UNIVERSITI TEKNOLOGI MARA

CRIMINAL LAW 1
STRICT LIABILITY

PREPARED BY:








Question:
April 2008
Explain what an offence of strict liability is and discuss the two criteria that have been
developed by the courts in considering whether an offence is intended to be of strict
liability.





















Answer:
A strict liability offence is where the element of mens rea is absence. It is an
exception to the general rule whereby criminal act does not require any intention,
recklessness or which forms one or more elements of actus reus. In this situation,
accused can be found guilty despite there being no mens rea and there will be no
question that the court has erred in convicting the accused.
There a few offences of this strict liability, including the offences relating to the
preparation of food, possessing unlawful weapons and drugs, sexual intercourse with
minor and driving offences such as drink driving and speeding.
In the case of PP v Osman Bin Apo Hamid (1978), the respondents were found
carrying bags containing rice in the quantity far exceeding the amount specified in their
permit. All of them were detained and charged. Both respondents admitted to having
knowledge of the fact that they were transporting 130 bags of rice but they denied
having any knowledge as to the permitted quantity in their permit ie 80 bags only.
Court held that the offence is one of strict liability in which the mental element is
negative by the legislature. The legislature intended that the category of physical acts in
this nature must itself constitute an offence if only because the alternative would mean
that the apprehension of offences of this nature would be well high difficult if not
impossible.
In the case of Pharmaceutical Society of Great Britain v Storkwain Ltd (1986), the
respondent dispensed controlled drugs according to the prescription purported to be
signed by a Dr. Irani. The prescription was later found out to be forgery. The respondent
had acted dishonestly without fault and recklessness. It seems that forgery itself is
sufficient to fool the pharmacists in the absence of any short-comings on their part. The
court held that the offence was construed to be one of strict liability and criminal liability
accordingly ensued despite a complete absence of mens rea.
Likewise in Mohamed Ibrahim v PP (1963), the appellant was convicted under
the S 292(a) of the Penal Code for having in possession, for the purpose of sale, 65
copies of the book Tropic of Cancer, which is obscene material. He appealed against
the conviction on the ground that he could neither read nor write English, and he does
not know and has no means to know that the book is obscene.
The court held that the test of obscenity is this, whether the tendency of the
matter charged as obscenity is to deprave and corrupt those whose minds are open to
such immoral influences and into whose hands a publication of this sort may fall.
In cases of statutory rape, the age of the victim becomes the vital question and
not whether or not the victim has consented to having sexual intercourse with the
accused.
In addition, in the case of Dr. AN Mukerji v State (1969), It was said that there is
no question of whether or not there is consent for cases under this S375. Having
sexual intercourse with a girl below the age of 16 in India is rape, regardless of whether
yes or not there is a consent .
The criteria that have been developed by the courts in considering whether an
offence is intended to be of Strict Liability are:
1. Depends on the size of the penalty ie; the larger the penalty, the less likely
Strict Liability will be imposed
2. Depends on the wording of the Act there are several key words and
phrases that court look at in the statue to decide
3. The interpretation of these words-what decides whether or not a mens rea of
intention, recklessness or negligence is required