Rex v D'Silva (Criminal Appeal No. 11 of 1947) [1947] EACA 75 (1 January 1947)

## APPELLATE CRIMINAL

### Before HORNE and BOURKE, JJ.

### REX, Respondent

$\nu$ .

# F. X. D'SILVA, Appellant

### Criminal Appeal No. 11 of 1947

Criminal law-Permitting unlicensed premises to be used for manufacture of foodstuff—Public Health (Manufacture, Preparation, Packing and Repacking of Food) Rules, 1944, R. 4—"Permit."

The appellant was the owner of certain premises which he had let to Ngara Bakery. Ngara Bakery sub-let part of the premises to S. for the purpose of manufacturing foodstuff. The appellant was aware of the sub-letting and its purpose but took no action. He was convicted of permitting the preparation of food intended for sale for human consumption in a native tea shop on his land knowing that the person preparing such food was not in possession of a licence contrary to the Public Health (Manufacture, Preparation, Packing and Repacking of Food) Rules, 1944, R. 4. The appellant appealed.

Held (13-3-47).—(1) That the word "permit" means one of two things, either to give leave for an act which without that leave could not be legally done, or to abstain from taking reasonable steps to prevent the act when it is within a man's power to prevent it.

(2) That knowledge of the act, standing by, and receipt of advantage from it and failure to take steps to stop it will not amount to permitting the act under this Rule unless the person so acting has power to prevent the act, which he did not in the present case.

Appeal allowed.

Berton v. Alliance Economic Investment Co. (1922) 1 K. B. 759 referred to.

#### Nazareth for the Appellant.

Phillips, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was charged with having permitted the preparation of food intended for sale for human consumption in a native tea shop on his land, L. R. 336/5, Ruaraka, knowing that the person preparing such food had no licence under rule 4 of the Public Health (Manufacture, Preparation, Packing and Repacking of Food) Rules, 1944.

The rule is in these terms: —

"No person shall use any premises or being the owner or occupier thereof permit or suffer the same to be used for the manufacture, etc...

unless the person so using shall be in possession of a current licence ...". The premises in question had been let by the appellant to a firm styled the Ngara Bakery who were in possession under a document comprising a sale of the business formerly carried on by the appellant and an agreement for a lease for a year. It was agreed that the lease should contain a covenant "not to assign, sublet or part with the possession of the premises or any part thereof".

The appellant's case was that he had not possession of the premises, that Ngara Bakery was a tenant, that even if he gave the firm notice to quit they could take advantage of the Rent Restriction Ordinance and remain on as a statutory tenant. In short, he had no control and therefore could not be said to permit the act complained of, which was that one Sandberger was making chocolates in the premises let to Ngara Bakery.

It was proved that the appellant knew that Sandberger wanted the premises as a factory and that early in July Sandberger had approached the appellant and informed him that he had arranged a place with the Ngara Bakery and wanted certain nearby servants' quarters, the property of the appellant. There was a

charge in respect of these quarters also, but the magistrate did not convict on that charge, although the letting was by the appellant direct to Sandberger, because the magistrate considered the appellant would not know what was going on in these servants' quarters which are further from the appellant's dwelling than is the tea shop building. On that charge the magistrate in effect held that a person cannot permit another to contravene the rule unless he has control. But on the charge in respect of the Ngara Bakery building where the letting to Sandberger is not by the appellant but by his tenant Ngara Bakery, who is in possession, he holds that the appellant had control.

We adopt the meaning given by Atkin, L. J., as he then was, to the word "permit" in Berton v. Alliance Economic Investment Co. (1922), 1 K. B. at p. 759, "..... the word 'permit' means one of two things, either to give leave for an act which without that leave could not be legally done, or to abstain from taking reasonable steps to prevent the act where it is within a man's power to prevent it".

Mr. Phillips has directed us to the latter alternative but has not shown us how on the evidence the appellant had any power to prevent Ngara Bakery from sub-letting to Sandberger, or to prevent Sandberger from manufacturing food on the premises sub-let to him by Ngara Bakery. The appellant as landlord could have taken reasonable steps in the case of the servants' quarters but the magistrate has found he had no knowledge as to what was going on. As to the tea shop premises it is found that he had the knowledge but took no action. In fact, by letting the servants' quarters to Sandberger, whom he knew had no licence covering manufacture in the tea shop, he shows his approval. And it is reasonable to assume that the appellant receives an advantage in letting the servants' quarters in those circumstances. But knowledge of the act, standing by, and receipt of advantage from it and failure to take steps to stop it will not amount to permitting the act under this rule unless the owner so acting has power to prevent the act. Such steps as have been now suggested, such as writing letters, giving notice and so on, would not be effective in the case of Ngara Bakery. To make the appellant liable to conviction under the rule the Ngara Bakery must at least be shown to be the appellant's agent before the appellant can be said to have control. That is not the case here and the appeal is allowed and the conviction quashed.