Shah v Regina (Criminal Appeal No. 1258 of 1953) [1953] EACA 16 (1 January 1953)

# Before HEARNE, C. J.

#### LALJI VERSHI SHAH, Appellant

$\nu$ .

## REGINA, Respondent

## Criminal Appeal No. 1258 of 1953

Criminal Law-Liquor Ordinance (Cap. 266) section 43 (1)-Sale of perfume containing spirit to Africans—Whether intoxicating liquor—Plea equivocal— No trial—Section 348 (2) Criminal Procedure Code—No jurisdiction to pass sentence without trial.

The appellant was charged with selling intoxicating liquor to two Africans contra section 43 (1) of the Liquor Ordinance (Cap. 266). In reply he stated that he had sold "two bottles" to the Africans "illegally as charged". He was convicted on plea, and fined. He appealed on the ground that his statement in answer to the charge did not amount to an equivocal plea of guilty, being without admission that the bottles contained intoxicating liquor.

Held (5-10-53),—(1) The use of the word "illegally" does not itself make the plea one of guilty. It is for the Court to decide whether facts admitted by the accused amount to a plea of guilty.

(2) In the absence of an admission that the bottles contained intoxicating liquor, the the answer to the charge was not an unequivocal plea of guilty.

(3) A plea of guilty must amount to a distinct admission of each and every fact<br>necessary to constitute the offence charged. Where it does not, yet conviction follows upon it, there is no trial.

(4) Where there is no trial the sentence is not a sentence within the contemplation of section 348 (2), Criminal Procedure Code which envisages, at least, a sentence passed with jurisdiction. No Court has jurisdiction to pass a sentence without a trial in accordance with the provisions of the Criminal Procedure Code.

Semble.—Where there has been a sale to an African of perfume containing more than 10 per cent of spirit the charge should not be laid under section $43$ (1) of the Liquor Ordinance (Cap. 266) but the accused should be charged with an offence created by the proviso to section $2(2)$ and made punishable by section 56.

Appeal allowed.

Case referred to: Rex v. de Souza, Cr. Appeal No. 22/53 (Mombasa) (unreported).

### A. R. Kapila for appellant.

Bechgaard, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was charged with the sale of intoxicating liquor to an African contra section 43 (1) Cap. 266 of the Laws of Kenya, 1948, in that "being the proprietor of a shop he did sell or allow to be sold two bottles of "eau-de-Cologne", 66 per cent alcohol, to two Masai moran. It was argued by the advocate for the appellant that the charge was bad for duplicity. But I am not deciding the appeal on that ground, although I must point out that I do not agree that the judgment of this Court in Rex v. de Souza, Criminal Appeal 22/53 (Mombasa), which was referred to by Crown Counsel, is an answer to the allegation of duplicity in this appeal. The appellant's answer to the charge was "I admit" selling two bottles to the woman (? moran) illegally as charged". The use by the appellant of the word "illegally" does not of itself make the plea one of guilty. It is for the magistrate to decide whether the facts admitted by the appellant

amount to a plea of guilty. Crown Counsel conceded this but contended that when the appellant said he had sold two bottles, meaning two bottles of eau-de-Cologne, he admitted having sold intoxicating liquor, and so pleaded guilty to an offence under section 43 (1). To a layman this may appear to be a rather surprising statement. No chemist who sells eau-de-Cologne over a counter regards himself, I am convinced, as a retailer of intoxicating liquor. The Ordinance requires to<br>be examined. In the Ordinance "Intoxicating liquor" means "any spirit" (I take this to mean any volatile liquid obtained by distillation, as for instance, brandy), "wine, ale, beer, etc." and any "liquor". (I take this to mean any liquid or a solution of a particular substance) of a strength exceeding 3 per cent proof spirit. Proof spirit is of course a mixture containing fixed proportions of alcohol (or pure spirit) and water. Section 2 (2) of the Liquor Ordinance enacts that "the provisions of this Ordinance shall not apply to any person selling any spirituous or distilled perfumery: provided that no person shall sell to an African any perfume, scent or essence containing more than 10 per cent alcohol except by virtue of a special permit which may be granted for each occasion by a district commissioner". Eau-de-Cologne is a perfumed spirit, it is distilled perfumery, and it would appear from the scheme of the Liquor Ordinance that when a person is charged with selling to an African perfumery with over 10 per cent of alcohol, he should not be charged under section 43 (1) but with an offence which has, so to speak, been created by the proviso to section 2 $(2)$ and made punishable by section 56 of the Ordinance. It would also appear that on conviction of this offence, an offender is not liable to the penalty provided by section 43 (4). But I have digressed from the submission of Crown Counsel that the appellant had admitted the sale by him to two Africans of intoxicating liquor. I do not agree. He admitted having sold two bottles of eau-de-Cologne and no more than that. He made no admission that the eau-de-Cologne contained 66 per cent of alcohol (if it does) or any percentage of alcohol at all. In my view the trial was a nullity or if I may put it differently—and I do so for a reason that will appear later there was no trial at all.

It was argued by the Crown Counsel that no appeal lay by reason of the provisions of section 348 (2), Criminal Procedure Code. It has repeatedly been said that a plea of guilty must be a distinct admission of each and every fact necessary to constitute the offence charged. "Unless the accused admits each and every fact... and unless the Judge finds on the admissions made that the offence charged is legally established, he should take the evidence and come to a decision thereon", in other words the accused should be tried. Whatever may be the position when the accused has pleaded not guilty and has been tried and found guilty (I am not now dealing with such a case), I am clear that, if an accused is sentenced without trial when his plea is not an unequivocal plea of guilty, his sentence is not a sentence within the contemplation of section 348 (2), Criminal Procedure Code. "Sentence" in section 348 (2), Criminal Procedure Code at least means a sentence passed with jurisdiction and no magistrate has jurisdiction to pass any sentence without a trial in accordance with the provisions of the Criminal Procedure Code.

I allow the appeal and set aside the conviction.