Buttrose J (delivering oral judgment):

This is an appeal from a decision of the Criminal District Court convicting the appellant, being a person subject to a Police Supervision Order under s. 47(b) of the Criminal Law (Temporary Provisions) Ordinance, 1955, of the offence of failing to comply with the restrictions imposed upon him as directed by the Order of the Minister under s. 49A(1)(f) of the Ordinance.

The penalty provided for the offence is imprisonment for a term not exceeding three years and not less than one year. The appellant was sentenced to eighteen months imprisonment.

The restriction imposed upon the appellant by the Order of the Minister was that he was to remain within doors at No. 23 Jeddah Street between the hours of 7 p.m. and 5 a.m. It was not in dispute that the appellant was found out of doors at 9.30 p.m. on the night in question. His defence was that he had been to a bar in the afternoon and although he intended to leave at 6 p.m. he became drunk and fell asleep. At 9.30 p.m. he was returning home with a friend when he was arrested by the Police.

It was contended on behalf of the appellant that mens rea was a constituent part of the offence and as the appellant was drunk, he was incapable of forming the specific intention in the absence of which he would not be guilty of the offence by virtue of the provisions of s. 86 of the Penal Code.

The learned District Judge found as a fact that the appellant was neither drunk nor fell asleep at the bar. There was, in my view, evidence to justify this finding and in the circumstances I am not prepared to disturb it. That is sufficient to dispose of this appeal in favour of the respondent. There is, however, a further question to be decided. Section 49A(3) provides that a person subject to supervision under the Ordinance, as the appellant was, who contravenes or fails to comply with any order or restriction imposed upon him under the section shall be guilty of an offence. In my view the section imposes an absolute liability on the appellant. The general rule appears to be that if an Ordinance contains an absolute prohibition against the doing of some act, such as in the present instance of being out of doors between certain hours, mens rea is not a constituent of the offence. It is not an act which is criminal in the real sense of the term but one which in the public interest is prohibited under a penalty.

As Lord Goddard CJ pointed out in Harding v. Price [1948] 1 KB at p. 702 in deciding whether mens rea is excluded as a necessary constituent of a crime it is always necessary to consider whether the offence consists in doing a prohibited act or in failing to perform a duty which only arises if a particular state of affairs exists. That case concerned an accident which occurred when a trailer attached to a lorry collided with and damaged a stationary car while passing it. Because of the noise the trailer was making the driver of the lorry was unaware of the accident and failed to stop or report it as required by the Road Traffic Act, 1930. It was held that that was a good defence on the principle that unless a man knows that the event has happened how can he carry out the duty imposed? If the duty be to report, he cannot report something of which he has no knowledge.

The authorities, of which Sherras v. De Rutzen [1895] 1 QB 918 relied on by the appellant is an instance, show that even where the statute imposes what is apparently an absolute prohibition an absence of guilty knowledge may in some cases be a defence but such cases depend on the wording and purpose of the particular statute. There is, in my view, a clear difference between prohibiting an act and imposing a duty to do something on the happening of a certain event.

It is this difference which, in my opinion, distinguishes the present case from those to which I have referred. There was here an absolute prohibition against being out of doors during a specified period and mens rea is not,