Denys Roberts CJ:

Preliminary

At the conclusion of the hearing of this matter, I said that the appeal would be allowed and the conviction of the appellant quashed and that I would give my reasons later, which I now do.

The appellant is a Philippine national, who entered Brunei Darussalam on 19 June 1986, to work as an amah for the Royal Squadron, Brunei.

After three days work with her first employer, a British couple, she was rejected by them and taken by a friend of the agent who had brought her from the Philippines to the house of PW1 (Syarifah Norillah bte Syed Yusof). The appellant worked until June 1989 in that house, employed as an amah by PW1 and her husband PW2 (Haji Suhaile Mohd Taib).

The appellant then worked for PW5 (Haji Ahmad Bolkini bin Burut) until October 1992, when she got in touch with a member of the staff of the Philippine Embassy in Bandar Seri Begawan.

Her employments with PW1/2 and PW5 were illegal, as neither had a quota to employ a foreign worker.

Her passport was issued for two years by the Government of the Philippines and was valid only until 19 February 1988. It contains an employment visa, permitting her to enter for the purposes of employment with the Royal Squadron, Brunei.

The latter entry is dated 8 July 1986 and must therefore have been inserted in her passport after the appellant had started to work for PW1/2.

The Charge

The appellant pleaded not guilty to one charge, of which she was convicted, in the following terms:

That you (at about 0910 hours on 28 October 1992 at Immigration Department in the State of Brunei Darussalam not being a person entitled to remain in the State under the Provision of the Immigration Act Cap 17 of the Regulation made thereunder) did remain in the State after the expiry of your pass on 8 July 1987, contrary to s. 15(1) of the Immigration Act and punishable under s. 58 of the same.

It is clear that, although the date 28 October 1992 is alleged to be the date of the offence, because this was one of the days on which the appellant attended before the Department, the charge relates to a period before she surrendered herself to the Philippine Embassy, in that she remained in Brunei Darussalam after her pass had expired on 8 July 1987. I shall treat this appeal accordingly, in the same manner as the Magistrate did, by amending the charge by omitting the words within the brackets above.

Offence of strict liability?

It was argued on behalf of the appellant that s. 15(1) of the Immigration Act ("Cap 17") did not constitute an absolute offence, and that the prosecution must therefore prove that the appellant had the necessary mens rea.

In Sherras v. De Rutzen [1895] 1 QB 918, Wright J. observed, 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 the offence, or by the subject matter with which it deals, and both must be considered.

The difficulty remains of applying this principle to the language of the statute under review. Section 15 of Cap. 17 is as follows:

Effect of cancellation or expiry of permit or pass

15(1) It shall be unlawful for any person to remain in Brunei after the cancellation of any Entry Permit or Re-entry Permit or after the making of a declaration under s. 14(4) or the expiration or cancellation of any Pass relating to or issued to him unless he is otherwise entitled or authorized to remain in Brunei under the provisions of this Act or of any regulation made thereunder.

(2) Any person who without reasonable cause contravenes the provision of subsection (1) shall be guilty of an offence.

The principles which apply, when it is necessary to decide whether an offence is one of strict liability or not, are set out in the following passage from the judgment of Lord Scarman in Gammon (Hong Kong) Ltd v. A.G. of Hong Kong [1985] 80 Cr. A