D. T. SAMARATUNGA, Appellant, and THE QUEEN, Respondent

006-NLR-NLR-V-60-D.-T.-SAMARATUNGA-Appellant-and-THE-QUEEN-Respondent.pdf


LQRto gOMBRYBLL OF TEIARROW—Samaratunga v. The Queen25
[In the Privy Cotweil]
1958 Pre'seht': y Viscount Simonds, Lord Cohen, lord Keith ofAvonholm, Lord Somervell of Harrow and Mr. L. M, D. de SilvaT. SAMARATUNGA, Appellant, and THE QUEEN, Respondent
Privy Council Appeal No.of 1957
<v
Contempt of Court—Perjury—Sections 489 and 440 of Criminal Procedure Code—Penal Code, s. 188,
The appellant, who was one of the accused in a trial before the SupremeCourt, was acquitted for the reason that a witness G,, upon whose evidence asgiven in the non-summary proceedings the case against the appellant had beenbased, gave contradictory evidence at the tr£al. At the summary trial of thewitness under section 439 of the Criminal Procedure Code for giving false evi-dence, the witness pleaded guilty. With a vigw to deciding on the appropriatesentence the trial Judge wanted to hear evidence with regard to what he called“ the background He called four persons, one of whom was the appellant. -He asked the appellant a number of questions and came to the conclusion thatthe appellant was deliberately lying, in particular in saying that the witness G.had never been his servant and that he did not know him. Accordingly, underthe powers conferred by section 440 of the Criminal Procedure Code, he madeorder sentencing the appellant to three months rigorous imprisonment for -having given false evidence during the course of a criminal trial.
Held, that the order of the trial Judge was not obnoxious to the provisions"^,section 440 of the Criminal Procedure Code.
•AlPPEAL by special leave from an order of a Commissioner of AMiU&e'of the Supreme Court.
Dingle Foot, Q.C., with Joseph Dean and Miss D. Phillips, for theappellant.
T. 0. Kellock, for the respondent.
Cur. ado. wit.
April 23, 1958. [Delivered by Lord . Somervell Off Harrow]—
This is an appeal by special leave from an Order of a Commissioner ofAssize of the Supreme Court of Ceylon sentencing the appellant to threemonths rigorous imprisonment for having given false evidence during thecourse of a criminal trial. The Order was made under the powers cod*,ferqpd by Section 440 (1) of the Criminal Procedure Code. That Section’
reads as follows:—
*
“‘440.—(1) If any person giving evidenoe on apy subject in opes^ Opart in any judicial proceeding under this Code^^h^ the c^idii;
.cl the Cou^ before which the judicial proceeding^evidence within the meaning of Section 188 of tfee-Pelift^Pdelt s&H* hfe lawful for the Court, if such .Court be theC$pfc, stem-
, manly to sentence such Witness as for a contempt’of the Geurf to■ tojhjtemmerit either simple or rigorous for any period not exceeding
R 26302-4,593 (9/58) '
26LOUD SOMERVELL OF HARROW—Samaratunga v. The Queen
three months or to fine such witness in any sum not exceeding twohundred rupees or if such Court be an inferior Court to order suchwitness to pay a fine not exceeding fifty rupees and in default of pay-ment of such fine to undergo rigorous imprisonment for any periodnot exceeding two months. Whenever the power given by this Soetionis exercised by a Court other than the Supreme Court the Judge orMagistrate of such Court shall record the reasons for imposing suchfine.
Any person who has undergone any sentence of imprisonmentor paid any fine imposed under this section shall not bo liable to bopunished again for the same offence.
Any person against whom any order is made by any court otherthan the Supreme Court under subsection (1) of this soetion mayappeal to the Supreme Court and every such appoal shall be subjectto the provisions of this Code.
In lieu of exercising the power given by this section the courtmay if it thinks fit transmit the record of the judicial proceeding tothe Attorney-General to enable him to exercise the powers conferredon him by this Code or proceed in manner provided by section 380.
Nothing in this section contained shall be construed asderogating from or limiting the powers and jurisdiction of theSupreme Court or the Judges thereof. ”
Section 188 of the Penal Code is as follows:—
“ 188. Whoever, being legally bound by an oath or affirmation, orby any express provision of law to state the truth, or being bound bylaw to make a declaration upon any subject, makes any statementwhich is false, and which he either knows or believes to be false, ordoes not believe to be true, is said to give ‘ false evidence
“ Wherever in any Ordinance, the word ‘ perjury ’ occurs, suchOrdinance shall be read as if the words ‘ giving false evidence ’ weretherein used instead of the word ‘ perjury
“ Explanation 1.—A statement is within the meaning of this sectionwhether it is made verbally or otherwise.
“ jExplanation 2.—A false statement as to the belief of the personattesting is within the meaning of this section, and a person may beguilty of giving false evidence by stating that he believes a thingwhich he does not believe, as well as by stating that he knows a thingwhich he does not know.
“ Illustrations”
In Supreme Court Case No. 10 before the same Commissioner the appellanthad been indicted with one Yothan Singho, the latter with attempting tomurder one Peiris Singho and the appellant with aiding and abetting.In the non-summary proceedings before the Magistrate, one Gunatillekehad given evidence that he was employed by the appellant and that theappellant had given him and Yothan Singho arrack and a club and haddirected them to go and kill Peiris Singho.
LORD SOMERVELL OF HARROW—Samaratunga v. The Queen27
At the trial Gunatilleke while continuing to say that he was in theappellant’s employment said that the rest of his evidence as summarisedabove was fabricated. He said that he had given his earlier evidence atthe request of Peiris Singho’s wife and that he had been promised PeirisSingho’s daughter Kusumawathie in marriage if he gave this false evi-dence. He produced two documents which he said had been given himby Peiris Singho’s wife containing the false evidence.
The case against the appellant had been based on Gunatilleke’s evidenceas given in the Magistrate’s Court. There was no other evidence againsthim ; the learned Commissioner therefore directed the jury to acquit theappellant and this was done, the case proceeding against Yothan Singho,who ultimately pleaded guilty.*
The learned Commissioner directed the Clerk of Assize to prepare anindictment against Gunatilleke under Section 439 of the Criminal Proce-dure Code which reads as follows:—
“ 439. (1) H in the course of a trial in any District Court or of atrial by jury before the Supreme Court any witness shall on anymaterial point contradict either expressly or by necessary implicationthe evidence previously given by him at the inquiry before theMagistrate, it shall be lawful for the presiding Judge, upon theconclusion of such trial, to have such witness arraigned and triedon an indictment for intentionally giving false evidence in a stageof a judicial proceeding. In a trial before the Supreme Court theindictment shall be prepared and signed by the Registrar, and theaccused may be tried by the same jury. In a trial in a DistrictCourt the indictment shall be prepared and signed by the secretaryof such court.
At such trial it shall be sufficient to prove that the accusedmade the contradictory statements alleged in the indictment, and itshall not be necessary to prove which of such statements is false.
The presiding Judge may, if he considers expedient, adjournthe trial of such witness for such period as he may think fit, and maycommit such witness to custody or take bail in his own recognizanceor with sureties for his appearance. In the Supreme Court suchadjourned trial shall be before the same or any other jury as theJudge shall direct. ”
Gunatilleke pleaded guilty.
The learned Commissioner wanted to hear evidence with regard towhat he called ‘ the background ’ with a view to deciding on the ap-propriate sentence. If the statement made to the Magistrate was fabri-cated Gunatilleke had sworn false evidence incriminating an innocentman to further a love affair. If that evidence was true his evidence atthe trial might have been due to a desire to shield the appellant, whomeveryone had described as his master, as a result of or in hope of somepayment. The learned Commissioner might have left Gunatilleke togive or call evidence in mitigation if he so desired. His counsel madevarious statements on instructions to the effect that his evidence justgiven at the trial was the truth. The learned Commissioner decidedhimself to have witnesses called and ordered that Peiris Singho, Punohi
28 LORD SOMERVELL OF HARROW—Sa/maratunga v. The Queen
2$ona his wife, Kusumawathie his daughter, and the appellant should becalled. The wife and daughter both denied that they had written thedocuments produced by Gunatilleke or that there was any truth in hisstory of his possible marriage with the daughter. The daughter said thatGunatilleke was employed by the appellant.
The appellant then gave evidence being examined by Crown Counsel,and in the course of his examination he was asked a number of questionsby the learned Commissioner. The learned Commissioner came to theconclusion that he was deliberately lying, in particular in saying thatGunatilleke had never been his servant, that he did not know him, thoughhe had once seen him in the bazaar, and that he did not know his nameuntil he gave evidence against him. It was in respoct of this evidencethat the sentence appealed from was imposed.
In Chang Hang Kiu v. Sir Francis T. Piggot1 this Board consideredan Ordinance of Hong Kong in similar terms to Section 440 (1) of theCeylon Criminal Procedure Code. It was laid down that before anorder was made under such a provision the gist of the accusation mustbe made clear to the witness and he must be given an opportunity ofgiving reasons against summary measures being taken. The witnessesin that ease had not been given such an opportunity and the appeal wasallowed. This decision assimilated the procedure to that laid down bythe Board for ordinary contempt of Court In re Pollard 2.
It was submitted for the appellant that neither of the above eoiidit ionswere satisfied. The only baas for this submission was that the nature ofthe charge which had already been indicated in general terms was parti-cularised with regard to one specific point after the appellant had boonclearly given an opportunity to give reasons against summary measuresbeing taken. In their Lordships’ opinion this point fails.
It was further submitted that the learned Commissioner had done thatwhich was held to be wrong in Subramaniam v. The Queen 3. Tho appellantin that case was a witness in a murder trial. The learned trial Judgecame to the conclusion as the evidence was called that there had been aconspiracy between the accused man, the appellant and the police tosuppress evidence. He came to the conclusion that the evidence asgiven did not justify leaving the case to the jury whom he directed tobring in a verdict of not guilty. This was on March loth.
Later on that day and on March 16th and 18th the learned Judge calledthe appellant and others whom he suspected. The appellant and otherswere represented by Counsel. Medical evidence was called on behalf ofone of those suspected. The appellant was sentenced on March 18th.There were other unsatisfactory features as appear from the Record butit was in these circumstances that Lord Oaksey in delivering the Judgmentof the Board used these words.
“ In their Lordships’ opinion the course taken by the commissionerwas misconceived. The summary power conferred by section 440 (1)is one which should only be used when it is clear beyond doubt thata witness in the course of his evidence in the ease being tried has
1 [W091 A. G. 312.1 {1868) L. R. 2 P. C. 106.
* 1195611 W. L. R. 456, 57 N. L. R. 409.
LORD SOMERVELL OF HARROW—Samaratunga v. The Queen
29
committed perjury. It was, in their Lordships’ opinion, never in-tended that in the exercise of the power under section 440 (1) in thecourse of a criminal trial a subsidiary criminal investigation should beset on foot not against the prisoner charged but against the witnessesin the case. If such an investigation is necessary it can and shouldbe set on foot under section 440 (4). ”
Nothing of the kind took place in the present appeal. The evidencewas given in the course of the trial, in relation to sentence. This pointalso fails.
The appellant further submitted that the learned Commissioner’s discre-tion had not been judicially exercised and that the case was not a properone for section 440. Their Lordships have carefully considered the pointsmade subsidiary to the points already considered and are satisfied thatthere is no substance in them. The leanied Commissioner regarded thematter as clear beyond doubt. He saw and heard the witness and therewas clearly material on which he could be so satisfied.
Their Lordships were referred to a number of cases in Ceylon in whichthis Section has been considered. In some cases it is said it should not beused where there is a conflict of testimony (see Bonser, C.J., in Andris v.Jmnis1, Ahamath v. Silva*, Dassanayaka v. Excise Inspector, Horana3).
From its nature the power is one which should only be used when theJudge is “ clear beyond doubt ”—to take the words used by Lord Oakseyin Subramaniam’s case—that the witness has given false evidence asdefined. Subject to that over-riding principle their Lordships adopt whatwas said by Wood Renton, C.J., in Banda v. Soda 4.
“ The true interpretation of the scope of section 440 of the CriminalProcedure Code appears to be this. The Legislature has left theCourts quite free as a matter of law to deal under that section withany form of ‘ false evidence ’ within the meaning of section 188 ofthe Penal Code, and if we attempt to fetter that discretion by rigidgeneral rules as to the class of cases in which it may or may not beexercised, we shall be acting rather in a legislative than in a judicialcapacity, and running the risk of paralysing the operation of astatutory power, the maintenance of which in full working order isessential to the administration of justice in this country. But thereis ancient and sound authority for the proposition that ‘ all things thatare lawful are not expedient ’, and we have every right to considerourselves, in the exercise of our original jurisdiction, and in theexercise of our appellate jurisdiction [entitled] to inquire whetherthis statutory power can be safely exercised in any particular casethat has come before us. ”
Then* Lordships regret that the respondent who successfully opposedthe appeal was not represented for the assistance of the Board whenthe petition for leave to appeal was heard.
For the reasons which have been stated their Lordships have humblyadvised Her Majesty that this appeal be dismissed.
Appeal dismissed.
1 (1896) 2 N. L. B. 74.* (1946) 47 N. L. B. 47.
* (1920) 22 AT. L. B. 444.* (1914) 17 N. L. B. 610, 612.
2*—J. N. E 26302 (9/58)* f