Ally Kassam v. R., Crim. App. 97-DSM-72, 6/7/72.

 

Ally Kassam v. R., Crim. App. 97-DSM-72, 6/7/72.

            ONYIUKE, J. The appellant was charged in the District Court of Mtwara ….with Corrupt Transaction with Agent c/s 3(2) of the Prevention of Corruption Act No. 16 of 1971 …….. When the case came up for trial …. The charge was read out to the appellant who pleaded thereto in the following words: - “It is true!” The Public Prosecutor gave a statement of the facts as follows: - “The facts of the case are as follows: - The accused is called Ally Mohamed Pirbhai Kassam aged 38 years. He is a merchant of Commercial area Mtwara. He is charged with the offence of corrupt transaction with an agent c/s 3(2) of the Prevention of Corrupt Transaction Act No. 16 of 1971. It happened on 15th of December, 1971. On such day the accused approached A.S.P Mbawala the Regional C.I.D. Officer Mtwara and asked him if he could do favour to him if he could get him a certificate of good character from the Officer-in-charge Identification Bureau, Dar es Salaam, in order to enable the accused to get a clearance pass to travel to America. The accused at the same time produced a list of eleven other persons for whom he also pleaded to get such certificate of good character, for the same purpose. I now produce in court such list of other eleven persons. E.P.1. I also produce a draft certificate which the accused gave to the said Mbawala which was intended to be the form of the certificate. The accused also promised to offer Shs. 100/= for each of the persons listed by him on the list given to the said Mbawala. E.P.2. Upon that the said Mbawala told the accused that he was going to consider about it and therefore asked the accused to come later. The accused did not return to Mbawala yesterday. This morning the 16^th December 1971 at about 9.40 hours the accused went to Ligula Government Quarters and entered the house of Mr. Mbawala who is at the moment on leave. Mr. Mbawala asked the accused why he got there against and the accused replied that he had got there for the same request he had made yesterday and that he had Shs. 200/= to offer to him. By then Mr. Mbawala had invited some Police officers to his house and they hid in different rooms. Then the accused offered Shs. 200/= two notes of Shs. 100/= each which I now produce in court being Nos. C. 116855 and D.408516 E.P. 3. As soon as Mr. Mbawala had received Shs. 200/= he coughed, after which other Police Officers approached where Mr. Mbawala was with the accused. They found the accused and Mr. Mbawala in possession of Shs. 200/=. Immediately Mr. Mbawala reported to such other police Officers that the accused had brought him Shs. 200/= after which the accused was arrested and taken to the police station this morning and charged with the offence in question.”   

            To these facts the appellant stated as follows: - “What has been stated by the prosecution is correct.” The learned Magistrate thereupon proceeded to convict the appellant upon his own plea and sentenced him to the statutory minimum sentence of 2 years’ imprisonment and

to 24 strokes corporal punishment. The appellant has now appealed to this Court against his conviction on the ground that “the learned Magistrate erred in law in convicting the appellant on the facts set out by the prosecution in as much as the facts did not disclose that the act complained of was done corruptly ……” Mr. Lakha, learned Counsel for the appellant in arguing the appeal advanced the following arguments:;- “(i) That the net result of the facts as stated was that the appellant gave Shs. 200/= to the police officer so that he would issue him a certificate of good record with which the appellant could procure a clearance certificate to travel to America. (ii) There was nothing in the statement of facts that he had a bad record. (iii) On the contrary, the fact that the appellant was a first offender showed that he had not previous bad record. (iv) There was nothing in the statement of facts to show the appellant was acting dishonestly. (v) The prosecution has to show in a charge under Section 3(2) of the Prevention of Corruption Act that the appellant offered the money corruptly, that is to say, with evil mind. The statement of facts, the admission of which was relied upon an evil mind but this has not been disclosed.”

            For the purposes of this appeal and of the arguments it was assumed on both sides that it was the function of the police officer, Assistant Superintendent of Police of the Regional C.I.P. Officer Mtwara, Mr. Mbawala, to issue a certificate of good record. The contention was that the appellant had in fact a good record and was entitled to a certificate of good record. It was the duty of the police officer to issue him a certificate of good record. All that the appellant did was to offer and to give him Shs. 200/= to do his duty. The money offered or given in these circumstances could not be said to be offered or given corruptly. Mr. Lakha relied on the decision of Hamlyn j. in MAKUBI v. REPUBLIC, (1968) E.A. 667 at 668 for the proposition that in a case where an accused pleads guilty to a charge of corrupt transaction with an agent he must be shown to admit the essential ingredient of his act being corruptly done, that is to say, with an evil mind. In that case the appellant was charged with an offence of corruption c/s 3(2) of the Prevention Corruption Ordinance (which is identical to the section with which the present appellant was charged in the instant case). The facts of that case were that the appellant was a herdsman and on the material date was visited by the village executive officer for the purpose of counting the appellant’s livestock. It appeared that in the locality, a local rate was imposed by the council, based on the number of cattle owned by each person. The village executive officer informed the appellant of what he intended to do and proceeded with his count. The appellant informed him however that the herd contained the cattle of neighbours and that consequently the assessment should be based only upon these beasts which were his property. The village executive officer told the appellant that once the cattle were all in his ‘kraal’ he

would be assessed upon the total number found there. Whereupon the appellant handed the village executive officer a Shs. 20/= currency note with the request that he abstain from including the cattle said to belong to the neighbours in the total count. The village executive officer thereupon arrested the appellant and he was later charged ….. under Section 3(2) of the Prevention of Corruption Ordinance. In his plea the appellant was recorded as saying: - “I gave the 20/= because he wanted to count my cattle including some of another man which happened to come to my group of cattle. I wanted him not to count them. I gave him the money as an inducement not to include the other cattle which were of another man.” The learned Magistrate entered a plea. Hamlyn, J. in dealing with the appeal against conviction stated as follows: - “Section 3(2) of the Prevention or Corruption Ordinance makes it an offence for any person corruptly to give, promise or offer any consideration as an inducement or reward for an agent to do or forbear to do anything in relation to his principal’s affairs. A necessary ingredient of the offence is that the act shall be done ‘corruptly’. Is it clear that the act of the appellant in hading to the village executive officer the Shs. 20/= was a corrupt act? It is certainly a most injudicious one and the appellant’s remedy was clearly to appeal to some higher authority against a count and assessment which he claimed to be incorrect.” The learned Judge stated that the Ordinance did not contain an interpretation of ‘corruptly, but referred to R. v. AKBARALI K. JETHA (1945) 14 E.A.C.A. 122 where the court of Appeal observed that ‘the crux of the offence of official corruption is the motive which animates the giver’ and to MANDIA v. REPUBLIC (1966) E.A. 315 where the court of appeal said “that the appellant’s state of mind, which in our view includes motive and intention seems to be an essential and material factor in determining whether in making the payment, he was acting corruptly or not.” The learned Judge concluded by saying: - “In the instant case it seems clear that there was no evil mind on the part of the appellant. The dictionary meaning of ‘corrupt’ in this sense is to induce to act dishonestly or unfaithfully and in no sense can the appellant be said to have acted thus. It is true that his offer of the Shs. 20/= laid itself open to such interpretation at first sight and the trial Magistrate clearly interpreted it in such manner. The reply of the appellant to the charge was not in fact an unequivocal plea of guilty for no where does he admit to the essential element of his act being ‘corruptly done’.” In the final event he allowed the appeal and set aside the conviction and sentence.

            Section 3(2) of the Prevention of Corruption act No. 16 of 1971 under which the present appellant was charged provides as follows:- “3(2): Any person who by himself or by or in conjunction with any other person, corruptly gives, promises or offers any advantage to any person,

whether for the benefit of that person or of another person, as an inducement to or reward for or otherwise on account of, any agent (whether or not such agent is the person to whom such advantage is given, promises or offered) doing or forbearing to do, or having done or foreborne to do, anything in relation to his principal’s affairs or business, shall be guilty of an offence.”….. To establish an offence under this subsection in so far as it is material to this appeal it must be proved (i) that the person charged, offered or gave a consideration to a agent (ii) that he offered or gave it an inducement or reward for his doing or fore bearing to do something in relation to his principal’s affairs (iii) that he offered or gave that consideration corruptly.

            Subsection (2) and indeed the whole of section 3, as I understand it, applies to any agent whether he is a public officer or a private person and to the affairs of a principal whether it is a public authority or a private person. Before I deal with subsection (2) of Section 3 I would refer to section 6 of the Act. It provides that “Any person being a public officer, solicits, accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any advantage without lawful consideration or for a lawful consideration which he knows or has reason to believe to e inadequate, from any person whom he knows or has reason to believe to have been or to be or to be likely or about to be concerned in any matter of transaction with himself as a public officer …… shall be guilty of an offence …..” It does not make it an offence for the giver to offer or give the advantage unlike Section 3 of the Act. It will be noted that in section 6 nothing was said about soliciting or accepting or obtaining the advantage corruptly. It is designed to discourage and penalise the taking of presents by a public functionary when a transaction or matter is pending or likely to the pending between him in his official capacity and the person from whom the accepts or obtains the present or advantage. The difference between section 3 and Section 6 of the act was explained by Dr. Gour in his work on the Penal Law of India 2^nd Edition Vol. 1 at P. 825 Paragraph 1451 when commenting on the corresponding sections in the Indian Criminal Law as follows: - “The difference between the acceptance of a bribe made punishable by Section 161 (which corresponds to our Section 3) and this section (our Section 6) is this. Under the former section the present is taken as a motive or reward for abuse of office; under this section the question of motive or reward for abuse of office; under this section the question of motive or reward is holly irrelevant, and the acceptance of a present is forbidden because, though ostensibly taken for no consideration, it is in reality a bid for an official favour, the refusal of which after acceptance of the present may not be always possible.” Section 6 was designed to cover situations where it cannot be proved that presets were taken by a public officer corruptly. It says in effect that a public officer should not accept gifts from people with whom he is likely to deal in the course of his official duties even if he is not shown to be acting corruptly. I refer also to section 10 of the Act which deals with a presumption of corruptness in certain cases. It provides that ‘where in

any proceedings under Section 3, it is proved that any advantage has been offered, promised or given to, or solicited, accepted or obtained or agreed to be accepted or obtained by a public officer by or from a person or agent of a person, holding or seeking to obtain a contract from a specified authority, the advantage shall be deemed to have been offered, promised or give  and solicited, accepted or obtained or agreed to be accepted or obtained corruptly as such inducement or reward is as mentioned in section 3 unless the contrary is proved.” The position then is that unless a case under section 3 falls within Section 10 nothing is presumed and the three ingredients outlined above in regard to section 3(2) must be established beyond reasonable doubt b the prosecution. Lastly I will refer to a decision which deals with the essentials of a plea of guilty. In R. v. YONASANI EGALU & OTHERS (1944) 9 E.A.C.A. 65, Wilson, J. in delivering the judgment of the court of Appeal stated at p. 67 as follows:- “In any casein which a conviction is likely to proceed on a plea of guilty (in other words, then an admission by the accused is to be allowed to take the place of the otherwise necessary strict proof  of the charge beyond reasonable doubt by the prosecution ) it is most desirable not only that every constituent of the charge should be explained to the accused but that he should be required to admit or deny every constituent and that what he says should be recorded in a form which will satisfy an appeal court that he fully understood the charge and pleaded guilty to every element to it unequivocally.”

            I will now address my mind to Mr. Lakha’s submissions in the light of the foregoing. As I understand it what he was saying was that it was not enough to establish that the appellant gave Shs. 200/= to the police officer as an inducement to do something in relation to his principal’s affairs or business, to wit, to issue him a certificate of good conduct or record but that he must give the Shs. 200/= corruptly. The decision of the court of appeal for eastern Africa (MANDLA v. R., (1966) E.A. 315) has established that consideration corruptness involves an inquiry into the state of mind which covers intention and motive. The mind which is material to be established is ‘evil mind’. Both intention and motive must therefore be shown to be evil or dishonest. Evil mind in the context of the present case would require proof that the appellant intended to induce the police officer to go against his duty, that is to say, to do what his duty forbids him to do or to omit what his duty enjoins him to do; in other words that the appellant gave the police officer money as an inducement to sway or deflect him from the honest and impartial discharge of his duties or that he gave the money as a bribe for corruption or its price. This meant that it must appear from the statement of facts given by the prosecution in the instant case that the appellant had no good record but that he gave the money to the police officer as an inducement to give him a certificate of good record. If then the appellant had a god record and he gave the police officer the money to issue him a

Certificate of good then his motive was not dishonest because the police officer was merely asked to do his duty. It was in this connection that Mr. Lakha cited the decision of Hamlyn, J. in MAKUBI v. R., (1968) E.A. 667 in support of this contention. Although he did not say so in so man words he seemed to suggest that if the police officer had accepted the money he would have committed an offence under section 6 and not under section 3 of the Act and then section 6 did not make it an offence for a private person to give an advantage when a matter is pending between him and a public officer in his official capacity.

            I have however to relate these interesting submissions t the fact of the instant case, I did not think I am called upon to give judgment of legal propositions in the abstract. This case relates to an offer of money and to money given to a public officer and I will deal with it in that light. A public officer is expected to carry out his duties (using duties to cover the whole range of his official activities) honestly and impartially and to show loyalty to his employer ad this he cannot do it he is affected by consideration to show favour in the performance of his duties or to act contrary to his duty. I think it is in this light the word ‘corruptly’ or evil mind should be considered. Where a person! Offers or gives an advantage to a public officer with a view to sway or deflect him from the honest and impartial discharge of his duties or to wheedle him from his loyalty to his employer in the handling of his affairs he opens himself to the charge that he is acting corruptly. Turning to the facts of this case it was established that the appellant approached the public officer and requested a favour from him in his handling of the affairs of his employer. The favour was to issue him a certificate of good record in his capacity as an officer n charge of the Police Identification Bureau. He gave the officer a specimen of the certificate he wanted. He requested the same certificate for each of the eleven persons whose names he submitted to him. For doing this favour he stated he was prepared to pay Shs. 100/= in respect of each certificate issued. He went beyond mere promises. He actually gave the police officer Shs. 200/= to induce him to issue the certificates. The appellant admitted all these facts. It seems to me on these facts that the appellant intended to buy the officer’s loyalty and to get him to act in the way he wanted him to act irrespective of whatever might have been the officer’s obligations to his employer. The money was not meant to be a fee. It was the price he was prepared to pay to get the officer to do his bidding; in other words he was tempting the officer with money to do his bidding. At first sight this appears to be dishonest. It was then argued that if the intention appeared to dishonest it must be shown that the motive

was also dishonest. What does motive mean? Motive is said to relate to the end, and intention to the means for achieving that end. Motive is something that animates an intentional act – the ulterior intention, an intention with which an intentional act is done. (Glanville Williams, Criminal Law, The General Part, 2^nd Edition, Section 21), Assuming the word ‘corruptly’ requires’ consideration of an ulterior intention the question that arises for consideration in this case is what was the appellant’s ulterior intention? He had personally not said anything about his motive in his plea. His counsel however made certain statements in his plea in mitigation of sentence. The substance of his submissions was that the appellant acted our of ignorance and out of fear of he police. As to ignorance, the position then was that the appellant did not know he was legally entitled to a certificate of good record from the police. His motive then was to buy it, that is to say, to get the police officer to give it to him for a bribe. As to fear, the position then was that he intended to warm himself into police confidence by buying their loyalty. Either way, it seems to me that the motive was anything but honest. Can it be said that because in getting the police officer to do his bidding it turned out that the police officer happened to be doing his duty also that the intention and motive was the less corrupt? I do not think so.

            The view I hold of the facts of this case makes it unnecessary for me to consider the principle which was alleged to have been established by Hamlyn J. in MAKUBI v. REPUBLIC (1968) E.A. 667, namely, that the giving of money to a public officer to do his duty cannot amount to a corrupt act. I can only hope that the Court of appeal for East Africa may one day throw some light on this matter. Finally, I have to mention that the learned State attorney who appeared for the Republic indicated that the Republic did not support the conviction. I feel, however, impelled by the reasons I have given above to sustain the conviction. In the final result I will hold that the appellant’s plea was unequivocal, that he admitted the essential ingredients that constituted the offence with which he was charged and that he statement of facts given by the prosecution covered the essential ingredients of the offence. I will therefore dismiss this appeal as incompetent under section 313(1) of the Criminal Procedure Code.