[1955] EACA 324

# COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR BARCLAY NIHILL (President), MAHON, J. (Tanganyika) and HOLMES, J. (Kenya)

## KABUNGA S/O MAGINGI, Appellant (Original Accused)

## REGINAM, Respondent

#### Criminal Appeal No. 963 of 1954

(Appeal from the decision of H. M. High Court of Tanganyika, Harbord, J.)

Soliciting to stupefy—Common Law offence of Incitement—Applicability of common law offences to Tanganyika-Attempted conspiracy-Same facts founding convictions for two counts against accused—Principals—Penal Code, sections 3 $(1)$ , 21, 22 and 221.

The appellant solicited M. to stupefy P. M. resisted the suggestion and told P. and a trap was laid. The appellant gave M, some powder containing some stupefying properties. It was not administered.

The appellant was charged and convicted on three counts (1) for soliciting to stupefy in order to commit a felony (contrary to the common law of England and section 221 of the Penal Code), (2) for attempting to stupefy in order to commit a felony (contrary to section 221 of the said Code) and (3) for attempting to conspire to commit a felony (contrary to sections 384 and 381 of the Code).

It was argued for the appellant that Count 1 purported to reflect the English Common Law of incitement which is an offence unknown to the Penal Code. that counts 2 and 3 were bad for duplicity and that in convicting the appellant on all three counts he was being punished three times for what, at most, could only be one offence. The circumstances arose out of one and the same set of facts.

The Crown did not support the conviction on Count 2 but did so on Count 3 on the ground that theoretically it is an offence to attempt to conspire with another.

Penal Code, sections 3 (1), 21, 22, and 221 read as follows: —

3. (1)—"Nothing in this Code shall affect (1) the liability, trial or punishment of a person, for an offence against the Common Law or against any other law in force in the territory other than this Code...."

21.—"A person cannot be punished twice either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he causes the death of another person ...."

22.—"When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say— $(a)$ every person who actually does the act or makes the omission which constitutes the offence; $(b)$ every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; $(c)$ every person who aids or abets another person in committing the offence; $(d)$ any person who counsels or procures any other person to commit the offence ... "

221.—"Any person who, with intent to commit or to facilitate the commission of a felony or a misdemeanour, or to facilitate the flight of an offencer after the commission or attempted commission of a felony or misdemeanour, administers or attempts to administer any stupefying or overpowering drug or thing to any person, is guilty of a felony, and is liable to imprisonment for life."

Held (10-2-55)-(1) The trial of a person for an offence against the Common Law being provided for by Penal Code, section 3 (1) and it being an offence to incite another to commit a crime, even if the reference in Count 1 to Penal Code, section 221, was redundant, the accused had clearly and sufficiently been charged with the Common Law offence.

(2) Penal Code, section 22, applies only where an offence has been committed.

(3) Semble-The essence of the offence of conspiracy being an agreement by two or more minds, one person alone cannot attempt to conspire, there being no offence without mutuality.

(4) The facts relied upon to establish Count 3, i.e. the attempted conspiracy, being precisely the same as Count 1, the accused having been convicted of the same could not again be punished for this act even if, in law, it constituted another offence, as this would offend the provisions of Penal Code, section 21.

Appeal dismissed on Count 1 and allowed on Counts 2 and 3. The sentence of two years' imprisonment with hard labour on Count 1 not disturbed.

Cases refired to: Harrison v. Errington, (1565) Poph. 202; R. v. Dobbs, 18 E. A. C. A.<br>319; Washington s/o Odindo v. R., 21 E. A. C. A. 392; R. v. Robinson, 11 C. A. R 124;<br>R. v. De Kromme, 17 Cox's Cr. C. 492; R. v. Quail, 176 E.

#### Dawda for appellant.

Sir James Henry, Ag. A. G. (Tanganyika), for respondent.

JUDGMENT (read by Nihill (President)).—This is an appeal from a judgment of the High Court of Tanganyika sitting at Mwanza in its criminal jurisdiction. When the appeal first came on for hearing in Nairobi we adjourned it until the Dar es Salaam sittings as we considered it was a case where the appellant should have the benefit of an assigned counsel. The appeal was subsequently heard in Dar es Salaam and the Court, besides hearing Mr. Dawda for the appellant, has had the assistance of Sir James Henry, the acting Attorney-General. The Crown, for reasons which will be considered later, does not seek to uphold the conviction on Count 2, but does on Counts 1 and 3. In order to understand the somewhat difficult points of law which arise for consideration on this appeal it may be best to set out in full the three counts as planned in the information together with the particulars of the three offences-namely-

"1st Count.—Soliciting to stupefy in order to commit a felony, contrary to the Common Law of England and section 221 of the Penal Code.

2nd Count.—Attempting to stupefy in order to commit a felony contrary to section 221 of the Penal Code.

3rd Count.—Attempting to conspire to commit a felony contrary to section 384 and 381 of the Penal Code.

#### PARTICULARS OF OFFENCES

1st Count.-Kabunga s/o Magingi, on or about 28th June, 1954, in Mwanza District Lake Province, unlawfully solicited one Masanja s/o Mahaja, unlawfully to cause a stupefying or overpowering drug to be administered to or taken by one Umiyashanker Lilada Pandya with intent to facilitate the commission of a felony to wit to steal money in the possession of the said Umiyashanker Lilada Pandya.

2nd Count.-Kabunga s/o Magingi, on or about 28th June, 1954, in Mwanza aforesaid attempted to administer a stupefying or overpowering. drug to one Umiyashanker Lilada Pandya with intent to facilitate the commission of a felony to wit to steal money in possession of the said Umiyashanker Lilada Pandya.

3rd Count.—Kabunga s/o Magingi, on or about 28th June, 1954, attempted to conspire with Masanja s/o Mahaja to administer a stupefying drug to Umiyashanker Lilada Pandya with intent to facilitate the commission of a felony to wit to steal money in the possession of the said Umiyashanker Lilada Pandya."

The facts, which are somewhat novel, can be taken from the evidence of two brothers, P. W.'s 1 and 2, who were domestic servants to an Asian cotton buyer from Uganda named Pandya, who at the time of the alleged offences, was buying cotton at Mwagara in Tanganyika Territory. This evidence was fully accepted both by the learned trial Judge and the assessors. It established that the appellant approached the witness Masanja (P. W. 1) and suggested to him that he should mix some medicine, which he would give him in his employer's food. This would "make him mad" so that it would then be easy for the two of them to rifle the employer's box and steal any money found in it. Masanja resisted the suggestion and went away. He returned to his master (Pandya) and told him the who'e story. Pandya told Masanja to see the appellant again and to pretend to agree to the proposal, and to get possession of the medicine. Pandya would then lay a case. The trap worked and the appellant gave to Masanja a bundle which he said contained medicine. The contents of this bundle, which turned out to be powder, was analysed and evidence given by a European medical officer, experienced in anasthesis. This witness said that although the powder contained some stupefying properties, the percentages were so small that even if all the powder had been administered, it would have taken twice the amount to produce drowsiness, which even then would have been slight. All the harm likely to have been caused to Pandya would have been some drying up of the saliva and possibly some dilatation of the pupil. Since the appellant has also appealed against the severity of the sentence passed on him it may be necessary to bear this evidence in mind at a later stage. As it was, of course the powder was never mixed in Pandya's food; instead Pandya laid a complaint against the appellant who was subsequently arrested.

It is not necessary to state the grounds of appeal in full as set out in the memorandum. As argued by Mr. Dawda, they amount to this. That Count 1 which purports to reflect the English Common Law offence of incitement is an offence unknown to the Tanganyika Penal Code. That Counts 2 and 3 are bad for duplicity and that the trial Judge in convicting the appellant on all three counts has in effect punished him three times for what at most can only be one offence. It will be best to deal with Count 1 first, for whatever difficulties there may be with regard to the other counts, we are persuaded that this count, even if the reference to section 221 of the Tanganyika Penal Code was redundant, did sufficiently and clearly charge the appellant with the common law offence of soliciting or incitement to commit a crime. That a person in Tanganyika can be charged with an offence not specified in the Penal Code is provided for by section 3 $(1)$ , viz.:

"Nothing in this Code shall affect—

the liability, trial or punishment of a person for an offence against the common law, or against any other law in force in the territory other than this Code."

That under the common law a person who solicits or incites another to commit a crime is guilty of an indictable misdemeanour cannot be questioned. See Russell on Crimes (10th Ed., at pp. 1838 and 1839):

"Even when a crime is not committed, those who have unsuccessfully solicited or incited another to commit it are, at common law, guilty of an indictable misdemeanor."

"The gist of the offence of incitement... is that the person incited has not committed the crime to which the incitement relates. To solicit a servant to steal or to conspire with the inciter to steal his master's goods... is a misdemeanour and on an indictment for the solicitation it is not necessary to aver or prove that the servant stole the goods or entered into the proposed conspiracy to steal them, nor to prove more than the soliciting and inciting."

It may often be difficult to draw the line between inciting to commit a crime and attempting to commit a crime, but on the facts of the instant case no difficulty arises is so far as the 1st Count is concerned, for here there was proof of an actual act done by the appellant, namely the act of soliciting the servant Masanja to commit a crime. Hence the common law offence with which he was charged was complete. The appeal against the conviction on this count must fail. On the 2nd Count, as already stated, the Crown does not seek to uphold the conviction. Clearly the learned Judge went wrong in his judgment in bringing in section 22 of the Penal Code because this section has applicability only where an offence is committed. Had the offence been committed by Masanja the appellant might have been charged as a principal for at least he would have been an accessory before the fact. As we know, Masanja committed no offence, neither did the appellant himself attempt to stupefy Pandya; what he did was to incite Masanja to do this, and his offence in respect of this is covered by the first count. Accordingly we quash the conviction entered against the appellant on the 2nd Count and set aside the sentence of three years' imprisonment with hard labour imposed.

We must now consider the 3rd Count which has given us the most difficulty in this appeal. The acting Attorney-General has supported the conviction on this count on the ground that theoretically it is an offence to attempt to conspire with another. He was not able to cite to us any reported case nor is one known to any member of this Court. We doubt greatly whether any such offence can lie. The essence of the crime of conspiracy is of course agreement by two or more minds; as Russell puts it at p. 1798 of the 10th Edition "The external or overt act of the crime in concert by which mutual consent to a common purpose is exchanged". See also the footnote 88, "One alone cannot conspire" (Harrison v. Errington (1565) Poph. 202). Neither do we think that "one alone" can attempt to conspire, because there can be no offence without mutuality. Even if we are wrong on this we are fully persuaded that in the instant case the learned Judge in convicting and sentencing the appellant both on Count 1, and Count 3, was in effect punishing the appellant twice for the same act. For the facts relied on to establish the charge of attempted conspiracy were precisely the same as those set out in the charge of incitement, namely the proposal made to Masanja that he should put a drug in his master's food. For this, the appellant has been properly convicted of a common law misdemeanour; he cannot be again punished for this act, even if in law, it can be said to constitute another offence, for to do this offends against section 21 of the Tanganyika Penal Code (see also the proviso to section 3). This same point arose in an appeal from Tanganyika in 1951 and was discussed by this Court in Rex v. Dobbs, 18 E. A. C. A. 319. On this ground alone therefore, we set aside the sentence of imprisonment passed on the appellant in respect of the 3rd Count.

This brings us to the question of sentence against which the appellant has also appealed on the ground that in all the circumstances it is excessively severe.

The trial Judge sentenced the appellant to two years' imprisonment on the 1st Count, three years on the 2nd Count, and two years on the 3rd Count. He made the sentences to run concurrently. As a result of this appeal the appellant now stands convicted only on the 1st Count, so that in effect the term of imprisonment he has to serve is reduced by one year. The learned acting Attorney-General supported the sentence on the 1st Count, which is the maximum the learned Judge could have imposed, on the ground that the use of stupefying drugs for felonious purposes is common in the Mwanza District. No doubt this fact was known to the learned trial Judge, who must have felt that a deterrent sentence was called for. The appellant has no previous convictions, and although his attempt to seduce a domestic servant into the paths of crime is a most serious matter, it would seem that the noxious properties of the powder were so minute, that had the servant consented to join in a conspiracy, the plan to steal must have miscarried. The learned Judge has made no note on the record as to his reasons for passing the maximum sentence on a first offender, and for that reason we have seriously considered whether some reduction is not called for. After some hesitation we have come to the conclusion however that this is not a case in which we should interfere with the discretion exercised by the trial Judge.

In the result therefore this appeal is dismissed on the first count and is allowed on Counts 2 and 3. The appellant will serve a term of two years' imprisonment with hard labour to run from the date of his conviction.

There is one further observation we wish to add. From the record it would appear that the trial Judge did not sum up to the assessors but contented himself with putting the single question to them: "Do you believe the boy's story<br>or not?". This Court recently had occasion to consider the practice to be followed in applying the provisions of section 283 (1) of the Tanganyika Criminal Procedure Code and we call this Judge's attention to what was said on that. occasion. (see Criminal Appeal 961 of 1954 reported at paragraph 206 in the January Bulletin).