WIJERATNE v. ATTORNEY GENERAL

017-SLLR-SLLR-1998-V-3-WIJERATNE-v.-ATTORNEY-GENERAL.pdf


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[1998] 3 Sri LR.
WIJERATNE
v.ATTORNEY GENERAL
COURT OF APPEALISMAIL, J„ (P/CA)
DE SILVA, J..
C.A. NO. 204/93
C. NO. 744/92MARCH 10, 1998APRIL 1, 1998
Bribery Act – Amended by Act No. 9 of 1980 – accepting a gratification to preventthe performance of an official act – abetment of offence – Evaluation andassessment of evidence.
The accused Appellant, a P.H.I was charged on two counts of soliciting and ontwo counts of accepting a gratification from one D, in assisting in the preventionof the demolition of an unauthorised structure. The 2nd accused was indicted withhaving abetted the accused Appellant. After trial the 2nd accused was acquitted,the accused Appellant was found guilty on the counts of soliciting and acceptinga gratification.
Held:
The trial Judge has not analysed the evidence of the complainant in regardto the solicitation taking into account the background to the transaction.The charges have clearly specified that the purpose of soliciting was toassist in the prevention of the demolition of the unauthorised structure. Theaccused Appellant had been instrumental in setting in motion the stepsleading to the issue of the show cause letter. The trial Judge also foundthat the evidence of the decoy did not indicate that the money was forciblygiven. There was a pressing need for the trial Judge to have evaluatedthe evidence in regard to the acceptance. He had a duty to consider whethera doubt arose in regard to the prosecution case considering the evidenceof the accused and the sequence of events that led to the giving of themoney.
2. There is no evidence that the accused had in any manner contributed tothe delay in taking legal action against the complainant, on account of theunauthorised construction. There is no evidence that the accused appellantwas taking steps to seek a gratification. The accused appellant had beenprompt and has persevered in bringing to the notice of the authorities theneed to take action in respect of the unauthorised structure.
APPEAL from the Judgment of the High Court of Colombo.
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Cases referred to:
King v. Gunaratne et el – 14 Ceylon Law Recorder 174
Martin Fernando v. Inspector of Police, Minuwangoda 46 NLR 210
Ranjith Abeysuriya, P.C with Ms Priyadharshanie Dias for the Accused-appellantJayantha Jayasuriya S.S.C for the Attorney-General
Cur. adv. vult.
May 15. 1998.
ISMAIL, J. (P/CA)
The accused-appellant was a Public Health Inspector working in theoffice of the Medical Officer of Health, Padukka. He was at the relevanttime attached to the Seetawaka Provincial Council in the Padukka-Waga sub-office and his duties included the examination andsubmitting of reports on any illegal construction of buildings within thearea.
The 2nd accused named D. L. Mahipala was officer-in-charge ofadministration in a sub-office of the Provincial Council.
The 1 st accused-appellant who was a public servant was chargedon two counts of soliciting and on two counts of accepting a grati-fication of a sum of Rs. 1,500 from Jayantha Sirisena Devapriya on5.7.90 at Padukka, in terms of section 19 and 19(c) of the BriberyAct, as amended by Act No. 9 of 1980, to prevent the performanceof an official act, to wit, by assisting in the prevention of the demolitionof an unauthorised structure in the Polwatte, Padukka area.
The 2nd accused was indicted on counts 5 and 6 with havingabetted the 1st accused in the commission of the two offences ofacceptance of the gratification referred to above.
The trial commenced on 24.8.92 and at its conclusion for thereasons set out in the judgment dated 22.01.92, the 2nd accused wasacquitted of the charges in counts 5 and 6 of the indictment.
The 1st accused was found guilty and was convicted on the 1stand 2nd counts for the solicitation and on the 3rd and 4th counts
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for the acceptance of the said gratification and was sentenced to aterm of 5 years rigorous imprisonment on each count and the sen-tences were ordered to run concurrently. This appeal is against hisconviction and sentence.
The complainant Jayantha Sirisena Devapriya was a technicalofficer attached to a sub-office of the Padukka Provincial Council atHanwella. His evidence was that he had intended to construct a housefor his brother in a plot of land belonging to him at Mahagamlandawattein Padukka. He had put up a temporary structure to store the buildingmaterials at the site. As the construction of the building was beingdelayed, his brother moved in to live in the temporary building whichwas originally intended as a store at the site. He has admitted receivingseveral letters from the Provincial Council relating to the constructionof the said unauthorised building. He had, however, not taken anysteps in this regard despite admittedly receiving letters from theProvincial Council.
The complainant appears to have been annoyed that officials ofthe Provincial Council were more keen on seeking to have thistemporary structure demolished rather than taking steps to allocateto him an assessment number for the lot on which the house wasto be constructed. He had therefore decided to make a complaint tothe Bribery Commissioner against the Public Health Inspector and theTechnical Officer. His complaint was recorded on 31.5.90 and a trapwas arranged for 6.5.90 by the officers attached to the BriberyCommissioner's office. The complainant had not made any specificallegation that the 1st accused-appellant had solicited a gratificationor that he solicited a particular sum of money.
According to the evidence and the documents produced at the trialit appears that on 27.12.89, the 1st accused-appellant had made thedetection of the said unauthorised structure having been constructedand has made notes of this detection in his field book at page 44(1V6). He had then made an official report on 2.1.90 (1V7) to theAuthorised Officer of the Council through his superior officer, the.Medical Officer of Health, regarding the erection of this 10’x19’ tiledhouse constructed with planks.
It appears that the officer-in-charge of the Padukka-Waga unit ofthe Provincial Council had by his letter dated 6.2.90 (1V5 & 1V9)
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informed the complainant that a report had been received regardingthis unauthorised construction and directed him to pay the Councila sum of Rs. 950 in respect of this illegal construction.
The 1st accused-appellant had once again by his letter dated 8.3.90(1V8) drawn the attention of the authorised officer to his previous reportdated 2.1.90 (1V7) and had stressed the need to take appropriateaction promptly in respect of this illegal construction. The first accused-apellant has therefore taken up a consistent position at the trial thathe was a conscientious and dutiful officer.
Thereafter the officer-in-charge of the Pudukka-Waga sub-office ofthe Provincial Council has by his letter dated 17.4.90(P4) written tothe complainant directing him to show cause within 7 days in termsof section 12(1) of the Housing and Town Improvement Ordinanceas to why steps should not be taken to demolish the structure andinforming him that his failure to do so would ent^jl legal steps beingtaken against him under section 13(3) of the said Ordinance.
The complainant took up the position in his evidence that he didnot receive the letter dated 6.2.90 (1V5 – 1V9) by which he wasdirected to pay the council a sum of Rs. 950 on account of theunauthorised construction. However, learned Counsel for the accused-appellant has submitted that the complainant deliberately denied thereceipt of this letter which directed him to pay Rs. 950 to the counciland submitted that this necessarily affects his credibility. It wasdemonstrated that the complainant had admitted receiving letterspreviously from the Council and that his admission of the receipt ofprevious letters in his reply (P5) showing cause referred to none otherthan the letter dated 6.2.90 (1V5). It was the only letter sent to himprevious to the letter dated 17.4.90(P4).
The complainant in reply to the letter of the Council(P4) dated17.4.90, has purported to show cause by his letter dated 1.6.90 (P5).He had indicated in this letter that he would be submitting anapplication in respect of this building after an assessment number isgiven. He had also informed the authorised officer that he had giftedthe said premises to his brother although no deed had yet been drawnup.
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It is important to note that this letter showing cause has been writtenby the complainant the day after he had made his complaint regardingan allegation of bribery on 31.5.90 to the Bribery Commissioner againstthe Public Health Inspector and the Technical Officer. He had not madeany specific allegation that a gratification was solicited by theseofficers. He has also not specified any amount as having beingsolicited as a gratification by either of them. Curiously, InspectorWasantha who made arrangements for this detection to be conductedhas drawn only a sum of Rs. 1,500 in three five hundred rupee notesto be used in the detection.
The facts relating to the solicitation has been set out by the HighCourt as follows: “Having received instructions from the Bribery officerson 5.6.90 he (the complainant) had gone to the office of the 1staccused and on failing to find him in the office or at his home, hehad recognised him by his uniform as the PHI and upon confirmationof his identity from0a passer by, he had approached the accused andhad identified himself. It was the position of this witness that at thetime of this meeting he had not even known the identity of the 1staccused.
As soon as the witness had presented himself to the 1st accusedand established his identity, the 1st accused had upbraided him fornot coming to meet him inspite of the several messages sent to him.This conversation had taken place in the presence of the Briberyofficer, who had posed as the brother of the complainant, namely thewitness above named. The 1st accused had also stated that thecomplainant, should "….do what he had to do by today or tomorrow".The witness had requested for time until the afternoon as he hadto get the money from the bank, but the accused had said "do whatyou have to do soon, I will be leaving within half an hour". The witnesshad gone on to query the amount and had asked "…is not the amountRs. 1,500?", to which the 1st accused had indicated that it is so bynodding his head."
Learned Counsel for the accused-appellant has pointed out thattwo versions had been given by the prosecution in regard to thesolicitation .The first version of the complainant is as referred to above.The evidence of the decoy, on the other hand, is that the complainantwas asked whether it was Rs. 1,500 and that the complainant shookhis head in assent. Learned Senior State Counsel submitted in regard
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to these two versions that one of them may have made a mistakeas to the exact details of the conversation but there was nocontradiction in regard to the amount involved or the manner in whichthe amount was confirmed by a nod.
It appears that this conversation in regard to the solicitation hadtaken place while the complainant and the decoy were seated on themotorcycle and while they were about to leave the place.
The trial judge has set out the next sequence of the events asfollows: "The witness had gone back to the Padukka junction wherethe other bribery officers has remained and at that point the moneyhad been given in marked notes in a sum of Rs. 1,500. They havereturned to where the 1st accused was in about half an hour, andhad gone into the office with the 1st accused. The witness told the1st accused that he had brought the money and it was thereafter thatthe 1st accused had invited him into the office in to the presenceof the 2nd accused, saying that he had to have the assistance ofthe other officers to attend to the task.
The trial judge has set out the position of the 2nd accused in thistransaction as follows: "Concerning the 2nd accused the main evidenceagainst him concerns the incident inside the office at the time thegratification was accepted by the 1st accused. At this time, when themoney was given to the 1st accused, which had been handed overby the complainant with the words "Here is the money requested bythe 1st accused", to which the 2nd accused had replied, "Thosematters can be attended to later, first get these matters legalised".These words cannot be in anyway interpreted to be an abetment ofthe offence of acceptance by the 1st accused. It is clear that the 2ndaccused was never concerned with the quantum of the amount northe purpose of the gratification. It is doubtful whether he even knewhow much or for what purpose the money had been given….”
The trial judge had then proceeded to acquit the 2nd accused ofthe two charges of abetment against him.
In dealing with the case against the 1st accused-appellant the trialjudge has had no hesitiation in acting upon the evidence of thecomplainant Devapriya The following observations have been made;"However, from this witness's conduct, bearing and deportment both
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during evidence in. chief and during his cross examination, I observedthat he was frank, and honest, in giving evidence. The contradictioncan be attributed to a faulty memory. In any event, this contradiction,does not bear upon the material and important aspects of this case".
However, it is apparent that the trial judge has not analysed theevidence of the complainant in regard to the solicitation taking intoaccount the background to this transaction. The charges in theindictment have clearly specified that the purpose of soliciting thegratification was to assist in the prevention of the demolition of theunauthorised structure. The evidence is clear that it was the accusedwho made the detection of this unauthorised structure in December’89 and that having sent an official report in January '90 (1V7), hefollowed it up with a further report in March ’90 (1V8). As at the dateof solicitation several letters had been sent to the complainantaccording to one of which he was called upon to pay the council asum of Rs. 950. The last letter was P4 dated 17.4.90 and it wasa letter asking him to show cause in terms of section 12 (1) of theHousing and Town Improvement Ordinance as to why the unauthorisedstructure should be demoished. The complainant has purported toshow cause by his letter (P5) dated 1.6.90. He has made the complaintof bribery to the Bribery Commissioner the previous day on 31.5.90.Clearly then, the accused-appellant could not have in thesecircumstances assisted in any manner in preventing the demolitionof the illegal structure. The prosecution had therefore failed to provethis ingredient in the charges. The 1st accused-appellant had by thenbeen instrumental in setting in motion the steps leading to the issueof the 'show cause' letter. At this stage the only matter that couldhave been pursued was as to whether the demolition of the unau-thorised building could have been prevented by the payment of Rs.950 stipulated in the letter (1V5) dated 6.2.90. There is some indicationthat this exactly was in consideration as can be gathered from thewords said to have been spoken by the 2nd accused to the effect''….first get these matters legalised".
The function of an appellate court in dealing with a judgment mainlyon the facts from a court which saw and heard the witnesses hasbeen specified as folllows by Macdonnel C.J. in the King v. Gunaratn&')"I have to apply these tests, as they seem to be, which a Court ofAppeal must apply to an appeal coming to it on questions of fact:1 (was the. verdict of the Judge unreasonably against the weight of
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the evidence, 2) was there misdirection either on the law or theevidence, 3) has the Court of trial drawn the wrong inferences frommatters in evidence."
Similarly Wijewardene, J. stated in Martin Fernando v. Inspectorof Police, Minuwangoda®, that;
"An appellate Court is not absolved from the duty of testing theevidence extrinsically as well as intrinsically" although "the decisionof a Magistrate on questions of fact based on demeanour andcredibility of witnesses carries great weight", where "a closeexamination of the evidence raises a strong doubt as to the guiltof the accused, he should be given the benefit of the doubt".
Besides the weaknesses that have been referred to in the caseof the prosecution in regard to the charges of solicitation, the trialjudge has failed to consider the evidence of the accused-appellanthimself, that the complainant having informed him that he would"legitimise the entire thing" had forcibly placed some money into hispocket. The money even according to the complainant was acceptedafter an extended conversation in the office of the 2nd accused fora period of about 15 minutes and no sooner the money was handedover the complainant had rushed out of the office. The trial judgehas found that the evidence of the decoy did not indicate that themoney was forcibly given. There was a pressing need for the trialjudge to have evaluated the evidence of the prosecution in regardto the acceptance. The trial judge had a duty to consider whethera doubt arose in regard to the prosecution case, considering theevidence of the accused and the sequence of events that led to thegiving of the money.
Learned Counsel for the accused-appellant has pointed out thatthe trial judge has made totally erroneous assumptions andunwarranted inferences against the accused which had gravelyprejudiced him. It was never the position of the accused-appellant thatthe accused took steps to receive any money from the complainanton behalf of the Council. The trial judge has incorrectly stated thatthe defence had appeared to suggest that the sum of Rs. 1,500 waspart of a legitimate payment. Again, the trial judge has wronglyassumed that the accused had written several letters to thecomplainant. On the contrary the letters to the complainant were sentofficially by the Provincial Council.
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Learned Counsel for the accused-appellant quite legitimately pointedout that the most damaging and completely unwaranted inferencedrawn by the trial judge was stated in the penultimate part of thejudgment as follows:
"It is clear that the delay in the 1st accused taking meaningful actionconcering the alleged illegal structure gives further credence to theprosecution version that the 1st accused was delaying taking stepsin this manner so that he could seek a gratification from thecomplainant".
There was no evidence led at the trial that the accused had inany manner contributed to the delay in taking legal action against thecomplainant on account of the unauthorised construction of a building.There was no evidence that the 1st accused was taking steps to seeka gratification from the complainant. On the contrary the 1st accusedhas been prompt and has persevered in bringing to the notice of theauthorities the need to take action in respect of this unauthorisedbuilding.
For these reasons I am of the view that the verdict of the trialjudge is unreasonably against the weight of the evidence and thata close examination of the evidence raises a strong doubt as to theguilt of the 1st accused-appellant.
The conviction of the 1st accused-appellant on 1st, 2nd, 3rd and4th charges is therefore quashed and the sentences imposed are setaside. The 1st accused-appellant is acquitted of all charges.
DE SILVA, J. – I agree.Appeal allowed.