on conviction before the Supreme Court, to a fine not exceeding
ten thousand rupees or to imprisonment of either description fora period not exceeding ten years, or to both such fine and impri-sonment. ”
The allegation in each count of the indictment is that the appellantshad committed offences punishable under section 76 (5).
The five charges in the indictment are worded as follows:—
That you the first accused abovenamed did between the 31st day ofDecember, 1953, and the 11th day of June, 1955, at Colombowithin the jurisdiction of this Court, in contravention of section33 of the Poisons, Opium and Dangerous Drugs Ordinance asamended by section 9 of Ordinance No. 12 of 1939, offer toone Lim Peng Koi of Singapore approximately 1,780 pounds ofraw or prepared opium and that you are thereby guilty of anoffence under section 76 (1) (a) of the Poisons, Opium andDangerous Drugs Ordinance, punishable under section 70 (5)of the said Ordinance.
2. That on or about the 3rd day of November, 1954, at Colombo, in thecourse of the transaction set out above, you the first accusedabovenamed did, in contravention of section 31(3) of the Poisons,Opium and Dangerous Drugs Ordinance export approximately900 pounds of raw opium from Ceylon and that you are therebyguilty of an offence under section 76 (1) (a) of the Poisons,Opium and Dangerous Drugs Ordinance, punishable undersection 76 (5) of the said Ordinance.
That at the time and place aforesaid and in the course of the sametransaction as set out in count 2 above, you the second accusedabovenamed, did abet the commission of the offence set out incount 2 above which offence was committed in consequence of
fULLE, J.—The Queen v. Rupn.nnghe Pererd
such abetment, and that you are thereby guilty of an offenceunder section 76 (1) (a) read with section 76 (3) of the Poisons,Opium and Dangerous Drugs Ordinance, punishable undersection 76 (5) of the said Ordinance.
That on or about the 11th day of June, 1955, at Colombo in the
course of the same transaction set out in count 1 above, youthe first accused abovenamed, did attempt to commit an offenceagainst the Poisons, Opium and Dangerous Drugs Ordinance,to wit, export, in contravention of section 31 (3) of the saidOrdinance, approximately 850 pounds of raw opium fromCeylon, and that you are thereby guilty of an offence undersection 76 (1) (a) read with section 76 (3) of the Poisons, Opiumand Dangerous Drugs Ordinance, punishable under section76 (5) of the said Ordinance.
That at the time and place aforesaid and in the course of the same
transaction as set out in count 4 above, you the second and thirdaccused abovenamed did abet the commission of the offenceset out in count 4 above which offence was committed in conse-quence of such abetment, and that you are thereby guilty of anoffence under section 76 (1) (a) read with section 76 (3) of thePoisons, Opium and Dangerous Drugs Ordinance, punishableunder section 76 (5) of the said Ordinance.
Before analysing the submissions directed against the charges a fewpreliminary observations are called for. Whether the joinder of thefirst charge was permissible or not, whether it amounted to an allegationof the offering at Colombo to supply opium on one single occasion or on anumber of occasions, or whether, as contended by the Crown, the firstcharge meant that there was a “ continuous ” offer spread over a periodof months, the events which commenced with the smuggling of opiuminto Ceylon and ending with the seizure on the 11th June, 1955, of the. generator in which the opium was concealed could in law be regarded asconstituting a single transaction. Although the indictment does notexpressly allege that the offences in the counts charged were committedin the course of the same transaction, it has said so by implication andwas understood in that sense, as appears from the 11th paragraph of thegrounds of appeal of the 1st accused. The novel point that was apparentlystressed on behalf of the defence at the trial was that the jury had to bedirected that if they were not satisfied that the offences charged werecommitted in the course of the same transaction they had to find averdict of acquittal on all the charges.
If the offence charged in the first count is not taken into consideration,it cannot be disputed that the joinder of the remaining charges was inconformity with the provisions of the Criminal Procedure Code. Countstwo and four charged the first accused with committing two offences ofthe same kind in the space of twelve months within the meaning ofsection 179. The joinder of these charges along with charges of abetmentof those offences is permitted by the combined effect of the provisions ofsections 184 and 178.
PTJLLE>. J.—The Queen v. Rupasinghe Perera
Before the indictment was read out to the appellants Submissions weremade to the trial Judge that the first count was imprecise in that italleged an offer to sell opium between dates as wide apart as 31stDecember, 1953, and 11th June, 1955. It was attacked on the ground ofvagueness. Secondly it was submitted that the joinder of counts two tofive with the first count was bad on the face of the'indictment itselfbecause of the use oi the words, in counts two and four, “ in the course of'the transaction set out ” in count one. It was said that there could notbe an exporting or attempted exporting of opium in the course of anoffer to supply the drug, because, of necessity, the transaction of an offerwould end with the offer and that the export or attempted export wouldbe a new and different transaction. We are not prepared to take theview that the expression “ in the course of the transaction set out ” incount 1 is insufficient for the purpose of justifying the joinder of all thecounts as disclosing offences constituting a series of acts so connectedtogether as to form the same transaction within the meaning of section180 (1) of the Criminal Procedure Code. An offer to supply can indeedbe called one transaction and the supply itself can, in one sense, be calleda different transaction but, none the less, the act of offering and the actof supplying can be so connected together as to form the same transaction.As stated earlier the 1st accused has taken only the point that the pro-secution having failed to prove that all the offences chained were com-mitted in the course of the same transaction, he was entitled to a verdictof acquittal.
In reply to the preliminary objection to count one the Crown took upthe position that during the period stated in that count the 1st accusedheld out a continuous offer which remained open until the attempt madeon 11th June, 1955, to export the quantity of opium mentioned in thefourth count.
Apart from the alleged infirmities in the first count, as for example, itsvagueness and its reticence as to the actual date on or about which the1st accused at Colombo offered to supply 1,780 pounds of opium to LimPeng Koi of Singapore, on the issue of misjoinder it has been submittedthat the position taken up by the Crown of a “ continuous offer " irieffect introduced into the first count a multiplicity of charges. It seemsto us that the question whether an allegation in the form of a singlecharge contains in reality a plurality of charges must be determined bythe language in which the charge is expressed and not by consideringwhat the prosecution thinks it means or the evidence by which it issought to be proved. Neither the lack of precise particulars nor anerroneous concept of what the charge means is relevant to the topic ofmisjoinder. It refers to one offence of an offer at Colombo to supply1,780 pounds of opium to one Lim Peng Koi of Singapore. If, as wethink, the charge amounts only to an allegation of a single act by whichan offer to supply when intimated to a prospective receiver became anoffence, there is no ground for the contention that there is a multiplicityof charges because the prosecution thought that it had the right to leadevidence of a number of offers each capable of being regarded as part of aa*3. N. R 8420 (8/59)
PULLE, J.—The Queen v. Bupaeinghe Perera
“ continuous ” offer. The character of a charge is not altered accordingto the mode adopted to establish it. Deficiency in the particulars of acharge or the admission of irrelevant evidence to support it may be aground for setting aside a conviction on the charge but not for holdingthat it was improperly joined with other charges.
A good deal of discussion centred round two well known decisions ofthe Privy Council on appeals from convictions taken on the ground ofmisjoinder of charges and accused persons. The first is SvbrahrmniyaAyyar v. King-Emperor There were two accused persons charged onseven counts. The appellant was charged on the first, second, fourth andsixth counts with having committed in a period of more than two and ahalf years as many as 41 acts amounting to offences. The first count allegedthe commission of numerous offences committed during a period exceedingone year. Convictions on the first, second and sixth counts were broughtup in appeal on a case certified when it was held that the indictment wasbad for misjoinder but that it was open to the appeal court to strike outthe first count, examine the evidence and sustain the conviction on anyone of the remaining counts. By this process they upheld the convictionon one of the remaining counts. The Privy Council set aside that con-viction on the ground that they were unable to regard the disobedienceto an express provision as to a mode of trial as a mere irregularity.They added,
“ Such a phrase as irregularity is not appropriate to the illegality oftrying an accused person for many different offences at the same timeand those offenoes being spread over a longer period than by law couldhave been joined together in one indictment. ”
The second case is Babulal Chaukhani v. King-Emperor 2 in which theappellant and eleven others were charged on the first count with con-spiracy to commit theft of electric energy and with committing theft.On a separate count the appellant was charged with having betweenApril, 1934, and 16th January, 1935, committed theft of electricity.Upon the appellant being convicted of both conspiracy and theft heappealed and the High Court of Calcutta set aside the conviction on thecharge of conspiracy but affirmed the conviction for theft holding thatthe trial as a whole was not vitiated by reason of misjoinder of personsand charges. The argument on behalf of the appellant was that oncethe offence of conspiracy charged in count one failed, offences said toarise out of the overt acts alleged to have been committed by the appellantand others in pursuance of the conspiracy could not be joined. ThePrivy Council rejected this argument holding that the point of time atwhich the legality of the charges from the point of view of joinder had tobe judged was not at the end of the trial but at the time of the accusation.
In the view we take that count one in the present case does not containa multiplicity of charges spread over the period of 31st December, 1953,to 11th June, 1955, the judgment of the Privy Council in SvbrahrmniyaAyyar’s case 1 cannot be called in aid to support the submission thatthe trial of the appellants was held in violation of an express prohibition11. L. B. 26 Madras 61.2 (1938) A. I. B. P. 0.130.
PULLE, J.—The Queen v. Bwpasmghe Perera511
of law and rendering it illegal. The case of Babulal Chaukhani (supra) is ofany relevance only in the event of the conviction on the first cotint beingset aside. If the first count is the foundation on which the sameness ofthe transaction of all the counts depends, the decision hi Ohaukhani’scase is a complete answer to the argument that, if the conviction on thefirst count is set aside, it is a necessary consequence that the convictionson counts two to five must also be set aside.
Now the grounds, other than that of misjoinder, on which the con-viction on the first count was attacked are stated as follows:
“ (a) The defence was irretrievably prejudiced by reason of the sub-mission of the Crown, which was acted upon throughout the trial bythe learned trial Judge that there was a ‘ continuous offer ’ covered bycount one inasmuch as this enables (i) the admission of a large volumeof otherwise inadmissible evidence, (ii) the jury to construct out of theevidence separate offers.
“ (b) The failure of the learned trial Judge to direct the jury that ifthe Crown failed to satisfy them that there was the ‘ continuous offer ’alleged, they were not entitled to construct or infer or find any separateoffers not stated in any of the charges, amounted in the circumstancesof the ease to a misdirection and resulted in a miscarriage of justice.
“ (c) The direction given by the learned trial judge to the jury thatthey could look to particular letters as containing an offer was amisdirection and it resulted in a miscarriage of justice. ”
The case for the Crown was that there were negotiations with LimPeng Koi, the first of which was on 9th March, 1954, at Singapore to sendfrom Ceylon a quantity of 1,780 pounds of opium. This was followed bycorrespondence between the 1st accused and Lim Peng Koi. It would besufficient to refer to only two letters out of this correspondence. One isP28 of 25th March, 1954, sent from Colombo in which the 1st accusedinformed Lira Peng Koi to collect a sample of the opium which he haddespatched to a certain address at Singapore. He requested him to senda note approving the sample and an undertaking to buy lOcwts. at 800dollars per pound. P33 dated the 1st April, 1954, is obviously the replyto P28 by which the buyer expressed his willingness to buy 10 cwts. intwo shipments at the price mentioned in P28. The prosecution allegesthat P38 dated 16th April, 1954, was sent by the 1st accused fromColombo to the buyer. It reads as follows :
P. 0. Box 684,
•Colombo, 16.4.1954.
Dear Friend,
Received your registered letter of the 1st April.
I note that you are willing to buy 10 cwts. in 2 deliveries at 15 dayinterval. The gentleman I came along with the other night is theowner of the goods and he has just received from Iran 16 cwts. Hewants to ship the whole lot in one shipment to Singapore to his placethere and deliver it to you from that place. He wants me to ask you
PULLE, J.— The Queen v. Rupasinghe Perera
whether you can arrange to pay him cash down for 8 cwts. before hegives you delivery of the whole 16 cwts. and also give him 4 post-datedcheques to be presented to the bank on the 10th, 14th, 18th and 20thday after delivery.
Please write to me at once telling me whether you are agreeable tothis method of payment. If so, please let me know by return the nameof your bank as he wants to get your bank References.
Your business friend.
At the trial the defence had submitted to the jury that there could notbe a continuous offer between the dates 31st December, 1953, and 11thJune, 1955, because up to 9th March, 1954, even the existence of himPeng Koi was not known to the witness A. C. Perera who had beendeputed by the 1st accused to find a buyer at Singapore. By the 3rdNovember, 1954, 900 pounds of opium had already been shipped. Itcould not, therefore, be said that after 3rd November there was still anoffer to supply 1,780 pounds to Lim Peng Koi. It was submitted to usthat the figure “ 1780 ” could only have been taken from the documentP50-B1 which contains a calculation of the price of 1,700 pounds at 800dollars per pound. Admittedly P50-B1 was a document made inSingapore and if the offer evidenced by this document was the onecontemplated by the first count, there was a complete answer to thecharge, namely, that the offer to Lim Peng Koi was made not in Colombobut in Singapore. That the shipment on 3rd November, 1954, and theattempted shipment on 11th June, 1955, must have been in pursuance ofa single offer or of a number of offers admits of no doubt. The crucialpoint was whether there was one offer made at Colombo and, if so, onwhat date, but the indictment did not specify that date, because theCrown erroneously assumed that if an offer made at Colombo is left openit becomes what is called a continuous offer which persists until thecontract originating in the offer is performed by shipping the lastconsignment of opium.
In the early part of his charge the learned trial Judge while dealingwith the first'count said, •
• So that the purpose of giving an approximate date when an offencewas committed is to give an indication to the accused of the charge hehas to meet and, in putting the terminal dates, it is not the position ofthe Crown nor has the Crown to establish that during the whole periodthe offer was kept open. Normally, of course, an offer could be madein a matter of moments. A man can say, ‘ I will offer to sell you 1,000pounds of opium ’. As soon as that statement is made this offence iscommitted provided the other ingredients are proved. Sometimes anoffer may be the subject of negotiation and that may take some time,especially if people have to correspond over the matter and agreeabout it. Sometimes an offer may be made and the original offer mayhave to be amended and various things can take place and that cantake time.”
PULLE, J.—The Queen v. Eupasinghe Perera
This passage appears to suggest that in the process of conducting nego-tiations there may be a series of separate offers which taken in theaggregate would constitute a “ continuous ” offer resulting in the com-mission of a single offence. A direction to the jury having this effectcannot in law be supported. It would have been wiser had the Crowngiven particulars of a single act of an offer to supply opium as the chargeunder count one and specified the approximate date on which such offerwas made. It is true that count one, on the face of it, charges the 1staccused not with making “ offers ” to supply opium but with one offenceof offering punishable under section 76 (5) of the Ordinance but thedefence was left to speculate, on a right understanding of what con-stituted the offence of offering to supply opium, which of the numerousacts imputed to the 1st accused would be asserted as the offence of whichhe was guilty under the first count.
In the course of analysing the evidence the trial Judge had occasion -torefer to the letter P38 of 16th April, 1954, which has already been quotedin full. This letter was typed and not signed. The cover in which itwas enclosed, P38A, gave the sender’s name as one Bek Tok Choi of212 Norris Road, Pettah. There was no such person at that address.The Judge dealt with the contents of P38 and the surrounding circum-stances and the contention of the Crown that, though it was disguised asa communication sent by A. C. Perera to Lim Peng Koi, the 1st accusedwas really the author and the sender and said,
“ This letter is purported to have been sent by A. C. Perera. Youwill note in P38 there is a reference to this letter about 10 cwt., thatdelivery will be taken. If you hold that this letter P38 was in factsent by the 1st accused, then it is a very important letter …
Even if you accept that the 1st accused had commissioned A. C. Pererato sell the opium and to find a buyer and the offer of 1,000 pounds wasmade at Singapore, this letter P38 was sent from Colombo and here theoffer was 16 cwt. That is important from the point of view of thefirst count, that is, 12 pounds more than what is mentioned in thefirst count of the indictment. Here is an offer to supply 16 cwt. ofopium coming from Colombo. If you hold that the 1st accused hadsent this letter it is sufficient to satisfy the first count of the indictment.There is very little difference between 1780 and 1792. ”
This is a definite direction that, apart from any question of a continuousoffer, it was open to the jury to convict the 1st accused on count one ifthey were satisfied that on or about 16th April, 1954, he sent the letterP38 to Lim Peng Koi. If P38 was the act of offering opium constitutingthe offence charged in count one, then that count ought to have beenamended in order to give the acoused notice of the specific act of offering.The failure to do so must have prejudiced the 1st accused for he was leftin the dark in regard to the weapon that was to be used to strike himdown. That the 1st accused knew that P38 was going to be used againsthim is clear. Its relevancy to all the counts is beyond dispute, but the
PULLE, J.—The Queen v. Rupaainghe Per era
serious question does arise whether the 1st accused had any reason toanticipate that P38 was going to be used as the very substance of a factin issue. Had P38 been an isolated document different considerationsmight have applied but it is just one out of numerous documents whichwere admitted as relevant and bearing on all the counts. It is not knownon what view of the case the jury convicted on the first count. If theydid convict on the basis of a “ continuous offer ”, the conviction wasbad as no legal content can be assigned to the expression “ continuousoffer ”. If the conviction was on the ground that P38 constituted the offerwhich was made in breach of section 33 and that that offence was com.pleted on the 1st accused posting the letter, we think that the convictionshould not be allowed to stand because the charge did not, in compliancewith section 168 (1) of the Criminal Procedure Code, contain such parti-culars as to the time of the alleged offence as were reasonably sufficientto give the 1st accused notice of the matter with which he was charged.The conviction on the first count and the sentence are, therefore, setaside. We have held that there is no misjoinder of charges with theresult that the acquittal on the first count cannot by itself affect thevalidity of fhe convictions on the remaining counts.
The objection against the fourth count is that it does not disclose anoffence. It was argued that there is no offence known to the Ordinanceas an “ attempt to export opium ” because the act of attempting to exportopium is the offence of exporting opium. In our opinion there is nosubstance in this contention. Exporting opium is an offence againstthe Ordinance and in terms of section 76 (3), count four alleges expresslythat the 1st accused attempted to commit the offence of exporting inbreach of section 31 (3). The penal section referred to in the count is theone which provides for the punishment of exporting. For similar reasons,the argument against count five also fails.
In the result we acquit the 1st accused on the first count and affirmthe convictions and sentences on the remaining counts. Subject to ourdecision on the first count the application of the 1st accused is refused,and his appeal is dismissed. The applications of the 2nd and 3rd accusedare refused and their appeals are dismissed.
Before parting with this case there is one topic on which some observa-tions are called for. It appears from the summing up that learnedcounsel who appeared for the 1st accused addressed submissions to thejury that if they came to a finding that, if the offences charged in theindictment had not been committed in the course of the same transaction^the appellants had to be acquitted. The validity of the indictment wasruled upon at the commencement of the trial and it was notopen to counsel thereafter to address the jury on this point as it wasentirely outside their province to determine whether or not thecharges were properly joined. The learned Judge did tell the jury that
PUL.LE, J.—The Queen v. Pupasinghe Per era
they had to find a verdict on each of the counts, irrespective ofwhether they thought that the offences had not been committed in thecourse of the same transaction, but he did so after reading the sectionsof the Code pertaining to joinder and after referring to the case law-governing the subject. We are of the opinion that the Judge need nothave said anything more than that the jury were not concerned with the-validity of the joinder, the more so as, after an exceptionally long trial,it was essential that their minds should not be distracted by legal argu-ments, accompanied by citation of authority, on matters outside thescope of their functions. Laymen not versed in the niceties of the lawshould not under any circumstances be burdened with arguments for oragainst a proposition of law. It is sufficient, where necessary, to conveya statement of law in language simple enough to be understood by theclass of men from whom jurymen are drawn.
After dealing with the law affecting joinder the learned Judge said,
“ So that I hold that the legal objection raised by counsel for the 1staccused has failed with reference to this question of offences havingbeen committed in the course of the same transaction as set out incount one. But in view of the importance of this point and in viewof the fact that we have no decisions of our own on this point I wouldask you, when you return your verdict, to specifically bring a findingas to whether counts 2 and 3 have been committed in the course of thesame transaction as set out in count one and also whether counts fourand five have been committed in the course of the same transactionas set out in count one; that is, in spite of the direction of law I havegiven you that it does not matter to you whether they are committedin the course of the same transaction or not, you are entitled to find theaccused guilty on those particular counts, provided the other ingredientsare established : still in view of the importance of this point I wantyou to specifically bring, along with your verdict, a finding of fact onthat question. Please keep in mind that it is important for you to giveyour full consideration to that aspect of the. matter, as to whether theoffences mentioned in counts two and three which go together, becauseone is the actual act and the other the act of abetting and in countsfour and five which refer to the second attempt of export of this genera-tor, have been committed in the course of the same transaction as setout in count one. ”
The invitation to the jury to express a finding in the terms set outabove cannot at all be justified. Apart from their being no legal warrantfor such a course, the number and complexity of the' questions of factthat they had to decide indicated that they should not have been bur-dened with any matters extraneous to their office. When they returned.with their verdicts they brought no finding in regard to the sameness
516 BASNAYAKE, C.J.—Gunapafa v. High Lead, Road Omnibus Co. Ltd.
of the transaction referred to in the various counts. After they hadbeen discharged they were recalled and apparently questioned as to whattheir finding on the point was. The finding is recorded as follows :
“ Later.
The unanimous finding of the Jurors is also that counts Nos. 2 and 3form part of the same transaction set out in count 1 and counts Nos.4 and 5 also form part of the same transaction as set out in count 1 ofthe indictment. ”
It is hardly necessary to point out that this procedure was manifestlyillegal as the jury, after they were discharged, had no further functionsto perform in the case.
Conviction on first count set aside.Conviction on remaining counts affirmed.