R v Titus Chimweleh (Criminal Review Case 1 of 1933) [1933] ZMHCNR 2 (31 December 1933)

[Vol. I R. v. TITUS CHIMWELEH. A Criminal R eview Case of 1933. Penal Code section 286 (1)— receiving or retaining stolen property—dis­ tinction in nature of the two offences— reference for opinion of High Court on a point of law—power to convict where part of offence is not proved but the part proved amounts to another offence. The accused was charged with receiving stolen property under section 286 (1) of the Penal Code; the evidence showed that the accused had received the property innocently but that subsequently, after learning that the property had been stolen, he retained pos­ session. Section 286 (1) of the Penal Code reads: “ 286. (1) Any person who receives or retains any chattel, money, valuable security or other property whatsoever, knowing or having reason to believe the same to have been feloniously stolen, taken, extorted, obtained or disposed of, is guilty of a felony, and is liable to imprisonment for seven years.” The Magistrate being in doubt as to the meaning and effect of the word “ retain ” referred the question for the opinion o f the High Court. The High Court held that, under the circumstances, there had been a clear retention o f the property after guilty knowledge had commenced and that this constituted “ retaining ” within the meaning of section 286 (1) of the Penal Code. A further question was considered by the High Court, viz., whether on a charge under section 286 (1) o f the Penal Code o f “ receiving ” the accused could be convicted o f “ retaining ” although not charged with the latter offence. The High Court decided that by virtue o f the power conferred by section 82 o f the Magistrates’ Courts Ordinance (Cap. 4), the Court could so convict and directed accordingly. Section 82 o f the Ordinance in question (since repealed) read: “ Where a person is charged with an offence and part o f the offence is not proved but the part which is proved amounts to a different offence he may be convicted o f the offence which he is proved to have committed although he was not charged with it.” Vol. I] The Magistrates Courts Ordinance (Cap. 4) w as repealed and section 82 of that Ordinance was repeated in section 169 o f the Criminal Procedure Code. This section was in tu rn repealed by Ordinance 28 of 1940 and the relevant section is n ow section 168 of the Criminal Procedure Code which reads th u s: “ 168. (1) When a person is charged w ith an offence consisting o f several particulars a com bination o f some only of which constitutes a complete m inor offence and such combination is proved but the remaining particulars are not proved he may be convicted o f the m inor o ffence although he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a m inor offence, he may be convicted of the minor offence although he was not charged with it.” As retaining stolen property could not be said to be a minor offence in relation to receiving stolen property (see B . v. Mumbi Chilao 5 N. R. L. R. 459) it would seem that the dictum in the pen­ ultimate paragraph of the present judgm ent is n o longer law. The present case was referred to in Solomon v. The Queen 1957 R. & N. 600, in which case Somerhough, J. outlines th e distinction between “ receiving ” and “ retaining ” property know ing it to have been stolen. Hall, J .: Section 411 of the Indian Penal Code com m ences: “ Whoever dishonestly receives or retains an y stolen property, knowing or having reason to believe the same to be stolen pro­ perty.” It will be seen that the wording o f section 411 supra is very similar to section 286 (1) of the Penal Code o f Northern Rhodesia. In the footnote to the aforesaid section 411 under the heading “ Dishonestly receives or retains any stolen property ” the following appears: “ To constitute dishonest retention, there m ust have been a change in the mental element o f possession— possession always subsisting animo et facto—from an honest to a dishonest condition of the mind in relation to the thing possessed. A simple illustration is the case o f a pawn-broker who receives prop erty in pledge honestly, and subsequently discovering it to be stolen, notwith­ standing mentally resolves to keep it for his ow n benefit. In the absence of any act amounting to misappropriation or conversion of the property to his own use, the pawn-broker could not be convicted under section 403 o f criminal appropriation, but he might be held to have committed the offence o f dishonestly retain­ ing under section 411.” (Najiballa Khan (1884), P . R . N o. 18 of 1884, pp. 31, 32.) [Vol. I “ Thus a person cannot be convicted of ‘ receiving ’ if he had no guilty knowledge at the time of receipt. But he is guilty of ‘ retaining ’ if he subsequently knows or has reason to believe that the property was stolen. The offence of dishonest retention o f stolen property may be complete without any guilty knowledge at the time of receipt. But in order to support a conviction o f dishonestly retaining stolen property, it ought to be shown that the accused, being in innocent possession o f the property, acquired the knowledge that it was stolen, and thereafter retained it dishonestly.” The dicta in paragraph 3 hereof appear to cover the facts as put before me in the present case. Section 82 o f Chapter 4 reads: “ Where a person is charged with an offence and part o f the charge is not proved but the part which is proved amounts to a different offence he may be convicted of the offence which he is proved to have committed although he was not charged with it.” I am o f opinion that section 82 aforesaid would cover a conviction for “ retention ” in the present case, although the accused was only charged with “ receiving ” . I accordingly affirm the sentence o f two months imprisonment with hard labour.