Mwenya v Queen (Criminal Appeal No. 67of 1955.) [1955] EACA 266 (1 January 1955)

APPELLATE CRIMINAL

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JAMES MWENYA, Appellant

THE QUEEN, Respondent

Criminal Appeal No. 67 of 1955.

Criminal Law-Penal Code, section 308-Obtaining money by false pretences-Tax money obtained by legitimate demand without evil intent—Subsequently converted—Whether obtained by a false pretence—Criminal procedure and practice—Allegation by prosecution of other complaints not charged or proved -Not admitted by accused-No opportunity to rebut or to be heard in mitigation—Impropriety—Whether sentence excessive.

An African sub-headman collected tax in course of his duty. He made a lawful demand for tax to an African and obtained the money without mens rea, intending to hand the same over to revenue. Ten months later his mind changed and he formed the intent to convert the money unlawfully to his own use in course of which design he issued a palpably forged tax receipt. He was charged on three counts of forging and uttering the tax receipt and with obtaining the tax by means of a false pretence. The particulars of the last charge ran:-

" $\ldots$ on the 28th day of November, 1954, knowingly and fraudulently obtained Sh. 77 from .................................... for poll tax payment. $\ldots$

He had, in fact, as the magistrate found, obtained the money during the previous month of January. The magistrate acquitted the accused of forgery<br>but convicted him upon the two remaining counts and sentenced him to six months' imprisonment on the count of uttering and a fine of Sh. 300 in default to suffer a further three months' imprisonment on the count of obtaining. After conviction the prosecutor pressed for an exemplary sentence alleging complaints of like offences. From the record the convict was not given an opportunity to rebut these alleged complaints nor did he admit them nor was he given an opportunity to reply in mitigation. The convict appealed.

$Held$ (20-5-55).—(1) The magistrate had found that the appellant had lawfully collected the money with the bona fide intent to account for it but had changed his mind ten months. later and had then formed the intent to convert the tax for his own use. No false had committed, he could not be convicted of obtaining money by false pretences.

(2) Complaints are not convictions and it was improper for the prosecutor to allege offences which had neither been charged nor proved. The appellant had not admitted these offences, nor had he been given an opportunity, w far from excessive and did not call for interference by the Appellate Court.

Conviction and sentence on count of uttering upheld; conviction on count of obtaining by a false pretence quashed and sentence set aside.

Appellant, absent unrepresented.

Havers. Crown Counsel, for the Crown.

$v$ .

JUDGMENT.—The appellant was convicted on 9th February, 1955, by the first class magistrate, Vihiga, of uttering a forged tax receipt and sentenced to six months' imprisonment with hard labour. He was also convicted at the same time of obtaining money by false pretences and fined Sh. 300 or in default three months' imprisonment with hard labour. This sentence was to be served consecutively to the six months already mentioned.

Against these convictions and sentences he appeals.

$\epsilon$

The facts, according to the prosecution were, in brief: —

The appellant is a sub-headman and was collecting land tax. In January, 1954, he collected Sh. 98 from one Samwel Mukangula. This represented tax for three years, viz.: 1952, 1953 and 1954. The appellant issued a receipt for the 1954 tax only. Apparently, this would not be unusual as the old receipt books would be withdrawn before the new tax is collected. (I take that to be the meaning of the last sentence of the first paragraph of the magistrate's judgment.) The appellant only paid in to the revenue authorities, the amount of the 1954 tax (for which he had given a receipt) and did not pay in the 1953 or 1952 tax.

Being worried by Samwel for receipts, the appellant gave to Samwel a receipt which had been issued to another man, over whose name Samwel's name had been superimposed. The receipt was forged and the appellant was charged with forging and uttering it. The magistrate held that there was no evidence that the receipt (though forged) had been forged by the appellant and acquitted him on the forgery charge. The magistrate, however, convicted the appellant on the charge of uttering. There was plenty of evidence, if the magistrate believed it, on which he could reasonably convict of uttering. I see no reason to interfere with that conviction and the appeal against it is dismissed.

As to sentence for the offence of uttering, the magistrate seems to have allowed the prosecutor to say that there were other complaints of the same nature against the appellant. This was quite improper. If there were other complaints of this nature, they should have been charged and proved, or not mentioned, and they certainly should not be taken into account in assessing sentence, unless the accused admitted them and asked for them to be taken into account. Complaints are not convictions. Moreover, the accused was apparently given no opportunity of rebutting this improper remark by the prosecutor, and he was not asked if he had anything to say before being sentenced. It does not appear whether the magistrate did take this remark of the prosecutor into account. I do not think that six months is an excessive sentence for uttering a forged tax receipt, and it must stand.

As to the third count—the count of obtaining money by false pretences, I am of opinion that the conviction on that count cannot stand. The obtaining mentioned in the charge was an obtaining in November. The magistrate found that in *November* the appellant formed the intention of keeping the money which he had been given in January. But if he obtained the money in January genuinely intending to collect it from Samwel as tax due and to pay it in, he did not obtain it by a false pretence. The fact that he changed his mind in November—ten months later —and decided fraudulently to convert the money to his own use might expose him to a charge of theft in November; but could not make the antecedent representation to Samwel, made in the previous January, into a false pretence. No "pretence" was made in November. The representation was made in January and, on the magistrate's finding, it was not then false. The conviction and sentence on count three must be quashed.