Halim Sulman Sharifudin v. The Queen

CACC000017/1977

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Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 4th May, 1977.

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JUDGMENT

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Pickering, J. A. :

1. The Appellants were charged in the District Court; the first with possession of forged dies contrary to s.76(2) of the Crimes Ordinance, Cap.200, with two counts of possession of unlawfully altered travel documents contrary to s.42(2)(c)(i) of the Immigration Ordinance, Cap.115, one count of possession of unlawfully altered documents contrary to s.42(2)(c)(ii) of the Immigration Ordinance and one count of possession of forged travel documents contrary to s.42(2)(c) (i) of the Immigration Ordinance; the second Appellant was charged with one count of possession of unlawfully altered travel documents contrary to s.42(2)(c)(i) of the Immigration Ordinance. Both Appellants were convicted the first being sentenced to three years' imprisonment and the second to two years. They appeal against both convictions and sentence.

2. In the court below the learned judge was of the opinion that there was evidence to show beyond reasonable doubt both possession of the items charged and knoweledge of the forgeries or alterations. Upon the appeal we were of the opinion that there was evidence to justify these findings of the learned judge and we dismissed the appeals against both convictions and sentence. However a second line of defence in regard to all the charges, except that against the first Appellant regarding possession of forged dies, had been that the offences alleged were not absolute offences but required mens rea and it is to this aspect of the case that this judgment is directed since it was suggested to us that there exist apparently conflicting decisions in Hong Kong upon this issue. A decision directly in point is that of Yang, J. in Mohd. Daraiz v. the Attorney General ⁽¹⁾ which was likewise a charge under s.42(2)(c)(i) of the Immigration Ordinance and in which it was held that possession of a false passport was an absolute offence. A somewhat contrary decision was that of Li, J. in Koon Pok Man v. the Queen ⁽²⁾ which concerned an alleged offence under the Dutiable Commodities Ordinance, Cap.109 and where it was held that the prohibition on the possession of dutiable liquor was not absolute. The decision in the first case rests upon the interpretation of s.42(2)(c)(i) of the Immigration Ordinance, that in the second concerned the rebuttal of the presumption contained in s.40 of the Dutiable Commodities Ordinance and we think it desirable that both the Crown and Practitioners should have this conflict resolved by this court although, for the direct purpose of the present case the matter is academic since the learned judge found, we think rightly, that it had been shown beyond reasonable doubt that there was not only possession but knowledge of the forgeries or alterations.

3. The conflict between the two cases to which we have referred is not wholly complete in that the cases involved the interpretation of different statutes and we propose to say no more about Koon Pok Man except that it may be significant that the Ordinance under scrutiny in that case contained a presumption which operated against the accused whereas no such presumption is contained in the Immigration Ordinance. Nonetheless the somewhat odd result was arrived at that in Koon Pok Man the offence was held not to be of strict liability whereas in Mohd. Daraiz the contrary view was expressed. It is to that latter case that we direct our attention.

4. The accused in that case was a citizen of Pakistan who, in 1969, wished to come to Hong Kong. He approached a travel agent in Karachi to obtain an airline ticket and also for assistance in obtaining a passport. Subsequently both ticket and passport were handed to him by the travel agent at Karachi Airport immediately prior to his departure for Hong Kong. The passport was later renewed for a further period of 5 years by the representatives of the Pakistani Government in Hong Kong it having been in the custody of the accused during the initial 5 years except for a period of 4 or 5 months, in 1970, when it was retained by the Hong Kong Immigration authorities. In December of 1975 those authorities seized the passport which proved, after examination by an expert, to have had the first six pages removed and replaced and to have false entries in the upon replaced pages. The learned magistrate accepted the accused's evidence that he was unaware of the false entries in the passport and indeed it would appear, upon the facts, that the representatives of the Pakistani Government did not detect the falsity when they renewed the passport and that such falsity remained undiscovered by the Hong Kong Immigration authorities when they retained the document in 1970.

5. Mr. Daraiz was charged with possession of a forged passport under s.42(2)(c)(i) of the Immigration Ordinance and on the interpretation of that section and also on the authority of Chajutin v. Whitehead ⁽³⁾ the learned magistrate convicted. Upon a case stated the question of law arising for the Court was whether the magistrate was correct in finding that liability under s.42(2)(c)(i) was absolute. The learned judge answered the question in the affirmative.

6. In arriving at that answer he relied largely upon the fact that certain other sections of the Immigration Ordinance provide for a defence resting on the proof of lack of knowledge. Thus section 42(1) provides that any person who makes or causes to be made, in certain specified circumstances, any statement or representative which he knows to be false or does not believe to be true shall be guilty of an offence. Section 44 provides that any person who without reasonable excuse knowingly contravenes some of the provisions of the Ordinance shall be guilty of an offence. By section 45, where a person is convicted of an offence under section 44 consisting of a contravention of section 14(1) and the contravention continues after the conviction, then, unless he has a reasonable excuse for the continuance of the contravention, he shall be guilty of a further offence under section 44. On the other hand under s.42(2) (c) (i), the section with which we are concerned, neither the word "knowingly" nor any word showing a similar import, appears. It was partly for this reason that the learned judge answered in the affirmative the question posed to him.

7. It is to be observed that this reason did not find favour in the case of Sherras v. De Rutzen ⁽⁴⁾ where the same point was in issue. Although in Chajutin, ⁽³⁾, Lord Hewitt appeared to consider that the effect of Sherras was to rewrite the section in question, we are not, with respect, impressed with that reasoning the more so because of observations of the House of Lords in Sweet v. Parsley ⁽⁵⁾ to which we shall come.

8. The learned judge in Mohd. Daraiz ⁽¹⁾, whilst relying upon Warner v. the metropolitan Police Commissioner ⁽⁶⁾ appeared to be aware that between that case and that of Sweet v. Parsley ⁽⁵⁾ the House had somewhat changed its attitude to the question of strict liability but, as it seems to us, he failed to follow the lead given by the House of Lords in that latter case commenting that:

"This case seems to suggest that any further expansion of strict liability will be discouraged."

With respect, the learned judge's tense was wrong and any further expansion of strict liability was already being actively discouraged in Sweet v. Parsley ⁽⁵⁾ itself.

9. Nonetheless we can understand the learned judge's dilemma for we imagine that we are not alone in finding it difficult, if not impossible, to reconcile the result in Warner ⁽⁶⁾ with the subsequent dicta in Sweet v. Parsley. In the former case the House appeared to say that if the accused believed that the contents of the parcel of which he was in possession were perfume and not drugs then although he did not have a reasonable opportunity to ascertain the contents and did not have a reasonable opportunity to ascertain the contents and did not suspect that there was anything wrong therewith, yet because perfume and drug are different in kind and not merely in quality, he was automatically guilty. This result would appear to stand in conflict with various dicta in Sweet v. Parsley ⁽⁵⁾. What is important, we consider, is that Sweet v. Parsley is the later case and that the ultimate result in that case was to correct a massive injustice. The decision in Warner ⁽⁶⁾ did not result in injustice because the House felt it competent to them to apply the proviso. However, given less damning facts in a case similar to Warner, the result arrived at in that case on the basis of strict liability, would be one of grave injustice.

10. We turn to the dicta in Sweet v. Parsley ⁽⁵⁾ upon which we rely. At page 148 Lord Reid, having described the conviction of Miss Sweet as "obviously unjust", considered it necessary to amplify what he has said in Warner ⁽⁶⁾ and did so in these terms:

"Our first duty is to consider the words of the Act: if they show a clear intention to create an about offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clears indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea."

and at page 152 he quoted the words of Lord Goddard, C.J. in Brend v. Wood ⁽⁷⁾"

"It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind."

11. At page 149 the same learned Law Lord said:

"It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word 'knowingly, ' is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. I say 'must have been' because it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted."

12. At page 156 Lord Pearce said:

"But one must remember that normally mens rea is still an ingredient of any offence. Before the court will dispense with the necessity for mens rea it has to be satisfied that Parliament so intended. The mere absence of the word 'knowingly' is not enough."

13. At page 163 Lord Diplock said:

"But the importance of the actual decision of the nine judges who constituted the majority in Reg. v. Tolson, which concerned a charge of bigamy under section 57 of the Offences Against the Person Act, 1861, was that it laid down as a general principle of construction of any enactment, which creates a criminal offence, that, even where the words used to describe the prohibited conduct would not in any other context connote the necessity for any particular mental element, they are nevertheless to be read as subject to the implication that a necessary element in the offence is the absence of a belief, held honestly and upon reasonable grounds, in the existence of facts which, if true, would make the act innocent."

14. These passages represent the relatively recent thinking of the House of Lords upon strict liability and postdate Warner ⁽⁶⁾. We would respectfully adopt them.

15. When the Legislature steps upon ground which involves the liberty of the subject it is treading sacred ground. It is however competent to the Legislature to secularize the ground by the creation of a presumption or of an offence of strict liability and that is a competence of which the Legislature of this territory, no doubt quite appropriately, has availed itself relatively widely, in regard to some of the more serious evils affecting our community such as , to mention only two, dangerous drugs and firearms. It is for the courts to apply the law giving full recognition to such encroachment upon the ordinary requirement of mens rea but it is equally for the courts to repel any invasion of that historic and elementary requirement of a crime unless it be entirely clear that an offence of strict liability has been in fact created. In the case of s. 42(2) (c) (i) of the Immigration Ordinance we find no such clarity of intention.

16. That is of no moment in regard to the case before us since there was evidence to show beyond reasonable doubt not only possession of the items charged but knowledge of the forgeries or alterations. There being however, no such knowledge and no opportunity for acquiring such knowledge in the case of Mohd. Daraiz ⁽¹⁾ we must conclude that Mr. Daraiz was wrongly convicted and that his conviction was wrongly upheld as a result of the case stated. Mr. Daraiz pursued his remedies so far as they went but they did not include a right of appeal to this Court from the finding in the case stated and it is only obliquely, by reason of the appeal in the present case, that this Court has had the opportunity of considering Daraiz which case should not be followed.

17. We have welcomed this opportunity of considering a vexed area of the law and would only add that it may be that the Crown will now wish to consider the question of pardon in the Daraiz case.

Representation:

F. Eddis (King & Co.) for 1st appellant

F. Eddis (Tong & Ip) for 2nd appellant

D. Little for Crown/respondent.

(1) C.A. No. 303 of 1976

(2) [1975] H.K.L.R. 271

(3) [1938] 1 K.B. 506

(4) [1895] 1Q.B. 918

(5) [1970] A.C. 132

(6) [1969] 2 A.C. 256

(7) [1947] 175 LT 306, 307.