Silfano @ Ochanda s/o Okech v. R., H.C. Crim. App. 271-M-72, 3/10/72.

 

Silfano @ Ochanda s/o Okech v. R., H.C. Crim. App. 271-M-72, 3/10/72.

Held:   (1) On a charge of obtaining goods by false pretences it is necessary to prove an intent to defraud.

(2) To defraud is to deprive by deceit. Whereas to deceive is by falsehood to induce a state of mind, to defraud is by deceit to induce a course of action.

(3) When an accused obtained goods on credit by falsely pretending that he was the agent of another, an intent to defraud may be inferred even though it is unclear whether or not he intended to pay for them later.

(4) It is improper for a court to take into account rum ours or personal knowledge about the bad conduct of court clerks in general in sentencing a particular court clerk.

(5) It is improper for a court to take into account in sentencing the fact that the accused did not show his remorse by pleading guilty.

            EL-KINDY, J. – The appellant, SILIPANO @ OCHANDA s/o OKECH, was charged with and convicted of obtaining goods by false pretences contrary to section 302 of the Penal Code, Cap. 16, and he was sentenced to imprisonment for twelve months. He was also ordered to pay Shs. 12/= to Amir Thawer (P.W. 3). He appealed against conviction, sentence and order.

            On appeal, before me, the appellant was represented by the learned counsel, Mr. Matemba, and the respondent Republic was represented by the learned State Attorney, Mr. Massawe.

            The appellant was employed by the Judiciary as a messenger and he was working at the District/Resident Magistrate’s Court, Tarime. He was then working under Mr. Karosso, who was the Resident Magistrate in charge of the station. On the 17^th of March, 1972, at about 10 a.m. or 11 a.m., the appellant approached Mr. Korosso (P.W.1), in his office, and asked him if he could give him a written authority to enable him to collect some electric cells, referred to as “batteries” in these proceedings, from the shop of one Amir Thawer (P.W. 3), but the said magistrate refused to do so. It was understood that he appellant was seeking to make use of the credit facilities granted to Mr. Korosso by the said shop-keeper, Amir Thawer, but he person to pay for them would be the appellant although the name of the debtor would be that of Mr. Thawer, that sometimes Mr. Korosso obtained goods on credit without a written authority, and he mentioned previous instances when some cigarettes were delivered to Mr. Korosso through the agent he sent to collect them.

            In this case, when the appellant was denied the written authority, the appellant proceeded to the shop of Mr. Thawer (P.W.3) at about 2.45 p.m. The appellant said that after Mr. Korosso had refused him the alleged authority he advised him that he could, on his own, go to the shop and negotiate his credit as he required, but I see no comment from the evidence of Mr. Korosso on this matter. His evidence merely indicated that after he had refused to give the note, the appellant left his chambers. When the appellant arrived at the said shop, he approached Mr. Thawer who gave him the twelve cells.  According to Mr. Thawer, the appellant told him that he had been sent by Mr. Korosso to collect twelve electric cells. He said that he asked if he had brought a written authority, but he appellant told him that he had not as the said Mr. Korosso was too busy to write the required authority. He said that he believed what the appellant told him, and further believed that he had been sent by Mr. Korosso to collect the said goods. Mr. Thawer said that he had known the appellant or three years, and he knew him as a court messenger. He said that he handed over the twelve electric cells, which were worth Shs. 12/= and wrote an invoice (Exhn. D) In the name of Mr. Korosso, and he asked the appellant to sign thereon as the recipient and the appellant did so. The manner of making of the invoice showed clearly that credit was being given to Mr. Korosso and not to the appellant, and that the appellant signed thereon, as per Mr. Thawer, as a receiver of the cells on behalf of the debtor. To complete the prosecution case, on the 19^th of March, 1972, Mr. Korosso met Mr. Thawer and the latter asked him if he had received the electric cells, he had asked for, from the appellant, and the former replied that he would take legal action against the appellant as he had not sent him for anything of that sort. Mr. Korosso went further and alleged that on the 20^th of March, 1972, the appellant went to his house and apologized to him for taking cells in his name and asked to be forgive for what he had done, but he magistrate, under standby, refused to accept his apology and to forgive him. The appellant told the said magistrate that his father would sell a cow and that the money from such sale he would use to pay the price of the cells.

            On the other hand, the appellant denied that he collected the said electric cells in the name of or on account of Mr. Korosso. He said that he requested Mr. Thawer to give him the material electric cells on credit and that he would pay for hem on some other occasion when the returned from safari, and that Mr. Thawer agreed to his request. He said that he signed the invoice as the debtor and not as a receiver on behalf of Mr. Korosso. He said that at the time he signed the invoice he did not see that it was in fact made in the name of Mr. Korosso. [The court gave further details of the defence case and continued].

            The learned trial magistrate carefully considered the evidence before him. He held that the appellant made the representation to Thawer as Thawer alleged. For this conclusion he relied on the evidence of Thawer, Mr. Korosso and the invoice. He rejected the defence case as being untruthful. He found the appellant guilty as charged.

            Mr. Matemba attacked the conviction on two grounds. Firstly, he said that the evidence of Mr. Thawer was doubtful as it was likely that Mr. Thawer entered the name of his customer Mr. Korosso in order to ensure that he received payment for the said electric cells without the knowledge of the appellant and that it was most unlikely that the appellant, after he had been refused authority from Mr. Korosso, would still go to the shop of Mr. Thawer and claim that he had been sent to collect the said electric cells. In other words, Mr. Matemba, was saying that Mr.  Thawer was a tricky character and therefore his evidence should not have been accepted as easily as it was saying that Mr. Thawer was sticky character and therefore his evidence should not have been accepted as easily at it was accepted. ] The court outlined counsels’ submissions on this point and continued]. With due respect to the learned counsel for the appellant, I find no valid reason for holding that the evidence of Mr. Thawer and Mr. Korosso should have been rejected.

            The second line of the attack contended that the ingredients of the charge of obtaining goods by false pretences were no proved. He submitted that the prosecution should have proved not only the false pretence but also intent to defraud. He submitted that the learned magistrate did not go further to consider whether what he held to be a trick was done with intent to defraud. Mr. Thawer. He said that here was no evidence that the appellant did not intend to pay for the twelve cells. He quoted the judgment in the case of RAJANI v. R. (1958) E.A. 646 at p. 649. Therefore he said the conviction was bad as all the ingredients of the offence were not proved beyond reasonable doubt.

            On the other hand, the learned State Attorney, if I followed him and I understood him correctly, said that fraud was in this case proved, as fraud constitutes an act which induced a course of action, and that the appellant, by his representation had induced a course of action on the part of Mr. Thawer. For this proposition he quoted the case of AUGUSTINO BROWN CHANAFI v. R., Cr. App. No. 183/67 of Dar es Salaam High Court Registry and appearing in the (1968) H.C.D. n. 73 where Biron, J. held that to deceive meant to induce a state of mind and that to defraud meant to induce a course of action impliedly, the learned State Attorney did not think that tit was necessary for the prosecution to prove that he appellant did not intend to pay for the electric cells, and that the act of inducing Mr. Thawer to part with his goods amounted to fraud.  

            The charge was brought under the provisions of Section 302 of the Penal Code, Cap. 16. That section reads: “303. Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induced any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour, and is liable to imprisonment for seven years.”

            One of the ingredients of the charge is intent to defraud. I will, therefore not be enough just to prove that the goods were obtained by a false pretence or inducement. It has to be proved that it was done with intent to defraud. And the question, in this appeal, was whether the prosecution proved beyond reasonable doubt that the appellant did the act with intent to defraud unfortunately the learned Resident Magistrate did not clearly, if at all, direct his mind to this issue. In the last paragraph of his judgment, the learned trial magistrate held: “The only question which remains to be answered is: Did accused (appellant perpetrate any trick in obtaining the twelve battery cells from Amir?”

            As it can be seen the question posed left the impression that the learned magistrate would convict once he was satisfied that the appellant “perpetrated” the trick. It is not clear whether the framing of this issue was also meant to include the issue of whether the “trick” was “perpetrated” with intent to defraud. Mr. Matemba argued that the way the learned trial magistrate directed himself amounted to a serious misdirection as the learned magistrate did not appear to be aware that he strict alone was not enough and that the trick should be accompanied by intent to defraud. The learned trial magistrate continued to hold as follows: “Amir (P.W.3) told the court that the accused (appellant) told him that he was sent by Mr. Korosso but he had no letter of authority from him as Mr. Korosso was too busy to write. Amir believed the accused (appellant) to have been sent by Mr. Korosso and that the accused (appellant) was taking the battery cells to Mr. Korosso. He therefore prepared an invoice receipt (Exh. “D”) in the name of Mr. Korosso and accused (appellant) signed on it as a receiver and not as a debtor. As the receipt (Exh. “D”) bears the name of Mr. Korosso as the person liable to pay and accused (appellant) sign on it is self explanatory that accused (appellant) had no genuine belief that the was himself incurring a debt which he made himself liable to pay. Since the receipt was prepared in his presence, it confirms the testimony of Amir that he accused (appellant) claimed to have been sent by Mr. Korosso and that he was taking the goods to him. Since accused (appellant) was not sent by Mr. Korosso and he never delivered the battery cells to him but obtained for himself without Amir intending to pass them to him. I am satisfied that he obtained by false pretences. The charge against him is prove beyond reasonable doubt. Accordingly I find accused (appellant) guilty and convict him as charged.”

            The passage left no reasonable doubt that the learned magistrate concentrated him attention on the question of whether or not (a) the appellant made the representation as charged and (b) whether the false representation led to his obtaining the twelve electric cells, but at no time did he address his mind to the issue of whether the appellant (c) did so with intent to defraud the owner of his property. With respect, I do agree, therefore, the learned trial magistrate failed t direct his mind to the important ingredient of the offence – whether the appellant had the necessary intent to defraud. And the question is whether this non-direction was fatal. Mr. Matemba, as I have already stated above, alleged that it was necessary to prove that the appellant had no intent to pay for the battery, and that the evidence did not show that he had no intent to pay. I would now refer to the case of the High Court of Uganda in Criminal Appeal No. 241 of 1955, RAJANI v. R. (1958) E.A. 647. In that case, the appellant ordered some spare parts from a company by using the forms of another company.” The learned judge, Sir Audley McKisak, Chief Justice as he was then, held at page 649: “It has been further argued that the mere intention not to pay does not amount to obtaining credit by fraud. That proposition, however, does not appear consistent with authorities. While I agree with Mr. Wilkinson that he instant case is distinguishable from R. v. Jones (1898) I Q.B. 119 (in which the prisoner ordered a meal in a restaurant having no money to pay for it), there is still remains the concise but unambiguous statement in R. v. Thompoon, 5 Criminal Appeal R. 9, that: “The cases establish thus – that if a man never had any intention to pay, that is fraud other than false pretends.” This means, of course, and intention which is not revealed when credit is obtained. Such conduct is clearly dishonest. When the appellant accepted the credit terms offered by the Kampala Company for the goods when he ordered them having no intention of paying for them and, f course, concealing that intention since credit would not otherwise have been given, the appellant’s conduct, to my mind, did amount to obtaining credit by fraud.”

            The facts of that case resemble the facts in this case. In both cases, appellants obtained credit through the name of another party. In both cases the intent of the applicant was concealed, but, on the evidence, the appellant Rajani, through his conduct, was found to have had no intention to pay for the spare parts and

therefore intent to defraud was found to exist. In his appeal, was there any evidence that the appellant had no intention to pay? Can this be deduced from the conduct of the appellant and the circumstances of this case? In the ease of AUGUSTINE BROWN CHANAFI (1968) H.C.D. n. 73 Biron, J. seemed to have accepted the wide interpretation of deceit and fraud at page 4 of the said judgment the learned judge said this: “The question that poses itself is, does such conduct constitute an intent to defraud? The terms “fraudulent” and “intent to defraud” have been very unduly construed by the courts and held to cover numerous and diverse acts and omissions………” He quoted with approval and adopted the words of Buckley, J. in RE LONDON AND GLOBE FINANCE CORPORATION (1903) I Ch. D. p. 728 at p. 732 where the said learned judge hold: “To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practicing the deceit knows or believes to be false. To defraud is to deprive by deceit. It is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind, to defraud is by deceit to induce a course of action.” He also quoted other cases, including the case of GEORGE WOODGATE v. R. E.A. p. 525, wherein a wider meaning was given to the term intent to defraud. The appellant Chanafi had obtained money through a false insurance corporation note and this conduct was held as disclosing intent to defraud. 

            However, having carefully given though to the evidence and the circumstances of this case, it is not clear whether the appellant intended to pay for the electric cells or not at the time when he obtained them. What the explained later to Mr. Korosso cannot be taken to apply to the state of his mind when he was obtaining the alleged goods. But it is clear that his conduct was fraudulent as well. The appellant realized that if he had told Mr. Thawer that he wanted the cells himself he would not have got them as it was most unlikely that credit would have been given to him. Therefore, he saw fit to devise a system was, to all intents and purposes, fraudulent, apart from it having a false representation. His conduct left not reasonable doubt that the appellant intended to defraud Mr. Thawer whether or not he intended to pay for it later. I find, therefore, that although evidence showing that he appellant had no intent to pay would have is closed a much clearer intent to defraud, the omission to do so did not mean that intent to defraud did not exist. As I have demonstrated, fraud was proved by the appellant’s own conduct. Therefore, although the learned trial magistrate did not directly direct himself on the issue of fraud, this error is not fatal to the conviction, as the evidence on record left no reasonable doubt that he appellant obtained the alleged electric cells not only by false representation but also with intent to defraud . In the result, I see no reason to disturb the conviction of the appellant.

            Mr. Matemba argued that for a first offender with a clean record, as the appellant was, the imposition of a term of imprisonment of one year was too severe. The learned magistrate took into account the fact that the sentence for such offences has been by legislation, increased to seven years. He thought that he offence committed b the appellant was grave although the value of the goods obtained was small. He took into account what he considered to be “ill-effects” of such offences, and the fact that the whole method of obtaining goods disclosed dishonesty by a member of the Judiciary the “Temple of Justice” as he called it. He said that such conduct would have a bad effect on the Judiciary as members of such department are expected to be of high integrity. With respect I do not think that it was fair for the learned trial magistrate to

take into account matters which he may have heard unofficially about conduct of court clerks. If he wanted to take such matters into account, at least, some evidence should be led against the appellant and the appellant should be given opportunity to refute such allegations. If this is done, then the danger of using “rumours” to aggravate sentences would be avoided. Whatever the learned magistrate might have heard in private about the bad conduct of members of the judiciary in his jurisdiction, there is no reason to believe that the appellant was necessarily one of them. The single incident of dishonesty is only too remotely connected to justify his inclusion in the group. In my view, the learned trial magistrate, who is otherwise an able magistrate, erred in taking into account matters which were within his personal knowledge through other sources without giving the appellant the opportunity of commenting on them. It is impossible to say that the learned trial magistrate was not overwhelmed with this matter when he considered sentence to be passed on the appellant. Similarly, I do not think that it was open for the learned trial magistrate to take into account the act that the appellant did not feel sorry for what he had done and plead guilty. As it was said by the Court of Appeal in the case of MATTAKA AND OTHERS v. REPUBLIC (1971) E.A. 495, if the appellant did so, it would have interfered with his right of appeal. But, with respect, it cannot be said that he appellant did not show his remorse. He did tell Mr. Korosso that he was sorry that he did as charged when he visited Mr. Korosso at his house. And this indicated that he appellant felt sorry for what he had done. It was only natural for him to put up a fight when he realized that he would be charged for a criminal offence and he cannot be blamed for this. Nevertheless, I fid that he sentence imposed was excessive, and I accordingly reduce it to imprisonment for six months. Except as indicated above, this appeal is accordingly dismissed.