Motika v. R. Crim. App. 167-A-70; 28/9/70; El Kindy. Ag. J.

Motika v. R. Crim. App. 167-A-70; 28/9/70; El Kindy. Ag. J.

The appellant was convicted of simple theft c/s. 265 of the Penal Code and carrying passengers for hire or reward c/s. 27A of the Traffic Ordinance as amended by Act 31/61 and section 76 of the Transport Licensees Ordinance Cap. 373. According to evidence, appellant who was a driver of the Ngoronga Conservation unit was stopped by four boys who wanted a lift. He took them and drove for some 8 or 9 miles and asked them for a fee. They refused to pay whereupon the appellant made them got off the vehicle without their suit cases which he withheld. It was argued on appeal that since the appellant took the suit cases as a pledge or security, this amounted to theft.

            Held: (1) “In my view, the appellant could only fall under the second part of the provision of Section 258(1) of the Penal Code. In my view a person is held to have stolen something capable of being stolen if (1) he takes that thing fraudulently and without use of any person other than the general or special owner. Subsection 2, in my view, explains what acts, if done, would amount for fraudulent intent. One of them is that, if the thing taken is taken with “an intent to use the thing as a pledge or security.” However, it is also useful to consider the meaning of special owner. The same subsection 2 states. “The term ‘special owner’ includes any person who has any charge or lien upon the thing in question, or any right arising from or dependent upon holding possession of the thing in question.” In other words, even if a person takes or converts something capable of being stolen with intent to use it as a pledge or security, he would not be held to have taken or converted that thing fraudulently if he was a  special owner. In this case, the appellant held the suit case of the complainant on the ground that the complainant had refused to pay him the Shs. 2/50, and it was clearly understood that the complainant would be allowed to take back his suit case upon payment of the money. In my view, the appellant was a special owner. His right to the fare depended upon holding possession of the suit case; otherwise his right would have been lost. I am therefore not satisfied that, in taking the suit case as he did, he committed any criminal offence of larceny c/s 265 of the Penal Code. on his count, therefore, the appeal is allowed. It is ordered that the appellant be released from prison unless held on some other lawful purpose. (2) “I would refer briefly to the manner in which the charge was preferred on the second count. The charge read “2^nd Count: Carrying Passengers for hire or reward c/s 27(A) of the Traffic Ordinance, and Section 26 of Transport Licence, as amended by Act No. 31 of 1961 cap. 373.” In my view, the reference to the transport ordinance was not necessary and quite irrelevant. Section Q 7(A) of the Traffic Ordinance Cap. 168, as amended by Act No. 31/1961, create a complete offence and fully provides for the punishment to be inflicted upon conviction.” “However this error did not occasion any failure of justice, and the appeal on this point is accordingly dismissed” (3) Appeal allowed in part.