[1942] EACA 62

## APPELLATE CRIMINAL

# BEFORE SIR JOSEPH SHERIDAN, C. J., AND BARTLEY, J.

## REX, Respondent

$\nu$ .

## KARAMSHI RANCHHOD, Appellant

# Criminal Appeal No. 177 of 1941

Criminal Law—Principles on which Court acts in appeal on facts.

The appeal, which was against a conviction for unlawfully dealing in unwrought precious metals contrary to section 3 (3) of the Trading in Unwrought Precious Metals Ordinance, 1933, was purely on facts. The principles on which a court acts in considering an appeal on facts as summarized by Lord Atkin in Powell v. Streatham Manor Nursing Home, 1935 A. C. 255 quoted.

Held (9-1-42).—That it had not been shown that the trial magistrate misapprehended the evidence or arrived at a conclusion not supported by the evidence and that there was nothing unreasonable in the trial magistrate's acceptance of the evidence adduced for the prosecution.

The appeal was dismissed.

Gautama for the Appellant.

Spurling, Crown Counsel, for the Crown.

JUDGMENT.—There is nothing in this appeal to warrant our departing from the principles on which this Court acts in considering an appeal on facts. These principles are summarized by Lord Atkin in his judgment in *Powell* $v$ . Streatham Manor Nursing Home, 1935, A. C. 255, as follows:-

"The Court has to rehear, in other words has the same right to come to decisions on the issues of fact as well as law as the trial judge. But the Court is still a Court of Appeal, and in exercising its function is subject to the inevitable qualifications of that position. It must recognize the onus upon the appellant to satisfy it that the decision below is wrong: it must recognize the essential advantage of the trial judge in seeing the witnesses and watching their demeanour. In cases which turn on the conflicting testimony of witnesses and the belief to be reposed in them an appellate court can never recapture the initial advantage of the judge who saw and believed."

It has not been shown to us that the learned Magistrate misapprehended the evidence or arrived at a conclusion not supported by the evidence. As most frequently happens in cases turning on questions of fact, the Magistrate had to choose between the evidence adduced for the prosecution and that adduced for the defence and he preferred to accept the former. There was nothing unreasonable in his doing so. He appreciated that the prosecution case had its origin in a trap set by the police to catch a person suspected of having illicit dealings in gold. The trap succeeded and there is evidence to show that when the European police officer who designed the trap entered the accused's shop the accused was found with the marked piece of gold clasped in his right hand while the agent provocateur to whom the gold had been given for the trap was found to have Sh. 30 (three Sh. 10 notes) in the outside breast pocket of his coat which he said he had received from the accused in payment for that gold. The importance of these two facts as evidencing a transaction of buying and selling is supported. by the evidence of the European police officer and a native corporal who a. short time previously, a matter of minutes, made a thorough search of the agent provocateur and his companion making certain that they had not concealed on them any money and by the further fact that they were kept under observation from the time they left the Police Station, the place of search, until their arrival at the accused's shop. There does not appear to have been any misapprehension of the evidence by the Magistrate of such a kind as would throw doubt upon the propriety of the conviction.

We have been addressed on the severity of the sentence. It is undoubtedly a severe sentence being the maximum for a first offence. Even so the difficulties in discovering offences of the kind are such that we do not propose to interfere with it. True the accused is a first offender but it has to be borne in mind that were he a previously convicted offender he would be liable to be imprisoned for five years.

The appeal is dismissed.