Michael v. R. Crim. App. 58-M-71; 12/6/71; El-Kindy Ag. J.

Michael v. R. Crim. App. 58-M-71; 12/6/71; El-Kindy Ag. J.

The appellant was charged with and convicted of uttering counterfeit coin c/s 360 of the Penal Code. The appellant purchased a number of articles in a shop and tendered a counterfeit 100/= note in payment.

Held: (1) “The only issue is whether the evidence in fact disclosed the offence of uttering counterfeit coin. The relevant section is 360 of the Penal code which reads: “360. Any person, who utters any counterfeit coin, knowing it to be counterfeit, is guilty of a misdemeanour.” (After quoting the definition of coin in Section 353 of the Penal Code). “In neither of these descriptions, is it stated of what substance the said “coin” should be made of. It assumes that the substance of coin is not a subject of dispute. However, a similar problem arose in the case of R. v. Nesto Kilabi (1969) H. C. D. No. 306 where Platt J., as he then was, held that counterfeit note is not included in counterfeit coin. I agree with the views of the learned judge in that case. It seems to me that it is not in accordance with reason and sense to take a currency note for a coin unless a statue specifically or by necessary implication includes such reference.” (2) “If the appellant had committed and offence at all, it is an offence c/s 6(1) of he Currency Notes Ordinance Cap. 175 which reads as follows: “6(1) If any person with intent to defraud, forges or alters any currency not or knowing any note purporting to be a currency not to be forged or altered, utters the same, he shall be liable to imprisonment for any period not exceeding ten years.” “The issue is whether this Court, on appeal, can substitute a conviction under section 6(1) of the Currency Notes Ordinance, Cap. 175. Section 181(2) of the Criminal Procedure Code, Cap. 20 provide that where a person is charged with an offence and facts are proved which educe it to a minor offence he may be convicted of a minor offence although he was not charged with it. However, in this case, the appellant was charged with a minor offence (i. e. a misdemeanour whose maximum sentence, if not provided for, is two years as provided for in section 35 of Penal Code Cap. 16), but the facts proved show that the Offence committed carried the maximum term of imprisonment of ten

            Years, and therefore the offence proved was of a more serious nature than that of uttering counterfeit coins. It is, therefore, not open to this court to substitute the greater offence for the minor offence as it is generally offensive in principle to do so. In the result, the conviction on count I cannot be upheld.”