Supreme Court
Inferior Court Appeal No. 15 of 1983
24th August, 1983
Moe, CJ.

Mr. Allan Pitts, for the Appellant.
Mr. G. Quallo, for the Respondent.

Inferior Court Appeal - Appeal against conviction for charge of exposing liquor for sale without a licence contrary to section 43(1)(a) of the Intoxicating Liquor Ordinance, Chapter 159 - Meaning of the phrase "expose for sale" - Evidence necessary to establish that liquor was exposed for sale.

D E C I S I O N

The Appellant was charged that on the 3rd day of November, 1982 he exposed liquor for sale at the Malibu Club at 128 East Collet Canal whilst not the holder of a licence authorising him to sell such liquor, contrary to section 43(1)(a) of the Intoxicating Liquor Licensing Ordinance, Cap. 159.

There were only two witnesses before the magistrate, one a policeman for the Prosecution and the other, the Appellant himself. The policeman's evidence was that on the 3rd November, 1982 about 12:57 p.m., in uniform, he visited the Malibu Club where he found the door open. There, behind the bar, he saw one Alda Alvarado, whom he asked for a licence. He looked on the wall behind the bar and didn't see a liquor licence displayed. He took a quantity of liquor from off the shelves of the club, namely a 1/4 bottle of Haig Whisky, 1/4 bottle of Belizean rum, a 3/4 bottle of Tropical Brandy and unopened bottles of Doorly's and Charcoal rum. (These were tendered in evidence) He also said that while at the club that day, he observed Ms. Alvarado selling a coke on ice to someone. There were stools by the bar, chairs and tables in the building. The doors and windows of the club were open. He said the Appellant is owner of the club. The Defendant said he lives at 128 East Collet Canal, a two storey building. The Malibu is at that address. He operated the Malibu Club in the past, up to May 1982. He didn't give anyone permission to sell liquor. From the time he closed the club, he only used the premises for eating, washing and cooking. The liquor that was there was that which was left-over. In cross-examination, he admitted that even though his licence had expired from 31st December, 1981, he didn't renew the licence for 1982. He said that he was granted a licence in June, 1982, but didn't renew it, because he had closed down.

He was convicted and now appeals against the conviction on three grounds namely:-

(1) that the decision was unreasonable or could not be supported having regard to the evidence;

(2) the decision is erroneous in point of law in that the magistrate did not interpret correctly the phrase expose for sale in the particular section of the Ordinance; and

(3) the decision was based on a wrong principle or was such that the magistrate viewing the circumstances reasonably could not properly have so decided.

The three grounds were combined and presented as different aspects of the submission that the magistrate wrongly held that the liquor was exposed for sale. It was contended that the evidence does not support a finding that the liquor was exposed for sale. The following circumstances were referred to. There was evidence only that the bottles of liquor were on shelves, no evidence that they were priced, that they were dealt with, that anyone was selling liquor, no evidence that the policeman attempted to purchase, no evidence that there were glasses, no evidence that the Defendant was there. Reference was made to a decision, in the Inferior Court Appeal No. 1 of 1975 Franklin Williams v. Shamah, which in my view was concerned with an offense of selling certain price controlled items in excess of the controlled price without the written permission of the Controller of Supplies and does not assist in this case. Counsel for the Respondent submitted that the circumstances must be looked at objectively.

I wish to stress only that the charge was exposing for sale and the evidence referred to by Counsel for the Appellant as absent is not necessary to establish exposure for sale. In my view, the evidence outlined above was evidence on which a Court could come to a decision that the liquor was exposed for sale and the magistrate having seen and heard the witnesses said she believed beyond all reasonable doubt that the liquor was exposed for sale.

Counsel for the Appellant also contended that there was not sufficient evidence on which the magistrate could find that the Defendant exposed the liquor for sale. He argued that the Defendant's knowledge that the bottles of liquor were there doesn't mean he the Defendant exposed them for sale. Counsel for the Respondent referred to the evidence that the Defendant is owner of the club, responsible for it and there was no evidence that he did anything to indicate that the liquor was not for sale. It appears from the reasons for decision that the magistrate having concluded that the liquor was exposed for sale, went on to consider the offence in relation to the Appellant. She adverted to the question whether it was established that the Appellant did not have a licence under this Ordinance authorising him to sell that liquor, her finding on which is not challenged. She then referred to the Appellant's ownership of the club. She stated, "The Defendant (Appellant) admitting that the premises of the Malibu Club were his, was found guilty of the offence charged."

The evidence of the Defendant's ownership of the club was only a part of the whole evidence of circumstances from which the magistrate could attribute the act in question, exposing for sale, to the Defendant. She came to the conclusion that he did and I see no reason to disturb that finding.

Appeal dismissed. Respondent to have costs.

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