Modhaf v Reginam (Criminal Appeal No. 39 of 1956) [1950] EACA 546 (1 January 1950)

## 546

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), SINCLAIR (Vice-President) and BRIGGS, Justice of Appeal

## EBRAHIM AHMED MOHAMED MODHAF, Appellant (Original Accused)

# $\mathbf{v}$ .

# REGINAM, Respondent

### Criminal Appeal No. 39 of 1956

(Appeal from the decision of H. M. Supreme Court of Kenya, Sir Kenneth O'Connor, C. J., and de Lestang, J.)

Customs-Importation of contraband bullion-Whether bullion containers forfeited—East African Customs Management Act, 1952, sections 146 to 163.

The appellant had been convicted by the Magistrate's Court of importing contraband bullion which was forfeited. The Magistrate took the view that the suitcases in which the bullion was carried and their contents, which included a large sum in Pakistani and Indian currency notes, were not subject to automatic forfeiture but that he had a discretion either to forfeit or release them and he ordered their release. The Supreme Court held that the forfeiture was automatic and that the order of release must be set aside.

Held (18-6-56).—The true effect of section 160 of the East African Customs Management<br>Act, 1952, is that the words "anything is liable to forfeiture by reason of the commission<br>of such an offence" are perfectly general. Th

Appeal dismissed.

No cases.

Morgan for appellant.

#### Brookes for respondent.

JUDGMENT (prepared by Briggs, J. A.).—This is an appeal from an appellate judgment of the Supreme Court of Kenya given on a case stated by the Resident Magistrate, Nairobi. The case stated is set out in full in the judgment of the Supreme Court and it is not necessary to repeat the facts. We dismissed the appeal, but since an important point of law is involved we now give our reasons for doing so.

The appeal turns on the construction of section 160 of the East African Customs Management Act, 1952. The appellant having been convicted of importing contraband bullion was fined, and the bullion was duly forfeited. The Magistrate considered that the suitcases in which the bullion was carried and their contents, which included a large sum in Pakistani and Indian currency notes, were not subject to automatic forfeiture, but that he had a discretion either to forfeit or release them, and he ordered their release. The Supreme Court held that forfeiture was automatic and the order of release must be set aside The appellant asked us to restore the Magistrate's order of release. It was not disputed that the suitcases and their contents were the property of the appellant.

Mr. Morgan for the appellant submitted that in order to understand the meaning of section 160 it is necessary to read together sections 146-161 inclusive, and that, if this is done, it appears that the policy and general scheme of that group of sections require that the words "any thing" in sub-sections (1) and (2) of section 160 should have a restricted meaning, namely, that they should apply only to things which are the subject-matter of $\alpha$ charge, and not to things which are only involved, as it were, collaterally, such as containers of the subjectmatter of the charge. He relied strongly on the provisions of sections 159 and 161 and submitted that there are only two methods of effecting forfeiture under the Act, the first being a prosecution in which the goods in question are actually the subject-matter of a charge, and the second being proceedings under the provisions of sections 159 and 161.

We agree that the group of sections should be read together, but we would extend the group to include sections 162 and 163. We are unable to accept the remainder of Mr. Morgan's submissions.

Looking first at sections 146, 147, 148 and 152, which may be said to form a sub-group, one finds that section 146 deals with aircraft, vessels and vehicles, which we shall together call "conveyances". If a conveyance is adapted for purposes of smuggling, or is used for smuggling, or if goods are thrown away from it to prevent detection of smuggling, the person in charge of the conveyance is guilty of an offence. The consequences in the case of an aircraft or a vessel over two hundred and fifty tons register do not include forfeiture of the conveyance, a provision which clearly arises both from its disproportionately high value and from the difficulty of observing and checking smuggling thereon. The person in charge is liable to a specially heavy fine. Persons in charge of other conveyances are liable to a comparatively small fine, but the conveyance is liable to forfeiture. In each case "goods in respect of which such offence has been committed shall be liable to forfeiture". Under this section an offence may be committed without any goods being involved at all. If goods are involved, they must be what we have called "the subject-matter of the charge". Sections 147, 148 and 152 refer only to offences in which goods are necessarily directly involved, and in each case the section ends with the words found in section 146, "and any goods in respect of which such offence has been committed shall be liable to forfeiture". Again the only goods involved are those which form the subject-matter of the charge. The other sections in Part XII are not material.

In Part XIII, which deals generally with penalties, forfeitures and seizures, section 156 deals with forfeiture of conveyances, which are here extended to include animals and other things used for the movement of goods liable to forfeiture. Any conveyance so used is itself made liable to forfeiture. This occurs whether or not the person in charge of the conveyance has been guilty, or is accused, of any offence under section 146, and there is no suggestion that any charge need by brought of which the conveyance could in any way be said to be the subject-matter. There is again an exception in favour of aircraft and vessels over 250 tons, but instead of forfeiture the person in charge may be heavily fined. Section 157, which is directly applicable in this case, deals with packages in which there are goods liable to forfeiture. The package itself and all its other contents are also made liable to forfeiture. This again occurs irrespective of the ownership of such packages and other contents and whether or not the owner has been guilty of any offence. Section 158 gives the power to seize any thing, including conveyances and packages, which is, or is reasonably believed to be, liable to forfeiture. and gives power to release the thing seized "at any time prior to the commencement of any proceedings under this Act relating to" the thing seized. It is significant that the wording is wide enough to include proceedings of which the thing seized cannot properly be said to be the subject-matter.

Section 159 is important. It provides in sub-section (1) that in certain cases of seizure notice of the seizure must be given to the owner (which word is widely defined in section 2) or master. But under proviso $(a)$ no such notice is required where any person has within one month after the seizure "been prosecuted for<br>the offence by reason of which such thing has been seized", or where the offence has been compounded. If in either of those cases notice has in fact been given and the thing seized has not yet been condemned, then on prosecution "such thing shall be dealt with in accordance with the provisions of section 160", or on compounding shall be dealt with under the provisions of the Act dealing with compounding, in each case "as if no such notice had been given". To make matters doubly clear sub-section (3) repeats in paragraph $(a)$ that where any person is being prosecuted "for the offence by reason of which such thing was seized" the thing shall be detained and "dealt with in accordance with the provisions of section 160". The contrast between "goods in respect of which an offence has been committed" and "goods seized by reason of the commission of an offence", to which section 159 applies, is noteworthy. The latter phrase, but not the former, includes goods only involved collaterally in the offence. Sub-section (4) is the key to this appeal and is as follows:

"(4) Where any thing liable to forfeiture under this Act has been seized. then, subject to the provisions of proviso (a) to sub-section (1) and of paragraph $(a)$ of sub-section (3), the owner thereof may, within one month of the date of the seizure or the date of any notice given under sub-section (1), as the case may be, by notice in writing to the Commissioner claim such thing."

It will be seen from the opening words of section 161 that civil proceedings to determine liability to forfeiture can only take place where a claim has been made under section 159 (4). Sub-section (4), by excluding claims where the provisions of sub-sections (1) and (3) to which we have referred above are applicable, in effect provides that where a prosecution is brought section 161 shall not be brought into play at all. And the prosecution need not be one where the goods seized are the subject-matter of the charge. It is only necessary that it should be for an offence "by reason of which" the thing was seized. In any such case section 160 is to apply. The section is as follows: $-$

"160. (1) Where any person is prosecuted for any offence against this Act and any thing is liable to forfeiture by reason of the commission of such offence, then the conviction of such person of such offence shall, without further order, have effect as the condemnation of such thing.

(2) Where any person is prosecuted for any offence against this Act and any thing is liable to forfeiture by reason of the commission of such offence, then, on the acquittal of such person, the Court may order such thing either—

- (a) to be released to the person from whom it was seized or to the owner $(a)$ thereof; or - $(b)$ to be condemned."

In our opinion it is not only unnecessary to give to the words "any thing" the restricted sense for which Mr. Morgan contends, but to do so would make Part XIII of the Act unworkable. For assuming the seizure of contraband goods contained with other goods in a package, the package and other goods would be liable to forfeiture under section 157 and so could be seized under section 158, but if the owner of all of them were prosecuted for smuggling the contraband goods, that would be the "offence by reason of which" the container and other contents, innocent in themselves, were seized. Then under section 159 (1) and (3) the container and other goods must be dealt with under section 160, and under

section 159 (4) no claim could be made which would bring section 161 into play. In other words, if Mr. Morgan is right in saying that only goods the actual subjectmatter of a charge can be condemned under section 160, the container and other contents, though lawfully seized and liable to forfeiture, could never by any means be condemned.

We are satisfied that the true effect of section 160 is that the words "any thing is liable to forfeiture by reason of the commission of such offence" are perfectly general. They include both things the subject matter of the offence and things only indirectly involved, such as conveyances within the terms of section 159 or packages and "other contents" within section 157.

There is a minor complication in this case, in that the currency notes were considered by the Crown to be themselves contraband and charges were laid of which they were the subject-matter. On these charges the magistrate acquitted. The case stated did not raise the question whether that acquittal was correct and we express no opinion on the point, but it must be remembered that the notes were of foreign currencies. Had those been the only charges, the magistrate would have acted correctly in releasing the notes to the accused, for there would have been no offence by reason of which they were liable to forfeiture. As it is, we are bound by the finding that the notes were not contraband; but there were other offences, of which the accused was rightly convicted, by reason of which the suitcases and currency notes were, under section 157, liable to forfeiture. On the conviction for those offences they were condemned automatically by the operation of section 160 (1) and the acquittals on other charges could not give any right to release under section 160 (2).

We agree entirely with the conclusion and reasoning of the judgment appealed from. For the reasons given by the learned Judges of the Supreme Court and for the reasons we have set out the appeal was dismissed.