[1948] EACA 28

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

REX, Respondent (Original Prosecutor) ν.

## ZAFFERALI TAYABALI MULLA DAUDJI, Appellant (Original Accused) Criminal Appeal No. 81 of 1948

## (Appeal from decision of H. M. Supreme Court of Kenya)

Criminal Law-Accused convicted of smuggling, section 224 (a), Customs Management Ordinance, 1926-Accused later charged with attempting to export game trophies, sections 37 (4), 51 (1) and 52 (1), Game Ordinance, 1937. and section 388. Penal Code-Plea of "autrefois convict"-Plea rejected—Sentence—Game Ordinance, section 52 (3)—Legality—"Attempt" -Penal Code, section 388.

The appellant who was alleged to have attempted to export from the Colony elephant tusks and rhinoceros horns without a licence from the Chairman of the Supply Board (as required by paragraph 3, Customs Management (Export Control) Order, 1946), was charged with smuggling contrary to the Customs Management Ordinance and was convicted on his plea of guilty. At a later date he appeared before the Supreme Court and was charged under the Game Ordinance, in respect of the same articles, with attempting to export game animal trophies without the written permission of the Game Warden. He pleaded autrefois convict. This plea was rejected by the trial Judge. The appellant then pleaded guilty. He was sentenced under section 52 (3) of the Game Ordinance and the sentence read as follows:-

"On Count 1 to pay a fine of Sh. 500 or 2 months' H. L. in default and in respect of each additional rhinoceros a fine of Sh. 100 totalling Sh. 6,900 or 6 months in default; and

on Count 2 to pay a fine of Sh. 1,000 or 3 months' H. L. in default, and in respect of each additional elephant to pay a fine of Sh, 100 totalling Sh. 7,500 or 6 months' H. L. in default.".

On appeal it was contended on the appellant's behalf that the plea of autrefois convict should not have been rejected, and that the sentence should not have been based on the Game Ordinance as the "attempt" was punishable under section 388 of the Penal Code with the general punishment for misdemeanours prescribed by section 37 of that Code.

Held $(21-7-48)$ .—(1) That on a plea of *autrefois convict* the test is not whether the facts relied on are the same at the two trials. The question is whether the acquittal or conviction on the previous charge necessarily involves an acquittal or conviction on the subsequent charge.

(2) That in applying this test to the facts of this case it is clear that a conviction of attempting to export goods without the licence of the Chairman of the Supply Board does not involve a conviction of attempting to export the same goods without the permission of the Game Warden.

(3) That the plea of autrefois convict was rightly rejected by the learned trial Judge. Appeal dismissed.

Cases referred to: R. v. Barron (1914) 10 C. A. R. 80; R. v. Sheen (1827) 2 C. & P. 634:

(4) That as only in certain specific cases the Game Ordinance prescribes punishment for attempt to do acts contrary to its provisions, and not in others, these other attempted contraventions should be dealt with as attempts to commit misdemeanours punishable under section 388 of the Penal Code.

(5) That whilst section 52 (3) of the Game Ordinance was not the proper section for convicting the Appellant, the learned trial Judge was justified in taking into consideration the number of animals involved in the offences in assessing the amount of the fines.

Convictions altered to convictions under section 388 of the Penal Code. Fines reduced to Sh. 6.900 or six months' H. L. in default on the first count and to Sh. 7,500 or six months' H. L. in default on the second count.

O'Brien Kelly for the Appellant.

Holland, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOHN GRAY, C. J.).—The appellant was on January 30, 1948, convicted on his plea of guilty by the R. M. Mombasa, on the following charge:-

"Smuggling contrary to section 224 (a) of the Customs Management Ordinance, 1926."

"Particulars of Offence."

"Zafferali Tayabali Mulla Daudji on or about the 1st day of January, 1948, at Mombasa in the Coast Province did attempt to export to Hong Kong by the s.s. Luxmi 366 pieces of elephant tusks weighing 1,937 lb. valued at Sh. 13,467/25, elephant tusk shavings weighing $74\frac{1}{2}$ lb. valued at Sh. 35 and 118 rhinoceros horns weighing 467³ lb. valued at Sh. 7,950 without a licence with intent to evade the prohibition contained in paragraph 3 of the Customs Management (Export Control) Order, 1946."

Paragraph 3 of the order just mentioned prohibits the export of the articles referred to in the charge without a licence from the Chairman of the Supply Board, Nairobi.

On March 8, 1948, the appellant was arraigned before the Supreme Court of Kenya on an information containing two counts. The first of these counts was as follows:-

Attempting to export game trophies from this Colony without the written permission of the Game Warden, contrary to sections 37 $(4)$ , 51 $(1)$ and 52 (1) of the Game Ordinance, 1937, and section 388 of the Penal Code."

"Particulars of Offence."

"Zafferali Tayabli Mulla Daudji on or about the 1st day of January, 1948, in the Coast Province did attempt to export to Hong Kong by s.s. Laxmi, game animal trophies, to wit, 118 rhinoceros horns, without the written permission of the Game Warden."

The particulars of offence given in the second count were in language similar to that of the particulars in the first count except that "366 pieces of elephant" tusks weighing 1.937 lb. and 74¹ lb. of elephant tusk shavings" were substituted for "118 rhinoceros horns".

It is not disputed that the game trophies referred to in these two counts. are identical with the articles referred to in the charge to which the appellant pleaded guilty in the Resident Magistrate's Court. When arraigned on these two counts, the appellant raised the preliminary plea of *autrefois convict*. The learned trial Judge rejected this plea and, on the appellant being again called on to plead to the information, he pleaded guilty to both counts and sentence was passed upon him.

The first ground of appeal in this case is that the learned trial Judge erred in rejecting the plea of *autrefois convict*.

Section 224 (a) of the Customs Management Ordinance, 1926, enacts that "no person shall smuggle any goods". Section 3 of the Ordinance defines "smuggling" as meaning "any importation, exportation, or carriage coastwise of goods with intend to defraud the revenue or to evade any prohibition of, restriction on, or regulation as to the importation, exportation or carriage coastwise of any goods".

Section 113 of the same Ordinance enacts that "goods of which the export is for the time being restricted or regulated by or under the authority of this Ordinance or any law for the time being in force in the Territory (in this Ordinance referred to as restricted or regulated exports) shall not be exported except in accordance with the restrictions or regulations applicable".

Section 37 (4) of the Game Ordinance, 1937, the enactment upon which the two counts to the information in the Supreme Court were founded, enacts that "No person shall export from the Colony any game animal or any trophy or the meat of any game animal unless the written permission of the Game Warden has been obtained to export such animal, trophy or meat".

Mr. O'Brien Kelly contends on behalf of the appellant that, as the attempt to export these trophies without the permission of the Game Warden amounts to smuggling as defined in the Customs Management Ordinance and that as the appellant stood convicted of the offence of smuggling goods contrary to section 224 (a) of that Ordinance, the plea of *autrefois convict* was wrongly rejected.

We are of opinion that in dealing with this contention it is important not to lose sight of the phraseology of the original charge to which the appellant pleaded guilty in the Resident Magistrate's Court. That charge does not follow literally the wording of section 224 (a) of the Customs Management Ordinance. The particulars of the offence do not confine themselves to the bare allegation that the appellant "smuggled" the goods in question. Had they been so worded and so limited, we feel that very probably there would have been much to be said for the contention which has been so ably put forward by Mr. O'Brien Kelly. But it is to be noted that the particulars of the offence do not use the word "smuggle". They allege that the appellant "did attempt to export" the goods in question "without a licence with intent to evade the prohibition contained in paragraph 3 of the Customs Management (Export Control) Order, 1946". An attempt to export the goods without a necessary licence with intent to evade this particular order undoubtedly amounts to smuggling as defined in section 3 of the Ordinance, but it is only one of a number of modes in which such goods can be smuggled.

In R. v. Barron (1914), 10 Cr. App. R. 80, the Court of Criminal Appeal dealt with the question of the validity of a plea of *autrefois acquit*, but what was said in that case applies equally to a plea of *autrefois convict*. As explained in that case by Lord Reading, L. C. J. (at page 89), the test is not whether the facts relied on are the same at the two trials. The question is whether the acquittal or conviction on the previous charge necessarily involves an acquittal or conviction on the subsequent charge. Applying this test to the facts of the present case, it is clear that a conviction of attempting to export goods without the licence of the Director of Supplies does not involve a conviction of attempting to export. the same goods without the permission of the Game Warden.

In view of the phraseology of the earlier charge in the present case we think it may not be out of place to refer to R. v. Sheen (1827), 2 C. & P. 634. That case was tried in the days when all indictments were required to be framed in meticulous detail and when on a charge of an offence against the person it was necessary, as pointed out in a footnote to the report, to describe the victima of the offence "with convenient certainty, which will hardly be dispensed with except in special cases, and for special reasons". Consequently, the prisoner, who was alleged to have murdered an illegitimate child of the age of four months, was indicted for that murder on thirteen counts, each of which referred to the child by a different name or description. To this the prisoner pleaded that he had previously been acquitted on an indictment charging him with the murder of the same child under yet another name and description. At the trial of the issue of *autrefois acquit* Burrough, J. directed the jury "that if the prisoner could have been convicted on the former indictment he must be acquitted now; and whether at the former trial the proper evidence was adduced before the jury or not is immaterial; for if by any possible evidence that could have been produced, he could have been convicted on that indictment, he is now entitled to be aquitted".

Applying the like test in the present case, it is obvious that evidence that the appellant attempted to export these trophies without the permission of the Game Warden would not have supported a conviction of the offence wherewith he was charged before the Resident Magistrate, namely, that he attempted to export the same articles without a licence from the Director of Supplies. There had therefore been no previous conviction of the appellant of attempting to export these trophies without the permission of the Game Warden and at the time of his arraignment in the Supreme Court the appellant had never been in peril of conviction on such a charge.

We are therefore of opinion that the plea of *autrefois convict* was rightly rejected by the learned trial Judge.

There is, however, a further ground of appeal as to the extent and legality of the sentence. The learned trial Judge has passed sentence under section 52 (3) of the Game Ordinance, holding that an attempt to export game animal trophies, is an act in contravention of the provisions of the Game Ordinance, and that as no specific penalty is provided therefor, it falls within the provisions of section 52 (3). For the appellant Mr. O'Brien Kelly contends that the attempt is punishable under section 388 of the Penal Code with the general punishment for misdemeanours prescribed by section 37 of that Code.

Section 52 (3) of the Game Ordinance prescribes the punishment imposable upon "any person who contravene any of the provisions of this Ordinance or who is guilty of an offence against this Ordinance, or of any proclamation, rule, order or notice made thereunder or of any breach of the conditions and restrictions subject to which or upon which any licence or permit has been granted under this Ordinance for which a penalty is not expressly provided". As will be noted, the sub-section makes no reference to attempts to commit offences. On the other hand, there are a number of sections in the Ordinance which do refer to attempts section 21 declares that any unqualified person who "obtains or attempts to obtain" a licence under the Ordinance "shall be guilty of an offence against this Ordinance". Section 30 (5) (a) enacts that "no person shall sell or barter or attempt to sell or barter" game traps, etc., without the permission in writing of the Game Warden. Similarly, section 36 enacts that "no person shall buy. sell, barter or exchange, or attempt to buy, sell, barter or exchange any game animal, or any trophy, or the meat of any game animal, without the written permission of the Game Warden".

Section 40 (1) of the Ordinance should also be referred to. It deals with the duty of the person who "kills a game animal by accident or in error" and the second proviso thereto declares that for the purposes of the sub-section the expression "kill" shall not include "attempt to kill".

Section 46 of the Ordinance deals with the question of onus of proof in cases of unlawful dealing with game animals, trophies, or the meat of game animals. "Whenever any person is charged with being in possession of or selling, buying, transferring or exporting any game animal or any trophy or the meat of any game animal obtained in contravention of this Ordinance or with attempting to do or the abetting the doing of any of the (six) acts, and proof is given that the possession was acquired on the act of selling, buying, transferring, exporting, or attempting so to do or abetting of the doing of any such acts was done, the onus shall lie upon the person charged to prove that such animal, trophy or meat was lawfully obtained."

Finally, section 52 (1) prescribes the punishment for "any person who is guilty of an offence against this Ordinance in respect of the illegal killing or attempted killing of rhinoceros or the unlawful possession, purchase, sale, barter, import or export of rhinoceros horns". It is to be noted that the only attempt to which it refers is that of killing.

Admittedly the Ordinance is far from being as clear as could be desired in regard to the punishment of many attempts to offend against its provisions, but it would appear that except in certain specific instance the Ordinance itself does not prescribe any punishment for attempts to do acts contrary to its provisions. The specific attempt to obtain a licence contrary to the provisions of section 21 is declared to be "an offence against this Ordinance", which in the absence of any special provision as to punishment, must be punishable under section 52 (3). Sections 30 (5) (a) and 36 merely prohibit attempted dealings in certain articles or animals without a licence. They do not prescribe any punishment for such attempts, but presumably such attempts are likewise punishable under section 52 (3) inasmuch as the person making the attempt contravenes the provisions of the Ordinance. Section 52 (1) prescribes a special punishment for the attempted killing of a rhinoceros, but not, it should be noted, for the attempted unlawful export of rhinoceros horns.

The proviso to section 40 $(1)$ of the Ordinance would appear to have been inserted ex abundanti cautela. The sub-section imposes a duty on a person who accidentally kills a game animal and it is arguable that, even if this proviso had not been inserted, that duty would not extend to an attempt to kill in the like circumstances.

Section 46 lays down a rule of evidence. It is true it contemplates the prosecution of persons for attempted exportations in contravention of the Ordinance, but that does not necessarily mean that it contemplates the taking of proceedings under the Ordinance itself. The Game Ordinance became law in 1937, that is, at a date when the Penal Code had already been in force for seven years. Section 388 of the Code had already prescribed a general punishment for attempts to commit misdemeanours and it would appear to us that except in the cases of the specific attempts referred to in sections 21, 30, 36 and 52 $\overline{(1)}$ of the Game Ordinance the intention was that attempted contraventions of the Ordinance should be dealt with as attempts to commit misdemeanours punishable under the Penal Code. The fact that the Game Ordinance specifically refers to certain kinds of attempts and is silent as to others would appear to confirm this view. The fact that section 37 of the Penal Code provides a general punishment for attempted misdemeanours in excess of the punishment prescribed by the Game Ordinance for a fully completed offence cannot affect the matter. As will be seen, the effect of sections 37 and 38 of the Code is to prescribe a punishment for attempts to commit certain offences punishable under the Code, which is in excess of the punishment prescribed by the Code for the fully completed offence.

Section 303 (criminal trespass) of the Code is a case in point. As sections 27 (2) and 29 (1) of the Code shows, the punishment for the attempt is a matter for the discretion of the Court and need not extend to the maximum punishment prescribed for the attempt.

But although we find ourselves unable to agree with the learned trial Judge that the proper section for convicting the appellant was section 52 (3) of the Game Ordinance, we feel that our alteration of the conviction to one under section 388 of the Penal Code is merely one of form and not one of substance. The learned trial Judge was fully justified in taking into consideration the number of animals involved in the two offences of which the appellant has been convicted and in assessing the amount of the fines accordingly.

In altering the convictions to convictions under section 388 of the Penal Code we alter the fines as follows: -

On Count 1 to a fine of Sh. 6,900 or six months' imprisonment with hard labour in default.

On Count 2 to a fine of Sh. 7,500 or six months' imprisonment with hard labour in default.