Sanga v. R. Crim. App. 328-D-71; 10/9/71; Biron, J.

 Sanga v. R. Crim. App. 328-D-71; 10/9/71; Biron, J.

The appellant was convicted on two counts under the Hotel Accommodation (Imposition of Levy) Regulations made under the hotel Accommodation (imposition of Levy) Act, 1962, of failure to pay the levy collected or which ought to have been collected from guests staying at his hotel, and of failure to submit returns which are required to accompany the payment of the levy. He was fined Shs. 10/= or distress in default on each count. The relevant sections of the regulations read: “4. the owner shall, subject to the provisions or regulation 6, within seven days of the last day of every month pay to the Internal Revenue Officer the whole of the amount of the levy collected by him during that month.” “5 Every payment of levy shall be accompanied by a return in the prescribed form duly signed by the owner.” It was established that the appellant was neither the owner nor the manager of the hotel which belonged to his relatives. He was a school teacher and helped in the management of the hotel.

Held: (1) “Even if he took some part in the management that would still not make him the manager. The Regulations which create penal offences must be strictly construed, and to bring within the definition of “owner’ anybody who assists in the management, not being the manager himself but working under the manager, extends far too comprehensively the definition of “owner””. (2) (Obiter): “I cannot refrain from remarking that I fail to see how, even if the appellant were the owner or manager and had been properly convicted of an offence under Regulation 4, he could be convicted of an offence under regulation 5 as above set out, for the offence lies in the payment of the levy not being accompanied by a return in the prescribed form. If no levy is in fact paid, it is difficulty if not impossible to envisage how an offence can be committed by the failure to accompany a non-existent payment by a return. It may seem a little odd that where payment is made and is not accompanied by a return an offence is committed, but o such offence is committed if there is no payment, but it is really not quite as odd as it seems at first blush, for the lesser offence of not annexing a return to the payment is obviously merged in the greater offence of not remitting any payment at all.” (3) Appeal allowed.