075-NLR-NLR-V-14-ATTONEY—GENERALL-v.-MIRANDA-et-al.pdf
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Present: Wood Renton J.ATTORNEY-GENERAL v. MIRANDA et al334—P. C. Batticaloa, 31,217.
Ordinance No. 12 of 1891, s. 13—Selling intoxicating liquor mihout alicense—Assignment of stock by licensee to a third person—Powerof attorney executed by licensee in favour of th€ third person—Saleof liquor by third person—Abetment.
It is an offence for an unlicensed person to sell his own liquor onlicensed premises under the cloak of another licensed person.
The assignee of a licensee cannot carry on the sale of his ownliquor under the license of his assignor, except in the specific casescontemplated by sect ion 14 of Ordinance Mo. 12 of 1891.
Where intoxicating liquor is sold by retail by an agent on behalfof an unlicensed owner, the sale is, for the purpose of section 3 ofthe Licensing Act, 1872, which is almost identical in terms withsection 13, sub-section (1), of Ordinance No. 12 of 1891, a sale by theowner and not -the agent, and the fact that the agent who conductedthe sale was licensed affords the owner no defence.
I
N this case, the facts of which are fully stated in the judgmentof Wood Renton J., the first accused was charged with the
offence of selling or exposing for sale intoxicating liquor withouta licence, in breach of section 13 of Ordinance No. 12 of 1891 ; andthe second accused was charged with having abetted the first inthe commission of that offence. The learned Magistrate acquittedthe accused.
The Attorney-General appealed.
Walter Pereira, K.C., S.-G., for the appellant.—The PoliceMagistrate has acquitted the accused on the ground that the salewas not effected by the first accused himself, but by his agent.Even if an agent had sold the liquor on behalf of the first accused,the accused would be guilty under section 13, sub-section (1), ofOrdinance No. 12 of 1891. Counsel relied on P. C. Matara, 30.8471.
Van Langenberg, for the respondents.—The first accused did nothimself sell the liquor. He could not therefore be convicted undersection 13 of Ordinance No. 12 of 1891. The law does not prohibitthe assignment of a business. Section 11 of Ordinance No. 12 of1891 enacts that a licence shall not be assignable or transferable.The Ordinance, however, contemplates the assignment of thebusiness ; section 14 speaks of assigns. The first accused is anassignee of the second accused’s business. He holds a power of
' S. C. Min., Sept. 8, 1310.
Vol. xiv.9
June IS, 1911
K
K—-3. X. A. 03348 (ItMS)
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June 15,1911
Attorney*^General v."Miranda
attorney from the second accused. The deed of assignment and thepower of attorney were intended to amount to an irrevocable powerof attorney. The first accused consulted a notary, and acted quitebona fide throughout. Counsel cited Encyclopaedia of the Laws ofEngland* vol. XII.* p. 212. Mens rea has not been proved in thecase of the second accused.
Cur. adv. vult.
June 15, 1911. Wood Renton J.—
This is an appeal by the Attorney-General against the acquittalof the accused-respondents, who were charged in the Police Court ofBatticaloa, the first accused-respondent with the offence of sellingor exposing for sale intoxicating liquor without a license in premisesNo. 8 in Central road,.Pu!iyantivu, in breach of section 13 of Ordi-nance No. 12 of 1891 ; and the second accused-respondent withhaving abetted the first in the commission of that offence. So faras it is necessary to state, them at present, the material facts liewithin narrow compass. The second accused-respondent had a;license to sell intoxicating liquor on the premises in question. OnJanuary 28,1911, by deed No. 1,625, he made an out-and-out assign-ment of his stock on the premises in question to the first accused-respondent, By deed No. 1,626 of the same day he executed aperpetual power of attorney in the first accused-respondent’s favour.
In that power of attorney the deed of assignment is referred to.But the power of attorney is inaccurate, where it states that whatthe second accused-respondent had done was to give over themanagement of the premises to the first. The assignment, as I havesaid, divests the second accused-respondent absolutely of all hisinterest in the stock. In addition to that, he undertakes in the deedof assignment to do or cause to be done every act necessary to bedone as an agent, to obtain a‘renewal of his license in favour of hisassignee. In these circumstances, the question of law (and it is oneof great importance to all who are engaged in the licensing trade)arises as to whether or not an offence has been committed against .the provisions of section 13, sub-section (1), of Ordinance No. 12 of1891. That sub-section makes it an offence for any person to sell orexpose for sale any intoxicating liquor which he is not licensed tosell. There can be no doubt but that the first-accused-respondentwas not, as a fact, licensed to sell intoxicating liquor at the premiseshere in question. It appears that, subsequent to the execution ofthe assignment and the power of attorney, an application was made tothe Government Agent for a transfer of the license of the secondaccused-respondent in favour of the first. But that applicationwas refused. At.the trial in the Police Court, the evidence wassolely directed to showing that there had been a personal sale ofintoxicating liquor on the premises above mentioned by, or in thepresence of, the first accused-respondent himself. Evidence was,,
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however, led for the defence, which, in the opinion of the learnedPolice Magistrate, threw doubt on the question as to whether therehad been a personal sale, and he held, therefore, that the sale hadtaken place only on behalf of the first accused-respondent and thatthat was not sufficient to satisfy the provisions of section 13, sub-section (I), of Ordinance No. 12 of 1891. He accordingly acquittedthe first accused-respondent, on the ground that in all that hadhappened he was acting merely as the attorney of the real licensee.
It is obvious that on that finding the second accused-respondentwas equally entitled to an acquittal, and the Police Magistrate infact acquitted him. It is quite clear, however, that if, in fact andin law, the first accused-respondent was not acting as the attorney ofthe second, he is liable to be convicted under section 13, sub-section
, of Ordinance No. 12 of 1891, if the sale of the intoxicating liquorwas effected by an agent on his behalf. That results from thecase of Dunning v. Owen/ and see P, C. Matara, 30,847.2 Itwas there held that, where intoxicating liquor is sold by retail by anagent on behalf of an unlicensed owner, the sale is, for the purposeof section 3 of the Licensing Act, 1872, which is almost identical interms with section 13,. sub-section (1), of Ordinance No. 12 of 1891, asale by the owner and not the agent, and that the fact that the agentwho conducted the sale was licensed affords the owner no defence.The real question, therefore, comes to be whether in law and in factthe first accused-respondent can be regarded as having sold, if hedid sell, the intoxicating liquor, which forms the basis of the presentcharge, as the attorney of the second. So far as the first accused-respondent is concerned, even if he acted bona fide, the fact wouldnot, in my opinion, offer a defence to a charge under section 13, sub-section (1), of Ordinance No. 12 of 1891, an enactment which prohibitsabsolutely the sale or exposure for sale of intoxicating liquor, exceptunder a license* At the argument before me yesterday, Mr. vanLangenberg called my attention to a strong body of evidence, whichwould point to the conclusion that the first accused-respondent hadacted bona fide in the present case. It is proved that he took theadvice of a notary. The power of attorney, as I have mentionedalready, itself recites the assignment, although I think it is incorrectwhen it says that all that the second accused-respondent had donewas to hand over the management of the shop to the first ; and inaddition to that, Father Heinburger, who was called as a witness forthe defence, has given the first accused-respondent a good character.
I have thought it right to assign some prominence to these con-siderations in the present case. I come, therefore, to decide thequestion of law as to whether, on the facts, the first accused-?respondent can be regarded as having been merely the attorney ofthe second. In support of an affirmative answer to this question,Mr. van Langenberg directed my attention to sections 14 and 43
June 16* 1911
WoodRenton J.
Attorney-General v.Miranda
' {1901) 2 K. B. 237*ZS.C. Min.* Sept. 8, 1910,
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June 16, mi
WoodBkntojt J.
Attorney*General v.Miranda
of Ordinance No. 12 of 1891. The former of these sections providesthat the penalty, which is enacted by section 13, shall not attach(I am quoting only the material words of the Ordinance) to theassignee of any licensed person who dies before the expiration of hislicense, provided that the sale of intoxicating liquor by the assigneeis not continued beyond the unexpired term of the license. It wasargued with great force by Mr. van Larigenberg that that sectionshowed that the legislature had drawn a distinction between thelicense, on the one hand, and the stock or the goodwill of thebusiness, on the other. That I am quite prepared to admit. ButI am unable to take the further step which Mr. van Langenbergsuggested, and to hold that it results, even inferentially, from section14 of Ordinance No. 12 of 1891, that, except in the specific casescontemplated by that section, the assignee of a licensee can carryon the sale of his own liquor under the license of his assignor.Section 43 provides, in effect, that a person who has been deprivedof his license is not to be employed by a licensee as his partner, or tobe allowed to participate in the profits of such licensed premises, orto have any interest therein. 1 do not think that an out-and-outassignment of the stock or the goodwill of the business of a licenseecan be held to come within any of the interests contemplated by thatsection. The provisions of our own Licensing Ordinance are sub-stantially identical with those of the English Licensing Act, 1872.The case of Peckover v. Defriesyl which was decided under theEnglish Act, seems to me to have an important bearing on thequestion to be decided here. In that case a man named Newton,being duly licensed, resided on the licensed premises, which he heldas tenant to a Mrs. Defries. He took no part in the conduct ofthe business of selling the liquor, which was wholly conducted byMrs. Defries and her husband, of whom neither was licensed. Therewas some evidence that the Defries supplied the capital, and thatthe business and liquor belonged to them. The Defries were chargedwith selling liquor without a license, and Newton with abetting themin so doing. It was held upon the above facts that the Magistratewas not justified in dismissing the information solely because therewas a licensed person residing on the premises, for that it is anoffence for an unlicensed person to sell his own liquor on licensedpremises under the cloak of another licensed person. That case wascited and discussed in Dunning v. Owen,2 and Mr. Justice Phillimoremade the following observations upon it : “ The case of Peckover v.Defries1 says that you cannot avoid the provisions of the LicensingAct by keeping on the premises a licensed person as a sort of tameanimal.” It appears to me that that principle applies to the presentcase. The effect of the assignment was to divest the second accused-respondent of all interest in the liquor ; he could not by thesubsequent execution of a power of attorney, perpetual or otherwise,1 (1906) 23 Time* L«v> Reports 20,*(1907) ? K, R* 237,
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enable his unlicensed assignee to sell that assignee’s own stock under Junels.1911the shelter of he assignor’s license.v oox>
There remains only to be considered the question of the position Kjsston J.of the second accused-respondent. He is charged with abetment, Attorney.and I agree with the argument of Mr. van Langenberg that he could (Jtwrai v.not be convicted of that offence, unless it was shown at least—for I ‘ ' nw "will not put the case higher at present—that he intentionally aidedthe first accused-respondent in the commission of an offence undersection 13, sub-section (1), of Ordinance No. 12 of 1891. That verypoint was incidentally considered by the Queen’s Bench Divisionin the case of Williamson v. Norris.1 In that case a servant of theHouse of Commons sold liquor, the property of the house, at a barwithin the precincts of the house. The purchaser of the liquor wasnot a member of either House of Parliament, and the place where itwas sold was not licensed for the sale of liquor. On a case stated oninformation charging the respondent with unlawfully selling liquorwhich he was not licensed to sell, contrary to section 3 of theLicensing Act, 1872 it was held by Lord Russell of Killowen, L.C.J.in the course of his judgment, that, if the respondent had acted,knowingly, he might be liable to conviction for abetment. I aminclined to think that the principle of that decision might beapplied to the present case.
On the grounds I have stated I set aside the acquittals againstwhich the Attorney-General appeals, and send the case back forfurther inquiry and adjudication in the Police Court. I have hadconsiderable doubt as to whether the appellant ought not to berestricted to a charge of having sold intoxicating liquor, contraryto the Ordinance, or exposed it for sale at the hands of an agent,in view of the finding of the learned Police Magistrate on the questionof a personal sale on the evidence as it now stands. But thereis strong and direct evidence of sale by, or in the presence of, thefirst accused-respondent himself. The learned Police Magistratehas not stated expressly that he disbelieves that evidence, andalthough the evidence of Father Heinburger is, I have no doubt,worthy of the entire credence which the learned Police Magistrateassigns to it, it does not go so far as to show that the first accused-respondent on the day in question might not have been presentin the shop where the intoxicating liquor was being sold contraryto the Ordinance. I think, therefore, that it should be open toeither side to adduce further evidence on the charge of a personalsale on which the case has so far been tried, and that the learnedPolice Magistrate should adjudicate further on that evidence. Inaddition to that, it will be open to the Attorney-General, as appel-lant, to lead evidence to establish a sale, or exposure for sale, ofintoxicating liquor contrary to the Ordinance on the first accused-respondent’s behalf, although not in his presence, by an agent.
1 (1889) 1 Q. B. ■>.
June 16,1911
WoodHbnxost J.
Attorney-General v.Miranda
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While I have set out as strongly as 1 can all the points whichbear on the question of the good faith of the first accused-respondentand While I have no doubt that the learned Police Magistrate willcarefully consider those points, and any further evidence relativeto the same issue that may be brought before him, I think thatthe prosecution should have an opportunity of making out, if it isable to do so, its charge of abetment against the second accused-respondent. As the learned Police Magistrate has taken by nomeans an unfavourable view of the case as regards both respondents,there is no reason why there should be a new trial before anotherJudge. If both parties agree, the evidence already recorded maystand, subject to the right of either side to recall any witness orwitnesses for further examination or cross-examination.
Set aside.
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