Choitram v Regina (Criminal Appeal No. 408 of 1952) [1953] EACA 28 (1 January 1953)

#### APPELLATE CRIMINAL

# Before HEARNE, C. J. and RUDD. J.

#### RAMCHAND BHEEROMAL CHOITRAM. Appellant

# REGINA. Respondent

#### Criminal Appeal No. 408 of 1952

Criminal Law—Penal Code sections 124 and 22 (d)—Conviction for counselling<br>another to give false information to the police—Person counselled making different statements—Whether offence advised committed—Whether statement made false—Whether counselled statement false—Intention.

Appellant was charged with an offence against section 124 of the Penal Code. namely, giving false information to the police that a number of diamonds had been extracted from a necklace by an employee of a jeweller. The appellant made a statement to the police that he had handed a diamond necklace to an agent in Mombasa with instruction to have diamonds removed from it by a jeweller and to bring the diamonds to him, which had been done. It was alleged by the prosecution that the appellant counselled the agent to confirm that statement. The agent made two statements to the police, first that he had never received a necklace from the appellant and, second, that he had taken the appellant to a jeweller whose assistant had removed the diamonds and handed them to the accused. The magistrate convicted, making use of section 22 $(d)$ of the Penal Code. The appellant appealed. At the hearing, the appellant submitted that even if the appellant had counselled the agent to make a false statement to the police, the statement in fact made, even if false, was not that counselled.

Held (26-10-53).—(1) The material part of the appellant's statement to the police, which he desired that the agent should confirm, was information that a number of diamonds had been extracted from the appellant's necklace at the shop of a jeweller in Mombasa and if the appellant counselled that statement and it was to his knowledge false, he was properly convicted.

(2) Even if, to add verisimilitude to his statement, the agent had, unknown to the appellant, added details, the mode of committing the offence had differed but slightly from the mode advised by the appellant and he could not in law be excused from liability for it.

(3) There was evidence, which the magistrate, was entitled to accept, that the statement made by the agent was false and that the appellant had counselled him to make the material part of that statement, knowing it to be false, and that both were actuated<br>by the intent charged. The appellant was rightly convicted.

Appeal dismissed.

# Madan for appellant.

Pearson, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted of an offence contra section 124 of the Penal Code. There were several grounds of appeal on which the 1st and 8th were not argued. The other grounds are interrelated and in order to appreciate them a brief statement of the facts is necessary. The appellant had made a statement to the police at Nairobi that he had handed a necklace to the third accused in Mombasa, with instructions to him to have the diamonds removed from it by a jeweller, and to bring the diamonds to the appellant, which the third

accused did. This statement will be referred to as statement A. There is ample evidence from which it could clearly be inferred that that was a statement which the appellant desired that the third accused should make to the police at Mombasa and that steps were taken by the appellant to ensure that the third accused should make that statement to the police. The third accused, however, had in the meantime made a statement to the police in which he said, inter alia, "I can say on my honour I have never received a necklace ... from R. B. Choitram (the appellant)". But he made a further statement to the police to the effect that he had taken the appellant to a jeweller and that the appellant had handed a necklace to the jeweller whose assistant removed the diamonds which were then handed to the appellant. This statement will be referred to as statement B. The jeweller in question, as subsequently transpired, was alleged to be one Viraratna and his assistant one Girashamy. After the third accused had made statement B, the appellant who, as the magistrate found, it was safe to conclude, had heard of statement B, made a statement to the police in Nairobi which purported to confirm the truth of statement **B**, the only variation being that the goldsmith himself (the jeweller) and not the assistant removed the stones (exhibit 14). This statement will be referred to as statement C. On these facts it was argued the appellant could not be convicted for the reason that, even if the appellant through his agents at Mombasa had counselled the third accused to make a statement to the police in accordance with statement A which the appellant had made to the police, the appellant had not counselled the third accused to make statement B. This argument takes no account of the particulars of the charge. The particulars were the giving of "false information that a number of diamonds were extracted from a necklace by an employee of a jeweller, Don David Veratatue". The material part of statement A which the appellant desired that the third accused should confirm in a statement to the police, as well as the material part of statement B and statement C, was the information that a number of diamonds had been extracted from the appellant's necklace at the shop of a jeweller in Mombasa, and if the appellant counselled that statement and it was to his knowledge false, he was propely convicted, even if, in order to add verisimilitude to his statement, the third accused had, unknown to the appellant, mentioned the name of the alleged jeweller, and even if statement B and statement C differ on the question of whether the jeweller or his assistant extracted the diamonds. Where the offence which has been advised is committed, and the mode of committing that offence differs as in this case but slightly from the mode advised by the appellant, he cannot in law be excused from liability for it. We have examined the recorded evidence with great care and in our opinion the magistrate was amply justified in holding that the statement made by the third accused was false, that the appellant, subject to what we have said, had counselled him to make that statement, knowing it to be false, and that both were actuated by the intention to set out in the particulars of the charge. In so far as the grounds of appeal and the arguments addressed to us challenge these findings they are, in our opinion, without merit.

The appeal fails and is dismissed.