Karia v Rex (Criminal Appeal No. 286 of 1950) [1950] EACA 86 (1 January 1950)

## APPELLATE CRIMINAL

## Before SIR BARCLAY NIHILL, C. J., and THACKER, J.

## KARSANDAS VISRAM KARIA, Appellant (Original Accused)

REX, Respondent (Original Prosecutor)

## Criminal Appeal No. 286 of 1950

(From Original Conviction and Sentence in Criminal Case No. 1145 of 1950 of the R. M.'s Court at Nairobi—C. F. Ball, Esq.)

Immigration (Control) Ordinance, 1948—Section 12 (1) (b)—Temporary Employ- $\sim$ ment Pass—Knowingly making a false statement—Plea of guilty—Equivocal.

On the 7th September, 1949, appellant applied on the prescribed form for a Temporary Employment Pass for one Jamnadas Vallabhdas Thaker, in which he stated that the said J. V. T. was 19 years of age and qualified and suitable to be employed as a bookkeeper/salesman to his knowledge, which statements were found to be untrue. He was accordingly prosecuted under Immigration (Control) Ordinance, 1948, section 12 (1) $(b)$ , and in answer to the charge his plea was "I plead guilty. I stated his age and qualification on information received from India. I cannot now produce the letter". He was found guilty on his plea, and sentenced to pay a fine of Sh. 3,000 or to suffer six months' imprisonment with hard labour in default of payment.

Appellant appealed.

Held $(24-8-50)$ .—(1) That the very essence of this offence is the making of a statement which is false within the knowledge of the person making it, and the plea of the appellant did<br>not amount to an unequivocal plea of guilty.

(2) Trial declared a nullity.

Kapila for the appellant.

Templeton, Crown Counsel, for the Crown.

JUDGMENT.—This appeal must be allowed on the point that what the appellant stated in answer to the charge was wrongly interpreted by the Magistrate as an unequivocal plea of guilty. We have some sympathy with the Magistrate because the appellant first stated that he pleaded guilty. He then went on to say, however, that he had supplied information to the Immigration Department on the strength of information which he had himself received from India. Presumably this information is now known to be inaccurate, but the basis of the charge brought against the appellant was that he knowingly made a false statement to an Immigration Officer for the purpose of obtaining a temporary employment pass for a person he wished to engage as one of his employees. The very essence of this offence is, of course, the making of a statement which is false within the knowledge of the person making it, so that what the appellant said in effect when answering the charge was "Yes, I gave this information but at the time of giving it I believed it was true".

These proceedings must be declared a nullity and the fine, if it has been paid, will be remitted to the appellant.

The Immigration Authorities, if they so desire, are at liberty to institute fresh proceedings.