Charles v Skeete
| Jurisdiction | Guyana |
| Judge | Crane, J.A.,Luckhoo, J.A.,Haynes, C. |
| Judgment Date | 06 May 1978 |
| Neutral Citation | GY 1978 CA 7 |
| Docket Number | Criminal Appeal No. 105 of 1975 |
| Court | Court of Appeal (Guyana) |
| Date | 06 May 1978 |
Court of Appeal
Haynes, C., Crane, J.A. and Luckhoo, J.A
Criminal Appeal No. 105 of 1975
D. A. B. Trotman for the appellant.
G. H. R. Jackman Deputy Director of Public Prosecutions, for the respondent.
Criminal Law - Appeal against conviction — Contravention of price control order — Sale of sugar exceeding price prescribed by competent authority — Whether liability absolute or with guilty knowledge — Trade (Control of Prices) Order, Cap. 90:01, cI.14(1) — Trade (Control of Prices) Act, Cap. 91:01, s.5(4)(a)(b).
The interest generated by this case has been widespread and both members of the public and the profession have been eagerly awaiting the decision.
What we are now being called upon to decide must, assuredly be a matter of deep concern to all. It is concerned with whether someone who was not present when an offence was committed should be made to suffer imprisonment vicariously for the misdeed of another which, for all that is known, he may be entirely innocent of having instigated. The decision is of particular importance today in socialist-oriented Guyana in which it is anathema to exploit one's fellowman for gain.
The short facts of this appeal are really not in dispute. The appellant is the occupier of shop premises at Bartica and holder of a license entitling him to sell groceries and other provisions therein. The complainant charges him under s. 5 (4) of the Trade Act, Cap. 91:01, for being in breach of clause 14 (1) of the Trade (Control of Prices) Order which is couched in the following prohibition:–
“No person shall sell, offer, or expose for sale, or buy any price controlled article at a price exceeding the maximum price prescribed by this order, or in connection with a sale or disposition of any price controlled article, enter or offer to enter into any artificial or fictitious transaction or make or demand any unreasonable charge.”
The particulars of the charge are that on Tuesday, October 15, 1974, at Bartica, the appellant, John Charles, sold by retail a price-controlled article, to wit, 2 lbs. of dark crystal sugar for 17 cents, a price exceeding the maximum prescribed price. The sale was procured by means of the usual police trap and was made by his wife, Muriel Charles. On the day in question, the appellant was, however, not in the shop. He was away in Georgetown attending High Court sessions and so could not possibly have known of that particular sale by his wife. The police decoy called for half a pint of fryoil and two pounds of dark crystal sugar. He tendered a $1 note and after these two commodities were delivered and a charge of 23 and 17 cents made in respect of them and change in the sum of 60 cents was handed over, the trap was sprung. The currency note was retrieved and taken away to be used as an exhibit together with the shop license and price-board on which the controlled price was correctly stated and displayed for public information, vis., “2lbs. dark crystal sugar for 15 cents.”
The crucial point the magistrate had to decide was whether he believed Muriel Charles's excuse that the excess of 2 cents which she admittedly exacted was a charge in respect of the paper bags in which the two parcels of sugar were wrapped, but he did not believe her; he considered her excuse an after-thought and convinced both her and the appellant, notwithstanding he was absent at the time of the sale. He fined Muriel Charles $500 with an alternative of six months' imprisonment, but astonishingly gave the appellant no option if a fine. He was peremptorily sentenced to six months' imprisonment. In his reasons for decision the magistrate said:–
“I am satisfied that the prosecution have proved the ingredients of the offence charged and have discharged the onus cast on them. I am of the view that this offence is an absolute one, because s. 5(4) of the Trade Act, Cap. 91:01 creates an absolute prohibition and therefore the master is vicariously liable for the acts of his servants and the prosecution need not prove mens rea. I therefore found the defendants guilty.
From the wording of 5(4) of the Trade Act – Any person who commits… I am of the view that any person found guilty must be made to pay a fine or undergo a term of imprisonment or both. For this reason I imposed a fine of five hundred dollars ($500.00) on No. 1 defendant and in default of payment thereof three months' imprisonment. I sentenced the No. 2 defendant to six months' imprisonment.”
Two questions fall for decision: (i) Is the offence of selling a price-controlled article above the fixed price one of strict or absolute liability? (ii) Is the owner of a shop license today still under strict or absolute liability for the criminal wrongdoings of him or her to whom he has left the conduct of his business in his absence, and who sells a price-controlled article above the fixed price? In short, is the license owner vicariously liable for such wrongdoings? If the answer to question (i) is in the negative, then question (ii) cannot arise for decision.
I use the word “still” advisedly because, before December 18, 1958, when the Trade Act, Cap. 91:01, was passed, one could have given an affirmative answer to the above questions. There were regulations in force in the former colony of British Guiana known as the Defense Regulations, 1939. They were made by the colonial Governor under the provisions of United Kingdom legislation — the Emergency Powers (Defense) Act, 1939 (U.K.) and applied to British Guiana by the Emergency Powers (Colonial Defense) Order-in-Council, 1939. So whenever the Competent Authority purported to make any orders controlling the selling prices of goods or any class or description of them, that authority used to act under s. 44 of the Defense Regulations, 1939 (U.K.). Accordingly, whenever local prosecutions were brought and such orders forming the basis of those prosecutions were judicially considered, they were invariably held to have imposed strict or absolute liability on all those persons whose activities it sought to regulate. Such was the view held by out former Full Court of the Supreme Court in price control prosecutions following the King's Bench Division authority of Buckingham v. Duck, (1918) 26 Cox C.C. 340, an English price control case that was preferred under the same emergency legislation – the Defense of the Realm (Consolidation) Act, 1914 (U.K.), and the Defense of the Realm Regulations which were extended to British Guiana by local Order-in-Council.
BUCKINGHAM v. DUCK
In that case, Buckingham sold through a carrier 18 1/2 ozs. of milk purporting to be one pint for 4d, i.e., he charged the correct selling price for one pint, but it was not the right price for 18 1/2 ozs. of milk because there was an indirect selling at a price exceeding the maximum price fixed by the Price of Milk Order, 1917. Darling, J. held [ (1918) 26 Cox C.C., at p. 352]: “… the dishonest act of the servant may make the master liable if the servant's acts are don't within the scope of his authority, although he may act not only without the connivance but contrary to the orders of his master, nevertheless, as the servant is acting by the master.” And in supplying the rationale for a situation where mens rea is not made an ingredient in the offence, the learned judge said [ (1918) 26 Cox C.C., p. 352]:–
“The rule must be gathered from the Defense of the Realm Act and Regulations. These were intended to be very drastic provisions for the protection of the purchaser where there is an opportunity for the seller to take advantage of the purchaser's necessity arising from acts of war.”,
which Darling, J. repeated two days later in Pearks' Diaries Ltd. v. Tottenham Food Control Committee, another price control case, when he said [ (1918) 26 Cox C.C. 357, at p.360]:–
“In my view the proper war in which one ought to consider the questions which arise under the special orders which have been necessitated by the war is to consider it as a thing apart, and not at all on par with the rules of law which were applicable in the cases which have been cited by counsel for the appellants. If these orders were statutes passed by the Legislature we might have to arrive at a different conclusion. But it is not so. These orders — at least this is how I regard them — are a kind of special and exceptional legislation, and the order which is now in question forbids the doing of a certain thing. It is one of the orders of Food Controller, and owing to the fact that we were at war, the Food Controller has been empowered to act practically as a dictator. The power which is exercised by the Food Controller is of a kind which is contrary to the whole spirit of English commercial life – power to fix a maximum price – to say that one shall neither buy above nor sell above that price, the reason being that these are not times of peace but times of war, and the ordinary course of dealing, what is called ‘higgling of the market’, cannot be allowed to go on, because, if it was so, rich people would be enabled to get more than they ought to have, and there could not be an orderly and proper distribution of the common stock amongst the bulk of the population… And because we are at war and the ordinary rules concerning commercial life have been suspended, I think that the ordinary rules concerning the construction of statutes and orders have also been suspended…”
With respect, I find myself unable to agree with Darling, J. for differentiating between a price control order and a statute insofar as the principles of legal interpretation are concerned. It is trite that a price control order, though not a statute, yet has the force and effect of statute after it had been laid over before and approved by Parliament. In direct contrast to...
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