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REX v. THEODORE KALLA QUAN

JELR 83487 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]

Coram
Cor. KINGDON, GRAHAM PAUL, C.JJ. AND BAKER, J.

Judgement

Kingdon, C.J:- The Appellant was charged in the Calabar-Aba Division of the High Court sitting at Victoria in the British Cameroons upon fourteen counts, seven for fraudulent false accounting contra- section 438 of the Criminal Code and seven for stealing contra:- section 390 (6) of the Criminal Code, all between the 3rd August, 1942 and the 1st July, 1943, inclusive. He was convicted on all counts and sentenced to terms of imprisonment varying from three years to seven years, all to run concurrently. He now appeals against his convictions on all fourteen counts. Learned Counsel for the Crown has sought to support all the convictions except that up6n count 11 which he admits is bad for duplicity, since it charges more than one, offence of fraudulent false accounting f in the same count. We agree that this count is bad and that the conviction upon it cannot stand. Appellant’s counsel has submitted that count 12 is also bad for duplicity, but we do not agree as to this since the count may refer to only one act of stealing made possible by two acts of false accounting.

Counts numbers 1, 3, 5, 7 and 9 each charge the Appellant with making a false entry in a store-ledger belonging to his employer, the Custodian of Enemy Property, with intent to defraud.

In each case the Appellant admits making the entry, and that it is false, but alleges that it was not made with intent to defraud, but was made innocently on the instructions of the European under whose orders he was working. Some colour is lent to the suggestion that the false entries were made upon the instructions, or at any rate with the knowledge, of the European by the fact that it was the duty of the European to check monthly the entries made in the ledger with the corresponding entries in the Store Issue Vouchers and with the relevant Delivery Notes, and that if he carried out this duty, the false entries must have been immediately apparent. As to this there ate two possibilities, namely :-(a) that the Appellant realized that the European, whether through pressure of work, illness or any other cause, was not performing his duty of checking and so felt safe to carry out a series of frauds of the most bare-faced description, or (b) the European was in fact prime mover in the perpetration of the frauds and the Appellant did m fact act under instructions; but even if (b) IS the truth it is abundantly clear that the Appellant must have known that the false entries were being made with the object of defrauding his employers; there could be no other object. So that, in any case, the Appellant’s defence to these charges of fraudulent false accounting must fall and the convictions be upheld.

Counts numbers 2, 4, 6, 8, 10 and 12 each charge the Appellant, an assistant storekeeper m the employment of the Custodian of Enemy Property, with stealing articles (in the case of counts 2 , 4 and 6 nails .and in the case of counts 8, 10 and 12 matchets) the property of his employer. Each of these Six counts has reference to the same transaction to which the count immediately preceding it numerically has reference.

For instance count 2 charges a theft of 64 lb. of nails, and it is the prosecution case that theft was made possible by the false accounting charged in count 1, and that the false accounting charged in count 1 was perpetrated for the purpose of the theft charged m count 2. Now, though it is in many cases, a legitimate inference that, when goods are stolen as a result of fraudulent false accounting, the person making the false entry is also the thief, it does not necessarily follow that that inference must be drawn in every case, and we think that this is a case where there is an alternative possibility, and we say no more than that it is a possibility, namely that the European in charge was the actual thief and the Appellant merely the cats-paw (though, as already indicated, not an innocent one). Additional weight is added to this possibility by reference to an extraordinary letter written by the European in question, viz. Exhibit EEE, the last sentence of which reads “ It is most necessary that this change should take place at once owing to the pending visits of the auditors and, with your approval, Mr. Bassey will take over to-day, and as soon as the books have been checked he will take stock under my supervision, and any shortages discovered will be the responsibility of Mr. Quan” (the Appellant).

There seems here a clear intention to saddle the Appellant with responsibility for shortages without giving him a fair chance to exculpate himself. Added to this there is the point that stock was not taken either when Appellant took over the store or when he relinquished it.

For these reasons we think it impossible to hold that it was proved beyond doubt that it was Appellant who stole the goods in question, and that the convictions on counts 2, 4, 6, 8, 10 and 12 cannot be allowed to stand.

There remain counts 13 and 14. These relate to a false entry in the Petrol Store Ledger and to a theft of petrol made possible by such false entry. The facts on these two counts differ from the facts in the other cases in that the system of false entry was most ingenious and would not be apparent on the face of the accounts; a careful check and scrutiny is required to discover it. To the charge of fraudulent false accounting the Appellant puts up the same defence as in the other cases, i.e. he admits making the entry and that it is false, but alleges that he made the entry under instructions from the same European. But here there is nothing to support the Appellant’s mere ipse dixit. We think the only possible inference is that the Appellant made the false entry with intent to defraud and further that as regards count 14 it was a legitimate inference drawn by the trial Judge that the Appellant stole petrol and covered up his theft by making the false entry charged under count 13. The convictions under counts f 13 and 14 must therefore be upheld.

In the result the appeal IS allowed against the convictions on counts 2, 4, 6, 8, 10, 11 and 12; the convictions and sentences on those counts are quashed and it is directed that in respect of each of these counts a judgment and verdict of acquittal be entered; .- the appeal against the convictions on counts 1, 3, 5, 7, 9, 13 and 14 is dismissed and the convictions on those counts are upheld. 2 The sentences passed upon the counts upon which the convictions are upheld are as follows :- Count 1 ...three years Count 3 ...three years Count 5 ...three years Count 7 ...seven years To run concurrently. Count 9 ...five years Count 13 ...three years Count 14 ...three years So that no practical benefit accrues to the Appellant as the result of this appeal against conviction; he has not filed an appeal against sentence but ground 5 of the amended grounds of appeal indicates a desire to appeal against sentence and if he now applies for extension of time within which to apply for leave to appeal against sentence we will consider his application.

Anwan for Appellant applies for extension of time within which to appeal against sentence and for leave to appeal against sentence. Hay does not oppose. Both applications are granted and the Court will hear the appeal forthwith. ANWAN, I ask Court having regard to all the circumstances to say that there is a possibility that Appellant made the false entries with the mere object of., trying to keep his job. There is no proof that he derived any actual benefit. I ask for leniency. He is a young man and a first offender. HAY, I do not oppose a reduction. judge took into consideration large amount stolen. There was also lax supervision. I ask for sentence to be a deterrent. Anwan, nothing to add.

Judgment.

Having regard to the considerations and possibilities which we have set out in our judgment in the Appeal against conviction, we are of opinion that the sentences of seven years I.H.L. and five years I.H.L. passed upon counts 7 and 9 respectively are excessive and that the Appellant will be adequately punished by being sent to prison with hard labour for three years.

The appeal against sentence is accordingly allowed in respect of Counts 7 and 9. The sentences passed at the trial upon these counts are quashed, and in substitution therefore the Appellant is sentenced to three years I.H.L. on each of counts 7 and 9, the sentences to run concurrently with each other and with the sentences passed by the trial Court upon counts 1, 3, 5, 13 and 14.

The appeal against the sentences passed upon counts 1, 3, 5, 13 and, 14 is dismissed.

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