FREDERICK EDMED HOOPER Vs. KING-EMPEROR

JUDGEMENT

(1.) The accused in these cases has been convicted by the Chief Presidency Magistrate on two charges of contravening the Royal Proclamation of the 9bh September 1914 against trading with the enemy by obtaining and attempting to obtain at Madras goods from an enemy and from an enemy country, offences punishable under Section 3 of the Commercial Intercourse with Enemies Ordinance VI of 1914 as continued and amended by Acts I and XIV of 1915. He has been discharged by the Presidency Magistrate on a complaint of further contravening the said Ordinance by conspiring at Madras with one other to obtain goods from a firm in Germany. The accused has appealed against the convictions and the Grown Prosecutor has filed a revision petition against the order of discharge. Though the illegality of trading with the enemy was established in the eighteenth century by the decisions of the Prize Court administering the Law of Nations which are collected by Sir William Scott (afterwards Lord Stowell) in the Hoop (1769) 1 Ch. Rob. Adm. Reports 196 and were followed by the Courts of Common Law in Bristow v. Towers (1794) 6 T.R. 35 Potts v. Bell (1800) 8 T.R. 518 Esposito v. Bowden (1857) 7 E. & B. 763 and Zinc Corporation v. Hirsch (1916) I.K.B. 541 there is no record of any prosecution for this offence before the outbreak of the present war. In Gist v. Mason (1786) I.T.R. 88 Lord Mansfield said that Lord Hardwicke had given him a note which had been destroyed with the rest of his library during the Gordon riots, of a reference to all the Judges in the reign of King William the Third on the question, "Whether it were a crime at the common law to carry corn to the enemy"; who were of opinion that it was a misdemeanor. There can be very little doubt that trading with the enemy in contravention of the Royal Proclamation would be held to be a misdemeanour in England if not also in India, for, as observed by Willes, J delivering the Judgment of the Exchequer Chamber in Esposito v. Bowden 4 " the force of a declaration of war is equal to that of an Act of Parliament prohibiting intercourse with the enemy except by the Queen s license," and in the Royal Proclamation of September 9th, 1914 it is expressly stated that such contraventions are criminal. It was not however thought desirable to rely solely on the common law and both in England and in India after the issue of the Proclamation of the 9th September, legislation was passed making it an offence to contravene the provisions of any proclamation against trading with the enemy and it is under this legislation that the accused has been convicted as already stated.

(2.) In the first case the accused Mr. F.E. Hooper, Managing Director of McDowell and Co., Madras is charged with contravening the Royal Proclamation of the 9th September at Madras between the 21st and 26th November 1914 by obtaining 34 bales of tobacco leaf per " S.S. Mombassa " from an enemy, one E.C. Ruppell residing in Hamburg and also with obtaining 26 of the aforesaid bales from Goch in the German Empire, an enemy country. Prior to the outbreak of war the accused s firm. had purchased and stored certain bales of tobacco partly at Amsterdam and partly at Goch, a German town on the Dutch frontier not far from Dusseldorf. The purchases were arranged by and the goods stored in the name of Mr. Ruppell, a former partner, who after his retirement took up his residence in Hamburg and became an enemy by virtue of the declaration of war on August 4th, 1914. On July 28th the accused had cabled to Mr. Ruppell an order for 28 bales and on July 31st Mr. Ruppell wrote saying that he had executed the order and hoped to send the documents next week. It is proved that 18 bales were sent from Goch to Antwerp for shipment and were never heard of again in consequence of the outbreak of hostilities. The consignment now in question consisted of 28 bales of the descriptions ordered, of which 18 bales were admittedly purchased after the outbreak of war and the other 10 supplied from stock at Amsterdam or Goch, together with 6 bales of another description which had not been ordered. The Presidency Magistrate has found and we see no reason for differing from his finding that the whole 34 bales to the knowledge of the accused came from Ruppell, an enemy. He has also found that to the knowledge of the accused 26 of these bales came as charged from Goch; but though there is evidence before the Court which points to their having in fact come from Goch, there is evidence as to some of the bales, that the accused had every reason to believe that they came from Amsterdam and as to the rest, that he had no information that they came from Germany.

(3.) It is proved that on or about the 7th October 1914, these bales were shipped at Amsterdam by Downer and Hiemink, the Madras firm s agents in Amsterdam, free on board to London consigned to Lancelot and Dent, the firm s London agents, who paid the freight, took them out of bond and reshipped them by the Mombassa consigned to the firm in Madras and at the same time drew upon the firm in the usual course but only for their own charges as they had not been called upon to pay for the goods. The bales must in the ordinary course have been put on board the Mombassa , which arrived in Madras on the 21st of November. About the 14th of October the date when the Ordinance came into force and, as the prosecution has not established that they were shipped on or after the date, it may be taken in favour of the accused that they may have been shipped before the date. In this state of facts, two objections are taken for the accused. It is said that the goods were not obtained in Madras on the date specified from an enemy or an enemy country, but at the worst were obtained from an enemy or an enemy country by Lancelot and Dent the innocent agents of the accused in London before the 14th October when the Indian Ordinance came into force and that after that date there was no obtaining within the meaning of the Section. It is quite clear that a Statute and above all a Penal Statute has no retrospective operation unless the intention of the legislature that it should have such aneffect is clearly indicated, which is not the case here. The question then arises how far a Statute creating a new offence applies to offences begun before the passing of the Act but completed subsequently. In R. v. Griffiths (1891) 2 Q.B. 145 which came before the Court of Crown Cases Reserved, it was scarcely con-tended that the statutory provision in question could affect acts done before it was passed, but it was said that, as the Act was passed in July and only came into force in January following, this indicated an intention on the part of the legislature that it should apply to offences against its provisions which had been committed after it has been passed and before it came into force. The Court did not think fit to dispose of the case on the ground that the complete offences had been committed before the Act came into force and thought it right to lay down and escpressly to decide the case on the broader rule that all the ingredients of the offence must have been committed after the coming into force of the Act. To illustrate this, one of the offences in question in that case was obtaining money by false pretences and it is clear to my mind that the Court intended to lay down that if the false pretences were made before the coming into force of the Act and the goods received afterwards, the conviction would be bad. I should feel bound in any case to follow the rule which was then laid down by the Court of Crown Cases Reserved for the guidance of Criminal Courts and I do so the more willingly because it seems to me in accordance with principle and also in accordance with the view of the learned Judges who decided the earlier case of R. v. Vine (1875) L.R. 10 Q.B. 196 where a provision disqualifying every person convicted of felony from holding a license to sell spirits was held, Lush, J, dissentiente, to have a retrospective operation and to apply to persons convicted before as well as after the passing of the Act on the express ground that the object was not to punish offenders but to protect the public against public houses being kept by persons of doubtful character. I may add that I do not think the rule laid down in R. v. Griffiths (1891) 2 Q.B. 145 is likely to give rise to inconvenient results, as the more serious and obvious forms of crime are already punishable under the existing law and as to newly created offences it is open to the Legislature to make the enactment retrospective if there are sufficient reasons for so doing.