Joy v Reginam [1977] FJSC 100; Criminal Appeal 87 of 1976 (28 January 1977)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 87 of 1976

BETWEEN

HENRY YEE JOY
Appellant

AND

REGINAM
Respondent

JUDGMENT

The appellant was on the 24th September, 1976 convicted by the Magistrates Court Suva of .the offence of Contravening the Conditions of a Restaurant Licence contrary to Section 62(1)(a) (2)(b) and (4) of the Liquor Ordinance as amended by Ordinance No. 1 of 1969. He was fined $75.00.

He appeals against conviction and sentence.

The facts found by the trial Magistrate indicate that the appellant is the holder of a restaurant licence in respect of the Wan-Q Restaurant. On the 8th April, 1976 one Billy Smith at about midday entered the restaurant and ordered a large bottle of beer from the barman employed by the appellant which Smith drank at the bar. Between noon and 2 p.m. he ordered and drank six large bottles of beer which was supplied to him by the barman. He left the premises without partaking of a meal.

Under section 62 of the Liquor Ordinance a Restaurant Licence authorises sale of liquor within the hours specified to a person who partakes of a substantial cooked meal during the permitted hours when the liquor is sold. The facts proved and accepted by the trial Magistrate established that the sale of liquor to Smith was not authorised by the restaurant licence.

Section 62(4) of the Ordinance provides as follow:

"Without prejudice to any liability under the provisions of section 76 of this Ordinance, in the event of any contravention of any of the preceding provisions of this section by any person, the licensee and such person shall be guilty of an offence and on conviction shall be liable to a fine not exceeding fifty pounds in the case of the licensee and twenty pounds in the case of any other person."

Mr. Kapadia for the appellant argued, that on the proper construction of section 62(4), it was not the intention of the legislature to create an offence of absolute liability irrespective of the knowledge of the licensee. Mr. Kapadia pointed out that the trial Magistrate found on the facts before him that the appellant had clearly taken every reasonable step to ensure that the law was complied with. Mr. Kapadia also pointed out the steps taken by the appellant to ensure that the law was complied with. He argued that on the proper interpretation of section 62(4) a licensee has only to establish that he has taken all reasonable steps and precautions to ensure that there is not a sale of liquor in contravention of the liquor licence and that the sale in question was without the knowledge of the appellant and contrary to his express instructions.

Mr. Kapadia conceded that the wording of section 62(4) was different from the corresponding English provision contained in section 22(1)(a) of the Licensing Act 1961. That section contains the word "knowingly" which is not contained in section 62(4) of the Liquor Ordinance.

In the case of Vane v. Yiannopoullos (1964) 3 All E. R. 820 the House of Lords dismissed an appeal against a dismissal of a charge brought against a holder of a restaurant licence whose servant sold liquor to customers who had not ordered meals. As in the instant case the licensee had no knowledge of the actual sale which was contrary to his express instructions. It was held that the charge was properly dismissed as on the construction of section 22(1)(a) of the Licensing Act 1961 the word "knowingly" predicated knowledge in the licence holder, not in his servant, and knowledge in the licence holder had not been established.

Vane's case does not assist the appellant any more than the case of Somerset v. Hart (1884) 12 Q. B. 360 also relied on by Mr. Kapadia. The latter case concerned a charge of suffering gambling on licensed premises in which case Lord Coleridge C. J. said "How can a man suffer a thing to be done when he does not know of it".

The construction of section 62(4) of the Liquor Ordinance presents no difficulties. The language is clear. It creates an offence of absolute liability. If there is a contravention of any of the provisions of section 62(1 to 3) the licensee is guilty of an offence as well as the person who sold the liquor.

The words of Lord Evershed reported in Vane's case at page 828 apply to the instant case and I quote -

"On the one hand, where there is absent from the statutory prohibition the word "knowingly" applied to the licensee, I think that it should now be accepted that he may yet be held and properly held liable for breaches of the conditions of the licence committed by his servants in conscious disregard of those conditions, in spite of his own innocence, where a contrary view would, in the language of Viscount Reading, C. J. (34), be regarded as fairly likely to stultify what, on its fair construction, was the purpose of the legislation. On the other hand, where statutory liability on the licensee's part is qualified by the word "knowingly" (or some similarly clear term) then actual knowledge - that is, mens rea - is prima facie required."

The appellant had no knowledge of the offence which was committed by his barman against the appellant's express instructions but that is not relevant to the issue as to whether the appellant was guilty of an offence under section 62(4) of the Liquor Ordinance.

The facts clearly indicate that there was a contravention of section 62 of the Liquor Ordinance by the barman employed by the appellant and the licensee was properly found guilty of the offence as charged. The appeal against conviction fails.

On the question of sentence the trial Magistrate had considerable sympathy for the appellant. He said in his judgment:

"I must say that this section seems particularly harsh to an honourable businessman like the Accused, who had clearly taken every reasonable step to ensure that the law was complied with and his considerable investment protected,......"

I do not agree with the trial Magistrate's view that the appellant had taken every reasonable step to ensure that the law was complied with.

The intention of the legislature was that liquor would be supplied to a person for consumption with a substantial cooked meal so as to reduce the incidence of drunkenness. It did not in my view intend that liquor could be supplied to a person who could purchase unlimited quantities of liquor before ordering and partaking of a meal. As worded however, section 62 does not require that the sale and consumption of liquor should be contemporaneous with the ordering or the partaking of a substantial cooked meal. A person can, as the law now stands, for example, consume an unlimited quantity of liquor from noon to 2 p.m. within the permitted hours and eat a substantial cooked meal between 2 p.m. and 2.30 p.m. This situation in my view was not envisaged or intended. The provisions of section 62 relating to sale of liquor in restaurants make it very difficult for offences to be detected and it can only be in rare cases such as the instant case where commission of an offence can be established by the police.

The appellant must have appreciated that he could not sell liquor to a person who did not partake of a meal. He would also have appreciated that he could not force that person to eat that meal. All he can and should do in the circumstances is to ensure that in the normal course of events the person supplied with liquor will partake of a substantial cooked meal. This is not achieved by providing what is in effect a public bar where a person can, without even ordering a meal, consume as much liquor as that person desires.

The appellant had provided such a bar in his restaurant and he left it to the person supplied with liquor to ensure that no offence was committed by partaking of a substantial cooked meal. In short he threw the onus on his customers to see that the law was complied with. If he had taken all reasonable steps he would have ensured that the liquor was only supplied to a person sitting at a dinning table and after that person had ordered a substantial cooked meal.

In the rare case of a person ordering a meal, purchasing liquor, and then not partaking of that meal an offence will still have been committed but the licensee can expect a Court to be lenient and grant an absolute discharge if such facts are established.

In my view the Liquor Board, in considering an application for the provisional grant of a restaurant licence for a restaurant in which it is proposed to install a bar of the type the appellant has provided in his restaurant, did not appreciated that offences under the Liquor Ordinance would be very difficult to detect or prove and the way was wide open for those licensees who were prepared to take the small risk of detection to sell unlimited quantities of liquor from a bar in a restaurant in breach of the law.

Restaurant bars like the appellant's bar have the sanction of the Liquor Board and if they continue to operate under the present law it must be for the legislature to take further steps to control abuses of the liquor laws.

An absolute duty is placed on a licensee to ensure there is no breach of the law. If there is a sale of liquor in a restaurant to a person who does not partake of a meal an offence has been committed. Except in a case such as I have referred to where a person orders a meal and liquor and does not partake of the meal there can be no excuse which would justify a Court granting an absolute discharge.

The law may appear to the layman to work injustice on occasions but it is intentionally stringent in an attempt to control the evils of intoxication. A licensee seeking the profits from sale of liquor must accept that strict liability placed upon him by the law and ensure there is no breach of the law.

The instant case was a bad breach of the 1aw. The barman who supplied Smith with six large bottles of beer should have appreciated that Smith either had no intention of having a meal or would be in no condition or have any inclination to eat a meal after consuming that quantity of beer. For that bad breach the appellant must accept full responsibility.

The appellant was properly convicted and in my view the sentence was neither harsh nor excessive.

The appeal is dismissed.

There is one other matter I would refer to. Section 62(4) in the instant case makes both the licensee and the barman who supplied Smith liable to prosecution. There is nothing on the record to indicate why the barman was not charged. In my view he should have been charged. The legislature clearly intended that both the licensee and the person who illegally sold the liquor should be charged. In this instant case there could be a valid reason why the barman was not charged. If barmen and waitresses appreciate that in addition to possible dismissal by their employers they also faced a conviction and a fine they would ensure that sale of liquor was in accordance with the conditions of the restaurant licence.

From the record the appellant's main concern is that his licence is not cancelled as a result of this conviction. That is not a matter for this Court but I would add that the appellant does not appear to have appreciated the full extent of his obligations. He had done all he considered he could do to ensure compliance with the law but as I have pointed out there are other steps he could have and should have taken. The trial Magistrate had considerable sympathy for the appellant and I have no doubt that that sympathy will not go unnoticed by the licensing authority.

(SGD) R. G. KERMODE
JUDGE

Suva,
28th January, 1977.