Ladha v. R. Crim. App. 193 of 1971 E.A.C.A 8/2/72; Duffus, P. Saidi C. J. and Law, J.A. (Judgment of the Court).

Ladha v. R. Crim. App. 193 of 1971 E.A.C.A 8/2/72; Duffus, P. Saidi C. J. and Law, J.A. (Judgment of the Court).

This was an appeal from an order of revision made by a judge of the High Court under s. 327 of the Criminal Procedure Code. S. 327 reads: ‘The High Court may call for an examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the irregularity of any proceedings of any such subordinate court”. The appellant had paid to another person Shs. 4,000/- in Tanzanian currency in exchange for a cheque for £ 200 sterling drawn on a British band. They were both convicted on their own plea of offences c/s 7(1)(b) of the Exchange Control Ordinance, Cap. 294 and were both fines Shs. 2,000/= The High Court acting on a complaint from the Governor of the Bank of Tanzania enhanced the sentence. The accused were represented at the review of the sentence. The appellant was sentenced to six months imprisonment and had his fine increased to Shs. 6,000/- The other accused had his fine increased to Shs. 10,000/= This accused did not appeal. On appeal counsel for the appellant made four submissions. (i) That the High Court was wrong in revising the matter under s. 327 of the Criminal Procedure Code as  the resident magistrate’s court had not made any error in sentencing the accused, (ii) that the learned judge failed to comply with the principles of natural justice in the exercise of his powers, in that these proceedings were, on the face of the record, instituted on a complaint by the Governor of the Band of Tanzania and                                the fact of Tanzania would also have influenced the decision of the learned judge, (iii) that the sentence imposed on the appellant was discriminatory in that the sentence imposed on the appellant was discriminatory in that the sentence imposed on the second accused was only that of  a fine whilst that imposed on the appellant is one of imprisonment, (iv) that the judge in imposing the increased fine on the appellant had exceeded the jurisdiction of the magistrate. [The court cited Desai v. R. 1971 E.A.C.A. 416 where the

Same court set out the principles on which it would be guided in deciding such matter. In that case the Court held “On consideration, we think that while it is not open to us to consideration, we think that while it is not open to us to consider, on second appeal, whether a sentence is unduly severe or unduly lenient, it must be open to us to consider whether a sentence is lawful, and to interfere if it is not. By necessary extension, we think we have jurisdiction to entertain a submission that a trial court, in considering the sentence to be passed, has misdirected itself in law and, if we uphold such a submission and consider that the sentence passed resulted directly from the misdirection, to interfere with that sentence, so as to substitute for it the sentence which the trial court would imposed had it directed itself correctly”].

            Held: (1) “The High Court is justified in interfering with a sentence on the ground that the sentence was completely inadequate having regard to the seriousness of the offence. In sentencing the appellant the senior resident magistrate found that the admitted contravention of the Exchange Control Ordinance did not adversely affect the national economy. In his judgment the learned judge held that this was wrong and that in fact the transaction did affect the national economy. With respect to both the senior resident magistrate and the judge, the transaction was of such a nature that although it would probably gave caused some effect on the national economy, even if only to amonor extent, but the effect had not yet occurred, as the transaction was never completed. On the other hand, admittedly any offence against the Exchange Control Ordinance is potentially an offence of a serious nature as such offences may affect the economy and financial resources of the country. We consider that the High Court had jurisdiction to act under section 327 on the facts of this case and, in the words of the section, “to satisfy itself as to the correctness, legality or propriety of the sentence”. We further consider that the High Court acting as it did in increasing the sentence was acting legally within its jurisdiction and the question as to the quantum or nature of the sentence is a matter coming within the meaning of ‘severity of sentence’ and therefore a matter on which we have no jurisdiction.” (2) “There was absolutely no justification to even suggest that the learned judge who heard and made the revisional order, was in any way affected by the question as to who made the complaint. A judge of the High Court has power, on his own motion, to call for and revise any proceedings came to his knowledge. It would perhaps have been better if the Governor of the Bank had made his complainant through the Director of Public Prosecutions but the fact that the made it direct cannot vitiate these proceedings. We can find no justification for the submission that there had been a breach of the principles of natural justice in his respect.”

(3) “We agree that care should be taken never to discriminate between two accused persons when all the circumstances and facts are the same but this was not the case here. First, the offence had been brought about by the request of the appellant to the second accused to assist him in paying school fees in the United Kingdom so to some extent the appellant was perhaps more to blame than the second accused. Then there was the further fact that as a result of this transaction the second accused had lost a responsible and good position which he held in Tanzania and has had to leave the country. There is the further fact that the appellant was a resident of Tanzania whilst the second accused is a foreigner. These were all fact which distinguished between the two accused persons and would in our view have been justification for the differences in sentence. (4) “A further point raised was the fact that the judge in imposing the increased fine on the appellant had exceeded the jurisdiction of the magistrate. The term of imprisonment was, however, within the magistrate’s jurisdiction. However, the amendment to section 329 (3) of the Criminal Procedure Code specifically gave the High Court this power of increasing  the sentence and in these circumstances we cannot say that the learned judge was wrong in exercising his discretion in the way which he did. We find therefore that the High Court passed the sentence within its jurisdiction and we are unable to find that it acted on any wrong legal principles. We might say that in the circumstances of this case the sentence of imprisonment itself for a first offender appears to be unduly severe, especially having regard to the purpose for which the money was required, but this is not a matter on which we have any authority to act. It might, however, be considered by the proper authorities.” (5) Appeal dismissed.