[1938] EACA 161

### CRIMINAL CONFIRMATION

#### Before SIR JOSEPH SHERIDAN, C. J. and THACKER, J.

#### REX, Prosecutor

# OMOYO s/o ORORI, Accused

## Confirmation Case No. 408 of 1939

Penal Code, section 296—"Having in his possession or conveying" property suspected of being stolen.

Held (4-7-39).—That section 296 of the Penal Code has no application to the case of a person having in his possession in a building property suspected of having been stolen or unlawfully obtained. Its application is restricted of the position of animality obtained. As approaches is restricted<br>to cases where the possession is *ejusdem generis* with conveying. (Rex v.<br>Huku bin Katega and Others (3 T. T. L. R. 4) followed.)

JUDGMENT.—For the reasons set out in Rex v. Huku bin Katega and Others (1931-34) 3 T. T. L. R. 4, the decision in which has been followed in Rex v. M'Itirithia s/o M'Ithibuto, 16 K. L. R. 59, the conviction and sentence in this case must be quashed, the accused acquitted and the property the subject of the charge restored to him.

As the meaning of section 296 has been on more than one occasion misunderstood we think it desirable to set out the judgment in Huku's case in full: $-$

"The decision of this case turns on the interpretation to be placed upon section 296 of the Penal Code. This section made its appearance with the introduction of the new Code; it in other words creates a new offence. The section reads:-

> 'Any person who shall be brought before a court charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who shall not give an account to the satisfaction of such court of how he came by the same, is guilty of a misdemeanour'.

Prior to the enactment of the Code it was no offence for a person to have in his possession or convey property suspected of having been stolen even though he were unable to give an explanation as to how he came to have it. A close study of the section convinces us that if the mischief aimed at is the possession in any place or in any circumstances of property suspected of having been stolen the consequences in certain cases may be drastic. For instance, a native may be found to be owner of a house and suspicions are aroused as to how a man of his station in life came to possess such a house. An inquiry is set on foot and the result is to reveal that at no time has his position suggested that he could have been possessed of sufficient means to purchase the property. He is arrested and charged under section 296 and, failing to satisfy the court that he ever had the means to purchase the house, is convicted.

One might also envisage the case of a person being brought before the court and asked to explain the size of his bank balance under threat of conviction if the explanation is unsatisfactory.

$\mathbf{v}$ .

If this be the proper interpretation of the section there is then placed in the hands of the police a power which may well result in persons being persecuted rather than prosecuted. The section is part of a penal statute and we must be certain that it enacts unequivocally that a person found in any place at any time in any circumstances in possession of property suspected to have been stolen and which he fails satisfactorily to account for, commits an offence before we can allow the conviction in this case to stand.

The section is modelled upon section 24 of 2 and 3 Vic. Cap. 71, which reads as follows: $-$

'Every person who shall be brought before any of the said magistrates charged with having in his possession or conveying in any manner any thing which may reasonably be suspected of being stolen or unlawfully obtained, and who shall not give an account to the satisfaction of such magistrate how he came by the same, shall be deemed guilty of a misdemeanour, and shall be liable to a penalty of not more than five pounds, or, in the discretion of the magistrate, may be imprisoned in any gaol or house of correction within the metropolitan police district, with or without hard labour, for any time not exceeding two calendar months.'

The similiarity of the two sections is apparent. The meaning of section 24 of 2 and 3 Vic. Cap. 71 was considered in the case of Hadley v. Perks (L. R. 1 Q. B. Cases 1865-66, p. 444) and the words 'having in his possession or conveying in any manner' were decided by the learned judges to be restricted to possession in the streets and to have no application to possession in a house.

In arriving at that construction the learned judges were assisted by the fact that the Act was to be read together with 2 and 3 Vic. Cap. 47, section 66, of which as summarized by $\frac{1}{2}$ Shee J. in the case cited empowered a police officer finding a person: $-$

'In a public street with property upon him under such circumstances that there is good reason for suspecting that the property has been improperly come by-stolen, and that if he were not apprehended at once he might get out of the way and evade detection altogether. Power is therefore given to stop such a person without any proof or knowledge on the part of the constable that the property is stolen, but merely on suspicion.'

Upon the arrest of a person under section $66$ of 2 and 3 Vic. Cap. 47 and on his being brought before a magistrate unless it could be shown that he was in possession of stolen property with guilty knowledge there was no option but to discharge him. Not until the enactment of section 24 of 2 and 3 Vic. Cap. 71 was it an offence to have or convey property for the possession of which the person arrested failed to give a satisfactory account and it was held that the offence was limited to such acts as the police could arrest for under section 66 of 2 and 3 Vic. Cap. 47. notwithstanding that the words used in the section of the later Act were 'having in possession or conveying' as distinct from the words 'having or conveying' in the sense of the previous Act.

In the case before us it has been argued for the Crown that the words 'having in possession or conveying' have a wider meaning for the reason that we have nothing corresponding to section 66 of 2 and 3 Vic. Cap. 47 in our laws. But then where was the necessity for the use of the word 'conveying' if this was the intention? Mr. Branigan conceded that it was superfluous. It is, of course, superfluous unless the meaning of the whole expression 'having in his possession or conveying' is to be restricted. We must assume that the legislature included the word 'conveying' for some purpose and not that the draftsman blindly copied the section from the English Act. It seems to us that the presence of the word 'conveying' in the section implies that the mischief aimed at on a fair construction is similar to that dealt with by the English Act. The offence being a new creation, the section being modelled on the section of an English Act which has been interpreted in a restricted fashion (though we appreciate that the learned judges in Hadley v. Perks had the assistance of the previous statute in construing the section) the far-reaching consequences involving inquiries of an inquisitorial nature which a wide interpretation of the section might lead to in particular cases; the employment of the word 'conveying', an unnecessary expression if the intention is that for which the Crown contends and the implication that the use of that word is destructive of the possession anywhere and in any circumstances being an offence—all these considerations lead us to the conclusion that the construction contended for cannot be supported. Should the legislature desire to make the possession of property anywhere or in any circumstances suspected of having been stolen on a failure to give a satisfactory account thereof an offence then the intention must be expressed in unequivocal language. As the section stands we are not prepared to extend the meaning to a possession not suggestive of something being conveyed such, for instance, as possession in a house.

As the possession in the case before us was if not in a house or workshop at any rate not eiusdem generis with conveying the conviction cannot stand."