King v. Abdul Rahiman.
Present: Macdonell C.J.
KING v. ABDUL RAHIMAN.
44—D. C. (Crim.) Kegalla, 2,500.
Preventive detention—Proof that the accused'is leading persistently a dishonestor criminal life—Habitual associate of criminals—Prevention of CrimesOrdinance, No. 2 of 1926, s. 10 (1), (2) (a) (.Hi.)./
Before a sentence of preventive detention is imposed upon sin accusedperson under section 10, sub-section (1) and (2) (a) (iii.), of the Preventionof Crimes Ordinance, it must be proved that he is getting his living bydishonest or criminal means or that he is a habitual, associate of criminalsso as to raise the inference that he is earning his livelihood by dishonestor criminal means. j
PPEAL from a conviction of the District Judge of Kegalla.
Gratiaen, for accused appellant.
Wendt, C.C., for the Crown.
* (1918) 21 N. L. n. 38.
MACDONELL C.J.—King v. Abdul Rahiman.
July 20, 1932. Macdonell C.J.—
In this appeal everything that can be said has been put ve'ry well tothe Court on behalf of the appellant. There are two things in this casethat one has to be careful about. There is the natural dislike of cuttingand stabbing cases, which offences one knows are too prevalent, andsecondly, one has to be careful to see that this man is not condemned onhis character, which happens to be a very bad one. But really itappears to be a plain question of fact. The medical evidence left open,as medical evidence is apt to do, the question of accident or purpose.Two witnesses made it clear that these certainly small wounds wereinflicted with a purpose, one of those witnesses being sufficiently fair-minded to minimize one of the three or four cuts or stabs which hereceived. The Judge had the witnesses before him and he acceptedtheir evidence and rejected the defence of the accused. It is pointedout that the accused was not cross-examined, but it seems to me thatthe Judge has sufficiently directed himself on that aspect of the caseby fi di '.y. as he does hat the accused’s evidence is untrue, a storywhich he has no hesitation in rejecting. As to the sentence : peoplereally must be taught that they cannot resist lawful authority in thisway, still less use a knife as part, of that resistance. I do not think Iought W interfere with the sentence of eighteen months’ rigorous imprison-ment, and though I am very sorry that the accused had been on remandfor three months in regard to the other charge, still I am afraid it wouldnot be a right principle for that reason to interfere with the sentenceof imprisonment which has been passed in this case.
The sentence of preventive detention stands on quite a different footing.Section 10, sub-sections (1) and (2) (a) (iii.), of the Prevention of CrimesOrdinance as amended in 1928, makes it quite clear that before a personcan be convicted as habitually addicted to crime so as to make it lawfulto impose on him a sentence of preventive detention, it must be proved“ that he is leading persistently a dishonest or criminal life ”. Dueattention must be given to this provision of the law on all indictmentsfor being a habitual criminal. The evidence must show either that theperson charged is getting his living by dishonest or criminal means or itmust be shown at the very least that he is a habitual associate of criminalsso as to raise the inference that he is earning his livelihood by. dishonestor criminal means. I cannot say that the evidence of the Vidane Arachchion page 36 of the record is sufficient to comply with this requirementof the law. The order for preventive detention must, therefore, beformally set aside and the case remitted to the District Judge withdirections to try the case on this indictment under Ordinance No. 27of 1928 with particular reference to the section which has been quotedabove. The learned Judge’s attention is also drawn to sub-section (6)
Waharaka Investment Co., Ltd. v. Com. of Stomps.
of the same section which shows that evidence as to character andrepute of the accused is admissible upon an indictment for being ahabitual criminal and that the accused may tender similar evidence.
The appeal must be dismissed and the case remitted for the abovepurpose.
KING v. ABDUL RAHIMAN