Rex v Arari (Cr. App. 5/1931.) [1932] EACA 22 (1 January 1932)

APPELLATE CRIMINAL.

Before BARTH, C. J. and THOMAS, J.

REX

$(Respondent)$

v.

SHOICHI ARAI (Japanese) $(Appellant)$ .

Cr. App. $5/1931$ .

Criminal Law, Cap. 62-Immigration Restriction Ordinance-Failure to prove case by Crown-Criminal Procedure Code 196A.

$Held$ (20-2-31): - Where the prosecution fails to prove its case by admissible sworn evidence the accused is entitled to be forthwith discharged.

Burke for Appellant.

Doran, Crown Counsel, for Respondent.

Appellant was captain of a Japanese steamer from whose ship five prohibited emigrants were allowed to land.

The judgment of the Court was delivered by Sir Jacob Barth, C. J.

JUDGMENT.—This is an appeal from a conviction under section 19 of the Immigration Restriction Ordinance.

The facts alleged by the Crown are that five prohibited immigrants were allowed by the appellant, the captain of a Japanese ship to land.

It would appear from the reference to section 5A of the Ordinance that the would be immigrants had insufficient money to make the necessary deposit. The facts relating to the financial state of the immigrants have not been gone into at any length. Two of them are of the age of five and two years respectively.

There is no admissible evidence that the persons in respect of whom the charge was made have in fact landed and the learned Magistrate should at the conclusion of the case for the prosecution have dismissed the case, vide section 196A Criminal Procedure Code (and Criminal Procedure Code (Amendment) Ordinance, 1930).

The accused should not have been called to enter on his defence. He said: "I was sick. I told the purser and he let them go."

It has been argued for the appellant that this statement does not amount to an admission of the facts alleged against the accused.

In our view the accused was entitled to be discharged for lack of evidence against him and the appeal should be allowed and the accused discharged. The fine to be refunded to the accused.