Queen v Butt (Criminal Revision Case No. 2706 of 1953) [1954] EACA 187 (1 January 1954)

## CRIMINAL REVISIONAL JURISDICTION

Before Sir Hugh Holmes, J.

THÉ QUEEN, Prosecutrix

$\overline{v}$ .

MOHAMED A. H. BUTT, Convict

## Ex parte: DEPUTY PUBLIC PROSECUTOR, Applicant

Criminal Revision Case No. 2706 of 1953

Criminal Procedure and Practice—Order releasing convicted person on probation -Criminal Procedure Code, section 363—Application by Attorney-General for enhancement of sentence—Whether Court has jurisdiction to entertain application—Whether application competent—Section 354 (1) $(b)$ —Revising Court's power to reverse order and remit for sentence—Whether Probation Order made under Probation of Offenders Ordinance (Cap. 79), section 3 (1) or Criminal Procedure Code, section 340—Whether willingness by convict to enter into probation bond is a bar to revision—Whether appeal competent after revision—Whether Probation Order valid unless made under conditions legislated—Order null—Remit for sentence—Direction that sentence not to be nominal.

The accused, who was employed as a Clerk in the Supreme Court, was convicted of official corruption contrary to section 93 (2) of the Penal Code, by the Resident Magistrate, Nairobi, in that he corruptly tendered Sh. 10,000 gratification to a police officer to withdraw a criminal charge. The magistrate, instead of imposing any sentence, ordered the convict to be placed on probation. The Deputy Public Prosecutor, by letter, then requested the Registrar of the Supreme Court to bring this Probation Order to the notice of the Supreme Court with the object of obtaining enhancement of sentence under the provisions of section 363 of the Criminal Procedure Code. In accordance with the provisions of section 363 (2) the case was set down for hearing in revision. Counsel for the convict objected to the jurisdiction of the Court on the ground that there was no sentence to enhance. a Probation Order not being a sentence. Crown Counsel submitted that, as the proceeding was in revision, the Court had jurisdiction to make an order reversing the Probation Order and remitting the case to the magistrate for sentence. The convict further contended that because he had signed a Bond under section 340 of the Criminal Procedure Code, this was in the nature of a binding agreement between himself and the administration of justice which could not be varied without his consent. He also argued that his willingness to comply with the Probation Order had deprived him of all possibility of appeal, so causing him an injustice if the order were reversed. The Court presumed for the benefit of the argument that the magistrate had made the order under the provisions of section 3 (1) of the Probation of Offenders Ordinance (Cap. 79) and went on to consider if the magistrate had facts before him which fulfilled the conditions of the legislation enabling him to make a probation order.

**Held** (31-3-54).—(1) Whether a Probation Order purports to be made under the provisions of section 340 of the Criminal Procedure Code or section 3 (1) of the Probation of Offenders Ordinance (Cap. 79), it does not amount to a sentence of imprisonment. The objection of the convict was, properly, not to jurisdiction but to the procedure and form of the order asked for by the Crown. No special form of procedure was enjoined in a matter of revision and the jurisdiction of the Court did not depend on any special form of application by any interested party. The proceeding was in revision and the Supreme

ł

J

Court had power to review any order of a subordinate court simply by reason that a any order it was empowered to make in accordance with the powers conferred by section 363 of the Criminal Procedure Code. The order which the Crown submitted the Court should make was an order which the Court had ample jurisdiction to make in accordance with the provisions of section 363 $(1)$ and section 354 $(1)$ $(b)$ of the Criminal Procedure Code.

(2) The conception of an order of a court in criminal matters as a contract between the administration of justice and an accused person which cannot be reversed or varied because the accused has expressed his willingness to comply with the order was novel and misconceived and it could not be supposed that the proviso to section 3 (1) of the Probation of Offenders Ordinance was ever intended to introduce such a strange principle. An order of the court remains an order of the court whether the convicted person is willing to comply with it or not and it can be reversed or varied by the methods and procedure recognized by the law. A Probation Order stands in no different category.

(3) Even if the Probation Order were reversed and the case sent back for sentence, the convict would not be deprived of his right of appeal; for he could then appeal against<br>sentence within the period laid down by section 349 of the Criminal Procedure Code.

(4) As the convict appeared to believe that the terms of section 3 (1) of the Probation of Offenders Ordinance were more favourable to his plea than section 340 of the Criminal Procedure Code, the Court would presume that the magistrate had made the probation<br>order under the provisions of the former section. The former section laid down certain conditions which, if all or any were fulfilled, entitled the magistrate, instead of passing sentence, to make a Probation Order. None of the facts before the magistrate and none of his reasons justified the making of a Probation Order, for none of the conditions<br>legislated were fulfilled. Where a Probation Order is made without fulfilment of the conditions, it is made without jurisdiction and is null. The case was remitted to the magistrate to pass sentence.

(5) As there were no reasons justifying release on probation and no extenuating circumstances; but, on the contrary, aggravating ones, the Court would direct the magistrate that the penalty to be inflicted was not to be a nominal one.

Probation Order set aside as a nullity and case remitted to the magistrate to pass a sentence, with a direction that the sentence should not be a nominal one.

Cases cited: Pickett v. Fesq. (1949) 2 A. E. R. 705; Phillips v. Evans. (1896) 1 Q. B. 305.

Somerhough, Q. C., Deputy Public Prosecutor, Applicant.

## O'Brien Kelly for convict.

[Editor's Note. This decision and order were confirmed on appeal by the Court of Appeal for Eastern Africa in Criminal Appeal No. 577 of 1954, unreported.]

DECISION.-By a judgment of the Resident Magistrate, Nairobi, of 22nd January. 1954, M. A. H. Butt, a Court Clerk of the Supreme Court, Nairobi, was convicted on a charge under section 93 (2) Penal Code of official corruption in that he on 19th November, 1953, corruptly gave to A. S. P. Baker, a person employed in the Public Service, the sum of Sh. 5,000 in order that this officer should withdraw a criminal prosecution against one "X", who had been charged by the said officer in discharge of the duties of his office, of an offence under the Dangerous Drugs Ordinance.

On 13th February, 1954, the Resident Magistrate, instead of sentencing him at once to any punishment, ordered him to be placed on probation for three years.

By letter of 4th March, 1954, the Deputy Public Prosecutor requested the Registrar of the Supreme Court to bring this Probation Order to the knowledge of the Supreme Court for the purpose of obtaining an enhancement of the sentence, under the provisions of section 363 of the Criminal Procedure Code.

In accordance with the provisions of section 363 (2) of the C. P. C., the case was set down for hearing before the Supreme Court, Mr. A. G. Somerhough, Q. C., appearing for the Crown and Mr. O'Brien Kelly for the convicted person, who was also present in person.

Counsel for the convicted person first objected to the jurisdiction of the Court on the grounds that the Crown's application for enhancement of sentence was misconceived, as there was no sentence to enhance, a Probation Order not being a sentence.

It is certainly true that an order releasing a convicted person on probation is not a sentence of punishment, whether the court makes the order under the provisions of section 340 of the Criminal Procedure Code, or of section 3 (1) of the Probation of Offenders Ordinance (Cap. 79, Laws of Kenya), for in the first case the section is entitled "Power to release on probation *instead* of sentencing to punishment", and in the second case the proviso to section 3 (1) of the Ordinance provides for the sentencing of the convicted person for the original offence, in case of non-compliance with the order, and sub-section (2) of the same section speaks of such an order as being, in lieu of sentence of punishment. Nevertheless, the objection of the convicted person in this case is not in reality an objection to the jurisdiction but rather to the form of order asked for by the Attorney-General.

In matters of revision the jurisdiction of this Court to review any order of a subordinate court depends simply on the fact that the record has come to its knowledge.

Once it has done so, the court has jurisdiction to make any order it is empowered to make in accordance with the provisions of section 363 of the Criminal Procedure Code.

There is no special form of procedure in the matter of revision, and the jurisdiction of the court does not depend on any special form of application by any interested party.

In the present case, if the Attorney-General's contention is right, the appropriate order for this Court to make would be to reverse the Probation Order made by the Resident Magistrate and to remit the case to him with a direction to pronounce the sentence, which he has not yet pronounced, for the offence of which he has convicted the accused.

This is, in fact, the Order, which the Crown has proposed to this Court to make, and is an Order, which this Court has ample jurisdiction to make in accordance with the provisions of sections 363 (1) and 354 (1) $(b)$ of the Criminal Procedure Code.

The actual issue, which the court has to decide in the present proceedings is whether, on the facts of the case, the Resident Magistrate had the power to make a Probation Order either in accordance with the provisions of section 340 of the Criminal Procedure Code or of section 3 of the Probation of Offenders Ordinance. The Crown contends that the order in the present case was made by the magistrate in virtue of the powers enabling him to do so conferred by section 340 of the Criminal Procedure Code, and on the other hand the convicted person contends, that it was made under section 3 (1) of the Probation of Offenders Ordinance. There is nothing in the record, the judgment, nor on the face of the order itself, to show which section it was made under. The Bond given and signed by the convicted person himself is on a form entitled "Bond under Section 340 of the Criminal Procedure Code", which is natural enough as this section applies to First Offenders, and the convicted person in the present case is admittedly a first offender.

At first sight it would appear immaterial which section has been applied, as the terms of both are practically the same, but the convicted person appears to think that the Probation of Offenders Ordinance is more favourable to his case on account of the proviso to section 3 (1), which provides that the court shall not make such an order unless the offender expresses his willingness to comply with its provisions.

He contends that having expressed his willingness to comply with the order. which he has done, by the words "Order understood and receipt acknowledged" signed by him at the foot of the Order, he must have been considered to have consented to the Order, which then becomes some sort of binding contract, or as his counsel termed it "bargain", between him and the whole administration of justice, which cannot be varied without his consent.

This conception of an order of a court in criminal matters as a contract between the court and the accused which cannot be reversed or varied, because the accused has expressed his willingness to comply with the order is, of course, entirely novel, and misconceived, and it cannot be supposed that the proviso to section 3 (1) was ever intended to introduce such a strange principle.

An order of a court remains an order of the court whether the convicted person is willing to comply with it or not, and it can be reversed or varied by the methods and procedure recognised by the law, as it often has been in the case of probation orders.

Counsel for the convicted person, in fact recognized this in withdrawing the term "bargain" as applied to this order and then expressed his real grievance in saying that his expressed willingness to comply with the terms of the order had deprived him of all possibility of appeal thus causing him an injustice if the order were reversed.

This grievance is entirely imaginary, as, if the probation order were reversed and the convicted person subsequently sentenced, he could then appeal against that sentence within the delay laid down in section 349 of the Criminal Procedure Code from the date of that sentence. This Court, however, will presume that the Resident Magistrate made the Probation Order in the present case in acordance with the provisions of section 3 (1) of the Probation of Offenders Ordinance.

This section entitled the magistrate to make a Probation Order in the case of a convicted person when "having regard to the youth, character, antecedents, home surroundings, health and mental conditions of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation".

In that part of his judgment headed Sentence, which in fact contains no sentence of punishment, a point on which Counsel for the Crown and the convicted person agree, the learned magistrate seems to have paid too little attention to these conditions, which would empower him to make the order of release.

He has based himself entirely on a report of the probation officer, which he says has been presented on the convicted person's behalf, and on statements quite legitimately made by Counsel for the accused, which that Counsel would be the last to pretend to be based on any evidence given in court, and in fact no evidence for the defence was given in court.

The first consideration on which the learned magistrate bases himself is that the convicted person's future prospects in his department have been ruined. This is certainly true, and might be taken into account in fixing the amount of punishment to be imposed, but it is not a reason, which the section gives, as authorizing the court to release the offender on probation.

The second consideration that the offence did not involve any venality on the offender's part seems to be based on a simple statement made in the probation officer's report, it is unsupported by any evidence given in court, and is so highly improbable as to be almost incredible. In any event this fact, even if it were proved, is not one which would empower the court to have released the offender on probation under the terms of the section. The third consideration, with which the Resident Magistrate seeks to justify the order is one advanced by Counsel for the convicted person namely that he was more a fool than a knave, is also unsupported by evidence of any kind. In fact the certificates attached to the probation officer's report and the position reached by the offender in the branches of the Public Service, in which he had been employed, show that he was no fool. but an extremely intelligent man, who understood what he was doing perfectly well and knew the consequences of his actions. Even if he were a fool, however, this is not a reason which the section lays down as authorizing release on probation. unless one classes it under the heading mental conditions, but as I have said all the elements of proof in the file, show that the convicted person's mental conditions in this case were perfectly sound. The last fact, given by the magistrate to justify his order, was, that this case will be a lesson to the offender apart from any penalties, might be a reason for diminishing the extent of the penalty, but is not one which the section admits as justifying a release on probation.

In fact, one can discard straightaway in the present case youth, antecedents, home surroundings, health and mental conditions of the offender as justifications for a release on probation. He is not young, and according to the probation officer, he is of good education and standing and there is nothing in his antecedents or home surroundings, which could be, in any way, conducive to crime.

As for character, it is true, that up to the time of his offence, he had inspired confidence in his teachers and employers and earned good certificates of character from them. The type of offence the convicted man has committed however has destroyed that character at one blow, and must have shown these people that they were mistaken.

This case, in fact, resembles that of a fraudulent trustee, who, on account of a life-time of good character, is entrusted with-funds for that very reason. When he embezzles those funds his previous good character, which inspired confidence in people, is rather an aggravation of the offence than an excuse for it.

In this case the convicted man, because of his apparent good character was entrusted with something more valuable than funds. In perhaps a minor way, the integrity of the administration of justice in the country, which is the foundation of the State, was in his charge. That a man in such a position should even imagine, that the highest officers in the police were corruptible is enough to shake any ordinary citizen's faith in that integrity. In his case then, as in that of the fraudulent trustee, his previous good character aggravates his offence, and can be no justification for releasing him on probation. In the case of Pickett v. Fesq (All England L. R. 1949 2 page 705) the Court of Criminal Appeal reversed a Probation Order made by the magistrates under section 1 of the Probation of Offenders Act. 1907, which is drafted in the same terms as section 3 of the Kenya Ordinance. This was a case of not very serious breach of the Currency Regulations by a woman, with whom the court expressed every sympathy, who had what Lord<br>Goddard described as a good character in the "police court sense" but the court sent the case back to the magistrates for a penalty to be inflicted and a direction that the penalty was not to be a nominal one. The present case is a far stronger one than that of Pickett v. Fesq. As to the nature of the offence in this case, the Resident Magistrate recognizes quite rightly its extreme gravity, and it is certainly not one to justify a release on probation in itself. Even if it were, it has been held in England in the case of Phillips v. Evans, (1896) 1 Q. B. D. 305 that in such a trivial case as the possession of $a$ dog without a licence or exemption certificate, a release without conviction or penalty was not justified under the Summary. Jurisdiction Act, 1879, section 16, if the other reasons justifying such a release do not exist. There are in this case no extenuating circumstances. Those cited as such in the probation officer's report have already been dealt with, and it has already been shown that in the present case, the Court considers them aggravating rather than extenuating circumstances.

For these reasons the Court in application of the provisions of sections 363 and 354 (2) (b) of the Criminal Procedure Code, reverses the Probation Order in the present case and consequentially orders that the case shall be remitted to the Resident Magistrate to pronounce a sentence of punishment on the convicted person found guilty by his judgment.