Rex v Salim (Criminal Appeal No. 208 of 1946) [1947] EACA 17 (1 January 1947)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR G. GRAHAM PAUL, C. J. (Tanganyika), THACKER and HORNE, JJ. (Kenya)

REX. Respondent (Original Prosecutor)

## ATHMAN BIN SALIM, Appellant (Original Accused) Criminal Appeal No. 208 of 1946

## (Appeal from decision of H. M. Supreme Court of Kenya)

Criminal law—Conveying property reasonably suspected of having been stolen or unlawfully obtained— S. 316 P. C., Kenya— S. 25 C. P. C., Kenya— Reasonable suspicion.

A police officer seeing a lorry early one morning on a road where it should not have been became suspicious and stopped it. He did not suspect the lorry to contain what he actually found in it. On examination, however, the lorry was found to be carrying 26 gunny bags loaded with unopened cartons of tea; 25 four-gallon tins of simsim oil and five gunny bags each containing two unopened boxes of 500 rounds each of Government ammunition. The appellant was one of the persons in the lorry when it was stopped.

He was charged and convicted of conveying property reasonably suspected to have been stolen contra S. 316 P. C. He appealed to the Supreme Court of Kenya. His appeal having been dismissed he appealed again.

Held (4-2-47).—(1) That in deciding whether proceedings lie under S. 316 P. C. the test is not whether the police officer who stopped the lorry in the exercise of the powers conferred on him by S. 25 C. P. C. actually had in his mind at the time he stopped it the precise suspicion indicated in that section but whether there was in all the circumstances reason for such suspicion.

(2) That on a charge under S. 316 P. C. it is for the accused to give an account to the satisfaction of the Court of how he came by the goods and not for the prosecution to prove at the trial that at the date of the trial goods of having been stolen or unlawfully obtained.

Appeal dismissed.

O'Brien Kelly for the appellant.

## Phillips, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—This is an appeal from the Supreme Court of Kenya dismissing an appeal of the appellant against his conviction under Section 316 of the Penal Code in that he was found conveying property which there was reason to believe had been feloniously stolen.

Mr. Kelly, for the appellant, at the outset quoted the names of seven cases which he submitted decided two points. First, that Section 316 of the Penal Code must be given the strictest interpretation and, secondly, that no charge lies under Section 316 unless it is proved that the police officer has exercised his powers under Section 25 of the Penal Code. We have, of course, referred to these authorities, but we feel it necessary to say that this method of citing cases, that is to say by merely giving the Court the names of cases with the intention that the Court shall at some later stage look up the authorities for itself, is a somewhat unusual practice and one of which this Court does not approve.

Shortly put, the only substantial part of the argument of appellant's Advocate consisted of two points: -

(1) There having been a complete absence of any suspicion of the. precise nature indicated by Section 25 in the mind of the police officer at the time he stopped the lorry the detention which followed was not under Section 25 and that therefore proceedings did not lie under Section 316; and

(2) that it must be established in evidence at the trial that at the date of the trial the police still reasonably suspected the goods of having been stolen or unlawfully obtained and that unless that were done the accused was not bound to give an account of how he obtained the goods.

As to the first point we agree with Crown Counsel that under Section 25 the test is not whether the police officer in question actually had in his mind at the time he stopped the forry the precise suspicion indicated in the section, but whether there was in all the circumstances reason for such a suspicion.

There was evidence on which the Magistrate could reasonably come to the conclusion that at the time of the stopping there was reason for such suspicion, that the search confirmed that the suspicion was well founded and that detention followed under Section 25. As to whether the Magistrate was right in his conclusions of fact in the evidence before him is of course a question of fact with which on a second appeal we have no concern, there having been no misdirection by the Magistrate, or any other error in law on his part. We may add that having read the record, if it were necessary for us to decide the questions of fact, we would agree with the conclusions of the Courts below. That is a question of fact with which on a second appeal we cannot deal. If we could competently deal with it our decision would be the same as that of the Courts below.

As to the second point we can find nothing in Section 316 of the Penal Code to justify the contention. Nor could appellant's Advocate produce any authority for this contention which in our view is completely unfounded. The Magistrate at the trial was rightly satisfied that the detention of the appellant was correctly and legally effected by a police officer acting under Section 25 in all the circumstances at the time of the detention. There was ample evidence to justify that conclusion. The appellant did not give an account to the satisfaction of the Magistrate (or at all) of how he came by the goods. Nothing further was required under Section 316 and the appellant was accordingly rightly convicted.

The appeal is dismissed.