Rex v Hopley (Criminal Appeal No. 229 of 1948) [1949] EACA 28 (1 January 1949)

### COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Barclay Nihill, C. J. (Kenya), Sir G. GRAHAM PAUL, C. J. (Tanganyika), and EDWARDS, C. J. (Uganda)

REX. Respondent (Original Prosecutor)

### JOHN CHARLES RUDOLF HOPLEY, Appellant (Original Accused)

#### Criminal Appeal No. 229 of 1948

# (Appeal from decision of H. M. High Court of Tanganyika)

Criminal Law—Appellant convicted of offences against the Diamond Industry Protection Ordinance, Cap. 103, Laws of Tanganyika—Appeal against sentence— Police "trap"—Factors to be considered in assessing sentence—Observations of the Court.

The facts appear sufficiently from the judgment below.

**Held** $(21-2-49)$ .—(1) That since the case was not merely the result of a police trap, but one where no offence would have been committed in relation to the diamonds without the acts of the police party who instigated the appellant to commit the crimes, although the Court did not feel called upon to apply to the case the censure implied in the observations of the Lord Chief Justice in Brannan v. Peek, nevertheless these were factors which, in the opinion of the Court, had not been given sufficient weight by the learned trial Judge in assessing sentence.

(2) That there is a difference in the degree of criminality between a person who of his own volition commits an offence and one who in the face of great temptation which he has not himself brought about, succumbs to it, and that in all the circumstances of the present case there should be some reduction in sentence.

Sentence reduced so as to amount to three years' imprisonment in all.

Brannan v. Peek (1947), 2 A. E. R. 572 and R. v. Hasham Jiwa, 16 E. A. C. A. p. 90 referred to.

Appellant absent, unrepresented.

Nazareth for the Crown.

$\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ cited in the judgment in $R$ . $v$ . Santok Singh which is reported in 15 E. A. C. A. at p. 97, and in R. v. D. H. Mehta in 15 E. A. C. A. at p. 123-Editor.)

JUDGMENT.—This is an appeal against sentence only. The appellant, who was tried with three others, was convicted in the High Court of Tanganyika on four counts charging him with various offences against the Diamond Industry Protection Ordinance (Cap. 103 of the Laws of Tanganyika). The learned trial Judge imposed sentences of imprisonment with hard labour which amount in all to six years. The appellant is a first offender and he appeals against the severity of his sentence. We are well aware of the reasons which make it imperative to impose heavy sentences in respect of the offences of which the appellant stands convicted. On two counts he was convicted of being in unlawful possession of diamonds contrary to section 3 (1) of the Ordinance and he could on either count have been sent to prison for 10 years or fined Sh. 20,000 or both. On two other counts charging him with unauthorized buying and selling of the diamonds he could have received 15 years' imprisonment. The reasons for these extremely heavy penalties are obvious. Offences against the Ordinance are most difficult to detect, precious stones of small content but great value are easily concealable and the rewards to be gained by law breakers may be enormous. This Court would therefore hesitate to interfere with the discretion exercised by the trial Court, particularly as in this case it is evident that the learned Judge before passing sentence addressed his mind to the relevant considerations. There is one feature of this case, however, which has given us some anxiety. It is not merely a trap case in the sense

that the Prosecution by the aid of police spies obtained evidence of an offence which they knew was about to be committed; it is very evident that no offence would have been committed at all, at least in relation to the diamonds which were the subject-matter of the charges, without the acts of the police party who in the most direct way instigated the appellant to commit his crimes. We concede of course that they had no criminal intent, nevertheless it was their actions that induced others to commit offences. As must by now be well known in legal circles in East Africa this kind of behaviour on the part of police officers and those employed by them was the subject of severe censure from a high quarter in 1947 in the case of *Brannan v. Peek* (1947) 2 A. E. R. 572. This case has been so recently before this Court that it is unnecessary here for us to recapitulate precisely what it was the Lord Chief Justice said on that occasion or to set out the circumstances under which he said it (see R. v. Hasham Jiwa, Cr. App. 177/1948). Neither do we feel called upon to adopt the censure implied in the Lord Chief Justice's observations and apply it to the circumstances of this case. Nevertheless we do feel that it is a factor in assessing sentence to which we are not sure the learned trial Judge gave enough weight. There is a difference in the degree of criminality between a person who of his own volition commits an offence and one who in the face of great temptation which he has not himself brought about, succumbs to it. Having said that we have said all that can be said for the appellant. On the reverse side he occupied a position of trust on a diamond mine, and had he not possessed an inclination to dishonesty, he would have sent the decoy party packing with righteous indignation. On balance, however, we feel that under all the circumstances there is a case for some reduction in the appellant's sentence. We propose therefore to substitute the figure three for six in the learned Judge's sentence imposed by him on counts two and four, the rest of his order to stand. In effect this means that the appellant will have to serve 3 years' imprisonment in all.

We would add that in coming to this decision we have also taken into account the fact that the second accused, whose guilt seems to us no less in degree than that of the appellant escaped with a much lighter sentence, because the learned Judge thought, no doubt most properly, that on account of the state of his health a prison sentence was undesirable.