SUDAN GOVERNMENT v. MOHAMED ABDU RABO MOHAMED
(CRIMINAL REVISION)
SUDAN GOVERNMENT v. MOHAMED ABDU RABO MOHAMED
AC-CR-REV-211-1969
Principles
Criminal Law—Vicarious criminal responsibility-—Prices and Charges Order, r. 9— Owner of shop is presumably criminally responsible for servant’s acts—Such presumption is rebuttable
The owner of a shop is presumably vicariously criminally responsible for acts of his servant in contravention of Prices and Charges Order, r. 9. Such presumption is rebuttable by pleading and establishing that the servant, at the time the offence was committed, was not acting within the course of his employment.
Advocate: Ali Mohamed Shammam for the accused
Judgment
Osman El Tayeb C.J. August 12, 1969 :—The prisoner is a merchant of Port Sudan; he was tried by Police Magistrate, Port Sudan, and charged with demanding a price more than the maximum price for the sale of a 3 inch diesel pump engine on October 20, 1968, and thereby committing an offence under the Prices and Charges Order, rule 9, and punish able under the Residual Controls Act 1966, s. 8 (1) (c) (as it was before the last Amendment thereto of July 1969). The prisoner was convicted as charged and sentenced to imprisonment for two months as from July 9, 1969 (the date of the trial) and to a fine of £S.50.000m/ms The pump was ordered to be confiscated and it was also ordered that his trading licence be endorsed.
On appeal against the conviction and sentence the learned Province Judge confirmed the finding and sentence, but cancelled the order of confiscation of the pump.
The facts of the case are brought about by the Prices Officer of the Ministry of Commerce and Supply (as it was called) who, on October 20, 1968, visited the prisoner’s shop and found the inches diesel pump engine on which there was a label showing the sale price to be £S.239.000m/ms. The prisoner was not in the shop, but there was a person in charge named Mohamed Alawi. The officer said that he asked the prisoner to give him the relevant documents for calculation of the maximum price, and he received them from him, and calculated the price according to rule of the Prices and Charges Order, and found the maxi mum price was £S.232.960m/ms. that the demanded price was in excess of the maximum price by £S.6.040m/ms. And for that the officer lodged information with the police. It was lodged on April 26, 1969. I wonder why it was so lodged after about six months from the date of the alleged commission of the offence.
The officer stated that he relied for the calculation on the pro forma invoice showing the c.i.f. price to be £1,224 10s. od. for a consignment containing other pumps. This sum was converted to Sudanese pounds as £S.10444.508m/ms.; to it were added bank charges amounting to £S.7.834m/ms. and customs dues, expenses and clearance commission, amounting to £S.333.456m/ms. and lastly £S1.000m/ms. for portage and transport, bringing the total to £S.1386.698m/ms. The price of the one engine was found to be £S.174.720m/ms.; adding to that the allowable profit of 331/3% brought the maximum sale price to £S.232.960m/ms.
The learned advocate for the prisoner argued the impropriety of the conviction on two grounds:
(a) The prisoner was not the seller within the meaning of rule 9 of the Prices and Charges Order, because though he was the owner of the shop, he was not in charge of the sales. There was an agent in the shop who was in charge of the sales, the fixing of the prices, showing these prices on the labels, etc.
(b) The trial court did not take in consideration the proper c.i.f. value, the extra amount for excess of freight and other items for calculation of the maximum price.
The learned advocate in support of the first point, in which he meant to submit that the prisoner cannot be made responsible for the acts of his servant or agent, referred to two cases: The first one is Sudan Government v. Mohamed El Faki Abdalla (1962) S.L.J.R. 155, in which accused was a butcher, and in his absence his employee sold meat in excess of maximum published prices contrary to rule 9 of the Prices and Charges Order, the conviction made by the magistrate was quashed by the Province Judge. The learned judge applied the general rule of nemo reus nisi mens rea, subject to exceptions created by the express words of the statute creating the offence. The second case referred to by the learned advocate is Sudan Government V. Mekki El Amin Sulieman (1965) S.L.J.R. 124; accused was the owner of a bakery, and his servants sold bread with less weight than that prescribed, and so the sale was above maximum published prices, in contravention of rule 9 of the Prices and Charges Order. The magistrate convicted accused and on revision the learned Province Judge quashed the conviction. He stated the general principle that a master is not criminally liable for an act or omission unless he has himself committed or omitted the act or authorized or knew or shut his eyes to the commission or omission. Consequently a principal or master is not generally criminally liable, for acts of his agents or servants.
The general principle of criminal responsibility is obvious; it is a cardinal principle of’ our : criminal law ‘that no person can’ be held responsible for a criminal’ act unless he has participated in ‘its commission, after having the intention or the knowledge of that participation, whether he be a joint offender or abettor or conspirator. But the application of this ‘general principle to the” two cases cited, and to the case under consideration is, i think, wrong.
Now there is legislation covering many fields, intended to control or regulate the economy—the prices, the ‘availability of goods ‘and: “commodities, the public health, or the general’ welfare: and safety of the community—and such legislation imposes penalties for the contravention of its provisions. These punishable contraventions are called in England statutory offences, in contradistinction to the Common Law ffences. The mens rea is part of the English Common ‘Law, and it is an essential ingredient: of every Common Law offence, that it has to be specifically and particularly proved by the prosecution in order to secure conviction of the accused for that offence. But in the case of the statutory offences, as those above referred to, the position is different in that the mens rea is presumed. The duty of the prosecution is to establish the contravention of the law on the face of it, and the burden of’ proof shifts on the accused to prove lack of knowledge or lack of intention ‘with regard to the commission of the’ contravention. The presumption ‘of the mens rea depends on the construction of the statute, whether it expressly or’ by necessary implication imposes on absolute prohibition on the act or omission. Where it is so the mens rea is dispensed with and the perpetrator, even though he was the master of the servant who did the act or omission constituting the offence, has to suffer for it notwithstanding that the act or omission was done by his servant or agent without, his knowledge. In this class of case a person can be visited with punishment for the acts of another done without his knowledge or intent.
In the ‘English case, Reynolds v. Austin [1951] 1 All E.R. 606—611 the contravention was of that section’ of the Road Traffic Act which’ makes it an offence to use a vehicle or to cause or permit it to be used as an express carriage except under a road service licence, and the coach was so used without a licence by another ‘ person without permission or know ledge of the respondent, Devlin J. said:
“Applying the principle 1 have stated prima facie the respondent commits no offence unless mens rea is’ present. The’ first question, therefore, is whether on the true construction of this statute the presumption can be rebutted. There are certainly no express words to rebut the presumption. I am considering whether there is ‘an :‘implication of rebuttal,. it is necessary to have regard to the language
of the statute as a whole, and to the subject-matter with which it deals. There is, in my view, nothing in the language of this statute, to rebut the presumption... . The main weight of the case for the appellant (the Licensing Authority) rests on the contention that this statute belongs to a class in which mens rea should be dispensed with. There is no doubt that some of the provisions of the Road Traffic Acts do fall within this class. . . . It may seem on the face of it hard that a man should be fined, and, indeed, made subject to imprisonment for an offence which he did not know he was committing, but there is no doubt that the legislature has for certain purposes found that hard measure to be necessary in the public interest. The moral justification behind such laws is admirably expressed in the following words of Dean Roscoe Pound in his book, The Spirit of the Common Law:
Such statutes are not meant to punish the vicious will but to put pressure upon the thoughtless and inefficient to do their whole duty in the interest of public health or safety or morals".
Devlin J. continued:
“Thus a man may be made responsible for the acts of his servants or even for defects in his business arrangements, because it can fairly be said that by such sanctions citizens are induced to keep themselves and their organisations up to the mark. Although in one sense the citizen is being punished for the sins of others, it can be said that, if he had been more alert to see that the law was observed the sin might not- have been committed. If a man is punished because of an act done by another, whom he cannot reasonably be expected to influence or control, the law is engaged, not in punishing thought lessness or inefficiency,, and thereby promoting the welfare of the community, but on pouncing on the most convenient victim".
The owner of the coach was found not guilty on the grounds that the language of the Act contains causing or permitting the use of the vehicle; and secondly the person who used the coach contrary to the- law was not his servant and not subject to his control.
In the English case Gardner v. Akeroyd [1952] 2 All E.R. 306—310, the servant of a butcher prepared parcels of meat for customers bearing tickets of prices in excess of the maximum prices prescribed by the relevant legislation, which prohibited the sale in excess of maximum prices, and also made the preparation for such sale subject to penalty. The butcher (the respondent) was charged with the preparation for the commission of the offence. The justices were of the- opinion that the respondent did not take any act of preparation to the commission of the offence and dismissed the information against him. It was contended on behalf of appellant that the offences admittedly committed by the servant were committed in the performance of duties delegated by the respondent and that the respondent was liable for the offences committed by hi servant whether he was himself aware of -them or not. It was contended on behalf of respondent, that he took no part in the cutting, weighing, pricing, or ticketing of the meat; and that he gave no directions as to those operations; that he was absent from the shop at all material times; and that he would have priced sev of the orders differently.
It was held that had the sale been made by delivery of the parcels to the customers the respondent would have been liable, but for the act of preparation he would not, because the legislation as to the act of preparation did not rebut the presumption that no offence is committed under it unless mens rea is present. Lord Goddard expressed his opinion in the following words:
“A master who is not precept in the offence can only be liable criminally for the acts of his servant if the statute which creates the offence does so in terms which impose an absolute prohibition. Where the prohibition is absolute no question of knowledge or intent arises, the state of mind of the perpetrator is immaterial. But this does not mean that whenever an Act forbids something a master is liable if his servant does the act forbidden. It has to be decided as a matter of construction whether the Act imposes a liability on the master for the act of his servant, and the relevant considerations are to be found in Mousell’s case cited by Parker J. If for example an Act forbids a sale of adulterated food, or of goods of a false trade description, or at a price in excess of statutory maximum, the master will be liable notwithstanding that the sale was effected by his servant and without his knowledge provided only that the sale was in the course of the servant’s employment. The seller was the employer, and the offence is complete as soon as the goods are sold. A person can be guilty of an offence if he does an act forbidden, if he aids and abets the commission of the offence, if he conspires with another to commit it, if he attempts to commit it, and, in the case of offence against the regulations if he does an act preparatory to the commission of an offence. There is no doubt that the class of offence with which we are now dealing is one for which a master can be held vicariously liable. If a sale had taken place there is no doubt that the respondent could have been and would have to be convicted".
The relevant article of the English law that was the subject of construction in the above cited case reads as follows:
“No person shall sell or- buy by retail any meat at a price exceeding the maximum price applicable in accordance with the schedule to this Order".
And the relevant part of rule 9 of the Prices and Charges Order, with which the appellant was charged and convicted in our present case, reads as follows:
“No seller of any goods whatsoever shall demand a price higher than that which may have been fixed, authorized, or notified under these Orders".
The two pieces of legislation- give the same and similar import, -in the two of them there is absolute prohibition of sale. No doubt the same meaning and understanding can be found in saying “No person - shall sell” or “No seller shall sell.” Here and there what is intended is the prohibition of sale higher than or about the maximum prices prescribed by Order.
In this case, where there is an absolute prohibition not to sell goods above the prescribed maximum prices, the seller to whom the prohibition is directed is the owner of the shop in which the goods are sold, and the owner of the goods that are being sold, in the sense that he was the per son who brought or authorized them to be brought in the shop for sale for profit in the ordinary course of business. When the sale is being carried out by a servant or agent it is being so done on behalf of the shop owner, and it is attributable to him, as if it was done by him personally. Here arises a legal presumption that the offence committed by the sale of goods at a price higher than the maximum prescribed, made by the servant, is the master’s ofence, and he would be criminally responsible for it. That is so even if the servant had been in charge of the full management of the shop; for fixing the prices and showing them on labels attached to the goods, and even if the shop owner had no know ledge of or intention of fixing prices higher than the maximum prices prescribed by law. This presumption is rebuttable by pleading and establishing that the servant at the time the offence was committed, was not acting within the course of his employment, and therefore the master would not be criminally responsible for the offence committed by his act. The butcher is criminally responsible for his servant’s act when the servant sold meat in excess of the maximum prices, and the baker is also criminally responsible for the act of his servants when they sold bread in excess of the maximum prices, unless he had proved that the servants acted outside the course of their employment.
In the present case the appellant prisoner is the owner of the shop, and owner of the goods, and the engine in question was imported by. him. He is employing Mohamed Alawi to be in charge of the shop, he did not
make the defence that Mohamed Alawi was acting outside the course of his employment. The prisoner is therefore the seller within the meaning of rule 9, and if the price fixed and shown on the engine was above the maximum price, then he would be committing the offence by demanding more than the maximum price for that engine.
As to the price demanded as shown on the engine, I have some doubt as to whether it was above the maximum price prescribed. The learned magistrate accepted the evidence of the officer of the Ministry of Supply without question, and without taking into consideration the evidence produced by the prisoner. In the first place the officer took into consideration the c.i.f. price as shown on the pro forma invoice dated May 11, 1967 which was £1,224 10s. od. while there were other invoices adding certain interests and debits to that c.i.f. price. The one dated December 18, 1967 showed the price to be £1,270 18s. 11d. The evidence adduced by the prisoner established that he paid to the bank the same above sum, plus Bank Charges and S/Duty amounting to £S.52.135m/ms. The total paid was £S.1123.433m/ms. which, I think, was the sum that should be taken for the calculation of the maximum price. The explanation made on behalf of the prisoner that that first pro forma invoice should not be accepted, was that it was made before the closure of the Suez Canal, and the goods arrived thereafter, and so the freight, insurance and other charges had increased, and consequently the c.i.f. price had also increased. This explanation is clear and convincing. If this was taken into consideration and the sum actually paid for the goods to the Bank was accepted, the calculation would result in the price shown on the engine, or thereabout.
For these reasons, relating to the calculation of the price, doubt is entertainable, and it has to be resolved to the benefit of the prisoner, and consequently I quash the conviction and direct that the prisoner be set at liberty.