…Appellate Court allowed appeal, ordered retrial

IN 1974, the Full Court held that the police had committed a wrong by entering Ng-Qui-Sang premises in a price control matter, without authority from the competent Authority.The police appealed and the Court of Appeal, constituted by Chancellor E. V. Luckhoo and Justices of Appeal Mr. Victor Crane and Mr. J. O. F. Haynes, allowed the appeal.
The mater was sent back for hearing de novo to the magistrate of the court of the relevant jurisdiction.
According to the facts of the case, two police officers entered the grocery store of the defendants with a marked $1 note for the specific purpose of purchasing controlled articles which they had reason to suspect were being sold to the public above prices fixed by law.
The Full Court held that ss. 3, 4, and 5 of the Trade Act and clause 15 of the Trade Order applied, and also that an unlawful act, that is, a trespass, had taken place on the premises in the absence of written authority from the competent authority to the complainant to enter the premises to purchase goods.
The Full Court also held that, as a consequence, it was not lawful for the respondents to bring proceedings. On appeal by the police, the Appellate Court held that there was no mandatory requirement for the production of a written authority signed by the Competent Authority. A shopkeeper ought to see this and demand it from a purchaser for the purpose of making a lawful entry on his premises in which price controlled articles were displayed for sale. Without such an authority, a prosecution against him would be illegal.
Senior State Counsel Mr. George Jackman appeared for the appellant.
Delivering his judgment, Justice of Appeal Crane said, “I agree with the judgment and order which has just been pronounced by my brother Haynes.” After hearing the case, the magistrate accepted Counsel’s submission that written authority was required from the competent authority to enter the premises and to bring the prosecution, and that as this was not proved, there was no case for the defendants to answer.
Astonishingly, the Full Court agreed with the above submission and, in addition, made the alarming pronouncement that because there was such want of authority in writing , the prosecution before the magistrate was illegal.
Justice Victor Crane said,“ In my view , any question about the requirement of an authority in writing to enter the premises and to prosecute under Price Control Orders is wholly irrelevant in proof of the kind of transaction that took place between the two investigators, viz.,Det. Const. Williams and Omar Persaud, on the one hand, and the defendants, on the other.
These two officers, with the intention of entrapping the Defendants, entered their grocery at Albion, Corentyne ,with a marked $1 note for the specific purpose of purchasing controlled articles which they had reason to suspect were being sold to the public above prices fixed by law .
“They did not enter for the purpose of inspecting those premises in accordance with clause 15 of the Trade (Control of Prices) Order which requires, as a condition precedent to the legality of entry and inspection, a written authority from the competent authority to do so.
“The purpose for which premises are entered is highly relevant in matters of this kind and makes all the difference. Purchasing and inspecting goods are not entirely the same kind of acts. While purchasing may involve inspection, the converse is not true. Personally speaking , I do not think Clause 15 applies at all to a case like th present where a price control officer enters , a decoy specifically, to purchase goods above fixed prices and to entrap contraveners. He, like an ordinary member of the public, needs no authority in writing from the competent authority to effect that purpose.
Nevertheless, The Full Court thought ss.3, 4 and 5 of the Trade Act and clause 15 of the above Trade Order applied, and also that an unlawful act, i.e., a trespass had taken place on the premises in the absence of written authority from the competent authority to the complainant to enter the premises to purchase goods.
“Consequently, that Court held it was not lawful to bring these proceedings. I am unable to agree, however. Authority in writing is not like the requirement of a fiat prosecution from the Director of Public Prosecutions which is a condition precedent to launching criminal prosecutions where non-production renders a prosecution null and void ab initio.
“It is trite law that even where entry is unlawfully made for want of authority, a conviction can still be sustained. So where under the Spirits Ordinance ,1893, a Commissary of Taxation applied for and obtained a warrant to search the house of a man named Warner , but in error and without a warrant, searched the house of a woman called Warner . Bovell, C. J. said in Warner vs. Fenton, A.J 31st March, 1905 , OG8.405. ‘But even if the search was illegal, I think this would be no objection to the conviction, though the appellant would have the remedy for trespass committed by unlawful entry.’
“ I am sorry to say the Court below came to the wrong conclusion when it held that the persons above=mentioned must have been authorized in writing , and, further , that persons so authorized in writing by the competent authority , should normally be the only persons who ought to institute criminal proceedings since only they would have personal knowledge of whether or not any breach of any of the provisions of the order occurred in any business premises visited by them in the course of their duties. I do not know what this means, but I think it is certainly going too far. There is nothing in the Trade Act. Chapter 91;01 or the Trade (Control of Prices) Order that restricts the bringing of price control prosecutions to a particular person or class of persons.
“If this view of the Full Court is allowed to prevail, it would so adversely affect those prosecutions as to undermine the main purpose of a very salutary piece of legislation that is aimed at bringing to justice contraveners who, like harpies , prey upon the vitals of the poor. As I remarked during the course of the argument , the present offence of selling a price controlled article above the fixed price may be instituted not only by officers employed by the competent authority to act as decoys , but also by anyone who has purchased above the fixed price. The prohibition against selling a price controlled article at a price exceeding the maximum price prescribed by Law is a “summary conviction offence”[see s.5 (4) of the Trade Act Cap.91:01], so anyone may make a complaint against any person committing a summary conviction offence unless it appears from the written law on which the complaint is founded that a complaint for that offence shall be made only by a particular person or class of persons.
“It is unnecessary for me to say anything more, save to emphasize that there is no “mandatory requirement “, as the court below thought, for the production of a written authority signed by the competent authority which a shopkeeper ought to see and demand from a purchaser for the purpose of making a lawful entry on his premises in which price controlled articles are displayed for sale, and that without such an authority a prosecution against him would be illegal”.