Wakilii

Rex v Daudji (Criminal Appeal No. 81 of 1948)

East African Court of Appeal · [1948] EACA 28 · 1948 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction by Supreme Court of Kenya on charges of attempting to export game trophies without permission
Decision
Convictions altered to convictions under Penal Code s.388; fines reduced but convictions upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that a plea of autrefois convict fails where the previous conviction does not necessarily involve conviction on the subsequent charge. A conviction for attempting to export goods without a licence from the Chairman of the Supply Board does not necessarily involve a conviction for attempting to export the same goods without the Game Warden's permission. The Court further held that where the Game Ordinance does not specifically prescribe punishment for an attempted contravention, such attempts should be dealt with under section 388 of the Penal Code as attempts to commit misdemeanours, not under the general penalty provision of the Game Ordinance.

Outcome

Convictions altered to convictions under Penal Code s.388; fines reduced but convictions upheld

Facts

The appellant attempted to export elephant tusks and rhinoceros horns from Kenya to Hong Kong without required permissions. On 30 January 1948, he was convicted by the Resident Magistrate on his guilty plea to smuggling contrary to the Customs Management Ordinance, specifically for attempting to export the articles without a licence from the Chairman of the Supply Board as required by the Export Control Order 1946. On 8 March 1948, he was charged in the Supreme Court under the Game Ordinance with attempting to export the same articles without the written permission of the Game Warden. He pleaded autrefois convict, which was rejected. He then pleaded guilty and was sentenced under section 52(3) of the Game Ordinance to substantial fines calculated per animal. He appealed both the rejection of his autrefois convict plea and the basis of sentencing.

Issues

  1. Whether the plea of autrefois convict should have been upheld where the appellant was previously convicted of smuggling under the Customs Management Ordinance and subsequently charged with attempting to export game trophies without permission under the Game Ordinance in respect of the same articles.
  2. Whether an attempt to contravene the Game Ordinance should be punished under section 52(3) of that Ordinance or under section 388 of the Penal Code as an attempt to commit a misdemeanour.

Orders

  • Appeal dismissed as to the plea of autrefois convict.
  • Convictions altered from convictions under Game Ordinance s.52(3) to convictions under Penal Code s.388.
  • Fine on Count 1 reduced to Sh. 6,900 or six months' imprisonment with hard labour in default.
  • Fine on Count 2 reduced to Sh. 7,500 or six months' imprisonment with hard labour in default.

Rules and key headnotes

Autrefois Convict — Test for Validity of Plea
On a plea of autrefois convict, the test is not whether the facts relied on are the same at the two trials; the question is whether the acquittal or conviction on the previous charge necessarily involves an acquittal or conviction on the subsequent charge.
Autrefois Convict — Different Regulatory Requirements
A conviction for attempting to export goods without a licence from the Chairman of the Supply Board does not necessarily involve a conviction for attempting to export the same goods without the permission of the Game Warden, as these are distinct regulatory requirements under different statutory schemes.
Autrefois Convict — Particulars of Previous Charge
Where particulars of a previous offence specify that the accused attempted to export goods without a licence with intent to evade a particular order, evidence that the accused attempted to export the same goods without a different permission would not have supported a conviction on the previous charge, and the plea of autrefois convict must fail.
Attempts — Specific vs General Penalty Provisions
Where a statute prescribes punishment for attempts to commit certain specific offences but is silent as to other attempted contraventions, and a general code provision exists for punishing attempts to commit misdemeanours, the intention is that attempted contraventions not specifically addressed should be dealt with under the general code provision rather than under a general penalty clause in the special statute.
Sentencing — Consideration of Aggravating Factors
A trial judge is justified in taking into consideration the number of animals or items involved in offences when assessing the amount of fines, even where the conviction is altered on appeal from one statutory provision to another.

Legislation cited (18)

  • Customs Management Ordinance 1926 s.224(a)
  • Customs Management Ordinance 1926 s.3
  • Customs Management Ordinance 1926 s.113
  • Customs Management (Export Control) Order 1946 para.3
  • Game Ordinance 1937 s.37(4)
  • Game Ordinance 1937 s.51(1)
  • Game Ordinance 1937 s.52(1)
  • Game Ordinance 1937 s.52(3)
  • Game Ordinance 1937 s.21
  • Game Ordinance 1937 s.30(5)(a)
  • Game Ordinance 1937 s.36
  • Game Ordinance 1937 s.40(1)
  • Game Ordinance 1937 s.46
  • Penal Code s.388
  • Penal Code s.37
  • Penal Code s.27(2)
  • Penal Code s.29(1)
  • Penal Code s.303

Cases cited (2)

  • R v Barron (1914) 10 Cr App R 80
  • R v Sheen (1827) 2 C & P 634

Full judgment

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Rex v Daudji (Criminal Appeal No. 81 of 1948) [1948] EACA 28 (1 January 1948)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.