COURT OF APPEAL
DATE: 16 OCTOBER 1967
BEFORE: OLLENNU, AZU CRABBE AND APALOO JJ.A.
CASES REFERRED TO
(1) Wong Pooh Yin v. Public Prosecutor [1955] A.C. 93; [1954] 3 W.L.R. 471; [1954] 3 All E.R. 31;
98 S.J. 586, P.C.
(2) Dickins v. Gill [1896] 2 Q.B. 310; 65 L.J. M.C. 187; 75 L.T. 32; 60 J.P. 488; 44 W.R. 686; 12
T.L.R. 427; 40 S.J. 517; 18 Cox C.C. 384.
(3) Winkle v. Wiltshire [1951] 1 K.B. 684; [1951] 1 All E.R. 479; [1951] 1 T.L.R. 368; 115 J.P. 167;
95 S.J. 237; 49 L.G.R. 97, D.C.
NATURE OF PROCEEDINGS
APPEAL against the decision of the appellate High Court acquitting the accused of a charge of possessing dangerous drugs. The facts[p.601] of [1967] GLR 599
are sufficiently set out in the judgment of Ollennu J.A.
COUNSEL
S. M. Boison, Chief State Attorney, for the appellant.
Joe Reindorf for the respondent.
JUDGMENT OF OLLENNU J.A.
Ollennu J.A. delivered the judgment of the court. The respondent was convicted by the District Court, Kumasi, on 4 September 1965, of the offence of possessing dangerous drugs, contrary to section 29 of the Pharmacy and Drugs Act, 1961 (Act 64), as amended by the Pharmacy and Drugs (Amendment) Act, 1963 (Act 222), and was sentenced to four months’ imprisonment with hard labour and the drugs in question were confiscated. Against that conviction, he appealed to the High Court, Kumasi; the High Court allowed his appeal, set aside the conviction and sentence and the order for confiscation, and thereupon acquitted and discharged him. Dissatisfied with the judgment of the High Court, the prosecution appealed to this court on five original grounds, namely:
“(1) The learned High Court judge erred in holding that section 29 of the Pharmacy and Drugs Act, 1961 (Act 64), as amended by Act 222 does not create an absolute prohibition.
(2) His lordship erred in holding that the trial district magistrate, by equating lawful authority with lawful excuse, was confused in her thought and thereby failed adequately to examine the case of the appellant.
(3) His lordship erred in holding that the equation of lawful authority with lawful excuse went to the root of the whole case.
(4) It was wrong for the court to hold that the explanation of the appellant amounted to lawful excuse within the meaning of the Act.
(5) His lordship erred in holding that he could not find any difference between Wong Pooh Yin v. Public Prosecutor [1954] 3 All E.R. 31 and the case before him despite Dickins v. Gill [1896] 2 Q.B. 310 cited by counsel for the respondent”, and one additional ground, namely;
“(a) The learned judge erred in law in holding that the possession of the drugs by the respondent was not in contravention of the statute and that the purpose for which the respondent had the drugs in his possession did constitute `lawful excuse’ within the meaning of the statute.”
[p.602] of [1967] GLR 599
A brief history of the case is as follows: Some time in July 1964 the respondent was charged with dishonestly receiving drugs, some cosmetics, toothpaste and tooth brushes. He was acquitted and discharged, and the drugs and other articles were returned to him upon an order of the court. In December 1963 and in April 1964, that is to say, before his arrest and trial in July 1964, he had applied for general license under the Pharmacy and Drugs Act, 1961 (Act 64), to sell drugs, but had had no reply. In November 1964, and in March 1965 he put in an application for a C licence under the Act. The pharmacist, the third prosecution witness, who deals with such applications deposed that he “tried to take action in the accused’s application (made after July 1964) received by me, but each time I went to the accused’s shop it was closed.” The shop of the respondent was searched on 16 November 1964 upon a warrant applied for uponinstructions of one Mr. Quao, the Assistant Superintendent of Police who unsuccessfully prosecuted the respondent in July 1964. The appellant was away in the Northern Region at the time of the search, so the shop was broken into by the police in the presence of his father, and the drugs, the subject-matter of the present prosecution, were seized. Consequent upon this seizure, the respondent, on his return home, reported at the police station on 27 April 1965; he was then arrested and charged before the circuit court with precisely the same charge as in the present case. The prosecution subsequently entered a nolle prosequi; the respondent was thereupon discharged and an order made in his favour for restitution of the drugs, but the police did not return the drugs to him and on 1 June 1965, the present proceedings were commenced against him.
At his trial, the respondent testified that save as to the cosmetics, the tooth paste and the tooth brushes, which he said he sold in the Northern Region subsequent to his acquittal in the first of the series of cases, the drugs, the subject-matter of the present proceedings, are identical with those in respect of which he was prosecuted in July 1964 and April 1965 and in respect of which the restitution order was made in his favour upon his acquittal in July 1964.
The drugs in question were classified by the pharmacist, the third prosecution witness, in five categories, namely, class A drugs, of which there are three different kinds, class B drugs, eleven different kinds, class C drugs, of which there are 58 kinds and five other drugs unclassified; see exhibit B. The evidence of the pharmacist as to restrictions in respect of those classes of drugs is as follows:
“The first part of the report deals with class A drugs and those can be obtained only by prescription signed by a medical officer. A licensed pharmacist can also possess them for sale,
[p.603] of [1967] GLR 599
but he only sells them on production of a medical officer’s prescription. As regards class B drugs they can be sold to the general public by a registered pharmacist if the pharmacist is of the opinion that the buyer is a proper person to possess them. Class C drugs can be sold by registered pharmacists as well as registered chemical sellers and no prescription is required to obtain these drugs. In addition to these three, there is a class of exempted drugs which can be sold by anybody without licence. Some of the drugs, i.e. exhibit A sent to me by the first prosecution witness were classified as class A drugs. To my knowledge the accused is not a pharmacist or a registered chemical seller but he has applied to be registered as a chemical seller.” The defence of the respondent is that pending the grant of his application for licence to sell these drugs he purchased the drugs from wholesale dealers and from traders to sell when the licence is granted to him, and that after the goods had been returned to him upon an order of the court consequent upon his acquittal in the first of the series of cases, he made a fresh application for a licence, but he had not sold any of them.
While she did not reject the testimony of the respondent that the subject-matter of the charges is identical with the drugs in respect of which the restitution order upon the respondent’s acquittal was made, the trial district magistrate held that the respondent must have sold some of them. On this point she said, “Finally the accused’s own statement, exhibit 2, discloses that he has been selling some of the dangerous drugs in his possession and this is just what the legislature aims at preventing.” Here it should be observed that the respondent was not charged with selling the drugs.
The trial district magistrate held: (i) that section 29 of Act 64 created an absolute prohibition; (ii) that the words “lawful excuse” in section 29 means “lawful authority”; (iii) that the case of Wong Pooh Yin v. Public Prosecutor [1954] 3 All E.R. 31, P.C. cited by the learned defence counsel does not apply to the facts of this case, because in that case there were supervening events coupled with the accused’s change of mind which could amount to lawful excuse having regard to the circumstances of the case while there are no supervening events in the present case, and (iv) the respondent had sold some of the drugs in hispossession “and this is just what the legislature aims at preventing.”
The appellate High Court judge on the other hand, quashed the conviction and sentence and acquitted and discharged the respondent because in his view (i) “lawful excuse” is not synonymous with “lawful authority”; (ii) the trial district magistrate misdirected herself
[p.604] of [1967] GLR 599
in holding that all the drugs listed in exhibit A are class A drugs which could only be obtained upon production of a prescription by a medical or dental officer, whereas upon the prosecution’s own showing, exhibit B and the evidence of the third prosecution witness, only three out of the 83 different kinds listed are class A drugs while eleven are class B, 59 are class C drugs, and four are unclassified; (iii) the trial district magistrate erred in holding that section 29 (1) of the Act creates an absolute prohibition and (iv) the excuse given by the respondent for his possession is a lawful excuse, and that the present case is on all fours with the case of Wong Pooh Yin v. Public Prosecutor (supra).
It is by virtue of the provisions of section 335 (1) of the Criminal Procedure Code, 1960 (Act 30), as amended by Criminal Procedure Code (Amendment) (No.2) Act, 1962 (Act 116), s. 8 that the prosecution brought this appeal. This section reads, “The prosecution may appeal on a question of law to the Supreme Court from any decision of the High Court in its appellate jurisdiction under this Part.” For that reason only questions of law were argued before us; the findings of fact made by the High Court stand unaffected.
Arguing all his grounds of appeal together, learned chief state attorney submitted that for a proper interpretation of the words “without lawful excuse” the court should look at the whole of the statute, Act 64, to ascertain the mischief it is intended to meet. He submitted that in that regard, the court should analyse sections 16, 20 and 22, and the mischiefs there referred to; he submitted that upon such analysis the court would find that the only interpretation of the words “without lawful excuse” open to it is “lawful authority” and that section 29 (1) creates an absolute prohibition, and further that, as was held by the trial district court, the only defence under that charge is that the possession is upon the authority of a prescription by a medical or dental officer. The learned chief state attorney supported his argument with the case of Dickins v. Gill (1896) 18 Cox C.C. 384, and Winkle v. Wiltshire [1951] 1 K.B. 684; he also cited Wong Pooh Yin v. Public Prosecutor [1954] 3 All E.R. 31, P.C. to distinguish it from the other two cases and submitted that the ratio decidendi even in that case is of the same effect as in the other cases, namely, that those words create an absolute prohibition.
The contention of learned chief state attorney that the section does not permit of any defence save a defence of purchase under a prescription, is misconceived. On that issue the first prosecution witness testified as follows:
“The samples tendered in court as exhibit A include 57 bottles of P.P.P. liniment. They also include Mepacrine tablets, Agarol mixture, Dewitt’s pills, Baby cough syrup and Rendells soluble.
[p.606] of [1967] GLR 599
I am aware I can enter any chemist’s shop and buy any of the above-mentioned drugs without prescription.” The third prosecution witness, the expert witness on the subject, testified that with the exception of drugs in class A (not more than three), all the other drugs in question, 80 in all, may be purchased without prescription. He said: “The first part of the report deals with class A drugs and those can be obtained only by a prescription signed by a medical officer. A licensed pharmacist can only possess them for sale but he only sells them on production of a medical officer’s prescription. As regards class B drugs, they can be sold to the generalpublic by a registered pharmacist if the pharmacist is of the opinion that the buyer is a proper person to possess them. Class C drugs can be sold by registered pharmacists as well as registered chemical sellers and no prescription is required to obtain these drugs. In addition to these three, there is a class of exempted drugs which can be sold by anybody without licence.” On this question the following sections in Part III of Act 64 are important, namely, sections 22 (1) (a), 24 and 36. Section 22 (1) proviso (a) says: “A pharmacist or licensed company shall not supply a class A drug otherwise than under prescription reasonably believed by the person supplying the drug to be valid: Provided that this subsection shall not apply—
(a) if the drug is supplied (whether personally or on a signed to order) a medical practitioner, dentist, veterinary surgeon, pharmacist or licensed company for the purpose of being subsequently dispensed or supplied.” By virtue of this section even a class A drug may be purchased without prescription. Section 24 provides that, “A pharmacist or licensed company shall not supply a drug of class B otherwise than to a person who is reasonably believed by the supplier to be a person to whom the drug may properly be supplied.”
That is to say, sale of a class B drug to the public is in the discretion of a pharmacist or licensed company. As regards class C drugs which formed the bulk of the drugs, the subject-matter of these proceedings, there is no provision in the Act as testified to by the third prosecution witness, the expert witness, regulating their purchase by a member of the public. Furthermore, section 36 of the Act provides that, “Nothing in the preceding provisions of this Part of this Act shall apply to the supply of drugs
[p.606] of [1967] GLR 599
by wholesale.” (Our emphasis.) That is to say, that even the provision as to sale of class A does not apply when the sale is by wholesale. Turning now to the cases cited, it should be pointed out that the contention of learned chief state attorney that “lawful excuse” is the same as “lawful authority” does not find support from the authorities he cited; each of those cases show implicitly or explicitly that “lawful excuse” is not synonymous with “lawful authority.”
In Dickins v. Gill (1896) 18 Cox C.C. 384, the defendant was charged under section 7 of the Post Office (Protection) Act, 1884 (47 & 48 Vict., c. 76) for the possession of a die for making a fictitious colonial stamp. The section reads:
A person shall not
(a) make, knowingly utter, deal in or sell any fictitious stamp, or knowingly use for any postal purpose any fictitious stamp, or
(b) have in his possession, unless he shews a lawful excuse, any fictitious stamp, or
(c) make, or, unless he shews a lawful excuse, have in his possession, any die, plate, instrument, or materials for making any fictitious stamp.”
The defence in that case is that knowing that he could not legally make a fictitious die in Britain, the defendant had imported one from abroad for an innocent purpose namely, to use it in making an illustrated stamp catalogue; the illustrations of the stamp in question was to appear on the catalogue with illustrations of other stamps chiefly for sale to stamp collectors. In the course of his judgment in that case Grantham J. said at p. 389:
“I can well conceive many instances, and there may be many cases, where it would be very hard for persons to be punished for being in possession of a thing the possession of which they did not know to be illegal, andthat, to my mind, would be a `lawful excuse.’ For instance, under sub-sect. (b) if a person bought a fictitious stamp, it would be hard that that person should be punished and made liable to pay a fine because his knowledge was not sufficient to enable him to know whether it was good or bad; and that, I think, would be a `lawful excuse’; but the mere fact that he believed he had authority to have it would not be a `lawful excuse’.”
Winkle v. Wiltshire [1951] 1 K.B. 684 is a case where the defendant, owner of a public house was charged with possessing fictitious national insurance stamps contrary to section 65 (1) of the Post Office Act, 1908 (8 Edw. 7, c.48). The defence was that the defendant
[p.607] of [1967] GLR 599
had purchased the stamps from one of the customers of his public house known to him as Tom. He purchased the stamps at a discount, believing that Tom had bought them for his own use and no longer required them; at the time when the defendant bought the stamps, he did not know that they were fictitious. It was held as stated in the headnote that: “A person who proves that he innocently bought fictitious insurance stamps from an unauthorized or unlicensed seller does not establish a `lawful excuse’ within the meaning of the regulation for having the stamps in his possession. To avail himself of the defence provided in it he must further show that he acquired the stamps as the result of a lawful transaction between himself and a seller legally entitled to deal in the stamps.”Dealing with the defence that the defendant did not know that the stamps he purchased from the person, whose surname he did not know, were fictitious, Lord Goddard C.J. said inter alia at p. 687:
“it cannot be a lawful excuse to say: `I did not know that the stamps were forged’, because that could only be a defence if the buyer had bought the stamps properly from an official at a post office or from a licensed dealer, those being the only persons who have authority to sell stamps and who may do so without incurring a penalty. Of course, if a person bought stamps at a post office which turned out to be fictitious he would have a perfectly lawful excuse unless, indeed, he recognized and knew that they were fictitious; in which case he would not have the excuse.”
At a later stage in the judgment the Lord Chief Justice further said at p. 688:
“In my opinion, where a man can only show that he did not know that the stamps in his possession were forgeries, that, in itself, is not a lawful excuse: he must go further and show that he acquired them lawfully; for unless he acquired them lawfully he will not have a lawful excuse.” In other words, if the purchase of the stamps had been made from a person who could lawfully sell the same, the evidence of purchase would be a good defence unless it could be shown that the purchaser knew that the stamps were fictitious. In the present case the evidence of the first and third prosecution witnesses and section 36 of the Pharmacy and Drugs Act, 1961, show that all the drugs in question without exception, could be sold by wholesalers without prescription; that 68 out of the 83 different types of drugs in question could be sold by a pharmacist or registered chemical seller to any member of the public without a licence
[p.608] of [1967] GLR 599
or prescription; and that twelve of them could be sold at the discretion of a pharmacist to any member of the public with prescription. Therefore, in law the evidence given by the respondent that he purchased the drugs from a wholesale dealer could be a defence. But whether or not he in fact so purchased them, is a question of fact.
In Wong Pooh Yin v. Public Prosecutor (supra), where the two other cases cited were considered by thePrivy Council, Lord MacDermott, delivering the opinion of the Board, in the course of dealing with a similar submission as here made by the chief state attorney, said at p. 34:“Their Lordships doubt if it is possible to define the expression `lawful excuse’ in a comprehensive and satisfactory manner and they do not propose to make the attempt. They agree with the Court of Appeal that it would be undesirable to do so, and that each case requires to be examined on its individual facts. There are, however, two general conclusions on the construction and effect of the regulation which are relevant to such an examination and which may be appropriately stated at this point. The first of these is that the defence of `lawful excuse’ may be sufficiently proved although no lawful authority’ exists for doing what is charged against the accused. The terms of reg. 4 (1) clearly contemplate this and, accordingly, make `lawful excuse’ an expression of wider import than `lawful authority’, as defined in reg. 4 (2) [which enumerates the persons who have `lawful authority’ for the purposes of reg. 4]. It follows from this that, in proving a `lawful excuse’, which falls short of `lawful authority’, it is the excuse or exculpatory reason put forward by the accused, rather than the carrying, possession or control of the fire-arm, ammunition or explosive, that must be shown to be lawful.” And at a later stage the noble Lord further said at p.37:
“As a general proposition, it appears to confuse `lawful excuse’ and `lawful authority’; but, as already observed, these expressions raise distinct issues and the question here is not necessarily determined by the absence of `lawful authority’. It is still whether, without having `lawful authority’, the appellant had yet a `lawful excuse’.”
Quite clearly the trial district magistrate erred in holding that the section created an absolute liability and that the only explanation which can amount to lawful excuse is purchase under and by virtue of a legal prescription and consequently, that the explanations given by the respondent are not worthy of consideration because they do
[p.609] of [1967] GLR 599
not in law amount to “lawful excuse,” which in her view, is synonymous with “lawful authority.” The seriousness of this error is reflected in the order made by the district magistrate confiscating all the drugs including the large number which may be obtained from any one in the open market without prescription.
It follows too that the High Court properly directed itself that “lawful excuse” is not the same thing as “lawful authority” and that there is more than one set of circumstances which may amount to “lawful excuse” in a case like this. Having so misdirected herself on the law, the trial district magistrate withdrew from herself consideration as to whether or not she should accept the evidence given by the respondent as sufficient lawful excuse.
The question of what may amount to “lawful excuse” is a question of law, but the question whether a particular explanation offered as “lawful excuse” is acceptable, is a question of fact. In this case the trial district magistrate erroneously withdrew the question of fact from herself as irrelevant. The appellate High Court on the other hand considered that question of fact and resolved it.
There is a further important point in the case which completely eluded the district court and which makes this case identical in essential respects with the case of Wong Pooh Yin v. Public Prosecutor (supra). In that case, Yin, who had been a terrorist, decided in 1952 to surrender to the authorities after having read a government pamphlet calling on all terrorists to surrender. On 24 November 1952, he contacted a party of Temiars (police) and told them he wanted to surrender and offered to give up a revolver he was carrying.
He was told to keep it until arrangements had been made for the police to take it away. The next day 25 November, some Temiars came, he surrendered to them and they took the revolver. He was thereupon charged with the offence of carrying the revolver on 25 November, 1952, without “lawful excuse” and was convicted.The defence in that case was that the accused person changed his mind in consequence of the government pamphlet calling upon all terrorists to surrender, and that he was going to surrender the revolver at the time he was arrested. The case for the prosecution was that the appellant’s possession of the revolver on 25 November is a continuation of possession which began some time ago, and that that possession had been unlawfully obtained from the beginning therefore no supervening event could give him a lawful excuse for continuing to carry it. For that reason both the trial court and the Court of Appeal did not concern themselves with the evidence on the record which showed that though the original possession was unlawful, there had been supervening events which might well be considered “lawful excuse” for his continued possession of the
[p.610] of [1967] GLR 599
revolver after 24 November; and that evidence is that on 24 November 1952, the first group of Temiars he contacted told the accused to hang on to the revolver. Whether or not that direction of the first group of Temiars to the accused to hold on is sufficient “lawful excuse,” is a question of fact, consideration of which the trial court withdrew from the assessors and himself. Their Lordships of the Privy Council delivered themselves on the point as follows at pp. 37-38: “While the evidence as to the contents of the government pamphlets was meagre, their Lordships are of opinion that the testimony of the appellant, if accepted, went far enough to justify a finding that he was carrying the revolver on the occasion charged in the course of complying with the government’s request, and because he wanted, and was waiting, to surrender with it to the police when they arrived, and had actually tendered it to the Temiars to whom he had made his offer of surrender. In the light of the views already expressed in dealing with the points made against the appellant, their Lordships are unable to resist the conclusion that such a finding would have warranted a verdict of `lawful excuse’ and they are, accordingly, of opinion that that issue ought to have been left to the assessors. It by no means follows that, had this course been taken, the appellant would have been acquitted; but he might have been, and, having regard to the conclusions reached, and the practice of the Board as stated by Lord Sumner in Ibrahim v. Regem ([1914] A.C. 615), the verdict clearly ought not to stand.”
In the present case, the charge the respondent faces is possessing dangerous drugs on 16 November 1964. The evidence shows that the drugs in question were the identical drugs or part of the drugs which together with cosmetics and dental preparations were returned to the respondent in July 1964, upon a lawful order of a court of competent jurisdiction, made after the acquittal of the respondent in the first prosecution.
The appellant was not charged with possession on a date prior to his first trial. That being the case his possession of the drugs on 16 November 1964, must be related to the restitution order. The trial court should have considered whether in fact, possession in those circumstances comes within “lawful excuse.”
As in Wong Pooh Yin v. Public Prosecutor (supra), the trial court did not. But the appellate High Court did, and found upon the evidence that those circumstances amount to “lawful excuse.” As earlier observed, the right of appeal by the prosecution is limited to questions of law only (Act 30, s. 335 (1)). Therefore the
[p.611] of [1967] GLR 599
findings of fact made by the High Court that the evidence given by the respondent is lawful excuse stands unchallenged, and is not before us.
We must sum up the situation as follows:
(1) The trial district court misdirected itself in holding that section 29 (1) of the Pharmacy and Drugs Act, 1961 (Act 64), created an absolute prohibition; that the words “lawful excuse” aresynonymous with “lawful authority,” and that the only matter which may be considered “lawful excuse” is possession obtained upon a prescription.
(2) The trial court erred in withdrawing from itself consideration of (a) the question as to whether in fact the respondent purchased the drugs from wholesale dealers, (b) the question whether the supervening event, i.e. the possession upon the order of the court, could amount to lawful excuse, and (c) if the restitution order gave him lawful possession, whether the evidence that the respondent had applied for licence to enable him to dispose of the drugs in his possession is a “lawful excuse.”
(3) The finding of fact, made by the appellate High Court, that the evidence given by the respondent is “lawful excuse” stands unchallenged, and this court cannot interfere with the same.
DECISION
The appeal must therefore be dismissed, and it is accordingly dismissed.
Appeal dismissed.
L.F.A
