[1956] EACA 4

#### APPELLATE CRIMINAL

### Before RUDD, J., and EDMONDS, J.

## AMRITLAL JIVANBHAI LAKHANI, Appellant

# THE QUEEN, Respondent

### Criminal Appeal No. 212 of 1956

### Weights and Measures Ordinance, 1951, section 23—Whether employer criminally liable for act of employee—Mens rea.

The employee of the appellant, acting on the appellant's behalf and in the course, and within the scope of his (the employee's) employment, made false statements by way of invoices as to the weight of rice sold by him. The appellant, who did not know of the transactions, was convicted.

Held (1-12-56).—Section 23 of the Weights and Measures Ordinance creates an absolute liability. No mens rea is required and an employer is liable under the section for the act of his servant in breach of the section when the act is committed by the servant on his master's behalf and in the course of and within the scope of his employment.

Appeal dismissed.

Cases referred to: Mousell Bros. v. L. & N. W. Rly., (1917) 2 K. B. 836; Brentnall<br>and Cleland Ltd. v. L. C. C., (1945) K. B. 115; Linnett v. Commissioner of Police for the<br>Metropolis (1946) 1 All E. R. 380; Gardner v. Akeroyd, of Police v. Cartman, (1896) 1 Q. B. 655.

O'Brien Kelly for the appellant.

Brooks, Crown Counsel, for the respondent.

JUDGMENT.—The appellant appeals against his conviction on three counts under section 23 of the Weights and Measures Ordinance (No. 49 of 1951). The first count of the charge reads as follows:—

"Count 1.—False statement as to the weight of goods contrary to section 23 of the Weights and Measures Ordinance (No. 49 of 1951).

Amritial Jivanbhai Lakhani, trading as West End Provision Store, Second Avenue, Eastleigh, in the Nairobi Extra-Provincial District, at approximately 11.35 a.m. on 9th March, 1956, did indirectly through an employee in writing make a false statement as to the weight of 4lb. 15oz. 15dr. of rice supplied to Mr. R. Dalgado, by the issue of Invoice No. 5541, which stated the weight of such rice to be $7\frac{1}{2}$ lb."

The second and third counts are in the same terms except that they allege the making of a false statement as to different weights of rice supplied to the complainant on different days. The facts which the magistrate found to be proved by the prosecution were that on 9th, 12th and 14th March, 1956, one, Dalgado, ordered 5 lb. of rice and on each occasion was handed a sealed package containing respectively quantities of rice less than that which the servant of<br>the appellant invoiced to him as being $7\frac{1}{2}$ lb. of rice. It was not disputed that the delivery of the rice was made by a servant of the appellant who wrote out the false invoices which purported to show the quantities of rice sold and delivered to Dalgado by the appellant. The appellant's defence to the charge was that he had no knowledge of the act of his servant, but the magistrate convicted the appellant on the grounds that he was liable for the act of his servant.

The principal ground of appeal is that the magistrate misinterpreted the provisions of section 23 of the Ordinance and failed to appreciate that those provisions could apply only to those persons who themselves made the false statements, and the substantive question for decision in this appeal is whether section 23 imposes vicarious liability upon an employer for the act of an employee. While conceding that the wording of this section does not require mens rea Mr. Kelly argued that the making of the false statement must be personal to the person who makes it and cannot incur liability in that person's master. It will be convenient at this stage to set out the provisions of section 23; —

"23. Any person who, by means of words, description, advertisement, or other indication whether direct or indirect, makes any false, incorrect or untrue statement as to the number, gauge, weight, measure, or quantity of any goods or things, or delivers to any person a less number, gauge, weight, measure or quantity of any goods or things than that demanded or agreed to be sold by way of trade shall be guilty of an offence and shall be liable to a fine not exceeding three thousand shillings or to imprisonment for a term not exceeding one year or to both such fine and imprisonment or in the case of a second or subsequent offence, to imprisonment for a term not exceeding three years:

Provided that nothing in this section shall affect the operation of the Sale of Goods Ordinance.

Mr. Kelly concedes that the legislature has, in many instances, been held to have laid down that a master or principal is liable criminally or quasicriminally for certain acts of his servant or agent, but argues that in such cases the wording of the statute or Ordinance was precise and unambiguous, and that the provisions of section 23, at least as to the making of a false statement, cannot be said to be so. He points out that nearly all the case law on the subject deals with the act of selling, but submitted that, where a master has been held to be liable for the act of his servant, other than in a sale, such liability has sprung from the precise wording of the statute, and he referred us to Mousell Brothers v. London & North-Western Railway, (1917) 2 K. B. 836; Brentnall and Cleland Ltd. v. London County Council, (1945) K. B. 115; and Linnett v. Commissioner of Police for the Metropolis, (1946) 1 A. E. R. 380. Mr. Kelly argues that in a sale, the act of the servant is in law the act of the master so that the master has been held to be criminally responsible for sales at under-weights effected on his behalf by his servant.

Mr. Kelly has sought to draw a distinction between the provisions of section 23 of the current Ordinance and those of section 24 of the repealed Ordinance (Cap. 29, Volume 4 of the Laws of Kenya). Section 24 provides, inter alia, that: $-$

"Any person ... who makes any false ... statement as to the ... quantity of any goods or things in any trade dealing, shall be guilty of an offence..."

Mr. Kelly submits that under this section strict or absolute responsibility may be more readily inferred, as the provision relates to the making of a<br>false statement "in any trade dealing", that is to say, in the course and as part of a sale, and that the act of the trade dealing by a servant might be said to be the act of the master. But he argues that under the provisions of the present section 23 there is no such similar provision, and no reference to such false statement being made in the course of any trade dealing. We do not think that this is an accurate interpretation of the section. We think that the words which appear later in the section, namely "than that demanded or agreed to be sold by way of trade ...", apply equally to the making of a false statement of quantity as they do to the delivery of a less quantity. We think that there is little or no distinction between the implication and meaning

of the words "in any trade dealing" and the words "than that demanded or agreed to be sold by way of trade". In our view section 23 makes it an offence for anyone to make a false statement as to the quantity of goods which have been agreed to be sold, that the false statement is part and parcel of the act of selling and that as there is a complete absence in the section of any words to imply the requirement of mens rea, the prohibition is absolute and the master is liable for the acts of his servant. In Gardner v. Akeroyd, (1952) 2 Q. B. 749, Lord Goddard said:-

"A master who is not particeps in the offence can only be liable criminally for the acts of his servant if the statute which creates the offences does so in terms which impose absolute prohibition."

In our view, the terms of section 23 do impose such a prohibition.

The question may be decided by a consideration of the following questions: What is the object of the Ordinance? Was the servant acting within the scope of his employment? Is the prohibition absolute?

In Commissioner of Police v. Cartman, (1896) 1 Q. B. 655, Lord Russell of Killowen, C. J., said:-

"The question for our determination is whether the magistrate was bound to convict the respondent of the offence of selling intoxicating liquor to a drunken person contrary to the provisions of section 13 of the Licensing Act. 1872. The learned magistrate believed that the respondent bona fide gave instructions to his barman that no drunken persons should be served. and that he intended those instructions to be acted upon; but the question is whether that fact affords any answer to the charge. In considering this question, we must see what is the object of the Act, and how far that object would be effected or defeated if the construction contended for by the respondent were given to this section. There can be no question as to the object of this section; it was intended in the interest of public order. to prevent the sale of intoxicating liquors to drunken persons. It must be remembered that the persons from whom alone intoxicating liquors can be obtained are licensed persons: how do they carry on their business? From the nature of the case it must be largely carried on by others on their behalf; it is true that sometimes the licensee keeps in his own hands the direct control over his own business, but in the great majority of cases it is not so, the actual direct control being deputed to other persons: are the licensees in these latter cases to be liable under this section for the acts of others? In my opinion they are, subject to this qualification, that the acts of the servant must be within the scope of his employment."

These principles were put more precisely by Atkin, J. (as he then was) in Mousell's case (supra): —

"I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed."

Looking at section 23 of the Ordinance, in the way in which that learned Judge suggests it ought to be looked at, there can be doubt as to the intention of the legislature. The object of the Ordinance and of this section is to protect the public from being defrauded, and the evidence clearly establishes that the

appellant's shop assistant was acting within the scope of his employment. He, the assistant, is the person who, in ordinary circumstances, would deal with customers, and the forbidden acts are such as would ordinarily be performed by him. In fact he was a person held out by the appellant to the public as being competent and fully authorized by the appellant to effect sales and issue the necessary vouchers on the appellant's behalf. To use the words of Lord Russell in *Commissioners of Police v. Cartman (supra)* we think "it would be of very evil consequence if we were obliged to hold that the respondent was not guilty of the offence charged".

In our opinion the terms in which section 23 is enacted are consistent with the imposition of an absolute prohibition, the mischief aimed at by no means requiring that the master's liability should be limited in the way suggested by Mr. Kelly. As there is an absence of any words implying the requirement of mens rea, it is our view that an employer under the provisions of this section is liable for the act of his servant in breach of the section when the act is committed by the servant on his master's behalf in the course of and within the scope of his employment.

Mr. Kelly took a further point to the effect that the charge is irregular and discloses no offence because of the use of the word "indirectly", but, even if that word has in its context been wrongly employed, Mr. Kelly conceded that the irregularity could be cured by this Court in the exercise of the provisions of section 381 of the Criminal Procedure Code.

The appeal is dismissed.