Rex v Din (Cr. App, 125/1933.) [1937] EACA 68 (1 January 1937)

Full Case Text

### COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J. Ag. P. (Uganda), SIR JOSEPH SHERIDAN, C. J. (Tanganyika), and LUCIE-SMITH, Ag. C. J. (Kenya).

## REX (Respondent).

## JAMAL-UD-DIN, (Appellant).

# Cr. App. $125/1933...$

- Bankruptey Ordinance, 1930—Order of Court authorizing prosecution of a debtor—Criminal Procedure Code, section 197 (1) and section $289$ (1) in relation to statement of accused and evidence on oath—Sections $121$ , $342$ and $346$ as to granting bail and effect of bail on sentence. - Held (2-1-34).—(1) That the entry of a nolle prosequi on a particular charge under the Bankruptcy Ordinance does not discharge the order made under section 141 of that Ordinance sanctioning the prosecution of a debtor.

(2) That as section 289 (1) of the Criminal Procedure (Kenya) Code stands at present, and notwithstanding the provisions of section 154 (8), there is no sanction in the Supreme Court for an accused person making an unsworn statement at the trial, but that the intention of the section is that an accused person may give evidence on oath.

(3-1-34).—(3) That the Supreme Court has no power to grant bail pending an appeal from that Court to the Court of Appeal, and that section 121 (3) of the Criminal Procedure Code must be read with sub-section (1); nor can power be inferred in the Supreme Court to grant bail on an appeal from that Court under section 346 of the Criminal Procedure Code, as an application for bail in these circumstances is de

(4) That the enhancement of a sentence by the Court of Appeal to rectify an irregularity in the Supreme Court would be an abuse of the powers of the Court of Appeal.

Schwartze (Malik with him) for Appellant.

Lewey and Branigan for Crown.

Schwartze.—The Supreme Court, sitting as a Bankruptcy Court, authorized the prosecution of the appellant for certain bankruptcy offences under section 141 of the Bankruptcy Ordinance. The appellant was duly committed for trial and an information was filed by the Attorney General. Under the provisions of section 80 of the Criminal Procedure Code, the Attorney General entered a nolle prosequi, and the accused was discharged. Thereafter a new information was laid. On the authority of Halsbury, Vol. 19 at page 679 (Article 1445), the filing of a nolle prosequi puts an end to a particular prosecution, and the action of the Attorney General in adopting that course operated to discharge the original order for prosecution under section 141 of the Bankruptcy Ordinance: Rex v. Allen, 121 E. R. 929 at 931. The trial Judge refused to admit a written statement

tendered by the accused at the trial at the close of the prosecution. A written statement may be tendered by an accused person in lieu of an oral statement notwithstanding that such statement had been prepared by counsel for the defence on the instructions of the accused: Rex v. Elliott, 2 C. A. R. 171; Rex v. Parker, 18 C. A. R., 14; Criminal Evidence Act, 1898, section 1. The right to make a statement must be implied to include a written statement.

Branigan.—Referred to Rex v. Mitchel, 3 Cox 93 at 115. In regard to the point as to whether a nolle prosequi discharged the order to prosecute, an information is equivalent to a true bill of a grand jury, and therefore there was no need to apply for further sanction to prosecute before withdrawing the information and substituting another which was more in conformity with the offences committed by the accused. In cases quoted by Mr. Schwartze, the accused person was not represented, and personally wrote out the statement referred to, which could be put in under the English Act but not under section 289 of the Kenya Criminal Procedure Code. Supported the conviction as being in accordance with the evidence, and distinguished the case of Ex parte Brett (In re Hodgson) (1875), 1 Ch. D. 151, from the present case. Rex v. John Stone Thomas (1870), 22 L. T. R. 128. Section 15 of the Debtors Act.

Schwartze replied.—Accused, in addition to carrying on a retail business, was also a wholesale trader.

The appeal was dismissed.

Lewey thereupon asked that the Court should order that the sentence should run from the date of the dismissal of the appeal, as the accused had been on bail since 4th October, 1933the date of conviction.

Schwartze.—The Supreme Court has no power to grant bail. pending an appeal from a conviction of that Court, and it is important that the Court of Appeal should define the powers of the Supreme Court as to the granting of bail. Sub-section (3) of section 121 of the Criminal Procedure Code must be read with sub-section (1). Section 342 of the Criminal Procedure Code relates to appeals from subordinate Courts to the Supreme Court, and the aid of that section cannot be invoked. Section 346 of the Criminal Procedure Code cannot be interpreted to vest power in the Supreme Court to grant bail on an appeal from itself. That section must be read to mean that the power to grant bail on an appeal to the Court of Appeal is vested in the latter Court only. The effect of the irregular granting of bail by the trial Judge in the Supreme Court was that in effect the appellant had been serving his sentence although at large. The Court of Appeal Order in Council could not be interpreted to vest the Court of Appeal with powers other than those contained in the law of the territory from which the appeal emanates.

Lewey.—If the granting of bail by the Supreme Court was irregular, the irregularity could be cured by an enhancement by this Court of the sentence under section 340 (1) (a) (ii) of the Criminal Procedure Code. Submitted that section 121 (3) must be read apart from the other sub-sections. The appellant was granted bail in the Supreme Court, and had surrendered to that bail before this Court. The surrender to bail remedies the irregularity, if any. The Supreme Court has power to grant bail in any case under section 121 (3) read with section 342. If the order as to bail was regular, therefore section 342 (2) would operate to exclude the period during which the appellant had been at liberty. If the order as to bail was irregular, he asked that this Court should exercise its powers under section 340.

Schwartze replied.

JUDGMENT.—The appellant was ordered by the Bankruptey Court to be prosecuted for an offence against section $134$ (1) (o) of the Bankruptey Ordinance, 1930, and was committed for trial to the Supreme Court. The Attorney General entered a nolle prosequi, and then issued a fresh information upon which the appellant was tried and convicted by the learned Chief Justice of Kenya and sentenced to six months' imprisonment. ${\rm Against}$ his conviction and sentence he now appeals.

The first ground of appeal is that the Attorney General, having entered a nolle prosequi in respect to the first information, could not in law issue another information without another order from the Bankruptcy Court directing prosecution. Mr. Schwartze admits that he has no direct authority for this contention, which amounts to a submission that the *nolle prosequi* extinguished or rendered ineffective the order of the Bankruptev Court, but he refers us to page 679 of Volume 19 of Halsbury's Laws of England, where it is stated that a nolle prosequi puts an end to a particular prosecution. We agree with that statement of the law, but not with the inference sought to be drawn therefrom that the nolle prosequi puts an end to the liability to be prosecuted created by the order to prosecute. In our opinion that order can be satisfied only by acquittal or conviction. We agree with the decision of the learned Chief Justice on this ground of appeal taken before him as a preliminary point.

The next ground of appeal is that the learned Chief Justice erred in refusing to permit the appellant's advocate to hand in a written statement signed by the appellant.

At the close of the case for the prosecution the appellant was asked if he wished to say anything in answer to the charge, or to give evidence on oath. He replied he wished to make an unsworn statement and produced a statement in writing which he handed to the clerk of the Court. Mr. Schwartze contended that the appellant was entitled to say "this is the statement I wish to make". The learned Chief Justice gave the following ruling: "I am of opinion that from what Mr. Schwartze has said it is a statement made by him (Mr. Schwartze) from facts given to him by the accused. It is in English, a language which the accused has said he does not understand. I am of opinion that such a statement prepared in the way admitted did not come within the provisions of section 197 of the Criminal Procedure Code as being something which the accused wishes to say." We gather from this that the learned Chief Justice was of the opinion that a written statement put in by an accused person cannot be regarded as his statement unless he has himself written it or, if it has been written by someone else, unless he can read it and understand it. Mr. Schwartze now presents us with this dilemma: Either a statement by an accused is sanctioned by the law or it is not. If it is sanctioned by the law, then it is illogical and unjust to exclude a written statement presented by an accused person as his own merely because it has not been written by himself and he cannot read it. If it is not sanctioned by law, then the practice of offering accused persons the opportunity of making oral statements at the close of the prosecution evidence, which prevails in all the territories to which the Criminal Procedure Code applies, has no legal authority behind it.

We do not propose to consider the fairness or unfairness of excluding written statements originating as did the one in question, for it is quite obvious that there is no provision for the admission of any kind of statement by an accused person during a trial by the High Court other than evidence on oath. Section 197, to which the learned Chief Justice referred, applies to trials by a subordinate court. The corresponding provision of that Code which applies to High Court trials is section $289$ (1), which cannot be construed as to sanction any statement other than evidence on oath, and it is not for us to do what the Legislature has not thought fit to do. Mr. Schwartze, however, further submits that section 3 (3) of the Criminal Procedure Code permits English practice wherever the Code is silent, and where otherwise it might be expected that provision would be made for a particular course of procedure, but we are of opinion that that enactment refers to proceedings such as, for instance, certiorari, in which the Supreme Court can exercise criminal jurisdiction, but where the procedure prescribed by the Criminal Procedure Code would be obviously inapplicable.

The other grounds of appeal, taken together, amount to this: The learned Chief Justice failed to appreciate that the onus was on the prosecution to prove that the acts of the appellant on which the prosecution was based were not done in the ordinary course of business; that this onus had not been discharged; and that in any event the appellant had discharged the onus placed upon him of proving that he did not do these acts fraudulently.

The meaning of section 134 (1) (o) of the Bankruptcy Ordin. ance in the light of what the appellant actually did is this: It is a criminal offence for any person in respect of whose estate a receiving order has been made to pledge within twelve months of the date of that receiving order any property obtained on credit and not paid for, unless in the case of the trader such pledging is in the ordinary way of his trade, and unless in any case he proves that he had no intent to defraud. It is not questioned that it is for the prosecution to prove that what the accused did was not in the ordinary course of business, and if that is done it is for the accused to show that he had no intent. te defraud.

Now what the appellant did was this: On the 15th August, 1932, he bought goods on credit. On the following day he pledged them and others as a security for a loan; on the 19th August he called a meeting of his creditors; and on the 22nd August an interim receiving order was made. Some evidence was given as to trade custom in respect to pledging goods bought on credit, but this seems to have been indeterminate. However, assuming it is a trade custom to pledge goods bought on credit, do the facts show that this particular pledging was done by the appellant in the ordinary way of business? The learned Chief Justice held it was not, and we agree with him. The case of Ex parte Brett, In re Hodgson, 1 Ch. D. page 151, was cited here and in the Court below in support of the argument that a transaction tainted with fraud may yet be in the ordinary course of business. That case, however, is very different from this case. There a general merchant in insolvent circumstances bought goods on credit, shipped them to Australia for sale by his correspondents, and pledged the bills of lading to the Bank. Shortly afterwards he was adjudicated bankrupt, and was unable to explain what had become of the money. James, L. J., said it was simply a case of buying goods on credit for shipment and raising money on the bills of lading, and Mellish, L. J., said that if the application to prosecute the bankrupt were to succeed, the consequence would be that every insolvent trader who purchased goods without expecting to be able to pay for them would be within the statute. The learned Chief Justice was of the opinion that what the appellant did was not in the ordinary course of business, but to relieve his financial embarrassment, and we agree. The appellant did not give evidence, and called no witnesses; he stated that he had no fraudulent intent, and he did only what everyone in the bazaar was doing. The learned Chief Justice held that he had not discharged the onus of showing he had no fraudulent intent. We see no reason to disagree.

The appeal is dismissed.

ORDER.—We dismiss the application that the sentence should begin from the date of our judgment. We cannot do that, as it would infringe the terms of section 317 of the Criminal Procedure Code. If the appellant was properly released on bail, the application is unnecessary; but since, in our opinion, the Supreme Court has no power to grant bail, the application is defeated by the terms of section 317. $\mu_N = \mu_N^{(1)}$

$\sim 1/\sqrt{3}$ As to enhancement of the sentence in order to compel the appellant to serve that which he has managed to evade through his wrongful release, we are of opinion that, even if we have at this stage the power, which we certainly doubt, we should be abusing it as we ought only to enhance where a sentence is manifestly inadequate.

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