[1935] EACA 76

## COURT OF APPEAL FOR EASTERN AFRICA.

## Before ABRAHAMS, C. J. (Tanganyika), LAW, C. J. (Zanzibar) and WEBB, J. (Kenya).

REX, Respondent (Original Respondent)

MOTIBHAI MANGALBHAI PATEL AND ANOTHER.

Appellants (Original Accused).

Criminal Appeal 184/1934.

Criminal Law-Conspiracy to steal-Penal Code (Uganda) sections 232 and 337-Agreement to do an unlawful act inferred from evidence of acts not in themselves unlawful.

The appellants were convicted of the offence of conspiracy to steal certain goods from packages held in the Customs Warehouse, Kampala.

Held (13-2-35).-That an agreement by two or more persons to do an unlawful act may be inferred from evidence of acts, not in themselves unlawful, done by them in pursuance of an apparent criminal

$\overline{\phantom{a}}$ purpose.

(The following statement of facts is taken from the judg $ment$ : —

The allegations of the Crown were that the appellants ran a business called the Uganda Motor Accessories Mart, the headquarters of which were in Kampala and which had ten branches in various parts of Uganda and Tanganyika, importing for the purposes of this business very large quantities of motor spares and accessories.

In February, 1934, it was discovered that certain cases in one of the Customs warehouses in Kampala had been tampered with. The whole of the cases then lying in the warehouse and belonging to the first appellant were examined and it was discovered that in nearly every instance a very large proportion of their invoice contents had been removed. In some instances certain motor parts which had not been invoiced to these particular cases had been placed in them.

The number of cases thus tampered with amounted to They fall into three groups: they were all conabout $150.$ signed to the U. M. A. M., some through Barclavs Bank, and some through a firm called Changa Ram & Co. The Customs had a lien on these goods for their charges, and so had a special property in them. Many of these cases had been lying in the Customs for over five years, and it was the duty of the Customs

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officials, under section 92 (b) of the Customs Ordinance, to examine all goods when re-warehousing, a procedure which was required after they had been in the Customs for two years.

The total quantity of deficiencies from these cases reaches the astounding weight of a little over eight tons.

The Crown alleged the modus operandi of the appellants was as follows:-When the goods arrived at Kampala Station the first appellant would receive an advice note from Barclays Bank or Changa Ram & Co., or where they were consigned to the U. M. A. M. direct, he would take his own advice note. The second appellant would then go to the Railway Station and receive formal delivery of the goods. The Crown points out, and supports it by documentary evidence, that in the vast majority of instances these goods were taken possession of by the appellants and were not taken to the Customs warehouse immediately but remained in the appellants' control for varying periods of one to five days. This the appellants were enabled to accomplish through a complete lack of co-ordination between the Railway Administration and the Customs Department in Kampala. $\ldots$

It was then discovered by examination of the books of the first appellant, who went bankrupt almost immediately these abstractions had been discovered, that he had invoiced out large quantities of goods corresponding to the goods in the cases which had been tampered with...

It was further given in evidence, and was not denied by the appellants, that no proper books of the U. M. A. M. were kept and it was impossible to ascertain from such documents as were found in possession of the appellants what was the exact origin of those goods which were invoiced out to the first appellant's various branches and which the Crown maintains were abstracted from the cases which were found to have been tampered with.

Another circumstance which has been said to redound to the disadvantage of the first appellant is that when his cases were opened in his presence in the Customs warehouse and discovered to have been half emptied he indicated no sort of interest whatever.

To summarise the case for the Crown: it is submitted that the evidence goes to show that the appellants got possession from the Railway of these cases that were tampered with, detained them for no innocent reason for varying periods, took them to the Customs warehouse; managed to elude the observation of the Bond Clerk who received them and who might, had he been more vigilant, have observed the condition of the cases externally; managed similarly to clude the observation of

those Customs officers who re-warehoused them after two years; and sent out to their various branches the goods which had been abstracted from the cases aforesaid. It is submitted that it would have been quite impossible for the goods to have been taken away from the Customs; and the various circumstances which have been mentioned above are individually and cumulatively in all reason consistent with nothing but guilt on the part of the appellants.

A systematic series of thefts of a highly detailed description, it is contended, were committed by the two appellants, and this amount to a conspiracy to carry out those thefts....

Now it seems to us convenient to approach the question of proof in this way. Admittedly the contents of the pillaged cases disappeared either when they were in the Customs or before they reached the custody of the Customs. Now is it reasonably possible for them to have been removed while they were in the Customs warehouse? Evidence was given by the Crown, and it was never seriously challenged at the trial nor has it been seriously challenged now, that it would have been in the highest degree difficult to take articles of such a description and amounting to such an enormous weight out of the warehouses. To use the words of Counsel for the Crown in this Appeal it would have required a highly organized gang of thieves: for to remove eight tons of motor accessories would have been a colossal undertaking. The defence in the Court below appears to have made the faintest suggestion that the goods disappeared from the Customs, and neither in crossexamination nor in examination-in-chief did they endeavour to show that the Customs warehouses could be broken into, much less could have been raided to this tremendous extent. It was said by the Crown there was only one case on record in Kampala of a theft in the Customs, and that was of a very petty nature and the watchman was concerned in it. Assuming, however, for a moment that it would have been practicable to have carried out a felonious undertaking on such a gigantic scale, it is certainly a peculiar circumstance that the thieves restricted their operations to motor parts, when the warehouses were, in words that were used in the lower Court, "chock-ablock" with goods. And it is also a peculiar circumstance that if they had wanted motor parts they should have raided those of the appellants and none others. It is another peculiar circumstance that they should have raided three warehouses instead of restricting their operations to one; and finally, it is an equally peculiar circumstance that the only cases of the U. M. A. M. which were pillaged were those which were never removed from the Customs when it was given in evidence that the appellants took away from time to time a considerable number of other cases. This matter must be looked at from a common-sense basis, and we are of the opinion that the only

reasonable conclusion to which a Court could possibly have come was that these cases were never feloniously opened in the Customs by anyone...

Figgis, $K. C.,$ for the appellants:—

"Conspiracy is a matter of inference from certain criminal acts of the parties accused done in pursuance of an apparent criminal purpose in common between them"; R. v. Brissac (102 E. R. 795). Here all the acts of the accused are capable of an innocent interpretation. To justify a conviction upon an inference from acts lawful in themselves, it must be so strong as to be consistent with nothing else than guilt. He referred to Mulcahy v. The Queen (3 E. & I. App. 317); Quinn v. Leatham (1901 A. C. 495); R. v. Mcyrick (21 Cr. App. R. 94); R. v. Duffield (5 $\text{Cox } 404$ ).

Mathew for the Crown, referred to R. v. Parsons (96 E. R. 222); R. v. Murphy (8 C. & P. 206).

JUDGMENT.—. . . It now remains to consider the application to the facts of the law relating to conspiracy. A conspiracy, in the words of MR. JUSTICE WILLES in Mulcahy v. The Queen, (3 E. & I. App. 317) consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. And using the words of Lord Chelmsford in the same case at page 328 of that volume: "A conspiracy cannot exist without the consent of two or more persons, and their agreement is an act in advancement of the intention which each of them has conceived in his mind". If this were not so it is obvious that every offence committed generally by two or more persons would be a conspiracy.

Counsel for the Appellants has cited to us the words of GROSE, J. in R. v. Brissac (102 E. R. 795): "Conspiracy is a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them". Counsel does not argue that this constitutes an exhaustive definition of conspiracy, but he argues from that definition that when the acts upon which the Crown relies to prove a conspiracy to commit an unlawful act are not unlawful in themselves it is necessary that the inferences drawn from these not unlawful acts must be irresistible to lead to the conclusion that the unlawful act eventually committed was committed in pursuance of an agreement to commit it.

We think that the trial Judge was perfectly right in coming to the conclusion which he did, and we think that no other conclusion was reasonably possible in view of the evidence.