(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. WILLIAM TADROS METTA AND OTHERS

AC-CP-267-1970

Principles

Criminal Law—Receiving of stolen property—Penal Code, s. 353—Receiving stolen property belonging to different owners or forming subject-matter of distinct - thefts constitutes one offence, unless received at different times

  Criminal Law—Assisting in concealment of stolen property—Penal Code, S. 356— Must first prove that property is stolen property within the definition of Penal Code, S. 352

  Criminal Law—Receiving of stolen property—Penal Code, s. 352—Goods obtained by cheating are not within the definition of this section

(i) Receiving of stolen property belonging to different owners or forming the subject-matter of distinct thefts constitutes one offence under Penal Code, S. 353; but the matter is different when the stolen property is received at different times. Each time such property is received constitutes a separate
offence under Penal Code, s. 353.

(ii) To convict under Penal Code, s. 356, it is necessary first to prove that the property in question is stolen property as defined within the Penal Code,
S. 352.

0 biter dictum: Property obtained by cheating is not within the definition of stolen property under Penal Code, S. 352.

Advocates: Grais Asaad …………………….         for accused Nos. 1 and 2

Mubarak El Medani …………………………………….. for accused No. 3

Ali Mohamed Shamam …………………………………… for accused No. 4

Judgment

S. M. A. Attig J. August 15, 1970:—These are the proceedings of a Major Court held at Port Sudan, under the presidency of Sayed Mohamed El Khatim Abu Bakr, a Magistrate of the first class. The court found:

A1 & 2: Guilty under Penal Code, S. 353, and sentenced each to three years’ imprisonment.

A3 & 4: Guilty under Penal Code, s. 356, and sentenced each to two years’ imprisonment.

On June 25, 1968, an information was received by the police to the effect that A1 was in possession of stolen property. His shop was searched and the goods, the subject-matter of this case, were found together with other goods in respect of which a separate information was lodged.

It is proved that the goods, the subject-matter of this case, were disembarked from the steamer Ly1ia Port Sudan Quays—and transported to A1’s shop on May 2, 1968.

A1: The learned counsel for this accused contends that it was wrong to make these goods the subject-matter of a separate information. He was found in possession of them on the same day he was found in possession of the other goods.

I cannot agree to this contention. It is proved that the goods in question belonged to different owners and were the subject-matters of distinct offences. It is true that a person found in possession of stolen property belonging to different owners or forming the subject-matter of distinct thefts cannot be convicted of separate offences in respect of each owner or theft. But the matter is different where there is evidence to prove that he received them at different times. Each time he receives stolen property, he commits a separate offence. So it is the date of receiving or retaining the property, and not the date of finding to be in possession thereof, that matters.

He further contends that the goods were obtained by cheating and being so are not within the definition of the Penal Code, S. 352. I

entirely agree with the contention that the goods obtained by cheating are not within the definition of stolen property. But these goods were not obtained by cheating. Even if fraud was practised, it was at a later stage to facilitate the passing of them out of the customs enclosure and constitutes a separate offence. At any rate there is no evidence to prove that the goods were allowed to be transported out of the enclosure by cheating.

It remains to consider whether A1 received these goods knowing or having reason to believe that they were stolen property.

It is the duty of the prosecution to prove that accused received the goods in question knowing or having reason to believe that the goods were stolen property. Knowing or having reason to believe is stronger than suspecting and involves the necessity of showing that the circum stances were such that a reasonable man must have felt convinced in his mind that the property with which he was dealing must be stolen property. But he is not obliged to make full inquiry as to the origin of the goods or the manner in which the came into the possession of the seller.

A1 stated that he purchased these goods from A2 who told him that he had purchased them from an auction sale held by the customs authorities. Though there was no evidence to corroborate this statement, yet it must be taken into consideration. It is proved that A2 delivered the goods openly at the shop of A1 and had on a previous occasion delivered goods which he alleged to be purchased from such an auction sale. Moreover, it is proved that the goods purchased from such an auction sale may be resold for double or thrice the purchase price.

The market value of the goods in question is assessed to be £S.513.606m/ms. while A1 confessed that he purchased it at £S.334.380m/ms. In the normal circumstances the difference is so great as to raise the inference that the goods were stolen property. But the question is different when it is said to have been purchased from an auction sale. As I have stated before, it is proved that an article may be purchased from an auction sale far below the actual price or at a moderate price. Sometimes the purchase price may be less than one quarter of the market value. This is usually the case where the bidders conspire or form a partnership and one of them bids on their behalf.

In the circumstances of this case, I cannot agree to the finding that this accused received the goods found in his possession knowing or having reason to believe that they were stolen property.

A2: The case against this accused is proved beyond reasonable doubt and I see no reason why I should disturb the findings of the court below.

A3: The case against this accused is based upon the statement of P.W.2 and his identifying him. Before dealing with the evidence against him I must express my full concurrence with the contention of the learned advocate for this accused that no person could be convicted under the Penal Code, s. 356, unless possession of the property in question has been transferred by theft, extortion or robbery; or is property which has been criminally misappropriated, or in respect of which criminal breach of trust has been committed. It is necessary that one of the above offences should have been committed in respect of the goods in question before the accused person could be charged to have assisted in concealing, disposing or making away with them. In other words assistance should be in respect of stolen property.

It is contended that goods disembarked from the steamer are not in the possession of any definite person and consequently could not be the subject-matter of theft. This contention is wrong, because the possession of such goods is vested in the Quays Authorities until it is transferred to the Railways Authorities.

It appears from the evidence of P.W.4 that the identification parade was not properly carried out, and that the accused was pointed out to the P.W.2—see Criminal Court Circular No. 40.

Moreover, P.W.2 stated that he saw this accused talking to A2 and another but did not hear what they were talking about. It was there after that the goods were loaded in the car. The goods were not moved till then and consequently he could not be charged under the Penal Code, S. 356.

If it could be proved that this accused aided or facilitated by an act or illegal omission the taking of the goods in question, then he could be safely charged for abetment. Again if the taking was in furtherance of their common intention then the proper charge is under the Penal Code, s. 78, read in conjunction with the offence committed.

Accordingly, I substitute a finding of not guilty for the finding of guilty under Penal Code, s. 356.

A4: The evidence against this accused is wholly based on the defective identification parade, and the shaky statement of the identifier. It is weak evidence and could not be the foundation of a conviction against him. So I substitute also a finding of not guilty in respect of this accused.