Mohamed and Another v Rex (Cr. Apps. 35 and 36 of .1930 (Msa.).) [1930] EACA 158 (1 January 1930)

## APPELLATE CRIMINAL.

Before THOMAS, J. and DICKINSON, J.

ABGAO BIN MOHAMED 1. (Appellant) (Original Accused) 2. OMARI BIN ATHMAN (Appellant) (Original Accused) $\boldsymbol{v}.$

## REX.

## Cr. Apps. 35 and 36 of 1930 (Msa.).

- The Game Ordinance (Cap. 161), section 11-penalty for contravention of sections 8, 9 and 10. Section 44-penaltics and forfeiture of trophies. - Held: That if a person is sentenced under Section 11, in respect of one trophy, he can be further sentenced under Section 44 (1) in respect of other trophies.

Burke for appellants.

Howell, Crown Counsel, for Crown.

JUDGMENT.—With the consent of counsel these two appeals have been taken together. The appeals are both against conviction and sentence. The facts are briefly that the appellants. and three others who have not appealed, were together concerned with the moving of a number of cases. These cases were during the month of December, 1929, placed on a dhow (No. 61) by one Ayabu Bin Sheikh who has described the whole proceeding. He has stated that he knew that there was something wrong about them as they did not go through Customs. On the 10th January a number of cases were reported as being in the dhow of Nahotha Macupi at Fundi Issa. On inspection they were discovered to contain rhinocerous horns. On the cases were labels having the names of the first appellant. Ali Bin Salim has stated that these cases are the same as the ones loaded by him and that those cases were handed over by him to Ayabu Bin Sheikh. Ayabu himself states that the boxes handed to him were similar in appearance and weights to those in Court.

In view of the statements made by these two witnesses I consider that the Magistrate was justified in rejecting the suggestion that the labels indicated nothing more than that the cases had once been in the possession of the appellants or their firm. The Magistrate in my opinion had sufficient evidence before him to connect the cases found on the 10th of January with the cases dealt with by the five persons accused before him, and the Magistrate was justified in his conviction of the accused.

The penalty under section 11 of Chapter 161 is one hundred pounds and that penalty has been imposed on each of the appellants. And a further penalty has been imposed under section 44.

It has been contended that the Magistrate had no power to impose such further penalty.

The words of section 9 are "possess or export or attempt to export any live animal or any trophy." Trophy is defined in section 2 as " any head, horn, tusk, skin, feather or any other durable portion of any game animal." Although these words are expressed in the singular it has been admitted by the Acting Solicitor General that by the Interpretation and General Clauses Ordinance, Chapter 1, section 43, words in the singular shall include the plural and vice versa.

Therefore although many horns, i.e., trophies, might be exported, if section 11 stood by itself the case for the appellants would in my opinion come within the decisions of Crepps v. Durden, 5 Ex. 363, and the Apothecaries Company v. Jones, 1893, 1 Q. B. D. 89; since there are not in that section words to the effect that the penalty should be inflicted for each or every offence. (See ex parte Beale, 1868, L. R., 3 Q. B.). Although such words do not appear in section 11 itself the Ordinance has in section 44 language which is very wide and very definite.

That section is as follows: -" Any person who hunts, kills or captures, or who abots the hunting, killing or capturing of, any animal in contravention of this Ordinance, or otherwise commits or abets the commission of any offence for or in respect of which no penalty is specifically provided, or commits a breach of this Ordinance or of the conditions of his licence shall on conviction be liable to a fine not exceeding one hundred pounds, or where the offence relates to more animals than one, to a fine in respect of each additional animal not exceeding fifty pounds, or to imprisonment of either description which may extend to six months, or both."

It has been argued that since the section first speaks of any offence for " or in respect of which no penalty is specially provided" and goes on to say "or commits a breach of this Ordinance" that the latter words should be taken as meaning a breach of the Ordinance other than a breach for which a penalty has been provided.

I cannot agree to such an interpretation being placed upon the words of the section. The language is clear and unambiguous. The intention of the section is to provide penalties in respect of each additional animal. It would reduce the Ordinance to an absurdity to say that because the offence of exporting trophies was of sufficient importance to be dealt with separately, it was a breach of the Ordinance not contemplated by section 44. If the Ordinance had desired to omit such breaches then I consider

that it should have done so specifically. I do not consider that the mention of the fine of one hundred pounds affects the question. It is the same amount as is inflicted in section 11. Forfeiture of the trophies is also provided for. The only difference is that in default of payment a term of imprisonment may be imposed. It has been suggested that the first and second appellants stand in different degrees in respect of the offence. That is a matterwhich no doubt the Magistrate had before him. He has drawn attention to the fines which might have ben inflicted. The sentences are not such that I feel in any way inclined to interfere with them.

The convictions and sentences The appeals are dismissed. are confirmed.

DICKINSON, J.—The two appellants were convicted together with three other persons of being in possession and attempting to export fifteen cases containing 187 rhinoceros horns contra to section 9, Ordinance 161, Laws of Kenya, and were each sentenced to pay a fine of one hundred pounds in respect of the first trophy, and in addition to pay a fine of five pounds each in respect of ninety-three other trophies under sections 11 and 44 (1) of the same law. Mr. Burke for appellants failed to convince me that there were any grounds for reversing the verdict of the Resident Magistrate on the facts of the case. The principal point in the address of Mr. Burks was his submission that the offence created by section 9 is punishable under section 11 of the law with a fine of one hundred pounds or six months imprisonment; and that section $\hat{4}4$ (1) does not apply to offences for which a punishment is specially provided and therefore that the additional fines of five pounds for each subsequent animal affected are illegal and must be set aside.

Section 9 of the law runs as follows:-

" No person shall purchase, possess or export or attempt to export ... any trophy ... of any animal which has been killed captured or obtained in contravention of this Ordinance or of any ordinance, law, or regulation repealed by this Ordinance unless such . . . trophy . . . has been sold by order of the Governor or of a game warden or of a Court." I pointed out to Mr. Burke that the language of this section was definitely in the singular and he replied by citing section $2(43)$ of the Interpretation and General Clauses Ordinance.

This section runs as follows:—

" In this Ordinance and in every law (other than an Imperial Statute or applied Indian Act) whether enacted before or after the commencement of this Ordinance the following expressions shall, unless the contrary intention appears, have the meanings hereby respectively assigned to them, namely:-

(43) words in the singular shall include the plural and vice versa."

Now having examined the Game Ordinance as a whole I find that the clear intention therein is to make it a separate offence to commit any contravention of the Ordinance in respect of every animal affected; and I cannot accept Mr. Burke's submission that the exportation or attempted exportation of the trophies of many animals is a single offence. I hold that sub-section $43$ , section 2. of the Interpretation and General Clauses Ordinance, is not applicable to section 9 of the Game Ordinance as the contrary intention appears throughout that Ordinance. I find that the appellants committed an offence in respect of the attempted exportation of each and every rhinoceros horn.

Now no special penalty is fixed by section 11 in respect of a second or subsequent animal affected, I therefore find that the Magistrate properly punished the appellants under section 44 (1).

Appeal dismissed with costs.