Bukenya v Regina (Criminal Appeal No. 1 of 1952) [1952] EACA 235 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill (President), Sir Newnham Worley (Vice-President) and SIR DAVID EDWARDS, Chief Justice (Uganda)

## KARUNA BUKENYA, Appellant (Original Accused)

REGINA, Respondent (Original Prosecutor)

Criminal Appeal No. 1 of 1952

(Appeal from decision of H. M. High Court of Uganda—Low, J.)

Storebreaking—Whether conviction of receiving possible—S. 188 (1) Uganda Criminal Procedure Code-Sentencing an accused before calling him for prosecution.

The appellant, with four others, was convicted by the Resident Magistrate, Jinja, of breaking into a store and committing therein a felony to wit, stealing *contra* to s. 283 (1) of the Uganda Penal Code. On appeal the Uganda High Court set aside his conviction under this section and substituted a conviction for receiving stolen property, knowing the same to have been stolen contra to s. 298 (1) Penal Code. On appeal to the East African Court of Appeal it was contended that the substitution of the conviction for the offence of receiving was bad and the conviction was not supported by the facts or by any inferences properly drawn from those facts.

Held (15-1-52).—(1) It being open to the Magistrate to find the appellant not guilty of storebreaking but guilty of receiving, by section 333 (1) (a) (ii) Uganda Criminal Procedure. Code, the High Court on appeal may alter the finding and find accused guilty of another offence.

(2) The appellant on the facts was convicted as a principal, but there was no evidence of his having guilty knowledge nor that he received the stolen property-the exclusive possession having remained in the thieves.

(3) That where an accused pleads guilty and is convicted it is desirable that he be sentenced before proceeding with the trial of his co-prisoner and calling him as a witness.

Cases referred to: Rex v. Robert Ndecho and another, E. A. C. A. Appeals 33 and<br>34 of 1951; Rex v. Hungerford, 2 East P. C 58; Rex v. Stanley Njeroge, (1947) 22 K. L. R.<br>42; Rex v. Withal, 1 Leach 58; Rex v. Watson, (1916) 2 K. B

Appeal allowed.

Bhatt for appellant.

## McMullin for Crown.

JUDGMENT.—This is a second appeal from a judgment of the High Court of 'Uganda sitting in appellate jurisdiction. The apellant was convicted, together with four other co-accused by the Resident Magistrate, Jinja, of the offence of breaking into a store and committing therein a felony, to wit, stealing contrary to section 283 (1) of the Penal Code of Uganda, 1950. He appealed to the High Court, which set aside his conviction under that sectoin but substituted a conviction for receiving stolen property, knowing or having reason to believe the same to have been feloniously stolen, contrary to section 298 (1) of the same Code. The sentence of eighteen months' imprisonment imposed by the District Court was confirmed. The appellant now appeals to this Court on the grounds that—

(a) the substitution of the conviction for the offence of receiving is bad in $(a)$ $\cdot$ law, and

(b) the said conviction is not supported by the facts, or by any inferences $(b)$ properly drawn from those facts.

In our view the contention in ground $(a)$ is not correct. The learned Judge in the High Court quashed the conviction for storebreaking and theft because he thought that "the doubt, and it was a very reasonable one, as to the appellant's complicity in the actual theft should have influenced the learned Magistrate to find the appellant not guilty" on that charge but "it was nevertheless open to him on the facts as revealed to have found the appellant guilty of receiving property knowing it to have been stolen".

By section 333 (1) (a) (ii) of the Criminal Procedure Code of Uganda, 1950, the High Court in an appeal from a conviction may alter the finding and find the accused (sic.) guilty of another offence. But we conceive that this power is to be exercised only in conformity with those other provisions of the Code which prescribe the cases in which an accused person may be convicted of an offence although he has not been charged with it. For our present purposes these provisions are contained in section 180 (2) and section 188 (1) of the Criminal Procedure Code. and the first question to be answered is whether the Court of trial would have been empowered to convict the appellant of receiving although he was not charged with it.

In Criminal Appeals Nos. 33 and 34 of 1951: Rex v. Robert Ndecho and another (unreported) this Court considered the provisions of section 179 (2) of the Kenya Criminal Procedure Code (which are identical with section 180 (2) of the Uganda Code) and pointed out that the governing word in this subsection is the word "reduce" and the subsection cannot be read as if the words ran "and facts are proved which reveal another offence". The facts proved must reduce the major offence to a minor offence, which must be cognate to the major offence charged. "Receiving" is not cognate with "stealing" and therefore section 180 (2) has no application to the instant case.

It is, however, expressly provided in section 188 (1) of the Code that a person charged with stealing may be convicted of the offence of receiving or retaining the stolen property although he was not charged with it. But Mr. Bhatt has contended that in the present case the appellant was not charged with theft, but with storebreaking, and he has cited and relied on the decision of the Supreme Court of Kenya in Rex v. Stanley Njeroge (1947) 22 K. L. R. 42. That decision is not binding on us but is, of course, entitled to the highest consideration. There seem to be two possible ways of viewing this question. One is that in charges of this description the substantive offence charged is the "breaking and entering" and the commission of the felony consequent on the breaking and entering is merely a circumstance of aggravation. The other view is that both offences are laid in the count or charge. In England, where there is no statutory equivalent of section 188 the practice is to lay a second count for receiving. Apparently, the former point of view commended itself to the Supreme Court of Kenya, but we think, with respect that this overlooks the anomalous character of charges of this nature. As is said in Archbold (op. cit. p. 643) in relation to a charge of burglary and larceny "This form of count charges two offences: Rex v. Hungerford 2 East P. C. 518, Rex v. Withal, 1 Leach 58; but has always been held good, notwithstanding the rules against duplicity". It is quite clear that in England, on a charge of burglary and stealing, if no burglary is proved, the prisoner may be convicted of the simple larceny (see Archbold op. cit. p. 197). We have no doubt that this holds good also for these territories because the two offences are laid in the one charge. If it were not so, a conviction for stealing on a charge under, for example, section 383 (1) could not be justified under section 180 of the Criminal Procedure Code since the offences of "breaking and entering" and "stealing", though usually connected, are

not cognate. With respect therefore we think that the view taken by the Supreme Court of Kenya in the case cited was wrong and we disagree with it. In the present case, one of the offences charged against the appellant was stealing. It would therefore have been competent for the District Court to apply section 188 (1) of the Criminal Procedure Code and, that being so, it was also competent in law for the High Court on appeal to substitute a conviction for receiving.

Turning now to the second ground of appeal, it is necessary to review the facts, which were not materially in dispute. The appellant is a transporter and owns a lorry and, according to the evidence adduced for the prosecution, he was engaged by the sixth accused to move "some things" from Kimaka. On the way accused No. 1 was picked up and, at a European housing estate at Kimaka, these two accused, together with the fourth accused, loaded on to the lorry eight heavy boxes containing nails, which were the stolen property concerned. The appellant was told by the first accused that the boxes were his property but admitted he did not believe this. The time was about 6.30 p.m. He then drove the lorry with the eight boxes on it, accompanied by the other three accused, to the house of the third accused where the boxes were unloaded, and the appellant was paid 15/- for hire. The learned Magistrate found that "the time, place and the people concerned must have told him that stolen goods were being moved". It is possible (though we must not be taken to be so deciding) that the appellant's knowledge and conduct brought him within the definition in section 376 of the Penal Code of an accessory after the fact. If so, he was himself guilty of a felony and might have been convicted, if so charged, under section 377 of the Code. He was however convicted as a principal and, as there was no evidence of his having any knowledge of or participation in the storebreaking, the learned Judge on first appeal rightly held that that conviction could not stand. There was nothing to warrant any inference of *mens rea* in the appellant before the boxes were loaded on to his lorry, and by that time the storebreaking and theft were complete.

The question then is whether he "received" the boxes knowing them or having reason to believe them to be stolen. Proof of some form of possession is essential to sustain an indictment for receiving stolen property with guilty knowledge (Rex v. Watson, (1916) 2 K. B. 385) and, even if there is proof of a criminal intent to receive and a knowledge that the goods were stolen, if the exclusive possession still remains in the thief, a conviction for receiving cannot be sustained: $\text{Re}x$ v. Wiley (1850) 4 Cox. C. C. 414: followed in *Hawes v. Edwards* (Divl. Ct.), (1949) W. N. 206: and see the other cases cited in Archbold op. cit. at p. 756. There may of course be a guilty joint-possession with the thieves, which is a question of fact. There is nothing, however, in the present case to indicate that the thieves ever intended to share or did in fact share their possession of the stolen goods with the appellant. He acquired no property or interest in them, and had no control over them nor any voice in disposing of them. It is true that he controlled the vehicle in which they were being driven; but that is not the same thing as controlling the stolen property, in the sense in which that test of possession is used in, for example, Wiley's case (supra) or Rex v. Berger, (1915) 11 Cr. A. R. 72. The goods were in fact never out of the manual possession of the thieves and the appellant was never in possession, either actual or constructive, of them. That being so the facts do not warrant a conviction for receiving.

The appeal is therefore allowed, the conviction is quashed and the sentence set aside.

The appellant, who is serving his sentence must be set at liberty forthwith.

There remain two other aspects of this case which call for remark. The first accused who, as the learned Magistrate found, was the instigator of the crime, pleaded guilty and was convicted on his plea. He was then called as a prosecution witness and his evidence was chiefly responsible for the convictions of his coaccused. He was not however sentenced until they had all completed their defences. We think this an undesirable practice and consider that where a prisoner has pleaded guilty and is to be called as a witness for the Crown against a co-prisoner it is desirable to sentence him before proceeding with the trial of his co-prisoner for it he has not yet been sentenced his evidence may be affected by his anticipation of its likely effect on the sentence. We note that this practice has recently received the express approval of the Court of Criminal Appeal in England (Rex v. Payne, 34 Cr. App. Rep. 43).

The second point is that there was quite clearly no evidence to justify the conviction of the third accused before the District Court on the charge of storebreaking and theft. He should never have been charged with this offence but might have been charged with receiving. It is not necessary or advisable for us to express an opinion as to whether the evidence would have warranted a conviction on that charge. He has not appealed and this Court has no power to intervene, but we draw attention to the matter as the High Court has power, if an appeal should be lodged, to enlarge the time for appealing limited by section 328 of the Criminal Procedure Code.