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Present: Wood Renton J.
THE KING v. AMADORU et aJ.
78 and 79—D. C. (Crim.), Tangalla, 721.
Criminal Procedure Code, e. 440—Evidence found to be false on the balanceof conflicting evidence—False evidence disclosing serious criminalcharge—Summary punishment.
Semble, there is nothing in section 440 of the Criminal ProcedureCode which prevents a Court from adopting the summary methodprovided by that section for punishing a witness for giving falseevidence, even in cases where the false evidence charged disclosed aserious criminal offence, or where the Judge arrived at his conclu-sion that perjury had been committed on the balance of conflictingevidence.
All that section 440 requires is that the accused persons shouldhave given evidence in a judicial proceeding, which, in the opinionof the Court before which that proceeding is held, is false.
IJ1HE facts appear from the judgment.
Samarawickreme, for the accused, appellants.
Walter Pereira, K.C., S.-G., for the Crown.
Cur. adv. vult.
June 13, 1911. Wood Renton J.—
In this case there are two appellants, of whom the first wasthe complainant and the second a witness, in the prosecutionof a Station House Officer in the District Court of Tangalla oncharges of hurt under section 314 and extortion under section373 of the Penal Code. The learned District Judge heard theevidence of the complainant, of the witness-appellant and ofanother witness. He then came to the conclusion that the chargesagainst the Station House Officer were false, and acquitted himat once, giving his reasons for doing so. Thereafter he proceededto charge the two appellants with perjury under section 440 of theCriminal Procedure Code, and sentenced each of them to pay afine of Rs. 50, or in default to undergo two months’ rigorous im-prisonment. The present appeals are brought against theseconvictions, and several points of interest have been argued insupport of them. I will deal first with the point-that Mr. Samara-wickreme, the appellants’ counsel, argued last. His contentionwas that there was nothing on the face of the record here whichshows that the statements, alleged by the District Judge to amount
36J. N. A 93348 (11/49)
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The Kingv. Amadoni
to perjury, were false in fact. He took each part of these state-ments clause by clause, and said that as regards each clause therewas no inherent improbability in what the complainant in the onecase and the witness in the other had said. I do not think thatthis is the right way to approach section 440 of the Criminal Pro-cedure Code. It must be noted that all that the section itselfrequires is that the accused persons should have given evidence ina judicial proceeding, which, in the opinion of the Court before whichthat proceeding is held, is false. There is no doubt but that, inthe opinion of the learned District Judge, the whole incriminatingevidence against the Station House Officer given by both appellantswas false. He has said so expressly in his judgment, and hasemphasized his disbelief in the story by a perhaps unnecessarilyreiterated insistence on its falsehood. That being so, I have to askmyself in appeal whether there is anything on the face of the recordto show that the Judge’s disbelief of these two witnesses in the storythat they gave as to the circumstances preceding their arrest isagainst the weight of the evidence. I am clearly of opinion thatthere is not, and when I turn to the evidence given by the complain-ant at the close of the trial, when he was recalled, 1 can see sufficientgrounds for what the District Judge has said as to the unreliabilityof his story. The point made on behalf of the appellants on thefacts must fail. I need only say further that neither of the witnesseswhen called-upon to show cause against his conviction, and con-fronted, as the learned District Judge most properly confrontedthem, with those parts of the evidence which he specifically allegedto be untrue, either said or suggested that he did not understandwhat he was being charged with. It was contended by Mr. Samara-wickreme, in the second place, that even if the Judge’s view of thefacts was correct, it amounts to a holding that there was practicallya conspiracy on the part of the appellants with a view to gettingthe Station House Officer into trouble on a criminal charge. Itwas argued by Mr. Samarawickrerfie that in a case of so serious acharacter the summary powers conferred on courts of trial bysection 440 of the Criminal Procedure Code ought not to be exercisedand there is no doubt that there are many decisions of this Courtwhich lend support to that argument. I have always myself, evenwhen following them, thought them unfortunate, for their practicalresult is to reduce the salutary provisions of section 440 of theCriminal Procedure Code to a dead letter in a great number of casesin which summary punishment for perjury would be most effective.At the same time we must now consider these decisions in the lightof the judgment of the Privy Council in the case of Chang Hang Kuiv. Piggott.1 That case was decided on a section in an Ordinance ofHong Kong (Ordinance No. 3 of 1873, sedion 31), which is sub-stantially identical with section 440 of the Criminal Procedure
1 (1909) Appeal Cases 319,
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Code. There had been a trial before the Chief Justice on an issueframed by the Supreme Court in a bankruptcy case to determinewhether a certain person was at the date of the bankruptcy petitiona partner of the indebted firm. At the close of the case the learnedJudge directed his attention to eight Chinamen who had givenevidence ; stated simply that “ they had been guilty of the mostflagrant conspiracy ” to defraud the alleged partner ; and withoutframing any charges against them, or giving them any opportunityto address him in their defence, sentenced each of them to threemonths’ imprisonment without hard labour. The Privy Councilgave special leave to appeal, and set aside the convictions on theground that as the Ordinance in question did not dispense with thenecessity at common law of giving the appellants an opportunitybefore sentence of explaining or correcting misapprehensions of theirstatements, it was essential that that opportunity should have beenaccorded to them. But the Privy Council never suggested that thefinding by the Judge that the eight appellants had been “ guilty ofa most flagrant conspiracy ” constituted any reason why he shouldnot exercise his summary powers of punishment for peijury, and,in addition to that, expressly held that the Ordinance did notcontemplate the accusation, being formulated in a series of specificallegations of perjury, and that, even in the brief sentence which Ihave already quoted in substance from the Chief Justice’s judgment,the gist of the charge had been made sufficiently clear. It appearsto me that we shall have to take serious account of that decision ofthe Privy Council, a decision based upon an enactment substantiallyidentical with section 440 of the Criminal Procedure Code, whenwe are asked in future to say that the fact that the false evidencecharge disclosed a serious criminal offence, or that the Judgearrived at his conclusion that perjury had been committed on thebalance of conflicting evidence, constitutes any ground for theabandonment by any court of trial in the Island of its right topunish peijury as contempt on the spot under section 440 of theCriminal Procedure Code. In view of the case of Chang Hang Kuiv. Piggott} I am not prepared to accede to Mr. Samarawickreme’ssecond point in support of these appeals. I have though it rightto say a few words as to the decision of the Privy Councilin the Hong Kong case, partly because it has not been cited inargument from the Bar, and partly because it gives me anotheropportunity of insisting, on the authority of the Privy Councilitself, on the paramount importance of courts of first instanceseeing that no man is convicted under such statutory provisions asthose contained in section 440 of our Criminal Procedure Code tillhe has had some opportunity of defending himself.'
I dismiss the appeals. 1
The Kingv. Amadoru
1 (1909) Appeal Cases 312.
THE KING v. AMADORU et al