Ogola v The Queen (Criminal Appeal No. 199 of 1956) [1956] EACA 14 (1 January 1956)

# APPELLATE CRIMINAL

#### Before RUDD, J.

### JOSEPH OGOLA, Appellant

$\mathbf{v}$

# THE QUEEN, Respondent

# Criminal Appeal No. 199 of 1956

Criminal Law-Penal Code, section 289-Unlawful use of vehicles, etc.-Construction of phrase "without colour of right".

The accused, a police constable, was charged with the theft of a bicycle. The trial magistrate found that the evidence did not prove the offence charged, but did prove that the accused had taken the bicycle unlawfully and without colour of right. Accordingly he convicted him of an offence against the Penal Code, section 289. He did not give himself a precise direction as to the meaning of "without colour of right"...

The accused appealed against conviction on the ground that the evidence disclosed no offence.

Held (20-9-56).-(1) That "colour of right" in section 289 does not have the same meaning as "claim of right" in section 263.

(2) That "colour of right" means "an honest belief in a state of facts which, if it existed, would be a legal justification or excuse".

(3) That there was evidence that the accused took the bicycle without colour of right.

Appeal against conviction dismissed.

Appellant absent, not represented.

Webber, Crown counsel, for the Crown.

Case cited: R. v. Fetzer, (1900) 19 N. Z. L. R. 438.

Reported by: I. R. Thompson, Esq., Resident Magistrate.

JUDGMENT.—The appellant appeals from a conviction of unlawfully converting to his own use, but not so as to be guilty of theft, a bicycle contrary to section 289 of the Penal Code and from sentence of five months' imprisonment with hard labour.

The appeal was heard on 19th October and the Court then intimated that the appeal against conviction would be dismissed but that the appeal against sentence would be allowed to the extent that the sentence was altered to a fine of Sh. 50 or in default, one month's imprisonment without hard labour, and the Court announced that it would give its reasons later.

The appellant was a police constable and was originally charged with the theft of the bicycle. The facts are not completely clear, but it would appear from the evidence and from the findings of the trial magistrate that the appellant had been living with a mistress who left his house without notice while he was away on duty on *safari*, and that she took with her some of the appellant's property. She had previously been in possession of the bicycle in question and the appellant believed that she owned a share in it. Subject to the possibility that the appellant's mistress had a share in the bicycle the bicycle belonged to her

brother, Eklas, who lent it to another man. The appellant seized the bicycle from that man intending to keep it until the woman was traced, when he hoped that he would be able to recover his property which he said she had taken with her. He hoped that Eklas would be induced to trace the woman. The appellant made some use of the bicycle while it was in his possession.

The trial magistrate accepted the appellant's evidence that he did not intend to steal the bicycle. The appellant was acquitted of theft, but was convicted of an offence under section 289 of the Penal Code, which reads as follows: -

"Any person who unlawfully and without colour of right but not so as to be guilty of stealing takes or converts to his own use or to the use of any other person any ... cycle ... shall be guilty of a misdemeanour and shall be liable to imprisonment for six months or to a fine of Sh. 3,000, or to both such imprisonment and such fine."

The trial magistrate found that the seizure of the bicycle by the appellant was unlawful and without colour of right. The finding that the seizure was unlawful is certainly entirely correct and the only question of any difficulty in the appeal was as to whether or not the finding that the seizure was made without colour of right is also correct. The magistrate does not appear to have given himself any precise direction as to the meaning of the expression "without colour" of right". He did not find that the appellant had not an honest belief that he was entitled to take possession of the bicycle in the circumstances of the case and, if it were necessary to make a finding upon that point it is, to say the least, by no means clear that the finding would not have been favourable to the appellant. If the expression "without colour of right" is equivalent to the expression "with-<br>out claim of right", which is part of the definition of theft, then, in my opinion, the conviction would have been unsatisfactory and the appeal against conviction should have been allowed.

The only record of a judicial decision upon the meaning of the words "without colour of right", which I know of, is a passage in Burrows Words and *Phrases*, Vol. 1, at page 463, quoting a dictum from a New Zealand decision as follows: $-$

"Then follow the words and without colour of right. This means ... an honest belief in a state of facts which, if it existed, would be a legal justification or excuse. This would be no answer to a civil action, but it is properly made an answer to a criminal charge because it takes away from the act its criminal character. Less than this ... cannot be held to be colour of right."

(per Edwards, J., in R. v. Fetzer, (1900) 19 N. Z. L. R. 438. The full report of this decision is not available in this country, but the dictum appears to be completely in point.

I have considered the matter for myself and with respect I agree with the decision of Edwards, J. I do not consider that it infringes the principle that mens rea is an essential ingredient of a criminal offence. This principle does not excuse a person from criminal liability merely because he is under a mistaken belief as to the law appertaining to a particular action. In the case of theft, of course, the fact that a person takes a chattel in the honest belief that he had a right to do so is a defence even if that belief is based entirely upon a mistake of law. This result follows from the fact that in order to constitute theft the article must be taken without a bona fide "claim of right". But section 289 of the Penal Code, unlike section 263 of the Penal Code, does not use the words "without claim of right" it uses the words "without colour of right" which indicates the possibility of a difference between two offences in that regard, in addition to the

obvious difference between the two offences as regards fraudulent intent as defined in subsection 2 of section 163 which is necessary to constitute theft, but not necessary to constitute an offence under section 289.

As far as the present case is concerned it is quite clear that, even if all the facts believed in by the appellant were true, his seizure and use of the bicycle was entirely unlawful. He was not married to the woman and no question could arise, as far as I can see, of his action being justified under native law and custom. In any case there was no evidence in any native law or custom to justify his conduct in the matter. For these reasons the appeal against conviction was dismissed.

On the question of sentence the fact that the appellant may well have considered that he was entitled to act as he did, even though that was induced by a mere mistake as to the law, is a proper matter to be taken into consideration in mitigation of punishment. In many cases it might justify a very nominal sentence or even a discharge under section 36 of the Penal Code. The most serious aspect of the present case in my opinion was the fact that the appellant was a police constable and there was evidence that he tried to use that fact to his own advantage by purporting that the bicycle was seized by him as a police officer and that Government required the bicycle in order to trace the woman. The trial magistrate found that the constable had clearly used his official position to seize the bicycle. Although this is a serious aspect of the case and the appellant's use of his official position in that way was entirely wrong and most reprehensible. nevertheless the imposition of six months' imprisonment with hard labour as a sentence in this case was unduly severe, and Crown counsel did not support it.

I consider that a sentence of a fine of Sh. 50 is sufficient to meet the requirements of justice in the circumstances of this case and order was made accordingly.