Rex v Thani (Cr. App. No. 42/1935) [1937] EACA 204 (1 January 1937)

## APPELLATE CRIMINAL

Before SIR JOSEPH SHERIDAN, C. J., and LUCIE-SMITH, J.

## REX, Appellant ALI EIN THANI, Respondent (Original Accused) Cr. App. No. 42/1935

Customs—Smuggling—Aiding and abetting—Customs Management Ordinance, 1926, secs. 224 (a), 230.

Case stated under section 353 of the Crim. Proc. Code as $follows:$

(a) Ali bin Thani was charged under section 224 (a) and 233 read with section 244 of Ordinance 25 of 1926, and alternatively under sections 224 (a), 230 and 233 read with Section 244 of Ordinance 25 of 1926.

The particulars in the charge sheet are as follows:—

Smuggling, section 224 $(a)$ with section 244 and 233 of Ordinance 25 of 1926, alternatively aiding and abetting smuggling, sections 224 (a) and 230 with sections 244 and 233, Ordinance 25 of 1926.

That on or about the middle of March several bags of sugar were landed at Manyimbo from a dhow and placed in a hut and under a mango tree there. On 21st, 22nd and 23rd March the sugar was removed on the accused's instructions to the accused's store at Kwashibu wa Shimba. On 28th March, 1935, the store was searched and 26 big bags and 86 small bags of sugar were found. No customs duty had been paid on this sugar.

(b) The facts found to be proved are—

(1) That the sugar was "imported" sugar;

(2) that the importation was complete by the time the sugar reached the premises at Manyimbo;

(3) that there was an intent to defraud the revenue; $\ddot{ }$

(4) that the sugar was smuggled goods;

(5) that Ali bin Thani knew that the sugar was smuggled goods:

(6) that knowing this he had the sugar removed from premises at Manyimbo to premises at Kwashibu wa Shimba, both of these places being on the Island of Mombasa, and the premises at Manyimbo being close to the sea.

(c) Mr. Griffin, Asst. Inspector of Police, who conducted the case for the Crown, submitted that the offence of smuggling continues until customs duties have been paid. He submitted that the provisions of section 230 of Ordinance 25 of 1926 were much wider than those of section 21 (c), Penal Code, and that Ali bin Thani was liable as a principal.

(d) Mr. Budhdeo, who defended, submitted that removing smuggled goods knowing them to be smuggled was not smuggling or abetment of smuggling; and that smuggling was the act of importation with intent to defraud the revenue.

(e) The Court found Ali bin Thani to be not guilty of smuggling or abetment of smuggling.

(f) The Court desires to submit the following questions of law for the opinion of the Supreme Court:-

(1) Can a person be convicted of aiding, or abetting, or of being concerned in the commission of an offence which has already been committed? The Court's submission is that an act which takes place after an offence has been committed can never acquire the character of an act of abetment, and that in order to prove a person guilty as an abettor he must be proved to have done something at the time of, or prior to, the actual commission of the offence.

(2) Is smuggling a continuing offence affecting all persons who handle the goods with guilty knowledge?

The Court's submission is that it is not. If it were then anyone who received and sold a pound of this sugar five years later, knowing it to be smuggled goods, would be guilty of smuggling.

Mr. Griffin, for Crown, refers to the word "within" in the definition of "importation" and submits that the movements of goods within the territory are covered by this definition.

Mr. Budhdeo, for Ali bin Thani, submits that there was no evidence before the Court from which, in law, it could be inferred that the sugar referred to in the charge was smuggled, i.e. imported from a foreign port. Mr. Budhdeo, further submits that there was no evidence before the Court from which, in law, it could be inferred that Ali bin Thani had knowledge of the way or manner in which the sugar referred to in the charge had come to the building at Manyimbo. He further submits that in view of conflicting evidence on behalf of the prosecution in material respects the prosecution could not be held, in law, to have proved their case beyond a reasonable doubt.

Held (12-8-35).-(1) That a person cannot be convicted, under section 230 of Ord. $25/1926$ , of aiding abetting or being concerned in the commission of<br>an offence by reason of an act which takes place after the offence has been committed:

(2) That the accused could not be said to have imported the goods or to have aided, abetted, counselled, procured or to have been directly or indirectly concerned in their importation.

Lewey, Crown Counsel, for the appellant.—The onus was on the respondent to prove that the goods had been lawfully imported: sec. 244. Sec. 202 authorizes the arrest of a person who is believed to have smuggled goods in his possession. "Smuggling" means (inter alia) importation with intent to defraud the revenue, and see Hals. IX 522. The importation was not complete until duty had been paid. He referred to Budenberg v. Roberts (L. R. 1 C. P. 575), Leaper v. Smith (145 E. R. 601), A. G. v. Weeks (145 E. R. 654), Canada Sugar Refining Co. v. Queen (1898 A. C. 735).

Budhdeo for the respondent.—There was no evidence that the sugar was imported from a foreign port, or that the respondent knew that it was smuggled. He referred to R. v. Smith (101 E. R. 1561).

JUDGMENT.—This is an appeal by way of a case stated from a decision of the learned Resident Magistrate, Mombasa, in a case under the Customs Management Ordinance in which the respondent was acquitted on charges of smuggling and aiding or abetting smuggling.

In our opinion the first submission of law reading:—

"Can a person be convicted of aiding, or abetting or of being concerned in the commission of an offence which has already been committed? The Court's submission is that an act which takes place after an offence has been committed can never acquire the character of an act of abetment and that in order to prove a person guilty as an abettor he must be proved to have done something at the time of, or prior to, the actual commission of the offence",

must be answered in the negative.

This being our view it is not necessary strictly speaking to answer the second submission but lest there should be any doubt in the matter we shall state our opinion as being that as the law stands the accused cannot be said to have imported the goods or to have aided, abetted, counselled, procured, or to have been directly or indirectly concerned in their importation and cannot in consequence be held to have smuggled or to have aided or abetted a smuggling within the meaning of section 230 of the Ordinance. "Imported" under the English Customs Consolidation Act, 1876, is defined as "shall mean, include and apply to any owner or person for the time being possessed of or beneficially interested in any goods at or from the time of the importation thereof until the same are duly delivered out of the charge of the officers of Customs", but there is nothing corresponding to this definition in our local laws.

Section 202 of the local Ordinance gives a power of arrest as $follows:$ —

"Any officer of Customs or police may without warrant arrest any person whom he has reasonable ground to believe is guilty of committing, or attempting to commit, or being concerned in the commission of any of the following offences: $-$

(a) smuggling; or

(b) unlawfully conveying or having in possession any $(b)$ smuggled goods."

But then the Ordinance fails to make "unlawfully conveying or having in his possession any smuggled goods" an offence. The<br>determination of the case by the learned Magistrate is affirmed. The appeal is dismissed.

We are unable to differentiate this case from that of the Commissioner of Customs v. Boustead and Clarke, Ltd., (10 K. L. R. 51) on the question of costs. Costs to the respondent, the figure being agreed by the Crown at £10-10 and accepted by Mr. Budhdeo.