HODGSON v. GEORGE

068-NLR-NLR-V-12-HODGSON-v.-GEORGE.pdf


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■Present: Mr. Justice Wood Renton.HODGSON v. GEORGE.
1909.
September 5.
P. C., Badutta, 3,139.
Receiving stolen property—Recent possession, what is—Circumstances—Confession—Inducement—Bias—Police Magistrate trying a casesummarily as. District Judge—Penal Code, s. 394—Criminal Procedwre Code, s. 162 (3)— Evidence Ordinance, 88. 17 and 114 (a).Where a person is found in possession of stolen property, thequestion whether his possession is “recent,” or, in the words ofsection 114 (a) of the Evidence Ordinance, “so soon after” thetheft as to give rise to the presumption of theft or dishonest receipt,depends largely on the nature of. the property stolen, the facilitywith which it would pass from hand to hand, and the likelihood ofits possessor for the moment forgetting how he had come by it.
Where the accused was found in possession in or about January,1909, of a typewriter of a special class, bearing a particular number,and worth Rs. 300, stolen in December, 1907,—
Held, that the accused’s possession was “ so soon after. ” the theft,within the meaning of section 114 (a) of the Evidence Ordinance,-as to give rise to the presumption of theft or dishonest receipt.
Where a confession was induced by the following words addressedto the accused by his master : “I know the typewriter is in yourbungalow. You had far better tell the truth, and if you do, nothingwill happen to you,”—
Held, that the confession was inadmissible.
Wood Renton J. (obiter, and expressly reserving the right toconsider the point afresh).—An advocate cannot bind his client in acriminal case by the admission of any material .part of the casefor the prosecution.
T
HE accused was charged with an offence under section 394 ofthe Penal Code, in that he dishonestly received and retained
possession of a typewriter belonging to Mr. G. C. S. Hodgson, knowingor having reason to believe the same to be stolen. The PoliceMagistrate (C. V. Bravne, Esq.), who was also District Judge, triedthe case summarily as District Judge under section 152 (3) of theCriminal Procedure Code, and convicted him and sentenced him toone year’s rigorous imprisonment.
The accused appealed. The facts and arguments are fully statedin the judgment.
E. W. Jayewardene, for the accused, appellant.
C. B. Elliott, for the complainant, respondent.
Cur. adv. writ.
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1909. September 5, 1909. Wool) Renton J.—
September 5. This case raises interesting, important, and somewhat difficultpoints of law, which have been well argued on both sides. Theaccused-appellant was charged under section 394 of the Penal Code,originally in the Police Court of Bandarawela, with dishonestlyreceiving and retaining possession of a typewriter belonging to Mr.
C. S. Hodgson, manager of the Ceylon Planters’ TransportCompany, Bandarawela. The charge was duly explained to theaccused, who was represented by a proctor; and his statutorydeclaration was then made and recorded. The learned PoliceMagistrate regarded it as an admission of guilt; and at an adjournedhearing of the case he made the following journal entry:—Accusedhas riot been convicted before this. Considering this, and all thefacts of the case, it appears to be one which I can convenientlydeal with under section 152 (3) of the Criminal Procedure Code asDistrict Judge.”
The appellant’s proctor did not challenge the Magistrate’s findingthat his client’s statement was, in effect, an admission of guilt. Hecontented himself with pointing out that the Magistrate could notsit as District Judge at Bandarawela; and accordingly the proceed-ings were postponed for trial in the District Court of Badulla.When the case came on for hearing there, the appellant’s proctorsobjected to the Police Magistrate of Bandarawela trying it in hiscapacity of District Judge of-Badulla, on the grounds that he wasalready prejudiced against the appellant, and that there was inBadulla. an Additional District Judge, the Assistant GovernmentAgent, before whom it might he tried. The Magistrate, whom 1will henceforward describe as the District Judge, over-ruled theseobjections, and the trial proceeded. The appellant was convictedand sentenced to one year’s rigorous imprisonment. From thatconviction and sentence the present appeal has been brought. Onbehalf of the appellant, Mr. Jayewardene raised a variety of points.
He contended (1) that as there is an Additional District Judge atBadulla, the learned District Judge there ought, in his discretion,to have sent the case for trial before his colleague; (2) that both fromthe fact that he had conducted the original summary proceedings,~ in which a Police Magistrate always possesses more or less of thecharacter of a prosecutor, and from his attitude towards the appel-lant as disclosed by the .record, the learned District Judge was underthe influence of a “ bias,” which disqualified him from trying thecase; (3) that the case was one of unusual difficulty, 'unsuited forsummary trial in the District Court; (4) that the only real evidenceagainst the appellant consisted of admissions, which were vitiatedby the fact that they had been made under the influence of anillegal inducement; and (5) that the interval of time between thetheft of the typewriter and its discovery in the possession of theappellant was so great as to exclude the adverse inference which
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section 114 (a) of tlie Evidence Ordinance permits the Court to 1909.draw from the recent possession by an accused person of stolen September 6.property. I will deal with these arguments in turn.Wood
I think that under the circumstances stated by the learned Rentok iDistrict Judge he was entitled to try this case himself. The case,as I have already said, came before him, in the first instance, at,Bandarawela, and he there intimated his intention of trying it asDistrict Judge. The only objection raised by the- appellant’sproctor to the adoption of this course was that the case would haveto be so tried at Badulla. The Judge thereupon summoned thewitnesses, and made all the necessary arrangements for the trial.
He further points out that the Additional District Judge of Badullais also Assistant Government Agent, and that his other official dutiesfully occupy his time, and render it inadvisable that cases shouldbe sent before him as District Judge where this can be reasonablyavoided. As Bonser C.J. himself points out in Vmgadasvlam v.
Mohideen Pitchchi,1 there is nothing in section 152 (3) of the CriminalProcedure Code which requires a Magistrate who thinks that a casemay properly be tried summarily in the District Court to decline. to try it himself if another District Judge is available (Pieris v.
Wijetunge2).
The District Judge’s official connection with' the present case inits earlier stages does not, in my opinion, in any way disqualify himfrom trying it. To adopt the contrary view would be to defeat theobject of section 152 (3) of the Criminal Procedure Code, whichnot only lends no colour to the argument that the fact of the PoliceMagistrate having been engaged in the trial of a case as such is to •prevent him from trying it as District Judge, but expressly enableshim to do so. The cases, both local (Rode v. Bdwa;3 Daniel v. Careen*
Usoof;4 Perera v. Caralis B) and Indian (Qirish Chunder Ghose v.
Queen Express ;6 Svdhama Vpadhya v. Queen Empress1), to whichMr. Jayewardene referred me in support of his argument on thispoint, are cases of quite a different character, the ratio decidendithere being that the Magistrate exercised also other functions, e.g.,those of Revenue Officer or Superintendent of Police, in regard tothe very class of proceedings that he had to try as Judge. The onlyevidence of alleged actual “ bias ” on which Mr. Jayewardene reliedconsisted in the statement of the District Judge that an admissionmade by the accused in his statutory declaration amountedto a free confession of guilt. Mr. Jayewardene requested me notto look at this admission in view of facts which I will notice lateron; and I have not done so. I find, however, that the DistrictJudge in his judgment very fairly excludes the appellant’s alleged
1(1900) 1 Browne 335 – •'*(1399)1Tomb. 00-
4 (1907) 4 Bal. So.5(1S98)1Tamb. 61.
4 (1S96) l N. L. R. 373.»(1893)I.L. B- *0 Cal.857:
’ (1895) I. L. R. 23 Cal. 328.
1999.
September 5.Wood
Ktoton J.
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confession from consideration in deciding on the question of hisguilt:' I see no evidence of any actual “ bias ” in his mind againstthe appellant. On the contrary, I think he has done everything inhis power to secure a perfectly fair, trial.
There is no doubt as to the general principle that where a casepresents unusual difficulty, in regard either to the facts or to thelaw, it is not desirable thatthepowers conferred on Police Magistratesby section 152 (3) of the Criminal Procedure Code should be exer-cised (see Sinnatarnby v. Mendia App%;1 Vengodosulam Chatty v.Mohideen Pitchchi ;2 Silva v. Silva 3).
In the present case Mr. Jayewardeno may fairly rely on threepoints as bringing the appellant within the scope of this rule :
(а)the fact that it was only after the Police Magistrate had takenthe accused’s statutory declaration that he decided to try the caseas District Judge (see Reg. v. Udaman* Punchirala v. Don Cornelia 6);
(б)the fact that the case against the appellant may be said to havelargely depended on the question of the admissibility of an admissionby his proctor, to which reference is made in the judgment, and withwhich I will deal presently; and (c) the question whether theinterval of time between the theft and the discovery of the typewriterwith the appellant was of too long duration to satisfy the law as torecent possession. I agree with Mr. Jayewardene to this extentthat, if a clear prrimd facie case against the appellant has not beenmade out, irrespective of his alleged confession or his proctor’sadmission, or if the law as to recent possession has not beensatisfied, there ought to be an acquittal. I will revert to this subjectwhen I have dealt with the other aspects of the case.
The'first witness to come in contact with the appellant, after hewas suspected of being in possession of the stolen typewriter, wasMr. Grant, the Superintendent of Nayabedde estate, where theappellant was employed as a teamaker. Two portions of Mr.Grant’s evidence have a special bearing on the point that I am nowconsidering, and I will cite them in full:—
“ I asked him if he had a typewriter in his bungalow. I
think he said he had his brother-in-law’s typewriter, orelse he did not admit it. I cannot be sure which.
“ Then I said to him : ‘ I know the typewriter is in your
bungalow. You had far better tell the truth, and ifyou do, nothing will happen to you.’ ”
So exhorted and encouraged, the appellant proceeded to accountfor his possession of the typewriter in terms which constituted an“ admission ” within the meaning of section 17 of the EvidenceOrdinance.
»(1899) 1 Tomb. 39.8 (1904) 7 N. L. H. 182.
* (1900) 1 Browne 335.* (1900) 4 N. L. R. 1.
» (1904) 8 N. L. R. 158.
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I agree with the learned District Judge that the inducement 1909.under which that admission was made excludes the entire body of September S.statements, made by the appellant to Mr. Grant, and subsequently woodto Mr. Hodgson, in regard to the circumstances under which the Renton 3.typewriter oame into his possession. Moreover, as the learnedDistrict Judge lias, with great fairness, expressed the opinion thatMr. Grant’s inducement may still have been operating on the mindof the appellant when he made his statutory declaration. I havenot myself looked at it in considering the evidence in the case.
I pass now to the admission made by the appellant’s proctor.Unfortunately ho note of it has been entered in the record. Butthe District Judge has dealt with the matter explicitly in hisjudgment, and neither in the petition of appeal nor in the argumentbefore me, has it been suggested that he had misapprehended theproctor’s meaning.
It appears, then, that the appellant’s proctor stated, in openinghis defence, that he was perfectly ready to admit that the accusedbought the typewriter from two Sinhalese villagers, who werecharged in a connected case, and of whom the Judge somewhatimprudently expresses the opinion that “ their faces are villainous,”and that “ they have all the appearance of criminals.” H it werenecessary to decide the question whether it is competent for aproctor to make such an admission as the one relied on by the District-Judge here, I should feel bound to refer the case to a Bench of twoJudges. On the one hand, the passages in the Earl of Halsbury’sLaws of England (Vol. II., 409) and Roscoe’s Evidence (edition of1908, pp. 185, 186), to which Mr. Jayewardene referred, and inwhich the rule is laid down that an advocate has no right, in address-ing the Court or Jury in a criminal case, to mention facts on theprisoner’s instructions which he does not intend to prove by callingevidence (and c/. Reg. v. Beard1), do not seemt o bear on the right ofan advocate to bind his client by admissions. On the other hand, Iam not satisfied that section 58 of the Evidence Ordinance, assumingit to apply to criminal proceedings, goes further than to enableformal proof of gome part of the case for the prosecution, e.g., thedeath of a witness whose deposition it is desired to read in evidence(Reg. v. Qogalao2), to be dispensed with by agreement between theadvocates or proctors on both sides. In England even suchadmissions are regarded with some jealousy by the Courts (see Reg.v. Thornhill3), and I have always understood tire rule to be that anadvocate cannot-bind his client in a criminal case by the admissionat least of any material part of the case for the prosecution, and Ihave so applied it myself in the Assize Court. The only expressauthority cited to me in argument was the decision of Sir RichardCouch .C.J. and Ainslie J. in Reg. v. Kazim Mundle* that an
(1637) 8 C. and P. 142.1 (1838) 8 C. and P. 575.
(1869) 12 W. B. Crim. 80.* (1872) 17 W. B. Orim. 49.
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1909. admission by a prisoner’s vakeel cannot be used against him. TheSeptember 6. report, however, is very brief, and the case may have turned onthe question how far a vakeel can bind his client, and not on theBenton J. general powers of other classes of advocates. But it is unnecessaryto decide the issue here, and I reserve the right to consider the wholesubject afresh if it should come up for decision at some .future time.
It will be convenient, in dealing with Mr. Jayewardene’s lastpoint, the alleged absence of proof of recent possession, to considerat the same time how far a primd facie case lias been made outagainst the appellant on the evidence. The theft is clearly proved.Mr. Hodgson says that his office was broken into and the- typewriterremoved. There is no question as to the identity of the stolenproperty. It is an Empire typewriter, bearing a special number,27,112. According to the unanswered evidence of the witnessesfor the prosecution, it was found in the “ possession ” of the appellant.Was that possession recent,” or, in the words of section 114 (a)of the Evidence Ordinance, “ so soon after” the theft as to giverise to the presumption that the appellant was a dishonest receiver.The facts are that the typewriter was stolen in or about December,1907. It was found in the appellant’s possession in the beginningof July, 1909 ; and his servant. Abraham Simon, speaks to havingseen it in the appellant’s house about six months before that date.There was, therefore, an interval of about-twelve or thirteen monthsbetween the theft of the typewriter and its being in the appellant’spossession.
In order to decide the question whether that interval was so longas to exclude section 114 (a) of the Evidence Ordinance, we musthave regard to the grounds oh which the presumption, recognizedby that section, rests. It is not an arbitrary rule created by ourown local statutory law. It exists under English law and elsewhere.Its application is not confined to theft and dishonest receiving, butextends to other offences as well; e.g., arson (R. v. Rickman1) andthe counterfeiting of money (R. v. Fuller;2 Reg. v. Jarvis3).
The principle underlying the presumption has been thus defined:—
“As a general proposition, where a person is in possession ofproperty, it is reasonable to suppose that he is able to give anaccount of how he came by it; and where the property' inquestion has belonged to another, it is in general not unreasonableto call upon him to do so. If the change of possession has beenrecent, he will not be likely to have forgotten, still less, if it be anarticle of bulk or value.
i “ If, then, it be reasonable under such circumstances to callupon the party in possession to account for such possession, itcannot be unreasonable to presume against the lawfulness of thatpossession when he is unwilling to give an account or is unable
•> (1789) 2 East P. C. 1034-35.8 (1816) R- and R. C. C. 308
* (1855) 25 L. J. M. C. 30.
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to give a probable reason why he. cannot. Now, there is no 1909.reason in general why an honest person should be unwilling; and, Septembet 6.therefore, the law presumes that such person is not honest, and WooDthat he is the thief. The property must have been taken by Renton J.some one. He is in possession, and might have taken it, and herefuses to give suoh information upon the matter as an honest manought.” (2 Lew. 235.)
It is obvious from this bare statement of the raison d'etre of therule as to recent possession, and there is abundance of judicialauthority to the same effect (see, e.g., R. v. Partridge1 and the localease of R. v. Fernando2), that what is or is not recent possessionmust depend largely on the nature of the property stolen, thefacility with which it would pass from hand to hand, and thelikelihood of its possessor for the moment forgetting how he hadcome by it. What might be ancient possession in the case of asack (see Cochin's Case3), or a workman’s tools (R. v. Adams*), or asheep (Reg. v. Harris3), or even of cattle (Pdbilis v. O-unatilleke;®
Wannihamy v. Mudaliharny7), might well be recent possession in thecase of a stolen signet ring. This point is well illustrated by anEnglish decision (Reg. v. Knight3), which I have never yet heardcited in Ceylon. The prisoner Knight was charged at QuarterSessions with the theft of a riddle and five shovels, the property ofhis master Richard Horusby. The riddle was not proved to havebeen in the prosecutor’s possession for eighteen months before thetrial, and the shovels for eight months, and the evidence was thatKnight was first seen about January, 1863, witli the things in hispossession, the trial being in June ; the articles were, however,clearly identified; there was some evidence of concealment; andthe brandmark on some of the shovels had been erased, and theletters “ M. K.”—Knight’s initials—had been substituted. Thejury convicted Knight, and the conviction was unanimouslyaffirmed by the Court of Criminal Appeal (Cockburn C. J., Cromptonand Willes JJ., Channell B., and Keating J.), the prisoner’s owncounsel admitting that he could not sustain the. objection that hadbeen reserved for the Court. In this case, therefore, a period oftwelve months (as regards the riddle) was not considered- too longto prevent the prisoner’s possession of the stolen property frombeing “ recent.” In the earlier case of Reg. v. Evans,3 there .wasan interval of fifteen months between the disappearance of stolenproperty—a common beetle-head—and its discovery in thepossession of the accused. But the accused, when the article wastraced to him, said that he had bought it eight years before at a
1 (1836) 7C: and P.551.*(1860) 8Cox CT. C. 333.
* (1905) 2Bed. 46.8(1902) 3Browne. 13.S.
(1836) 2Lew C. C.235.»(1898) Ibid.
(1829) 3C. and P.600.8(1864) 9Cox 0. 0. 437.
8 (1847) 2 Cox C. C. 270.
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1909.
September 5.
WoodRenton J.
sale of his mother’s effects. Alderson B. held that, as the accuseddenied the identity of the article, while at the same time he admittedhe had the beetle-head in his possession at a time immediately afterits loss, there was a “ recent possession.” To a certain extent, ofcourse, this case turns on the point that if the jury decided thequestion of the identity of the missing beetle-head against theaccused, he himself admitted that it had been in his possessionimmediately after its disappearance. But Reg. v. Evans shows alsothat questions of recent possession require a consideration, notmerely of the nature of the missing property, but also of the conductof the accused when it is found in his possession. In concludingthis examination of the cases, I should, perhaps, note that in manyof the authorities cited by Mr. Jayewardene the discovery of thestolen property in the accused’s possession was practically the onlyevidence against him (see, e.g., R. v. Anon ;1 Ina Sheikh v. QueenEmpress? where the evidence as to concealment was disbelieved).
In the present case, what are the facts as regards the nature of thestolen property and the conduct of the appellant ? The stolen‘property is a typewriter of a special class, bearing a particularnumber, and stated by Mr. Hodgson to be worth Rs. 300. Anarticle of that character does not pass readily and rapidly fromhand to hand. So much for the nature' of the property. How dothe facts stand as regards the conduct of the appellant, excludingaltogether from the case his admissions to Mr. Grant and Mr.Hodgson; his statutory declaration, and the admission of his proctor ?In the first place, we have the evidence of his servant, AbrahamSimon, a witness very favourable to the appellant, that he only sawit twice openly exposed to view on a table in the appellant’s room,and that for the rest of the time it was not visible, and that he hadtold the Magistrate in the Police Court proceedings that it had beenbrought in the night by two men, Appuhamy and Ukku Banda,who were, in fact, brought before the Court- in the connected casepartly on his information. Mr. Jayewardene urged that it was theduty of the prosecution to have called these men as witnesses (seeReg. v. Crowhurst3). That duty arises only, however, where, aprisoner’s account of the circumstances under which he came topossess stolen property is reasonable (Reg. v. Harmer*), and notwhere, as here, the persons named by the accused, or his servant,are themselves charged in a connected case (Reg. v. Wilson *).Moreover—and here I turn again to the evidence—the appellant,when Mr. Grant first spoke to him, and before any inducement washeld out which could render the statement inadmissible in evidence,either said that he had got his brother-in-law’s typewriter, or deniedthat he had one at all. It is clear from Mr. Grant’s evidence, which
1 (1826) 2 C. and P. 459.» (1844) 1 Carr, and Kir. 370.
* (1884) I. L. R. 11 Cal. 160.* (1848) 2 Cox C. C. 487.
* (1857) Dears, and B. 157.
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1 have, quoted above, that one orother of those statements was made,for he proceeds : “ Then I said to him, ‘ I know the typewriter isin your bungalow.’ ”
Taking all these facts together, I hold that the circumstancessatisfy the requirements of the law as to recent possession, and thatit was incumbent on the appellant to meet the primd facie caseestablished against him. He has not done so. Although theadverse inference which would be drawn from his silence was clearlypointed out by the learned District Judge to the appellant’s proctorat the trial, he declined to put his client in the witness box ; and inthe petition of appeal no explanation of the purchase of the type-writer, which is practically admitted [see paragraph 2 (e)], is offered,nor is it suggested that the appellant is in a position to offer one.
The appeal must be dismissed.
Appeal dismissed.
♦
1909.
September 6.
WoodRkhton J.