[1945] EACA 22

# COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR JOHN GRAY, C. J. (Zanzibar) and MANNING, J. (Uganda)

### REX, Respondent (Original Prosecutor)

v

JAMAL DIN, Appellant (Original Accused)

#### Criminal Appeal No. 61 of 1945

(Appeal from decision of H. M. High Court of Tanganyika)

Criminal Law—Unlawful possession of diamond—The Diamond Industry Protection Ordinance, Section 3 (1) (Tanganyika Cap. 103)—Burden of proof— Severity of sentence—Bail money.

The appellant was convicted on a charge of being in possession of diamonds contrary to Section 3 (1) of the Diamond Industry Protection Ordinance (Tanganyika Cap. 103) and sentenced to serve imprisonment for a term of five years with hard labour and to pay a fine of Sh. 10,000. The appellant was a first offender and the value of the diamonds was Sh. 760. The learned trial Judge also made the following order: "The bail money is ordered to be held until it is proved to me on application at Dar es Salaam that it is not the property of the accused or until he pays the fine".

The appellant appealed both against the conviction and sentence. One of the grounds of appeal was that the evidence failed to establish that the diamonds found in the possession of the accused came within the definition of "diamond" in the Ordinance, which is "any rough or uncut diamond".

Held (1-5-45).—(1) By section 18 of the Ordinance it is provided that when the question in issue is whether any article is or is not a diamond the burden of proof that such article is not a diamond is on the person who alleges that it is not a diamond and in the absence of such proof such article is deemed to be a diamond.

(2) Although the sentence is very severe yet it is not excessive in view of the gravity of the offence and the necessity for an exemplary punishment.

(3) The order regarding the withholding of the cash bail was wrong. When an accused<br>person released on cash bail to appear in Court for trial does so appear he is entitled to have his bail money returned to him.

Rex v. Kinumbi s/o Thuo 20 K. L. R. 134 approved.

Appeal dismissed.

#### Parekhii for the Appellant.

Dreschfield, Crown Counsel (Uganda), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The evidence in this case supports the conviction. Counsel for the appellant submitted that the evidence failed to establish that the diamonds found in the accused's possession came within the definition of "diamond" in the Diamond Industry Protection<br>Ordinance which is "diamond means any rough or uncut diamond". This submission is answered sufficiently by the provisions of section 18 of the Ordinance. which enacts "If for any purpose under this Ordinance the question in issue as to whether any article is or is not a diamond, the burden of proof that such article is not a diamond shall be on the person who alleges that it is not a diamond, and, in the absence of such proof such article shall be deemed to be a diamond". The accused, on being found guilty, was sentenced to a fine of Sh. 10,000 to be collected by distress and to serve five years imprisonment with hard labour. Nobody would question that this is a very severe sentence. The result of inquiry

which we have made from the High Court of Tanganyika is that there have been two previous prosecutions for a similar offence. In the first of those cases the accused, who pleaded guilty, was suffering from tuberculosis and was, to quote the learned trial Judge, "convicted as a result of a police trap, which I am very far from certain was justified. Two attempts had to be made before he would buy and he is hardly likely to be the man, or one of the men who have now for over a year been in the habit of buying the large number of stones which. according to Dr. Williamson, have been regularly stolen from his mine." The value of the diamonds in that case was stated to be Sh. 1,700. The accused was sentenced to pay a fine of Sh. 1,000. In the second case the value of the diamonds was stated to be Sh. 2,000 and the accused also pleaded guilty. The accused was a native headman at a diamond mine. The following matters were put before the learned trial Judge after conviction and before sentence: "Penalty provided for this offence is fixed by the legislature at a very high standard. Offence easy to commit and difficult to detect. In spite of all precautions at the mines there is a terrific leakage of diamonds and the owners are at their wits' end to stop it. In spite of the employees being very well paid and fed they continue to steal, and owing to wartime conditions it is difficult, for example, to make proper barbed wire enclosures round the large diamondiferous area. These diamonds are used for industrial purposes in the war effort and are absolutely essential for many of the processes of munition-making. The whole output of the industry is being taken by H. M. Government for war purposes. I ask for an exemplary sentence to discourage this illicit traffic in diamonds".

In passing sentence the learned Judge said: "The reasons advanced by the prosecutor for asking the Court to give the accused an exemplary sentence seem to me very cogent. Though the accused has no previous criminal record, as far as I know, I regard the nature of this offence as being so serious that I consider the fact of his being a first offender is irrelevant, I sentence the accused to serve four years imprisonment with hard labour".

In the present case the value of the diamonds is stated to be Sh. 760, and though the accused, as in the other two cases, is a first offender, the necessity for an exemplary sentence still exists for the reasons stated in the second case. After consideration, we do not propose to interfere with the sentence. The fine is a very heavy one and in considering whether it is excessive it is as necessary to have regard to the pecuniary circumstances of the accused as to the character and magnitude of the offence. We have already set out our views as to the gravity of the offence and the necessity for an exemplary punishment. As to the pecuniary circumstances of the accused there is his own evidence that he is a butcher in Shinyanga and also a cattle dealer in large quantities sending cattle to Dar es Salaam. In all the circumstances of the case we have decided to dismiss the appeal against conviction and sentence. After passing sentence, the learned trial Judge made the following order: "The bail money is ordered to be held until it is proved to me on application at Dar es Salaam that it is not the property of the accused or until he pays the fine". No authority for this unusual order is quoted, and we know of none. In the case of Rex v. Kinumbi s/o Thuo, Kenya Cr. Rev. Case No. 267/43, reported in circular form in 20 K. L. R. p. 134, with regard to a question of money which was deposited as cash bail on behalf of an accused person, it was held: "The condition in respect of which the cash bail was deposited was the accused's undertaking to appear in Court for trial and the accused having complied with that condition the cash bail should have been returned to the accused". Proceedings for the realization of the fine must be taken in the manner prescribed by the Criminal Procedure Code. The order of the learned Judge is set aside and the bail money, if deposited, is directed to be returned to whomsoever deposited it.