Rex v Merali (Confirmation Case No. 605 of 1947) [1947] EACA 60 (1 January 1947)

CRIMINAL CONFIRMATION

Before NIHILL, C. J., and COFFEY, Ag. J.

REX. Prosecutor $v$ .

GULAMALI WALIMOHAMED MERALI, Accused Confirmation Case No. 605 of 1947

Criminal law—Section 41, Game Ordinance, 1937—Penalties.

Upon conviction for an offence against section 41 of the Game Ordinance, 1937, the accused was sentenced to a fine only.

Section 52 (1), the penalty section of the Game Ordinance, reads as follows: $-$

44 45 "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 $£300$ ".

Section 27 (3) of the Penal Code as amended by Ordinance No. 29 of 1933 reads as follows: -

"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".

Held (5-12-47).—That as the relevant section of the Game Ordinance, 1937, is later in date<br>than the relevant section of the Penal Code it overrules the latter and a sentence of imprisonment in addition to a fine should have been imposed.

ORDER.—This matter comes before us for confirmation of a sentence imposed on the accused for an offence against section 41 of the Game Ordinance, 1937. The sentence imposed was one of fine only, whereas under section 52 (1), which is the penalty section in this Ordinance, it is laid down that for the offence of unlawful possession of rhinoceros horn which is the offence with which the accused was convicted, it is arbitrary on the Court to impose some term of imprisonment. In Criminal Revision Case No. 122 of 1941 (19 K. L. R., page 95) the Court considered whether this obligation to impose imprisonment was overruled by the provisions of section 27, sub-section (3), of the Penal Code as amended by Ordinance 29 of 1933. The Court in that case held and we agree with the decision that as the provisions of the penalty section of the Game Ordinance, 1937, was later in time than the section of the Penal Code above referred to, it overruled the latter. It follows, therefore, that sentence of fine only imposed by the Magistrate in this case is incomplete and cannot stand by itself. The Crown has not asked us to say that the fine of Sh. 1,500 was an inadequate punishment, but the matter has been brought before us in order that we can set right the error under which the Magistrate fell.

From a perusal of the record of the case it seems to us that the Magistrate had good reason for not wanting to send the accused, who is a young man, to prison. In confirmation, therefore, we affirm the conviction and the fine imposed but add a sentence of one day's imprisonment, to expire at the rising of the Court.