003-SLLR-1984-V1-PITCHCHEI-AND-ANOTHER-v.-COLLECTOR-OF-CUSTOMS.pdf
26
Sn Lanka Law Repons
(1 984} 1 S.L.R.
PITCHCHEI AND ANOTHER
v.
COLLECTOR OF CUSTOMS
COURT OF APPEAL
B E. DE SILVA. J.. AND ABEYWARDENA. JS.C. 245 – 246/77 – M.C. MANNAR. 3883.
NOVEMBER 7. 1983.
Criminal Law – Attempt to commit an offence – What constitutes an attempt.
The two accused-appellants and another were charged in the Magistrate's Courtwith having been concerned in attempting to export or take out of Sri Lanka goods,the exportation of which is restricted, in contravention of section 12 of the Customs•Ordinance read with section 22 (1) (e) of the Exchange Control Act. After trial, bothaccused-appellants were found guilty and sentenced. The co-accused wasacquitted. The accused-appellants appealed to the Court of Appeal against thisconviction and sentence.
*
Held
Mere preparation for the intended crime antecedent to the actual commencementof the crime itself does not amount, in law, to an attempt to commit it. There shouldbe a physical act which helps in a sufficiently ‘proximate’ degree to carry out thecrime that has been contemplated. There must be a fixed irrevocable intention to goon to commit the complete offence unless involuntarily prevented from doing so.
<^|ses referred to
D.P.P. v. Stonehouse, 1977 (3) The Law Weekly Reports. 143.
Regina v. Engleton, (1855) Dears 515, 538.
APPEAL from a conviction of the Magistrate's Court. Mannar.
V S.A. Putlenayagam with Miss M. Kanapathipillai and Miss Deepali Wijesundera forthe accused-appellants.
Nihara, E. Rodrigo, State Counsel, for Attorney-General.
Cur. adv vult.
January 10. 1984.
ABEYWARDENA, J.
The two accused-apbellantS together with one MustaphaSeenimdar Hadja were charged in the Magistrate's Court of Mannarand the charge against them was that on or about the 22nd of
CA Pitchchei and Another v. Collector of Customs (Abeywardena. J.)27
August, 1975j*they were concerned in attempting to-export or takeout of Sri Lanka goods, the exportation of which is restricted, to wit,five pieces of gold weighing twenty five and a half sovereigns valuedat Rs. 10,200/- in contravention of section 12 of the CustomsOrdinance (Chapter 235) read with section 22 (1) (e) of theExchange Control Act, and in terms of section 130 of the CustomsOrdinance the first accused-appellant became liable to forfeit treblethe value of the said goods, viz. Rs.30,600/- and the secondaccused-appellant became liable to a penalty of Rs.2,000/- andthey thereby were guilty of an offence punishable under section146 of the Customs Ordinance, as amended by Customs(Amendment) Law, No. 35 of 1974.
The learned Magistrate, after trial, found both the 1st and 2ndaccused-appellants guilty of the charge and acquitted theco-accused. The first accused-appellant was sentenced to twoyears' rigorous imprisonment and the second accused-appellantwas sentenced to two years' rigorous imprisonment suspended fora period of five years. It is against the conviction and the sentencethat the two accused-appellants have appealed.‘ ••
The first accused-appellant was a Serange of Labourersbelonging to the Talaimannar Port Central Service Co-operativeSociety. The second accused-appellant was a cook for the officersof the Indian ship, SS. Ramanujam which was docked in theTalaimannar pier.
The case for the prosecution was that the fiKtaccused-appellant, on 22.8.1975 was going around inside the shipat 9 a.m. On that day and at that time the officers and the crew ofthe ship were not working as the inward passengers had ali^ady<been cleared and the outward passenger's work had not beenundertaken and the first accused-appellant had no authority to goon board the ship at that time. The first accused-appellant has goneto the ship's galley, which is the kitchen of the ship and dropped aparcel which fell on the cutlery, thereby causing a metalic sound.When this happened, two other cooks, Shanmugam andSubramaniam (who were both witnesses for the prosecution) werenear about the kitchen. They had seen the first accused-appellantwalking out of the ship's galley and the second accused-appellantremoved the parcel from where fhe outlay was and kept it asideand covered it with a canvas cloth. Shanmugam who saw this, tookthe parcel himself and. according to instructions regarding anything
Sri Lanka Law Reports
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It984} 1 SLR.•
found in the ship, handed over the parcel to the Captain of the shipwho referred the-matter to the Customs authority for inquiry. Theparcel contained the amount of gold as stated in the Charge Sheetand the Government Analyst reported that the^parcel containedgold. The Customs, after inquiry, found the two accused-appellantsand one Hajah guilty and imposed the penalty on them in additionto the forfeiture of the gold. The first accused-appellant wasordered to pay Rs.30.600/-, the equivalent of three times the valueof the gold found in the parcel, and the second accused-appellantwas ordered to pay Rs. 2,000/-. As these payments were not madeby the two accused-appellants, the Collector of Customs, MannarDistrict, filed the case against them in the Magistrate's Court ofMannar. Learned Counsel who appeared for theaccused-appellants made no submissions regarding the factsdealing with the evidence led in the case. The learned Magistratehas very carefully analysed the entire evidence led in the case andhas arrived at the finding that:
(1J The parcel consisted of twenty five and a half Sovereigns ofgdld valued at Rs. 10,200/-,-
He rejected the evidence of the first accused-appellant thathe was nowhere about the ship on that day and at that time,and rejected his alibi and stated that he believed beyondreasonable doubt the evidence of Subramaniam and that ofHadja, who testified to the presence of the firstaccused-appellant at that time in the ship.
He rejected the evidence of the second accused-appellantthat he never removed the parcel and placed it elsewhereand covered it with a canvas cloth and has accepted theevidence of Shanmugam. beyond reasonable doubt,regarding the part played by the second accused-appellant.
Learned Counsel for the accused-appellants submitted that thecharge against the accused-appellants was that they were"concerned in attempting to export or take out of Sri Lanka Hesubmitted that conceding the entire evidence led in the caseagainst the accused, that the charge of attempting to commit theact with which they were charge^, has not been proved accordingto law, that acts that {fe preparatory to the commission of theoffence does not constitute an attempt to commit the offence.Learned Counsel for the accused-appellants cited the House of
CAPitchchei and Another v. Collector of Customs (Abeywardene. J.)29
Lords case of The D. P. P. v. Storehouse (1) and.mere particularlythe judgment of Lord Diplock wherein the case of Regina v.Engieton (2) has been cited by His * Lordship, viz. 'The mereintention to commi&a misdemeanour is not criminal. Some act isrequired and we do not think that all acts towards committing amisdemeanour are indictable. Acts remotely leading towards thecommission of the offence are not to be considered as attemptsto commit it, but acts immediately connected with it are '. LordPollock has very aptly stated thus, that in order .to commit theoffence of attempt, 'the offender must have crossed the Rubiconand burnt his boats".
It is very clear that to commit the offence of an attempt to commit acrime, mere preparation for the intended crime antecedent to theactual commencement of the crime itself does not amount, in law, toan attempt to commit it. There should be a physical act which helps ina sufficiently' proximate' degree to carry out the crime that has beencontemplated. There must be a fixed irrevocable intention to go on tacommit the complete offence unless involuntarily prevented fromdoing so. In the instant case the evidence against theaccused-appellants were circumstantial in nature. The presence of thefirst accused-appellant in the galley of the ship at a time when he hadno authority to do so, at which time a metallic sound was heard, whichsound was caused by a parcel falling on the cutlery, whereupon thefirst accused-appellant left the galley and the act of the#second-appellant in taking it and keeping it in another place coveredwith a canvas cloth was indeed the final and proximate act that had tobe done to export or take out of Sri Lanka the gold that was in tffttparcel. TtWe was no further act that was needed to be done since thegold was placed in a ship docked in a pier of Sri Lanka and this shipwas due to leave the shores of Sri Lanka for India shortly carrying withit the parcel so dropped into the galley of the ship. When the firstaccused-appellant threw it there, according to the dictum of LordPollock, he had already * crossed the Rubicon and already burnt theboats' so far as his act to commit the offence was concerned. Thefirst accused-appellant was involuntarily prevented fromaccomplishing what he had contemplated due to the metallic soundcaused which resulted in the detection.*The second accused-appellantcovered it up to keep it in safe custody in the snip till it left the shoresof Sri Lanka.
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Sri Lanka Law Reports
[1p84J 1 SLR.
For these reasons we are unable to agree with the submissionsmade by the learned Counsel for the accused-appellants and we affirmthe convictions and sentences passed on the first and 2ndaccused-appellants by the learned Magistrate? and dismiss theirappeals.
B. E. DE SILVA, J.-l agree.
Appeals dismissed.