Rex v Aziz and Khan (Criminal Appeals Nos. 280 and 281 of 1947) [1948] EACA 14 (1 January 1948)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR G. GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), andi BOURKE, J. (Kenya)

REX, Respondent (Original Prosecutor)

ν.

## (1) ABDUL AZIZ, (2) BABU NAWAB KHAN, Appellants (Original Accused<sup>7</sup>) Nos. 1 and $2$ )

Criminal Appeals Nos. 280 and 281 of 1947

(Appeals from the decision of H. M. High Court of Uganda)

Criminal procedure—Enhancement of sentences on appeal—Opportunity to begiven to accused to show cause against enhancement.

Upon hearing an appeal against conviction and sentence the learned Judgeenhanced the sentences of the appellants. Crown Counsel had not asked for enhancement of the sentences.

Held (19-1-48).—That an Appeal Court should not enhance a sentence without giving the appellants an opportunity of showing cause against enhancement.

Sentences reduced.

Appellants absent, unrepresented. Holland, Crown Counsel (Kenya), for the Crown.

$\Omega$

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—The two appellants,. along with two other Indians, were convicted in the Resident Magistrate's Court at Kampala of assaulting one Masudi Mugenyi by discharging a shot-gun. thereby causing him actual bodily harm contra section 239 of the Penal Code. This charge was substituted by the Resident Magistrate for a charge of attempted murder after the case for the prosecution was closed. Up to that stage the proceedings had been by way of preliminary investigation of the more seriouscharge. The Magistrate at this stage recorded as follows: -

"Having heard the evidence for the prosecution I am of opinion that: the offence is of such a nature that it may suitably be dealt with under the powers possessed by this Court."

A charge under section 239 was then framed; the four accused persons. pleaded not guilty; witnesses were recalled and cross-examined as required by the defence; all four accused were found guilty and sentences were imposed on each of the appellants of six months' imprisonment with hard labour. The other two accused were sentenced to a fine with imprisonment in default.

The accused all appealed to the High Court of Uganda which quashed the convictions and sentences as regards the third and fourth accused, dismissed the appeals against convictions of the present appellants, but enhanced the sentences of the first appellant to 18 months' imprisonment with hard labour and of the second appellant to two years' imprisonment with hard labour. From the enhancement of the sentences the present appellants appeal to this Court.

The appellants in their joint Memoranda of Appeal put forward the following grounds of appeal:-

"1. That the learned Judge misdirected himself in law in enhancing: the sentences of the appellants without prior notice having been served upon the appellants.

2. That the learned Crown Counsel in the course of his argument at no time either suggested or submitted that the sentences of the lower Court were not proper and sufficient.

3. That the appellants had no opportunity whatsoever of showing cause to the contrary and the order made by the learned Judges is bad in law.".

One of the appellants' ground of appeal in their appeal to the High Court was that the sentences were excessive. Where that is so, it is clear that the Appeal Court has the power to reduce or enhance the sentences as justice may require. We think, however, that an Appeal Court in such circumstances should not enhance sentences without giving the appellants an opportunity of showing cause against enhancement where, as in this case, Crown Counsel appearing for the respondent in the Court below did not ask for enhancement. If in reply to the appellants' advocate's address in the Court below Crown Counsel had asked for enhancement that of course would have given the appellants' advocate in reply the opportunity of showing cause and the Court below could properly have enhanced sentences having heard both sides on the question. In the present case the Court below heard neither side of this question.

Apart, however, from that consideration we draw attention to the findings of fact by the Resident Magistrate which have not been assailed, namely:—

"I am satisfied that he raised the gun to a firing position in order to frighten the boys, as even a first-class marksman would not fire at a human target which was moving and which, owing to the interposition of the body of a friend between the gun and the target, presented only part of two arms at which he could aim.

Although second accused had no intention of firing the gun it seems clear that it was accidentally discharged—a thing which not infrequently happens when people play with firearms."

In view of those findings of fact we do not consider that the sentences imposed by the Resident Magistrate were so inadequate as to justify the Appeal Court in interfering with his discretion as to sentences.

We therefore allow the appeal and set aside the judgment of the Court below insofar as it enhances the sentences on the appellants. As the appellants have been in custody since 21st April, 1947, we consider it just and fair to order that they be released forthwith, and it is so ordered.