031-NLR-NLR-V-57-THE-ATTONEY-GENERAL-Appellant-and-H.-N.-SILVA-Respondent.pdf
Present:Basnayake, A.C.J., and Weerasooriya, J.THE ATTORN33 y-GKXKRAL, Applicant, and H. N. DJ3 SILVA,
Respondent
,V. C. 167—-lpp/iatlion in Revision in D. C., Kandy, -Vo. fi02j74f>7
Syr,.truer—. J svCssmaU of it—Uovcmiii'j consideration-s—Conditional release ofoffenders—.1 pjdicthilityto yrtt’-e. offc,ices—Criminal Procedure Code, s. 3'3-i (-')■
In assessing tho punishment tliut should bo passed on un offender, a Judgeshould consider tho mutter of sentence both from tho ]>uiut of view of tlio inibtioiiiul tho o(Tender.
Tho accused-respondent, a clerk in tho l-’ood Control Department, pleadedguilty to charges of forging certain documents. Ho had forged tho doeumenlsin onler to onablo tiro non-citizens to obtain rosideneo permits. Having regardto tho ago, antecedents, and previous good character of tho accused, tho trialJudge, purporting to net under section 325 of tho Criminal Procedure Code,ordered tho accused to enter into a bond in a sum of Its. 300 with one suretyto bo of good behaviour for two years.
Hc>d, that tho offence was far too grave to be doult with under section 32.5of tho Criminal Proceduro Code.
l’cr Hasnayakk, A.C.J.—; A Judge should, in determining tho propersentence, first consider the gravity of tho offence as it appears from tho nuturoof tho act- itself and should have regard to tho punishment provided in thoPenal Codo or other statute under which tho offender is charged. Ho shouldalso li-yard tho effect of tho punishment as a deterrent and consider to whatextent it will bo effective. If tlio offender held a position of trust or belongodto a sorvico which enjoys tho public confidence that must bo taken into uccountin assessing the punishment. Tho incidence of crimes of tho nature of whichthe offender has been found to bo guilty and tho dilliculty of detection aroalso matters which should receive duo consideration. Tlio reformation of tliocriminal, though no doubt an important consideration, is subordinate to theothei-s I have mentioned. Where tho public interest or tho welfaro of tho .State(which aro synonymous) outweighs tlio previous good character, antecedentsand aso of tho offender, public interest mist prf-viii1. ”
Pi’Ll CA TI OX In revise an order of Ike District Court, Kandy.
</. (•'. T. Wteruralac, Crown Counsel, for Attorney-General.
G. G. Ponnuiiibdlani, (J.C., witli Cecil Guouluurdciic, for Ac-ciisod-Re-spondent.
Cur. adv. cull.
Xovenibcr S, 1955. Basxavakk, A.C.J.—
This is ati application by the Attorney-General for- the revision of theorder made by the learned District Judge in respect of the first accused,a clerk in the Food Control Branch of the Kandy Kachcheri (hereinafterreferred to as the respondent). He pleaded guilty to two out of threecharges of forgery made against him along .with another (hereinafterreferred to as the second accused) ■who was. indicted with abetting therespondent.
Lvu
"’■ > K. itm— 1(ir/s5)
The learned District Judge, instead of inflicting any punishment on therespondent, ordered him to enter into a bond in a sum of Rs. 300 with 011csurety to Ire of good behaviour for two years purporting to act undersection 325 (2) of the Criminal Procedure Code. The sdcond accusedwas acquitted as there was no evidence- against him.
It is submitted by learned Crown Counsel on behalf of the Attorney-General that t he learned District Judge should have punished the offender,.and that, in the circumstances of this case, the course adopted by himwas wrong.•
The evidence established the charges of forgery of surrender certificatesin respect of a barber of Indian nationality holding an Indian passport-named V. Manickavasagam and an Indian Muslim named MohamcdIbrahim Saibo. Of the persons who received forged certificates of sur-render, only Y. Manickavasagam gave evidence at- the trial. lie madean application on lGth February, 1053, for the extension of his TemporaryResidence Permit which was due to expire on I9th February, 1953, andwas asked to furnish further proof of his having been in Ceylon in theyears 1944 and 1945. In order to furnish the further proof he wasrequired to provide, he applied to the Deputy Food Controller, -Kandy,for a certificate of the fact that lie had surrendered his rice ration books inthose years. He was requested to call over at the Office of the DeputyFood Controller, and tlic respondent- handedhim two certificates, one for1944: and another for 1945. These certificates were forwarded byManickavasagam to the Assistant Controller of Immigration and Emi-gration. -One of those certificates referred to in t-hc proceedings as P5 wassent by t-hc Assistant Controller of Immigration and Emigration to theDeputy Fooil Coni roller for verification. Tlic Deputy Food Controller,Kandy, replied that P5 was a forgery. After this and other forgeries hadbeen detected, tlic respondent went t o the residence of Mr.Kodikara, Assist-ant Food Controller, and confessed his crime and asked for his intercession.He also requested that the matter be hushed up, and even suggested thatMr. Ivodikara- should destroy the Register by reference to which theforgery had been detected. He was naturally turned out of the housoby Mr. Kodikara who resented the suggestion. The next day lie formallycalled upon the respondent to explain the irregularity, and he admittedthat he had no explanation to give- and that he had issued extracts whichwere not- genuine. He said :
“ I confess that I have issued an extrac t for 1944 for which there is nocutty in the Register
The evidence of the Assistant Controller of Immigration and Emigrationand of the Examiner pf Questioned Documents, reveals that otherforged documents were received from the source from which P5 cameincluding the document referred to in the third charge. The evidencedisclosed a very serious offence. The respondent, had forged very im-portant documents i|i order to enable non-citizens of this country toobtain residence permits. "What is more, when the crime was detectedlie had the audacity to suggest to his superior officer that he shoulddestroy all evidence' of bis crime and save him.
[ cannot escape the conclusion that the respondent has been tooleniently treated by the learned trial Judge. The offence is far too graveto be dealt with under section 325 (2) of the Criminal Procedure Code.That section was never intended to be applied to grave offences involvingdeliberation *. When in 1910 the Legislature introduced these provi-sions based on the Probation of Offenders Act, 1907, it was intended thatthey should be applied to the class of offence to which the correspondingprovisions of the English Act were applied. Such lenient treatment of ailoffender for so serious a crime is bound to defeat the main object ofpunishment, which is the prevention of crime. Other persons, similarlyplaced, will not be deterred from acting in the same’way. The learnedDistrict Judge has indicated the considerations that influenced him.ITcre are his very words :
“ As regards the 1st accused he is about 22 years old and has lost hisjob as a temporary clerk, ami although he has passed the GeneralClerical Examination he will not be taken in. Seeing that he is a youngman, I do not wish to send him to jail.
It is clear that the learned District Judge has only looked at one sideof the picture, the side of the respondent- : his age, his youth, his previousgood character, that he has lost- his employment, and will not be takeninto the Clerical Service even though he has passed the qualifyingexamination. These are certainly matters to he taken into account ;but not to the exclusion of others which are of greater importance.He has failed to take into consideration the gravity of the offence andthe circumstances in which it was committed, the degree of deliberationinvolved in it, the trusted position which (he respondent held, the punish-ment provided by the Code for the offence, the difficulty of detection ofthis kind of offence, and the reprehensible conduct of the respondentafter the offence was detected showing his criminal mind. These areall matters which far outweigh the considerations on the offender’s side.
This Court has power in (lie exercise of its revisionary jurisdiction toincrease or reduce a sentence, and it is not contrary to the rules whichapplj'- to appellate tribunals that it. should exercise its independentjudgment in a matter which is brought up before it in review and increasea sentence if it thinks it should be increased. Learned Counsel for therespondent urged that (lie quantum of sentence is a matter for the dis-cretion of the trial Judge and that (lie Court of Appeal ought not tointerfere, unless it appears (hat the (rial Judge proceeded upon a wrongprinciple. He cited a number of cases which state the principles whichshould guide an appellate tribunal in altering a sentence jmssed by aCourt of subordinate jurisdiction. Those cases quite-properly lay downthe rule that an appellato Court will interfere only when* a- sentenceappears to err in principle or when the subordinate Court, has eitherfailed to exercise its'discretion or has exercised it improperly' or wrongly'.
It mayr not always appear as in this case how the Court below hasreached its decision, but, if upon the facts the appellate Court mayreasonably infer ■ that in some way there has – been a failitro properly
1 Gardner v. James {10IS) 2 All E. R. 1060 ; PickcU v. Fesq. '{1010) 2 All E.R.70S.
to exercise the discretion which the. law reposes in the Court of first,instance, the exercise of the discretion may ho reviewed.
The rules that- should he observed by an appellate tribunal in inter-fering with the discretion of the Judge below are the same whether it boin n question of sentence or in any other matter. They have been slatedover and over again and it is unnecessary to repent them here. On thematerial before me I am satisfied in this case that there has been a wrong-ful exercise of discretion in that no weight, or no sufficient weight, hasheen given to the relevant considerations enumerated above. The ordermade by the learned trial Judge in respect of the respondent is thereforeolio thnt falls properly to he revised.
The all too frequent use of .section 325 of the Criminal Procedure Codein cases to which it should not ho applied requires that the. considerationsthat Judges of first instance should take into account in the impositionof punishments on offenders should he laid down by t his Court. Primarilythe. punishment for crime is for the good of the .State and the safely ofsociety 1. It is also intended to lie a deterrent to others from committingsimilar crimes2. There must always be a right proportion between tliepunishment imposed and the gravity of the offence.
Jn assessing the punishment that should be passed on an offender, aJudge should consider the matter of sentence both from the point ofview of the public and the offender. Judges arc too often prone to lookat the question only from the angle of the offender. A Judge should,in determining the proper sentence, first consider the gravity of the-offence as it appears from the nature of the act itself and should have-regard to the punishment provided in the Penal Code or other statuteunder which the offender is charged. He should also regard Hie effectof the punishment as a deterrent and consider to what, extent it will boeffective. If the offender held a position of trust or belonged to a servicewhich enjoys the public confidence that must be taken into account inassessing the punishment. The incidence of crimes of the nature of whichthe offender lias been found to be guilty 3 and the difficulty of detectionare also matters which should receive due consideration. The reformationof (lie criminal, though no doubt an important consideration, is sub-ordinate to the others I have mentioned. Where the public interest orthe welfare of the State (which are synonymous) outweighs the previousgood character, antecedents and age of the offender, public interest mustprevail.
A Government servant would invariably be a person of good characterfor he would not be in the service if lie were not so. The fact- that aGovernment or other servant would lose his employment by the con-viction is not a sound reason for not imposing a term of imprisonmentwhere his offence merits it. It is of vital importance that the confidenceof thepublicin the services managed by the.Stateshouldhe preserved.
■ Re.rW.(inSO) 1 U. L. R. SIS ; KennethJohn Ball (1911)3S Cr. ,-t. R. 1C1.
– IterDash(19 IS) 91 Can. C. C. 1ST at 191.
-» lirr r.Boyd(190S) 1 Or. App. Rep. Cl. .
In the same way in the case of a professional man the fact that the con-viction would deprive him of membership of the professional body towhich he belongs affords no valid ground for not sentencing him toimprisonment for a grave crime involving his honesty or integrity. – –
It should bo remembered that the public are entitled to place theirtrust in professional men by virtue of the fact that they belong to honour-able professions which enjoy public confidence. It would be extremelydetrimental to the public interest that the betrayal of that trust shouldnot be met with such punishment as will safeguard the interests of thepublic and the honour of the profession to which the offender belongs.The reformation of the offender in so far as it appears as a matter ofpractical consideration and such extenuating circumstances as appearfrom the evidence, though proper considerations in the assessment ofpunishment, arc not overriding considerations.
It is not out of place to state here that in England, the provisions ofthe Probation of Offenders Act (1907)—(since repealed and replacedby the Criminal Justice Act 194S)—from which section 325 of theCriminal Procedure Code is derived, were rarely applied to cases ofoffenders in positions of trust who betray their trust.
Offences committed in the course of their duties by post office officialsby those who defraud the Post Office Savings Bank 2, by police officers3,bank clerks4, solicitors5, and other persons, whether professional menor not, in positions of trust arc invariably, on grounds of public policy,dealt with sevei'ely. Age, previous good character and antecedents areof little avail in such cases.
Another matter that should be borne in mind by Judges of first instanceis that a heavy' fine is not a substitute for .a term of imprisonment whenthe appropriate punishment for the offence is imprisonment. Heavyfines are generally meant for such offences as profiteering, etc. wheresuch fines are specially prescribed partly for the purpose of depriving theoffender of his ill-gotton gains.
Applying to this case the considerations governing punishment aboveenumerated, the respondent should, in my opinion, despite his age,antecedents, and previous good character, be sentenced to a term ofone year’s rigorous imprisonment on each count of the indictment, thesentences to run concurrently. I accordingly set aside the order of thelearned District Judge under section 325 (2) of the Criminal ProcedureCode and sentence the respondent to undergo a term of one year’s rigorousimprisonment in respect of each charge to which he has pleaded guilty,the sentences to run concurrently..
Weekasooriv.v, J.—I agree.
Sentence enhanced.
1 Henry Charles Victor Turner [1947) 32 Cr. App. Rep. 4-5.
5 Thomas Elliott 32 Cr. A pp. It. 36 (1947).
,3 Ernest Moore (1910) 4 Cr. App. Rep. 13-5.
s J R. C. Mason dt J../. A. Soper (100S) 1 Cr. A pp. Rep. 73 til 77.