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Present: Ennis J.
WARD v. GALLE FACE HOTEL COMPANY,LIMITED.
876—P. C. Colombo, 17,972.
Excise Ordinance—Sate of liquor within prohibited, hours—Servant ofhotel—Liability of Company—Kens rea—Ordinance No. 8 of1912, ss. 45 (c) and SO.
Where a servant of the Oalie Face Hotel Company sold liquor withinprohibited hours,—
Held, that the Company was liable as the holder of the licencefor the act of the servant unless the Company was able toestablish that all due and reasonable precautions were exercisedto prevent the commission of the offence. A corporation cannot beconvicted of the commission of an offence under section 46 (c) ofthe Excise Ordinance.
PPEAL from a conviction by the Police Magistrate ofColombo.
Drieberg, for appellant.
Garvin, S.-G. (with Fernando, C.C., and Dias, G.C.), forrespondent'.
November 8, 1918. Ennis J.—
In this case the Galle Face Hotel Company, Limited, was chargedand convicted of selling liquor between the hours of 10 and 11 t*.M.to persons other than residents in the hotel or to bona fide travellersin contravention of a condition of this licence, an offence punishableunder section 45 (c) of the Excise Ordinance, No. 8 of 1912.
The section referred to makes this an offence only when the actis done “ wilfully,” and it was argued that the Hotel Companybeing a corporation could not be convicted of an offence underthis section.
This argument is correct. The point arose in the case of Pearlies,Gunston, and Tee, Ltd., v. Ward,1 and Channel J. in a judgmentsubsequently cited with approval in Mousell Bros. v. The L. N. W.Ry.2 held that a corporation could be convicted only where the legis-lature had prohibited an act absolutely, and where no question ofmens rea arose.
In the present case, to constitute the offence under the sectionit must be shown that the act was “ wilful,” which raises a questionof knowledge. Apart from this, there is no difficulty about theconviction of a corporation, as the Penal Code expressly providesthat the word “ person ” shall include a corporation. A prohibi-tion against ” whoever sells ” absolutely prohibits sale, but oneagainst “ whoever wilfully sells ” prohibits sale only in certain
1 (1902) 2 K.B.1.
« (1917) 2 K. B. 836.
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Ward v.GdUe faceHotel Com •pony, Ltd.
The charge and conviction are, however, not strictly correct.The charge should have been framed under section 50 of the ExciseOrdinance, which provides that the “ holder of a licence ** shall bepunished (but with fine only) as well as the actual offender for anyoffence under section 45 committed by any person in his employas if he had himself committed the same, unless he shall establishthat all due and reasonable precautions were exercised by him toprevent the commission of such offence.
The licence has been filed in the case, and there is no doubt thatthe Galle Face Hotel Company is the holder of the licence. Thelearned Police Magistrate has found as a fact that a servant of theCompany sold liquor to persons other than hotel residents or 6onafide travellers between 10 and 11 p.m. The finding is supported byevidence, and I see no reason to interfere with it. That theliquor was hotel liquor is proved by the chits produced and filedin the case, showing that it was served as if from the saloon barof the hotel. The Hotel Company was, therefore, liable to punish-ment under section 50 as " if it were the actual offender undersection 45 (c) M unless it proved that “ all due and reasonable pre-cautions M were exercised to prevent the commission of theoffence. On this point it appears that orders were given that thesaloon bar was to be closed at 10 o’clock; that two men go roundafter 10 p.m. to see that no drinks are served; and that the diningroom bar is open from 10 to 11 p.m. for residents only, and that theresidents must write the chits or go in person to the bar to besupplied. This evidence so far as it goes is satisfactory. There ishowever a gap in the precautions which might have been taken,viz., the neglect in respect of the use of the saloon bar chits after10 p.m. There is no evidence of any precaution to prevent thesebeing used after the prohibited hours. In fact the main defencebefore the Police Magistrate was that the drinks were served before10 p.m. If it had been proved to have been practically impossiblefor the saloon bar chits to have been used after that hour, thechits themselves would have been strong proof in rebuttal of thesworn testimony of the witnesses who testify to a sale after thathour, but this was not proved, and the Magistrate has believedthe evidence of these witnesses.
The conviction should have been that the Galle Face HotelCompany being the holder of a bar licence did neglect to takeall due and reasonable precautions to prevent a breach of the condi-tions of the said licence by one of its servants who committed anoffence, in that he did, &c.
The accused does not appear to have been prejudiced by themistake in the charge. I accordingly alter the conviction asindicated and dismiss the appeal.