Rex v Singh (Criminal Appeal No. 127 of 1948) [1948] EACA 30 (1 January 1948)

COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Ugànda), and SIR JOHN GRAY, C. J. (Zanzibar)

REX, Respondent (Original Prosecutor)

ν. SANTOK SINGH, Appellant (Original Accused)

Criminal Appeal No. 127 of 1948

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

Criminal Law-Diamond Industry Protection Ordinance, 1928, section 3 (1)-Trap set for employee by employer—Observations of Court of Appeal— Sentence.

The appellant, an employee of Williamson Diamonds, Ltd., was charged with unlawful possession of diamonds. A trap had been set to catch another employee, but not the appellant, who was not under suspicion; nevertheless, the appellant fell into it. On conviction he was sentenced to five years' imprisonment with hard labour.

On appeal.

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*Held* $(21-7-48)$ .—That in the circumstances the sentence was excessive.

Observations of the Court of Appeal on the matter of sentence.

$R$ , v. Jamal Din, 12 E. A. CA. 75 considered.

Observations of the Court of Appeal on the undesirability of setting traps to test the honesty of employees.

Dictum of Lord Goddard, C. J., in Brannan v. Peak, 1947 2 A. E. L. R. 572 referred to. Appeal dismissed. Sentence reduced to three years' I. H. L.

Appellant absent, not represented.

Holland, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—The appellant in this case has been convicted in the High Court of Tanganyika of being found in possession of diamonds contrary to section 3 (1) of the Diamond Industry Protection Ordinance, 1928.

The appellant was certainly unable to prove that he had obtained the diamonds lawfully, and on the evidence of the decoy, Hamisi, and of the Security Officer, Mr. Vernon, the learned trial Judge, having accepted that evidence, was certainly justified in concluding that the Appellant's possession was unlawful.

The appellant in his Memorandum of Appeal has taken the point that the presence of the diamonds under the seat of a motor car of which he was not the owner but only the user, cannot in law amount to possession on his part. We are unable to accept this submission. There was evidence that the car in question was habitually used by the appellant and from the evidence of the two prosecution witnesses already referred to, it emerged that the appellant, immediately after his conversation with Hamisi, drove off in the car. Not very long after the diamonds were discovered under the driving seat.

Although the witness Hamisi was not strictly an accomplice the learned trial Judge was right in looking for corroboration of his evidence, which was supplied in more than one material particular by the evidence of Mr. Vernon. Furthermore Mr. Vernon's evidence, having been accepted by the learned Judge, the appellant's denials that he had ever met Hamisi that morning reinforced the inference of guilt.

Although the appellant in his Memorandum of Appeal has not specially stressed that the sentence imposed on him was excessive, we have given this matter our particular attention. There is no doubt at all that the sentence imposed is a very severe one, but the learned trial Judge has given his reasons which induced him to pass a deterrent sentence, and we cannot say that those reasons are not good ones.

There is, however, one factor in this case which is not mentioned by the learned trial Judge and which may have escaped his notice. We note with some surprise that it was not urged by appellant's Counsel in mitigation. There is no doubt at all from Mr. Vernon's evidence that the appellant was not under suspicion as being a person disposed to unlawful trafficking in diamonds. The trap set by Mr. Vernon was set for someone else and the appellant fell into it. To that extent, therefore, we think it fair to assume in the appellant's favour that he may have given way to sudden temptation, and to temptation, be it noted, which was supplied by the management. We can well believe that the Diamond Mining Industry may call for special and extraordinary methods of protection against thieves. Nevertheless we should be sorry to see the methods employed in this case generally adopted by employers as a means of testing the honesty of their employees. As was pointed out very forcibly by the Lord Chief Justice of England in a recent case: "A police officer who by persuasion induces another to commit an offence, even although his action in doing so is for the purpose of detecting crime, is in a sense an aider and abetter in its commission. (Brannen v. Peek, 1947, Vol. 2, A. E. L. R. 572.)

In the case of Rex v. Jamal Din, 1945, XII, E. A. C. A. 75, this Court refused to consider a reduction of a sentence of 5 years' imprisonment imposed by the High Court of Tanganyika for the same offence. In that case this Court addressed itself very seriously to the question as to whether the sentence was excessive and came to the conclusion that it was not. The accused was a cattle dealer in a large way of business and his conviction was not the result of a police trap and in its judgment the Court referred to an earlier case where a much lighter sentence had been given in circumstances where there had been an inducement to purchase diamonds by the procedure of a police trap.

We think that had this aspect of the present case been considered by the learned Judge, he might have imposed a somewhat less severe sentence than one of five years' imprisonment with hard labour. We propose, therefore, in dismissing the appellant's appeal against conviction, to substitute for that term a sentence of three years' imprisonment with hard labour.