C. V. Udalagama, j., and S. W. Walpita, J

017-NLR-NLR-V-78-C.-V.-Udalagama-j.-and-S.-W.-Walpita-J.pdf


SAMERAWICKRAME J.—-F. J. C. de Mel (2nd Suspect)
Thelma de Mel (3rd Suspect)
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1975Present: G. T. Samerawickrame, J. (Chairman)V. Udalagama, J., and S. W. Walpita, J.In Re.
F. J. C. de Mel (2nd Suspect)
Thelma de Mel (3rd Suspect)
Case No. 11/75 C. J. C. (21)
Criminal Justice Commission—Foreign Exchange Offences—Suspectsfound guilty under S. 51 (4) of the Exchange Control Act—Subse-quent amendment of S. 51 (4) by S. 13 of the Exchange Control(Amendment) Law No. 39 of 1973— whether the suspects liable topunishment under original Act or under the Amending Lawproviding for enhanced punishment—Interpretation OrdinanceS. 6 (3)—Rule of Statutory interpretation against retrospectiveoperation of Laws—Statutes affecting substantive law always tohe construed prospectively unless by express words or necessaryimplication—retrospective operation is provided for—Questionwhether the amending law No. 39 of 1973 which enhanced thepunishment provided for in the original Act is a matter ofprocedure or substantive law.
The two suspects were found guilty on their own plea of violatingcertain Exchange Control Offences punishable under S. 51 (4) of,the Exchange Control Act. The offences were committed' betweenthe first day of January 1970 and the 30th day of June 1971. At thetime the offences were committed they were liable to punishmentunder S. 51 (4) of the original Exchange Control Act whichprovided that on conviction a District Court may impose a termof two years imprisonment or fine or both. Section 51 (4) of theoriginal Act was amended by S. 13 of the Exchange Control(Amendment) Law No. 39 of 1973 which increased the punishmentto a term not exceeding five years or to both imprisonment andfine.
Further, by S. 15 (b) of the Criminal Justice Commissions Act, itwas provided that, if the Commission is satisfied that any personhas committed any exchange control offence, it is empowered andrequired to find him guilty and sentence him to any punishment towhich he might have been sentenced, if he had been tried andconvicted by a District Court or a Magistrate’s Court.
Held, (i) That, in keeping with the cardinal rule of Statutoryinterpretation that generally statutes are prospective and that theyapply only to cases and facts which come into existence after theywere passed, the provision for enhanced punishment introduced bythe Amending Law No. 39 of 1973 is not applicable to the punish-ment of offences committed before its enactment. Accordingly, thepunishment provided for in the original Act, namely a term of twoyears’ imprisonment or fine or both was applicable to the presentcase.
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SAMERAWICKRAME J.—F. J. C. De Mel (2nd Suspect)
Thelma De Mel (3rd Suspect)
The Interpretation Ordinance Section 6 (3) provides that,whenever any written Law repeals either in whole or part a formerwritten Law, such repeal shall not, in the absence of any expressprovision to that effect, affect or be deemed to have affected interalia any offence committed under the repealed written Law. TheExchange Control (Amendment) Law repealed Sub-Section 4 ofS. 51 and substituted a new Sub-Section. Accordingly, S. 6 (3) ofthe Interpretation Ordinance would apply and therefore thepunishment incurred at the time of the commission of the offencewas the punishment that could be imposed.
That the provision of Law which enhances the punishmentfor an offence is a question of substantive Law, for the existenceand measure of Criminal liability are matters pertaining to the end.and purpose of the administration of Justice. Accordingly, thepresumption against the retrospective operation of penal Lawsapplies unless, by express words or necessary and distinct implica-tion such operation is provided for. On this view the AmendingLaw which provides for increased punishment for an existingoffence is not intended to apply to offences committed before itsenactment.
The Exchange Control (Amendment) Law states: “ Anyperson who commits an offence under the Act shall on conviction
be liable to imprisonment The word “ commits "
prima facie refers to the present and the future. Under this provi-sion the conditions for liability are two-fold namely, the commit-ting of an offence on or after the date of the enactment, and aconviction. Far from being express language indicating that theprovision is retrospective, the language used indicates the contrary.
D. P. P. v. Lamb (1941) 2 All. E.R. 499 distinguished.
Mr. Shiva Pasupati, Attorney General with Mr. E. D.Wikreraanayake, Deputy Solicitor-General and Mr. Sunil deSilva, Senior State Counsel and Mr. Lai Wimalaratne, StateCounsel for the State.
Mr. H. L. de Silva, for the 1st Suspect, Mr. Sam J. C.Kadiragamar, for the 2nd and 3rd Suspects, and Mr. K. N.Choksy, as Amicus Curiae.
August 19th, 1975
ORDER
The two suspects were charged and found guilty on their ownplea of offences punishable under Section 51 (4) of the ExchangeControl Act committed between the 1st day of January, 1976and the 30th day of June, 1971. At the time when the offenceswere committed the relevant provision in Section 51(4) read : —
“ (4) Any person who commits an offence against this Actshall—
SAMERAWICKRAME J.—F. J. C. De Mel (2nd Suspect)©£>
Thelma De Mel (3rd Suspect)
upon conviction after summary trial before a Magis-
trate, be liable to imprisonment of either descrip-tion for a term not exceeding six months or to a-fine, or to both such imprisonment and fine, or
on conviction before a District Court, be liable to
imprisonment of either description for a term notexceeding two years or to a fine, or to both suck-imprisonment and fine;”
By Section 13 of the Exchange Control (Amendment) Law No.39 of 1973 Section 51 was amended, inter alia, as follows : —
“ (2) by the repeal of subsection (4) thereof and the substitu-tion therefor, of the following subsection : —
‘ (4) Any person who commits an offence under this Actshall—
on conviction after summary trial before a>
Magistrate, be liable to imprisonment ofeither description for a term not exceedingeighteen months, or to both such imprison-ment and a fine ;
on conviction before a District Court, be liable
to imprisonment of either description for aterm not exceeding five years, or to bothsuch imprisonment and a fine ; ”
By Section 15 (b) of the Criminal Justice Commissions Actwhere this Commission is satisfied that any person has committedany offence it is empowered and required to find him guilty andsentence him to any punishment which he might have been sen-tenced if he had been tried and convicted by a District Courtor a Magistrate’s Court. The question arises whether it is theprovision introduced by the amending Law No. 39 of 1973 or theprovision in the original Act which applies in respect of theoffences committed by the suspects.
It is a well known rule of interpretation that generally statutesare prospective and operate only on cases and facts which comeinto existence after they were passed. The rule is based on anancient maxim which is set out in Justinian’s Code 1-14-7 and’is expressed in Voet 1-3-17 thus : —
“ It is certain further that laws give shape to affairs of thefuture, and are not applied retrospectively to acts of thepast.”
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SAMERAWICKRAME J.— F. J. C. De Mel (2nd Suspect)
Thelma De Mel (3rd Suspect)
This rule is also part of the, English law. Maxwell Interpreta-tion otf Statutes (12th Ed.) p. 215 states—
“ Upon the presumption that the legislature does notintend what is unjust rests the leaning against giving certainstatutes a retrospective operation. Nova constitutio futurisformam imponere debet, non praeteritis. They are cons-trued as operating only in cases or on facts which come intoexistence after the statutes were passed unless a retrospec-tive effect be clearly intended. It is a fundamental rule ofEnglish law that no statute shall be construed to have aretrospective operation unless such a construction appearsvery clearly in the terms of the Act, or arises by necessaryand distinct implication. ”
The rule and the exceptions to it are set out thus in 36 Sim-monds p. 423 paragraph 644—
“ The General rule is that all statutes, other than thosewhich are merely declaratory, or which relate only tomatters of procedure or of evidence, are prima facie pros-pective ; and retrospective effect is not to be given to themunless by express words or necessary implication, it appearsthat this was the intention of the legislature. ”
The rule has been consistently applied by our Courts, see e.g.Appuhamy v. Brumpy, 16 N.L.R. 59, Akilandanayaki v. Sothina-garatnam, 53 N.L.R. 385. The Queen vs (1) Fernando (2) Carolis■61 N.L.R. 395, United Industrial, Local Government and GeneralWorkers Union vs. Independent Newspapers Ltd. 75 N.L.R. 241i t 243.
The next matter we have to consider is whether the rule■applies to a provision of law which enhances the punishment foran offence or whether such a provision only deals with a matterof procedure. We were referred by Mr. H. L. de Silva, who add-ressed us as amicus, to an illuminating exposition of the point bySalmond. In his book on Jurisprudence (11th Ed.) p. 503, it isstated—
“ rules defining the remedy may be as much a part
of the substantive law as are those which define the rightitself. No one would call the abolition of capital punishment,for instance, a change in the law of criminal procedure. Thesubstantive part of the criminal law deals, not with crimealone, but with punishment also. So in the civil law,
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Thelma De Met {3rd Suspect)
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the rules as to the measure of damages pertain to the subs-tantive law, no less than those declaring what damage isactionable ; and rules determining the classes of agreementswhich will be specifically enforced are as clearly substantiveas are those determining the agreements which will beenforced at all. To define procedure as concerned not withrights, but with remedies, is to confound the remedy withthe process by which it is made available.
What then, is the true nature of the distinction ? The lawof procedure may be defined as that branch of the law whichgoverns the process of litigation. It is the law of actions—jus quod ad actiones pertinet—using the term action in awide sense to include all legal proceedings, civil or criminal.All the residue is substantive law, and relates, not to theprocesses of litigation, but to its purposes and subjectmatter. ”
and later it is stated—
“ What facts constitute a wrong is determined by the sub-stantive law ; what facts constitute proof of a wrong is aquestion of procedure. For the first relates to the subject-matter of litigation, the second to the process merely. ,Whether an offence is punishable by fine or by imprison-ment is a question of substantive law, for the existence andmeasure of criminal liability are matters pertaining to theend and purpose of the administration of justice.
But whether an offence is punishable summarily or only onindictment, is a question of procedure. Finally, it may beobserved that, whereas the abolition of capital punishmentwould be an alteration of the substantive law, the abolition ofimprisonment for debt was merely an alteration in the lawof procedure. For punishment is one of the ends of the ad-ministration of Justice, while imprisonment for debt wasmerely an instrument for enforcing payment. ”
On the view expressed by Salmond, a law which provides forenhanced punishment for an existing offence, is not intended toapply to offences committed before its enactment. This is alsothe opinion of Voet. In paragraph 1-3-17 he also states—.
“ If a penalty has to be imposed for wrong doing commit-ted before a new law sharpens the penalties then it mustbe inflicted according to the old and not of the succeedingnew law. ”
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SAMERAWICKRAME J.—F. J. C. De Mel (2ndSuspect)
Thelma De Mel (3rd Suspect)
There is a dictum of Chase, J. in the case of Colder vs. Bullwhich is reproduced in the judgment in Philipps vs. Eyre, 22 L. T.at 877, which is relevant—
“ Every law that takes away or impairs rights vestedagreeably to existing laws is retrospective, and is generallyunjust, and may be oppressive, and it is good general lawthat a law should have no retrospect But I do not consi-
der any law ex post facto within the prohibition that mili-tates the rigour of the criminal law, but only those thatcreate or aggravate crime or increase the punishment, orchange the rules of evidence for the purpose of conviction. ”
In 36 Simmonds, p. 425, paragraph 645, it is stated—
“ That a statute increasing the penalties for existingoffences is not intended to apply in relation to offences com-mitted before its commencement. ”
Article 11 (2) of the Universal Declaration of Human Rightsreads—
“ No one shall be held guilty of any penal offences onaccount of any act or omission which did not constitute apenal offence, under national or international law, at thetime when it was committed. Nor shall a heavier penalty beimposed than one that was applicable at the time the penaloffence was committed
Sri Lanka has expressed its adherence to the Declaration, andthough it does not control legislation, one may presume, in theabsence of anything suggestive of the contrary, that our legis-lature ordinarily desires to act in accordance with, rather thancontrary to, the Declaration.
Mr. Choksy submitted as a further reason that under Section6 (3) of the Interpretation Ordinance, the penalty for offencesalready committed, was that provided for, by the repealedprovision.
Section 6 (3) reads—
•“ (3) Whenever any written law repeals either in whole orpart a former written law, such repeal shall not, in theabsence of any express provision to that effect, affect orbe deemed to have affected—
the past operation of or anything duly done orsuffered under the repealed written law ;
SAMERAWICKRAME J.—F. J. C. De Mel (2nd Suspect)
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any offence committed, any right, liberty, or
penalty acquired or incurred under the repealedwritten law ;
any action, proceeding, or thing pending or incom-
pleted when the repealing written law comes intooperation, but every such action, proceeding, orthing may be carried on and completed as if therehad been no such repeal. ”
He submitted that Section 6 (3)(b) applied and that the
punishment incurred at the time of the commission of the offencewas the punishment that could be imposed.
The learned Additional Solicitor-General, Mr. E. D. Wikrama-nayake submitted that following Lamb’s case there was a seriesof decisions that a law providing for enhanced punishment onconviction applied to both offences committed before the enact-ment of the law as well as offences committed thereafter. InDirector of Public Prosecutions v. Lamb, 1941, 2, A. E. R. 499,—
“ The four defendants were charged with certain currencyoffences committed between Sept. 3, 1939 and May 11, 1940and pleaded guilty. The information was dated August 17,1940. The regulation in force at the time of the commissionof the offences limited the penalty for each offence to a fineof £ 100 or imprisonment for a term not exceeding 3 monthsor both. On June 11, 1940, an order in council came intoforce providing for a further alternative penalty of a maxi-mum fine equal to three times the value of the currency inquestion. The terms of this order were : “ Where any personis convicted of an offence against ” those regulations, “ the
maximum fine which may be imposed on him shall be a
fine equal to three times the value of the security….”
Held: the language of the order in council was clear andunambiguous, and was retrospective so as to impose thehigher penalty in a case where the offence was committedbefore, but the conviction was after, the date of the cominginto force of that order in Council.
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SAMERAWICKRAME J.—F.J. C. De Mel (2nd Suspect)
Thelma De Mel (3rd Suspect )
The interpretation Act, 1889, s. 38 (2) did not apply to thiscase", since there had been no express or implied repeal ofany Act. ”
Humphreys, J. said—
“ The doctrine to which his attention was called, as onegathers from the authorities which, are said to have beenquoted to him and some of which have been quoted to us isvery well known indeed. I think that it may be put in thesewords—namely, that where a statute alters the right ofpersons, or creates or imposes obligations upon persons andthereby alters the law, such a statute ought not to be heldto be retroactive in its operation unless the words are clear,precise and quite free from ambiguity. For such a proposi-tion there is the most ample authority That doctrine,
while I fully subscribe to it, and would willingly give fulleffect to it in any case where it was possible to do so, to mymind has no effect at all in a case where the language of thestatute, or as in this case, of the order in Council, is plainand can only mean that which it says.”
Tucker, J. said—
“ In my view, the words are clear, and, although I do notaltogether like the idea of punishments being increased afterthe offences have been completed, nonetheless, if thelanguage is clear, and if that is the result, I think that it isimpossible to escape from the consequences of the languagewhich has been used.”
In the statute which was considered in Lamb’s case, there wasno repeal. There was only provision for the imposition of analternative penaltly. In the Exchange Control (Amendment)Law the word ‘ repeal ’ is expressly used. In the former casethe Interpretation Act was held not to apply. In the present caseprima facie, Section 6 (3) would apply. But the chief point ofdifference is in the language used. The English Statute states,“ Where any person is convicted of an offence …. the maximum
fine which may be imposed on him shall be ” It was held
that from the language it was clear that the provision applied toa conviction for an offence committed before the enactment.Section 51 (4) in the Exchange Control (Amendment) Law states*
SAMERAWICKRAME J.—F. J. C. De Mel (2nd Suspect)75
Thelma De Met (3rd Suspect)
“Any person who commits an offence under this Act shall on
convictionbe liable to imprisonment” The word
“commits ” prima facie refers to the present and the future.Under this provision the conditions for liability are two fold,namely, the committing of an offence on or after the date of theenactment and a conviction. Far from being express languageindicating that the provision is retrospective, the language usedindicates the contrary.
Mr. Wikramanayake submited the word “ commits ” is notused with reference to time and he relied on the decision inEx Parte Pratt, 1888, 12 Q.B.D. p. 334. The Bankruptcy Act 1883replaced an earlier Act of' 1869. There was express provision tokeep alive all proceedings which were pending at the commence-ment of the Act of 1883 under the earlier Act of 1869. There wasno express provision in respect of an act of bankruptcy committedunder the Act of 1869 for which no proceedings had beencommenced. Section 5 provided, “ Subject to the conditionshereinafter specified, if a debtor commits an act of bankruptcy,the Court may on a bankruptcy petition being presented … makean order, in this Act called a recovering order for the protectionof the estate. ” .It was held that an act of bankruptcy referredto in this section would include an act of bankruptcy committedbefore the Act. The Court appears to have been influenced by theconsideration that to take any other view would have resulted inno action being available in respect of a large number of acts ofbankruptcy committed before the Act was enacted. Bowen L. J.said—
“ This would cause great inconvenience for the result of itwould be simply to pass a sponge over a rumber of acts ofbankruptcy committed while the Act of 1869 was in operationsimply because no proceedings had been taken during that
period I think that the more the Act is studied the more
it will be found that it is framed in a very peculiar way. Ido not mean to say that it is inartistic ally framed ; I thinkit is framed on the idea that a bankruptcy code is being cons-tructed and when the present tense is used, it is used, not inrelation to time, but as the present tense of logic. I thinkthat is the true view of it.”
Fry, L.J. said—
“ I entirely agree with Bowen L. J. as to the present tensein this section; it is used, I think, to express a hypothesis,without regard to time, just as in stating the proposition * if
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SAMERAWICKRAME J.—F. J. C. De Mel (2nd Suspect)
Thelma De Mel (3rd Suspect)
A is B, then B is C f. It is equivalent to saying “ If at the timewhen the petition is presented the debtor shall have com-mitted an act of bankruptcy. This construction of the Actappears to me convenient and just”.
The provision in Section 5 of the Bankruptcy Act 1883 dealtwith a matter of procedure. Having regard to that and theunjust result that would have resulted from any other interpre-tation the Court may have been justified in straining the languageto arrive at a construction which is just and convenient. In apenal statute such as is under consideration by us in the presentorder, it is not permissible to place such a construction havingregard to the presumption against retrospection in respect of apenal statute. The case of Ex parte Pratt was considered inRe School Board of Education for the Borough of Peterborough,Bourlce v. Nutt, 1894, 1 Q. B. 725. Dealing with another sectionof the Bankruptcy Act the majority declined to apply Ex partePratt.
Davey L. J. said—
“ In Ex parte Pratt the Court had to construe other sectionsof the Bankruptcy Act expressed in different language andwith a different context, and there were very strong reasonsof policy and convenience for adopting the constructionplaced on the Act by the Court. I do not think it is anyauthority in the present case
Lopes L. J. said—
“ Ex parte Pratt which was cited, is also distinguishable.The construction adopted did not impose any new liabilityor disability; it only gave effect to that which would havehappened if the Act of 1883 had not been passed. ”
Esher, L. J. who wrote a dissenting judgment and applied Exparte Pratt was at pains to point out that the statute concernedwas not to be treated as penal so as to exclude it being construedretrospectively.
We are of the view that it is not possible to read the word‘ commits ’ as ‘ shall have committed ’ as was done in the case ofEx parte Pratt. We are also accordingly of the view that theprovision in Section 51 (4) is significantly different to the pro-vision which was considered in Lamb’s case and that the decisionand reasoning in that case are inapplicable.
SAMERAWICKRAME J.—F. J. C. de Mel (2nd Suspect)
Thelma de Mel (3rd Suspect)
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The case of Director of Public Prosecutions v. Lamb wasfollowed in Rex. v. Oliver 1943, A. E. R. 800. The relevant partof the regulation read. “ Any person guilty of an offence against
this regulation shall be liable” It was held that in the
context ‘ guilty ’ could only mean * found guilty Accordingly, itwas held that the language of the provision made it clearlyretrospective. The judgment stated—
“ We were pressed with statements contained in Maxwell’sInterpretation of Statutes (8th Edn., p. 190) following aquotation from the judgment of Wright, J. in Re Athlumney(11) :
It is chiefly where the enactment would prejudiciallyaffect vested rights, or the legality of past transactions orimpair contracts, that the rule in question prevails. Everystatute, it has been said, which takes away or impairsvested rights acquired under existing laws, or creates anew obligation or imposes a new duty or attaches a newdisability in respect of transactions or considerationsalready past, must be presumed, out of respect to thelegislature, to be intended not to have a retrospectiveoperation.
We accept this statement for which authority is to befound in many cases, some of which were cited to us (see RePulborough, Bourke v. Nutt (12) and Barber v. Pigden (13),Our decision is based on the language of the paragraph wehave to construe. ”
In Buchman v. Button, 1943, 2 A. E. R. 82 at 84, Charles, J. said—
“ The matter is absolutely free from ambiguity, for readin its ordinary connotation in regard to the word * guilty *must mean “ found guilty ”. I cannot, myself, see that itmakes sense otherwise. ”
The cases of Re Oliver and Buchman v. Button are to bedistinguished from the case under consideration for the reasonsstated by us in respect of Lamb’s case.
Mr. Wikramanayake further submitted that the words ‘ penaltyincurred ’ in Section 6 (3) b would include only a punishmentalready imposed. We think that punishment for an offence is
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incurred at the time the offender commits the offence. He thenbecomes liable to punishment though whether the punishmentis imposed or not depends on proof of the commission of theoffence, mitigating circumstances and other like matters. It hasbeen held that by reason of Section 6 (3) b of the InterpretationOrdinance repealed enactments were properly applied to theprosecution and punishment of offences after the repeal, videRamalingam v. Jaffna Central Bus Co. Ltd,., 56 N. L. R. 501, PeterFernando v. Abeynayahe, 57 N.L.R. 262, the Queen v. (2)Fernando (2) Carolis 61 N.L.R. 395.
Mr. Wikremanayake submitted that the amendment formedpart of an ex post facto legislative scheme to deal with a specialsituation that had arisen in regard to Exchange Control frauds,and should, therefore, be given retrospective operation. In thisconnection, he invited us to read the speech of the acting Ministerwhen he introduced the bill in the National State Assembly.There can be no question that the original Criminal JusticeCommissions Act was ex post facto legislation in the sense that aspecial tribunal was set up with authority to adopt a procedure,largely to be devised by it, but in conformity with the principlesof natural justice ; and that the tribunal was not bound by theprovisions of the Evidence Act. However, the definition of theoffences and the punishments for them that already existed inlaw were unaltered. Moreover, even where a Court deals withlegislation that is retrospective no larger degree of retrospectivityis to be given than is plainly shown to have been intended bythe legislature. It is sometimes stated that the maxim againstretrospectivity is applicable whenever you reach the line atwhich the words of the enactment cease to be plain, vide Craieson Statute Law (7th Ed.) p. 390. The amendment of Section 51 (4)may have been intended as a deterrent and a warning to would-be transgressors of Exchange Control rules that in the future anyinfractions of the provisions of the Act would be seriously dealtwith. In the past, many persons who had no intention to traffickin foreign exchange, and did not traffick in it, have neverthelesslightly entered into transactions involving small amounts whichcontravened the provisions of the Act. Apart from the fact thatthese transactions, any one of which cannot be considered grave,mount up, in the aggregate, to a considerable wasting away of
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foreign exchange ; they have enabled a few large manipulatorsto deal in sums involving foreign exchange of the value ofhundreds of thousands and even millions of rupeees. Theamendment introducing the higher penalties may therefore havebeen intended to operate in terrorem against the future commis-sion of these offences. There is nothing in the provision to indicatean intention that it should apply to past offences.
It has been laid down that, “The intention of Parliament isnot to be judged by what is in its mind but by its expression ofthat mind in the statute itself. ”■—per Lord Thankerton in Wicksv. Director of Public Prosecutions (1947 A. C. 367). It is veryrarely that the speech of a Minister introducing a Bill would beof assistance in the construction of the law that is ultimatelyenacted by Parliament. It is unnecessary to consider in whatcircumstances, if any, recourse to the speech of the Ministerwould be justified and whether such circumstances exist in thiscase. We have in fact perused the speech of the Minister and findnothing in it that will incline us to give a retrospective effectto the amendment.
Mr. Wikramanayake submitted that the amendment did nomore than increase the penalty and substitute a new provisionembodying the enhanced penalty ; that provision has to be readas one with the principal Act. It is no doubt correct that theprovision has to be read as one with the principal Act but fromthe date of the amendment and not from the date of commence-ment of the principal Act,—vide Ram Narain v. S. B. & Co. 1956,A.I.R. S.C. 614 at 621.
We were referrred to the judgment of G.P.A. Silva, J. inKarunaratne v- The Queen, 76 N.L.R. 121. He expressed theview that the quantum or mode of punishment does not have anybearing on the act that constitutes the offence. There is no reasonto disagree with this ; but the provision that sets out the quantumof punishment is substanive law and will not be applicable tooffences committed before its enactment. The learned Judge hasalso stated, “ I might add that it is one of the occupational hazardsof crimes or offences that those committing them may find them-selves being made liable at the time of trial for more severepenalties than what the law had already prescribed at the time
€0S AMERAWICKRAME J.—F. J. C. De Mel {2nd Suspect)
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they were committed ” Such alteration in the penalty
which is contrary to Article 11 (2) of the Universal Declarationof Human Rights ought not to be so common as to be describedas an occupational hazard faced by those committing offences.Further if the learned Judge intended to suggest that alterationof penalty and alteration of procedure are on the same footingwe must with respect disagree.
On the grounds set out by us we hold that the provision forenhanced punishment introduced by amending law is notapplicable to the punishment of offences committed before itsenactment, in respect of such offences the punishment that maybe imposed is that provided for in the original Act. The originalAct provided that on conviction a District Court may impose aterm of two years imprisonment or fine or both. The Commissionis empowered to impose any punishment to which a person foundguilty might have been sentenced if he had been tried and con-victed by a District Court. We have not heard arguments on thepoint and we therefore do not decide it but we are inclined to theview that the limit imposed by Section 17 of the Criminal Pro-cedure Code to the aggregate punishment does not apply to asentence to be passed by this Commission. Unlike the provisionin the amending law, the original Act did not make imprisonmentmandatory. Though we have held the amendment is notretrospective and therefore inapplicable, we cannot overlook theview of the Legislature manifested by the enactment of theamending law that it takes a serious view of these offences. Theless serious contraventions of the Exchange Control Act are com-pounded by the Central Bank by the imposition of a penaltyand do not come before this Commission at all. Accordingly, wewould ordinarily impose a sentence of imprisonment or make anorder for detention in lieu thereof on persons found guilty. Inthis case, however, there are many circumstances of mitigation.There has been no trafficking in foreign currency by these sus-pects. They had arranged for their own money to be transferredto them abroad because of their special need : they had to incurexpenses for the care of a retarded child and for medical expensesof the 2nd suspect who had suffered a heart attack. Theyadmitted the commission of the offences when questioned,arranged to be represented before the Commission as soon as they
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were aware that proceedings had been instituted and tendereda plea of guilt. In the circumstances, we think a fine will meetthe ends of justice. We impose on the 2nd suspect a fine ofRs. 2,000 on count one and a fine of Rs. 500 on count 3 and weimpose on the 3rd suspect also a fine of Rs. 2,000 on count oneand Rs- 500 on count 3.
As the point of law that arose for decision was one that wouldarise in every case in which a suspect is found guilty, we heardMr. H. L. de Silva and Mr. K. N. Choksy, Attorneys-at-law, whoeach as amicus, presented an argument. We are indebted to bothof them and to Mr. Kadiragamar and Mr. Wikremanayake forthe carefully prepared, helpful and learned arguments whichthey made.