Rex v Ala (Criminal Appeal No. 52 of 1942) [1942] EACA 68 (1 January 1942)

## APPELLATE CRIMINAL

#### BEFORE SIR JOSEPH SHERIDAN, C. J., AND BARTLEY, J.

## REX, Respondent

## v.

# MAGAJAN ALA, Appellant

#### Criminal Appeal No. 52 of 1942

Liquor Ordinance, 1934, section 44-Offences under section summarized-Sale of liquor by servant of absentee master the holder of a wine merchant's and grocer's licences.

The appellant was convicted of selling two bottles of beer without a licence. The appellant's absentee master was the holder of a wine merchant's and grocer's licence which was in possession of the appellant.

Held (2-6-42).—That there was nothing in the Liquor Ordinance, 1934, to prevent the business of a wine merchant and grocer being carried on in his absence by his servant and that the answer to the case against the appellant was that he did possess a licence. (Conviction and sentence quashed.)

Barret for the Appellant,

Spurling, Crown Counsel, for the Crown.

JUDGMENT.—The decision in this appeal turns on the construction of section 44 of the Liquor Ordinance, 1934. It reads as follows: -

"Any person who, contrary to the provisions of this Ordinance, sells or deals in or disposes of any intoxicating liquor without a licence, or sells or offers or exposes for sale any such liquor at any place where he is not authorized by his licence so to sell, or who sells or deals in or disposes of any intoxicating liquor in any manner other than is provided for in the conditions of his licence shall on conviction be liable to the penalties provided in sub-section (2) of section 39 of this Ordinance, and all liquor found on the premises may be forfeited."

Summarized this section provides for three separate and distinct offences, (1) selling, dealing in or disposing of intoxicating liquor without a licence, (2) selling or offering or exposing for sale intoxicating liquor at any place where he is not authorized by his licence so to sell, and (3) selling or dealing in or disposing of intoxicating liquor in any manner other than is provided for in the conditions of his licence.

No. 2 requires no consideration in this case. The issue affects Nos. 1 and 3.

With regard to No. 3 in Criminal Case No. 6039/41' the accused was charged on the same facts as in the present case with "dealing in intoxicating liquor in a manner other than is provided for in the provisions of his licence". For reasons which it is unnecessary to refer to he was acquitted on that charge and as the acquittal has not been set aside the provisions of section 138, Criminal Procedure Code, are applicable; they read:—

"A person who has been once tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal has not been reversed or set aside, not be liable to be tried again on the same facts for the same offence."

In the present case he was charged with "Selling or disposing of intoxicating liquor without a licence", that is what we have referred to as No. 1 offence in summarizing section 44.

Mr. Barret for the appellant has contended that the appeal should succeed for the reason that the appellant's absentee master was the holder of a licence which was in possession of his servant the accused at all material times. This fact is agreed by the prosecution. In our opinion this fact is a sufficient answer to a charge under No. 1. The evidence establishes that the accused was the servant of the holder of the wine merchants and grocers licence and there is nothing in the Ordinance to prevent the business of a wine merchant and grocer being carried on in his absence by his servant. Section 4 of the Ordinance provides that "No person shall sell any intoxicating liquor or manufacture any malt liquor in the Colony without a licence" and as we have said the answer to the present case against the accused is that he did possess a licence. The case of his having sold liquor in contravention of the terms of that licence we have already dealt with.

The appeal is allowed and the conviction and sentence are quashed, the fine if paid being ordered to be refunded.

(Note.—In. Criminal Case No. 6039/41 the prosecutor withdrew the charge.)