Mohd. Daraiz v. Attorney General

Case No.CACC 303/1976

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000303/1976

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 303 OF 1976

-----------------

	MOHD. DARAIZ	Appellant
	and
	ATTORNEY GENERAL	Respondent

-----------------

Coram: The Hon. Mr. Justice Yang in Court.

Date of Judgment: 15th April, 1976

Immigration Ordinance - Possession of false passport - whether absolute offence.

-----------------

JUDGMENT

-----------------

1. This is an appeal by way of case stated.

2. The Appellant is a citizen of Pakistan. In 1969, he desired to come to Hong Kong. He approached a travel agent in Karachi for the purpose of purchasing an airline ticket and also for assistance in obtaining a passport from the authorities. Both the airline ticket and the 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 five years by the representative of the Pakistan Government in Hong Kong. The Appellant had kept the passport all these years except for a short period of four or five months in 1970 when it was retained by the Hong Kong Immigration Authorities. In December last year the Immigration Authorities here seized the passport and, after examination by an expert, concluded that the first six pages had been removed and replaced, and false entries had been made therein, presumably in 1969, in Karachi. The Appellant's evidence, which the learned trial magistrate accepted, was that he was unaware of the false nature of his passport. Indeed it would appear from those facts that the representative of the Pakistan Government also did not detect the falsity when they renewed the passport, nor did the Hong Kong Immigration Authorities, when they retained it in 1970.

3. By section 42(2)(c)(i) of the Immigration Ordinance, any person who has in his possession any forged, false or unlawfully obtained or altered travel document, entry permit or re-entry permit shall be guilty of an offence. On the interpretation of this section, and also on the authority of Chajutin v. whitehead (1938) 1 KB 506, the learned magistrate found the Appellant guilty of having in his possession a false passport. In Chajutin, the Appellant was in possession of a passport which purported to have been issued to him at Budapest. The passport had been altered. A charge was brought against the Appellant under Art. 18, para. 4(d) of the Aliens Order, 1930. The Divisional Court held that the requirements of that Article were imperative and that if a person was in fact in possession of an altered passport, it was neither necessary for the prosecution to prove guilty knowledge of the alteration nor open to the defendant to secure acquittal by proof that he did not know, and had no reason to suspect, that the passport had been altered.

4. The question of law which arises for the opinion of this court is whether the learned trial magistrate was correct in finding, upon a construction of section 42(2)(c)(i), that liability under that section is absolute.

5. Before considering the question, it would be approrpiate to quote the following passage from Smith and Hogan on Criminal Law, 2nd ed., at p.59:

"Crimes which do not require intention, recklessness or even negligence as to one or more elements in the actus reus are known as offences of strict liability or, sometimes, 'of absolute prohibition'. The latter term is somewhat misleading in so far as it suggests that an accused whose conduct has caused an actus reus will necessarily be held liable. It is common to say that 'no mens rea' need be proved in the case of these offences. This is inaccurate. Prince is acknowledged to be the leading case of strict liability; yet, as we have seen, to secure a conviction of the offence in question, it must be proved that D intended to take a girl out of her father's possession without his consent. The fact is that an offence is regarded - and properly regarded - as one of strict liability if no mens rea need be proved as to a single element in the actus reus. The single element will usually be one of great significance; but it by no means follows that mens rea should not be required as to the remaining constituents of the offence. Thus, on a charge of selling meat unfit for human consumption, it is unnecessary to prove that D knew that the meat was unfit; but it probably must be proved that he at least intended to sell meat. Liability is thus not 'absolute' and the term 'strict liability' will be preferred ........"

6. It will be recalled that in R. v. Prince (1875), L.R. 2 C.C.R.154, the accused took a girl out of the possession and against the will of her father and mother. He knew he was doing this; but, as the jury found, he believed her statement that she was eighteen and his belief was reasonable, for she looked very much older than sixteen. In fact she was under sixteen, the accused therefore brought about the actus reus of the crime of taking an unmarried girl under the age of sixteen out of the possession and against the will of her parents. He was not even negligent, let alone reckless or intentional as to the girl's age. In spite of his blameless inadvertence as to this important circumstance in the actus reus, he was convicted.

7. In the case of possession, the term itself must of necessity connote knowledge of some sort, though the precise extent of that knowledge is a matter on which opinions may differ. The requirement of a mental element in cases of possession was considered by the Supreme Court in Canada in Beaver v. The Queen (1957) S.C.R. 531, 118 Can. C.C. 129. There the accused was charged under section 4(1)(d) of the Opium and Narcotic Drug Act, 1952, with having possession of a drug. The accused said in defence that he believed that the package he had, which in fact contained morphine, only contained milk sugar and that he represented it as containing drugs in order to defraud the purchaser. Cartwright, J., in delivering the judgment for the majority, observed that the essence of the crime is the possession of the forbidden substance and in a criminal case there is in law no possession without knowledge of the character of the forbidden substance. Fauteux, J. however said in his dissenting judgment that the question is not what is the meaning ascribed to the word possession in civil or in criminal cases, at Common Law or under statutory laws, but what is the meaning of the words under the Act. Whilst Cartwright, J., held that section 4(1)(d) did not create an absolute or strict liability, Fauteux J., followed Chajutin. In comparing the wording of section 17 in the same Act, Fauteux, J., had this to say (at p.149):

"Furthermore, and if it is argued that knowledge is of the essence of unlawful possession under both s.4(1)(d) and s.17, then one is at a loss to understand why Parliament should have, in the latter section, provided for a defence resting on the proof of lack of knowledge. A like interpretation of s.17 strips this exculpatory provision of any meaning and effect. The language of the two sections can only be rationalized, I think, by interpreting s.4(1)(d) as meaning what it says, i.e., as creating an absolute prohibition, and by interpreting s.17 as extending the meaning of s.4(1)(d), i.e., this absolute prohibition, to the circumstances described in s.17, with however, and only in such circumstances, a defence resting on the proof of lack of knowledge."

8. A similar comparison may be made with some sections in the Immigration Ordinance. Sec. 42(1) provides that any person who makes or causes to be made in certain specified circumstances any statement or representation which he knows to be false or does not believe to be true shall be guilty of an offence. Sec. 44 provides that any person who without reasonable excuse knowingly contravenes some of the provisions in the Ordinance shall be guilty of an offence. By Sec. 45, where a person is convicted of an offence under Sec. 44 consisting of a contravention of Sec. 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 Sec. 44. Clearly in those sections, mens rea is required. In Sec. 42(2)(c)(i), neither the word "knowingly", nor any other words showing a similar import, appears. I must therefore take the section as I find it, and not read into it any qualifying word or words which the Legislature has thought fit to omit: see Lord Hewart, C.J. in Chajutin, at pp. 509-510.

9. Applying the ordinary rules of construction it would seem obvious that the different wording of Sec. 42(2)(c)(i) as compared with the other sections in the same Ordinance referred to above must indicate that the section creates an "absolute offence" or an offence of strict liability. If the word "knowingly" is used, then mens rea as to all the elements of the actus reus is usually required. But in sections where the word is not used, then offences of strict liability are probably intended. Day, J., however reached a somewhat different conclusion in Sherras v. De Rutzen [1895] 1 QB 918. In that case, the accused was charged with supplying liquor to a constable on duty, contrary to s.16(2) of the Licensing Act 1872. The policeman was not wearing his armlet which, it was admitted, was an indication that he was off duty. The accused, who was in the habit - quite lawfully - of serving constables in uniform but without their armlets, made no enquiry and took it for granted that the policeman was off duty. Section 16(1) of the Act made it an offence for a licensee knowingly to harbour or suffer to remain on his premises any constable on duty. Section 16(2) did not include the word "knowingly". Yet the accused's conviction was quashed. DAY, J., said (at p.921) that the only inference to be drawn was that under s.16(2) the defendant had to prove he had no knowledge. With great respect, this interpretation is tantamount to a departure from the plain wording of the statute, or, as Lord Hewart, C.J., put it in Chajutin, a re-writing of the section (see also Warner v. Metropolitan Police Commissioner, infra, per Lord Pearce, at p.303). WRIGHT, J., however made no attempt to reconcile the two sub-sections, contenting himself with pointing out (at p.923):

"If guilty knowledge is not necessary, no care on the part of the publican could save him from conviction ... since it would be as easy for the constable to deny that he was on duty when asked, or to produce a forged permission from his superior officer as to remove his armlet before entering the public house."

10. Wright, J., also said (at p.921):

"There is a presumption that mens rea, or evil intention, or knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered."

11. The issue in the present case is whether that presumption has been displaced.

12. The matter was fully discussed by the House of Lords in Warner v. Metropolitan Police Commissioner (1969) 2 A.C. 256. In that case, a parcel found in a van driven by the accused contained a prohibited drug. He was charged with having drugs in his possession contrary to Sec. 1(1) of the Drugs (Prevention of Misuse) Act, 1964, the provisions of which are similar to the Canadian Act in Beaver. The accused said that he believed that it contained scent. As far as I am able to ascertain, the majority of the House of Lords held that the accused, though undoubtedly in possession of the parcel, was in possession of its contents if all the following conditions were satisfied: (i) the accused believed the contents were scent and not drugs; (ii) scent and drugs are different in kind and not merely in quality; (iii) the accused did not have a reasonable opportunity to ascertain the contents of the parcel; and (iv) he did not suspect that there was anything wrong with the contents of the parcel. If the accused were proved to be in possession then no other element, mental or otherwise, need be proved. It may therefore be argued that if the jury were satisfied that any of these conditions was not fulfilled, then the accused would apparently be in possession.

13. Condition (ii) was explained by Lord Pearce in Warner (at pp. 305 - 306):

	"Lord Parker C.J. (Lockyer v. Gibb [1967]. 2 Q.B. 243, at p.248) was right (and this is conceded by both sides) in taking the view that a person did not have possession of something which had been 'slipped into his' bag without his knowledge. One may, therefore, exclude from the 'possession' intended by the Act the physical control of articles which have been 'planted' on him without his knowledge. But how much further is one to go? If one goes to the extreme length of requiring the prosecution to prove that 'possession' implies a full knowledge of the name and nature of the drug concerned, the efficacy of the Act is seriously impaired, since many drug pedlars may in truth be unaware of this. I think that the term 'possession' is satisfied by a knowledge only of the existence of the thing itself and not its qualities, and that ignorance or mistake as to its qualities is not an excuse. This would comply with the general understanding of the word 'possess'. Though I reasonably believe the tablets which I possess to be aspirin, yet if they turn out to be heroin I am in possession of heroin tablets. This would be so I think even if I believed them to be sweets. It would be otherwise if I believed them to be something of a wholly different nature. At this point a question of degree arises as to when a difference in qualities amounts to a difference in kind. That is a matter for a jury who would probably decide it sensibly in favour of the genuinely innocent but against the guilty.
	The situation with regard to containers presents further problems. If a man is in possession of the contents of a package, prima facie his possession of the package leads to the strong inference that he is in possession of its contents. But can this be rebutted by evidence that he was mistaken as to its contents? As in the case of goods that have been 'planted' in his pocket without his knowledge, so I do not think that he is in possession of contents which are quite different in kind from what he believed. Thus the prima facie assumption is discharged if he proves (or raises a real doubt in the matter) either (a) that he was a servant or bailee who had no right to open it and no reason to suspect that its contents were illicit or were drugs or (b) that although he was the owner he had no knowledge of (including a genuine mistake as to) its actual contents or of their illicit nature and that he received them innocently and also that he had had no reasonable opportunity since receiving the package of acquainting himself with its actual contents. For a man takes over a package or suitcase at risk as to its contents being unlawful if he does not immediately examine it (if he is entitled to do so). As soon as may be he should examine it and if he finds the contents suspicious reject possession by either throwing them away or by taking immediate sensible steps for their disposal."

14. He went on to say. (at p.306):

"Again, if the meaning of the words 'unlawful possession' included articles which had been 'planted' on a man, or insinuated into his possession without his knowledge, that would be a very strong argument indeed against the offence being absolute. But since there is, in my opinion, some limited element of knowledge in the word 'possession' the force of that argument is lessened."

15. Then follows a most important explanation (at pp.307 - 308):

	"The Act forbids possession of these drugs. Whether he possessed them with an innocent or guilty mind or for a laudable or improper purpose is immaterial since he is not allowed to possess them. If he possessed them he is guilty. If a man has physical control or possession of a thing that is sufficient possession under the Act provided that he knows that he has the thing. But you do not (within the meaning of the Act) possess things of whose existence you are unaware. The prosecution have here proved that he possessed the parcel, but have they proved that he possessed its contents also? There is a very strong inference of fact in any normal case that a man who possesses a parcel also possesses its contents, an inference on which a jury would in a normal case be justified in finding possession. A man who accepts possession of a parcel normally accepts possession of the contents.
	But that inference can be disproved or shaken by evidence that, although a man was in possession of a parcel, he was completely mistaken as to its contents and would not have accepted possession had he known what kind of thing the contents were. A mistake as to the qualities of the contents, however, does not negative possession. Many people possess things of whose exact qualities they are unaware. If the accused knew that the contents were drugs or were tablets, he was in possession of them, though he was mistaken as to their qualities. Again if, though unaware of the contents, he did not open them at the first opportunity to ascertain (as he was entitled to do in his case) what they were, the proper inference is that he was accepting possession of them. (It would be otherwise if he had no right to open the parcel.) Again, if he suspected that there was anything wrong about the contents when he received the parcel, the proper inference is that he was accepting possession of the contents by not immediately verifying them. (This would, in my opinion, apply also to a bailee.)
	In the present case you may think that the difference between scent and tablets is a sufficient difference in kind to entitle the accused to an acquittal if on the whole of the evidence it appears that he may have genuinely believed that the parcel contained scent, and that he may not have had any suspicions that there was anything illicit in the parcel, and that he had no opportunity of verifying its contents. For in that case it is not proved that he was in possession of the contents of the parcel."

16. Warner was applied in R. v. Hussain [1969] 2 QB 567.

17. Edmund Davies, L.J., explained Warner in R. v. Marriott [1971] 1 All E.R. 595 (at p.597):

"Not all members of the House of Lords expressed themselves in precisely the same way, but for the purposes of this present appeal the result of Warner's case may broadly speaking and (we hope) with accuracy be stated in this way: if a man is in possession, for example, of a box and he knows that there are articles of some sort inside it and it turns out that the contents comprises, for example, cannabis resin, it does not lie in his mouth to say 'I did not know the contents included resin'. On the contrary, on those facts he must be regarded as in possession of it, and, if not lawfully entitled, would, therefore, be guilty of an offence such as that charged in the present case."

18. And to those words might be added the following qualification: "Unless the contents were something completely different in kind."

19. Warner was again considered by the House of Lords in Sweet v. Parsley (1969) 1 All E.R. 347. There the Divisional Court held that the accused was guilty of being "concerned in the management of premises used for the purpose of smoking cannabis" though she did not know and had no means of knowing that such smoking was taking place. The House of Lords however held that no offence was committed unless it was the purpose of the accused that cannabis should be smoked thereon. Though they reiterated what had been stated in Warner, it would appear that the House of Lords had changed their attitude to the question of strict liability. This case seems to susggest that any further expansion of strict liability will be discourage. (For two most lucid and enlightening discussions on the whole problem of strict liability and related topics, see Smith and Hogan on Criminal Law, 2nd ed., Chapters 6 and 7, and Professor Hogan's inaugural lecture entitled Criminal Liability Without Fault, 1969.)

20. In the recent case of Koon Pok-man v. The Queen (1975) HKLR 271, Li, J., reversed the decision of the magistrate, who, following Warner, convicted the accused of possession of dutiable liquor contrary to Sec. 17(6) of the Dutiable Commodities Ordinance. In his judgment, Li, J., held that Warner was decided on the special facts of the case, and also on the interpretation by the House of Lords that it is the intention of Parliament to provide an absolute prohibition. He said (at p.275):

''Having regard that the object of the Dutiable Commodities Ordinance was merely to amend the law relating to the taxation and control of liquors, and for purposes connected therewith, I am not able to agree to the proposition that the said Ordinance provide an absolute prohibition".

21. The real point for decision in that case was, it seems, whether the accused had successfully rebutted the presumption in Sec. 40 of the Ordinance, a provision which the Immigration Ordinance does not have, insofar as Sec. 42 (2)(c)(i) is concerned.

22. Though the facts in the present case are different from that in Warner, in my judgment the principles in that case are equally applicable here. This case may therefore be tested against the four conditions set out in Warner. On the facts, the answers will appear as follows: (i) the Appellant believed the pages in his passport were genuine and not false, (ii) genuine and false pages are different in quality and not in kind, (iii) the Appellant did not have a reasonable opportunity to check the pages, it being a task for the expert, and also because even the representative of his Government and the Hong Kong Immigration Authorities had failed to find anything wrong with the passport, and (iv) the Appellant did not suspect that there was anything wrong with the contents of the passport. On those answers, it appears that condition (ii) has not been fulfilled. The learned magistrate was therefore correct in finding that the Appellant was in possession, though his reasons for reacting the decision are not entirely the same as mine.

23. Construing the term "absolute liability" used by the learned magistrate in his question as strict liability in the sense propounded by the majority of the House of Lords in Warner, the answer to the question is yes.

24. The appeal is accordingly dismissed.

T.L. Yang

Representation:

Mr. Bellanto C.C. for Respondent

Mr. Y.C. Mok instructed by Hoosenally & Co. for Appellant