Joseph Hawksworth and another v. r. Crim. App. 253-D-70; 17/6/70, Georges, C.J.

Joseph Hawksworth and another v. r. Crim. App. 253-D-70; 17/6/70, Georges, C.J.

The appellants are Englishmen. On 3^rd March, 1970 they crossed the Songwe River, from Malawi to Tanzania walked to Kyela and reported there to the police station. There they were arrested and charged with unlawfully entering into Tanganyika contrary to section 23(1) (i) of the Immigration Act, Cap. 534. The particulars alleged that they had entered into Tanganyika by way of Songwe River which is not an official port of entry. Section 25(1) (e) of the Immigration Act vested in the Minister power to make regulations prescribing the place or places where entry into Tanganyika may be made. The Minister exercised this power by Government Notice 32 of 1969 published on 14th February, but to become effective on 1^st March. In those Regulations – “The Immigration (Prescribed Places of Entry Regulations 1969” – Songwe River is not listed as a place of entry. The record states that the charges were read over to the appellants and explained to them. The first appellant is recorded as saying: - “I realise my mistake now. I entered unlawfully into Tanzania. I was misled by customs officials in Malawi to come this way”. The second appellant is recorded as saying: - “I admit this offence. I did not follow the official port of entry into Tanzania”. This was entered as a plea of guilty. The record continues: - ‘Facts are as charged and as admitted by accused”. The accused were convicted and fined Shs. 3,000/- each.

            Held: (i) “This Court has said on more than one occasion that it is not proper to record the facts merely as charged. The prosecution should state the circumstances of the case as fully as possible. If the appellants had walked into the police station at Kyela in order to report their presence and to ask for some sort of immigration status the prosecution should have so stated. This would have been as relevant in considering punishment as would have been the fact that they had been found wondering in some completely different area without having made any efforts whatsoever contact the authorities. If the facts are not going in any way to amplify the particulars set out in the statement of offence then there can be very little point in laying down a procedure which prescribes that they should be stated ad admitted by the accused”. (2) The appellants advanced as a mitigating circumstance the fact that they had been misled by an official at the customs post on the Malawi side of the border. On this basis Mr. Moisey submitted that the trial magistrate should not have entered a plea of guilty since mens rea was an essential prerequisite for the commission of this offence. He quoted in support the case of Lim Chin Aik –v- Queen [1963] I All E.R. 223. In that case the Privy Council was asked to interpret certain sections of the Immigration Ordinance of Singapore. Section 6(2) provided:- “It shall not be lawful for any person other than a citizen of Singapore to enter from the Federation to remain in Singapore after …… (b) Such person has been prohibited by order made under section 35 of this Ordinance from entering Singapore”. Sub-section (3) of this same section provided “Any person who contravenes the provisions of sub-section ….. 2

of this section shall be guilty of an offence against this Ordinance”. Under section 9 of the Ordinance the Minister had made an order prohibiting the appellant from entering or re-entering Singapore. This order would have come into force as soon as it was made. It had been received at the Immigration Department but there was no evidence that it had been served on the appellant or had otherwise been brought to his notice prior to his arrest on this charge. The appellant argued that he ought not to have been convicted since he did not know of the order and had not intended to break the law. The issue was clearly whether or not an intention to break the law- mens rea – was a necessary ingredient for the commission of the offence. The Privy Council held that it was. They accepted as a correct formulation of the law a dictum of Wright J. in Sherras –v- De Rutzen [1895] 1 Q. B. at p. 921:- “There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating he offence or by the subject matter with which it deals, and both must be considered … they agreed that where the subject matter of the statute was the regulation for the public welfare of a particular activity, for example. The sale of food and drink, strict liability was often intended irrespective of guilty knowledge. They went on to state further, that it was always pertinent to enquire whether or not putting the defendant under strict liability would assist in the enforcement of the regulations. If there was nothing which an accused person could do in order to promote observance of the regulations, then there would be no point in imposing strict liability as the effect could only be to find a luckless victim. Their Lordships then held that there was noting which the appellant could have done I this case. Indeed if the test of strict liability were applied a person who had been in Singapore lawfully would commit an offence under the Ordinance immediately on an order being made against him under section 9, prohibiting the entry of person into the colony even though his intention was to leave as soon he possibly could. The result would be that his mere passive conduct in remaining, which would be the mere continuance quite unchanged of his previous behaviour, hitherto perfectly lawful, would become criminal. Their Lordships felt that his could not have been intended and accordingly they allowed the appeal and quashed the conviction. Their Lordships did note, however, if the courts of Singapore had been of the view that unrestricted immigration was a social evil which it was the object of the Ordinance to control most rigorously their Lordships would hesitate to disagree since that was a matter peculiarly within the cognizance of the local courts. Mr. Moisey pointed out that his case had been cited with approval by Biron j. in Hamed Abdallah –v- R [1964] E.A. 270. That was a case dealing with a breach by the holder of a public service vehicle licence of a condition of his licence. The leaned judge quoted the case in order to support the view that strict liability could be contemplated because there was much that the licence holder could do in the organization of his business to ensure compliance with the law. On the facts, with respect, I agree entirely with the decision in the case of Lim Chin Aik but is do not think it

strict applicable on its facts with the case under consideration. There a prohibitory order was made which was not published and was not in any way brought to the attention of the person whom it affected. The relevant regulations made no provisions for publication or notification. The person affected could not have complied with the law until the notice had been brought to his attention. In these circumstances it is difficult to conceive that he Legislature could have intended that an offence be committed. In this case, however, the regulations prescribing ports of entry were published. They were available if proper enquiries were made and this fact seems to me of vital importance in arriving at a decision as to whether or not the Legislature could have intended a breach of the regulations to be an offence even though there was no mens rea. I would also hold that at the present time the regulation of entry into Tanzania through proper ports is a subject which the Legislature did intend to control rigorously.  Would think that the legislature is well aware that law enforcement officers do have a discretion which they can exercise in a proper case as to whether or not they should prosecute. I would also think that the Legislature is also well aware that Courts can impose nominal punishments in cases in which the element of blameworthiness on the part of an accused person is minimal. These discretions are a vital part of the entire process of law enforcement. In a field like immigration regulation where the stigma of criminal conduct, as the term is generally understood, would not apply to any breach, the Legislature could very well intend to impose strict liability knowing that the factors which I have already mentioned will be taken into consideration so that there would be no undue harshness in the application of the law. In this type of case also it would be extremely difficulty to prove in most instances that the person charged did intend to break the regulation. The defence that one was misled by authorities on the other side of the border or by one’s ravel agents or by an Embassy or High Commission abroad would either e impossible to refute or else expensive if legally admissible evidence had to be led. Accordingly I would hold that mens rea was not a necessary ingredient of the offence in this case and that on the facts admitted by the appellants the charge was proved. (3) “I think that the sentences imposed in this case were excessive. I am well aware that the security of this country along its southern border is a matter of concern. On the other hand, it seems highly unlikely that “infiltrators of European origin”, to use the magistrate’s words, could be effective instruments of subversion in the area. It would, indeed, be far too simple matter to spot such person and there would be little point in sending them across this way when they could be introduced unobtrusively through the regular points of entry at the regular times. The likelihood is that the appellants were that they said they were, persons traveling on a world tour to broaden their experience and working from time to time to get money for their expenses. It is not denied that immediately on entering Tanzania they reported to the nearest police station at Kyela. As I have already pointed out, although the Immigration Ordinance became effective on 14th April, 1964 no regulations prescribing

ports of entry were made until March, 1969. Up to that date it would appear that it would not have been an offence to have entered Tanganyika across the Songwe River. It is possible that word of the Regulations had not yet reached the Malawi side of the Border as a result of which there had been a number of instances of illegal entries beginning sometime in December last year. It is hoped that the publicity attendant on these cases will make the position clear so that there is no recurrence of these instances. A fine of Shs. 500/- would adequately meet the justice of the case. Accordingly I quash the sentence imposed on each of the appellants and order that they each pay a fine of Shs. 500/-“