Anunppnn v. Murray
1970Present: Alles, J.
S. AN-jSTAPPAN, Appellant, and K. MURRAY, RespondentS. C. 962/69—M. C. Nuwarn Eliya, 38787
Penal Code—Section 427—Criminal trespass—“ Intention to annoy ”—Quantum of
evidence—Estate Labour (Indian) Ordinance (Cap. 133).
The accused-appellant was employed as a casual labourer on an estate. Hehad been living on the estate since his infancy in a line room which had beenallocated to his mother, who was aUo a labourer employed on the same estate.After his services were lawfully terminated he failed to leavo the cstato. Howas then charged with criminal trespass for continuing to remain on the estatewith intent to annoy the complainant-rospondent. who was in possession of theproperty as Superintendent. His uncontradicted evidenco was that apartfrom his mother’s line room he had no other place where he could live. Thecomplainant too stated in evidenco that tho appellant said and did nothing tohim.
Held, that embarrassment, by itself, to the Superintendent was not sufficientto maintain the charge. There must be an intention to annoy and that intentionmust be of a naturo that is likely to cause a breach of the peace. The factsof the present case did not establish that the appellant continued to remainon the estate with the intention of annoying the complainant. Moreover, thoprovisions of the Estate Labour (Indian) Ordinance provide a cluo os to why,in situations similar to the prosont case, the estato authorities are compelledto permit persons liko the appellant to continue to remain on the estate.
A.PPEAL from a judgment of the Magistrate’s Court, Nuwara Eliya.
Colvin R. de Silve, with M. L. de Silva and Justin Per era, for theaccused-appellant.
Lakshman Kadirgamar, with O. E. Chilly (Jnr.), P. Ramanalhan andE. Ratnayake, for the complainant-respondent.
Cur. adv. vult.
AXLES, J.—Annappan v. Murray
January 2,1970, Alles, J.—
The appellant, an able-bodied young man, was employed as a casuallabourer on Diyagama West Estate, Agrapatana. He had been livingon the estate since his infancy in a line room which had been allocatedto his mother, who was also a labourer employed on the same estate.On 14th February 10GG he was charged with several others in M. C.Nuwara Eliya 31497 with being members of an unlawful assemblythe common object of which was to cause hurt to several personsincluding Mr. Murray, the Assistant Superintendent, causing hurt to oneRamalingam, committing criminal intimidation and damaging a jeepbelonging to the estate. On 30th September 1966, after trial in theMagistrate's Court, several persons including the appellant were convictedof the charges and ordered to enter into a bond to be of good behaviourfor a period of one jrear in & sum of Its. 100/- with one surety. As a resultof his conviction, the appellant’s services were terminated in October,1966. The appellant applied to the Labour Tribunal for relief allegingthat his services were wrongly terminated but the Tribunal, on 2nd June1968,held that the termination was justified and dismissed the application.On 28th May 1969 by P4, the appellant was requested to leave theestate by 6th June 1969, failing which, he was warned that he would beprosecuted for criminal trespass. On his failure to do so, plaint was filedin Court on 18th June 1969 in the present case charging him with criminaltrespass. The charge alleged that the appellant committed the offenceof criminal trespass by continuing to remain on Diyagama Estate,property in the possession of Murray with intent to annoy him. Aftertrial the appellant was convicted and sentenced to six weeks rigorousimprisonment. The present appeal is from his conviction and sentence.
Learned Counsel for the appellant did not contend that the terminationof the appellant’s services was not justified, but he urged that the factsdid not warrant a conviction for the offence of criminal trespass.
The appellant gave evidence at the trial and his uncontradicted evidencewas that apart from his mother’s line room he had no other place to live.He also stated that he was not able to get work outside the estate andthat he had no intention to annoy the Superintendent by remaining onthe estate. This latter assertion i3 supported to some degree byMr. Murray, who stated in evidence, that although he had seen and metthe appellant subsequent to his conviction the appellant said and didnothing to him.
It was submitted by Counsel for the appellant that the evidenceled in regard to the nature of the charges for the offences, in respect ofwhich his services were discontinued, may have coloured the views ofthe learned Magistrate when he found the accused guilty, but I do notthink that such an assumption can be justified. In convicting theappellant, the Magistrate has come to the conclusion that the appellant’spresence on the estate could lead to a breach of the peace even thoughnothing untoward occurred during the period that the appellant continued
AJLLES, J.—Annappan t>. Murray
to remain on the estate. The learned Magistrate was also satisfied thatthe Superintendent “ has a cause and genuine reason for being embarrassedby the continued presence of the accused on the estate, after he had beenordered to leave Embarrassment alone is, however, insufficient tomaintain the charge. There must be an intention to annoy and thatintention must bo of a nature that is likely to cause a breach of the peace.—King v. Selvanayajcm x. It is now settled law after the decision inthe above case that the prosecution must prove that the real or dominantintention of the entry was to commit an offence or to insult, intimidateor annoy the occupant. The facts in that case indicated that thedominant intention of the accused was not to annoy the Superintendentbut to remiin on the estate where he and his family had lived forgenerations. As was observed by Viscount Dilhorne in the later PrivyCouncil case of Abdul A zeez 2 “ it is not every trespass that comes within
the ambit of Section 427 the fact that the entry was in defiance .
of the Superintendent docs not warrant the inference that the trespasswas committed with intent to annoy him. If that was the case thenevery trespass committed after the occupier of the property had refusedpermission to enter would constitute the offence of criminal trespass.”
The question whether the dominant intention of an accused person wasto annoy the occupant is a question of fact which depends on thecircumstances of the particular case. In Wijemanne v. Kandiah3—a casewhich was approved by the Privy Council in King v. Selvanayagam(supra)—the accused was charged with entering premises in the occupationof another with the intention of molesting a servant woman. Ltaiton,A.C.J., held that in order to constitute the offence of criminal trespassthere must be proof that the primary motive of the accused was the intentto annoy the occupant and on that ground set aside the conviction. InNandohamy v. Walloopillai1 H. N. G. Fernando, J., allowed the appealof the accused because the accused set up a claim of title which couldnot, on the evidence, have been rejected as mala fide. In Moulin Nona v.Routhledge1’ Samerawickrame, J., in setting aside theconviction ofamarriedwoman who continued to be in occupation of a line room after she hadbeen given notice to quit, held that her dominant intention was to remainwith her husband and her family in the lino room of which her husbandcontinued to remain in occupation after his employment of the estatehad been terminated. Finally in Namanathan v. McIntyre6 incircumstances almost similar to the present case, Manicavasagar, J.,held, that in the absence of evidence that the accused had an intentionto annoy, an essential ingredient of the offence had not been established.
There are other decisions of our Courts which have held that theintention to annoj' the occupant was established on the .evidence—in Forbes v. Rengasamy1 the accused refused to leave the estate or accept
1 (1050) 51 N. L. R.470 at 473.* (1957) 61 N. L. li.429.
(1964) 67 N. L. R.73 at p. 79.» (1967) 70 N. L. R.568.
(1933) 35 N. L. R.244.* (1967) 69 N. L. R.401.
’ U940) 41 N. L. R. 294.
ALLES, J.—Annappan v. Murray
the discharge certificate and Keuneman, J., held that the intention toannoy was apparent on the evidence. A similar view was taken byT. S. Fernando, J., in Angamuttu v. Superintendent, Tangakele Estate1.In Abraham v. Hume 2 the accused had entered the estate to hold ameeting in spite of the Superintendent’s refusal to allow him to do so.He acted in defiance of the Superintendent’s orders and held the meetingand did not desist, when the latter protested, saying “Do what you want.You can take ma to Court” an utterance.which prompted the labourerspresent to shout and joar at the Superintendent. Fearing a breachof the peace the Police officer who was present advised theSuperintendent to leave the premises. Dias, J., held that the intention toannoy was clear. On the facts in Selliah v. De Kretser3 Samerawickrame, J.,held that the accused remained on the estate unlawfully, contumaciouslyand in defiance of the Superintendent and the intention to annoy couldbe inferred.
It was submitted by learned Counsel for the complainant-respondentthat the facts of the present case can be distinguished from Namanathan v.McIntyre (supra) because the accused in this case did not state in evidencethat he was dependent on his mother. It can, however, fairly be assumed,in the absence of other evidence, that such was the case. I am thereforeinclined to take the view that on the facts of the present case it has notbeen established beyond reasonable doubt that the appellant continuedto remain on the estate with the intention of annoying Murray.
Before 1 conclude this judgment, I wish to make some observationsabout the provisions of the Estate Labour (Indian) Ordinance (Ch. 133)to which reference has been made by both Counsel in the course of theirsubmissions. The provisions of this Ordinance might provide a clueas to why, in situations similar to the present case, the estate authoritiesare compelled to permit ■ per:-ons like the appellant to continue to remainon the estate. This Ordinance was intended to safeguard the interestsof the Indian immigrant iabourer who came to the Island at the endof the last century to work primarily on the tea plantations in Ceylon.Among other matters for the benefit of the labourer, the Ordinanceensured the protection of the family unit. When the husband’s serviceswere terminated, the law provided for the termination of the services ofthe wife and children as well, so that on the discharge of one member ofthe family the entire family could leave the estate. There was, therefore,as far back as 1889, a recognition by the legislature that the family of theIndian immigrant labourer was to be preserved and it must be assumedthat the estate employers accepted in principle that when the servicesof a Bingle member of the Indian family were terminated the services ofthe other members of the same family could also be lawfully terminated.In the Bame context, I think that when a member of the family continuedto be employed on the estate, other members who are dependent on
1 (1956) 58 N. L. R. 190.• (1951) 52 N. L. R. 449.
*(1987) 70 N. L. H. 263 at 204.
Public Trustee v. Qunawardanc
him or her are also entitled to remain on the estate and bo maintainedby the earning member of the family. These are the hazards ofemployment which must necessarily be accepted by employers whenthey employ Indian immigrant labour.
For the reasons set out in my judgment, I quash tho conviction andallow the appeal. It was agreed ty Counsel on both sides that my decisionin the present case will cover the deiisi-jn in the connected ca->s—S. C. 963/99 M. C. Nuwara ILliya 38789—and I make order allor.ing theappeal in that case as well.
S. ANNAPPAN, Appellant, and K. MURRAY, Respondent