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Wasant v Nangai [1987] PNGLR 308 (21 September 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 308 - Kapua Wasant v Peter Nangai 

[1987] PNGLR 308

N620

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KAPUA WASANT

V

PETER NANGAI

Mount Hagen

King AJ

17 September 1987

21 September 1987

LIQUOR - Offences - Importing liquor contrary to provincial Act - Validity of offence - Whether Ministerial publication of notice proper delegation of power - Liquor Licensing and Control Act 1986 (Enga Province), s 36 - Organic Law on Provincial Government (Ch No 1), ss 24, 25.

STATUTES - Validity of provincial Acts - Power to make laws for sale and distribution of liquor - Act prohibiting import of liquor as notified by Minister - Act valid - Ministerial delegation of administrative Act valid - Offence created valid - Liquor Licensing and Control Act 1986 (Enga Province), s 36 - Organic Law on Provincial Government (Ch No 1), ss 24, 25.

The Organic Law on Provincial Government (Ch No 1), by Div 3, s 24 and s 25, empowers a provincial government to make laws with respect to the sale and distribution of liquor.

The Liquor Licensing and Control Act 1986 (Enga Province), s 26, provided:

“(1)    The Minister may by notice published in the Enga Gazette prohibit the importation or bringing of liquor into the Province for such period as he considers is fit.

(2)      A Person who imports or brings in liquor into the Province in contravention of a notice published in accordance with subsection (1) commits an offence.”

The Minister for Liquor Licensing Commission published a notice in the Enga Gazette prohibiting “the importation or bringing of any alcoholic drinks into Enga Province for an indefinite period with exceptions to the two wholesale outlets”.

On appeal against conviction for an offence under s 36(2) of the Liquor Licensing and Control Act 1986 (Enga Province), it was argued that that offence was not validly created.

Held:

(1)      The offence created by s 36(2) was validly created.

The Organic Law on Provincial Government contained a valid delegation of law making powers to the provincial government with respect to the “distribution of liquor”. The Liquor Licensing and Control Act 1986 (Enga Province), s 36, was a valid exercise of that delegated power. The authority of the Minister to publish a notice, deriving as it did, from a valid Act was a proper delegation of administrative Acts made under statutory power, and as the notice as published was not defective the appeal against conviction should be refused.

Cases Cited

The following cases are cited in the judgment:

Allingham v Minister of Agriculture and Fisheries [1948] 1 All ER 780.

Blackpool Corporation v Locker [1948] 1 KB 349; [1948] 1 All ER 85.

Leonard Eliza v Mandina [1971-72] PNGLR 422.

Appeal

This was an appeal against conviction and sentence on charges of importing alcoholic drinks contrary to the Liquor Licensing and Control Act 1986 (Enga Province).

Counsel:

S Alonk, for the appellant.

S Norum, for the respondent.

Cur adv vult

21 September 1987

KING AJ.: This is an appeal from a decision of the District Court in Wabag whereby the appellant was convicted upon an information laid by the respondent, a police constable, charging an offence under s 36(2) of Act No 2 of 1986 of the Enga Provincial Government. That Act is entitled the Liquor Licensing and Control Act 1986, and I shall refer to it as “the Act”. The offence alleged was that on 13 August 1987 the appellant brought into Enga Province 37 cartons of SP “Brown” beer in contravention of a notice published in the Enga Gazette, No EN30, of 15 August 1986. Before the District Court the appellant was not legally represented and pleaded guilty. Upon conviction he was fined K1OO, in default three months imprisonment, and the beer was ordered to be forfeited.

The matter came before this Court by way of an amended notice of appeal dated 14 September 1987 which raised the following two grounds of appeal:

1.       The convicting magistrate failed or inadequately put each of the elements of s 36(2) of (the) Act.

2.       The sentence was and is excessive in the circumstances.

At the commencement of the hearing counsel for the appellant sought to amend the notice of appeal further by adding the following third ground:

3.       The Enga Regional Legislature had and has no power to sub-delegate its legislating to the Enga Regional Minister for Liquor Licensing or any other person or body.

The additional ground clearly raised a purely legal point and the respondent had been given two days notice of it. Of more importance at the outset, however, was that grounds 1 and 3 sought to be relied on involved a challenge to the conviction entered in the District Court, whereas it is trite law that the appellant’s plea of guilty there constituted an admission of all necessary elements of the offence alleged. The notice of appeal thus amounted to an attempt to change the plea without getting leave to do so. The respondent’s counsel informed me that he was ready to meet the appeal on all grounds and in the circumstances, despite reservations created by the decision in Leonard Eliza v Mandina [1971-72] PNGLR 422 and without finally deciding the question of the appellant’s entitlement to change his plea, I gave him leave to do so and recorded a plea of not guilty. The matter then proceeded on the same evidence that was before the District Court.

The argument advanced by counsel for the appellant on the first ground of appeal bore no relation to the way that ground was framed. What was put was that s 36(2) of the Act depends for the creation of the offence charged on s 36(1) and that the notice published in the Enga Gazette did not comply with s 36(1) so that no offence was made out within the meaning of s 36(2). To understand this submission it is necessary first to set forth the statutory provisions of the Act which are as follows:

“36.    Importation of Liquor

(1)      The Minister may by notice published in the Enga Gazette prohibit the importation or bringing of liquor into the Province for such period as he considers is fit.

(2)      A Person who imports or brings in liquor into the Province in contravention of a notice published in accordance with subsection (1) commits an offence.

Penalty: A fine not exceeding K1000.00 or imprisonment for a term not exceeding twelve months.”

It is also necessary to set out the terms of the notice, which were as follows (so far as material):

“Enga provincial government liquor licensing act no 2 1986 ban on importation of liquor

I, Lazarus Nia, Deputy Premier and Minister for Liquor Licensing Commission by virtue of powers conferred under s 36(1) of the Liquor Licensing Act 1986 as amended to date do hereby prohibit the importation or bringing of any alcoholic drinks into Enga Province for an indefinite period with exceptions to the two wholesale outlets.

...

Lazarus Nia MPA

Minister for Liquor Licensing.”

Counsel for the appellant argued that the notice was invalid because it was not dated or signed by the Minister and was not published quarterly ie, in each publication of the Enga Gazette. I have no difficulty in disposing of those arguments by reference to the plain terms of s 36(1) of the Act which does not stipulate that a notice published in pursuance of it shall be dated, signed or published more than once. In my opinion the notice is not invalid on the footing advanced by the appellant in support of the first ground of appeal. I should mention, however, that in considering this matter after I reserved my decision at the conclusion of the argument it occurred to me that the notice could be attacked on other grounds as well. First, the “Minister” referred to in s 36(1) is nowhere defined in the Act so that it could be suggested that no person is identified for the purposes of publication of the notices. Secondly, it could be suggested that although s 36(1) contemplates publication of a notice by the “Minister”, even if it is possible to infer who that Minister must be, he is not expressly authorised by the Act, in particular s 36, to publish the notice. Thirdly, it could be suggested that s 36(1), in referring to “... such period as (the Minister) considers fit” requires the stipulation in the notice of a fixed or defined period and that the mention of “an indefinite period” in the notice actually published does not satisfy that requirement. Although it is not strictly necessary to deal with these points which were not argued I shall shortly state my views on them.

As to the last of them, I think in ordinary language and by standards of ordinary commonsense “an indefinite period” is nonetheless a “period” of time despite not having a nominated point of completion. I would not regard the notice as invalid on that ground. As to the second, it is well settled that where a statute provides or contemplates that a thing may be done, it is to be construed as impliedly empowering the doing of that thing if no such express provision appears: SGG Edgar, Craies on Statute Law (7th ed, 1971), at 111-112; Halsbury’s Laws of England (4th ed, Vol 44) at 586-587. Hence in my opinion if it is proper to conclude that “the Minister” referred to in s 36(1) is or may be the Minister for Liquor Licensing there is no difficulty in reading into the Act an implied power in him to publish the notice. This brings me to the first point and although the Act omits to define “the Minister” as or including the Minister for Liquor Licensing, it seems obvious that the omission was accidental and it is again well settled in such a case that where to read words into an Act makes it effective without altering the meaning of the existing provisions that may be done: Craies (supra) at 109-110. In this instance it seems to me to be sensible and to confirm the operations of the Act, thus giving effect to the clear intention of the provincial legislature, to read the expression “the Minister” as meaning or including the Minister for Liquor Licensing. It follows that the notice was a valid product of s 36(1).

Logically the next ground of appeal to be considered is ground 3 for it too attacks the conviction. What was put was that Div 3 of the Organic Law on Provincial Government (Ch No 1), which was the primary statutory authority under which the Act was passed by the Enga Provincial Legislature, whilst authorising the Act itself, did not authorise the provincial legislature to delegate to the Minister the power to make laws or create offences such as by publication of a notice pursuant to s 36(1). In other words the argument involved these steps. First, whilst the Act was conceded to be a law with respect to the sale and distribution of alcoholic liquor and so authorised by s 25 and s 24(1)(c) of Div 3 of the Organic Law on Provincial Government, it was submitted that only the Enga Provincial Legislature was empowered to make such laws. Secondly, the publication of the notice in the Enga Gazette was said to be a further law making act performed by the Minister as a delegate of the Enga Provincial Legislature because the publication was an essential ingredient in creating the offence with which the appellant was charged. Finally, it was submitted that Div 3 of the Organic Law on Provincial Government (s 25 and s 24(1)(c)) did not empower the provincial legislature to pass on to any person (including the Minister) power to make a law. Yet that is what it was said s 36(1) of the Act did.

I agree that the publication of the notice pursuant to s 36(1) of the Act was something upon which the offence with which the appellant was charged depended. It is also true that Div 3 of the Organic Law on Provincial Government involves a clear delegation of law making powers to the provincial government; relevantly in this case with respect to the sale and distribution of alcoholic liquor. There is well known authority for the proposition that in such a case the authority to which the power is delegated must exercise it so as not to stray outside the scope of the power (Blackpool Corporation v Locker [1948] 1 KB 349; [1948] 1 All ER 85); and is not empowered to pass on its power to do an act to some other person (Allingham v Minister of Agriculture and Fisheries [1948] 1 All ER 780).

However, in my opinion it is not correct to say that the authority in the Minister to publish a notice which arises from s 36(1) of the Act is outside the scope of Div 3 of the Organic Law on Provincial Government or gives a power to a person the provincial legislature was not entitled to give it to. The appellant’s argument misconceives the operation of the Organic Law on Provincial Government on the one hand and the Act on the other.

Halsbury (4th ed, Vol 44) at 626, states the principle which I think applies to this case succinctly as follows:

“If validly made, subordinate legislation has the full force and effect of a statute, whether or not the statute under which it is made provides expressly that it is to have effect as if enacted in it.”

In context this statement is strictly applicable to administrative acts made under statutory power — such as, in this case, the publication of the notice which I have already dealt with without reference to the foregoing passage in Halsbury — but in my view it applies equally to a secondary statute made under the authority of a primary statute.

In this case it is in any event conceded that the Act was validly made in pursuance of Div 3 (s 25 and s 24(1)(c)) of the Organic Law on Provincial Government. It might have been argued that an Act which prohibits the importation or bringing of liquor into a province (as does s 36 of the Act here in question) is not for “the sale and distribution of alcoholic liquor” but no such attack was made on the Act or s 36 thereof. If it had been made, I think it would have failed, because prohibition of import is probably within the scope of “distribution”, but it is not necessary to decide this point. Once the Act is seen to be a valid product of the Organic Law on Provincial Government, in my opinion that primary law ceases to have any bearing on the matter. The authority of the Minister to publish the notice depends on the Act. If the publication by him was valid under the Act, and the Act is valid in itself, then the offence created by s 36(2) is also validly created.

For these reasons I reject ground 3 of the notice of appeal.

Ground 2 of the notice of appeal in relation to penalty remains to be considered. I was informed that the value of the beer forfeited — clearly pursuant to s 36(3) and (4) of the Act — was K888 and it was not disputed that the appellant was a first offender. It was submitted on his behalf that in those circumstances the imposition of a K100 fine was excessive because combined with the value of the goods forfeited it amounted to the imposition of a penalty not far short of the maximum fine of K1,000. It was also put in mitigation, and not disputed by the respondent, that the appellant was a councillor respected in the community, aged 44 years and earning only about K15 a fortnight.

I must say I regard the statement of the appellant’s income with considerable reservation and his complaint about the hardship caused by forfeiture of the goods would be more deserving of sympathy if he had not told the learned magistrate in the District Court that the money to buy the beer had been provided by his wantoks in Goroka. Moreover since the beer was an illegal import its forfeiture under the Act, although discretionary — “liquor ... may be forfeited” (s 36(4)) — was consistent with the approach taken under other similar legislation dealing in part with contraband eg customs statutes. It would be a rare instance in which the prohibited goods were not forfeited and I think that aspect of the penalty must be taken separately from the fine. Therefore I ask myself: is a K100 fine — one tenth of the maximum — excessive for a first offender of apparently good reputation, especially when the offence arises from a circular published in the Enga Gazette in a community in which most people probably do not consult the gazette or even know about it, notwithstanding the principle that ignorance of the law is no excuse? In this case the latter point is to be looked at in the light of the appellant’s apparent assertion to the police that he thought the ban had been lifted which would suggest that he is fact knew of the prohibition.

In all the circumstances I think the fine was too high. I think a fine of K50 would meet the case.

1.       I confirm the conviction.

2.       I confirm the order for forfeiture of the beer.

3.       I vary the amount of the fine by reducing it to K50, in default six weeks imprisonment with hard labour.

4.       I order each party to the appeal to pay his own costs.

Appeal against conviction dismissed

Appeal against sentence allowed and sentence reduced

Lawyer for the appellant: S Alonk.

Lawyer for the respondent: S Norum.