Gammon (Hong Kong) Ltd and Others v Attorney-General of Hong Kong [1985] AC 1 – Ss 40(2A)(b) and (2B)(b) Buildings Ordinance (Laws of Hong Kong 1981).
1) mens rea propositions: (1) presumption that mens rea required in criminal offence; (2) presumption particularly strong where offence “truly criminal”; (3) presumption displaced only if clearly, or by necessary implication, effect of statute; (4) presumption only displaced where statute concerned with issue of social concern such as public safety;
(5) even then, presumption stands unless strict liability promotes objects of statute by encouraging greater vigilance to prevent prohibited act.
2) does not follow that, if one subsection creates offence of strict liability, another must do so.
3) statute may be of little use in promoting public safety if requirement to prove knowledge.
- strict liability may behove the incompetent to stay away and the competent to act with proper care.
4) word “permitting” in statute did not by itself import mens rea in sense of knowledge of risk but did require that D had power to control whether actus reus committed.
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Related case digests
- Sweet v Parsley [1970] AC 132- S 5 Dangerous Drugs Act 1965.
1) presumption that offence requires mens rea. - absent clear indication in Act that offence intended to be absolute, necessary to go outside Act to establish intention of Parliament. - if offence reasonably capable of two interpretations, one most favourable to D must be adopted. - when considering offence of “truly criminal character” necessary to consider stigma of conviction and whether public interest requires D be prevented from proving lack of mens rea. - practice to recognise absolute offences in class of quasi-criminal acts; acts which in the public interest are prohibited under a penalty. 2) to be concerned in management of premises, used for a particular purpose, D must have knowledge of that use. - Nurse and Anor v Republic of Trinidad and Tobago [2019] UKPC 43 - Customs Act.
1) rebuttable presumption that mens rea ingredient of every offence. - absent clear indication that offence intended to be absolute, necessary to go outside Act to establish this was intention of Parliament. - interpretation most favourable to accused must be adopted. 2) serious penalties militate against offence being of strict liability. - but, weight to be given to penalties factor qualified in case of some regulatory offences. - severity of penalties may be intended to promote compliance with regulatory purpose. – such intent to be inferred only where D able to promote observance of regulations. 3) some offences, in same context, may require mens rea whilst others do not. 4) potential for unfairness to luckless victims weighs against strict liability. 5) strict liability may be warranted in public interest. 6) in deciding whether presumption of mens rea is rebutted, court must consider: (i) requirement for mens rea in other respects or other offences in same sections; (ii) severity of penalties and stigma of conviction, and (iii) importance in public interest of deterring false or careless declarations. - the public interest factor can outweigh the other two. 7) offence only imposes absolute liability if none of its elements requires mens rea. - James & Son Ltd v Smee [1955] 1 QB 78 - RTA.
- "uses"- "causes" - "permits". - an employer is "using" his vehicle whilst it is used by his employee on his business. - "permitting" by an individual or company involves a state of mind.