to (iv) of s
5(1) (at [45]).
• The elements of mens rea required for an offence
under s 5(1) are:
(a) An intention to communicate the information;
(b) Knowledge that the information was obtained by
the communicator in contravention of the Act;
and
(c) Knowledge of the communicator that he had no
authority to communicate the information to the
person to whom he communicated it or that he
had no duty to communicate it to the person he
communicated it (at [46]).
• On the facts of the case, there was no evidence on
which it could reasonably be inferred that Bridges
knew or had ground to believe that he was in
possession of “protected” information which was
obtained by Ganesan and communicated to him in
contravention of the Act (at [47]).
o The phrase “had ground to believe” indicates
that the court read a mens rea of negligence
into the statute.
o Such a reading is a modification of the
presumption of mens rea approach since the
mens rea required is no longer restricted to
intention and knowledge.
PP v Yue Mun Yew Gary • The respondent was charged and convicted under s
[Gary Yue] 267C of the Penal Code of making a post containing
incitement to violence. The prosecution appealed on
the grounds that the fine was manifestly inadequate
and pressed for a custodial sentence.
• Allowing the appeal, the court held that the history
of s 267C supported the presumption of mens rea.

3
 STRICT LIABILITY

• The lineage of the present-day s 267C must be traced

through the Sedition Ordinance rather than the Ö
Undesirable Publications Ordinance. The
unequivocal position of Parliament with regard to
sedition has always been to place an objective check
on the scope of the offence in the form of a seditious
tendency or seditious intention requirement.
o It is clear that Parliament never intended to
create an unfettered offence under any of
these Ordinances, and indeed the position
remains the same in the present-day Sedition
Act.
o Therefore, the court was disinclined to regard
s 267C as constituting a strict liability
offence.
o The general requirement of mens rea must be
satisfied in order to make out the offence of
incitement to violence (at [31]).
• In the present case, there was abundant evidence that
the respondent intended to incite violence with the
posting. The mens rea had been satisfied beyond
reasonable doubt (at [40]-[41]).

Criticisms
(1) It can be difficult to decide if a particular offence is a “true crime” or a regulatory
violation.
o For example, employing an illegal immigrant can be seen as equally an inherently
moral wrong or a regulatory violation.
o The assertion that a conviction for a regulatory violation carries with it less stigma
(thereby justifying displacing the presumption of mens rea) is highly questionable.
(2) It is impossible to differentiate “truly criminal” offences from regulatory offences on the
basis of the penalties that apply.
o The penalties that apply to “true crimes” and regulatory violations are not all that
different.
o Gammon found nothing inconsistent with the imposition of severe penalties for
offences which did not require fault.
o The High Court in Tan Cheng Kwee stated that “[t]he severity of the penal
sanction is but one of the many factors that the court has to take into account in
trying to ascertain Parliamentary intent” (at [19]).

Case Facts Guilty?

Chng Wei Meng1 • The HC held that an offence with a maximum fine of
$10,000 or imprisonment of up to 3 years or both was
not a bar to the presumption of mens rea being
displaced.
• Quoting Tan Cheng Kwee, Yong CJ held that the Ö
legislature could reasonably have intended severity to be

1
[2004] 4 SLR 595

4
 STRICT LIABILITY

a significant deterrence and there was nothing

inconsistent with imposing severe penalties for offences
of strict liability (at [20]).

(3) Whether a matter is a “social concern” fails to guide the court adequately (YMC at [7.13])

Case Facts Guilty?

Lim Chin Aik • The Privy Council qualified the requirement to either desist
or exercise great vigilance by saying that “there must be
something he can do, directly or indirectly, by supervision or
inspection, by improvement of his business methods or by
exhorting those whom he may be expected to influence or
control, which will promote the observance of the
regulations. Unless this is so there is no reason in penalizing -
him, and it cannot be inferred that the legislature imposed
strict liability merely in order to find a luckless victim” (at
174).
• YMC states that this suggests a form of negligence liability,
and negligence is a species of fault (at [7.14]).

(4) The presumption of mens rea approach embodies an “all or nothing” approach that
imposes liability only on the basis of proof of intention or knowledge, or without any
requirement of fault (YMC at [7.15]).

[Additional Shit]
However, this refers to the UK approach. In the UK, the courts do not recognise civil
negligence as criminal negligence; the standard of negligence for criminal negligence is
that of gross negligence. Therefore, there is no gradation of the mens rea, giving rise to an
“all or nothing” approach.

However, in Singapore, the standard of negligence for criminal negligence is that of the
civil standard. The courts have been more prepared to read negligence into the statute (at
[47]). Hence, with the introduction of negligence, the courts appear to have taken a more
gradated approach with respect to mens rea.

III. Due diligence approach

• Under the due diligence approach, after the prosecution has shown that the accused
committed the physical elements of the offence, the accused must then prove on the
balance of probabilities that they acted with due diligence.
o The accused’s state of mind is an aspect which must be raised by the defence.
• This has been described as a “halfway-house solution” i.e. liability is made out on proof
of the physical element of the offence unless the accused can establish a defence of “due
care” or “reasonable care”.

Case Facts SL?

MV Balakrishnan • The accused was charged with permitting his employee
to drive a “Class 4” motor vehicle when the employee
only possessed a “Class 3” driving license.

5
 STRICT LIABILITY

Yong CJ held that “it would be the defendant’s onus to

establish on a balance of probabilities that he has taken -
reasonable care… [S]uch an interpretation would honour
Parliament’s intention with respect to road traffic regulation
in the interests of public safety” (at [17]).
Usha Elizabeth v PP • The appellant was convicted of harbouring an illegal
[Usha] immigrant under the Immigration Act. The issue on
appeal was whether someone like Usha, who did not
possess any proprietary interest in the property, could be
said to “harbour” the offenders within the meaning of the
Act.
• Since the prosecution had proven that the appellant had
given shelter to the three immigration offenders, the
burden now lay on the appellant to rebut the presumption
and prove on a balance of probabilities that she did not
know or could not reasonably have known that the three
men were immigration offenders (at [24]). Ö
• The appellant could succeed only if she could show that
she had satisfied the test of due diligence in s 57(10) of
the Act, which requires the accused to check the
particulars contained in the immigrant’s original work
permit against that in the original copy of his passport (at
[24]).
• Since the appellant did not lead any evidence in the court
to show that she had performed the due diligence checks
stipulated in s 57(10), she did not rebut the presumption
(at [25]).

Criticisms
• The due diligence approach can be criticised on the basis that it ignores the Penal Code
provisions relating to defences such as mistake, thereby importing a different standard of
liability from the standards set by the Penal Code.

Case Facts SL?

Chng Wei • The appellant was convicted of driving while disqualified
Meng under s 43(4) of the Road Traffic Act. The appellant appealed
on the basis that the judge was wrong in construing s 43(4) as
a strict liability offence and convicting him under it.
• Since s 43(4) did not create an absolute liability offence, the
burden then shifted to Chng to prove that he had exercised
reasonable care to comply with the requirements of the
provision; Chng needed to show that he had made diligent Ö
inquiries about his qualification status or had an honest or
reasonable belief that he could still drive (at [26]).
o There was a deplorable lack of due diligence on
Chng’s part and as a result, the defence of reasonable
care could not be made out (at [28]).

6
 STRICT LIABILITY

• The High Court in Chng Wei Meng suggested that it was sufficient if the accused made an
honest mistake even if it was not reasonable to do so (at [26]).
o The wording in Chng Wei Meng seems to suggest a broader approach.
o This broader approach contradicts the Penal Code defence of mistake of fact,
which involves an objective inquiry.
§ Under the Penal Code defence of mistake of fact, an honest mistake will
not suffice (YMC at [7.20]).
• Furthermore, under the due diligence approach, it is possible for a court to find that the
offence is one of absolute liability, meaning that the accused can be convicted of the
offence even if they acted with due diligence (YMC at [7.21]).
o This stands in contrast to the Chapter IV approach, where the defence of mistake
can only be ousted if this is done by statute.
• In addition, under the due diligence approach, it is difficult to draw the distinction
between strict liability offences and absolute liability offences.
• The case law approach is very clear; presumption of mens rea approach followed by due
diligence.
o Critics have said that this is wrong, stating that cases should instead be relying on
the Chapter IV approach (Tan Khee Wan Iris v PP [Iris]).

IV. Chapter IV approach

• Under the Chapter IV approach, the accused must prove an absence of fault based on the
defences in Chapter IV of the Penal Code.
• The General Exceptions in Chapter IV apply to offences outside the Code as well as the
Code itself, unless they are excluded by the legislature.
• Under the Chapter IV approach, it is possible for the legislature to prevent the
applicability of the Penal Code general defences, so long as it has been clearly intended
by the legislature.

Case Facts SL?

Iris • The appellant was charged with providing public entertainment without a
valid license under s 18(1)(a) of the Public Entertainments Act (Cap 257,
1985 Rev Ed). This was due to a mistake on the licensing officer’s part.
The issue was whether the appellant could establish the defence of
mistake of fact under s 79 of the Penal Code i.e. whether she acted under
a mistake, and by reason of that mistake, believed in good faith that she
had a valid license for the relevant period.
• Dismissing the appeal, the court held that the burden of proving that the
case fell within the special exception was upon the accused. There was no
burden on the prosecution to prove that there was no license. The
prosecution was also not required to show any mens rea regarding the
absence of a license (at [13]).
• s 79 mandates that the burden is on the appellant to show on a balance of
probabilities that she acted under a mistake and by reason of that she
believed in good faith that she had a valid license for the relevant period
(at [17]).
• The test of whether a mistake was made in good faith is whether there
was due care and attention. The defence is not made out unless it is Ö
shown that the appellant exercised due care and attention. The test is not

7
 STRICT LIABILITY

whether the mistake was an easy one to make or whether a reasonable

person could make the mistake (at [19]).
• The legislature must have intended the licensee to read the license issued
to her, and if there was something wrong with it, to bring it to the
attention of the licensing officer. Any other interpretation was
inconsistent with the legislative intention that the burden was on the
accused to show that she had at least a prima facie valid license (at [21]).

“Due care and attention” (26B) “Reasonable care” (26H)

Higher standard seems to be required. Lower standard seems to be required.

However, in Iris, the test was not whether Reasonable care is hinting at due diligence.
the mistake was an easy one to make or
whether a reasonable person could make the
mistake (at [19]). Therefore, the standard
pitched in Iris is very high.

Assimilation of the due diligence and Chapter IV approaches?

Case Facts SL?

Comfort Management v PP • Involved the employment of a foreign worker
[Comfort] contrary to the conditions of a work permit.
• Holding that the defences in the Penal Code,
particularly s 79 would apply, Yong CJ stated that
“an accused is entitled to be acquitted if he can -
prove on a balance of probabilities that he has
taken due care and attention to comply with the
statutory requirements”, with this conclusion being
mandated by s 79 (at [31]).

• In Comfort, it appears as though the court was still primarily relying on the due diligence
approach. This is because the court did not ask whether the accused had a mistaken belief
that he was justified in doing the act (Chapter IV requirement). Instead, the court applied
the requirement of due care and attention (due diligence approach).
• An objective approach is applied to strict liability offences under the Chapter IV
approach.

[Evaluation]
• The current statute is reflective of the common law and codifies the due diligence
approach.
• However, the local courts should adopt the Chapter IV approach to strict liability
offences.
• As a preliminary observation, it should be noted that the general defences found in
Chapter IV of the Penal Code are universally applicable to all offences.
o As a result, there is no room for a defence of due diligence in the criminal law of
Singapore.
• There are several deficiencies with the presumption of mens rea approach:

8
 STRICT LIABILITY

o It can be difficult to decide if a particular offence is a “true crime” or a regulatory

violation.
o It is impossible to differentiate “truly criminal” offences from regulatory offences
on the basis of the penalties that apply.
§ As stated by the High Court in Tan Cheng Kwee, “[t]he severity of the
penal sanction is but one of the many factors that the court has to take into
account in trying to ascertain Parliamentary intent” (at [19]).
o Finally, whether a matter is a “social concern” fails to guide the court adequately
(YMC at [7.13]).
• Furthermore, the presumption of mens rea approach and due diligence approaches draw
too fine a line between ignorance and mistake.
o In Bridges, even if the defendant had been ignorant as to the source of the
information, he would not have been guilty.
o However, in Balakrishnan, ignorance was insufficient; the defendant must have
thought about it and decided one way or the other.
o As Chan astutely points out, the distinction between ignorance and mistake is one
that is too fine since in most cases, it is impossible to accurately prove the
defendant’s state of mind (Requirement of Fault in Strict Liability).
• Seen this light, the Chapter IV approach is much more preferable.
• Since the Chapter IV defences are codified, they present a much clearer guide to judges
and lawyers, as compared to the more obscure common law defence of due diligence.
o Furthermore, it ensures certainty and maintains an appropriate balance between
effective crime control and fairness.
• Hence, Parliamentary intervention may be needed to amend the defence in s 26.
o The defence should not be one of due diligence; the Chapter IV approach should
be adopted instead.

[Evaluation] Defining the fault element

• While the PCRC recommended the adoption of a default fault element, Parliament should
not do so.
• While it is unsatisfactory to leave the fault elements in such an ambiguous state, the
courts should not forget the subtle and nuanced considerations of public policy with
respect to the various criminal offences.
• Creating a default fault element would eliminate these subtle and nuanced considerations.
o The approach of the courts would be too rigid and this may lead to injustice.
• Hence, it is preferable that a default fault element is left unspecified.

V. Cases

Presumption of mens rea approach

Case Facts SL?

Bridges • The High Court quashed Bridges’ convictions of obtaining official
secrets information and divulging it on the ground that the
prosecution had failed to prove that the information relating to the
changes of addresses was or had been “secret official” and that the
prosecution had not even established a prima facie case that the
information was official information protected by the Act. The

9
 STRICT LIABILITY

prosecutor appealed as to whether an offence under s 5(1) was one

of strict liability, and if not, what were the requisite elements of
mens rea.
• s 5(2) states explicitly that a person commits the offence of
“receiving” the information “when he receives it” knowing or
having reasonable ground to believe that the information is
communicated to him in contravention of the Act. A guilty mind is
thus an essential ingredient of the offence and can be proved either
by direct evidence of knowledge or by inferring knowledge from
the primary facts proved at the trial (at [41]).
• On the facts, the appellant knew that the information on addresses
of persons was widely available to the public from various
government agencies. It was therefore a stretch to say that mere
knowledge that Ganesan was a field intelligence officer was
sufficient to infer that addresses given by him must have been given
in contravention of the Act. Since such an inference could not be
drawn, the vital element in the ingredient of the mens rea required X
to be proved by the prosecution was not prima facie proved (at
[43]-[44]).
• Turning to s 5(1), the well-established general rule is that mens rea
is presumed to be a necessary ingredient of an offence in the
absence of clear words to the contrary (at [45]).
• A mental element is required to do any one of the things stated in
sub-paras (i) to (iv) of s 5(1). There are no clear words in s 5(1)
dispensing with mens rea; rather, it is clear that an offence under s
5(1) cannot be committed without some mental element. A s 5(1)
offence is therefore far from being a strict liability offence (at [45]).
• The elements of mens rea required for an offence under s 5(1) are:
(d) An intention to communicate the information;
(e) Knowledge that the information was obtained by the
communicator in contravention of the Act; and
(f) Knowledge of the communicator that he had no authority to
communicate the information to the person to whom he
communicated it or that he had no duty to communicate it to the
person he communicated it (at [46]).
• On the facts of the case, there was no evidence on which it could
reasonably be inferred that Bridges knew or had ground to believe
that he was in possession of “protected” information which was
obtained by Ganesan and communicated to him in contravention of
the Act (at [47]).
Gary Yue • The respondent was charged and convicted under s 267C of the
Penal Code of making a post containing incitement to violence. The
prosecution appealed on the grounds that the fine was manifestly
inadequate and pressed for a custodial sentence.
• Allowing the appeal, the court held that the history of s 267C
supported the presumption of mens rea.
• Section 267C reads:

Making, printing, etc., document containing incitement to violence

etc.

10
 STRICT LIABILITY

267C. Whoever –
(a) Makes, prints, possesses, posts, distributes or has under his
control any document; or
(b) Makes or communicates any electronic record,
Containing any incitement to violence or counselling disobedience to the law
or to any lawful order of a public servant or likely to lead to any breach of the
peace shall be punished with imprisonment for a term which may extend to 5
years, or with fine, or with both.
• s 267C is conspicuously silent on the issue of the offender’s
intention, and it is settled law that the mere omission of a mens rea
requirement does not automatically entail strict liability (at [14]).
• “Incitement” is a loaded but ambiguous term, meaning far more
than just to persuade or suggest or, at a level up, to stir up or to
arouse.
o At its core, it means to instigate, to move to action, to rouse,
to spur or to stimulate vigorously into action by e.g. making
an inflammatory speech.
o It could not have been Parliament’s intention to criminalise
such a wide swath of content when the possible potential for
harm would probably only arise in certain cases (at [24]).
• The history of s 267C supports the presumption of mens rea.
o The objective test used in the Seditious Publications
Ordinance seems to have been discarded in the 1938
migration to the Sedition Ordinance and Undesirable
Publications Ordinance.
o Instead, the Sedition Ordinance incorporated the common
law concept of “seditious intention” in s 3, and specified the
elements of this concept in s 3(1)(i) -(v) (at [25]).
Ö
• The lineage of the present-day s 267C must be traced through the
Sedition Ordinance rather than the Undesirable Publications
Ordinance. The unequivocal position of Parliament with regard to
sedition has always been to place an objective check on the scope of
the offence in the form of a seditious tendency or seditious intention
requirement.
o It is clear that Parliament never intended to create an
unfettered offence under any of these Ordinances, and
indeed the position remains the same in the present-day
Sedition Act.
o Therefore, the court was disinclined to regard s 267C as
constituting a strict liability offence.
o The general requirement of mens rea must be satisfied in
order to make out the offence of incitement to violence (at
[31]).
• While the prosecution must prove the mens rea beyond a reasonable
doubt, free expression cannot be so unfettered as to allow
individuals at the fringes of society to cause harm under the guise of
expression.
o The balance between the individual’s right to free
expression and the public’s right to be free from harm must
tilt towards the latter (at [38]).

11
 STRICT LIABILITY

• In the present case, there was abundant evidence that the respondent
intended to incite violence with the posting. The mens rea had been
satisfied beyond reasonable doubt (at [40]-[41]).
• Insofar as s 267C creates a standalone offence, the severity of the
punishment meted out must first and foremost be yoked to the
seriousness of the incitement within the particular context of its
creation (at [44]).
• The purpose of s 267C is to prosecute and thereby deter those who,
for whatever motive or purpose, seek to threaten public order by
instigating and causing others to act with violence (at [45]).
• It is far better to preserve and prevent a breakdown in public order
and safety than to deal with the aftermath when untold physical,
economic, emotional and psychological damage has been done (at
[49]).
• In the present case, the respondent used openly available tools of
mass media for both his medium and his message. The potential
impact of his post was also greatly magnified due to the
accessibility of the webpage and the ease of its replication.
Therefore, it is important to send a strong signal that the Internet is
not an entirely unregulated space wherein calls to violence or
messages laced with racial slurs are treated as an acceptable mode
of communication (at [54]).
• A custodial sentence of three months’ imprisonment should be the
starting point for such offences (at [64]).
• Little or no weight would be given during mitigation to the fact that
the accused had sickly or aged parents to support, especially if the
imprisonment term is short (at [68]).
o Therefore, on the facts, little weight was attached to the
effect of the conviction on the respondent’s personal
livelihood and the hardship caused to his father as the
imprisonment term was relatively short and there were no
exceptional circumstances (at [69]).

Due diligence approach

Case Facts SL?

Usha • The appellant was convicted of harbouring an illegal
immigrant under the Immigration Act. The issue on appeal
was whether someone like Usha, who did not possess any
proprietary interest in the property, could be said to “harbour”
the offenders within the meaning of the Act.
• s 57(7) provides that:

where, in any proceedings for an offence under subsection (1)(d), it

is proved that the defendant has given shelter to any person who
has remained in Singapore unlawfully for a period exceeding 90
days after the expiration of any pass issued to him or who has
entered Singapore in contravention of section 5(1) or 6(1), it shall
be presumed, until the contrary is proved, that the defendant has

12
 STRICT LIABILITY

harboured him knowing him to be a person who has acted in

contravention of the provisions of this Act or the regulations.
• Before the presumption can be triggered, the prosecution has
to show that the accused provided a place of habitation to the
offenders with the intention or knowledge that they would
inhabit that place and that they in fact did so (at [19]).
• Harbouring required someone to be in control of the premises
and rent and a positive act of providing shelter or food (at
[19]).
• Any positive act of giving shelter in the form of providing
habitation to an immigration offender by any person
whomsoever falls squarely within the clear statutory
definition of the word “harbour”, and there is nothing in that
definition which restricts the classes of persons intended to be
caught by it to owners, landlords and tenants.
o Therefore, even mere licensees or occupiers who do
not have any proprietary interest in the property are
capable of being found to be “harbourers”, provided Ö
that it can be proved that they had done a positive act
of providing habitation to the illegal immigrants in
question (at [20]).
• In the present case, the appellant had collected the rent for
and on behalf of herself only. Furthermore, she was clearly in
charge and in control of the premises as she was the one who
gave the men their instructions on what they could and could
not do on the premises, including which entrance they could
and could not use. In addition, the appellant checked on them
regularly to see that everything was in order (at [21]).
• Since the prosecution had proven that the appellant had given
shelter to the three immigration offenders, the burden now lay
on the appellant to rebut the presumption and prove on a
balance of probabilities that she did not know or could not
reasonably have known that the three men were immigration
offenders (at [24]).
• The appellant could succeed only if she could show that she
had satisfied the test of due diligence in s 57(10) of the Act,
which requires the accused to check the particulars contained
in the immigrant’s original work permit against that in the
original copy of his passport (at [24]).
• Since the appellant did not lead any evidence in the court to
show that she had performed the due diligence checks
stipulated in s 57(10), she did not rebut the presumption (at
[25]).
Chng Wei Meng • The appellant was convicted of driving while disqualified
under s 43(4) of the Road Traffic Act. The appellant appealed
on the basis that the judge was wrong in construing s 43(4) as
a strict liability offence and convicting him under it.
• Dismissing the appeal, Yong CJ held that several factors
strongly suggested that Parliament intended for liability under
s 43(4) Road Traffic Act to be strict.

13
 STRICT LIABILITY

• Section 43(4) of the Road Traffic Act reads:

If any person who is disqualified as mentioned in subsection (3)

drives on a road a motor vehicle or, if the disqualification is limited
to the driving of a motor vehicle of a particular class or description,
a motor vehicle of that class or description, he shall be guilty of an
offence and shall be liable on conviction to a fine not exceeding
$10,000 or to imprisonment for a term not exceeding 3 years or to
both.
• The need for an effective policing of public welfare offences
and the protection of public interest in areas such as health,
safety and morals have prompted Parliament to legislate for
strict liability offences (at [16]).
• Approving Gammon, the court observed that it should refrain
from construing an offence as one of strict liability unless it
Ö
could also be shown that the creation of strict liability would
be effective to promote the objects of the statute by
encouraging greater vigilance to prevent the commission of
the prohibited act (at [17]). This is an additional modification
that the Singapore courts added to the original Gammon test.
The courts used this modification to make the implication
below.
• This implies that a defence of reasonable care must be
available to persons who have tried to comply with the
statutory requirements (at [17]). Critics have argued that the
courts should rely on the exceptions contained in Chapter IV
as opposed to reliance on the UK case law. The first port of
call should be the Penal Code.
• Several factors strongly suggested that Parliament intended
liability to be strict:
o The absence of any statutory defences for s 43(4) of
the Act.
o The offence of driving under disqualification is not a
truly “criminal” offence but one that is regulatory in
nature.
o s 43(4) is clearly concerned with the protection and
safety of the public as it prohibits persons without
valid or subsisting licenses from driving on the public
roads and highways and endangering human lives.
o Active promotion of the observance of s 43(4) is very
much dependent upon personal compliance by the
individual since the traffic police are often unable,
save in cases where the offender has been stopped for
some other offences or on the off-chance when
random checks are being conducted, to identify and
stop disqualified persons from driving on the roads (at
[18]). CWL says that this is an embellishment of
Gammon.
• The speech of the then Minister for Home Affairs, Mr Wong
Kan Seng, during the second reading of the Road Traffic

14
 STRICT LIABILITY

(Amendment No 2) Bill indicated that Parliament had

empowered the courts to disqualify motorists possessing valid
licences from driving if they had failed to attend court after
being arrested under a warrant and released on bail, as a
censure for their blatant disregard for the law and to obviate
practical difficulties in enforcement.
o Reading 43(4) as requiring mens rea implied that a
notice of disqualification would then have to be
brought to the attention of the recalcitrant motorists,
initiating another rigmarole of locating and serving
these motorists with the notices of disqualification.
This would mean the substitution of one meaningless
procedure for another, wholly defeating the legislative
intention of s 42A as a tool against errant absentees (at
[21]).
• Since s 43(4) did not create an absolute liability offence, the
burden then shifted to Chng to prove that he had exercised
reasonable care to comply with the requirements of the
provision; Chng needed to show that he had made diligent
inquiries about his qualification status or had an honest or
reasonable belief that he could still drive (at [26]). See YMC
above.
o There was a deplorable lack of due diligence on
Chng’s part and as a result, the defence of reasonable
care could not be made out (at [28]).

Chapter IV approach

Case Facts SL?

Iris2 • The appellant was charged with providing public entertainment without a
valid license under s 18(1)(a) of the Public Entertainments Act (Cap 257,
1985 Rev Ed). This was due to a mistake on the licensing officer’s part.
The issue was whether the appellant could establish the defence of
mistake of fact under s 79 of the Penal Code i.e. whether she acted under
a mistake, and by reason of that mistake, believed in good faith that she
had a valid license for the relevant period.
• Dismissing the appeal, the court held that the burden of proving that the
case fell within the special exception was upon the accused. There was no
burden on the prosecution to prove that there was no license. The
prosecution was also not required to show any mens rea regarding the
absence of a license (at [13]).
• s 79 mandates that the burden is on the appellant to show on a balance of
probabilities that she acted under a mistake and by reason of that she
believed in good faith that she had a valid license for the relevant period
(at [17]). Ö
• The test of whether a mistake was made in good faith is whether there
was due care and attention. The defence is not made out unless it is

2
[1995] SGHC 94

15
 STRICT LIABILITY

shown that the appellant exercised due care and attention. The test is not
whether the mistake was an easy one to make or whether a reasonable
person could make the mistake (at [19]).
• The Legislature must have intended the licensee to read the license issued
to her, and if there was something wrong with it, to bring it to the
attention of the licensing officer. Any other interpretation was
inconsistent with the legislative intention that the burden was on the
accused to show that she had at least a prima facie valid license (at [21]).

16