Rex v Gordhanbhai (Criminal Revision Case No. 122 of 1941) [1940] EACA 69 (1 January 1940)

### **CRIMINAL REVISION**

## Before LUCIE-SMITH and HAYDEN, JJ.

## REX. Prosecutor

### v.

## MAGANBHAI S/O GORDHANBHAI. Accused

# Criminal Revision Case No. 122 of 1941

Criminal Law—Criminal Procedure—Imprisonment without the option of fine— Conflict of laws—Section 52 (1) of the Game Ordinance (No. 38 of 1937) as compared with section 26 (3) of the Penal Code of Kenya (as amended by Ordinance No. 29 of 1933)—Section 52 (3) of the Game Ordinance and its application considered.

The accused was charged before the Resident Magistrate, Mombasa, with being in possession of rhinoceros horns contrary to the provisions of section 7 of the Game Ordinance (No. 38 of 1937). The accused pleaded guilty to the offence and was sentenced to a fine of Sh. 300 or one month's imprisonment with hard labour in default of payment.

The case came before the Supreme Court for revision on the application of the Crown, who submitted that it was incumbent on the trial magistrate to impose a substantive term of imprisonment in addition to any fine, in view of the provisions of section 52 (1) of the Game Ordinance.

It was contended by counsel for the accused at the review that the magistrate was empowered to impose a fine in lieu of imprisonment by section 26 (3) of the Penal Code in view of the fact that this was an enactment of a general application and had not been expressly excluded by the wording of section 52 (1) of the Game Ordinance.

It was further contended by counsel for the accused that section 52 (3) of the Game Ordinance applied and expressly provided for the option of a fine.

Held (5-7-41).-(1) That in view of the fact that the relevant sections of the Penal Code (as amended) and the Game Ordinance were clearly inconsistent and that the latter was the later enactment of the two, there must be of necessity an implied repeal of the former to the extent of the inconsistency.

(2) That although the accused was charged under section 7, and section 7 does not expressly provide a penalty for, the offence charged, section 52 (1) creates an offence and expressly prescribes a penalty for, inter alia, the unlawful possession of rhinoceros horns (*contra* section 7) and therefore on could not apply.

(3) That in view of (1) and (2) supra the learned magistrate had erred in not imposing a substantive sentence of imprisonment upon the accused. Conviction affirmed, but sentence varied to one of the fine already imposed plus one day's imprisonment.

#### Trivedi for the Accused.

#### Spurling, Crown Counsel, for the Crown.

JUDGMENT.—The accused was charged with being in possession of rhinoceros horns contrary to the provisions of section 7 of the Game Ordinance, 1937 (No..38) of 1937). The accused pleaded guilty to the offence and was sentenced to a fine of Sh. 300 or one month's imprisonment with hard labour in default of payment.

The case has come before us for revision, the Crown submitting that in view of the provisions of section 52 (1) of the Ordinance it was incumbent upon the trial magistrate to impose a substantive term of imprisonment in addition to a fine. The relevant portion of section 52 (1) reads: $-$

"Any person who is guilty of an offence against this Ordinance in respect of the .... unlawful possession .... of rhinoceros horn shall be liable to imprisonment for a period not exceeding six months without the option of a fine, and to a fine not exceeding £300."

Mr. Trivedi, on behalf of the accused, submitted that under section 26 (3) of the Penal Code as amended by Ordinance No. 29 of 1933, the magistrate was empowered to impose a fine in lieu of imprisonment as that was an enactment of general application. Section 26 (3) of the Penal Code as amended reads:-

"A person liable to imprisonment for an offence against this Code or against any other law may be sentenced to pay a fine in addition to or instead of imprisonment."

It was contended that in order to prevent the application of section 26 (3) of the Penal Code to the present case, section 52 (1) of the Game Ordinance should have contained the words, "Notwithstanding the provisions of section 26 (3) of the Penal Code", a person guilty of an offence against that Ordinance should be liable to the penalties therein provided. Section 3 (1) of the Penal Code as amended by Ordinance No. 24 of 1935 reads: —

"Except as hereinafter expressly provided nothing in this Code shall affect the liability, trial or punishment of a person for an offence against the Common Law, or against any other law in force in the Colony other than this Code."

Mr. Trivedi's submission, in effect, was that section 26 (3) of the Penal Code expressly provided for the imposition of a fine in the present case instead of imprisonment. It has to be borne in mind that the Game Ordinance was enacted subsequent to the Penal Code as amended. Field, J. in Regina v. Commissioners of Inland Revenue (1888), 21 Q. B. D. 569 at 577, said: "But it is a maxim of construction that where the provisions in two Acts of Parliament are clearly inconsistent, then there is of necessity an implied repeal of the inconsistent provisions of the earlier Act".

Maxwell on the Interpretation of Statutes (8th Ed.) page 145, "Again, if the co-existence of two sets of provisions would be destructive of the object for which the later was passed, the earlier would be repealed by the later". We would also cite a passage from the judgment in Rex v. Yusuf Imam, 15 K. L. R. 139 at 140, which reads: "It is a well known principle that special provisions override general provisions, and that where there is a special provision made in respect of the proper punishment for one specified offence, that provision overrides any general provision for the punishment of offenders generally."

Now section 52 (1) of the Game Ordinance enacts, *inter alia*, as already stated, that a substantive term of imprisonment is to be imposed for the unlawful possession of rhinoceros horns, whereas section 26 (3) of the Penal Code, if it applied, would enable a court to award a fine instead of imprisonment. The earlier enactment is clearly inconsistent with the later and if applicable, would be destructive of the object of the later, namely the punishment with imprisonment without the option of a fine of any person guilty of an offence relating to rhinoceros.

We are therefore of the opinion that for the purposes of the present case the provisions of section 26 (3) of the Penal Code are by implication repealed by section 52 (1) of the Game Ordinance.

It was further submitted on behalf of the accused that by virtue of section 52 (3) of the Game Ordinance the court was empowered to impose a fine only. The relevant portion of that sub-section reads: -

"Any person who contravenes any of the provisions of this Ordinance or who is guilty of an offence against this Ordinance $\dots$ for which a penalty is not expressly provided, shall be liable to a fine not exceeding £100 or to imprisonment for a period not exceeding six months or to both such fine and imprisonment."

Section 7 of the Game Ordinance under which the charge was framed $reads:-$

"No person shall possess any game animal or any trophy or the meat of any game animal except in accordance with the provisions of this Ordinance."

Section 2 of that Ordinance defines trophy to mean, inter alia, any horn of any game animal. Mr. Trivedi's contention was that as section 7 did not expressly provide a penalty for the offence, the subject matter of the charge in this case that therefore section 52 (3) applied. We consider the argument ingenious but falacious as section 7 merely prohibits, inter alia, the possession of rhinoceros horns except as provided by the Ordinance and section 52 (1) creates an offence and prescribes a penalty for, among other things, the unlawful possession of same.

We accordingly consider that the learned magistrate erred in not imposing a substantive sentence of imprisonment upon the accused.

We affirm the conviction but vary the sentence to one of one day's imprisonment, which will mean until the rising of the Court. The fine imposed will stand.