Kehar v Reginam (Criminal Appeal No. 995 of 1954) [1955] EACA 333 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) $\tau = \tau$ and SIR ENOCH JENKINS, Justice of Appeal

## SANTOKH SINGH KEHAR, Appellant (Original Accused)

REGINAM, Respondent

Criminal Appeal No. 995 of 1954

(Appeal from the decision of H. M. Supreme Court of Kenya, Sir Kenneth O'Connor, C. J., and Paget Bourke, J.)

Same facts founding convictions on two counts-Penal Code, sections 21 and 392.

The appellant was convicted on two counts, each laid under section 392 of the Penal Code, for attempting to procure another person to commit an offence.

On the first of such counts he was charged with attempting, between 31st May, 1954 and 2nd June, 1954, to procure P to commit the offence, contrary to section 111 of the Penal Code, of wilfully destroying certain depositions required in Supreme Court proceedings, and, on the second count he was charged with attempting, between the same dates, to procure the same person to steal, contrary to section 274 $(f)$ of the said Code, the said depositions which were in the custody of the Registrar of the Supreme Court.

There was no finding by the trial magistrate that there were separate solicitations to steal and to destroy.

The appellant was sentenced to consecutive sentences.

By section 21 of the Penal Code:— "A person cannot be punished twice" $A = 21$ either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he causes the death of another person....

Held (28-3-55).—The accused had twice been punished for the same act, it not having been shown that, there were distinct acts of solicitation. His desire during the period in question was to achieve the destruction of the depositions to prevent their being used in evidence at a pending Supreme Court trial, and, in order to destroy, it was necessary to page 387.

Appeal allowed to the extent of setting aside the sentence on the first count of soliciting.

Cases referred to: R. v. Dobbs, 18 E. A. C. A. 319; Kabunga s/o Magingi v. R., ante. page

O'Donovan (De Souza with him) for appellant.

Havers for respondent.

$\tilde{\gamma} \to \gamma$

JUDGMENT (prepared by Nihill (President)).—This is a second appeal against the appellant's conviction in the Resident Magistrate's Court at Nairobi on two charges framed as follows-

"Count 2.—Santokh Singh Kehar s/o Gurbux Singh, between 31st May, 1954, and 2nd June, 1954, at Nairobi, in Nairobi Extra-Provincial District, attempted to procure Ramanbhai Patel to commit an offence that is to say, wilfully to destroy the depositions of witnesses recorded in Resident Magistrate's Court, Nairobi, in Criminal Case 1095/54, Regina against O. L. Ward,

being documents required in Supreme Court Criminal Case No. 105/54, Regina v. Ward in evidence, with intent to prevent the same from being used in evidence, being an offence contrary to section 111 of the Penal Code.

Count 3.—Santokr Singh Kehar s/o Gurbux Singh, between 31st May, 1954, and 2nd June, 1954, at Nairobi, in Nairobi Extra Provincial District, attempted to procure Ramanbhai Patel, to commit an offence, that is to say to steal the depositions of witnesses recorded in R. M.'s Court, Nairobi, in Criminal Case No. 1095/54, Regina v. Ward, being documents kept in the custody of the Registrar, Supreme Court, contrary to section 274 (f) of the Penal Code."

It will be noted that the two charges cover the same dates, namely 31st May to 2nd June, 1954, and relate to the same documents, that is to say the depositions of witnesses recorded in Criminal Case 1095/54 of the Resident Magistrate's Court at Nairobi. This is important because the only question really arising on this appeal is whether there is substances in Mr. O'Donovan's submission that in effect the appellant has been punished twice for the same act. Doubtless this argument would never have been put forward to us save for the fact that the Magistrate ordered that the sentences he imposed on the two counts should run consecutively. In the appeal court below their lordships refused to interfere with the discretion exercised by the Magistrate in this respect, and they did so, it is clear from the judgment, on the ground that they considered that the evidence as accepted by the Magistrate had established two different acts of solicitation committed on different dates and with different objects, and that each of these acts constituted a different offence. It is this conclusion of the Supreme Court that has been attacked by Mr. O'Donovan as erroneous. If the Supreme Court were right, this being a second appeal, we are not concerned with the question of sentence, because the sentences imposed were legal ones and the Magistrate had a discretion to order them to run consecutively. On the other hand if, as Mr. O'Donovan has argued, there was no justification in the assumption apparently made by the Supreme Court that the Magistrate had found a separate act of soliciting to steal by the appellant on 31st May, 1954 (Count 3), then the ground on which the court refused to interfere with the discretion exercised becomes untenable, and the further question arises as to whether the Supreme Court has not overlooked that the approaches made by the appellant to R. M. Patel, the chief Clerk of the Resident Magistrate's Court, over the whole period 31st May to 2nd June, 1954, were in effect one act of solicitation with one end in view, namely the destruction of documents to prevent them being used in evidence at a pending Supreme Court trial. Mr. Havers for the Crown has had to concede that the learned Magistrate in his judgment did not find specifically that an isolated act of solicitation to steal was made by the appellant on 31st May. In the absence of any such specific finding and taking into account the wording used in Count 3, we think that no assumption should be made that the Magistrate did so find, and further, that if the appeal court below did in fact so assume, that it was wrong in so doing. First of all we think it pertinent to point out that from the notes taken by the Magistrate of Crown counsel's addresses to him, it is clear that the prosecution never presented the case as constituting separate offences on different days. Doubtless the Supreme Court had in mind the following passage from Mr. R. M. Patel's evidence-

"On 31st May he (the appellant) came to see me in the same office and told me that I had let the accused down by not giving the false evidence in the *Ward case* and I should help him by stealing the record of the *Ward* case from Mr. Gillespie's Chambers, the Resident Magistrate-in order that he may prepare for the Ward case after looking at the statement."

However this was not the only evidence of a solicitation to steal, for Mr. Patel further deposed that on the morning of 1st June the appellant had another talk with him when he again suggested

"that I should steal these depositions and plant them in Mr. Inderjit Singh's house or his car or I should place it in the drawer of Mr. Raoji. Mr. Raoji is Chief Clerk on the Resident Magistrate's Criminal side. He further suggested that after stealing the depositions I should burn them and after burning them I should collect certain burnt fragmentations of them and scatter them in Mr. Raoji's office."

Again Mr. Patel deposed that on the morning of 2nd June the appellant once more urged him to steal the depositions and burn them.

It is because of the above evidence, that, as we have already said, we cannot accepted the assumption that the Magistrate convicted the appellant on Count 3 solely on Mr. Patel's evidence relating to 31st May. In fact there is a good reason why he should not have done so, because, if that evidence is taken alone, a doubt might well have arisen in the Magistrate's mind as to whether it established beyond doubt that the appellant intended on 31st May that the true owner of the depositions should be permanently deprived of them. The learned Magistrate might have thought, and we think with justification, that all the appellant was suggesting on 31st May was that Mr. Patel should take the depositions out of Mr. Gillespie's Chambers, so as to afford him (the appellant) an opportunity of looking at them. Without a definite finding of fact by the Magistrate on this point we do not see how a conviction based of the evidence relating to 31st May only could have been supported. Of course, taking into account the further solicitations to steal made on 1st and 2nd June, the Magistrate had no difficulty in coming to the conclusion that the appellant's intention was to deprive permanently the true owner. The charge as framed in Count 3 was thus fully proved. Had the Supreme Court looked at the matter in this way and had not fallen into the error, as we think of confining the solicitation to steal to the events of 31st May, it may well be that their lordships would have taken a different view as to the propriety of imposing consecutive sentences in this case, and if the matter rested there we should be disposed to remit this case to the Supreme Court for further consideration of this issue. As it is however we have still to consider the submission that although the appellant's actions may, in their legal aspect, have involved the commission of two offences, in effect they amounted to only one act of incitement, Mr. O'Donovan has cited to us the case of $\text{Re} x$ v. Dobbs (18 E. A. C. A. 319) where an administrative officer was convicted of three offences arising out of one transaction and was given three sentences of imprisonment all to run concurrently. In respect of one of the offences, which constituted a breach of the Game Ordinance, this Court quashed the sentence, on the ground that the offence of being in unlawful possession of Government trophies contrary to the provisions of the Game Ordinance flowed directly from the officer's act in unlawfully converting the trophies to his own use. In the course of the judgment this Court said this-

"It is as regards the sentence imposed by the learned Magistrate on the second count that we think an error was committed. Taking into account the official position held by the appellant it is evident to us that the charge of being in unlawful possession of game trophies must have failed had the prosecution not been able to prove an act of conversion. Put in another way it was the appellant's act of converting the tusks to his own use that put him into unlawful possession of the tusks, which being game trophies constituted a special offence under the Game Ordinance. This indeed is what the Magistrate found and he was right in doing so. Whilst it was open to the prosecution to charge him with the two offences he cannot be punished twice

for the same act. That is clear statutory law. (See section 21 of the Tanganyika Penal Code and the proviso to section 3.) Cases may often arise when it may be extremely difficult to determine whether two offences flow from the same act or omission but this is not one of them. The learned Magistrate then should not have passed sentence on the appellant both on the first and second counts."

The position is similar in Kenya under section 21 of the Kenya Penal Code.

In Dobbs' case this Court had no difficulty in finding that it was the act of conversion which also involved a commission of a special offence under the Tanganyika Game Ordinance. The instant case is not so simple and falls rather into the category of cases where it may be difficult to determine whether the person accused has or has not committed two separate acts or omissions constituting different offences. Mr. O'Donovan has argued strongly that looking at the matter broadly it is quite apparent what the appellant was trying to achieve during the period 31st May to 2nd June and that this was the destruction of material which he knew would be required as evidence in a judicial proceeding; he knew also that this material was in public custody. In order to destroy, it was necessary to steal, whether the destruction was to be done by Mr. Pate!, or by the appellant, or by some third party. The crux of the incitement to Mr. Patel accordingly was "help me to get these depositions destroyed", and this constituted one act of incitement. After some deliberation we have come to the conclusion that we should accept this submission. Looked at in this way the instant case bears some resemblance to the very recent case of Regina v. Kabunga s/o Magingi, ante, page 387, where this Court held that a person convicted of incitement could not at the same time be convicted and sentenced on a charge alleging an attempt to conspire arising out of one act of incitement. Here too, we think, that once it is conceded that the Magistrate, in convicting the appellant on the third count, did so in respect of the whole period named in the charge and not in respect only of what the appellant said to Patel on 31st May, it becomes impossible to break up the appellant's solicitation and to find with certainty that he was guilty of two separate and distinct acts of solicitation. Accordingly one of the sentences imposed on this appellant must be set aside. He has been sentenced to two years' imprisonment with hard labour on Count 2, and to three years' imprisonment with hard labour on Count 3. The offence covered by Count 3, since it involved a solicitation to steal property from a public office is much the more serious offence and exposed the offender to imprisonment for as long a term as fourteen years.

It is true that we have accepted the view that the intention behind the appellant's approaches to Patel was the destruction of evidence, which is the offence covered by Count 2, but the appellant knew well that to achieve this, the documents had to be stolen from a public office; he has, therefore been rightly convicted of having solicited Patel to commit the offence set out in section 274 (b) of the Penal Code. Had the Magistrate observed the correct principles when he came to pass sentence he would undoubtedly have selected the graver of the two charges proved and he would have been right in so doing. Indeed we think it probable that he would have imposed a sentence in excess of three years and in this respect the appellant can consider himself fortunate.

We allow this appeal to the extent that we set aside the sentence imposed on Count 2. In the result the appellant's term of imprisonment is reduced from five to three years with hard labour.