[1952] EACA 300

## APPELLATE CRIMINAL

Before SIR HECTOR HEARNE, C. J. and BOURKE, J.

ISMAIL ABDULREHMAN, Appellant (Original Accused) $\mathbf{v}$ .

REGINA, Respondent (Original Prosecutrix)

Criminal Appeal No. 261 of 1952

(Appeal from the decision of the First Class Magistrate's Court, Mombasa, J. H. Clive, Esq.)

Penal Code section 319 (2)-Whether prosecution must first prove accused was knowingly in possession before he became liable to give an explanation— Where defence evidence uncontradicted by prosecution, Court not bound to accept.

The appellant was convicted of an offence contra to section 319 (2) Penal Code and it was argued before the appellant Court, though not before the Magistrate, that the prosecution did not establish as a pre-requisite to the appellant being required to give an account under section 319 (2) Penal Code that the property was knowingly in his possession.

It was also argued that the appellant's evidence as to how the property came into his possession was uncontradicted and should therefore be accepted as true.

Held $(23-6-52)$ .—(1) It is sufficient if a prima facie case is made out and in all the circumstances of the case the appellant was liable to conviction unless he gave an account to the satisfaction of the Court of how he came by the same.

(2) The Magistrate was not compelled to accept evidence merely because it was uncontradicted by the prosecution. Appeal dismissed.

O'Brien Kelly for appellant.

Le Gallais for Crown.

JUDGMENT.—The appellant was convicted of an offence under section 319 (2) Penal Code in respect of the alleged possession by him of "68 items (of property) bearing the marks U. R., K. U. R., and K. U. R. & H. of the East African Railways and Harbours Administration". On the evidence the Magistrate was clearly right in holding that the property may reasonably have been suspected of being stolen or unlawfully obtained, and the memorandum of appeal did not in fact suggest that he was wrong in so holding. The argument on appeal was directed to two points. It was argued in the first place that the prosecution did not establish as a pre-requisite to the appellant being required to give an account under section 319 (2) Penal Code, that the property was knowingly in his possession. It was submitted that this should have been done by proof that the appellant took an active part in his own business and purchased the property himself. This submission was not made to the Magistrate. Indeed at the close of the case for the prosecution the advocate for the appellant intimated that he had no submission to make. A prima facie case of conscious possession of property by an accused person is not of course required to be made out by proof of certain particular facts, in particular the fact of purchase of the property by that person. It is sufficient if a prima facie case is made out by admissible evidence: and the advocate for the appellant at the trial appears to have accepted the position, and we think rightly, that in all the circumstances of the case including the circumstances in which property, reasonably suspected of being stolen or unlawfully obtained, was found in the depots of the appellant, he was liable to be convicted unless he gave an account to the satisfaction of the Court of how he came by the same. He was advised, and again we think properly advised, to give an explanation and this he did by giving evidence and calling one witness, his son. We do not think there is any merit in the first point that was taken and we pass to the second. It was urged on us that as the appellant and his witness gave evidence that the property came on to the appellant's premises through the action of his agent who conducted his business, and as that evidence was uncontradicted, it should have been accepted as true. We do not agree that merely because the prosecution did not adduce evidence to contradict the defence which was put forward the Magistrate should have accepted it. He had the advantage of seeing and hearing the appellant and his witness, and when he said with reference to the submission that the explanation was "most unsatisfactory", that he could not "disagree more and that the accused had failed to satisfy him, etc.", he must be taken unhesitatingly and without any doubt to have rejected as entirely false the explanation that was advanced. We have examined the evidence for the defence with care, including the evidence given in cross-examination, and so far from thinking that the Magistrate may have been wrong in convicting the appellant, we think he was clearly right.

It is to be noted that while the charge refers to "being found in possession" of 68 items", the Magistrate found the appellant guilty of "keeping in his depots" the 68 items", but the advocate for the appellant, whose attention we called to this, said that he could not make a point of it on appeal. We think he was right.

The sentence is not excessive and the appeal is dismissed.