Shah v Reginam (Criminal Appeal No. 273 of 1955) [1950] EACA 410 (1 January 1950)

### H. M. COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR NEWNHAM WORLEY (President), BACON, Justice of Appeal and SIR OWEN CORRIE, J. (Kenya)

### ZAVERCHAND DHANJI SHAH, Appellant (Original Accused)

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# REGINAM, Respondent

#### Criminal Appeal No. 273 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya, O'Connor, C. J., and de Lestang, J.)

Second appeal—Principles on which Court will allow argument on matters not raised on first appeal—Construction of Firearms Ordinance, 1953, section 4 (1) and (2), 5 (2)—Eastern African Court of Appeal Rules, 1954, rule 34— Kenva Penal Code sections 93 (2), 248 (b) and 381.

The accused was convicted on three counts (1) being in unauthorized possession of ammunition contrary to section 4 (2) (a) of the Firearms Ordinance, 1953, (2) official corruption contrary to section 93 (2) of the Penal Code and (3) assaulting a police officer in the execution of his duty contrary to section 248 $(b)$ of the Penal Code. On first appeal the convictions were sustained. On second appeal a supplementary memorandum of appeal was filed and the Crown objected that certain of the grounds raised therein were new points not raised in the first appeal. On the first count it was submitted for the appellant that where a person is already in possession of ammunition it was incumbent upon the Crown when proving a charge of unlawful possession to show that the possession was accompanied by an intention to continue in possession without the accompanying intention to apply for a licence.

It was also submitted that the Magistrate had misdirected himself as to the onus of proof on the second count.

Held (28-11-55).—(1) On a second appeal, while the Court will not allow technical or formal objections to be taken for the first time, or objections to evidence which might have been taken in the Court below, the Court will allow points which go to jurisdiction or which<br>allege a violation of natural justice or any very important point of substantive law which ought to govern the case.

(2) Conscious possession of a firearm or ammunition without a licence is an offence, and an intention to apply for a licence is no defence but is relevant only as to sentence.

(3) While it is not essential that a Judge or Magistrate in his judgment should expressly refer to the law governing onus of proof, if he does not do so an Appeal<br>Court may "look through the judgment for indications that he had the proper rule in mind" and in this case there were clear indications to the contrary and the misdirections might have affected the findings.

Appeal against count 2 allowed.

Appeal against counts 1 and 3 dismissed.

Cases referred to: Karuma s/o Kaniu v. Reg., (1955) 2 W. L. R. 223 (P. C.); (1955) A. C. 197; Att.-Gen. v. Godwin. (1946) 13 E. A. C. A. 158; Colonial Boot Co. v. Dinshaw Byramjee, (1952) 19 E. A. C. A. 125; North Staffordshire Railway v. Edge, (1920) A. C. 254;<br>Johnston v. R., (1951) 18 E. A. C. A. 125; Sorth Staffordshire Railway v. Edge, (1920) A. C. 254;<br>Johnston v. R., (1951) 18 E. A. C. A. 278; R. v. Kanini Bak, (1953) & E. R. C. R. 263, Sambasivani v. R. Pederation of Malaya, (1950) A. C. 458; Mohamed Ismail v. Reg., 22 E. A. C. A. 461; In re Finch, (1883) L. R. Ch. D. 267; R. v. Walson, (1913)

Dingle Foot, $Q. C.,$ and $A. R.$ Kapila for appellant.

**Brookes** for respondent.

JUDGMENT (prepared by WORLEY, President).—The appellant herein was convicted in the Resident Magistrate's Court at Nairobi on three counts charging the offences of unauthorized possession of ammunition contrary to section 4 (2) (a). of the Firearms Ordinance, 1953; official corruption contrary to section 93 (2) of the Penal Code; and assaulting a police officer in the execution of his duty contrary to section 248 $(b)$ of the Penal Code. He was sentenced to imprisonment on each of these three counts, the sentences being made consecutive.

On appeal to the Supreme Court of Kenya, the convictions on all three counts were sustained, the appeal against the sentence of two years' imprisonment imposed by the Resident Magistrate on the second count was dismissed, but on the first and third counts, the Supreme Court substituted for the sentences imposed by the Magistrate, as to the first count, a fine of Sh. 1,000, in default three months' imprisonment: and as to the third count, six months' imprisonment with hard labour to run consecutively to the sentence imposed on count 2.

The appellant preferred a second appeal to this Court in respect of his convictions on all three counts, but at the hearing his counsel did not pursue the appeal as to the third count.

The appellant has filed a memorandum of appeal and, with leave of the Court, a supplementary memorandum. The only grounds of the first memorandum which were argued before us were the following:-

"3. The learned Judges failed to appreciate that an irregular exercise of jurisdiction by the substitution of a count in the charge after the close of the case for the prosecution was not an irregularity curable by recourse to section 381 of the Criminal Procedure Code.

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4. The learned Judges were wrong in ordering that the sentences should be served consecutively."

Both the matters complained of relate to the exercise of discretion by the learned Judges of the first appelate Court and it is sufficient for us to say that the appellant has entirely failed to show that the discretion was exercised on any wrong principle or otherwise unjudicially. There is accordingly no merit in either of these grounds of appeal.

The supplementary memorandum of appeal contains four grounds as follows:-

"1. The learned Magistrate who conducted the trial erred in that he failed to direct himself that the onus of proof lay upon the Crown and/or directed himself that it was for the appellant to establish his defence.

2. The learned Magistrate erred in holding that the evidence of the police witnessess was corroborated by the appellant's own evidence.

3. The Magistrate erred in that he misdirected himself as to the effect of the Firearms Ordinance and failed to consider the actual defence put forward by the appellant.

4: The Supreme Court erred in holding that the explanation given by the appellant of his possession of the ammunition in question amounted only to mitigation and in failing to hold that, if accepted, such explanation amounted to a complete defence to the charge on count 1."

Mr. Brookes for the Crown respondent did not object to the first of these grounds which, he conceded, had been raised in the first appellate Court though not specifically made a ground of appeal there. From the record it would appear

to have been raised as a subsidiary point and, probably for that reason, is not dealt with in the judgment of that Court. It may be mentioned in passing that the principal ground on which the first appeal was argued was that the convictions on counts 1 and 2 were vitiated because the search of the appellant's house and consequent seizure of the ammunition were illegal. This ground has since been abandoned presumably because of the decision of the Privy Council in Karuma s/o Kaniu v. Reg., (1955) 2 W. L. R. 223; (1955) A. C. 197. But Mr. Brookes objected to the inclusion of the second, third and fourth paragraphs of the supplementary memorandum on the grounds that these were new points not raised in the first appellate Court, and, in support of his objection, cited two judgments of this Court and one of the House of Lords; namely, Attorney-General v. Godwin, (1946) 13 E. A. C. A. 158: Colonial Boot Co. v. Dinshaw Byramiee, (1952) 19 E. A. C. A. 125 and North Staffordshire Railway v. Edge, (1920) A. C. 254. Mr. Dingle Foot, for the appellant, whilst not conceding that the points raised in these three grounds were new, contended that even if they were the Court had discretionary power to permit them to be argued under rule 34 of the Eastern African Court of Appeal Rules, 1954. They were, he said, all substantial questions of law apparent on the face of the record and justice could not be done if they were not considered. After consideration we overruled Mr. Brookes's objection and now give reasons for our decision.

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Godwin's case, which was relied upon by Mr. Brookes, is not really in point because it was a case where the Crown appealed by way of case stated from a Magistrate's decision and the High Court of Tanganyika dismissed the appeal. The Crown further appealed to this Court and sought unsuccessfully to raise a question of law which had not been submitted to the High Court for decision. It may be further observed that, although the point was not taken, it would seem doubtful whether any second appeal lay at all; see Johnston v. R. (1951) 18 E. A. C. A. 278. It is clear also that the Court will not allow technical or formal objections to be taken for the first time, or objections to evidence which might have been taken in the Court below, see Saleh Mohamed v. Regem and R. v. Rahim Bux, (1953) 20 E. A. C. A. 141 and 263; but it is equally clear that the Court will allow points which go to jurisdiction or which allege a violation of natural justice; see Colonial Boot Company case, supra.

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We think also that we should follow the practice of the Privy Council indicated in the following passage in *Bentwich Privy Council Practice*, 3rd ed., p. $206$ :-

"If, indeed, any very important point of substantial law, which ought to govern the case, has been overlooked in the Court below, the Judicial Committee will not refuse to entertain it, but will not entertain an objection of mere form."

Again on p. 208, the practice of the Privy Council is summarized in the following $passage:$ —

"In Archambault v. Archambault, (1902) A. C. 58, it was said: 'It is a rule of practice by this Board that a new point will not be entertained by their Lordships which might have been met by evidence in the Courts below.' On the other hand as regards a legal point, it has been said: 'When a question of law is raised for the first time in a Court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent, but expedient, in the interests of justice to entertain the plea'."

In the instant case, it appeared to us that paragraphs 3 and 4 of the supplementary memorandum of appeal did involve an important point of substantial law, namely, the proper construction of section 4 (2) of the Firearms Ordinance, 1953, which must govern the case against the appellant on the first charge, and also it appeared to us that paragraph 2 of the supplementary memorandum raised a substantial question as to what evidence could in law amount to corroboration.

We will take first the points raised in paragraphs 3 and 4 of the supplementary memorandum. Section 4 (1) of the Firearms Ordinance, 1953, reads:-

"Subject to the provisions of this Ordinance, no person shall purchase, acquire, or have in his possession any firearm or ammunition unless he holds a firearm certificate in force at the time."

#### Section 4 (2) $(a)$ reads:

"If any person purchases, acquires or has in his possession any firearm or ammunition without holding a firearm certificate in force at the time ... he shall, subject to the provisions of this Ordinance, for each offence be liable on conviction"... and so on.

Section 5 (2) reads: $-$

"The firearm certificate shall be granted by the licensing officer if he is satisfied that the applicant has a good reason for purchasing, acquiring or having in his possession a firearm or ammunition in respect of which the application is made, and can be permitted to have in his possession that firearm or ammunition without danger to the public safety or peace."

Mr. Dingle Foot for the appellant conceded that sub-sections (1) and (2) of section 4 read by themselves impose an absolute prohibition, but he called in aid sub-section (2) of section 5, arguing that this sub-section contemplates three modes of application, the first that in which the applicant wishes to purchase a firearm, the second that in which he seeks to acquire one in some other fashion than purchase, and the third that in which he has already in his possession a firearm or ammunition in respect of which the application is made. Such possession, he contended, could not be deemed to be unlawful per se and it was incumbent on the Crown when proving a charge of unlawful possession under section 4 to show that the possession was accompanied by an element of *mens rea*, that is to say, an intention to continue in possession of the firearm or ammunition without the accompanying intention to apply for a licence. We are unable to accept this construction.

In our view, the words "having in his possession" in section 5 (2) admittedly contemplate the possibility of a licence being granted to a person who, at the moment of applying, is technically guilty of an offence; as for example, a person whose previous licence has expired, or one who enters the Colony in possession of an unlicensed firearm. But we think that the very object of including those words in the sub-section is to give to the licensing officer a discretion to legalize the possession where only a technical offence has been committed. To borrow and adapt the language of their Lordships of the Judicial Committee in *Sambasivam* $v$ . P. P. Federation of Malaya, (1950) A. C. 458 at p. 470, the Ordinance says nothing of any special intent, and we are unable to find any ground on which an intent should, as a matter of implication, be regarded as an element of the offence.

Mr. Dingle Foot also relied upon the dictum that in a penal statute the Court will lean against a strict construction which might lead to absurdity and instanced some hypothetical cases in support of his argument. He referred us to the following passage in Maxwell on the Interpretation of Statutes, 10th ed., p. $285:$ —

"The effect of the rule of strict construction might almost be summed up in the remark that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself."

But the sentence following this passage is equally cogent, namely:-

"But it yields to the paramount rule that every statute is to be expounded according to its expressed or manifest intention and that all cases within the mischiefs aimed at are, if the language permits, to be held to fall within its remedial influence."

To accept the construction contended by the appellant, namely, that the Crown must show that the person in possession of an unlicensed firearm not only had such possession, but also intended to continue that possession unlawfully. would be to bring to naught the efforts of the legislature which were clearly to combat the mischief and danger of arms and ammunition being in the hands of unsuitable persons. That mischief, we observe, is not one created by the present Emergency, but one recognized as existing in normal conditions in Kenya.

It is relevant also to refer to the judgment in Criminal Appeal No. 104 of 1955: Mohamed Hassan Ismail v. Reg., in which this Court in a considered judgment expressed the opinion that section 4 (1) of the Firearms Ordinance, 1953, created "an absolute prohibition followed by words of exception". It is true that that dictum was to some extent *obiter*, but nevertheless it supports the construction which we put upon the section in the instant case.

In our view, therefore, the Courts below were entirely right in refusing to accept the appellant's explanation of his possession and of his intention as a defence to the charge in the first count, and properly considered it merely as a matter to be taken into consideration in assessing the penalty. In the instant case once the fact of conscious possession was proved (and indeed it was not contested by the appellant), there was no defence to this charge and the appeal against conviction on the first count is therefore dismissied.

We will now consider the second ground in the supplementary memorandum; this, like the first ground, affects only the conviction on the second count.

No corroboration of the police officers' evidence was required by law, as is conceded, but the trial Magistrate did look for corroboration and found it in the fact that "so very much of what they say is corroborated by the accused himself". That was indeed the true position on the evidence: there was no dispute as to the incidents of the search of the appellant's flat, and his arrest, or as to the production by him of the Sh. 1,425 specified in the second count; the sole issue on this part of the case being whether the money was given to the police officers for a corrupt purpose, as they alleged, or whether it was to provide "cash bail" as the appellant alleged. Mr. Dingle Foot contended that in these circumstances the coincidence of the evidence of the parties, being equally consistent with both versions as to the purpose to which the money was to be put, could not corroborate either. In support of his argument he referred us to the cases of *In re Finch*, (1883) L. R. 23 Ch. D. 267 at p. 277, where Lindley, L. J., said: "evidence which is consistent with two views does not seen to me to be corroborative of either". He also referred us to R. v. Watson, (1913) 8 C. A. R. 249, and R. v. Rogers, (1914) 10 C. A. R. 276. We think, however, that the matter before us is more analogous to the case of *Credland v. Knowler*, (1951) 35 C. A. R. 48.

That was a case of an indecent assault on a child and the defence (as in the present case) was that the allegation was concocted. The evidence of the child, or rather of the children, for there were two, had to be corroborated and one of the questions raised on the appeal was whether corroboration could be found

in the admission of the appellant that he had gone to the place where the offence was alleged to have been committed with the two children, though he denied that he had done anything wrong or indecent there. In delivering judgment dismissing the appeal, Goddard, L. C. J., said, at p. 56:-

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"As has been pointed out over and over again, where the question is whether a person's evidence is corroborated, the whole story has not to be corroborated, because if there is evidence independent of the person whose evidence requires corroboration which covers the whole matter, there is no need to call that first person at all. The evidence has only to be corroborated 'in some material particular' or 'by some other material evidence'. Of course, the appellant's own statement is material evidence and it seems to me that the statement which he made was most material and did afford strong corroboration. It did not corroborate the whole of the children's story, but it corroborated the children's story to such an extent that it showed that the appellant, who had never taken either of these children for a walk before, had gone with them to the place to which they said he took them, that he sat down not for the purpose of resting, or telling them a story or anything like that, merely for two minutes, and then kissed one of them. That seems to me to be the strongest corroboration of the children's evidence that he not only did that. but went on to do something further, because it shows that the children had been telling a perfectly true story up to the time when he said that he did not do anything and they said that he did."

Prima facie, it is difficult to reconcile this pronouncement with the dictum of Lindley, L. J., in Finch's case, and with some of the dicta of Pickford, J., in *Watson's case* at p. 253; but *Credland's case* was not cited to us during the hearing and we have not had the benefit of argument on it. It is not. however, necessary to decide the question in this case because we have come to the conclusion that the appeal as regards the conviction on the second count must be allowed on another ground.

There remains the first ground in the supplementary memorandum which also affects only the conviction on the second count, namely, that the Magistrate misdirected himself on the onus of proof. It is settled law that a Judge or a Magistrate sitting as the tribunal of fact is not required to direct himself as fully as a Judge should direct a jury: in Matalo v. Reg. (Privy Council Appeal No. 48 of 1954, E. A. C. A. Criminal Appeal No. 371 of 1954), their Lordships of the Judicial Committee said:-

"Nor do their Lordships consider that any criticism can be directed to the judgment because the Judge did not deal with the possibility of a verdict of not guilty on the ground of accident or self defence... In this connexion it must be remembered that this is an appeal from the judgment of a Judge who was alone responsible for the final verdict and that although he has to give his reasons he cannot be expected to direct his observations to aspects of the case which are irrelevant to his findings of fact but which might have been necessary in a charge to a jury."

Of course, no one would suggest for one moment that the question of the onus of proof in a criminal trial could ever be irrelevant. But, whereas the absence of a sufficient, specific direction on the point will usually result in the quashing of a jury verdict, the consequences of the absence of a specific direction in a judgment written by a Judge or a Magistrate may well be different. An appellate Court will not readily assume that an experienced, trained Judge or Magistrate has failed to address his mind to such a fundamental element in a criminal trial. It is with these considerations in mind that we approach Mr. Dingle Foot's submissions on this ground of appeal.

The Magistrate in the present case wrote a very careful and lengthy judgment, running to 26 pages of typescript in the record, in which he reviews all the evidence, weighs it and states his conclusions. But nowhere does he expressly direct himself generally as to where the burden of proof lies in a criminal prosecution.

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In these circumstances, although we would not readily assume a misdirection, or non-direction, it is natural to look through the judgment for indications that the Magistrate did have the proper rule in mind. This we have done, but we can find no such indications. Indeed the only passages bearing on the question of burden of proof indicate that the Magistrate did misdirect himself, At p. 86 he says: "the whole case must turn on whether the accused or the police party is to be believed", which is of course an over-simplication. At p. 90 in dealing with the ammunition charge, he says, "It will thus be quite clear that unless accused can prove beyond any doubt that he had a lawful excuse for being in unlawful possession of ammunition... he must suffer the consequences". This is, on any view of the case, a clear misdirection, as Mr. Brookes conceded; and although in terms it relates only to the first count and is, on the true construction of the Firearms Ordinance, 1953, immaterial as regards the conviction on that count (there being, as we have already said, no defence in law thereto); yet, nevertheless, it does surely indicate (in the absence of any direction on the other two charges) that the Magistrate had not generally in mind the correct rule. There are other passages in the judgment which support this view but we do not think it necessary to review them in detail. If the evidence on the second count were sufficiently strong it would be possible for us to uphold the conviction in spite of these indications of misdirection, but it is not. We cannot be sure that the Magistrate did correctly direct himself as to the onus of proof generally, or that the failure so to direct himself has had no effect on his conclusions.

We therefore allow the appeal so far as it relates to the second count; the conviction thereon and sentence imposed in consequence thereof are set aside. The appeal so far as it relates to counts 1 and 3 is dismissed.