William Hanning v. R. Court of Appeal Crim. App 66-D-70; 15/7/70; Spry, V-P., Law and Lutta, JJ. A. (Judgment of Court).

William Hanning v. R. Court of Appeal Crim. App 66-D-70; 15/7/70; Spry, V-P., Law and Lutta, JJ. A. (Judgment of Court).

The appellant was convicted of corrupt transactions under the Prevention of Corruption Ordinance, Cap. 400. In particular the High Court held that the appellant while he was Regional Engineer of Mwanza, and public servant, had corruptly accepted for him a Mercedes Benz Saloon car from one Ahmed, the director of a company which held contract with the government, as a reward for showing favours to the company in the affairs of the government: and had similarly accepted an interest free loan from one Soutis. The appellant was sentenced to 3 years imprisonment. On appeal to the Court of Appeal. [For the rulings in the High Court see [1970] H.C.D. 171]

            Held: (1) “The appellant accepted the car without consideration, and were can see no merit in the appeal against conviction on this count which is hereby dismissed. Even had the transaction been found to be a loan, it would not have affected the conviction, since the definition of “consideration” includes a loan and we are satisfied, for reasons which appear later in this judgment, that the alleged consideration would have had to be regard as inadequate…. It seems to us, reading 6 as a whole, that when it refers to accepting any valuable thing for a lawful consideration which the recipient knows to be inadequate, “inadequate” must mean less than the value of the thing accepted, and value will ordinarily mean the price which a willing purchase would pay to a willing vendor. In the case of a loan, the “adequate” consideration will be not merely the promise to repay, but also the promise to pay interest at least the lowest rate at which the borrower could have borrowed elsewhere, taking into account, of course, and security he could offer, his general credit-worthiness, current rates of interest and any other relevant factors.” (2) “(The counsel for the appellant) relies on a passage in the judgment of the Board in Public Prosecutor v. Yuvaraj [1970] WLR 226 which may be taken as meaning that the only burden placed on the accused in a charge involving corruption is to show on a balance of probabilities that he was not acting corruptly. But in the same judgment, at 233, appears the following with reference to the corresponding section to 8 in the Tanganyika Ordinance – “The section is designed to compel every public servant so to order his affairs that he does not accept a gift in cash or kind from a member of the public except in circumstances in which he will be able to show clearly

that he had legitimate reasons for doing so.” This statement, with which we agree, supports the view taken by the Chief Justice. “The elements of a charge contrary to 3 (1) of the Ordinance are that the accused person – (a) corruptly (b) accepts a consideration (c) as an inducement or reward for doing or not doing something in relation to his principal’s affairs. When that accused person is a public officer, as in this case then 8 provides that when it is proved that the consideration has been accepted (in this case the car) by such public officer, and that the person from whom the consideration is accepted is a contractor holding or seeking a contract from the Government, then the consideration shall be deemed to have been accepted “corruptly as such inducement or reward as is mentioned in 3 unless the contrary is proved”. The section does not say that where it is proved that any consideration has been accepted by an agent of the Government as an inducement or reward, the consideration shall be deemed to have been accepted corruptly unless the contrary is proved. The deeming applies both to the consideration having been accepted corruptly, and as an inducement or rewards, and the burden of proving the contrary in both these respects, on a balance of probabilities, lies on the accused person. We are accordingly satisfied that the Chief Justice correctly directed himself on this point, and that it was for the appellant to satisfy the court on a balance of probabilities that he did not accept the car from Zahir Ahmed corruptly as an inducement or reward.” (3) On a preliminary objection that reasonable notice had not been given of intention to call four witnesses whose statements had not been produced at the preliminary inquiry the Court of Appeal remarked: “The court may, and indeed must consider the nature of the evidence and in particular its importance, its complexity, the likelihood of surprise and the possibility that evidence in rebuttal which might have been available earlier may no longer be available. Notice which would be quite reasonable for some simple, perhaps formal, evidence may be wholly inadequate for some simple, perhaps formal, evidence may be wholly inadequate for evidence of a complex and highly incriminatory nature. This is not a matter where a remedy is lightly to be found in adjournment and we think, with respect, that the Chief Justice was wrong in expecting the application for adjournment to come from the defence. If the notice was unreasonable, it is the prosecution that requires such an adjournment that when the witness is called, the notice that was given is not unreasonable. The applications for adjournment ill follow the decision that the notice was unreasonable; it is not a factor to be considered in deciding on the reasonableness of the notice. The ground for granting an adjournment are set out in s. 268 of the Code and we do not think a court will, save in exceptional circumstances, be satisfied that reasonable cause exists, when the failure to give proper notice was due to negligence or worse.” (4) On the interpretation of item 7 of the Schedule to the Minimum sentences Act which reads: “Taking part in a corrupt transaction with an agent contrary to s. 3 of the Prevention of Corruption Ordinance (Cap. 400) or obtaining an advantage without consideration contrary to s. 6 of that Ordinance’. The counsel for the appellant argued that: ‘The words “corrupt transaction with an agent” apply only to a person who enters into a transaction with an agent and not to the agent himself and that the specific reference to receiving an advantage “without lawful consideration” is exclusive and therefore that Act does not apply to the receiving of an advantage for an inadequate consideration. The court of Appeal: ….. “We are not persuaded by the first of these arguments. We think that the words “entering into a corrupt transaction with an agent “are ambiguous and therefore it is proper 

to look to the intention of the legislature. Offences under s. 3 of the Ordinance are more serious than those under s. 6. Certain offences under s. 6 committed by agents are unquestionably included in item 7 we regard it an unthinkable that the legislature should have included those offences and yet excluded all offences by agent under s.3 therefore we think the ambiguity in item 7 must be resolved by holding that the words “corrupt transaction with an agent” are to be read as one and that any party to such a transaction is caught by the item.” (5) “As regards s. 6, we think there is ambiguity …. The Act is a penal statute of great severity and should therefore be interpreted strictly …… it cannot therefore safely be assumed that there was any intention to include any offences other than those specifically mentioned. Moreover, while the question was probably not thought of, it is at least possible that the legislature though that as questions of inadequacy are entirely matters of degree, offences that depend on those questions are not appropriate for minimum sentences. We would therefore hold that the Minimum Sentences Act does not apply to those offences under s. 6 which consist of the receipt of advantages for an inadequate consideration but only to those where there is no lawful consideration. It follows from the above that in our opinion the conviction on count 7, which alleged obtaining a loan for a consideration which the appellant knew to be inadequate was not one coming within the scope of that Act.” (6)However, the Court of Appeal held that no miscarriage of justice has occurred, and the sentences were not excessive and therefore dismissed the appeal.