Ukkuwa v. The Attorney-General
COURT OF APPEALT1LAKAWARDANE, J. ANDWIJEYARATNE, J.
CA NO. 90/99
HC COLOMBO NO. 9033/97OCTOBER 10. 2002
Poisons, Opium and Dagerous Drugs Ordinance as amended by Act, No. 13 of1984, section 54 (A) (D) – Conviction – Life imprisonment – Evidence Ordinance,sections 59, 64 and 67 – Government Analyst’s report – Presumption – YouthfulOffenders (Training Schools) Ordinance, No. 28 of 1939 as amended by Act,No. 42 of 1944, section 4 (1) – Applicability – Is the sentence of life imprisonmentcontrary to section 4 (1)? – Should it be confined to a period of 3 years?
TTie Government Analyst’s report, is merely a document that bears acontemporaneous record that is maintained in the ordinary course ofbusiness of the Government Analyst's Department and there is a presumptionwhich operates in favour of such records, that is they are genuine andmaintained by public officers, in the course of their duty.
The sentence that has been given by the High Court Judge accords withthe Poisons, Opium and Danagerous Drugs Ordinance – where contraventionof section 54 (A) (D) attracts the death sentence or life imprisonment. Itis a mandatory compliance that is required by the High Court Judge andhe does not have any discretion.
The Poisons, Opium and Dangerous Act- was enacted specially to dealwith a particular kind of offences and as the sentencing is mandatory asprovided for by the Act, it must necessarily be complied with.
APPEAL from the High Court of Colombo.
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Dr. Ranjith Fernando with Sadamalie Munasinghe, Sadamali Manathunga andRanmali Jayawardena for appellant.
Palitha Fernando, Deputy Solicitor-General for respondent.
October 10, 2002S. TILAKAWARDANE, J.
The accused-appellant in this case was indicted on the charge ofpossession of 28.4 grams of heroine, an offence punishable undersection 54 (A) (D) of the Poisons, Opium and Dangerous DrugsOrdinance as amended by Act, No. 13 of 1984. After trial he wasconvicted by the High Court of Colombo and sentenced to a termof life imprisonment. The accused-appellant has preferred thisappeal on three separate grounds.
That the learned trial Judge has erred in law by admittinginadmissible evidence in so much as his finding of proof beyondreasonable doubt and finding of guilt was based on thedocument P14, which is the Government Analyst’s Reportdated 29. 11. 1996 and thereby admitted evidence that wasinadmissible in terms of sections 59 and 67 of the EvidenceOrdinance.
That the learned trial Judge had erred in so much as he hasnot considered relevant sentencing policies on a considerationof the age of the accused-appellant which admittedly wasapproximately seventeen and half years at the time of thecommission of the offence.
That the learned trial Judge had failed to act in terms ofsection 330 (5) of the Code of Criminal Procedure Act,No. 15 of 1979.
Ukkuwa v. The Attorney-Genera! (Tilakawardane, J.)
At the outset of his submissions, the counsel has conceded thathe is not challenging or assailing the facts in this case as regardsto the exclusive possession of heroin by the accused-appellant, northe chain of productions, nor the subsequent evidence which heconcedes as proof beyond reasonable doubt as to the charges thathad been preferred against the accused-appellant.
In consideration of the first challenge to the judgment of thelearned High Court Judge the learned senior counsel appearing for *>the accused-appellant has raised several matters for the considerationof this court. One of the matters that he has raised is in relation tothe report of the Government Analyst’s Department marked P14,adverted to above, upon which the conviction, on the facts as towhether the production that had been admittedly taken from thepossession of the accused-appellant was a prohibited drug whichpossession was in contravention of the provisions of the Poisons,Opium and Drangerous Drugs Ordinance was made. His contentionwas that the only evidence considered was the document P14 andon a consideration of this evidence, it is important to note that apart -wfrom the evidence of this document, there was other evidence suchas the real evidence of the substance that had been recovered fromthe accused-appellant, which the several officers who gave evidencebefore the learned High Court Judge submitted was a prohibited item.There was also the evidence of the officer of the GovernmentAnalyst’s Department, Mr. Sivarasa, who had conducted theinvestigations into this substance which had been forwarded to himin two sealed envelopes marked as PI and P2, respectively.
He gave oral evidence of the fact that he had analyzed thissubstance (page 309) and his findings upon analysis was that this sosubstance was heroin as adverted by him in his report P14. Anobjection was also taken by the learned senior counsel that whereasone Sivarasa gave evidence in court that on the face of the report,the report adverted to have been prepared by a Senior Assistant
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Government Analyst called Sivarajah. However, though there is thisdistinction in their names, it is important to note at pages 315 and316 of the brief, that Sivarasa who gave evidence before the learnedHigh Court Judge claimed to be the Senior Government Analyst whoanalyzed the said substance and also who prepared the report uponthe conclusion of his findings on this analysis.so
He, furthermore, categorically and specifically identified P14 as areport prepared by him and which contained his conclusions upon theanalysis carried out by him. It is important to note that during thetrial no objections had been preferred at the time that P14 wasproduced, through the witness Sivarasa.
Furthermore, there had been no questions under cross-examinationrelating either to the genuineness of document P14, nor to the authorshipof such document which were the matters of contest that were broughtup before this court. Nor was there any challenge raised even throughcross-examination of the identity of this witness who claimed to have 70carried out the examination of the substance taken from the possessionof the accused-appellant. This evidence given by the Senior AssistantGovernment Analyst, Mr. Sivarasa, has not been challenged in theproceedings before the original High Court, and is for the first timebeing challenged before this court. In this sense, court is mindful ofthe fact that having had the opportunity to cross-examine the witnessbefore the original court and having failed or neglected to avail himselfof the opportunity of such examination on these matters which couldhave been clarified, had such objections or cross-examination beingraised in the original court, the counsel is precluded from challenging eothe veracity of such matters of fact before this court.
It is to be borne in mind that the Government Analyst’s report isa contemporaneous recording of findings by the GovernmentAnalyst who had carried out certain tests and who had made certain
Ukkuwa v. The Attorney-General (Tilakawardane, J.)
observations of which he made an immediate report. In thesecircumstances, to exclude the possibility that he might subsequentlyforget matters pertaining to this particular detection, his observationsare contemporaneously recorded and in that sense the contents ofthe Government Analyst’s report are important because it is acontemporaneous recording of the findings of the Government Analystat the time the analysis of the substance was carried out.
It must also be borne in mind that is merely a document that bearsa contemporaneous record that is maintained in the ordinary courseof business of the Government Analyst’s Department and there is apresumption which operates in favour of such records, that is theyare genuine and maintained by public officers in the course of theirduty.
This presumption can only be assailed by tangible evidence, throughcross-examination of the witness or through other reliable evidencethat has been placed before the original trial court. This has not beendone so in this case. In fact, contrary to this, the Senior GovernmentAnalyst, Mr. Sivarasa, who gave evidence referred to his own notesand clarified the position that he had indeed made notes at the timeof an analysis and that these notes were consistent with the reportthat he had produced in court. In this sense, he not only identifiedhis report, but also affirmed the fact of his authorship of that reportand the fact that he indeed carried out an analysis of the substancewhich he found to be heroin. In these circumstances, the proof thatwas envisaged in terms of sections 59 and 64 of the EvidenceOrdinance have been complied with. Furthermore, it also proves thatas he has admitted the preparation of the said document that thisdocument cannot be assailed on the grounds it is not in compliancewith section 67 of the Evidence Ordinance. In these circumstances,we find that the submissions of counsel pertaining to the initial matterraised by him are untenable and not borne out by the provisions ofthe Youthful Offenders Act.
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In these circumstances, this court sees no reason to set aside theconviction of the accused-appellant as there are no grounds uponwhich the conviction can be set aside.
On the matter of sentence, counsel has urged two matters which 120this court has considered. The first matter he has brought up concernsthe sentence, which was not in accordance with the YouthfulOffenders (Training Schools) Ordinance, No. 28 of 1939 as amendedby Act, No. 42 of 1944. One can see from the age of this enactmentthat this enactment today, in the light of several of the offences thathave arisen, specially offences which are punishable in terms of thePoisons, Opium and Dangerous Drugs Ordinance, and offences whichhave been considered as serious by the State by the enactment ofsevere sentences as reflected in the schedule of punishments containedin the Poisons, Opium and Dangerous Drugs Ordinance (Amendment) 130Act, No. 13 of 1984, the question of sentencing matters outside thisAct would also be relevant. However, this court considers thesubmissions of the counsel relating to this Youthful Offenders (TrainingSchools) Act. Section 4 (1) of the Act refers to a youthful person whohas attained the age of 16 years and who has not attained the ageof 22 years. Admittedly, the accused-appellant at the time of thisoffence was a person who was seventeen and a half years and thiswas not being challenged by the Deputy Solicitor-General who appearedfor the State in this case. This section 4 (1) reads as follows :
“Any person who is convicted by the High Court of any offence, «owhich according to the First schedule to the Code of CriminalProcedure Act, is triable only by the High Court and where itappears to the court that the person is (1) a youthful person and(2) that by reason of his criminal habits or tendencies or associationwith persons of bad character, it is expedient that he should besubject to detention under such instruction, training and disciplineas would be available in a training school, the court may, in lieu
Ukkuwa v. The Attorney-General (Tilakawardane, J.)
of making any order which it is empowered to make under theprovisions of any other written law, and subject to the provisionsof subsection (2), order him to be detained in a training school isofor a period of three years.”
The argument of counsel for the accused-appellant is that thesentence of life imprisonment is contrary to the provisions of thissection and should be confined to a period of 3 years. First, it isimportant to note that the sentence that has been given by the HighCourt Judge accords with the Poisons, Opium and Dangerous Drugs(Amendment) Act, No. 13 of 1984, where a contravention Of provision54 (A) (D) which attracts death or life imprisonment. The learned HighCourt Judge has imposed a sentence of life imprisonment. It is alsoimportant to remember that whereas the word Intention of the legislature” 160in terms of the aforesaid Poisons, Opium and Dangerous DrugsOrdinance was concerned it was a mandatory compliance that isrequired by the High Court Judge and he does not have any discretion.
In any event, the section adverted to under the Youthful Offenders(Training Schools) Act is a discretionary remedy.
On a consideration of the fact that the Poisons, Opium and DangerousDrugs Ordinance as amended was a special Act enacted speciallyto deal with this kind of offences and as the sentencing is mandatorilyas provided for by this Act, it must necessarily be complied with bythe Judge. Furthermore, it is also important to remember that the wprovisions of the Youthful Offenders (Training Schools) Act, No. 28of 1939 as amended gives a discretion to court under certaincircumstances. The circumstances are, that in the mitigation of sentence,the assertion is made by or on behalf of the accused that there arematters which must be considered by the Judge in the sentencing.
In this case, this had never been brought to the attention of the learnedHigh Court Judge, nor were any matters placed before the learnedHigh Court Judge for him to even consider the submissions of counsel
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pertaining to youthful persons. However, it is important to note thatin sentencing him, the learned High Court Judge has adverted to on i«>
12. 1999 (page 368) that the person is a youthful person andit has been a matter that he had considered. However, no othermatters had been placed before him on behalf of the accused-appellantand in these circumstances we see no reason to interfere with thesentence given even though there are provisions in the YouthfulOffenders (Training Schools) Act which may grant an opportunity foryouthful offenders to be treated in a special manner.
Finally, the other argument of counsel was that the period of hisincarceration had not been considered and therefore that this courtshould reduce the sentence of the accused-appellant. However, in the teoproceedings of 03. 12. 1999 at page 368, the learned High CourtJudge has considered several matters prior to the sentencing of theaccused-appellant as adverted to earlier and he has considered thefact that the accused-appellant was 18 years old. He has also consideredthe fact that the accused-appellant has no previous convictions. Hehas specially considered the fact that he has been remanded for aperiod of 4 years prior to. his conviction and having considered thesematters, he has sentenced him to life imprisonment. In all thesecircumstances, we see no reason to interfere with the sentencing ofthe accused-appellant by the High Court Judge. Accordingly, the 200appeal is dimissed.
WIJEYARATNE, J. – I agree.
UKKUWA v. THE ATTORNEY-GENERAL