[1951] EACA 188

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and LOCKHART-SMITH, J. of A.

#### D. M. PATEL, Appellant (Original Accused)

$\mathbf{v}$

## REX, Respondent (Original Prosecutor)

#### Criminal Appeal No. 47 of 1951

(Appeal from the decision of H. M. Supreme Court of Kenya—Modera, J., and Connell, Ag. J.)

Section 208, C. P. C.-No case to answer-Counselling and procuring commission of an offence—Whether amendment of charge necessary.

The appellant was charged, together with one C. Z. Patel with having jointly and corruptly offered a bribe to a Special Magistrate, Both were convicted. The appellant appealed without success to the Supreme Court. He then appealed to the E. A. C. A. on two grounds. Firstly that at the close of the case for the prosecution there was no evidence against him to require him to make a defence. Secondly that as he was charged with corruptly offering a bribe he should not have been convicted of counselling and procuring the commission of the offence by C. Z. Patel without any amendment of the particulars of the charge.

**Held** $(25-6-51)$ —(1) That if the appellant had submitted that there was no case to answer and offered no evidence it is probable that he would have been acquitted. He did not, however, elect to do this but gave evidence which materially strengthened the prosecution evidence. There was no onus on the Magistrate to stop the trial at the close of the case for the prosecution.

Rex v. Kinanda bin Mwaisumo (1939) 6 E. A. C. A. 105; Karioki v. Rex 1 E. A. C. A. 160

(2) Where a person has counselled and procured the commission of an offence it is sufficient in law to order as particulars the commission of the actual offence. Nevertheless if it should appear in any case that failure to amend the particulars of the charge has occasioned prejudice to an accused person a new trial might be ordered. In this case no such consideration arose and there was no necessity for the Magistrate to make any amendment. The appeal would be dismissed.

Cases referred to: Benford v. Sims (1898) 2 Q. B. 641; Du Cross v. Lambourne (1907) 1 K. B. 40; Gould & Co. v. Houghton (1921) 2 K. B. 509; Rex v. de Marny (1907) 1 $K. B.$ 388.

Nowrojee for the appellant.

Templeton, Crown Counsel, Kenya, for the Crown.

JUDGMENT.—This is a second appeal from a conviction of official corruption contrary to section 93 (2) of the Penal Code before the Court of the Resident Magistrate at Molo. The appellant was charged, together with one C. Z. Patel, with having jointly and corruptly offered to give Sh. 500, one bottle of brandy, three mangoes, five oranges, three bottles of beer and one tin of biscuits to a Special Magistrate in order that he should deal leniently with the appellant on a criminal charge of which he stood accused. Both the appellant and C. Z. Patel were convicted; the latter has not appealed.

Two grounds of appeal were argued before us, namely: —

(1) That at the close of the case for the prosecution there was no evidence against the appellant sufficient to require him to make a defence and that the Magistrate should have discharged him in pursuance of the provisions of section 208 of the Criminal Procedure Code; and

(2) that the Magistrate, having found that the appellant counselled and procured the offence charged, convicted him without amending the charge and its particulars and that there had been a failure to comply with the mandatory provisions of sections 209 (1), 212 (1) and 137 (a) (iii) and (iv) of the Criminal Procedure Code.

The first ground can be quickly disposed of. At the close of the case for the prosecution, the only evidence implicating the appellant was that he had been seen to hand to his co-accused something that looked like a folded envelope. The Sh. 500 which the co-accused subsequently offered to the Special Magistrate were contained in an envelope. Had the appellant's counsel at the trial seen fit to rest upon a submission of no case to answer and offered no defence, we think that no Court could have supported a conviction based upon this scintilla of proof. However, the advocate did not do so but put the appellant into the witnessbox where he swore that he had sent the Sh. 500 in an envelope by the hand of the co-accused to give to the Special Magistrate as a Christmas present. This was on the evening of 23rd December, 1950. The trial Magistrate, taking into consideration all the evidence and the circumstances of the case, rejected this explanation as he was fully entitled to do, and convicted the appellant of the offence charged.

In Rex v. Kinanda bin Mwaisumo (1939), 6 E. A. C. A. 105, this Court considered fully the effect of a failure to comply with section 196A of the Criminal Procedure Code of Tanganyika (which corresponded to section 208 of the Criminal Procedure Code (Cap. 27 of the Laws of Kenya)) and held, following the earlier case of Karioki v. Rex, 1 E. A. C. A. 160, that should an accused person incriminate himself he may be committed for trial or convicted, as the case may be, even though the evidence at the close of the Crown case is insufficient to warrant a committal or a conviction.

Mr. Nowrojee has argued that the opinion of the Court in *Kinanda's* case was *obiter* and not binding on us. This so far as it goes is true but the decision has stood for 12 years and never, so far as we are aware, been dissented from. We agree with it and certainly do not intend to depart from it now.

The first ground of appeal therefore fails.

The second ground of appeal is not, so far as we are aware, covered by any direct authority of this Court and involves consideration of the effect of section 22 of the Penal Code (Cap. 24 of the Laws of Kenya).

That section provides as follows: —

"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 $(a)$ 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.

In the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.

A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with doing the act or making the omission."

Mr. Nowrojee, counsel for the appellant, conceded that by reason of this section the appellant could properly be charged and convicted as a principal on evidence showing that he counselled and procured the offence but contended that reading sections 209 (1) and 212 (1) together with section 137 (a) (iii) and (iv) of the Criminal Procedure Code, the Magistrate should have amended the particulars of the charge so as to inform the appellant of the allegation that he had counselled and procured the offering of the articles specified in the charge. He supported his argument by reference to the specimen form of charge set out in item 15 of the Second Schedule to the Code, which is as follows: —

"15. Arson and Accessory Before the Fact

A. B., Arson contrary to section 327 of the Penal Code

C. D., accessory before the fact to same offence.

# Particulars of Offence

A. B., on the $\ldots$ day of $\ldots$ 19 $\ldots$ ; in the province of ....................................

C. D., on the same day, in the province of ............, did counsel or procure the said A. B., to commit the said offence."

Mr. Templeton, Counsel for the Crown, contended that the Magistrate did in fact convict the appellant as a principal as he was entitled to do having regard to section 22 of the Penal Code and, that being so, there was in law no necessity to amend the particulars, however desirable such a course might be in practice.

Our primary duty is, as is well settled, to construe the local Ordinance as it stands, but this does not preclude us from looking at the law and practice in England for such assistance as they may afford us in arriving at a construction consistent with the language of the local Ordinance, especially having regard to section 4 of the Penal Code and section 3 (3) of the Criminal Procedure Code.

By English law, a person who counsels or procures the commission of an offence is treated differently according to the classification of the offence committed: if it be a felony he is an accessory before the fact and is indicted as such. In high treason, every instance of incitement, etc., which in felony would make a man an accessory before the fact, will make him a principal traitor and he must be indicted as such. In misdemeanours there is no such person as an accessory and all those, who, in felony, would be accessories before the fact, in offences. below felony are principals and indictable as such; and this applies as well to indictable misdemeanours as to offences punishable on summary conviction. See Archbold's Criminal Pleading, Evidence and Practice, 32nd edition, page 1472 and page 1482; Benford v. Sims (1898), L. R. 2 Q. B. 641; followed in Du Cross v. Lambourne (1907), L. R. 1 K. B. 40. See also judgment of the Earl of Reading L. C. in Gould & Co. v. Houghton (1921), L. R. 2 K. B. 509, at page 513 et seq. where the ancient law and modern cases on this point are all reviewed.

We may further note that the English law distinguishes in felony between a principal in the first degree, that is to say, the actor or actual perpetrator, and a principal in the second degree, that is, one who is present at the commission of the offence and aids and abets its commission. A principal in the second degree is indicted as such. But in treason and in offences below felony, the indictment may charge all who are present and abet the fact as principals in the first degree, or specially as aiders and abettors (see Archbold cit., pages 1470 and 1471.) So also with offences punishable on summary conviction: Du Cross v. Lambourne (supra).

The Penal Code classifies offences as either felonies or misdemeanours and the offence of which the appellant stands convicted is declared to be a felony. But although the Code perpetuates this ancient English division of crimes, yet it is clear to us that the purpose of section 22 was to sweep away the procedural peculiarities of English law affecting accessories before the fact and principals in the second degree in felonies. The section makes general and applicable to all offences the rule which, in England, is confined to treason and misdemeanours, namely, that all aiders and abettors, all who counsel or procure the commission of the offence, may be charged as principals. The section states explicitly that they are deemed "to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it".

These words seem plain enough and might be thought to conclude the matter, but we must give some consideration to Mr. Nowrojee's argument that the Criminal Procedure Code prescribes in the Second Schedule a particular form of charge for persons accused of counselling and procuring and that the trial Magistrate should have amended the particulars of the charge accordingly as required by section $212(1)$ of the same Code.

Matters of form and procedure are subordinate to and do not override matters of substance: the form for charging an accessory given in item 15 of the Second Schedule would appear to have been copied from the form in use in England (see Archbold cit., page 1477) the draftsman having failed to realize that section 22 of the Penal Code has swept away the distinction between principals and accessories in felony. Nevertheless the form of particulars for counselling and procuring may be used if, as contemplated in section 22 of the Penal Code, a person is charged with counselling or procuring.

It is quite clear from the authorities referred to above that where a person who has counselled or procured or aided or abetted the commission of an offence is charged as a principal, it is sufficient in law to aver as particulars the commission of the actual offence. In *Benford* $v$ . Sims (supra) the respondent, a veterinary surgeon, was charged with having ill-treated a horse by causing it to be worked in an unfit state. He was discharged by the Magistrate who held that he "was charged with the offence committed by the owner and not with the offence disclosed by the facts, namely, knowingly counselling an act of cruelty to be caused". On a case stated to the Queen's Bench, the case was sent back with a direction to convict. The case turned upon the construction of section 5 of the Summary Jurisdiction Act, 1848, which provided: -

"Every person who shall aid, abet, counsel or procure the commission of any offence... punishable on summary conviction, shall be liable to be proceeded against and convicted for the same either together with the principal offender or before or after his conviction and shall be liable on conviction to the same forfeiture and punishment as such principal offender, etc."

$\sqrt{ }$

Ridley, J., held that this section could properly be read as meaning that a person who knowingly counsels such offences to be committed may be treated throughout as the principal offender and he further said (at page 645):-

"I do not think that on the information the person who counsels the committing of an offence must be charged as counselling it, and afterwards be convicted as though he were a principal offender."

Channel, J., agreed and said (page 646): $-$

"It seems to me that the true construction of section 5 is to make anybody who aids, abets, counsels or procures liable to be proceeded against in every respect as if he were a principal offender. I think that if in this case the owner, the driver and the veterinary surgeon had been together charged with committing this offence they might have been convicted, and the respondent would not have been able to escape by saying 'I did not do the thing itself. I only aided and abetted it'. I think that must be so."

In Du Cross v. Lambourne (supra), Du Cross appealed from a conviction at quarter sessions for unlawfully driving his motor car at a speed dangerous to the public. At the hearing at quarter sessions there was a conflict of evidence who was actually driving the car and the quarter sessions, without deciding this point, found that if the appellant was not driving he was aiding and abetting the driver and convicted him of the offence charged. The appeal was dismissed, all the three Judges relying upon Benford v. Sims (supra). Darling, J., said (at page $46$ :-

"Does it affect the validity of the conviction that the appellant was not charged with aiding and abetting but with having driven the car himself? I do not think that it does. He was charged with a misdemeanour." See also Rex v. de Marny (1907) L. R. 1 K. B. 388. All these cases were cited with approval in Gould & Co. v. Houghton (supra).

We are of opinion therefore that in the matter now before us the charge and particulars were correctly laid in law and that there was no necessity for the trial Magistrate to make any amendment. But, while so holding, we wish to guard ourselves against being thought to be ruling that such an amendment ought not in fairness to an accused person to be made if there is any danger of his being deceived or misled by reason of its not being made. If it should appear in any case that the failure to make such an amendment has occasioned prejudice to an accused person or led to a miscarriage of justice then it would be for consideration whether a new trial should not be ordered. But in the present instance no such consideration arises because the evidence of counselling and procuring came from the lips of the appellant himself.

In the result therefore the second ground of appeal also fails and the appeal is dismissed.