90iSIXXETAMBY, J.—Fernando v. Holloway
1958Present: Sinnetamby, J.
S. J. FERNANDO, Appellant, and E. G. HOLLOWAY, Responder!
S. a. 1138—M. G. Kalutam, 32,575
Criminal trespass—Penal Code, s. 427—“ Occupation ”.
A charge of criminal trespass cannot be maintained against an tu-cu-iedwhere the criminal element alleged consists of an intention t,o annoy the personin occupation and where the person alleged to bo in occupation is not in ('eylonat the time of the alleged offence.
.APPEAL from a judgment of the Magistrate’s Court, Kalutara.
Frederick W, Obeyesekere, for the accused-appellant.
M. M. Kumarakulasingham, for the complainant-respondent.
Cur, adv. vult.
July 4,1958. Sinnetamby, J.—
The main question that arises for decision in this case is whether acharge of criminal trespass can be maintained against an accused wherethe criminal element alleged consists of an intention to annoy the personin occupation and where the person alleged to be in occupation is not inthe island at the time of the alleged offence.
– It would appear according to the findings of the learned Magistratethat the accused had encroached upon property belonging to EnswellaEstate of which one E. G. Wyke Holloway was the Superintendent.There had been some previous disputes between the parties in regardto the boundary but the learned Magistrate has found, and with thatfinding one cannot disagree, that the property encroached upon belongsto the estate and that the accused was fully aware of this when he deli-berately entered upon it and erected a barb wire fence. This occurredon or about the 22nd November, 1956. It is also in evidence that Mr.Holloway had gone on furlough to England in May 1956 and returned toCeylon only on the 10th December, 1956, and that there was a gentlemanacting for him as Superintendent during this period. Although com-plaint of the accused’s conduct was made to the acting Superintendentby the kanakapulle of the estate no action was taken till the return of
SINNETAMBY, J.—Fernando, v. Holloway
Mr. Holloway. The plaint was in fact filed on the 28th February, 1957.The accused was in due course charged with entering upon EnswellaEstate with the intention of annoying Mr. Holloway. In defence of theaccused it was contended that Mr. Holloway was not in occupation of the•'state on the date of the alleged offence and that, therefore, the chargemust fail. The learned Magistrate held against this contention andconvicted the accused. This appeal is against the conviction.
in order to constitute the offence of criminal trespass as defined byseel ion 427 of the Penal Code it is incumbent on the prosecution to proveinter alia
la) that the entry was upon property in the occupation of another,and that
llb) the offender intended either to commit an offence or to intimidate,insult or annoy any person in occupation.
In the present case the learned Magistrate found that the accused wasunaware of the fact that Mr. Holloway was not resident on the estate oriu Ceylon at the relevant time: indeed, the accused admitted as muchin his evidence. It was contended that, having regard to the previousdisputes between the parties, the accused intended to annoy Mr. Hollowayand that he must be presumed to intend the natural and probable con-sequences of his act, which would be to cause that annoyance. It isconceded that in order to establish the charge the prosecution mustfurther establish that Mr. Holloway was in occupation of the property.While, in regard to the first of these two requirements, I am prepared toagree that upon the established facts as found by the Magistrate one mayfairly and reasonably infer that the intention of the accused was to annoythe complainant, in my view the second ingredient has not beenestablished.
Whether a person is in occupation of any particular premises is aquestion of fact and depends on the circumstances of each particularcase. In The King v. Selvanayagam1 the Privy Council took the viewthat the occupation must be a physical occupation. It is difficult, nay,impossible to lay down any hard and fast rules by which the questioncan be decided. Each case must be decided on the facts and circum-stances established. I very much doubt, in view of the Privy Counciljudgment, that constructive occupation of the kind contemplated byWood Renton, J. in Bawther v. Mohideen 2 would be sufficient to estab-lish a charge of criminal trespass. Wood Renton, J. referred to a caseof occupation by an owner or tenant through a caretaker. How, forinstance, can it be contended that an accused person who knew verywell that the owner or tenant is and was never physically present in thepremises trespassed upon, intended by his entry to insult or intimidatesuch an absent owner or tenant ? Would it not be more correct toassume that the entry was intended to insult or intimidate the caretakerwho was in actual physical occupation. There may, however, be casesin which both the principal and the servant or agent are in occupationof the premises when different considerations would apply. In Abrahamv. Hume 3 the Supreme Court took the view that while a labourer on an
1 (1950) 511V. L. B. 170.
3 (1951) 52 N. L. B. 449.
8 (1911) 1 Bal. Notes 2-
Abdul Majeed v. Rajapakse
estate is in occupation of his line room the Superintendent who resideson the estate is in occupation of the entire estate including the line roomand premises within the estate on which a temple stands. In NallanGhetty v. Mustapha 1 Sampayo, J. observed that the occupation con-templated by section 427 of the Penal Code implied “ actual physicalpossession by oneself or an agent
In the present case the Superintendent, Holloway, had been away inEurope for about six months prior to the entry, it was not a temporaryabsence of short duration to a quickly accessible place close by ; therewas an acting Superintendent who functioned in his stead and whocertainly was not in a position analogous to that of an agent. A Superin-tendent is the agent of the owner: likewise an acting Superintendenttoo would be the agent of the owner and not the agent of the permanentSuperintendent. In the circumstances of this case it seems to me itwould be most unreasonable to hold that the estate was in the occupationof the permanent Superintendent who at the time was several thousandmiles away. On the contrary the only reasonable inference would bethat it was the acting Superintendent who was in occupation.
In my view the charge against the accused fails. I would accordinglyset aside the conviction and sentence and acquit the accused.
S. J. FERNANDO, Appellant, and E. G. HOLLOWAY, Respondent