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Shah v Regina (Criminal Appeal No. 1258 of 1953) [1953] EACA 16 (1 January 1953)
- Citation
- [1953] EACA 16
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Hearne CJ
- Case number
- Criminal Appeal No. 1258 of 1953
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Hearne CJ
- Case number
- Criminal Appeal No. 1258 of 1953
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appellant's plea did not amount to an unequivocal admission of guilt for the offence charged under section 43(1) of the Liquor Ordinance, as there was no admission that the bottles sold contained intoxicating liquor. The use of the word 'illegally' in the plea does not itself constitute a guilty plea. A valid plea of guilty requires distinct admission of all facts necessary to constitute the offence. In the absence of such admission, there was no proper trial, and the magistrate lacked jurisdiction to convict and sentence the appellant. The conviction was therefore a nullity and must be set aside. Furthermore, the correct charge for selling perfume containing more than 10% spirit to Africans should be under the proviso to section 2(2) and section 56 of the Liquor Ordinance, not section 43(1).
Court disposition
appeal_allowed
Orders
- Conviction set aside.
02
Material facts
Parties
Lalji Vershi Shah
Appellant Counsel: A. R. KapilaRegina
Respondent Counsel: Bechgaard03
Procedural history
Posture
Criminal Appeal / Appeal
04
Questions and positions
Legal issues
- 01
Whether the appellant's plea amounted to an unequivocal admission of guilt under section 43(1) of the Liquor Ordinance.
- 02
Whether the sale of eau-de-Cologne constitutes sale of intoxicating liquor under the Ordinance.
- 03
Whether the magistrate had jurisdiction to convict and sentence without a proper trial when the plea was equivocal.
- 04
Whether the correct charge should have been under the proviso to section 2(2) and section 56 of the Liquor Ordinance.
Party arguments
- Applicant
- Counsel for the appellant argued that the plea entered was not unequivocal, as the appellant admitted only to selling two bottles of eau-de-Cologne, not to selling intoxicating liquor. The charge was also alleged to be bad for duplicity, and the conviction was challenged on the basis that the facts admitted did not constitute the offence charged.
- Respondent
- Crown Counsel contended that the appellant's admission of selling two bottles of eau-de-Cologne to Africans amounted to an admission of selling intoxicating liquor, thus constituting a guilty plea under section 43(1) of the Liquor Ordinance. It was further argued that no appeal lay due to section 348(2) of the Criminal Procedure Code.
05
Court’s reasoning
Legal principles
- 01
Section 348(2), Criminal Procedure Code; general criminal procedure doctrine
A plea of guilty must be a distinct admission of each and every fact necessary to constitute the offence charged.
- 02
Liquor Ordinance (Cap. 266), sections 2(2), 43(1), 56
The sale of perfume containing spirit to Africans is not necessarily an offence under section 43(1) of the Liquor Ordinance, but may be an offence under the proviso to section 2(2) and section 56.
- 03
Section 348(2), Criminal Procedure Code
No court has jurisdiction to pass sentence without a trial in accordance with the Criminal Procedure Code.
06
Ratio, limits and disposition
Ratio decidendi
The appellant's plea did not amount to an unequivocal admission of guilt for the offence charged under section 43(1) of the Liquor Ordinance, as there was no admission that the bottles sold contained intoxicating liquor. The use of the word 'illegally' in the plea does not itself constitute a guilty plea. A valid plea of guilty requires distinct admission of all facts necessary to constitute the offence. In the absence of such admission, there was no proper trial, and the magistrate lacked jurisdiction to convict and sentence the appellant. The conviction was therefore a nullity and must be set aside. Furthermore, the correct charge for selling perfume containing more than 10% spirit to Africans should be under the proviso to section 2(2) and section 56 of the Liquor Ordinance, not section 43(1).
Obiter and limits
- No chemist who sells eau-de-Cologne over a counter regards himself as a retailer of intoxicating liquor.
- On conviction of selling perfumery with over 10% alcohol to Africans, the offender is not liable to the penalty provided by section 43(4).
Court disposition
appeal_allowed
- Conviction set aside.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
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.
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