McElwaine CJ:

The Appellant appeals against his conviction under s. 28(1) of the Liquors Revenue Ordinance for having in his possession or control dutiable liquor.

The facts very shortly are that the appellant is a licensee under s. 38. It is immaterial for the purposes of this case that the license had expired a couple of days before.

On information received revenue officers were watching appellant's premises at 9.30 a.m. on 5 January when they saw a rickshaw coming along the back lane and stop at the back door opening into a yard at the back of the appellant's premises. The rickshaw puller knocked at the back door which about a minute later was opened by a young girl of 14 or 15 years of age, a daughter of appellant, to whom the rickshaw puller handed a parcel. One of the watching revenue officers at once rushed forward pushed open the door and entered the yard. The girl dropped the parcel and ran to the house.

The parcel was found to contain rubber inner tubes full of dutiable liquor.

No point was made on the appeal that there was not satisfactory evidence as to the contents of the tubes. A sample was taken from the tubes by Mr. Johnston, an Assistant Superintendent of Excise, who appears to have sent it and a bottle found in the liquor shop to the Government Analyst. At the trial these were referred to as Exhs. H and F. They were brought by Revenue Officer No. 28 to the Government Analyst and the same officer received them back with the Analyst's report which states that the Revenue Officer handed him two bottles marked exhs B and C respectively that on examination B was found to contain samsoo of spirit strength 64.40 roof, and "C" was found to contain samsoo of spirit strength 49.20 roof.

It is impossible to say from the evidence whether B or C referred to the liquor in the tubes though doubtless one or other of them did. Under the circumstances as each contained samsoo the matter is not important but this kind of vagueness would suffice to upset a conviction if either B or C contained non-intoxicating liquor as if that had happened there would be no evidence that the tubes contained intoxicating liquor.

At the time the revenue officers made this seizure the appellant was absent from the premises at a fish shop which he also ran on other premises.

A search was made of his premises which were well stocked with bottles of liquor to which no suspicion apparently attached. The contents of the inner tubes only, was the liquor the subject of the charge.

The Crown case was argued on the basis that the girl was a servant employed by her father "in the course of his business as such licenced person," that on receiving the parcel she became in possession of it for the licensee who thereby became guilty of an offence under s. 87.

The only evidence on this point was that the girl was in no way employed about the liquor business though she helped in the house - the liquor shop was where appellant resided with his family. Her mother had charge of the shop when appellant was absent.

I attach no significance to the fact that the girl ran when the revenue officer pushed his way into the yard. A girl of 14 or 15 may well have been frightened. I do not infer guilty knowledge from her conduct nor apparently did the Magistrate.

There is a great deal of force in the learned Deputy's argument that in these family liquor shops where no outside help is employed the whole family may act as agents or servants of the head of the family. This may very well be true but I hesitate to say that the mere answering of a knock at the door constitutes a person a servant employed in the licenced business if the parcel she receives contains samsoo, but not if it contains bread. Of course if there was evidence that the licensee expected to receive dutiable liquor and that he sent his daughter to receive it she would be a servant though she were perfectly innocent of all knowledge that there was anything wrong.

This case turns on was there