Strict Liability - The Gammon Tests (1. Looking at the wording of the Act,…
Strict Liability - The Gammon Tests
:red_flag: Gammon Ltd. v A-G of Hong Kong
started with the assumption of MR
then set out 4 guidelines that should be considered when deciding if one is of SL
presumption can only be displaced if this is clearly or by necessary implication, the effect of the words of the statute
wording of the Act
presumption is particularly strong where the offence is 'truly criminal' in character
whether it's 'too criminal'
the presumption can only be displaced if the statute it concerned with an issue of social concern such as public safety
protect the public
SL should only apply if it will help enforce the law, by encouraging greater vigilance to prevent the commission of a certain prohibited act
will it stop people from doing it?
1. Looking at the wording of the Act
where words indicating MR are used the offence is not one of SL
if the section is silent on the point then the courts will look at other sections in the Act
where the particular offence has no words of intention but other sections in the Act do = likely to be a SL case
the Privy Council stated the presumption of MR is required particularly where the offence is seen as 'truly criminal'
regulatory offences are not seen as truly criminal, which is why they tend to be SL offences
:red_flag: Callow: selling of foood
:red_flag: Cundy: selling of alcohol
:red_flag: Gammon: building regulations
:red_flag: Harrow LBC: sales of lottery tickets
:red_flag: Alphacell: pollution preventing regulations
company were unaware, but offence was held to be of utmost public important, therefore SL offence
penalty of imprisonment is taken into account
where an offence carries a penalty of imprisonment, it is more likely to be considered truly criminal
:red_flag: B v DPP
"the more serious the offence, the greater the weight for MR to be attached, because of the more severe punishment and the graver the stigma that accompanied the conviction"
however, Gammon also carried with it a max. of 3 years imprisonment, but this was construed a SL offence
Privy Council accepted this decision was a 'formidable argument' against SL
however, both were against corporations, therefore imprisonment was not likely regardless
similarly, Storkwain a penalty of 2 years was an option
3. Social Concern/Public Protection
does the crime involve an issue of social concern
any activity that is a 'potential danger to public health, safety or morals'
hence foods/drink sales
4. Preventing the prohibited act
will making it an SL offence stop people from doing it
if the imposition of SL will not make the law more effecting then there is no reason to make the offence one of SL
:red_flag: Lim Chin Aik v The Queen