LAC 3143

CRIMINAL LAW
II
INSTRUCTOR’S NAME:

YM. RAJA RAZIFF YM. RAJA

SHAHARUDDIN

ASSIGNMENT:
The Position of Defence
of Mistake in Strict
Liability Cases

NO. NAME MATRIC NO.

1. MUHAMMAD KHAIRUDDIN BIN ABD LATIFF 1170607

TUTORIAL: TLB 4

SEM / YEAR: 6 / 3
SESSION:
2019/2020

Faculty of Shariah and Law

Answers:
Generally, if the victim is solely responsible for the crime perpetrated without demonstrating
the mens rea, a strict liability case is. Thus in the case, the aiming aspect of mens rea is
missing. This is the exception to the standard law of criminal liability that the defendant
needs to show actus reus and mens rea to create prima facie evidence. The victim is solely
responsible for criminal responsibility for the crime until it is proved that the offender
performed the act. There's no doubt the court would have erred in charging the convicted.

Moreover, the cases under strict liability do not require mens rea component, the defendant
which lift protection of error to dismiss the charge against him. To order to better clarify the
state of the error to limited liability situations, we first ought to look into the role of error in
the criminal code clause. Sections 76 and 79 state the protection of mistake. Section 76 states
that it is an offence because the crime was done by mistake of evidence, not a mistake in law,
and claims that it is bound by statute in good faith. Meanwhile, Section 79 mention nothing is
an offence if the act done by a person who is justified by law or by the reason mistake of facts
not mistake of law believed in good faith himself justified by law in doing it.

In addition, there are two forms of defence of mistake which is a mistake of fact and mistake
of law. Information error is a scenario where, in the event, the presence of actual stuff was
contradictory. This comes in because of the doer's lack of experience, awareness, and
carelessness. When an individual makes a de facto crime, the court must conclude there is no
possibility of the offender performing the act. The doer can't even be blamed for the
aforementioned crime. The mistakes needs to be real and frank though. A soldier, for
example, assumed that the act of shooting a crowd after his superior had obtained orders
shows the condition where he was constrained by the statute. No offence has been made. The
responsibility of establishing logical mistake rests on the convicted, relying on a combination
between probability and not without fair doubt. Furthermore, the court shall conclude that the
dimension of error is missing where the accused presented protection of error of evidence.

The second form of mistake is mistake of law . This arises due to lack of understanding of the
rules or miscalculating or misinterpreting the rule. The Penal Code does not admit violation
in law and can not be used for defense. It is because it presumes that any citizen understands
the law of the land. There is a Latin proverb meaning ignorantia legisla neminem excusat and
implies that the law's ignorance is not a shield against the offence.
For example, if A struck and hurt B, as A is being sued of assaults, he can not increase
protection as he does not realize whether it is a crime to attack or intentionally inflict harm.
This is not accepted by the court and A should be liable for the offence. The ground for
which the Penal Code does not recognize the inconsistency in law is that it would result in a
violation of the clause because persons who have performed offences will argue that they do
not realize whether it is an offence to be exempt from the punishment.

Consequently, defense of mistake in fact and mistake in law shall not be enforced in
situations in strict liability. The problem to be answered, though, is that the protection of
mistake should be included in situations of strict liability. This protection is inaccessible for
cases of strict liability due to the aim aspect which the court did not take into account.
Therefore, if the purpose was true or misguided doesn't matter, the perpetrator will be solely
responsible for the crime perpetrated by him.

The case in which the defense of mistake is not available in strict liability is the case of
Public Prosecutor v Osman bin Apo Hamid [1978] 2 MLJ 38, accusing the respondents of
carrying bags containing rice in the amount far exceeding the permitted amount. Each
respondents were confirmed to recognizing that they brought 130 bags of rice but refused
awareness of the supposed quantity required by the permit. The court found the judge, Abdul
Razak J, to be responsible. He claimed that this crime was, in his opinion, one of the
instances of strict liability. The mental element should therefore be negative, and only
physical acts will prove breach of the law. This said, it doesn't matter whether the perpetrator
realized that he was in violation of the law or falsely thought that he was obeying the statute,
he must suffer the repercussions of criminal action until he's actually guilty.

Additionally, in the case of Tan Khee Wan Iris v Public Prosecutor [1995] 2 SLR 63, the
appellant Iris Tan Khee Wan was a commercial amusement service supplier. She was first
convicted under section 18(1)(c) on 1 January 1994 for violation of the conditions of the
license. It was discovered, however, that the license expired on 31 December 1993. The court
then dismissed her on the basis that if no legal license exists, then there was no violation of
terms. On appeal, the judge ordered the prosecutor to amend the charge in section 18(1)(a)
for the provision of non-licensed service and returned it to the court. The defence attorney,
however, posed defence of mistake under Section 79 of the Penal Code, argued that the
complainant had in reality mistaken in thinking that after midnight her license was still valid.
The court acknowledged that there was a error made by the licensing officer because as of 1
January 1994 the purpose was the certificate that was to expire. However, on behalf of the
appellant the court conducted a test to confirm whether there was error of facts or not. Under
Section 79, the applicant must, in good conscience, conclude that it has a legitimate permit.
Good faith as specified in Section 52 of the Penal Code where proper care and consideration
must be provided. The court noted the applicant had observed the license anomalies but made
no move to question the licensing officer about it. The court then considered the complainant
did not assumed in good conscience that her license was legitimate. Hence the appellant 's
appeal was dismissed by the court held by it.

After that, in the case of Public Prosecutor v Teo Eng Chan [1988] 1 MLJ 156, involving
the accused in statutory rape, rape case which provided protection on the ground that they had
been in error of evidence in deciding the girl's permission. The accused was charged with
statutory rape and included a child who was then 14 years old and ten months identified as
Kay. This contributed to Teo's attempt to send Kay, with the other three, to the abandoned
quarry for sex with them. They approached Kay on her way back home from his place of
work and offered her a ride. She was then driven to a desolate quarry where she was told that
if she wanted to have intercourse with her they would assault her or take her clothes. She also
claimed that she had opposed their efforts, but they continued to surmount her.

Moreover, as described in the English trial, DPP v Morgan [1976] AC 182, the prosecution
counsel focused strongly on the principle of mistake. The majority in House of Lords holds
that if an accused claims in reality that the woman has consented, the accused is not liable
and would be exempt from the presumption of duty against him. Whether or not the assumed
one that contributed to the error was founded on fair basis is not a concern in this situation.

Besides, in the case of Jamaluddin Bin Hashim v Public Prosecutor [1999] 4 MLJ 1, the
victim was a contractor convicted pursuant to Section 375(g) with statutory rape teenage
child who was then twice 14 years old at home. The basic item to establish prima facie
evidence is that the girl's age at the period must be underage since, except with the approval
of Section 375(g), a sexual act with an underage woman is always deemed under the Penal
Code as rape. However, at that time, the prosecutor had failed to provide conclusive evidence
regarding the girl's age, and that was the defense counsel's utterly main argument that lacks
proof in the element required under that provision. Although the defence lawyer did not raise
defense on mistake of facts, but if it was the case, the court will still consider the error of
facts if the accused said he was mistakenly believed in good faith that the woman was over
16 years of age.

It is focused on the judge's decision in this case which claimed that many young girls
nowadays appear very confident and physically completely formed to be able to act as though
they have already achieved the majority level. But this is only the judge's mere opinion about
the situation and trend nowadays where young woman looks mature regardless of age. In the
light of law, because in this case the offender used mistake of evidence as a defense, it is
important to look at Section 79 which specified that the individual must assume in good faith
that the spouse is above the age of majority. That being said, it is fair to inquire for the
woman's age because it demonstrates that the man commits such act with proper care and
consideration to escape any criminal liability. In the case if the situation happens, that is the
application of mistake as defence.

As a conclusion, the only thing that can be proven by the plaintiff in the case of strict liability
is the dimension of actus reus or act perpetrated by the criminal and not the intellectual aspect
of mens rea required. It renders the mitigation of error permissible in the courts either in error
of reality or in error of statute. The court shall therefore assume the lack of wrongdoing
before the complainant shows that by calculation of probabilities. Therefore, relying on the
rules of Sections 76 and 79 of the Penal Code and the related agreed case law, it is
established that in cases of direct liability the protection of error is inaccessible. Therefore, if
the plaintiff succeeds in establishing the actus reus, the perpetrator will be solely accountable
for the crimes and will be found responsible for criminal negligence.