Joseph Selemani v. R., Crim. App. 413-D-68, 5/10/68; Hamlyn J.

Joseph Selemani v. R., Crim. App. 413-D-68, 5/10/68; Hamlyn J.

Accused, the headmaster of a Primary School, received school fees from parents and kept the money for himself. Although he was employed by the Town Council which operated the school, he was not authorized to receive the fees, this being done at the Council’s office by its Treasurer. The prosecution initially charged the accused with stealing by public servant c/s 270, Penal Code, on the theory that he came to possess the money “by virtue of his employment,” at an early stage, however, they withdrew this charge and substituted one of stealing by servant c/s 271, Pena Code i.e., of stealing funds held “on account of his employer.” Nonetheless, the magistrate convicted him under s. 270.

            Held: (1) A conviction for stealing by public servant cannot be had upon a charge of stealing by servant. (2) As the magistrate noted, the evidence shows that at the time the accused received the money, it was “still the property of those who handed it to him – the money had not become the property of the Council – so the accused cannot be said to have stolen the property of the Council.” Conviction for simple theft substituted, under s. 181, Criminal Procedure Code. The court stated, obiter; “I would have thought that the circumstances shown by the evidence in the case would have made a charge under section 273 (b) the more appropriate – the offence known to English law as ‘fraudulent conversion’, on the grounds that the appellant had held himself out to be a person with authority to receive the fees.”