Lee Fu Yuen and Another v. The Queen

Case No.CACC 825/1978[1978] HKLR 522

Court

Court of Appeal

Date27 Oct 1978

Judge—

Case Document

100%

CACC000825/1978

IN THE SUPREME COURT

	Criminal Appeal
	1978 No. 825
	1978 No. 862
	1978 No. 863

BETWEEN
	LEE FU YUEN	Appellants
	CHEUNG PING YIN
	and
	THE QUEEN	Respondent

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Coram: Li, J. in Court

Date of Judgment: 27th October, 1978

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JUDGMENT

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1. The two Appellants in these three appeals were convicted of offences for contravening Regulation 63(1) of the Miscellaneous Licences Regulations for having employed persons whose age were under 18 years old. The circumstances leading to their conviction were practically identical. The only difference was that the Appellant CHEUNG Ping-yin in Criminal Appeals No. 862 and 863 of 1978 was convicted twice on separate occasions and the Appellant LEE Fu-yuen was convicted once.

2. Before the trial Magistrate the charges were read and explained to the respective Appellants on each occasion. The Appellants pleaded guilty. One more slight difference was that in Appeal No. 825 of 1978, LEE Fu-yuen, when first charged before the Magistrate, indicated he did not know the girl was under 18. Be that as it may, at the outset of the hearing when they were charged, they pleaded guilty. The facts were then read out to them that on the material day the police visited the dance hall and found a girl to be under 18 years old. The Appellants then admitted the fact. In mitigation, on each occasion, the Appellants said they had no knowledge that the girl in question was under 18 and that the girl had produced identity card to them which belonged not to the girl herself but to another girl. In one instance, it was on record that the photograph in the identity card had a marked resemblance to the girl that was found in the premises, namely, the dance hall. Thus on each occasion in mitigation the Appellants told the learned Magistrate that they had no knowledge as to the girl's age and that their knowledge was falsely induced by the girls having produced identity cards not belonging to themselves but either belonged to their sisters or a friend who had a marked resemblance with the girls.

3. The same ground of appeal was lodged, namely, that at the time of the plea there was a mistake in law in that the then legal representative of the Appellants was under the mistaken impression that the offence with which the Appellants were charged was an absolute offence. For this reason, it is contended that the facts as disclosed by the Appellants when they pleaded in mitigation that they did not know the girl's age clearly showed that they had no guilty knowledge of the offence. For this reason it is contended that their pleas on each occasion were equivocal. Leave was granted to appeal out of time by the learned Magistrate. Counsel for all three Appellants asks me to treat the three cases as identical for the purposes of this appeal. Learned counsel for the Crown agrees that is so because the same principle is involved in all three cases.

4. As I said, the Appellants were charged under Regulation 63 of the Miscellaneous Licences Regulations. Paragraph (1) of Regulation 63 reads:-

"No person under the age of 18 years shall be employed in the premises."

Regulation 17 of the said regulations provides:-

"Any person who contravens any of the provisions of Regulation 63 commits an offence and is liable to a fine of $1,000 and to imprisonment for 6 months."

Thus the whole question as to whether the plea being equivocal or not depends entirely on the question whether this offence that has been created by the regulations is an absolute offence or whether mens rea is a necessary ingredient in order to constitute the offence.

5. Learned counsel for the Appellants has brought my attention to a case which I have decided some weeks ago: the case of TAM Wing-him v The Queen in Criminal Appeal No. 639 of 1978. That was appeal against conviction of an offence under the Dutiable Commodities (Liquor) Regulations, Chapter 109. A person was found employed in a premises by a visiting police party and found that the girl was employed there. The circumstances were rather similar, albeit, that the Appellant in that case was charged under a different regulation, namely, Regulation 29, paragraph (1)(a) of the Dutiable Commodities (Liquor) Regulations which provides:-

" No licensee shall employ, or permit the employment of, on or about the licensed premises, or in connexion with the business carried on therein--

(a)

at any time any person under the age of fourteen years;"

In that case, the point that mens rea was a necessary constituent of the offence was readily conceded by learned counsel for the Crown; and thus the question of mens rea in such offences was never before me. That case was decided simply and purely on questions of fact. However, learned counsel in that case did direct my attention to the case of Sweet v Parsley showing the principle upon which statutory offences are to be construed. Learned counsel for the Appellants also directed my attention to the case of Sharifudin v The Queen in Criminal Appeal No. 17 of 1977 This case was cited to illustrate how, in construction of a statutory offence, the normal and correct view is to construe the statute in such a way that mental element is always a necessary ingredient in an offence unless there is express provision in the statute to make it abundantly clear that the mental element is dispensed with.

6. Learned counsel for the Crown, on the other hand, contends that insofar as the record is concerned, it is shown that the Appellants on each occasion clearly pleaded guilty. There was no qualifying word in their plea. However, he did not stress this argument too far. As I have already observed in the case of LEE Fu-yuen in Appeal No. 825 of 1978, he did at the very beginning, when he was brought before a Magistrate, said that "I thought she" - meaning the employee - "was over 18." Learned counsel for the Crown did not lay too great an emphasis on this point and he was prepared to argue the case solely on the question that the offence so created by Regulation 63 was an absolute offence.

7. Perhaps I should also observe that from my own experience and from what I have learnt in the past that a Magistrate normally caused a plea to be read and explained to the accused and a plea was taken. When that was done the facts relating to the offence were also read and explained to the accused as was also done in this case. When the Appellants who pleaded guilty and admitted the facts the Magistrate would convict. The learned Magistrate is not functus officio unless and until sentence has been passed. Even when the plea in mitigation reveals that an offence has not been committed the learned Magistrate, was still in a position, if he thought fit, if he saw any justification, to reverse a plea of guilty to one of not guilty and enter a plea of not guilty. If the Magistrate considered that the offence charged was not one of an absolute offence then he would, and I think he should, have entered a plea of not guilty for the Appellants at the time. In the present case the Magistrate is not to blame. Nor do I blame the then legal adviser of the Appellants. The question whether an Ordinance creates an absolute offence or not, is by no means an easy one. In any event, there is that much to commend that the learned Magistrate, in all fairness and justice, granted leave to appeal out of time. The question for me to decide at this stage is whether the offence so created by Regulation 63 is an absolute offence. I repeat, again, that is by no means an easy question. Suffice it to say there are a host of conflicting decisions in England on such a question. I believe even recently there have been conflicting decisions in this court, but learned counsel for the Crown concedes that the normal principle of construction is that mens rea is always regarded as part of the constituent of a statutory offence. However, he says, "Of course there are exceptions from time to time." To that extent I entirely agree with him. Thus in the case of Sharifudin v The Queen, Mr. Justice Pickering, Justice of Appeal, in the Appeal Court said at page 4 of the transcript:-

" The learned judge in Mohd. Daraiz, whilst relying upon Warner v the Metropolitan Police Commissioner appeared to be aware that between that case and that of Sweet v Parsley 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 itself.
	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 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 suspect that there was anything wrong therewith, yet because perfume and drugs 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. 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 in justice. The decision in Warner 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.
	We turn to the dicta in Sweet v Parsley upon which we rely. At page 149 Lord Reid, having described the conviction of Miss Sweet as 'obviously unjust', considered it necessary to amplify what he has said in Warner 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 absolute 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 clear 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. '"

8. Perhaps it is convenient at this juncture to read yet another passage in Lord Reid's judgment which is reported in 1970 Appeal Cases, 132, at page 149 in which he 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."

9. An older case of the same principle is to be found in the case of Sherras v De Rutzen reported in 1895, 1 Q.B. 918. There was an offence created under subsection (2) of Section 16 of the Licensing Act in 1872 which provides as follows:-

"If any licensed person

	(1)	Knowingly harbours or knowingly suffers to remain on his premises any constable during any part of the time appointed for such constable being on duty ... or
	(2)	Supplies any liquor or refreshment whether by way of gift or sale to any constable on duty unless by authority of some superior officer of such constable,

he shall be liable to a penalty ..."

Thus in that case, one observed that whereas in subsection (1) of Section 16 of the Act the word "knowingly" was inserted, whereas in subsection (2) the word "knowingly" was deliberately omitted by the Legislature. Similarly, in the present case, in Regulation 63, the provision in paragraph (1) has deliberately omitted the word "knowingly" or "permitted". It simply provides that:-

"No person under the age of 18 years shall be employed in the premises."

Whereas in paragraph (2) of Regulation 63, it provides that: -

"No person under the age of 16 years shall be permitted to be present, at any time when the public are not excluded from the premises, in any part of the premises available to the public."

In paragraph (2) of Regulation 63, the word "permitted" certainly indicated that a mental element is required whereas in paragraph (1) of Regulation 63, there is no indication one way or another. The question whether the word "knowingly" is to be read in the regulation or whether any mental element is to be read into that paragraph (1) gives rise to such difficulty.

10. There are very similar features between the present case and Sherras' case because even learned counsel for the Crown concedes that the legislation regulating publicans and liquor licences are very similar to the regulations that regulate dance halls. In the case of Sherras v De Rutzen, Mr. Justice Day said in a very short judgment:-

	"I am clearly of opinion that this conviction ought to be quashed. This police constable comes into the appellant's house without his armlet, and with every appearance of being off duty. The house was in the immediate neighbourhood of the police-station, and the appellant believed, and he had very natural grounds for believing, that the constable was off duty. In that belief he accordingly served him with liquor. As a matter of fact, the constable was on duty; but does that fact make the innocent act of the appellant an offence? I do not think it does. He had no intention to do a wrongful act; he acted in the bona fide belief that the constable was off duty. It seems to me that the contention that he committed an offence is utterly erroneous. An argument has been based on the appearance of the word 'knowingly' in sub-s. 1 of s. 16, and its omission in sub-s. 2. In my opinion the only effect of this is to shift the burden of proof. In cases under sub-s. 1 it is for the prosecution to prove the knowledge, while in cases under sub-s. 2 the defendant has to prove that he did not know. That is the only inference I draw from the insertion of the word 'knowingly' in the one sub-section and its omission in the other
	It appears to me that it would be straining the law to say that this publican, acting as he did in the bona fide belief that the constable was off duty, and having reasonable grounds for that belief, was nevertheless guilty of an offence against the section, for which he was liable both to a penalty and to have his licence indorsed."

11. Drawing a similar parallel in the present case, one may say that but for the showing of an identity card, like the removal of the armlet, the Appellants would have no means of identifying the girl or knowing that the girls were over 18 or under 18. Although the Appellants accepted the identity cards as genuine because of the resemblance from the pictures and therefore believed the girl to be over 18. That is very similar to the publican in the English case who saw the police officer and thought that the officer was off duty.

12. As to the burden of proof, one must remember that the burden of proof is capable of interpretation in two different ways. One is the general and legal burden of proof, that always remains on the Prosecution. The other which may shift is rightly or wrongly called "evidential proof" the burden of evidential proof. This has been clearly explained in Professor J. Ll. J. Edwards' book on Mens Reas in statutory offences. Having reviewed the authorities on the mental element as required by various statutes in the absence of the word "knowingly" and having referred to the case of Sherras v De Rutzen, he wrote this:-

	"This examination of the authorities, it is submitted, points to the following conclusions. First, where, as in R. v Cohen, the legislature has required the defendant to discharge a certain onus of proof, any reference to the shifting or altering of the burden of proof is concerned with the legal burden of proof. Secondly, where, as in Reynolds v Austin reference is made to the shifting of the burden of proof, if what is intended to be expressed is the shifting of the provisional burden, no occasion exists for criticism. But when it is seen that the language used is not materially different from that used in R. v Cohen it is not surprising to find it interpreted as the shifting of the legal burden of proof. Thirdly, so far as the judgment of Day, J., in Sherras v De Rutzen or any other judgment is intended to lay down that the absence of the word 'knowingly' in an offence ipso facto affects the legal burden of proof, it infringes the irrefragable rule that the legal burden of proving the guilt of the accused rests upon the prosecution and cannot be altered except by express statutory provision. There is, therefore, no justification for the introduction or subsequent application of such a doctrine.
	It will be seen that such divergence of opinion as exists is due to the unfortunate omission of any indication as to which particular sense of burden of proof is intended. Perhaps Devlin, J. 's expression of doubt as to the accuracy of the rule as stated in Sherras v De Rutzen will help in drawing attention to a practice which has nought to commend it."

13. I respectfully adopt that opinion and I say that when the statute is silent or ambiguous, one must, as Crown counsel conceded, read to the statute that mens rea is always required.

14. When there is a clear provision in the statute creating the offence that mental element is not one of the necessary ingredients of the offence created, it doesn't mean that the accused must conclusively be presumed guilty once certain facts are proved. It is still open to the accused to refute and to rebut such presumptions and the burden of proving or rebutting such presumptions is not as heavy as that of the Prosecution. When the statute creating the offence which is completely silent as to whether mental element is required the practice, if I understand the case of Sweet v Parsley and Sherras v De Rutzen correctly is that the requirement of mens rea is always read into the statute. The presence or absence of any word "knowingly" is of very little significance. There are, of course, other elements to be taken into consideration. One must construe the statute or the regulations as a whole and find out whether mental element is not required.

15. It is contended by learned counsel for the Crown that the court is more likely to conclude that the legislature intends to impose strict liability or absolute offence where the legislation is directed to a particular class of persons engaged in the sphere of activities which are subject matter of the legislation and who are in a position to take steps to prevent contravention and that the present case is one of the cases. To this I have only to refer to the case of LIM Chin-aik v The Queen reported in 1963 Appeal Cases, 160. I only need to read the headnote. In that case, a person who remained in a certain territory without knowing that his permit to stay had expired was held not to be guilty of any offence under the Immigration Law of the territory. This is an offence under Section 6 of the Immigration Ordinance in 1952 in the State of Singapore. Quashing the sentence, the Privy Council held that:-

"There is a presumption that mens rea or knowledge of the wrongfulness of the act is an essential ingredient of 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. Here, first, the sense of the language in question required, for the commission of a crime thereunder, mens rea as a constituent of such crime, or at least there was nothing in the language used which sufficed to exclude the ordinary presumption. The absence of the word 'knowingly' or the phrase 'without reasonable excuse' from section 6(3) was not sufficient to prevail against the conclusion which the language as a whole suggested. Secondly -with regard to the inference to be drawn from the subject-matter with which the Ordinance dealt - where it could be shown that the imposition of strict liability would result in the prosecution and conviction of a class of persons whose conduct could not in any way affect the observance of the law then, even where a statute was dealing with a grave social evil, strict liability was not likely to be intended. Here there was nothing that the appellant could possibly have done so as to ensure that he complied with the regulations - it would not, for example, have been practicable for him to make continuous inquiry to see whether an order had been made against him."

16. In the present the Appellants could well have made enquiries. Having been shown the identity cards which appeared to be normal it was reasonable for the Appellant to accept them as genuine and correctly stated the age of the girls. Even if the Appellants were to make further inquiry that was no way to find out the falsity of the identity cards.

17. Lastly, it is argued that the court is entitled to have regard to the penalties. It is said that under the penalty imposed or provided for by Regulation 17 of the regulations, $1,000 fine and six months' imprisonment is not entirely out of line with other offences of strict liability. My attention has been drawn to a certain regulation in the same set of regulations both by learned counsel for the Crown and by learned counsel for the Appellants. Paragraph (2) of Regulation 7 reads:-

"Upon any breach of the Ordinance or any regulation or condition of a licence the licensing authority may in his discretion peremptorily revoke the licence, whereupon the same shall forthwith cease to be valid."

In other words, the penalty that was provided for in Regulation 17 is not the only penalty. The penalties in Regulation 17 might well be in line with statutes creating absolute offences and providing the same scale of penalty. However, there is Regulation 7. A person who is convicted even once might have his licence revoked. That is a much heavier penalty. It cannot be said as that the penalty for the offence against Regulation 63 is the same as the penalty prescribed for other absolute offences.

18. I find that it is difficult to differentiate the type of evil to see young girls being lured into a licensed bar, what is commonly known in Hong Kong as the "girlie bar", and that of young girls being lured to a dance hall. The type of social evil is the same. Thus I do not see any difference between, say, an offence under the Dutiable Commodities (Liquor) Regulations and the offences under the Miscellaneous Licences Regulations. In one set of regulations, learned counsel for the Crown conceded that mens rea is a necessary ingredient of the offence, namely, in the Dutiable Commodities (Liquor) Regulations. I do not see why the offence created by Regulation 63 of the Miscellaneous Licences Regulation should be different.

19. Having regard to the authorities of Sherras v De Rutzen, Sweet v Parsley and the case in Criminal Appeal No. 17 of 1977, I have no hesitation in holding that the offence created by paragraph (1) of Regulation 63 is not an absolute offence and that mental element or mens rea is a necessary constituent of that offence.

20. Having come to that conclusion, I am of the opinion that had the learned Magistrate known at the time - and I am not blaming him for not knowing having said that it is by no means an easy matter - I am certain the learned Magistrate would then have entered a plea of not guilty on behalf of the Appellants before he proceeded to pass sentence. In view of the equivocal plea, that trial was a nullity, in the sense, there had been no trial at all.

21. I have been invited by learned counsel for the Appellants to quash the conviction simpliciter without making any further order. However, as the Appellants had been charged in the court below, there had been a trial which is a nullity. I am of the opinion that the only logical conclusion is to direct that the case be remitted to the learned Magistrate for a new trial in all three cases with an opinion of this court that is contained in my judgment.