THE QUEEN v. LAU SAI WAI

Headnote

                Proof of mens rea is not necessary for an attempt to commit a statutory offence of strict liability.

IN THE COURT OF APPEAL

BETWEEN

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JUDGMENT

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Barker, J.A. :

1. This is an appeal by way of case stated from a decision of a Magistrate dismissing two informations against the Respondent.

2. The informations were as follow :-

Charge A - Attempting to export a prohibited article without a licence contrary to Regulation 2 of the Import and Export (Strategic Commodities) Regulations Cap. 60 as read with section 81(1) of the Interpretation arid General Clauses Ordinance Cap. 1.

 

3. The facts as found by the Magistrate may be stated shortly. On the 20th April, 1984 Customs Officers intercepted the Respondent at Kai Tak Airport after he had checked in two cartons of baggage which he intended to take to Shanghai. One carton contained a Victor computer system and the other a Taxan display monitor. There was no valid export licence covering the export of either of these items, but the Respondent did not know this. At the time when he was stopped, the Respondent had been issued with a flight boarding pass and the computer and the display monitor had already been placed on a conveyor belt ready to be taken to the aircraft.

4. It was accepted by both sides, rightly in our view, that the full offences, i.e. exporting goods for which a licence is required without such a licence, are ones of strict liability. It is the Respondent's submission, which succeeded before the Magistrate, that because he was charged merely with the attempt mens rea had to be proved and this had not been done because of the finding that the Respondent did not know that no licence had been obtained for either of the two articles. Hence this appeal.

5. The case has been researched with commendable diligence, especially by junior Counsel for the Crown and we have been greatly assisted by Counsels' industry. It is out of no disrespect for their efforts that we feel able to state our conclusions in a brief compass.

6. It is clear beyond a peradventure that the Respondent had committed the actus reus, necessary to constitute the attempt. He had done all within his power to export the goods, and the only reason why the offence was not completed was because of the intervention of the Customs officer. It is conceded that no mens rea is required on a charge of exporting. Is mens rea required for the attempt?

7. There are dicta, for example in Gardner v. Akeroyd⁽¹⁾ and Reg. v. Monan⁽²⁾, which suggest that an attempt to commit an offence of strict liability does require mens rea. It is unnecessary for us in the present case to pronounce on the correctness or otherwise of these statements'; for the following reasons.

8. Section 81(1) of the Interpretation and General Clauses Ordinance Cap. 1 provides as follows:-

"A provision in any Ordinance which creates or results in the creation of an offence shall be deemed to include a provision that an attempt to commit such an offence shall itself constitute an offence which may be dealt with and punished in like manner as if the offence had been committed."

9. It was submitted to us on behalf of the Respondent that "dealt with" means no more than, for example, the disposal of exhibits. We cannot agree. "Dealt with" is a wide expression and must in our view embrace the disposal of the whole case apart from punishment on conviction, which is expressly provided for in the subsection.

10. Furthermore, section 81(3) provides as follows :-

"Nothing in this section shall affect any law relating to attempts to commit offences at common law."

11. This subsection clearly points to a distinction between an attempt to commit a statutory offence and one at common law.

12. In our view an attempt to commit a statutory offence of strict liability does not require mens rea. To relate this conclusion to the facts of the present case, all that the prosecution had to prove was that the Respondent attempted to export the goods without a licence. It was not incumbent on the prosecution to prove that the Respondent knew that a licence was required or that one had not been obtained.

13. It will be apparent from the foregoing that we have reached our conclusion solely because of the statutory provisions of the Laws of Hong Kong. It may be that in other jurisdictions with no or no similar provisions, courts may come to different conclusions.

14. The questions upon which our opinion was sought and our answers thereto are accordingly as follow :-

 

Answer : None.

 

 

Answer : None.

 

 

Answer : No.

 

15. As to c) the Crown informed the Court that in the event of  the Appeal being successful, they would not ask that the case be sent back to the Magistrate nor would they seek a conviction. This, in our view, was a proper attitude to adopt. Accordingly we allow the appeal but do not record a conviction.

Li, V.-P.:

16. I have the advantage of reading my brother Barker's draft judgment with which I entirely agree. However, there is a subsidiary matter on which I would like to make an observation.

17. Let me make haste to say that there is no criticism against both of the charges being preferred in the present case. My comment is on the provision in Reg,. 4 of the Import and Export (General) Regulations, Cap. 60, upon which charge B was founded.

18. This Regulation provides:

19. Reading the Second Schedule one observes item 2 in the second column covers "electrical products (powered by main supply)" and in the third column "all countries". My interpretation of the provisions means that taking in or out of Hong Kong any electrical appliance powered by main electricity supply without a licence constitutes an offence attracting the heavy penalty prescribed in Reg. 4(2).

20. The aforesaid columns were inserted in the Second Schedule by the Import and Export (General) Regulations (Amendment of the Second Schedule) Order 1973. No explanatory note was attached to the said Order. Thus the purpose for which the proper authority thought fit to introduce such a draconian law is unknown.

21. It appears to me that such legislation without known reason is too far-reaching. It is not for me to speculate why the Order should be made. The blanket provisions merely serve to lend support to the criticism that the law is an ass. Whatever was the reason it looked like cracking a peanut with a sledge hammer. Day in and day out citizens of Hong Kong have brought in and taken out electrical appliances. Practically all airlines carry in and out of Hong Kong electric shavers for use of passengers. I wonder how many of them realise they are required to have a licence to do so.

22. Whether the proper authority enforces Reg. 4 sparingly is neither here nor there. This is so because in a civilised and democratic city the rights and duties of its citizen are regulated by law and are not dependent upon the benevolence of its civil servants. To protect the citizens the law-making body must be vigilant and sensible. Afterall the courts can only administer justice according to law. We have no power to change it no matter how unreasonable, harsh and oppressive it is to the ordinary person.

Yang, J.A.:

23. I agree the appeal should be allowed for the reasons given.

(1)    (1952) 2 Q.B. 743

(2)    (1976) Q.B. 1