COURT OF APPEAL.
ABEYWARDENA, J.. JAYALATH, J. AND RAMANATHAN. J.
H.C. COLOMBO 2023/83.
MARCH 10. 11. 12, 13, 14, 24, 26, 1986, APRIL 28, 29. 30. 1986, MAY 12. 13,14, 15, 16. 26, 27, AND 28. 1986.
Criminal Procedure-Offences Against Aircraft Act No. 24 of 1982-Chargesunder s. 17(1)(a) read with s. 19(1) and (3) of the Act and s.394 of the PenalCode-Section 20 of the Offences Against Aircraft Act-Convention on offences andcertain other acts committed on board aircraft signed at Tokyo or14.9.1963-Convention for the Suppression of Unlawful Seizure of Aircraft signed atThe Hague on 16.9.1970 and Convention for the Suppression of Unlawful Acts Againstthe Safety of Civil Aviation signed at Montreal on 23.9.1971 -Conviction and sentenceon two charges—S. 203, 279 and 175 of Code of Criminal Procedure Act—Failure to• give reasons for conviction and deliver judgment in open court-Retrospective ancretroactive legislation-Jurisdiction-Defects in Charges-Misjoinder.
There were two charges against the accused-appellant in the indictment served on himThe first was that between 29.6.1982 and 01.7.1982 between Delhi and Bangkok theaccused while being on board a foreign aircraft whilst in flight unlawfully intimidated thepilot with threats to blow up the aircraft if his demands were not met and therebycommitted an offence under section 17 (1) (a) read with section 19(1) and 19 (3) (d) otthe Offences Against Aircraft Act No. 24 of 1982. The second was that between01.7.1982 and 03.7.1982 in the course of the same transaction theaccused-appellant dishonestly retained at Colombo U.S. $299,700 knowing or havingreason to believe the money was stolen property and thereby committed an offencepunishable under s.394 of the Penal Code. Trial was before the High Court Judge butwithout a jury. The accused was convicted and sentenced to simple imprisonment forlife on count 1 and 3 years' rigorous imprisonment on count 2-sentences to runconcurrently. Objection was taken that the Aircraft Act being retroactive orretrospective legislation was bad as it offended Article 13(6) of the Constitution, thatthe offence alleged having being committed outside Sri Lanka on a foreign aircraft wasnot triable in Sri Lanka, that the judge had failed to comply with s. 203 of the Code ofCriminal Procedure Act as he did not give his reasons for the conviction nor deliverjudgment in open court, and that no preliminary inquiry had been held by the Director ofCivil Aviation as required by s. 20 of the Offences Against Aircraft Act.
Further the first charge did not refer to the jurisdiction of the High Court insofar as towhere the offence was committed and the second charge was bad as no charge hadbeen framed for committing theft or extortion. The pilot who had been threatened didnot hand over the money to the accused. There was a misjoinder of charges.
11) By virtue of s. 17 (1) of the Offences Against Aircraft Act and s. 9 of the JudicatureAct the High Court of Colombo had jurisdiction to try any person who is a Sri Lankan forany offence wherever committed including "any place outside the territory of Sri Lanka• or on board or in relation to any ship or aircraft of whatever category." The act which theaccused is alleged to have committed has now been recognised as an offence underthe Act. Hence the High Court of Colombo had jurisdiction to try count 1.
Charge No. 2 was a cognizable offence under the Penal Code and the High Courthas jurisdiction to try it.
A judgment dated 29.6.83 signed by the judge is filed of record. The circumstancethat the appellant appealed against the judgment and findings shows that the judge diddeliver judgment. There is also the presumption that an official act had been donecorrectly. Sections 203 and 279 have been complied with.
The omission of the words "within the jurisdiction of the High Court' in charge 1 isnot a fatal irregularity.
The demand for money cannot be separated or isolated from the threat if thedemand was not complied with. The intimidation and threat formed the subject-matteiof the 1 st count and the money thereby received the subject-matter of the 2nd countThough the dates of the offences are separated by a short period the two charge;formed one transaction. The American dollars come within the meaning of stolerproperty. There was no misjoinder under s. 175(1) of the Code of Criminal ProcedurrAct.
The inquiry in terms of s. 20 of the Aircraft Act is an administrative inquiry and noian essential prerequisite to a prosecution under the Act.
Sentences of simple imprisonment and rigorous imprisonment cannot runconcurrently.
A sentence of life imprisonment is not mandatory under the Offences AgainstAircraft Act.
Case referred to:
Jonklaas v. Somadasa – (1942) 43 NLR 284.
APPEAL from judgment of High Court of Colombo.
Dr. Colvin R. de Srva with Ranbanda Seneviratne and Miss Saumya de Silva for theaccused-appellant.
Upawansa Yapa, Deputy Solicitor-General with N. G. Amaratunga. State Counsel forthe Attorney-General.
August 7, 1986.
The indictment served on the accused-appellant was in the Sinhalalanguage and the accused-appellant was indicted on two charges, thefirst being under the Offences Against Aircraft Act No. 24 of 1982and the other under the Penal Code.
The first charge against him was-
"that between the 29th of June 1982 and the 1 st of July 1982between New Delhi and Bangkok, being on board a foreign aircraft,to wit, Al Italia (Boeing) whilst in flight, unlawfully by threat didintimidate the pilot of that aircraft, that if the demands made by theappellant were not satisfied, that he will blow up the aircraft, andcommitted an offence under section 17(1) (a) read with section19(1) and 19(3)(d) of the Offences Against Aircraft Act No. 24 of1982".
The second charge against him was
"that between 1st July 1982 and 3rd July 1982 at Colombowithin the jurisdiction of this court and in the course of the sametransaction, as in count 1, the appellant dishonestly did retain299,700 U.S. Dollars, stolen property knowing or having reason tobelieve the same to be stolen property, an offence punishable undersection 394 of the Penal Code"
After trial in the High Court of Colombo without a jury theaccused-appellant was found guilty of both charges and afterconviction was sentenced to serve a term of simple imprisonment forlife on the first charge and a term of three years' rigorousimprisonment on the second charge, both sentences were to runconcurrently. The money recovered from the appellant was ordered tobe returned to the Al Italia Air Company on a bond with a specifiedundertaking. It is against this conviction and sentence that this appealhas been filed.
Learned counsel for the appellant submitted that the OffencesAgainst Aircraft Act came into force on 26th July 1 982 after thealleged offence has been committed and that this was retrospective or
retroactive legislation, since the act committed by the appellant wasnot an offence at the time it was committed. He referred to Article13(6) of the Constitution of Sri Lanka wherein it is enacted that-
"No person shall be held guilty of an offence on account of any actor omission which did not, at the time of such act or omission,constitute such an offence."
However, in terms of the proviso that—
"Nothing in this Article shall prejudice the trial and punishment ofany person for any act or omission which, at the time when it wascommitted, was criminal according to the general principles of lawrecognised by the community of nations."
and because the Offences Against Aircraft Act, No. 24 of 1982 was-
"to give effect to certain conventions relating to the safety ofaircraft to which Sri Lanka has become a party, namely, theConvention of Offences and Certain Other Acts Committed onBoard Aircraft signed at Tokyo on 14th September 1963, theConvention for the Suppression of Unlawful Seizure of Aircraftsigned at The Hague on 16th December 1970 and the Conventionfor the Suppression of Unlawful Acts Against the Safety of CiviAviation signed at Montreal on 23rd September 1971,"
we are of the opinion that no court can invalidate the Act or inquireinto the validity of this law.
The learned counsel for the appellant submitted that the learneaHigh Court Judge has failed to comply with the requirement in terms ofsection 203 of the Code of Criminal Procedure Act, in that he hasfailed to give his reasons having recorded a verdict of conviction andpassed sentence on the accused, and has failed to deliver thejudgment in open court and to communicate it to theaccused-appellant. Learned counsel further submitted that the learnedHigh Court Judge has failed to comply in terms of section 283 of theCode of Criminal Procedure Act, more specially sub-section 5 ofsection 283 wh.ch provides that the judgment shall be explained tothe accused-appallant and a copy thereof shall be given to him withoutdelay if he applies for it and the original shall be filed with the record of
Learned counsel for the appellant drew the attention of this court tothe journal entry dated 29.6.83 in the record of proceedings in theHigh Court where the two words, "verdict and sentence" have beenrecorded. He also referred to a marginal entry in the same recorddated 8.7.83 where the words, "Received Judgment original"appears. It is not known who has made this entry as no signature isattached to this entry. Learned counsel for the appellant submittedthat there is no entry anywhere in the proceedings to the effect thatthe judgment has been delivered. The application for bail afterconviction, by the accused-appellant which has been filed on 5.7.83,has been subsequently withdrawn by the appellant as a copy of thejudgment applied for has not been made available to him. In thesecond application for bail filed on 6.9.83 an averment has beenmade that the learned High Court Judge has failed to give reasons forthe conviction and that the judgment was not pronounced in opencourt, nor has the learned judge assigned any reasons to the appellantwhen he appeared in court on 29.6.83, for finding him guilty. Hesubmitted that on the face of the record the judgment has not beendelivered and the reasons for conviction has not been explained. Thelearned counsel for the appellant submitted that the judgment hasbeen subsequent to the verdict and is not one delivered in terms of theprovisions of the Criminal Procedure Act, and that this irregularitymakes the conviction and sentence invalid according to law.
It was also the contention of the learned counsel for the appellantthat the normally adopted procedure dealing with the joinder otcharges has not been followed; that, though the appellant pleaded notguilty to the two charges at that stage, the counsel appearing for himraised legal objections regarding the jurisdiction, in that the firstcharge in the indictment does not refer tb the jurisdiction of the HighCourt in so far as to where this offence has been committed. Hefurther argued that the appellant has not submitted to the jurisdictionof court by reason of his pleading not guilty to the indictment and thatby agreement, jurisdiction cannot be conferred according to law, as ithas not been conferred by legislature.
It was strongly urged by counsel for the appellant that count one ofthe indictment does not conform to the provisions of the Aircraft Act.He submitted that section 17(1) refers only to Sri Lanka Aircraft inflight which has been seized o: over which control has been exercised,and that section 19(1) refers to foreign aircraft outside Sri Lanka andsection 19(3)(d) refers to an act that has been committed in relation
to a foreign aircraft "if the person committing such an act in relation tosuch foreign aircraft is present in Sri Lanka" and that the appellant whois alleged to have committed the act was not in Sri Lanka at the time ofthe commission; that one has to give careful consideration whenconsidering section 19(3)(d), the proviso to section 19(3) whichenacts-
"No court in Sri Lanka shall have jurisdiction to try an offence
under this section;"
that the act alleged to have been committed did not fall within section19(3)(d) of the Act and the court that heard the case had nojurisdiction. No court in Sri Lanka has jurisdiction to try any offence inrelation to a foreign aircraft unless such offence comes within section19(3)(a), (£>), (c), (d) or (e) of the Act. Section 19(3)(a), (b) and (c)refer to acts committed in Sri Lanka in relation to foreign aircraft,whereas section 19(3)(d) refers to an act committed outside SriLanka by any person who is a citizen or not of Sri Lanka in relation to aforeign aircraft, 'if the person committing such act is present in SriLanka". It was submitted that the act alleged against the appellant wasone in relation to a foreign aircraft committed outside Sri Lanka inwhich the person committing the act was on board that aircraft andnot in Sri Lanka and hence falls outside the scope of section 19(3)(d)of the Act. In support of his interpretation of section 19(3)(d) hereferred to the same Act, Sinhala versions wherein the words“£>® Q6q6§ <3°g»Gas® ” appear and
submitted that in terms of article 23 (1) of the Constitution in the eventof any inconsistency between the two texts, the Official Language willprevail.
It was also submitted that in terms of section 20 of the Act, "whereany person is arrested for an offence under any part of this Act, thecompetent authority", who is the Director of Civil Aviation, in terms ofsection 2, "shall make a preliminary inquiry into the facts" and thatsuch an inquiry has not been held in this case; that the first charge inthe indictment is not an offence referred to in the Schedule of theCode of Criminal Procedure Act, or the Judicature Act, but has beendeemed to be included in the First Schedule so long as the CriminalProcedure (Special Provisions) Law No. 15 of 1978 is in force, interms of section 18 of the Aircraft Act which has made such offencecognizable and non-bailable. For these reasons it was urged that anon-summary inquiry should have been held prior to the indictmentbeing presented in terms of the Code of Criminal Procedure Act which
The second charge was under section 394 of the Penal Code triablesummarily by a Magistrate. The preamble to the Offences AgainstAircraft Act refers to providing matters connected with the Conventionfor the Suppression of Unlawful Seizure of Aircraft signed at The Hagueamong other conventions in relation to acts committed against thesafety and on board aircraft signed at Tokyo and at Montreal. Articles6 and 7 of the Convention signed at The Hague for the suppression ofunlawful seizure of aircraft has made provisions "without exceptionwhatsoever and whether or not the offence was committed in itsterritory to submit the case to its competent authorities for the' purpose of prosecution". It was submitted that without such. preliminary inquiry being held that the appellant has not been tried and■ convicted according to law. Learned counsel for the appellant alsosubmitted that the joinder of counts 1 and 2 in the indictment was amisjoinder; that there were two distinct offences, the first count beingan offence committed between New Delhi and Bangkok between 29thof June 1982 and 1st July 1982 and the other count was for anoffence committed in Colombo between 1st July and 3rd July 1982,whereas the 1 st charge was an offence under the Offences AgainstAircraft Act, the 2nd charge was an offence under section 394 of thePenal Code, for dishonestly retaining stolen property, knowing orhaving reason to believe that the same was stolen property. The casefor the prosecution was that the money in American Dollars, thesubject matter of this charge, has been got at by extortion. Counsel forthe appellant strongly urged that there has been no charge framedagainst the appellant for committing the offence of extortion or theftand, this being so, a charge for retention of stolen property cannot beproved. It has not been proved that this money was the proceeds of athreat or a theft committed. The pilot of the Al Italia aircraft who hasbeen threatened, has not handed over this money to him. Hesubmitted that the 2nd count was not a part of the same transactionalleged in count 1 which amounts to "hijacking" an aircraft and not toextortion as the two counts have no relationship to each other inpurpose or in object-vide Jonkiaas v. Somadasa There has been nocommunity of purpose or continuity of acts to link together differentacts, so as to form one transaction and when the appellant leftBangkok the transaction regarding the first count was completed andthe object accomplished.
Learned Deputy Solicitor-General referred to the three conventionsmentioned earlier to which Sri Lanka has been a contracting party andreferred to The Hague Convention Article 1 which made exercising
control of or seizing of an aircraft unlawfully, by force or threat or byany form of intimidation by any person on board an aircraft in flight, anoffence. Though this is not an international crime as in the case ofgenocide, there was an obligation on the part of Sri Lanka as acontracting party to make such an act a crime according to our lewand hence the Offences Against Aircraft Act has been enacted. Beforeit was enacted, this Bill was considered by the Supreme Court on areference made under the provisions of the Constitution and a FullCourt held that its provisions were not inconsistent with theConstitution and, therefore, this court has no jurisdiction to inquireinto the validity of this law.
Section 17(1) of the Offences Against Aircraft Act enacts that anoffence under the Act shall be tried before the High Court holden inColombo. Section 9 of the Judicature Act, grants the High Courtjurisdiction to hear "any offence wherever committed by any personwho is a citizen of Sri Lanka, in any place outside the territory of SriLanka or on board or in relation to any ship or aircraft of whatevercategory". Section 128(3) of the Code of Criminal Procedure Actgrants jurisdiction to the High Court on indictment to try an offencecommitted on the high seas, or on board any ship or upon any aircraft.The High Court takes cognizance only when an offence known to ourlaw has been committed under such circumstances. The offence asfound in count 1 of the indictment was not known to our law prior tothe Offences Against Aircraft Act of 1982. Once the Act alleged tohave been committed by the appellant was by this Act recognized asan offence, according to the law, the High Court had jurisdictionnotwithstanding the jurisdiction confirmed on it by section 17 of theOffences Against Aircraft Act, by virtue of the Judicature Act and theCode of Criminal Procedure Act. Section 17 of the Offences AgainstAircraft Act has limited the jurisdiction to the High Court holden inColombo. The High Court holden in Colombo had the jurisdiction to trycount 1 of the indictment. Count 2 is an offence under the Penal Codetriable summarily by a Magistrate's Court within the jurisdiction theoffence was committed or by the High Court on indictment as hasbeen done in this case, and hence, I am of the opinion that the HighCourt had the jurisdiction to hear count 2 of the indictment and arriveat a verdict.
This court has been called upon to determine whether the learnedHigh Court Judge has passed judgment in terms of sections 203 and279 of the Code of Criminal Procedure Act. At the conclusion of the
trial, counsel for the prosecution has addressed court on 20th, 21st,and 22nd June 1983. The prosecution and the defence havesubmitted Written Submissions to court on 26.6.83. The verdict andsentence have been fixed for 29.6.83. The journal entry dated
signed by the learned judge only bears two words, "Verdictand Sentence". There is filed of record a handwritten judgment by theHigh Court Judge dated 29.6.83 and signed by him. An appeal hasbeen filed on behalf of the accused-appellant and the learned judgehas on 30.6.83 made an endorsement to forward record to the Courtof Appeal. This petition of appeal states, "Being aggrieved with thejudgment" and the prayer .is to 'quash the findings of the trial judge'. Ifa judgment was not, in fact, delivered I am of the opinion that thepetition of appeal against the verdict and sentence would not havestated the aforementioned. The petition of appeal filed was not on thegrounds that no judgment has been delivered. There has been also anapplication on behalf of the appellant for the vindication of hisfundamental rights subsequent to the conviction and sentence and inthis application, too, no allegation has been made that the judgmenthas not been delivered according to law by the learned Judge. In termsof section 114 of the Evidence Ordinance, the presumption that anofficial act has been done according to how it should be done appliesin the event if no evidence is adduced to the contrary.
The handwritten judgment dated 29.6.83 which runs into manypages and signed by the learned judge would have been delivered tothe Record Keeper on 8.7.83 by the learned judge, who went onretirement soon after, and hence the marginal unsigned entry dated
in the journal entry of the court record, "Received Judgmentoriginal". This entry does not, in any way, mean that the judgment hasnot been delivered on the day fixed for its delivery. The appellant hasbeen represented by counsel on this day in court and there is noaffidavit filed from him regarding the failure to comply with theprovisions of section 283 of the Code of Criminal Procedure Act bythe learned judge. For these reasons I am of the opinion that thelearned judge has complied with the provisions of section 283 of theCode of Criminal Procedure Act.
Section 19(3) of the Offences Against Aircraft Act enacts,-
"No court in Sri Lanka shall have jurisdiction to try an offence
under this section except in the following cases".
and section 19(3) (d) enacts, –
"Where the act constituting such offence is an act referred to inparagraph (a) or (b) or (c) or (d) or (e) of sub-section (1) of section17, committed in relation to foreign aircraft (Section 17 beingoffences committed in relation to Sri Lanka aircraft) or the attemptto commit or the abetment of the commission of any such act, ifthe person committing such an act is in Sri Lanka".
As I have stated earlier, learned counsel for the appellant vehementlyargued that the ingredients of this offence has not been proved. Theappellant was, in fact, on board the foreign aircraft Al Italia at the time •he is alleged to have committed the act and it cannot be said that "theperson" (meaning the appellant) "committing such act is" (was)"present in Sri Lanka".
The learned Deputy Solicitor-General submitted that section 19(3)(d) has made no reference to (f) and (g) of section 17(1) of theOffences Against Aircraft Act and includes only (a), (b), (c), (d) and (e) *of section 17(1), as this Act has been enacted in compliance with theConvention for the Suppression of Unlawful Seizure of Aircraft, signedat The Hague on 16th December 1970 and that the word Committinghas been used as a "verbal adjective" that though the offence hasbeen committed outside the territorial limits of the court's jurisdiction,by a legal fiction it is presumed that the offence has been committedwithin its jurisdiction. He submitted that the Legislature has clearlyindicated its intentions and that it is a well nigh impossibility for aperson to commit an act in relation to a foreign aircraft being on boardsuch foreign aircraft in flight unlawfully by force or threat orintimidation, seize or exercise control of that aircraft, and be present inSri Lanka when committing such act.
It is the duty of the court, in construing a Statute, to ascertain andimplement the intention of Parliament as can be gathered from suchStatute and the general object for which that statute has beenenacted. As stated earlier, the object of the Offences Against AircraftAct has been to give effect to the three Conventions in relation toaircraft signed at Tokyo, The Hague and at Montreal, all of which are to•enable the safety of aircraft to which Sri Lanka became a party.Section 19 of the Offences Against Aircraft Act is sub-divided intothree parts: (1), (2) and (3). Section 19(1) enacts-
"Any person who is a Sri Lankan or not. who commits on board orin relation to a foreign aircraft outside Sri Lanka any act referredto"
Section 19(2) deals with attempts to commit or abets thecommission which is not relevant to this appeal. Section 19(3)enacts-
"No court in Sri Lanka shall have jurisdiction to try an offenceexcept in the following cases".
Thus, it is only under exceptional circumstances that the High Courtshave jurisdiction to try offences committed by persons whethercitizens of Sri Lanka or not in relation to foreign aircraft outside SriLanka. These offences are subdivided into five categories: (a), (b. (c),■(d) and (e). Sub-section (d) of section 19(3) which is section19(3)(d) enacts-
"Where the act constituting such offence is an act referred to inparagraphs (a) or (b) or (c) or ‘d) or (e) of sub-section (1) of section17 committed in relation to foreign aircraft, or attempt to commit,or the abetment of the commission of, any such act, if the personcommitting such act is present in Sri Lanka".
Section 19(3)(d) includes two distinct offences or has two limbs toit:
The acts referred to in paragraphs (a), (fc>, (c), (d) and (e) ofsub-section (1) of section 17(1); and
Attempt to commit or abet the commission of any such act.
I am of the view that the first limb has to be read with section 19(1)thus :
"Any person whether he is a citizen of Sri Lanka or not whocommits"
and the second limb which refers to attempt to commit or theabetment of the commission of any such act with-
”if the person committing such act is present in Sri Lanka."
There the words, "If the person committing such act is present in SriLanka" is referable only to the offence of attempt and abetment of thecommission of the offence and not to the first limb of this sectiondealing with the actual commission of the act. The word 'committing'is the present participle of the verb 'to commit' and its meaning is "atthe time the act is being committed" and is referable to the secondlimb of section 19(3)(d) which is the offence of attempt or abetmentof the commission of acts constituting such offences as in paragraphs(a), (b), (c), (d) and (e) of section 19(1) of the Offences AgainstAircraft Act. I am unable to agree with the submission of the learnedcounsel for the appellant that at the time of the commission of theoffence on board or in relation to a foreign aircraft outside Sri Lanka,the person so commiting the act should be present in Sri Lanka.
Count 1 in the indictment is an offence in terms of Offences AgainstAircraft Act, and count 2 in the indictment is an offence under thePenal Code. The first count refers to an act committed between NewDelhi and Bangkok and the 2nd count at Colombo, Sri Lanka. The firstcount refers to an act committed between 29th of June and the 1 st ofJuly and the 2nd count, between the 1 st of July and the 3rd of July.The 1 st count does not state that the offence has been committedwithin the jurisdiction of the High Court holden in Colombo, though the2nd count states that the offence has been committed within thejurisdiction of the High Court. I am, therefore, of the opinion that theomission of the words "within the jurisdiction of this court" in count 1,is not a fatal irregularity.
I have already held that the High Court had the jurisdiction to hearboth counts. I have now to consider whether the indictment is valid inlaw or not, due to misjoinder of charges. It was the submission oflearned counsel for the appellant that the second count was not a partof the same transaction as the offence alleged in count one, due to theabsence of "community of purpose and continuity of action"; that theoffence stated in count one of the indictment was concluded with theaccused-appellant realizing his object of getting down his wife andchild from Italy and receiving the money he demanded to cover theexpenses he has incurred in his attempt to visit them in Italy and meetthem which was denied to him. It was submitted that count one andcount two are distinct offences and each such offence should be triedseparately.
Section 175 (1) of the Code of Criminal Procedure Act enacts-
"If in one series of acts as connected together as to form thesame transaction more offences than one are committed by thesame person he may be charged with and tried at one trial for everysuch offence".
According to the evidence led at the trial, there was a threat andintimidation that the aircraft will be blown out unless the demandmade by the appellant is satisfied. There was a demand made amd jgothers, for money in American Dollars. This demand cannot teseparated or isolated from the threat as to what the appellant woulddo, if the demand was not satisfied which formed the subject matterof the first count. The appellant who made a lengthy statement fromthe dock admitted that he planned to "hyjack" the aircraft with thecorporation of his wife and admitted that he made three demands,one of which was in respect of 300.000 American Dollars from thepilot of the aircraft, which demands were met. He admitted that hewrote PI, the letter threatening and making the demands which wasgiven by him to the air hostess to be delivered to the pilot who obeyedhis command. It was a part of this money in American Dollarsrecovered from him and produced in court that formed the subjectmatter of the second count in the indictment. There was a communityof object in that the threat made to blow up the aircraft was to achievethe fulfilment of the demands, one of which was the money. The pilotwas made to believe that the threat will be carried out by the appellantand this made him to send a note to the appellant pleading with himnot to carry out the threat since women and children will be killed andto consider that the appellant's own son was in that aircraft. Theintimidation and threat to blow up the aircraft was related to thedemand for the money. The intimidation and threat formed the subject' matter of the 1st count and the money thereby received, the subjectmatter of the 2nd count. I am Of the opinion that the two counts in theindictment formed one transaction though the dates regarding thecommission of the offences in the two counts are separated by a shortperiod of time.
Count two of the indictment is for retention of stolen property,knowing or having reasons to believe that it was stolen property. Thesum of money in American Dollars came within the meaning of stolenproperty as they were obtained by extortion. It was the contention oflearned counsel for the appellant that the first count had nothing to do
with extortion and that appellant has not been charged for committingthe offence of extortion. An offence is "an act or ommission madepunishable in law in Sri Lanka" and the court had no jurisdiction to trythe appellant for committing the offence of extortion committed in aforeign country. It was his contention that if the appellant cannot befound guilty of committing the offence of extortion, he cannot befound guilty of retention of the extorted money, the stolen property. Itwas also submitted that the person who has been dishonestly inducedto pay the money was the pilot and no money has been paid to theappellant by the pilot, but that the money was paid by the Governmentof Italy.
Property, the possession whereof has been transferred by theft, orby extortion or by robbery, or by forgery, etc. is designated "stolenproperty” whether the transfer has teen made within or without SriLanka. The transfer in this case has been made outside Sri Lanka, butnevertheless, it is stolen property and the retention of this moneyknowing or having reasons to believe that this was stolen property, isan act made punishable by law for the time being in force and is anoffence triable in Sri Lanka by a court of competent jurisdiction.
I am, therefore, of the view that the second count was a cognizableoffence known to our law and that the High Court had the jurisdictionto try the appellant on this count. I am also of the view that theoffences in counts one and two were offences committed in thecourse of the same transaction and that there was no misjoinder ofcharges by including them in one and the same indictment. I amfurther of the view that the appellant was not misdirected or misled,nor was there any injustice or prejudice caused to the appellant by thejoinder of the two counts in the one and same indictment. Though themoney was not given to the appellant by the pilot who was by threatsinduced to give it to him but by the Italian government, I hold the viewthat it was money obtained by extortion and even if it was handed overto him, by a passenger, yet the act of handing over was due to thethreat not only made to the pilot, but involved all the passengers onboard and the aircraft itself. Section 20 of the Offences AgainstAircraft Act enacts-
"Where any person is arrested for an offence under this part of
this Act, the Competent Authority shall make a preliminary inquiry
into the facts".
Learned counsel for the appellant submitted that at the time of thecommission of the act that this was not considered an offenceaccording to Sri Lanka law and hence, no police investigation wouldhave been conducted in terms of the provisions of the Code ofCriminal Procedure Act. Learned counsel's contention was that theholding of an inquiry in terms of the Act by the Competent Authoritywho, according to the Act, is the Director of Civil Aviation, was aprerequisite and was mandatory and that this has not been done andthe trial without holding this preliminary inquiry makes the trialineffective and void. The preliminary inquiry contemplated under theAircraft Act is a different type of inquiry to the preliminary inquiryreferred to in section 145 of the Code of Criminal Procedure Act. Thepreliminary inquiry under the Code of Criminal Procedure is conductedby a judicial officer, a Magistrate, who at the commencement of theinquiry has to read over to the accused the charges in respect of whichthe inquiry is being held. At the conclusion of such inquiry, at whichevidence of witnesses and of the accused, if he so desires to giveevidence, has been recorded, the Magistrate for reasons to berecorded by him has to discharge the accused if the evidence is notsufficient to put him on trial or if the evidence recorded is sufficient toput the accused on trial, shall commit him for trial before the HighCourt. Such an inquiry is a judicial inquiry and has to be held in terms ofsection 145 (a) or (b) of the Code of Criminal Procedure Act.
The inquiry in terms of section 20 of the Aircraft Act is not a judicialinquiry, but an administrative inquiry and is not held by a judicialofficer. The purpose in holding this inquiry is stated in section 12(2) ofthe Act-
"Upon the conclusion of the preliminary inquiry the CompetentAuthority shall report the finding to the State in which such aircraft isregistered and shall indicate to them whether Sri Lanka intends toexercise jurisdiction over the offence",
or in terms of section 21 (2) of the Act. The Competent Authority isnot by the Act bound, after holding the inquiry, to inform theAttorney-General or the High Court, but to act in terms of sections12(2) and 21 (2) of the Offences Against Aircraft Act. Therefore, I amof the opinion that the holding of a preliminary inquiry is not anessential prerequisite to a prosecution for an offence under this Act.
The learned High Court Judge when sentencing the appellant hasstated that imprisonment for life on conviction regarding count one ofthe indictment was mandatory, and that his hands were tied and has,therefore, sentenced the appellant to a term of simple imprisonmentfor life. He has convicted the appellant on the second count andsentenced him to three years' rigorous imprisonment, both sentencesto run concurrently. It was submitted by the learned counsel for theappellant that a term of rigorous imprisonment cannot runconcurrently with a term of simple imprisonment, since they belong totwo different classes of punishment and the sentence of imprisonmentimposed on each one of the counts, one being o; n 'iffererit kind tothe other, to run concurrently is bad iri iaw. It was also strongly urgedby the counsel for the appellant than ■ sentence ot imprisonment forlife was not mandatory or imperative 'r terms of section 19(1) of theOffences Against Aircraft Act, and that the learned High Court Judge■has misdirected himself when he passed sentence on the appellantregarding count one of the indictment.
Section 19 (1) of the Act enacts-"Shall be liable on conviction after trial before the High Court, toimprisonment for life".
The Penal Code dealing with the offences under "hurt" section 314 tosection 329 enacts-
"Shall be punished'with imprisonment".
The Penal Code under the heading, 'Criminal Force and Assault1,section 343 to section 364 enacts-
"Shall be punished with imprisonment".
Even section 296 of the Penal Code dealing with punishment formurder enacts-
"Shall be punished with death".
thereby making it imperative or mandatory the jail sentence or thesentence of punishment with death to be passed. Nowhere is itstated-
"Shall be liable to imprisonment or liable to be sentenced to
The word LIABLE in my view means EXPOSED TO and, therefore, aterm of life imprisonment is not mandatory for the commission of anoffence in terms of the Offences Against Aircraft Act. On convictionfor an offence under the Act the accused exposes himself and couldbe made responsible to serve a term of life imprisonment at thediscretion of court. I am also of the view that a term of rigorousimprisonment which belongs to a different category to a term ofsimple imprisonment cannot run concurrently and is bad in law.
The learned High Court Judge when passing sentence hasexpressed the view that in so much as he feels sympathetic towardsthe accused-appellant, he has no alternative but to sentence theappellant to lite imprisonment on the first count under the Aircraft Act.The accused-appellant has made a lengthy statement from the dockand has made an unqualified admission of the commission of the act,which has been subsequently made an offence according to Sri LankaLaw. He has given the reasons which motivated him to act in thatmanner, though such reasons are in no way a justification in law forthe commission of the offence. The main reason was that he was avictim of injustice and harassment by the officials of the ItalianEmbassy who refused to extend his visa to Italy in spite of many visits*to the Italian Embassy both in Sri Lanka and elsewhere, for thispurpose and his pressing desire to see his son by his wife, an Italiancitizen then living in Italy. His demands, according to the note he sentthe pilot of the aircraft threatening to blow up the aircraft, was tc getdown his wife and son and a demand for 300,000 American Dollars,which he said, was the expenses incurred by him in his futile attemptto obtain the visa to Italy. He has in his statement from the dock statedthat the refusal to issue the visa to him was due to the ill-feelingresulting from a brawl in a liquor bar with the son of a senior policeofficer in Jtaly. It appears that the appellant acted in desparation to seehis son in Italy in which country he has lived for many years and alsocontracted a marriage.
The appellant has at no time ever contemplated to commit theheinous crime endangering human life causing a colossal loss toproperty which he threatened to do. He never possessed thewherewithal to cause an explosion on board the aircraft. All what hehad with him were some torchlight batteries connected to an electricwire hung round his neck. No doubt he has been a very clever actor tomake the pilot, the crew on board and the passengers to get into astate of panic, alarm and fear so much so as to obtain all the demandsmade by threat and intimidation and to exercise control of the aircraft.
Of the 300,000 American Dollars given to him as a result ofextortion by the representative of the Government of Italy, a sum of299,700 American Dollars have been recovered, the balance 300Dollars has been incidental expenses incurred by him as hotelexpenses. The appellant has not enriched himself with this money.
Taking all these matters into consideration, I am of the opinion thatthe ends of justice will be satisfied by varying the sentence passed onthe appellant by the learned High Court Judge. The appellant has beenon remand from the date of conviction amounting to a period of overthree years. I, accordingly, sentence the appellant to a term of fiveyears' rigorous imprisonment on the 1st count and to a term of twoyears' rigorous imprisonment on the 2nd count in the indictment. Thesentences are to run concurrently.
The convictions on the two counts in the indictment are affirmed.Subject to the variation in the sentence on each of the two counts, Idismiss the appeal.
JAYALATH, J. – I agree.
RAMANATHAN, J. – I agree.
Conviction affirmed.Sentences varied.
EKANYAKE v. THE ATTORNEY-GENERAL