(COURT OF CRIMINAL APPEAL)*

SUDAN GOVERNMENT …..Appellants and Prosecutor

and

EL NAYEL OMER EL MIKASHFI

and

HASSAN MOHAMMED BATTRAN Respondents and Accused

(AC-C.C.A.-1-1 -1956)

(Cr. App-14)

Principles

·  criminal Law Smuggling currency-is currency goods Custom Ordinance, 1939, Section 204(a) - Economic (Transitional Controls) Ordinance, 1945, Section 9-Residual Controls  Ordinance, 1950 Section 10-Finance (Exchange Control) Regulations, 1947, Regulation (‘) Court : M.A. 4bu Rannat C.J. Soni and Hassib J.J.

criminal Law Smuggling currency-is currency goods Custom Ordinance, 1939, Section 204(a) - Economic (Transitional Controls) Ordinance, 1945, Section 9-Residual Controls  Ordinance, 1950 Section 10-Finance (Exchange Control) Regulations, 1947, Regulation
(‘) Court : M.A. 4bu Rannat C.J. Soni and Hassib J.J.

Judgment

ii - requirement of act and intention to smuggle  Custom Ordinance, Section 2.

Interpretation of statutes penal  statutes prevision for forfeiture-different penalties in subsequent statute repeal  of earlier statute equivocal word or ambiguous sentences to be construed in favour of accused

The accused had attempted to bring into the Sudan some watches and “faragallahs” and LE 2,200.000m/ms  When he arrived at Khartoum Airport from Egypt, he discovered that he could only bring LE.20.000m/mS. into the country, unless he obtained permission for a larger sum from the Ministry of Finance. The Accused failed to declare the watches and faragallahs attempting to smuggle them and he only declared LE.1,200.000m/ms. In this he was aided and abetted by one Hassan Mohammed Battran, his driver, who had travelled with him.

The Accused was found guilty of smuggling the watches and faragallahs and these were confiscated, i.e. forfeited under Section  195 of the Custom Ordinance, 193.9 As to the money, the Magistrate Khartoum found that no offence had been committed as to the LE. 1,200,0000m/ms  declared  to the Custom’s officer by the Accused but that the accused  had tried to import LE.1,000.000m/ms. without the permission of the Minister of Finance.

On the construction of the Custom Ordinance 1939 and the Residual Control Ordinance, 1950, the learned Magistrate found that the former was inapplicable and thus no order forfeiting the LE.1,000.000m/ms could be made. He thus imposed a fine of LE.100.000m/ms with an alternative of imprisonment for three months.

The Sudan Government applied for a revision under Section 257 (i) of the Code of Criminal Procedure and Bedri J. referred the case back to the Magistrate Khartoum under Section 256 (i) (d) Code of Criminal Procedure, after reducing the fine to LE.10.000m/ms. on the basis That the money could be forfeited under the Custom Ordinance. The Magistrate Khartoum reached the same conclusion as originally and the Sudan Government applied to the Chief Justice under Section 257 (i) C.C.P. to exercise his powers under Section 261 A.; C.C.I. to convene the Court of Criminal Appeal.

Held on Appeal :—

(i) unless the context indicates the contrary, the term “money” is included in the generic terms “goods” and/or “movable property”.

(ii) in order that the offence of “smuggling” be constituted there must be both  an actus reus and a men's rca. There was no such intention as to the LE. 1 ,200.000.m/ms declared to the Custom’s officer.

(iii) A penal law should be construed strictly, dictum of Lord Abinger C.B. in Henderson v. Sherborne (1837) 2 M. & W. 236 at p. 239 applied.

(iv) Where a subsequent statute imposes a different penalty for an act made unlawful by an earlier statute, this effects a repeal of the penalty imposed by the earlier statute, dictum of Martin B. in Robinson v. Emerson (1866) 4 H. & C. 352 applied.

(v) Obiter “where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself.

(vi) The accused  had been rightly convicted under the Residual Controls Ordinance and the Customs Ordinance was inapplicable. Judgment of Magistrate Khartoum restored.

 

Appea1

The facts are taken from the judgment of T. Cotran, Magistrate (Khartoum).

On the 17th  July, 1955, the Respondents Mikashfi and Battran, his driver, arrived at Khartoum Airport from Cairo. Battranpassed through customs formalities first and was followed by Mikashfi. When Mikashfi was asked if he had anything to declare, he stated that he had LE. 1,200.000m/ms. in Egyptian banknotes in cash.

He was then. handed a form to fill out and later asked to hand over the money as he was only allowed to bring LE.20.000m/ms into the country. Mikashfi stated that the money was in a brief case which was in the waiting room. He was allowed to fetch the briefcase and was observed handing a bundle of notes over to Battran. When he returned he stated that he only had LE.1,100.000m/ms. and not LE.1,200,000m/ms. as had been declared by him earlier. When his briefcase was searched, it was found to contain four watches and four faragallahs. Battran was called back and it was found that he had LE.1,100.000m/ms. in his pocket. Mikashfi thereupon claimed that all the money was his and that the LE.1,100.000m/ms. found on Battran did not belong to Battran.

The Magistrate Khartoum, T. Cotran, found that the offence of smuggling the four watches and four faragallahs had been proved and ordered forfeiture under Section 195 Custom Ordinance, 1939, and imposed a fine upon Mikashfi of LE.50.000m/ms with an alternative Of three months imprisonment on this charge.

As to the money, the learned Magistrate found that since the accused Mikashfi had declared LE.1,200.000m/ms. in the form he was asked to fill out, no offence had been committed as to that sum, but that the accused had attempted to import the sum of LE.1,000.000m/ms. into the Sudan without permission from the Minister of Finance. On the construction of the Customs Ordinance  1939 and of the Residual Controls Ordinance, 1950, the learned Magistrate found the Customs Ordinance, 1939, to be inapplicable and applying the Residual Controls Ordinance, 1950, imposed a fine of LE.100.000m/ms. on each of the accused with an alternative of three months imprisonment  if these fines

were not paid. Pending the granting of a license to import the money, the money was to be held by the Custom Department of the Sudan Government, but there could be no order for forfeiture under Section 195 (c) Customs Ordinance, 1939.

The Sudan Government applied for revision by Bedri J. who reduced the fines to LE.10.000m/ms. each and ordered a revision under Section 256 (i) (d) Code of Criminal Procedure, on the basis that the money should have been forfeited to the Sudan Government. The Magistrate Khartoum finding himself unable to alter his judgment, the Sudan Government moved the Chief Justice to convene the Court of Criminal Appeal under Section 261 A — Code of Criminal Procedure.

Advocates: A. Halim el Taher for Attorney General

                           …………for Sudan Government

A.            Suleiman ……………..for both Accused

The judgment of the Court of Criminal Appeal was delivered by M.A. Abu Rannat C.J - This is an application by the Attorney- General for the .setting up of a court of Criminal Appeal under S. 261 A of the Code of Criminal Procedure to consider a judgment of the Police Magistrate Khartoum. The learned magistrate, both at first instance and in a subsequent revision, foundMikashfi guilty under Regulation ii of the Finance (Exchange Control) Regulations, 1947, passed under the powers conferred by S. 9 of the Economic (Transitional Controls) Ordinance 1945 which has now been replaced by the Residual  Controls Ordinance 1950; but he was found not guilty under S. 204 (a) of the Customs Ordinance 1939 A similar finding was made in respect ofBattran.

The facts were fully set out in. the judgment of first instance and we do not wish to repeat them here. It suffices to state that we fully accept the findings of fact, in the fact that any offence committed can only relate to the £. 1000 and not to £..2200 as contended by the learned counsel for the Attorney-General.

The offence of smuggling requires  an intent (see definition of smuggling in S. 2 of the Customs Ordinance) as a question of fact. The learned magistrate found that no such ‘intent’ was formulated until the aircraft reached Khartoum and Mikashfi became aware that he would not be allowed to bring more than £.20 into the country. Admittedly there was an ‘act’ when a conveyance across the custom’s boundary occurred, but at that time there was no intent to smuggle. The general rule is that a crime requires not only an act, but also an

intention to act, and in the absence of any specific statement that the crime can be committed without proof of an ‘intent’ an intention is required.

The learned magistrate who saw the two accused and the witnesses  found that there was no evidence to prove such intent real or  constructive prior to the accused’s arrival in Khartoum.

The learned magistrate based his findings of law with respect to the finding of not guilty under the Customs Ordinance on a number of points.

1.         His reasons were that money which is a legal tender in the Sudan  is not goods within the definition of goods given in S. 2 of the Customs Ordinance 1939 “all kinds of movable property including animals”. He states that on reading the whole Ordinance he finds that the intention of the legislature is the collection  of revenue and the prevention of goods entering or leaving the Sudan without the collection of duties. Thus he defines ‘goods’ in the Customs Ordinance as meaning “merchandise generally  i.e. chattels personal, or anything capable of being bought and sold in the market and being a thing which the Exchequer wants to levy duty on” admitting however that all kinds of movable property does include money.

2.         In the alternative on rules of Construction:

a) if two Ordinances are applicable to one case and one of them is general and the other is particular, the particular is to be applied and not the general.

b) if one of two Or is in favour of the accused, and the other is against him, the one in his favour is to be applied, and that when one orders forfeiture and the other does not, the latter Ordinance should be applied.

On revision the learned magistrate came to the same conclusion finding himself unable to alter his previous findings, but cited some authorities in support of the rules of construction oil which he based his judgment.

The Attorney-General appealed against the finding of not guilty of an offence under Section 204 (a) of the Customs Ordinance 1939.

The questions to be considered by us are (1) does the term ‘goods’ as used in the Customs Ordinance include money which is a currency in the Sudan. (2) Regulation ii of the Finance (Exchange Control) Regulations - 1947 read in conjunction with S.10 of the Residual Controls Ordinance 1950 having created an offence under which the accused

also be liable to punishment. Will the accused also be liable under the Customs Ordinance if the .word ‘goods’ includes. ‘money’ ?

The word ‘goods’ has given rise, to great difficulties. Thus Lord Sumner in The Noordam [120] A.C. 904 stated at p. 908 : - At first sight the word ‘goods’ might seem to be an equally inappropriate description. It must, however, be observed that the word is of very general and quite indefinite import and primarily derives its meaning from the context in which it is used. Their Lordships were referred to sundry statutes, in which the word is either defined or stated to “include specified things. Of the latter kind the Naval Prize Act, 1864, was particularly relied on, for it brings within the term ‘goods’ all things subject to adjudication as prize. This does not advance matters. When, as in that Act, a word is extended by statute to include a named ‘thing, the conclusion naturally is that in its ordinary sense the bare word would have been insufficient to include it. There is further no reason why the definition clause of the Naval Prize Act, 1864, should be treated as explanatory of the language of an Order in Council which makes no reference to it.

Their Lordships are of opinion that the cardinal consideration in interpreting, the Order in Council is the character and scope of the Order itself. The content of the word ‘goods’ differs greatly according to the context in which it is found and the instrument in which it occurs. In a will or in a policy of marine insurance, in the marriage service or in a schedule of railway rates, in the title of a probate action or in an enactment relating to the rights of an execution creditor, the word may sometimes be of the narrowest and sometimes of the widest scope. The question is what is its content here.”

Two points arise from this dictum when a word is extended by statute to include a named thing, the conclusion naturally is that in its ordinary sense, the bare word would have been insufficient to include it; and the word goods primarily derives its meaning from the context “in which it is used.”

The question to be considered is whether the reverse is also true and that when a word is restricted by statute so as to exclude certain named things;- the conclusion naturally is that in its ordinary sense the word would have covered the things excluded.

Counsel for the accused cited the Sale of Goods Act 1893. Bearing in mind that the construction of one Act of Parliament can only assist, but will not be conclusive as to another one, we note that S. 62 (1) of the Sale of Goods Act defines ‘goods’ to include all chattels personal

other than things in action and money. This would indicate that although “chattel personal” would include money, and that although goods are ‘chattels personal’ money is not ‘goods’. This argument is however defeated by the definition of a Contract of Sale given, in Section 1 of the Sale of Goods Act 1893 which states A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration  “called the price”.

Thus if goods were to include ‘money’ in the context, then there would not be a contract of sale for there would either be no consideration as where a lesser sum is paid for a larger one (Pinnel’s case) or there would be a mere contract of exchange and not of sale. This illustration shows that we are really in all cases thrown back to the context in which the word is found.

Thus prima facie we start from the point that where the word ‘goods’ is followed by other words, these will delimit such word through the ejusdem generis rule and secondly the use of the word ‘chattel’ in connection with that of ‘goods’ will exclude ‘money’ from the definition of ‘goods’ although ‘chattels’ is a French word and signifies goods’.*

Now let us look at the Customs Ordinance 1939. Section 204(a) refers to the import or export of any prohibited or restricted goods in contravention of any prohibition or restriction relating to the same. ‘Goods’ are defined in S. 2 to mean all kinds of movable property including animals. There is nothing here to bring into action the ejusdem generis rule.

In law the term ‘property’ can have more than one construction. It can mean ownership of a thing or a special right in the nature Of ownership. Another meaning of the term ‘property’ is’ its application to the thing itself. In this connection the distinction in the Sudan is between movable and immovable property. Movable property includes all objects which are not attached to land, or having been attached, have been severed therefrom. Legally however certain objects are treated as part of the land. Thus documents of title to land are treated as part thereof and though factually movables, are in law immovable. Thus prima facie the inclusion of animals in the definition of goods as set out in S. 2 of the Customs Ordinance is superfluous.

The question thus arises : Is money movable property Clearly this is so. It is property and it is not attached to and in no way forms

* Termes de * Ley, (1641 ed.), catals.

part of land. But further let us see whether this conclusion would be warranted by the general terms of the Ordinance. We cannot agree with the learned Magistrate that the object of the Customs Ordinance is confined to the collection of revenue and the prevention of goods entering or leaving the Sudan without the collection of duties.

Admittedly certain goods are only admitted on payment of Customs dues  But although a large part of the Ordinance is concerned with the levy of and exemption from custom duties(Chapter III) and collection of duties (Chapter IV) this is not its main purpose. The Ordinance provides for three kinds of goods -

1. goods whose import or export is absolutely prohibited;

2. goods whose import or export is restricted; and

3. goods whose import or export is subject to the levy of revenue unless some exemption exists.

Thus the Ordinance has for its purpose the checking of all imports and exports and makes provision for goods falling under these various headings. There can be no levy of revenue where the import or export is absolutely prohibited nor can this question arise where the import or export is restricted —except as to any goods in excess of such restriction whose import or export may be either absolutely prohibited or subject to the payment of dues, or subject to licence.

Our attention was drawn to an item of currency in one of the Schedules to the Ordinance, but there the intention is manifestly directed towards metals coming in as metallic tokens of currency which because of their disuse or rarity had become of antiquarian or commercial interest. It is a well-known rule of interpretation of statutes that even when words are used in an extensive sense, all circumstances, internal and foreign, must be taken into account in determining  whether a particular thing before the Court was intended by the Legislature to be brought within the purview of the statute. See the quotation fromStradling v. Morgan (Plowd. 199, 204, 205), which was given by Birkenhead, L.C. in the case of the Claim of ViscountessRhondda, [1922] 2 A.C.

339. The quotation is at p. 369, and reads as follows - The Sages “of the Law’, say the Barons of the Exchequer in Stradling v. Morgan after the consideration of a long line of cases, heretofore have construed Statutes quite contrary to the Letter in some appearance, and those Statutes which comprehend all Things in the Letter they have expounded to extend but to some Things, and those which generally prohibit all people from doing such an Act they have interpreted to permit some People to do it, and those which include every Person in the Letter

they have adjudged to reach to some Persons only, which Expositions have always been founded upon the Intent of the Legislature, which they have collected sometimes by considering the cause and Necessity of making the Act, sometimes by comparing one part of the Act with another, and sometimes by foreign Circumstances. So that they have ever been guided by the Intent of the Legislature, which they have always taken according to the Necessity of the Matter, and according to that which is consonant to Reason and good Discretion.

In the case before us, the Legislature after passing the Customs Ordinance in 1939, passed another Ordinance in 1945 called the Economic (Transitional Controls) Ordinance to meet the economic requirements of the country for the time being, and it was only in 1947 that Regulations were issued under the latter Ordinance. The Ordinance of 1939 is a permanent measure, while the Ordinance of I945 was a temporary one. In fact the Regulations made in 1947 would have lapsed but for their being kept in force from year to year by virtue of another Ordinance. The Ordinances of 1939 and of 1945 are not linked together. Taking these circumstances into account it is clear that the Ordinance of 1939 was never meant to be applied to the present case.

An example of exclusion from general words will be found in the case of Brown. In England under the Customs Consolidation Act, 1876 the importation of arms ammunition, gunpowder, or any “other goods” could be prohibited by an Executive Order. By a Proclamation issued under the Act n 1919 during the course of the World War, “chemicals of all descriptions” were prohibited to be imported. The case of Brown related to import of pyrogallic acid and was sought to be brought within the Act and the Proclamation. But the Court held that it could not be, despite the use of general words. See Attorney-General vs. Brown, [1920] 1 KB. 773, where Sankey J. at p. 791 quotes Stradling vs. Morgan already referred to.

This leads us to the second and more difficult question. Is there any rule of construction which would exclude the application of the Customs Ordinance to the importation of money by reason of the existence of an offence under Regulation II of the Finance (Exchange Control) Regulations 1947 punishable under S.10 of the Residual Controls Ordinance 1950.

Thus (i) does the later enactment exclude the application of the Customs Ordinance; or (ii) has there been an offence committed under both these Ordinances and if so (iii) what is the punishment to be inflicted.

Although the modern trend is to construe a statute rationally with regard to the aim and intention of the legislature, the dictum of Lord Abinger C.B. in Henderson vs. Sherborne (1837) (1837) 2 M & W 236 at p. 239 is still applicable : - The principle adopted by Lord Henderson that a penal law ought to be construed strictly is not only a sound one, but the only one consistent with our free institutions. The interpretation of statutes has always, in modern times, been highly favourable to the “personal liberty of the subject and I hope will always remain so”.

Here we are concerned not so much with personal liberty as with liberty of property, for a conviction under Section 204 (a) of the Customs Ordinance can result in an order for forfeiture under S. 195 (c) whenever the Director of Customs so desires. No such forfeiture would occur under the Residual Controls Ordinance 1950.

Bearing this in mind, we must also remember that when we are confronted with two laws covering the same subject matter, our first intention should be to harmonize the two laws and only if they are so inconsistent with one another that they cannot stand together does the question arise as to which one is to give way to the other (City & South London Ry Co. vs. L.C.C. [1891] 2. Q.W 513). Thus the general law of the land is not altered by any specific law unless such specific law is inconsistent therewith. ‘The presumption  exists however, that if a different penalty is imposed by a subsequent statute or a different procedure laid down otherwise then such alteration is intended. As ‘Martin B. stated in Robinson vs. Emerson (1866) 4 H.A.C. p. 352 - where a statute prohibits a particular act, and imposes penalty for doing it, and a subsequent statute imposes a different penalty for the “same offence, the latter statute operates as a repeal of the former”.

The limitation of this rule is clearly stated by Lord Abinger C.B. in Henderson vs. Sherborne, page 239 : - if a crime is created by statute with a given penalty, and be afterwards repeated in another statute with a lesser penalty attached to it, I cannot say that the party ought to be liable to both. There may, no doubt be two remedies for the same act, but they must be of a different nature.

Thus when in that case, the later act reduced the penalty from L.100 to L.5 there was a repeal, but when as in Sim vs. Pay (1889) 58 L.J. M.C. 39 the subsequent act though reducing the money penalty, added the possibility of  forfeiture  no such repeal occurred.

Looking at Regulation ii of the Finance (Exchange Control) Regulations 1947 and Section 10 of the Residual Controls Ordinance 1950 and comparing them with the Customs Ordinance 1939, can -we

say there is an inconsistency  or that there are indications that the legislature did not intend the two rights thereunder to exist together ? If there be any doubt as to this, then we must construe it in favour of the accused. -See Maxwell on Interpretation of Statutes, 10th Edition, p. 285.

The effect of’ the rule of strict construction might almost be summed up in the remark that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. This was approved in R. vs. Chapman [1931] 2 K.B. 606 at 609. The learned Magistrate misdirected himself as to the proper rule when he stated that where it appears that the accused have committed an offence against two penal Sections of an Ordinance or Ordinances, that which is more in his favour should be applied’. The learned Magistrate did not refer to S. 74 of the Penal Code which contains no such provision, nor did he indicate that some equivocation or ambiguity would have to exist for the application of this rule of construction.

Let us examine the two offences to see whether there exist such inconsistency as to show that they are mutually exclusive.

Under the Customs Ordinance 1939, a conviction under S. 204 (a) is punishable by a fine not exceeding LE.500 and imprisonment up to 7 years. Section 210 provides that all penalties shall be in addition to any forfeiture. Section 195 provides subject to the same being duly or being deemed to be condemned under the provisions of this Ordinance, the following goods shall be forfeited to the Government. It should be noted that S. 213 enables offences under the Customs Ordinance to be compounded by the Director of Customs. This links up with Section 195 for the Director must claim forfeiture by condemning the goods.

The Economic (Transitional Controls) Ordinance 1945, Section 9, under which the Finance (Exchange Control) Regulations 1947, were passed has no provisions for the compounding of any offence thereunder, but only makes it an offence to import or export currency without the licence of the Minister of Finance. The punishment is imprisonment up to six months and/or a fine. See now the Residual Controls Ordinance, 1950. There are no provisions for forfeiture or condemnation or seizure leading to forfeiture.

The two enactments which we have to consider are Section 204 (a) of the Customs Ordinance and Regulation ii (a) on one side, and Section 10 of the Residual Controls .)ordinance and Regulation II (a)

on the other side. Only if there is a conviction under S. 204 (a) of the Customs Ordinance can the question of forfeiture arise.

Bearing in mind the rule of construction as laid down by Martin B. in Robinson vs. Emerson, this is clearly a case where a statute prohibits a particular act, and imposes a penalty for doing it, and a subsequent statute imposes a different penalty for the same offence, the latter statute operates as a repeal of the former.

Thus with regard to Regulation ii of the Finance (Exchange Control) Regulations, 1947, Section 204 (a) of the Customs Ordinance would not be applicable. The repeal, however, is limited to this exception (City & South London Ry vs. L.C.C.) and punishment is confined  to Section 10 of the Residual Controls Ordinance, 1950.

I realize that this decision is contrary to two previous decisions in the Sudan, but in neither of these decisions (S.G./2.N. 4/7531/1952 and S.G./2. N. 4/6830/1950) was the question fully examined nor were reasons given for these decisions.

In order to bring such a case within the provisions of the Customs Ordinance, 1939, a provision in the Schedule to the Prohibited and Restricted Goods Ordinance should have been made to include the articles mentioned in Regulation II (a) of the Finance (Exchange Control) Regulations, 1947. This was the approach in the United Kingdom where the Schedule to the Exchange Control Act 1947 links that Act with the Customs Consolidation Act, 1876 and makes the import and export of English currency an offence under the Customs Act, 1876, and the money so smuggled liable to forfeiture.*

The offence is very serious. The learned Judge of the High Court had reduced the fine against the two accused from LE.100 to LE.10 on the ground that the money found with accused would be forfeited. Having found that no forfeiture is possible, we think that the fine should be increased. We consider that the fine imposed by the Police Magistrate against both accused is reasonable and is restored.

(Appeal dismissed)

(*) (Editor:— The Miscellaneous Amendments Act 1957 (1957 Act No. 25) Section 26 adds a proviso to Section 10 of the Residual Controls Ordinance : Provided that the punishment imposed under this Ordinance shall be in addition to, and not in derogation of, any other punishment, penalty or procedure to which he may be liable or subject under any other law.)