Rex v Karia and Mawji (Criminal Appeals Nos. 24 and 25 of 1948, Consolidated) [1949] EACA 30 (1 January 1949)

# COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and BOURKE, J. (Kenya)

#### REX, Respondent (Original Prosecutor)

### (1) GOKALDAS KANJI KARIA, AND (2) ALIBHAI MAWJI, Appellants (Original Accused)

### Criminal Appeals Nos. 24 and 25 of 1948, Consolidated

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

Criminal Law—Conspiring to export diamonds, Tanganyika Penal Code, section 385, and the Diamond' Industry Protection Ordinance-(Cap. 103), section 9 (1)-Being in unlawful possession of diamonds, Diamond Industry Protection Ordinance, section 3 (1)—Appeal on fact—Principles which should guide a Court of Appeal-Evidence-"Found in possession"-Meaning of "found"-Agreement to conspire-Proof-Discretion of Crown Prosecutor as to calling of witnesses at trial. Sentence excessive.

The appellants were convicted in the High Court of Tanganyika jointly of conspiracy to export diamonds from Tanganyika contrary to section 385 of the Penal Code and section 9 (1) of the Diamond Industry Protection Ordinance, and individually of being in unlawful possession of diamonds contrary to section 3 (1) of the Ordinance. In all, appellant No. 1 was sentenced to eight years' imprisonment with hard labour, and appellant No. 2 to ten years' imprisonment with hard labour together with a fine of Sh. $20,000$ .

The relevant facts appear from the judgment below.

$\sqrt{\mu_{\text{eld}}}$ (7-3-49).-(1) (a) That, the case being essentially one of fact, in the absence of any indication that the learned trial Judge had failed to take some material point or circum-<br>stance into account it would be impossible and improper for the Court of Appeal to say that he had come to an erroneous conclusion as to the respective credibility he attached to the evidence of the Crown witnesses and that given by the appellants.

(b) That in the present case the Court was unable to discover that the learned trial Judge had drawn any improper inference from the evidence which he had accepted.

In setting out the principles which should guide a Court of Appeal in hearing an appeal on fact the following cases were cited: Dictum of Lord Robson in Khoo Sit Hoh v. Lim Thean Tong (1912) A. C. 323; Dictum of Lord Simon in Watt v. Thomas (1947) 176 L. T. R. 498.

(2) That the word "found" is not to be confined to "a finding by officers or other persons seeking the thing for the purpose of seizure", and that the words "found in<br>the custody of the defendant" may be supported by proof of its having been seen in his possession knowingly and illegally and exhibited by him as his property at any time and under any circumstances.

The Attorney General v. Delano, 146 E. R. 383 referred to.

(3) That an agreement to conspire may be deduced from any acts which raise the $\star$ presumption of a common plan.

R. v. Murphy (1837) 8 Car. & P. 297 (see Harrison on Conspiracy at page 71) cited.

(4) That no obligation rests upon the prosecution to call every witness whose name appears on the back of the information, and although it is the duty of the Crown to see that every such witness attends the trial so that any not called by the prosecution are available to the defence, nevertheless it is a matter in the discretion of the prosecution to tender such witnesses for cross-examination by the defence and not one that can be claimed by the defence as one of right.

Adel Muhammed el Dabbah v. The Attorney General for Palestine, 60 T. L. R. 456 referred to; R. v. Harris (1927) 2 K. B. 587 referred to.

(5) That in all the circumstances the sentences were excessive.

Appeals against conviction dismissed. Sentence of appellant No. 1 reduced to six years' I. H. L. and sentence of appellant No. 2 reduced to eight years' I. H. L. and sentence of fine quashed.

# Morgan for Appellant No. 1.

Kaplan for Appellant No. 2.

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

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—In these two appeals which we have consolidated the appellants were convicted at a joint trial in the High Court of Tanganyika of the following offences: jointly of conspiracy to export diamonds from Tanganyika contrary to section 385 of the Penal Code and section 9 (1) of the Diamond Industry Protection Ordinance (Cap. 103) and individually of being in unlawful possession of diamonds in the Lake Province of Tanganyika on 2nd June, 1948, contrary to section 3 (1) of the same Ordinance. As a result of the convictions the first appellant Gokaldas has been sentenced to imprisonment with hard labour for eight years and the second appellant, Alibhai Mawji, to ten years' imprisonment with hard labour together with a fine of Sh. 20,000 to be recovered by distress in default of payment. In the case of the term of imprisonment imposed on the second appellant the sentence represents the maximum which could be imposed on either charge.

The facts in this case are set out in such detail in the learned trial Judge's exhaustive judgment that it is unnecessary for us to recapitulate them here except in so far as it may be necessary to do so in order to aid in our consideration of any material point. The learned Counsel who have appeared for the appellants have addressed us at great length and with great earnestness but they have been met by an equal determination on the part of the learned Crown Counsel from Tanganyika who appeared for the Crown. We are indebted to all three for their painstaking review of both the facts and the law. Apart from one or two points on which it is submitted that the learned Judge misdirected himself in law and which we will deal with later, this appeal is essentially one on fact. The real complaint of the appellants is as we understand it that the learned Judge has drawn wrong inferences from the evidence which he accepted and has failed to appreciate that the prosecution did not prove beyond reasonable doubt $(a)$ that there was any conspiratorial arrangement between the appellants to export diamonds from Tanganyika Territory, $(b)$ that the diamonds proved to have been in the possession of the first appellant at Nairobi were exported from Tanganyika, and $(c)$ that even if it could be accepted that the stones said to have been shown to certain persons in Tanganyika by the second appellant on 2nd June, 1948, were in fact diamonds (which was not proved); that they formed any part of the diamonds found in the first appellant's suitcase in Nairobi on 17th June. On these matters learned Counsel for the appellants addressed us at great length in their attempt to show that the chain of circumstantial evidence linking Nairobi with Mwanza is so weak that we as an appellate court should come to the conclusion that the learned trial Judge could not in justice or reason convict the appellants. The learned Judge was sitting not with a jury but with two assessors both of whom were of the opinion that the prosecution had not proved their case. The learned Judge disagreed with their opinions as he was entitled to do and gave judgment on his own view of the evidence as he was bound to do under section 283 (2) of the Tanganyika Criminal Procedure Code. The principles which should guide a Court of Appeal when hearing an appeal from the decision of a Judge sitting without a jury where the matter in question is matter of fact has been reviewed from time to time both by Their Lordships of the Privy Council and by this Court.

In Khoo Sit Hoh v. Lim Thean Tong (1912) A. C. 323, which was an appeal from the Supreme Court of the Straits Settlements sitting in its appellate capacity the Privy Council restored the finding of the trial Judge sitting alone who had come to a certain conclusion on a question of fact vital to the determination of the action. We refer to this case because, as in the one before us, it was

one where plain perjury had been committed on one side or another and we quote now from the judgment which was delivered by Lord Robson:-

"Their Lordships' Board are therefore called upon, as were also the Court of Appeal, to express an opinion on the credibility of conflicting witnesses whom they have not seen, heard or questioned. In coming to a conclusion on such an issue their Lordships must of necessity be greatly influenced by the opinion of the learned trial Judge, whose judgment is itself under review. He sees the demeanour of the witnesses, and can estimate their intelligence, position and character in a way not open to the Courts who deal with later stages of the case." ... "Of course it may be that in deciding between witnesses he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or has given credence to testimony, perhaps plausibly put forward, which turns out on more careful analysis to be substantially inconsistent with itself, or with indisputable fact, but except in rare cases of that character, cases which are susceptible of being dealt with wholly by argument, a Court of Appeal will hesitate long before it disturbs the findings of a trial judge based on verbal testimony."

In the case of Watt or Thomas v. Thomas (1947) L. T. R., Vol. 176 at p. 498 which was a House of Lords appeal Lord Simon put the matter thus when speaking of appeals from a Judge sitting alone: —

"If there is no evidence to support a particular conclusion (and this is really a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. That is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given."

Learned Counsel for the first appellant doubtless appreciating the weight of these considerations cited a recent case from the Supreme Court of Kenya sitting in the appellate jurisdiction where the Court quashed a conviction although there was evidence as accepted by the convicting Magistrate which certainly sustained it. (Rex v. Karioki, Crim. A. 93/1948.) A reference to the judgment in that case clearly reveals, however, that the Court took its own view of the conflicting evidence because, on account of certain danger signals, it came to the conclusion that in all the circumstances of the case a miscarriage of justice might well have occurred. As was said by Lord Simon in Watt v. Thomas $(supra)$ : -

"The decision of an appellate court, whether or not to reverse the conclusions of fact reached by the judge at the trial must naturally be affected by the nature and the circumstances of the case under consideration."

It is with the above principles in mind therefore that we as an appellate court must govern ourselves in our consideration of the evidence given in this case.

Now of all the witnesses called by the prosecution none was more important than the witnesses Caetano de Souza (P. W. 17) a Goan Christian who had been in the employ of the second appellant as a tailor's cutter between August or September, 1941 and April, 1947. He testified that the two appellants were on good terms with each other and that they were often in each other's company. He next deposed to what happened to him in Mwanza on 2nd June at the house

of the second appellant (Alibhai Mawii) and in the presence of the first appellant (Gokaldas). We quote here from his evidence in chief: $-$

"Gokaldas called me to Alibhai Mawii's house on 2nd June. 1948. He took me to the back door of Alibhai's compound. This was just before 8 a.m. When I went in Alibhai was standing on the doorsteps of his house. He asked me how my health was saying he had not seen me for a long time. Gokaldas, Alibhai and I were all together. Alibhai then said to me 'You have to undertake a certain work'. I asked. him what the nature of the work was. Alibhai told me that I would get a certain gift if I accompanied Gokaldas to Nairobi. I asked why I should go to Nairobi with Gokaldas. Again he repeated 'You accompany Gokaldas to Nairobi and I will give you a good sum'. He did not mention the amount. I insisted on asking what work he wanted me to do by accompanying Gokaldas to Nairobi. Then Alibhai went into an adjoining room and came out with a bag in his hand. It was about so big (size about $4''$ x $4''$ indicated). It was of americani cloth. It was a bag like this one (Ex. 78B indicated) but I cannot say whether it is this one. The cloth and the shape are the same. Alibhai told me 'You should take this bag and go to Nairobi accompanied by Gokaldas'. I asked Alibhai what the contents of the bag were. He said the contents were something precious. There was a small hole in the bag and through that hole Alibhai poured into the palm of his hand some white stones like glass. I asked him what those things were. He said 'These are gems called diamonds. I have plenty, about 400 of them'. Alibhai told me to take them with me and go together with Gokaldas to Nairobi. He told me he would give me a substantial sum for doing that work. Then I said to Alibhai that whether he gave me a small or big amount I would not take that to Nairobi. Again Alibhai Mawji said 'It is good for you. You will make profit'. I told them that under any circumstances I would not go. Then I said that because he was dealing in such kind of goods that was why I left his service. I told him I was going. While I was leaving Alibhai was returning the diamonds 'to the bag through the hole. Gokaldas was with us all the time until I left."

Many reasons were urged both at the trial and before us why the evidence of this witness should be regarded as suspect but before we come to these we must quote from the judgment of the learned Judge his opinion of the witness which it is clear that he reached only after a detailed examination of his evidence and all the factors which had been urged against its acceptance:

"de Souza impressed me most strongly as a truthful and honest witness and I have come to the conclusion that his evidence must be accepted."

There was material on which the defence could justifiably challenge this witness. He did not make any report to the Police until after the events in Nairobi on 17th June. He was not able to describe with accuracy, in fact he made mistakes, about the structure of the second appellant's house and what was in the compound there on 2nd June. He had left the second appellant's employ and there was a suggestion that he had been dismissed for dishonesty. He may not have been able to converse freely with the appellants in their language. Had the learned Judge failed to direct his mind to these considerations we might be disinclined to accept his appraisement of the value to be attached to de Souza's evidence. but quite the contrary is the case. From the judgment it is evident that the learned Judge anxiously addressed his mind to all that was or could be said against the witness and that nevertheless he came to the conclusion we have quoted. Furthermore he has given reasons for so doing which we regard as unexceptional. The conclusion the learned Judge reached as to the value he attached to the evidence of the second appellant is in direct contrast and had better be quoted:

"The second accused denies that there is any truth in this evidence (that is the evidence of de Souza). I do not believe him. He was, in my judgment, a witness who was completely unworthy of any credit. He was evasive in his answers to questions and had generally the demeanour of a false witness."

Here then it seems to us that we have before us just such a case as Their Lordships of the Privy Council and the House of Lords had in mind in those cases we have quoted, and that in the absence of any indication that the learned Judge has failed to take some material point or circumstance into account, it would be quite impossible for us, and indeed improper, to say that he had come to an erroneous conclusion as to the respective credibility he attached to the evidence of de Souza and that given by the appellants.

Mr. Kaplan for the second appellant has however urged that even if de Souza's evidence be accepted it does not prove that the stones shown to him were in fact uncut diamonds and that the fact that the second appellant said that they were is of no evidentiary value. Mr. Kaplan has also submitted that the learned Judge misapplied the case of *The Attorney General v. Delano*, 146 E. R. 383, in deducing from it that the fact that one witness said that he had seen the second appellant with "diamonds" or of "stones" which the latter called "diamonds" on 2nd June that that in itself was sufficient proof to support the charge that on that date he was found in possession of diamonds *contra* to section 3 (1) of the Diamond Industry Protection Ordinance (Cap. 103). We agree with Mr. Kaplan to this extent that it would be highly dangerous for a Court to convict on the evidence of one such witness alone, but the Delano case is authority for the principle that the word "found" is not to be confined to "a finding by officers or other persons seeking the thing for the purpose of seizure" and that the words in a charge "found in the custody of the defendant" may be supported by proof of its having been seen in his possession knowingly and illegally, and exhibited by him as his property at any time and under any circumstances. We feel confident that it was in that sense that the learned Judge relied on the case and that he did not misapply it to the circumstances of this case. Had de Souza's evidence stood alone it would have been insufficient to prove unlawful possession of uncut diamonds by the second appellant but from the other evidence which the learned Judge accepted he was driven to the conclusion, and we consider that it was a reasonable one, that the inference was irresistible that the stones shown to de Souza were in fact diamonds and that some of them at least were amongst the stones found in the first appellant's suitcase in Nairobi on 17th June, which were found on expert examination to be uncut diamonds. As regards unlawful possession by the first appellant at Mwanza on 2nd June there was the evidence of the witnesses Prabhudas Shavji (P. W. 20) and Bhagwanji Jeram (P. W. 25) which the learned Judge accepted after taking into account certain discrepancies in their story as to what happened when the first appellant came to see them on 2nd June. Again as an appellate Court we find it impossible to say that the learned Judge must have been wrong when he came to the conclusion that they were witnesses of truth. Their evidence when accepted provided important links in the chain of evidence against both appellants.

It has been contended however that even allowing for this evidence of possession by each appellant in Mwanza the evidence falls far short of supporting a charge against the appellants of conspiracy to export diamonds from Tanganyika. That the essence of conspiracy is the agreement to conspire and that this evidence was not forthcoming. Certainly there was no direct evidence of an agreement but how rarely is conspiracy proved by such evidence. As Mr. Southworth pertinently observed conspirators do not normally meet together and execute a deed setting out the details of their common unlawful purpose. It is a commonplace to say that an agreement to conspire may be deduced from any acts which raise the presumption of a common plan. As was said by Coleridge, J., to the jury in the case of R. v. Murphy (1837) 8 Car. & P. 297 (cited by Harrison on Conspiracy at p. $71$ :-

"If you find that these two persons procured by their acts the same object, often by the same means, one performing one part of the act and the other another part of the same act, so as to complete it with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object."

Or the evidence of de Souza, Prabhudas Shavji and Bhagwanji, taken together and linked with the evidence of Shantilal Raghavii (P. W. 9) about whom the learned Judge observed in his judgment "I can say with absolute confidence that he is a truthful and accurate witness", we consider that the trial Judge was<br>fully justified in his inference that on 2nd June at Mwanza the two appellants were busy together in pursuance of a plan to export diamonds from Tanganyika with the least possible risk to themselves. Enough has now been said to indicate that in our view there is evidence to sustain the conviction of both appellants on each count and that we are unable to discover that the learned Judge has drawn any improper inference from the evidence which he accepted. There remain, however, one or two matters on which a word must be said.

It has been submitted that because of the joinder of the conspiracy charge with charges of unlawful possession the learned Judge, careful as he may have been, was not able to free his mind from certain statements made by one or other of the appellants which although they may have been evidence against themselves were not evidence against their co-operator. On this point we think it very necessary to say this that from our perusal of the judgment it is evident to us that the learned Judge took great pains to make this separation and we agree with Mr. Southworth that he took a view most favourable to the appellants in holding that the conspiracy was complete when the first appellant crossed the frontier between Tanganyika and Uganda so that he disregarded any statement made in Nairobi which implicated the second appellant. Under section 10 of the Indian Evidence Act an act or declaration of a co-conspirator even after the termination of the conspiracy is a relevant fact for the purpose of showing that such person was a party to it.

The fact therefore that the learned Judge in an abundance of caution followed the more narrow English rule can hardly be used for the purpose of attacking his judgment.

It has also been urged that the learned Judge went seriously wrong in admitting the evidence of pleas taken by Mr. Connell a Resident Magistrate at Nairobi when the first appellant was before him on counts charging him with unlawful importation of diamonds into Kenya and attempting to export diamonds unlawfully from Kenya. On this matter there was some confusion. Mr. Connell who was called for the Crown deposed that he was satisfied that the first appellant understood the charges and that he pleaded guilty to the first count and not guilty to the second count. Nevertheless a little later after his Counsel had seen him the first appellant withdrew his plea of guilty to importing diamonds unlawfully and pleaded guilty only to the attempt to export. In view of the first appellant's defence at his trial in Tanganyika the matter became of first importance because if he had obtained the diamonds in Uganda or Kenya he would have committed no offence in either of those territories neither could he have been charged successfully with exporting them from Tanganyika. The<br>defence had an explanation of the first appellant's apparent admission that he had imported the diamonds into Kenya which Mr. Morgan who represented the first appellant both at the proceedings before the Nairobi Magistrate and at his trial in Tanganyika wished himself to give in evidence. Unusual as this course would have been the learned Judge was after argument prepared to allow Mr. Morgan to go into the witness box. Mr. Morgan however decided not to take advantage of the Court's indulgence. At the beginning of the hearing of this appeal Mr. Morgan applied to us for leave to produce additional evidence in the form of an affidavit sworn by his junior, Mr. Akram, who appeared with him in the proceedings in Nairobi. We refused this application because the defence had ample notice that Mr. Connell was being called at the trial and could have called Mr. Akram had they so wished or, as it turned out, Mr. Morgan

could have given evidence on the point himself. We have however accepted Mr. Morgan's assurance that he advised the first appellant on the instructions he received to plead not guilty to the first count and guilty to the second count, which is what according to Mr. Connell's evidence the first appellant ultimately did. We think the learned trial Judge would have been wiser to have left out of account altogether the first appellant's first answer to the charge of importing diamonds into Kenya seeing that he so soon retracted it. The learned Judge in his judgment has stated that he regards the admission as inconsistent with the appellant's story that he first took possession of the diamonds in Eldoret, which of course it is. If we thought that the learned Judge had placed 'so much significance on the admission that it might have just turned the scales against the first appellant in his mind the matter would be a serious one but reading the judgment as a whole it is evident that this was not so, for he makes no mention of the point when addressing his mind to the evidence of de Souza and the other Mwanza witnesses whose evidence he accepted.

Complaint has also been made at the failure to call one Hariivan Sunderii who gave evidence before the committing Magistrate and whom the prosecution did not call at the trial. In the lower Court he had deposed to the first appellant's offer to give one of his sons a free lift to Kampala on condition that he looked after somebody's valuables. The suggestion is that he was not called because the Crown feared he would break down in cross-examination. We cannot regard this as a serious point in appeal. No obligation rests upon the prosecution to call every witness whose name appears on the back of the information although it is the duty of the Crown to see that every such witness attends the trial sothat any not called by the prosecution are available to the defence and this was done in this case. We are aware that modern practice in this matter has not always been uniform but the Privy Council in Adel Muhammed el Dabbah v. Attorney General for Palestine, 60 T. L. R. 456 approved the old rule referred to in the judgment of Alderson, B., in R. v. Woodhead (1847) 2 C. & K. 520 that a prosecutor is not bound to call witnesses merely because their names are. on the back of the indictment: -

"You ought therefore to have them in Court, but they are to be called" by the party who wants their evidence."

The Judicial Committee however went on to enunciate a proviso to this rule that it is within the discretion of counsel for the prosecution, if they find no sufficient reason to the contrary to tender such witnesses for cross-examination by the defence, a practice which we believe was until fairly recent times commonly followed in East Africa. The Privy Council decision in the Palestine case can be taken as authority for the view that this is a matter in the discretion of the prosecution and not one that can be claimed by the defence as one of right. Mr. Morgan cited to us the case of R. v. Harris (1927) 2 L. R. K. B. 587 in which Hewart, C. J., made an interlocutory remark to the effect that "in criminal cases." the prosecution is bound to call all the material witnesses before the Court even though they give inconsistent accounts, in order that the whole of the facts may be before the jury". Their Lordships of the Privy Council in the case cited supra however observed that in their view Lord Hewart could not have intended to negative the long-established right of the prosecutor to exercise his discretion to determine who the material witnesses are.

To sum up we are unable to find any material on which we could hold that the learned trial Judge went wrong either on fact or law so as to make it incumbent on this Court to disturb his finding. It follows that the appellants' appeals against. their conviction must be dismissed.

The appellants also appeal against their sentences on the grounds that they are harsh and excessive and this aspect of the appeals has given us much anxious. concern. The sentences imposed are very heavy; indeed in the case of the second appellant, who has no previous criminal record of any kind, the learned Judge has imposed the maximum term of imprisonment he could impose on either.

count. In a judgment given very recently by this Court in another appeal against a conviction of the unlawful possession of diamonds in Tanganyika a substantial reduction was made to a sentence of six years' imprisonment $(R, v, Hople)$ , Criminal Appeal No. 229 of 1948) but for reasons which are not available to the appellants in this case. This is not a trap case and there was no employment of an agent provocateur. It is evident that the learned trial Judge addressed his mind most carefully to the question of sentence and took into account all that was said both in mitigation and for the prosecution. He was fully justified, from the number and value of the diamonds involved, in drawing the inference that the second appellant was the leader in the conspiracy and that he must have been buying diamonds on a very large scale. Mr. Southworth in supporting the sentence has emphasized the importance of the diamonds industry to the economy of the territory and to the demoralization caused to the Africans by the presence of receivers who are prepared to buy from them stones which they have unlawfully obtained. We are well aware of all these factors as well as the reasons why the legislature has deemed it right to give judges the power to impose very heavy penalties for breaches of the Diamond Industry Protection Ordinance. Nevertheless we are not altogether assured that there is not some danger of a sense of proportion being lost by those responsible for the just administration of the law in such cases as this when faced by clamant demands for condign punishment. Maximum sentences, especially when they are so severe as they are in the Diamond Industry Protection Ordinance, are not usually applied to a first offence, although in a particular case we grant that there may be circumstances which justify a Judge departing from normal practice. As has been said before by this Court we are reluctant to interfere with the discretion of a trial Judge on the matter of sentence and would never do so solely on the ground that had we been the Judge in first instance our sentence might have been a little less or a little more. Nevertheless we conceive it our duty to intervene when, as in the present case, we feel, after a review of all the circumstances, that the sentences imposed are in fact excessive.

The second appellant has been fined Sh. 20,000 as well as receiving imprisonment for ten years. We are not very certain that in the circumstances of this case the learned Judge was justified in imposing a heavy financial penalty aswell as a long term of imprisonment. The diamonds have been forfeited to the Crown and no profit can have been made by the second appellant from his unlawful transactions. He is a man in late middle age and it is obvious that his business activities in Tanganyika must have been ruined with scant prospect of rehabilitation. The fine, if recoverable, will impose hardship not on the second appellant but on his innocent dependants. We have decided therefore to reduce his sentence on the third count to one of eight years' imprisonment with hard labour and to quash the sentence of fine in addition. This sentence will run concurrently with the sentence of two years' imprisonment imposed on the first count.

In the case of the first appellant the learned Judge has found that he was acting only as the agent of the second appellant. In his case we reduce his sentence on the second count to one of six years' imprisonment with hard labour to run concurrently with the sentence of two years' imprisonment imposed on the first count.

The appeals against convictions are dismissed.