Principles

·  CRIMINAL LAW — prohibited Goods — Import _Prohibited and Restricted Good. Ordinance 1939. s. 3(1) — Regular subscriber to magazine is not an importer within the meaning of this section.

·  CRIMINAL LAW — Prohibited Goods — Possessor of illegally imported goods deemed to have imported — Prohibited and Restricted Goods OrdinanCe 1939, s. 6 — Defence of lack of knowledge of illegality — Accused subscriber had no knowledge of illegal contents of magazine in his possession.

The accused received twenty-four copies of a foreign magazine, to which he subscribed as secretary of a mission. Accused did not know that the magazine contained an article “likely to throw contempt on the Moslem ... religion” within the scope of Prohibited and Restricted Goods Ordinance 1939, First Schedule, Part I, s. 4. The accused subscriber was convicted under Prohibited and Restricted Goods Ordinance 1939. s. 3(1) of illegal importation. From the decision of the Province Judge affirming on appeal, accused applied for revision.
Held: (I) A subscriber to a foreign magazine who does not know its illegal contents is not deemed an illegal importer under Prohibited and Restricted Goods Ordinance 1939. s. 3(1)
(ii) a possessor of a foreign magazine who does not know of its illegal contents can rebut the presumption under Prohibited and Restricted Goods Ordinance 1939, s. 6 that he knowingly assisted in importing it by proving this lack of knowledge of contents.

Judgment

 Advocate: Ahmed Guma ‘a .... for the accused.

S. M. A.. Attig, P.. 1., January 5, 1963, PC - CR - REV - 3 - I - 1962 (Juba):— Accused, the secretary of the American Mission in Malakal, impoited 24 copies of our Africa magazine, which contained an article likely to throw contempt on Islamic Religion. He was found guilty under the Prohibited and Restricted Goods Ordinance 1939, s. 3(1) and sentenced to a fine of £S.20. Accused applied for revision and his defence is wholly based on the absence of mens rea an essential constituent of every crime.

I agree with the defence that mens rea is a necessary constituent of every crime. But in some statutory offences, this essential ingredient is dispensed with, and especially in cases where absolute prohibition is imposed by the legislature. The law in this respect was clearly laid down by Lord Chief justice Goddard in Brend v. Wood(1946) 64T.L.R. 462. and fully explained in Harding v. Price (1948) 1 KB. 695, 700-702. His Lordship said: “. . . I venture to repeat what I said in Brend v. Wood, ‘It is of the utmost importance for the protection of the liberly of the subject that a court should always bear in mind that unless a statute either clearly or by necessary implication rules Out mens rea as a constituent part of a crime. the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.’

He goes on to say: “If, apart from authority, one seeks to find a principle applicable to this matter, it may be thus stated: If a Statute contains an absolute prohibition against the doing of some act, as a general rule mens rea is not a constituent of the offence; but there is all the difference between prohibiting an act and imposing a duty to do something on the happening of a certain event . . .. In deciding whether mens rea is excluded as a necessary constituent of a crime, it is, in my opinion, always necessary to consider whether the offence consists in doing a prohibited act. or failing to perform a duty which only arises if a particular state of affairs exists.

That being the law, we have to consider the Prohibited and Restricted Goods Ordinance 1939, s. 3(1). in other words, we must find out whether the wording of the section implies an absolute prohibition.

Prohibited and Restricted Goods Ordinance 1939, s. 3 reads as follows: “The import of the goods and ar1icles in the Prohibited and Restricted Goods Ordinance 1939, First Schedule, Part I is hereby prohibited.” It is a well established principle of construction of statutes that the intention of the legislature predominates. The statute should therefore be construed in a manner to carry out the intention of the legisla ture. This intention is to be fathered from the words of the statute itself. If these words are plain, they will indicate either directly or impliedly the intention with which the statute was passed and the object to be attained by it.

In other words, the construction should be in accordance with the policy and the object of the statute in question.

If we look carefully at the wording of the Prohibited and Restricted Goods Ordinance, S. 3(1), it clearly prohibits the import of goods and articles enumerated in the First Schedule, Part I.

It shall not avail the accused to say that he did not intend to import that article or those goods or to say that he did not know that such book or document was likely to throw contempt on the Islamic Religion. The import is prohibited irrespective of the knowledge that it contained a contemptuous article. The fact that it contained such is enough.

The phrases alleged to be contemptuous are: “Unlike Mohamed’s Koran the Bible is not based on vision but on fact. Mohamed is supposed to have seen visions and was told he was a prophet. Mohamed and other self-styled prophets or successors of Christ have no such powers. We do not need any ‘new revelation’, ‘Visions’ or ‘Prophets’. God has given us full redemption through Jesus Christ. They gamble with this eternity who choose Mohamed and leave Christ.”

The learned Magistrate found that the above phrases are likely to throw contempt on the Islamic Religion.

I support him in his findings. The fact that the originator has an honest belief in what he said is not enough. This belief is relevant only to negative malice on his; part where his defence is that of qualified privilege. He did not raise that question, and this is not a case of qualified privilege. The only defence relevant to the present case may be justification. In justification the belief is irrelevant and the accused must prove that the statement is substantially true. Accused is not the originator, but he is responsible for importing a magazine which contained an article which is likely to throw contempt on Islamic Religion.

I must point out that the phrases cited by the learned counsel for the defence from the two cases have no bearing on the subject. The case of Laughton v. Bishop of Sodor and Man (1872) L.R. 4 P.C. 495, is relevant where the defence of qualified privilege is pleaded and only to negative malice on the part of the defendant. Plymouth Mutual Co-operative and Industrial Society, Ltd. v. Traders’ Publishing Association, Ltd., (1906) 1 KB. 403, is relevant when assessing damages where the state of mind of the defendant is material. I therefore confirm the finding and sentence.

I must add that the magazine is full of contemptuous statements; page 23 is another example of statements which are likely to throw contempt on both religions, Islam and Catholicism.

M A Abu Rannat, C. J,, April 11, 1963:—On or about August 20, 1962, the accused in his capacity as the Secretary of the American Mission in Malakal received 24 copies of Our Africa magazine, which contained an article likely to throw contempt on the Moslem religion.

It is conceded that the 24 copies of this magazine were received by the secretary of the Mission, who distributed them, but he contended that he did not read them nor did he know that they contained the article complained of.

Both the Magistrate and His Honour the Province Judge found that Prohibited and Restricted Goods Ordinance 1939, s.3(l) does not require knowledge on the part of the person who imported the magazines.

Prohibited and Restricted Goods Ordinance 1939, s.3(l) reads:

“The import of the goods and articles enumerated in the first part of the First Schedule to this Ordinance is hereby prohibited.”

If this section is read alone, it will no doubt show that there is absolute prohibition, and knowledge of the contents of the magazine is not an essential ingredient of the offence; but this section must be read with Prohibited and Restricted Goods Ordinance 1939, s.6, which reads:

“Any person found in possession of any goods or articles the import, export, transport, cultivation, manufacture or dealing of or with which is prohibited or restricted under the provisions of this ordinance shall be deemed to have knowingly assisted in such import, export, transport , cultivation, manufacture or dealing as the case may be unless he can show that he obtained the same lawfully without knowledge if the contravention of any such prohibition or restriction.”

(Italics added)

Prohibited and Restricted Goods Ordinance 1939, s.6 makes knowledge on the part of the accused an essential ingredient of the offence, but it shifts the burden of proof on to him. It is not for the prosecution to prove that the accused knew of the contents of the articles complained of, but it is for the accused to prove that he obtained the magazine lawfully and without knowledge that it contained an article that is likely to throw co tempt on the Moslem religion.

The accused was found in possession of the magazine complained of. There is a rebuttable presumption that he knew of the contents of the article complained of, but he proved that he did not know of it until the time when his attention was called to it.

The next point is whether a person who pays subscription for a magazine and receives it is deemed to have imported it. There is a difference between the proprietor of a book-store or library, who imports books and magazines for sale or distribution, and the ordinary subscriber who can not  know what is written before receiving the magazine or paper.

In the circumstances, the accused did not import the magazine, but he is presumed under Prohibited and Restricted Goods Ordinance 1939, s.6 to have assisted in the import. It is presumed that he has knowledge of the article prohibited, but in my view he discharged the onus placed on him by showing that he had no knowledge of it.

I therefore quash the finding of guilty under Prohibited and Restricted Goods Ordinance 1939, s. 3(1), and order the refund of the fine to accused.

SUDAN GOVERNMENT v. MILTON THOMPSON

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Case No.:

AC.CR-REV-22-1963

Court:

Major Court Confirmation

Issue No.:

1963

Principles

·  CRIMINAL LAW — prohibited Goods — Import _Prohibited and Restricted Good. Ordinance 1939. s. 3(1) — Regular subscriber to magazine is not an importer within the meaning of this section.

·  CRIMINAL LAW — Prohibited Goods — Possessor of illegally imported goods deemed to have imported — Prohibited and Restricted Goods OrdinanCe 1939, s. 6 — Defence of lack of knowledge of illegality — Accused subscriber had no knowledge of illegal contents of magazine in his possession.

The accused received twenty-four copies of a foreign magazine, to which he subscribed as secretary of a mission. Accused did not know that the magazine contained an article “likely to throw contempt on the Moslem ... religion” within the scope of Prohibited and Restricted Goods Ordinance 1939, First Schedule, Part I, s. 4. The accused subscriber was convicted under Prohibited and Restricted Goods Ordinance 1939. s. 3(1) of illegal importation. From the decision of the Province Judge affirming on appeal, accused applied for revision.
Held: (I) A subscriber to a foreign magazine who does not know its illegal contents is not deemed an illegal importer under Prohibited and Restricted Goods Ordinance 1939. s. 3(1)
(ii) a possessor of a foreign magazine who does not know of its illegal contents can rebut the presumption under Prohibited and Restricted Goods Ordinance 1939, s. 6 that he knowingly assisted in importing it by proving this lack of knowledge of contents.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. MILTON THOMPSON

AC.CR-REV-22-1963

Advocate: Ahmed Guma ‘a .... for the accused.

S. M. A.. Attig, P.. 1., January 5, 1963, PC - CR - REV - 3 - I - 1962 (Juba):— Accused, the secretary of the American Mission in Malakal, impoited 24 copies of our Africa magazine, which contained an article likely to throw contempt on Islamic Religion. He was found guilty under the Prohibited and Restricted Goods Ordinance 1939, s. 3(1) and sentenced to a fine of £S.20. Accused applied for revision and his defence is wholly based on the absence of mens rea an essential constituent of every crime.

I agree with the defence that mens rea is a necessary constituent of every crime. But in some statutory offences, this essential ingredient is dispensed with, and especially in cases where absolute prohibition is imposed by the legislature. The law in this respect was clearly laid down by Lord Chief justice Goddard in Brend v. Wood(1946) 64T.L.R. 462. and fully explained in Harding v. Price (1948) 1 KB. 695, 700-702. His Lordship said: “. . . I venture to repeat what I said in Brend v. Wood, ‘It is of the utmost importance for the protection of the liberly of the subject that a court should always bear in mind that unless a statute either clearly or by necessary implication rules Out mens rea as a constituent part of a crime. the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.’

He goes on to say: “If, apart from authority, one seeks to find a principle applicable to this matter, it may be thus stated: If a Statute contains an absolute prohibition against the doing of some act, as a general rule mens rea is not a constituent of the offence; but there is all the difference between prohibiting an act and imposing a duty to do something on the happening of a certain event . . .. In deciding whether mens rea is excluded as a necessary constituent of a crime, it is, in my opinion, always necessary to consider whether the offence consists in doing a prohibited act. or failing to perform a duty which only arises if a particular state of affairs exists.

That being the law, we have to consider the Prohibited and Restricted Goods Ordinance 1939, s. 3(1). in other words, we must find out whether the wording of the section implies an absolute prohibition.

Prohibited and Restricted Goods Ordinance 1939, s. 3 reads as follows: “The import of the goods and ar1icles in the Prohibited and Restricted Goods Ordinance 1939, First Schedule, Part I is hereby prohibited.” It is a well established principle of construction of statutes that the intention of the legislature predominates. The statute should therefore be construed in a manner to carry out the intention of the legisla ture. This intention is to be fathered from the words of the statute itself. If these words are plain, they will indicate either directly or impliedly the intention with which the statute was passed and the object to be attained by it.

In other words, the construction should be in accordance with the policy and the object of the statute in question.

If we look carefully at the wording of the Prohibited and Restricted Goods Ordinance, S. 3(1), it clearly prohibits the import of goods and articles enumerated in the First Schedule, Part I.

It shall not avail the accused to say that he did not intend to import that article or those goods or to say that he did not know that such book or document was likely to throw contempt on the Islamic Religion. The import is prohibited irrespective of the knowledge that it contained a contemptuous article. The fact that it contained such is enough.

The phrases alleged to be contemptuous are: “Unlike Mohamed’s Koran the Bible is not based on vision but on fact. Mohamed is supposed to have seen visions and was told he was a prophet. Mohamed and other self-styled prophets or successors of Christ have no such powers. We do not need any ‘new revelation’, ‘Visions’ or ‘Prophets’. God has given us full redemption through Jesus Christ. They gamble with this eternity who choose Mohamed and leave Christ.”

The learned Magistrate found that the above phrases are likely to throw contempt on the Islamic Religion.

I support him in his findings. The fact that the originator has an honest belief in what he said is not enough. This belief is relevant only to negative malice on his; part where his defence is that of qualified privilege. He did not raise that question, and this is not a case of qualified privilege. The only defence relevant to the present case may be justification. In justification the belief is irrelevant and the accused must prove that the statement is substantially true. Accused is not the originator, but he is responsible for importing a magazine which contained an article which is likely to throw contempt on Islamic Religion.

I must point out that the phrases cited by the learned counsel for the defence from the two cases have no bearing on the subject. The case of Laughton v. Bishop of Sodor and Man (1872) L.R. 4 P.C. 495, is relevant where the defence of qualified privilege is pleaded and only to negative malice on the part of the defendant. Plymouth Mutual Co-operative and Industrial Society, Ltd. v. Traders’ Publishing Association, Ltd., (1906) 1 KB. 403, is relevant when assessing damages where the state of mind of the defendant is material. I therefore confirm the finding and sentence.

I must add that the magazine is full of contemptuous statements; page 23 is another example of statements which are likely to throw contempt on both religions, Islam and Catholicism.

M A Abu Rannat, C. J,, April 11, 1963:—On or about August 20, 1962, the accused in his capacity as the Secretary of the American Mission in Malakal received 24 copies of Our Africa magazine, which contained an article likely to throw contempt on the Moslem religion.

It is conceded that the 24 copies of this magazine were received by the secretary of the Mission, who distributed them, but he contended that he did not read them nor did he know that they contained the article complained of.

Both the Magistrate and His Honour the Province Judge found that Prohibited and Restricted Goods Ordinance 1939, s.3(l) does not require knowledge on the part of the person who imported the magazines.

Prohibited and Restricted Goods Ordinance 1939, s.3(l) reads:

“The import of the goods and articles enumerated in the first part of the First Schedule to this Ordinance is hereby prohibited.”

If this section is read alone, it will no doubt show that there is absolute prohibition, and knowledge of the contents of the magazine is not an essential ingredient of the offence; but this section must be read with Prohibited and Restricted Goods Ordinance 1939, s.6, which reads:

“Any person found in possession of any goods or articles the import, export, transport, cultivation, manufacture or dealing of or with which is prohibited or restricted under the provisions of this ordinance shall be deemed to have knowingly assisted in such import, export, transport , cultivation, manufacture or dealing as the case may be unless he can show that he obtained the same lawfully without knowledge if the contravention of any such prohibition or restriction.”

(Italics added)

Prohibited and Restricted Goods Ordinance 1939, s.6 makes knowledge on the part of the accused an essential ingredient of the offence, but it shifts the burden of proof on to him. It is not for the prosecution to prove that the accused knew of the contents of the articles complained of, but it is for the accused to prove that he obtained the magazine lawfully and without knowledge that it contained an article that is likely to throw co tempt on the Moslem religion.

The accused was found in possession of the magazine complained of. There is a rebuttable presumption that he knew of the contents of the article complained of, but he proved that he did not know of it until the time when his attention was called to it.

The next point is whether a person who pays subscription for a magazine and receives it is deemed to have imported it. There is a difference between the proprietor of a book-store or library, who imports books and magazines for sale or distribution, and the ordinary subscriber who can not  know what is written before receiving the magazine or paper.

In the circumstances, the accused did not import the magazine, but he is presumed under Prohibited and Restricted Goods Ordinance 1939, s.6 to have assisted in the import. It is presumed that he has knowledge of the article prohibited, but in my view he discharged the onus placed on him by showing that he had no knowledge of it.

I therefore quash the finding of guilty under Prohibited and Restricted Goods Ordinance 1939, s. 3(1), and order the refund of the fine to accused.