It has to be decided whether Ritz can raise the defense of mistake of fact as he was

charged with the offence of sexual exploitation of a child towards Luna. Generally, there are
two form of mistake in defense of one’s criminal act, which are mistake of fact and mistake of
law. The accused can raise the defense of mistake by referring to section 76 and section 79
of the Penal Code. A mistake of fact is an error as to the existence of any state of thing. It may
arise from an inadequate or a wrong information, forgetfulness, negligence or superstition.

There are few elements that need to be established for the defense of mistake of fact.
The defense of mistake of fact under section 76 and section 79 of the Penal Code require the
accused to prove on a balance of probabilities. The elements are whether he or she had been
induced by a mistake to commit the criminal act in question, the mistake was one of fact and
not of law, the accused mistakenly believed that he or she was bound or justified by law in
doing the criminal act and whether the mistake was believed by him or her in good faith.

The first element to be considered is that he or she had been induced by a

mistake to commit the criminal act in question. In this element, it is considered that an act
done by a person in certain circumstances will not be deemed as an offence by the reason of
mistake of fact occurs. An offence requires the proof of mens rea. However, if the intention or
a guilty mind to carry out that offence is led by a mistake of fact, the offence cannot be
established as one is influenced by the mistake of fact to do an act which results in an offence.
This is illustrated in the case of Tolson, where a woman who reasonably belief that her
husband has passed away, remarried and later discovered that her first husband is still in fact
alive, is charged with bigamy. The court in this case held that her action of remarry is caused
by mistake of fact and thus she is acquitted for her offence. By applying the principle laid down
in the case of Tolson to the current case of Ritz, he as the director of Prime Show
Entertainment Sdn. Bhd., was recruiting a new actress for his telefilm. Luna came for the
audition. However, at that time, Luna was only 16 years old, misrepresented herself as a major
as she looked older than her actual age. It can be seemed that the act of Ritz to contract with
Luna in filming the porn was induced by mistake of fact. Considering the fact of the case, Ritz
action is considered done in mistake since he truly believed that Luna was 23 years old and
Luna herself alone was adequate consented to act in the pornographic film. Therefore, Ritz
has fulfilled the first element in establishing the defence of mistake under Section 76 of the
Penal Code.

The second element is that the mistake was one of fact and not of law. Section
76 and 79 of the Penal Code require the accused’s mistake to pertain to a factual matter as
opposed to a legal one. Mistake of fact is concerning on the mistake to the existence of a
private right while a mistake of law is concerning on the mistake to the existing law. Mistake
of fact has been illustrated in the case of Chirangi v State of Nagpur, where the accused
mistakenly killed his son as believing that he was a tiger. The accused has suffered illness
that caused delusion. The accused was acquitted as he has committed a mistake of fact that
he justified he killed his son because he thought that it was not his son but a dangerous animal.
Similarly, in the case of Bonda Kui v King Emperor, a woman in the midnight saw a form
dancing in a state of complete nudity with a broomstick tied on one side and a torn mat around
the waist. She thought that it was an evil spirit and thus felled the thing to the ground. However,
it is discovered later that the thing was the wife of her husband’s brother. The court set aside
her conviction on the defense of mistake of fact. Applying the principles of these cases in the
case of Ritz, it is considered that Ritz mistakenly believed in fact that Luna is an adult and her
consent alone is enough in contracting such contract but only to later on discover that it is not.
Ritz has committed mistake of fact and thus the second element is established as there is a
mistaken of the fact of the case.

The third element of mistake of fact is justified by law. In order to succeed the
claim based on Section 79 of Penal code, the accused must have mistakenly believed that he
or she was justified by law to do the act. Such act was done in obeying the law or in conformity
with the law. This can be illustrated in the case of Abdullah v R, where the accused was
charged with statutory rape of the complainant who was under the age of 14. The appellant
contended that that he thought she was over 16. The judge ruled that the belief, if it existed
was immaterial, and he was convicted. Court held that he did would not be an offence had the
facts been as he supposed them to be, would be he justified by law?...an act only acquires its
criminal character by being forbidden by law. In the current case, Ritz, who has mistakenly
believed that Luna was 23 years old, thought that the contract between them was in
accordance with the law. Since Ritz act was induced by the misrepresentation of Luna, then
he is said to be justified by law because it was nothing against the law as he acted in obeying
the law. Therefore, the third element is satisfied.

The fourth element is that the mistake done must be in good faith. Sections 76
and 79 of the Penal Code require the accused to have ‘in good faith’ believed him to be bound
or justified by law in doing a criminal act. Section 52 of the Penal Code defines ‘in good faith’
in terms of ‘due care and attention’. The mental capacity and the intelligence of the accused
must be considered with the element of good faith.The mistake must be such that if the fact is
true as the accused had imagined of, no offence is committed by the person. Referred to the
case of PP v Zainal Abidin bin Ismail & 3 Ors, the court held that no guilty of rape was found
if an accused in fact believed that the woman had consented. In the case of State v Ram
Bahadur Thappa, the accused had attacked in good faith that he believed to be a ghost and
not a human and therefore he was justified by law. The court held that he can relied on section
79 as a defence even though it was shown that had he exercise extra care and attention; the
incident may have been averted. In the case of Ritz, his act can be considered as done in
good faith. This is because when Ritz contracted with Luna, he was acting in good faith by
offering the job with RM 5000. Hence, the fourth element for the defence of mistake is
established.

In the conclusion, since the element of mistake are fulfilled, Ritz can raise a defense
of mistake of fact if he is charged with those offences reported against him by Luna.