Rex v Jetha (Criminal Appeal No. 194 of 1947) [1947] EACA 49 (1 January 1947)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before NIHILL. C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and THACKER, J. (Kenya)

REX, Respondent (Original Prosecutor)

AKBARALI K. JETHA. Appellant (Original Accused) Criminal Appeal No. 194 of 1947

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

Criminal law—Official corruption—S. 91 (2) Penal Code (Tanganyika)—Essence of offence.

The appellant was charged before the first-class subordinate Court with official corruption contrary to s. 91 (2) Penal Code (Tanganyika). The facts were that on 2nd May, 1947, the Officer i/c Police at Mbeya informed the accused that criminal proceedings would be instituted against him in respect of a breach of the Price Control Regulations. At the same time the accused was informed that his books would be examined. On 5th May the accused sent a present worth about Sh. 550 to the Superintendent of Police stationed at Mbeya. On 7th May the Officer i/c Police at Mbeya preferred eight further charges against the appellant for infringements of the Price Control Regulations. The defence of the appellant was that he gave the present because of the recent birth of his son and because he was leaving the district and wished to give the Superintendent a farewell present as is the custom in his community. There was evidence that the Superintendent had never dealt with the appellant's shop and had only had official dealings with him.

The learned Magistrate rejected the appellant's explanation and found that the present was to enlist the aid of the Superintendent in connexion with the appellant's breaches of the Price Control Regulations. He convicted the appellant of attempted bribery. The appellant appealed on the ground that the offence was not complete because $(a)$ the Superintendent did not know that the gift was intended as a bribe and $(b)$ the appellant did not in any way indicate to the Superintendent what favours, if any, he expected in return.

Held $(22-10-47)$ .—(1) It is not necessary to constitute the offence of bribery that there should be a corrupt and express bargain between the giver and the recipient.

(2) The essence of the offence is the motive which animates the giver and the offence is complete if he gives either on account of some past act or omission in his favour or with the hope and expectation that his gift may so influence the recipient that something may thereafter be done or omitted in his favour.

(3) On the facts proved the appellant ought to have been convicted of the completed offence and not of an attempt to commit the offence.

Appeal dismissed.

Conviction for bribery substituted for conviction for attempted bribery.

Vellani (Ainslie with him) for the appellant.

Southworth, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by NIHILL, C. J.).—In this case, which is a second appeal, the appellant was charged in the Magistrate's Court with an offence under section 91 (2) of the Tanganyika Penal Code, it being alleged that he had corruptly given to a senior police officer gifts amounting in value to some Sh. 500.

It was not disputed that the appellant did leave with the officer the gifts in question, the only matter in issue being whether the appellant had or had not a corrupt intention. It has been argued for the appellant that the offence was not complete $(a)$ because the recipient did not know that the gifts were intended

as a bribe and (b) because the giver of the gifts did not in any way indicate to the police officer what favours, if any, he expected in return. We consider that there is no merit in either of these submissions. The essence of the offence of official corruption is the motive which animates the giver; if he gives either on account of some past act or omission in his favour, or with the hope and expectation that his gift may so influence the donee that something may thereafter be done or omitted in his favour the offence is complete. It is not necessary that there should be a corrupt and express bargain between the giver and the recipient. Conversely, by sub-section (1) of the section, it is the mental attitude of the recipient which constitutes the offence; if he accepts a gift with the knowledge that it is being given to him on account of some past act or omission or with the intent to influence him thereafter so that in the discharge of his official duties he may do some act or make some omission, he is guilty of the offence created by the sub-section and it matters not that in fact he may have no intention of showing favour to the donor.

In the case before us we are of the opinion that the evidence for the prosecution established a set of circumstances from which an inference of corrupt intention was inescapable unless the appellant in his defence was able to show that other circumstances existed which could turn what on the face of it appeared without doubt to be a guilty transaction into one capable of an innocent interpretation. Learned Counsel for the appellant has submitted that there are expressions in the learned Magistrate's judgment that indicate that he thought an onus lay upon the appellant to prove his innocence, but that is not in our view a correct appreciation of the judgment as a whole—the learned Magistrate rejected the explanation proffered by the appellant where it conflicted with the evidence of Mr. Garner, as he was entitled to do, with the result that the prima facie case against the appellant established by the prosecution was reinforced and underlined by the appellant's failure to tender an explanation which the learned Magistrate could regard as credible.

The only error which in our view was committed by the learned Magistrate was in his conviction of the appellant for an attempt to commit the offence rather than for the commission of the offence itself for on the facts as found all elements of the completed offence were present. In dismissing this appeal, therefore, we substitute for the conviction of an attempt to commit official corruption a conviction for the substantive offence under section 91 (2) of the Penal Code.

We have considered whether we should increase the sentence imposed for the attempt to commit this offence, but have reached the conclusion that under all the circumstances there is no occasion to do so.

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