[1937] EACA 191

## COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J., Ag. P. (Uganda), LUCIE-SMITH, Ag. C. J. (Kenya), and McDougall, Ag. C. J. (Tanganyika).

## HABIB KARA VESTA, JAMAL HABIB KARA. SULEMAN HABIB KARA (Appellants) (Original Accused)

REX (Respondent) (Original Prosecutor):

Criminal Appeals Nos. 88, 89 and 90 of 1934.

- Evidence—Whether an agent of justice or a police informer, or agent provocateur is an accomplice so as to require corroboration of his evidence—Dangerous Drugs Ordinance (Kenva) 1932—Motive of witness in instigating appellants to commit an offence was to secure the capture of offenders-Police spy versus accomplice—Likelihood of story told by the witness as against probability of story told by the accused— Power of Judge to differ from the opinions of assessors-Section 304 Criminal Procedure Code (Kenya)—Severity of sentence—Application for bail pending appeal—Whether any exceptional circumstances or exceptional reasons present. - Held.-That, although there was no corroboration of the evidence of one Lees who, on taking it upon himself to try to suppress the drug traffic in Mombasa, induced the accused to supply a drug. yet corroboration was not necessary because his activities were those of an agent of justice and not of an accomplice, and that his motive in instigating the appellants to the commission of an offences was the capture of offenders and not the perpetration of<br>offences. *Held*, therefore, on the authority of cases decided in<br>England, India and East Africa, that a witness found to be a genuine police spy is not an accomplice, and therefore does not<br>require corroboration. The cases establishing that principle fall into three categories which are discussed in this judgment. A spy, since his complicity extends only to the actus reus and not to the mens rea, is not truly an accomplice. - Held Further.-That, in this case there was nothing before the Trial Judge which should have induced him to disbelieve the evidence of the witness. Lees, and that the alternative to believing him was to believe something most extravagantly improbable. - Held Further.-That, although the assessors at the trial were unanimously in favour of the accused (appellants), yet section 304 Criminal Procedure Code of Kenva confers an absolute power on the Judge to give effect to his own views. - Held Further.-That the sentences, although severe, were not so severe as to warrant interference by an Appellate Court, having regard to the facts that the drug traffic is world-wide and that offences are bad and difficult to detect.

Ross, Burke and Trivedi for Appellants.

Smith, Ag. Crown Counsel of Tanganyika, for Crown.

Ross.—Appellants convicted of offences against Dangerous Drugs Ordinance. Judge disagreed with finding of assessors. Sufficient weight not attached to assessors' opinion. Defence was that cheque was given for note minus 15 per cent for cash payment. The witness, Swayne, was not communicated with before 10th February. The promissory note was retained until he saw the cheque was good. Swayne was concealed too well. A large number of promissory notes were found in the safe. The promissory note was in the accused's pocket when he went to the bank. The Judge differed from the assessors. He ought to have attached great weight to their opinions. The general proposition is that Lees is an accomplice or at least requires corroboration. Cr. Appeal 2 of 1934 (E. A. C. A.) ABRAHAMS, SHERIDAN, C. J. J., and LUCIE-SMITH, Ag. C. J., No. 62 of 1933, Tanganyika Territory Civil Appeal; SHERIDAN, C. J.; Cr. Revision 105/33 Tanganvika Territory, HEARNE J. Uganda, L. R. (Vol. II) p. 76, King-Farlow J. Emperor v. Muthra Prasad. Evidence uncorroborated, story improbable.

Hiding of Swayne. Man too well con- $Smith$ —Facts. cealed to see. But why was he brought there? The cheque for Sh. 750 tallies with the promissory note; why did he have the letter? As to complicity, does it not depend upon his motives. not his mere actions? Intention was to catch the offender. $\mathbf{1}$ can do no better than quote the difference between the accomplice and the pretended confederate by referring to $\text{Re}x$ v. Mullins (1848) 3 Cox 509. Now, Lees had conversation with Swayne on 5th February, then he went to Ndia Kuu; he saw Swayne again -on February 10th, in the morning and again about three o'clock. That night Swayne was concealed under table. Conversation about drugs. If he is an accomplice there is no corroboration. Corroboration is required.

Burke replied.—If Lees is an accomplice then conviction must fail; but, even if he is not an accomplice, the case may The judge described the defence as ingenious, but this fail. term should be appropriated to the facts proved by the prosecution. The letter (Ex. 10) was handed to Lees, but not the promissory note; the promissory note was put back into the safe. And the promissory note was in his pocket. Lees did not hand over the letter to the police on the 10th. Accused's conduct has been absolutely consistent all the time. He gave a reasonable explanation of the purpose for which the cheque was given.

Trivedi on Sentence.—Section 34 Penal Code provides fine or term of imprisonment not exceeding two years. Counts fifth and sixth are misdemeanours. The second and third accused acted under the influence of the father.

Smith.—Suleman took an active part. The offence is very thad.

JUDGMENT.—The appellants were charged in the Supreme Court at Mombasa under three counts with offences against the Dangerous Drugs legislation and under two further counts with conspiracy to offend against the above legislation. The first appellant, who is the father of the other two, was convicted on all five counts and sentenced under each to four years' imprisonment with hard labour, the sentences to run concurrently; the second appellant was also convicted on all five counts and sentenced under each to three years' imprisonment, the sentences to run concurrently; and the third appellant was convicted on four of the counts and sentenced under each to the same punishment as his brother. All three now appeal against conviction and sentence.

The conviction rests largely upon the evidence of a Mr. Lees. He is an Englishman, an ex police-officer and a taxi-cab proprietor in Mombasa. Early in February last Captain Francis, a friend of Lees, passed through Mombasa on his way home. Lees saw him and, to use Lees' own words, "Francis was an absolute wreck and half mad—I suspected from dope". Lees then made up his mind to try to suppress the drug traffic in Mombasa. During: Francis's stay in Mombasa the second appellant came to see him at the hotel while Lees was present. Francis said to Jamal, referring to Lees, some words which indicated that Lees was a trustworthy person, and it can be fairly gathered from this that, if Lees told the truth in Court, these words related to the supply of drugs, and that he came to the conclusion, if Francis in fact did not tell him, that Jamal supplied him with dope or put him in the way of obtaining a supply. Lees on the morning of the 8th February (Thursday) called at the house of Habibbhai (the first appellant) where he saw Habibbhai and Jamal and asked Jamal in English if they could supply him with dope. Jama! and Habibbhai had some conversation in Gujerati after which Jamal said he could have five hundred grains on Saturday. He called again on Saturday afternoon and again found Jamal and He asked if they had the dope. Jamal Habibbhai together. said "Yes". Habibbhai left the room and returned, and presently Suleman (the third appellant) entered bringing a parcel containing five packets, each containing approximately one hundred grains of a salt of morphine. Lees asked if this was "the right stuff" and Jamal and Suleman said that it was.

The price was agreed at Sh. 1/50 a grain less 15 per cent reduction and Lees accordingly gave a cheque made out in favour of Habib for Sh. 637/50. Lees then went at once to the house of Assistant Inspector of Police Swayne and thence to Superintendent of Police Captain Rainsford, where he handed ver the dope and later the counterfoil of the cheque. That evening Suleman called by previous arrangement on Lees and informed him that a further supply could be sent to Nairobi

(Lees having led the appellants to believe he was going there) if he telegraphed to Habib Vasta, Mombasa: "Send - Rupees, Ali". During this visit of Suleman to Lees Inspector Swayne was hidden under a table in the room by arrangement with Lees, the main reason being, says Lees, that "we thought we would catch Suleman with the dope". Swayne, however, was hidden too well and could not see the visitor's face. The Monday following, Habibbhai went to Barclay's Bank to cash Lee's cheque and was there arrested. It should be added, for it bears both on the case for the prosecution and the case for the defence, that Lees said that at the interview with the three appellants on the Saturday, he was shown a promissory note for Sh. 750 drawn by Captain Francis in favour of Habib Kara, dated the 24th of the previous November and payable on demand. As Lees was a friend of Francis, Habib suggested he should, when in Nairobi, endeavour to collect this money from Mrs. Francis, receiving if successful 15 per cent commission. The better to enable him to prevail with Mrs. Francis he was given by Habib a letter from Francis to Mrs. Francis dated the 12th January, 1934, acknowledging that he had given Habibbhai a promissory note This promissory note was found on arrest in for $Sh. 750$ . Habibbhai's pocket, and when his house was searched a large number of promissory notes were found in his safe. The appellants, in contending that the dope story is a complete fabrication. said that Lees visited the appellants once only, and that on the Saturday afternoon when he came by arrangement with Francis to pay the amount due by Francis on the promissory note which with interest amounted to Sh. 800. They alleged with much detail that Lees pointed out that as Francis had left for Europe the debt had depreciated in value, and that Lees induced Habibbhai first to forego the interest on the loan, and then to abate the principal by 15 per cent reducing the debt to Sh. 637/50, for which Lees tendered his cheque. Habibbhai refused to surrender the note unless the cheque was honoured, but gave Lees the aforesaid letter, and it was argued at the trial and has been pressed strongly before us that the actual possession by Habibbhai of the note when he was arrested at the bank proves the appellant's story of the transaction with Lees, particularly because it was this note found on him when the safe held very many notes. Which of these conflicting accounts should have been accepted by the learned trial judge, we will deal with after considering the contention of the appellants that Lees was an accomplice, and therefore his evidence should have been rejected.

Now, it is admitted by Counsel for the Crown at this appeal that there is no real corroboration of Lees' evidence, but it is contended that no corroboration was necessary because his activities were those of an agent of justice not of an accomplice; that his motive in instigating the appellants to the commission of an offence was the capture of offenders, not the perpetration of

offences. A number of cases, English, Indian and East African. were cited to us in which the question of police spy versus accomplice was discussed, and it appears to have been established beyond doubt in England and in India and should in our view be therefore accepted in East Africa that a witness found to be a genuine police spy is not an accomplice, and therefore does not require corroboration. The cases establishing that principle appear to fall into three categories. There are the cases where a person actually mixes with the intending perpetrators of a crime for the purpose of the full discovery and eventual frustration of their plans. This type finds illustration in the conspiratorial cases of Req v. Dowling (1848) 3 Cox 526; and Req v. Mullins $(1848)$ 3 Cox 509. There is then the type of person described in section 971 of Taylor quoting Lord Ellenborough in $\text{Re}x$ v. Despard (1803) 28 How. State Trials as those: "who have entered into communication with conspirators, but who in consequence of ... a subsequent repentance ... have disclosed the conspiracy to the public authorities under whose direction they continue to act with their guilty confederates till the matter can be so far matured as to ensure their conviction". There is finally the class of person who for the purpose of trapping a person believed to be engaged in crime instigates him to the commission of that particular kind of offence. Rex v. Bickley (1909) 2 Cr. App. Rep. 53 and Emp. v. Chaturbhuj Sahu (1910) 28 Cal. 96, furnish appropriate examples of this class. In the first mentioned case a suspected abortionist was instigated by a woman acting under police instructions to supply her with a drug for the purpose of causing miscarriage; in the second case a suspected drugtrafficker was induced by an agent of the Excise Authorities to supply him with cocaine. It has been pointed out to us that the case with which we have to deal varies from all those cited to us by way of principle or illustration in that Lees did not invite the police to participate in his plans until the drug had actually been delivered, that is to say until an offence had actually been committed at his instigation. We are, however, of opinion that any delay in introducing the public authorities into his activities cannot make any difference to the motives with which the spy, decoy or pretended confederate instigates the commission of the offence, if, to quote the judgment of Doss J. in Emp. v. Chaturbhuj Sahu, "the object of the instigation is not perpetration of the offence, but the detection of it; not the transgression of law, but securing of evidence for the enforcement of public justice". To put it in another way and to quote the very apt words of the late Professor Kenny (Outlines of Criminal Law, 1933 Edition, p. 406) a spy, since his complicity extends only to the actus reus and not to the mens rea is not truly an accomplice, and so does not need corroboration. The fact, however, that the instigator of an offence who claims that he is not an accomplice for the reasons we have just discussed was not employed by the public authorities or did not communicate with

them until the offence had been committed may be ground for a cautious examination of his evidence, but that is not the same as deeming him an accomplice.

It is then urged for the appellants that the story of Lees is so dubious and unlikely that it ought not to be credited for itself. It is pointed out that on his own evidence Lees did not communicate with the police until after a crime had been committed, and it is suggested that the ineffective concealment of Swayne was really all too effective. It seems to us, as it seemed to the learned trial judge, that the alternative to believing Lees is to believe something most extravagantly improbable, that is to say, that he decided to enriap three Indians for no alleged reason, that he obtained a substantial quantity of a drug, presumably at his own expense—this in itself a criminal act—and then had the hardihood to use a police officer in his plot thus taking the risk of an exposure of his machinations, and that he ultimately came into Court to swear three innocent men into gaol. No evidence was given as to why he should have carried out or even conceived such an amazing scheme, and no theory has been put before us to the like effect. It is true that it would have been better had the trap been actually planned or at least managed in all its stages by the police, but there is no doubt that when the police were informed by Lees of what he had already done and proposed further to do they willingly took up the proceedings, and no doubts have been cast by counsel for the appellants upon the good faith of those police officers who gave evidence. It has been urged upon us that the version of the appellants of the promissory note and letter transaction ought to have been accepted rather than that of Lees, as the truth of Habibbhai's evidence must have been fully demonstrated by his possession of the promissory note when arrested. It seems to us that Lees' version is the more likely, and that unless the possession of the promissory note is logically inconsistent with any other explanation than that of Habibbhai (and that has not been proved to us) the general probabilities in favour of Lees justified the trial judge in rejecting the case for the defence.

It has also been made a ground of appeal that the unanimous opinion of the assessors in favour of the appellants ought to have been accepted by the judge. Section 304 of the Criminal Procedure Code confers an absolute power on the judge to give effect to his own views. The most he is directed to do is to require each assessor to state his opinion, which logically means he must consider that opinion. In Woodroffe's Criminal Procedure Code (1926 Edition, p. 356), in commenting on section 309 it is stated: "The assessors are not, as the jury, judges of fact so as to bind the judge. It is the latter who must decide the case on the facts as well as the law (Sankar 14 Bom. L. R. 710), but he will of course have regard to their opinion, even though it is not binding upon him". We have dealt thus with what

seems to us quite obvious because we think it as well to indicate that no argument in future directed to persuading us to diminish or in any way to qualify that absolute power of a judge to give effect to his own views should receive any attention from this Court.

There is also an appeal against the sentences. These are admittedly severe but the offences are very bad and difficult of detection. The drug traffic is world-wide and there are international conventions to which the whole of the British Empire is party for its suppression. The first appellant has been convicted once before of a similar offence, and we have no reason to accept the suggestion that his sons acted under his influence. We do not propose to interfere and we dismiss the appeals.

APPLICATION FOR RELEASE ON BAIL PENDING HEARING OF APPEAL. Prior to the hearing of this appeal, the Court of Appeal for

Eastern Africa heard an appeal for release on bail pending appeal. The advocates appealing for the appellants were Messes.

J. A. C. Burke, A. C. Ross and H. D. Trivedi.

Ross argued as follows: -

This is one of three applications for bail. Leave to appeal. has been applied for. Solicitor-General has adduced written arguments to oppose appeal. These are based on the Criminal Appeal Act. Before this Act the verdict of a jury was sacrosanct except on a writ of error. The jurisdiction here in Kenya is different. There has always been an appeal. The verdict of a judge is not the same as that of a jury. The finding was against the unanimous opinion of the assessors. Solicitor-General has fairly stated the effect of the cases. I refer to the following cases, Waxman, 22 Cr. A. R. 81; Newbury v. Elman, 23 Cr. A. R. 66 (complexity and long vacation), Steward 23 Cr. A. R. 68; Harding, Turner & King, 23 Cr. A. R. 143. The case of Davidson is referred to by the Solicitor-General, but see Rice same volume). The assessors, in a reasoned opinion, thought that the accused should be acquitted. That is an exceptional circumstance.

Held.-That there were, in this case, no exceptional circumstances justifying release on bail pending hearing of appeal.

$\mathcal{J}$

ORDER.—This is an application on behalf of three intending appellants for release on bail pending the hearing of the appeal. They were all convicted by WEBB J. of offences under the<br>Dangerous Drugs Ordinance, 1932, and Penal Code, and sentenced to imprisonment, the first appellant to four years, the others to three years. The Crown has opposed this application and has cited a number of cases from the Criminal Appeal. Reports, purporting to show that bail should never be granted save in exceptional cases. Mr. Ross, for the applicants, has

essayed to convince us that the analogy between the Court of Criminal Appeal in England and this Court is imperfect, inasmuch as that Court has to investigate on appeal the verdict of a jury whereas this Court has to investigate the decision of a judge; but, for the purposes of the grant of bail, we are of opinion that we ought to act on English principles, which appear to us to be founded on the presumption that a convict is guilty when convicted and it is for him to show that the decision was wrong and therefore there must be exceptional reasons given for releasing him from his imprisonment prior to appeal.

Mr. Ross has cited a number of cases from the Criminal Appeal Reports in which the application for bail was granted. These are all mentioned in Starkie 24 Cr. App. Rep. 1. where the application was refused. SWIFT J. observing: "It has never been the practice of the Court to grant bail to an applicant after he has been convicted and sentenced to imprisonment unless in very exceptional circumstances. The mere fact of the existence of a long vacation is not of itself such an exceptional circumstance as to justify the allowing of bail".

Counsel argues here that an exceptional circumstance exists. The conviction mainly rested on the evidence of a witness, who was held to be an agent of the police, not an accomplice as the defence contended. This question will be a ground of appeal, and the assessors in a reasoned opinion stated that they considered the accused not guilty. Mr. Ross says that this exceptional circumstance, joined to the fact of delay until the hearing of the appeal in Dar es Salaam about nine weeks hence, justifies this Court in granting bail. We do not agree that this opinion of the assessors constitutes an exceptional circumstance, and we dismiss the application.