Terrell A-G CJ:

This was an appeal by the Public Prosecutor against the adequacy of sentence. The matter having been brought to my knowledge in this way, I have power to reconsider the legality of the conviction, as on a revision, under the provisions of s. 322 of the Criminal Procedure Code, and I propose acting thereunder.

The accused was charged with permitting to be sold by retail or offered to be sold by retail intoxicating liquor on the premises of the Monico Cafe contrary to the provisions of s. 38 of the Liquors Revenue Ordinance (Ch 225).

The facts of the case are not seriously in dispute. On 30 August 1940, two customs officers Messrs. Lewin and Shaw, entered the Monico Cafe shortly after midnight, and after refusing anything to eat were offered soft drinks. Mr. Lewin then asked for a bottle of Allsops beer. The Chinese boy asked for a dollar which Mr. Lewin gave him. The boy handed the $1 to another Chinese who went across Orchard Road where he purchased and paid for a bottle of Allsops beer from Chop Seng Huat. The price was 70 cents but as Mr. Lewin received no change, the boy appropriated 30 cents either illegally or with Mr. Lewin's tacit consent. The boy's conduct is not in issue in these proceedings, since there is no presumption under the Ordinance that the proprietor of the cafe is liable for the unauthorised acts of his servants or agents. What the prosecution have to prove is that the proprietor permitted the sale of intoxicating liquor on his premises. In my opinion there is no evidence whatever that he did so. The sale of the beer was completed at Chop Seng Huat where the money was paid. There is no evidence from which a resale at the Cafe can be inferred. The defendant produced his bills and his books, which were not challenged, and proved conclusively that the price of intoxicating liquors was not entered on a customer's bill and that the proprietor made no profit on the transactions. In view of this evidence a resale at the cafe has been clearly negatived. The procedure followed was that which is habitually followed by unlicenced restaurants in London, and which is never challenged when the proprietor has no financial interest in the transaction.

The accused admitted that beer was consumed on the premises and admitted in cross-examination that such beer was consumed on the premises with his permission. In referring to this part of the accused's evidence the learned Magistrate in his grounds of judgment speaks of the "scandalous and callous manner in which the accused permitted beer to be sold at the Cafe Monico". It is clear that the learned Magistrate has misquoted the evidence and gravely misdirected himself. It is the sale not the consumption of beer on unlicenced premises, which is an offence under the Ordinance.

The conviction therefore must be set aside and the fine and costs repaid.

At the commencement of the appeal I questioned whether there was any jurisdiction under s. 310 of the Criminal Procedure Code to entertain an appeal by the Crown to enhance a sentence. Subsection (a) deals with an appeal from an order of acquittal, sub-section (b) with an appeal from a conviction, and sub-section (c) with an appeal from any other order. The section was until 1936 almost exactly the same as s. 316 of the Criminal Procedure Code of the FMS, whereby Enactment 19 of 1936 sub-section (b) was amended so as to commence;

(b) in an appeal from a conviction, or in an appeal as to sentence".

As the learned DPP was not ready to meet this point, and as in the view I have taken of the merits of the case a ruling is unnecessary, I give no decision thereon.

Conviction quashed.