Bhaga v Rex (Criminal Appeal No. 4 of 1951) [1951] EACA 114 (1 January 1951)

## APPELLATE CRIMINAL

## Before MODERA, J. and WINDHAM, J.

## GOVIND BHAGA, Appellant (Original Accused)

### **REX, Respondent (Original Prosecutor)**

# Criminal Appeal No. 4 of 1951

#### (Appeal from decision of R. M.'s Court at Nairobi—C. F. Ball, Esq.)

Immigration Control Ordinance (Cap. 51) S. 12 (1) (b) and S. 12 (3)—Elements of the offence-Whether plea amounts to a plea of guilty or not-Power to cancel pass.

The appellant was charged under S.12 (1) (b) Cap. 51 with knowingly making a false statement for the purpose of obtaining a pass. Particulars of the false statement were given in the charge and the appellant pleaded "I admit making this false statement". The lower Court cancelled the pass.

Held (28-2-51).-(1) In the absence of any positive evidence of non-compliance with section 205 (1) the maxim "Omnia praesumuntur rite esse acta" applies and it must be presumed that the charge was read and explained.

(2) Though the appellant's plea was admission of only the first of three elements of the offence under section 12 (1) $(b)$ , a trial Court must take each case on its merits and the appellant's admission that his statement was false was an unequivocal admission that he knew it to be false.

(3) As the appellant made the statement on the prescribed form for a defendant's pass, it must be held that the statement was made for the purpose of obtaining a pass and the plea constituted a plea of guilty.

(4) Section 12 (3) does not confer a power to cancel a pass.

## A. R. Kapila for Appellant.

Boyle, Crown Counsel, for Crown.

JUDGMENT.—The appellant was charged under section 12 (1) (b) of the $lm$ migration (Contro!) Ordinance (Cap. 51) with knowingly making a false statement for the purpose of obtaining a dependant's pass under that Ordinance. The particulars of the charge were that he applied on the prescribed form for a dependant's pass to be issued to his son, and thereon, for the purpose of obtaining the pass, made a statement that he (the appellant) was living in a room occupied by himself alone, whereas he knew that he shared this room with four other persons. To this charge the Appellant pleaded with the words—"I admit making this false statement". These words were recorded as a plea of guilty, and the appellant was fined, and his pass was cancelled in pursuance or purported pursuance of the provisions of section 12 $(3)$ of the Ordinance.

Three points have been argued on appeal. First it is contended that since there is no entry on the record that the charge was read out and explained to the appellant it must be presumed that the learned Magistrate did not do so and that he accordingly failed to comply with section 205 (1) of the Criminal Procedure Code. We see no force in this contention. While, no doubt, it is more desirable that a Magistrate should record that section 205 (1) has been complied with and thereby obviate the raising of such a point as this upon appeal, we consider that in the absence of such a recording and in the absence of any positive evidence of non-compliance with the section, the maxim "Omnia præsumuntur rite et solenniter esse acta donec probetur in contrarium" should be applied and it will accordingly be presumed that the learned Magistrate did read and explain the charge to the appellant $\ldots$

The second point argued is that the appellant's words in answer to the charge did not constitute an unequivocal plea of guilty. The appellant's offence under section 12 (1) (b) it is rightly pointed out, consisted of three elements; first making a false statement; secondly, knowing it to be false; thirdly, making it for the purpose of obtaining a pass for his son. It is contended that the words used by the appellant—"I admit making this false statement" was an admission of only the first of these three elements the making of the false statement. Now in probably a majority of cases a specific admission of only one out of more than one element of an offence cannot properly be taken as a plea of guilty to the offence; a plea of "I took the goods" to a charge of theft is common example. But a trial must take each case $\overline{on}$ its merits in deciding whether the Court words used by an accused amounted, having regard to the particulars of the charge, to a plea of guilty. In the present case, having regard to the false statement which he admitted to having made, it is quite inconceivable that he could have<br>made it not knowing it to be false. For his statement was that he was the sole occupant of the room whereas in fact four other persons occupied it. He could not possibly not have known that these other four persons were occupying the room along with him. Therefore his admission that his statement was a false one was an unequivocal admission that he knew it to be false.

Similarly with regard to the purpose for which the false statement was made. This false statement was made on the prescribed form for a dependant's pass; the charge recited as much. And that is the sole purpose for which the form—Form 9 in the first Schedule to the Immigration (Control) Regulations, 1948—exists; the appellant could not have made any statement in it for any other purpose. Therefore, having in view the particulars of the charge, he must be taken to have been admitting that purpose when he admitted making the false statement. We accordingly consider that the learned Magistrate rightly entered the appellant's words as constituting a plea of guilty to the charge.

Lastly, it is contended that the learned Magistrate, in ordering the cancellation of the appellant's pass, exceeded the powers given to him by section 12 (3) of the Ordinance. That section empowers him to cancel any "permit, certificate or endorsement" made or issued in consequence of the offender's false statement, upon a conviction under section 12 (1) (b). Section 12 (1) (b) itself, however, makes it an offence to make any false statement for the purpose of obtaining....any "Certificate, permit, pass or endorsement". Clearly, then a pass is distinguished from a permit or certificate in section 12 (1) $(b)$ and, whether by design or oversight, has been omitted from section 12 (3). We agree therefore, as does learned Crown Counsel, that the Magistrate had no power to cancel the pass. His order of cancellation is accordingly set aside. Subject to that, the appeal is dismissed and the conviction and sentence will stand.