Rex v Abdulla (Criminal Appeal No. 114 of 1943) [1943] EACA 61 (1 January 1943)

## APPELLATE CRIMINAL

## BEFORE SIR JOSEPH SHERIDAN, C. J., AND BARTLEY, J.

## REX. Respondent $\mathbf{v}$

## RAJAB s/o ABDULLA, Appellant Criminal Appeal No. 114 of 1943

Criminal Law-Receiving stolen property-Effect of absence of receiver at the time when goods delivered—Application of the rule in Rex v. Schama and A hramovitch

The facts appear sufficiently from the Judgment.

*Held* $(1-10-43)$ .—(1) That although the stolen property was left at the appellant's shop in his absence, when he arrived at his shop and found the goods deposited there and having reason to believe the goods were stolen, the receiving was complete as soon as he formed the intention of accepting them.

(2) That the case was not one of a presumption of guilt based on recent possession of stolen property distinguishing it from the case of Schama and Abramovitch and the magistrate was entitled after hearing witnesses for the prosecution and the defence and weighing the evidence, to come to the conclusion that the evidence for the prosecution should prevail, disbelieving the explanation of the appellant as to how he became possessed of the stolen property.

Kaplan and Madan for the appellant.

Stacey, Crown Counsel, for the Crown.

JUDGMENT.—The appellant appeals from a judgment of the learned Resident' Magistrate, Nairobi, Mr. Good, convicting him of receiving stolen property with guilty knowledge and sentencing him to two years' hard labour and a fine of Sh. 500 with six months hard labour in default.

The theft of the property was clearly proved and it was admitted by the appellant as well as proved that the property was found in the possession of the appellant. The question for decision is whether the appellant in receiving the property knew or had reason to believe that it had been stolen.

The principal evidence against the appellant is that of two thieves, Muthami and Wallace. Corroboration of their evidence was required for a conviction, and the Magistrate found that corroboration in the evidence of Inspector Varma. This witness on a search of the appellant's house discovered the stolen property concealed, some of it in a wooden box under some personal clothing, the rest of it on appellant's bed covered by blankets. The appellant gave conflicting accounts as to how he became possessed of the property, in one of those accounts stating that he had bought the property for Sh. 60. This was the evidence of Inspector Varma.

When the appellant gave evidence he said that he had bought Exhibits 1 and 2, blue suiting and black lining, from the sixth prosecution witness, Timotheo, but that he had not bought the third exhibit, 22 yards of Stockport, which he said had been left behind by Timotheo. He stated that he had paid Sh. 60 for Exhibits 1 and 2, which it is admitted would be a reasonable price. The owner of the exhibits said that the value of Exhibit 3 was Sh. $60/50$ , so that if the appellant did buy all three exhibits he was obtaining them at a suspiciously low price.

The Magistrate in finding the accused guilty held, (1) that the stolen property had been left at the appellant's shop at 6 a.m. the same morning as the burglary, (2) that the appellant paid Sh. 60 for goods worth more than twice that amount, $(3)$ that the appellant falsely denied the truth of $(1)$ and $(2)$ . We are of opinion that all three findings are justified by the evidence.

It was submitted on behalf of the appellant that if and when the exhibits were left at his shop by the thieves, the appellant was absent, for this reason alone a conviction could not be had. The Magistrate in considering this point said: "I think that if the accused had reason at all to believe that the goods in this case were stolen he must have had it as soon as he arrived at his shop and found that the exhibits had been deposited there in the early morning and the receiving would have been complete as soon as he formed the intention of accepting them". Leigh E. R. 169

$1.1329$ With this reasoning we agree and the case of *Regina v*. Woodward, Leach & Cave, 122, is an authority on the point. The judgments of Blackburn and Keating, J. J., at pages 126 and 127, are as follows: $-$

"BLACKBURN, J.—The thief left the property with the wife; but, because the husband was absent at the time, the court below entertained a doubt upon the case. There was no guilty knowledge in the husband then; but, as soon as he met the thief, having acquired a guilty knowledge, he approved of and ratified the receipt. That would amount to a receipt with a guilty knowledge. So if a thief were to leave stolen goods with a pawnbroker's apprentice in the absence of the master, and the pawnbroker on his return, being told of the circumstances, and knowing that the goods were stolen, were to say, 'It is all right, put them away', no one could doubt that he would be rightly convicted of receiving stolen property.

KEATING, J.—The agreement for the sale of the goods was not complete until the husband met the thief. Then the transaction was complete. What took place then amounted to a receipt by the husband with a guilty knowledge. If that were not so, it would be almost impossible to convict any receiver who was absent at the time when the goods were actually delivered."

It was argued before the learned Magistrate and in this Court that the appellant having, as it was argued, given an explanation of his possession of the goods which might reasonably be true on the authority of the well known case of Schama and Abramovitch he should have been acquitted; that the Magistrate misdirected himself in not applying the rule in that case.

The Magistrate held that the rule "could have no application for instance to a case where the act of receiving in circumstances from which the court could reasonably come to the conclusion that the receiver must have had reason to believe that the goods were stolen, had been observed by witnesses whose evidence the court as judge of fact believed" and in support of this he referred to Snelling's case, 28 Cr. App. R. 117, where Asquith, J., at page 118 said: "The grounds of appeal have not all been argued. The first was a ground of alleged misdirection and was based on the assumption that the direction contained in the summing up in Schama and Abramovitch (1914) 11 Cr. App. R. 45, ought to be given to the jury in every case of receiving, an assumption to which this Court has often demurred."

We agree with what the learned Magistrate says. In the present case, which is not a case of a presumption of guilt based on recent possession of stolen property distinguishing it from the case of *Schama and Abramovitch*, the Magistrate after weighing their evidence came to the conclusion that the evidence for the prosecution should prevail, disbelieving the explanation of the appellant as to how he became possessed of the stolen property. This he was clearly entitled to do.

The appeal is dismissed.

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