Rex v Bates (Cr. Rev. Case No. 44/1937) [1937] EACA 192 (1 January 1937)

### **CRIMINAL REVISION**

### BEFORE LUCIE-SMITH, AG. C. J. AND WEBB, J.

### REX (Applicant)

# M. K. BATES, Respondent (Original Accused)

## Cr. Rev. Case No. 44/1937

Post Office-"Postal article having thereon words, etc., of a scurrilous. etc., character"-Letter communication of a scurrilous character posted in closed envelope-Post Office Ordinance, 1934, sec. 23.

The facts appear from the judgment.

Held (22-7-37).—That the posting of a closed envelope bearing on the outside only the name and address of the addressee, but containing a communication of a scurrilous character, does not constitute an offence under sec. 23 of<br>the Post Office Ordinance, 1934.

## Willan, Ag. Attorney General, for the Crown.

The Resident Magistrate took the view that unless there were objectionable words, etc., on the outside of the envelope no offence was committed, and he based his decision on a comparison of the Ordinance with the English and Indian Post Office Acts. He had no right to do this: Commissioner of Stamps, Straits Settlements v. Oei Tiong Swan (1933 A. C. 378). He should have considered only the Ordinance creating the offence. By section 2 a "postal article" includes a "letter", i.e. the communication contained in an envelope. Section 19 (2) shows that "Postal article" covers both envelope and contents. The mention of "words of a threatening character" in section 23 shows that the object of the section was to protect the recipient, not the officials of the Post Office, and as, by the definition "postal article" includes a "letter" it was unnecessary to say "thereon or therein".

Allen for the respondent.

JUDGMENT (delivered by Webb, J.).—The respondent was charged under sections 23 and 42 (1) of the Post Office Ordinance, 1934, on three counts with having transmitted by post on three different dates, "postal articles having thereon words of a scurrilous nature". Evidence having been given that she had posted on the dates mentioned letters which bore upon the outside nothing more than the names and addresses of the addressees but contained anonymous communications of a scurrilous nature, the learned Resident Magistrate refused to commit on the ground that no offence under section 23 had been disclosed. The matter comes before this Court on an application for revision by the Crown.

Section 23 of the Post Office Ordinance, 1934, provides: "The transmission by post of any postal article of a seditious character or having thereon any words, marks, or designs of a scurrilous, threatening, indecent, obscene or grossly offensive character is prohibited and the Postmaster General shall have power to withdraw from transmission such postal articles which shall be dealt with as the

Governor may direct", and section 42 (1) makes it an offence to "send or tender or make over in order to be sent by post any postal article or thing the transmission of which by post is prohibited".

The question, therefore, is whether a "postal article" such as we have described can be said to "have thereon words of a scurrilous character". By section $2$ "'postal article' includes any letter, postcard, newspaper, book, document, pamphlet, pattern or sample packet, parcel or package or other article whatsoever transmissible by post" and the argument for the crown is that, as the communication enclosed in the envelope is a "letter" and as it bore upon it words of a scurrilous character, the Resident Magistrate should not at that stage have refused to commit.

In construing that section the learned Resident Magistrate compared it with the corresponding sections of the English Post Office Act, 1908 (section 63) and the Indian Act VI of 1898 (section 20), and from the fact that both these sections prohibit the transmission by post of postal packets (or postal articles) which have thereon "or on the cover thereof" words, marks, or designs of an indecent, obscene or grossly offensive character, he came to the conclusion that "it was never the intention either of the English or Indian Acts or of the Kenya Ordinance to make it an offence to send a letter having words, marks, or designs of a scurrilous etc. nature on a communcation enclosed in an envelope or other cover so that nothing offensive could appear on the outside".

It has been argued that in so doing the learned Resident Magistrate has offended against the dictum of the Privy Council in Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan (1933 A. C. at p. 389): Instead of first considering the terms of the Ordinance itself, "they (i.e. the Judges in the Court below) have at once entered upon an elaborate comparison of its provisions with those of the (Imperial) Finance Act of 1894, and proceeded to draw inferences from the variations between the Ordinance and the Imperial Statute. This is a perilous course to adopt and one which certainly does not commend itself to their Lordships. Decisions of the Imperial Courts on Statutes dealing with the same subject-matter may often be useful in the interpretation of similar provisions in Colonial measures, and a comparison between similar measures of the Imperial and Colonial Legislatures may on occasion be helpful: cf. Alcock Ashdown and Co. v. Chief Revenue Authority, Bombay (1923 L. R. 50 I. A. 227). But it is quite a different thing to institute a textual comparison such as has here been made and to rely on conjectures as to the intention of the draftsman in selecting some and rejecting other provisions of his presumed model".

While we are not prepared to agree that in this case textual comparison between the English and Indian Acts and our own Ordinance was carried so far as it would appear to have been in that case, we shall endeavour in our judgment to follow the principle there laid down, that "the best and safest guide to the intention of all legislation is afforded by what the legislature has itself said".

It is unfortunate that the word "letter" is often inexactly used; even when it is used exactly, as meaning the communication contained in an envelope, one speaks of the words or phrases written in it,

rather than of what is written on it, though the latter is doubtless the more correct expression. But it seems to us that when the law forbids the transmission by post of a "postal article having thereon" words of a certain character the expression "having thereon" must be intended to apply in the same sense to each of the different species included in the *genus* "postal article" as defined in section 2. In the case of a postcard no difficulty can arise, but in the case of a book, however improper, or of a parcel consisting say, of a cardboard box full of the most offensive communications written on pieces of paper, both being wrapped up in the ordinary way and bearing nothing on the outside save the name and address of the addressee, it is hard to see how, according to any ordinary use of language, either could be said to have on it words or marks of a scurrilous or indecent character. Yet, if, on reading the section as a whole, it was clear that the intention of the legislature was to prohibit the transmission by post of all matter capable of giving offence whether by reason of the nature of the contents (however innocent the exterior), or by reason of objectionable words or marks appearing on the outside of the postal article, it would be our duty to give effect to that intention even though that could be done only by placing, as we think, a very strained interpretation on some of the words of the section. But the section itself makes a distinction: in the case of a seditious matter it is clear that there is an absolute prohibition against its transmission, whether it be a written communication, a book, or a pamphlet, and whether it be open and visible in whole or in part, or enclosed in an envelope or parcel: the Words of the section are: "The transmission by post of any postal article of a seditious character ... is prohibited". If the same absolute prohibition had been intended to apply to "scurrilous, threatening, indecent, obscene or grossly offensive" matters, these adjectives would naturally have been inserted after the word "seditious", and the section would have been complete in its scope and clear in its meaning. The difference in the language used regarding the two categories of objectionable matter must, in our judgment, be taken to indicate a difference in the intention of the legislature regarding them. It may be that this will have the unfortunate result indicated by the Acting Attorney General, but, in the words of Lord Denman in Green v. Wood (14 L. J. Q. B. 217), "If the Act of Parliament uses words which do not carry out the supposed intention of the legislature, the Court cannot add them. . . We cannot introduce a new provision into the Act, merely because we think those who framed it would have done so if the question had presented itself to them. It is the duty of Judges to confine themselves to the express provisions of Acts of Parliament".

For these reasons we are of opinion that the decision of the learned Resident Magistrate was correct and we reject the application for revision.