Skipper v Reginam [1979] FJCA 6; Criminal Appeal No 70 of 1978 (29 March 1979)

IN THE FIJI COURT OF APPEAL
APPELLATE JURISDICTION

Criminal Appeal No. 70 of 1978

CHRISTINA DOREEN SKIPPER
Appellant

v.

REGINAM
Respondent

M.S. Sahu Khan for Appellant
A. Gates for Respondent

Date of Hearings: 20 March 1979
Delivery of Judgment: 29/3/79

JUDGMENT OF THE COURT

Henry JA.

This is an appeal from the Supreme Court sitting at Lautoka in its appellate jurisdiction from the Magistrate's Court in respect of two convictions entered against appellant. By section 22 of the Court of Appeal Ordinance (Cap.8) the appeal is limited to grounds which involve a question of law only but not including severity of sentence. The two charges upon which appellant convicted were:

"THIRD COUNT

STATEMENT OF COURT

Importing Indian Hemp contrary to Section 5 and Section 39(2) (as amended) of the Dangerous Drugs Ordinance Cap.95.

PARTICULARS OF OFFENCE

Christina Doreen Skipper, on the 20th day of July, 1978 at Nadi Airport in the Western Division, imported Indian Hemp.

FOURTH COUNT

STATEMENT OF OFFENCE

Importing Heroin, contrary to Section 14 and Section 39(2) (as amended) of the Dangerous Drugs Ordinance; Cap.95.

PARTICULARS OF OFFENCE

Christina Doreen Skipper, on the 20th day of July, 1978 at Nadi Airport in the Western Division imported Heroin."

In the Magistrate's Court appellant was sentenced to 3 years' imprisonment on the third count and to 6 years' imprisonment on the fourth count such terms to be served concurrently. Appellant appealed to the Supreme Court against both convictions and sentences. Upon appeal the convictions were affirmed and the appeals were dismissed. It was common ground that the maximum sentence which the Magistrate's Court could impose on Count 4 was five years and that the Supreme Court on appeal was similarly limited. The formal order in the Supreme Court was that both sentences be set aside and in substitution appellant was sentenced to throe years' imprisonment on Count 3 and to five years' imprisonment consecutively on Count 4 giving a total of eight years in all. This resulted in the total terms of imprisonment being enhanced by two years.

Two suitcases, which accompanied appellant on a flight from Singapore to Nadi, were examined by customs officers in circumstances which will be considered in some detail later. They were found to contain nothing but a powdery substance weighing 4.4 lbs. and vegetable matter weighing 44 lbs. In both Courts below the powdery substance was found to be heroin and the vegetable matter was found to be Indian hemp. The charges as laid were accordingly found to be proved.

Appellant arrived at Nadi International Airport at 5.45 p.m. She was travelling alone. Whilst appellant was waiting to claim her baggage the attention of the officer was, for reasons observed by him, attracted and his suspicions were immediately aroused. Appellant, in seeking her luggage, even went into the restricted area. Her general demeanour, behaviour and reactions were described by the officer. She was kept under observation. Appellant went to the Green Channel which is used by passengers who have nothing to declare or who have no doubts about any item in his or her possession. The officer on duty at the channel said:

"I pointed the baggage notice to her and defendant told me she had read that notice. She told me she didn't have the keys to the bags. She told me the keys were with her husband who had gone to Delhi to attend a seminar. She said her husband was going to come to Fiji within 2 days times. I checked her passport and gave it to P.W.1. The bags did not have anything prohibited matters.

I asked the defendant the content of the two suitcases and she told me only two personal effects and clothing and nothing else. She added she wanted to see the Head man in charge."

The investigation was then taken up by the Chief Customs Officer. His evidence, which is confirmed by the officer at the Green Channel, is:

"She told me that the keys was taken away by her husband and added she couldn't see any reason why those, baggages were to be opened if they were already looked into by the Security in Singapore. She pointed out the stickers the Security had put on. She said that the bags contained used clothing. She didn't say at that time to whom it belonged to. I then told her that Security checking in Singapore has nothing to do with Fiji Customs Requirements. All baggages had to be opened and examined and then released. I ask her if Security Officer in Singapore had checked the bags then she must have the keys to the bags. She replied that her husband had himself checked in at same time and he proceeded to Delhi und she came to Fiji. She added that her husband was going to join her in a couple of days time."

Appellant requested the Chief Officer to keep the suitcases in bond which he agreed to do. He examined appellant's passport for the purpose of finding details of appellant and the places which she had recently visited. Appellant told the Chief Officer that she was a Pharmacist. She gave a similar occupation in the Fiji immigration card. The passport disclosed that it was issued in New Zealand on June 1, 1978 in the name of Christina Doreen Skipper and that the holder arrived at Singapore on July 2 and departed on July 6 on which date an arrival entry is made for Bangkok. The departure entry from Bangkok is July 16 and the next arrival entry is at Singapore on the same date. The departure date from Singapore is July 19 and this was for the flight to Nadi. The Chief Officer took possession of the passport under some protest from appellant.

Appellant said she intended to stay at the Nadi Travelodge Hotel. The Fiji immigration card which she filled in and presented gave her Fiji address at the Mocambo Hotel. Before leaving for her hotel appellant asked for name and telephone number of Chief Officer. This information was given to her. The next morning this officer received a telephone call from Auckland, New Zealand. The caller was a male purporting to be appellant's husband. It is clear that overnight appellant had communicated by telephone with someone in Auckland who had been given the name and number of the customs officer. That morning the interview with the Chief Officer was resumed. In evidence the Officer said:

"When I told defendant about conversation with her husband, she said 'Yes, Mr. Singh I wish to clear them and take them to Tonga.' She told me she had got in touch with her husband in the morning. On the previous night defendant said that her husband had gone to Delhi. I asked her about this and she said her husband didn't go to Delhi but went to New Zealand. At that stage she said the bags belonged to her husband."

As a result of the use of the telephone to Auckland appellant had, at this stage, embarked on a now method designed to avoid having the suitcases examined. She now desired to "clear" the suitcases and take them to Tonga to meet someone there. She had during the interval purchased a ticket to Tonga for a flight leaving Nadi on July 23. Appellant did not give evidence but elected to make a statement from the dock. She said-

"The next morning 21.7.78 my husband rang me and told me that Mr. Singh would release bags if I would go along to his office. But as his business commitment would detain him he asked me to go to Tonga where he would meet me on 24.7.78. I then went to Mr. Singh office at 11 a.m. where he spoke to me for a time. With two fellow officers they took no to the Bond Office where Mr. Singh told me my husband had rung and he would release the bags and hoped we would have a nice time in Tonga, I had already purchased my ticket to Tonga leaving on 23.7.78."

The alleged promise to release the suitcases and wish for a nice time in Tonga were never put to the Chief Officer in cross-examination. If the suitcases were "cleared" this would, so it seems, mean they would be kept in bond unopened and would then accompany her on the flight to Tonga. This move failed because the suitcases were opened. The reactions of appellant during this time are given in evidence as follows:

"Eventually both bags were opened. These two suitcases are in Court today. Defendant was standing against the wall about 4 ft. away (when the suitcases were opened on a table). I watched her reactions closely throughout she was sweating and her face was red and lips were trembling and was looking straight into the bags. Where the lid of the first bag was lifted defendant put her head down and started crying. She didn't go forward at all to see what was in the bag. She didn't say anything at all to me. I asked the defendant that I couldn't see any clothing inside and she didn't reply. I looked at the contents and packages and noticed what appeared to be Indian Hemp, and white powdered stuff in small cellophane bags. The defendant said she had no knowledge at all about them. When the other bag was opened she got so anxious and asked to go to toilet. Contents of 2nd bag was similar to that in the 1st bag. She eventually was allowed to go to toilet under escort. When she returned I told her that I was satisfied that the bags contained Indian Hemp and heroin."

Appellant was then interviewed by another officer. After being duly cautioned he took down a statement in writing. She said:

"The suitcase was given to me by my husband in Singapore. The name of my husband is David Francis SKIPPER. I was not given any special instruction as to where to deliver the suitcases. After my arrival at Nadi Airport, I made a telephone call from the Travelodge Hotel in Nadi to my husband in New Zealand. My husband was not at home to receive the call. This morning I received a telephone call from my husband in New Zealand and he instructed that the suitcases be taken on to Tonga where he will collect it. My husband will be travelling to Tonga and there will meet me."

In this statement appellant first said she left New Zealand on July 2 then changed it to say she left Australia on July 2. She gave the first name of her husband as "BRIAN" and altered it to "David". It was later again so recorded with details of his age, occupation and addresses' in Australia and New Zealand but she did not know the name of the firm he was working for. In her statement from the dock she is recorded as saying the name of her husband as "Boyan" which seems to be a mis-spelling of "Bryan" or "Brian". From the dock she said she was not married but had a de facto relationship with this man. A circumstantial story was given that, as a result of some reconciliation with his wife and children, he was apologetic and handed her an air ticket to Singapore about June 28, she having returned to Auckland on June 21, after being left in Sydney by this man in May. She came to Auckland as a .result of a letter received ten days after he left. Appellant does not explain how she got a New Zealand passport dated June 1, 1978 nor why she was vaccinated on June 28 which she fixed as about the date she first knew of a trip to Singapore.

At the trial evidence was given by a Detective Sergeant of Police from New Zealand that he knew appellant and that her name was Susan Florence Ray Rennie. Appellant merely acknowledged this, without any explanation, in her statement from the dock saying she was also known as Susan Florence Rennie. The New Zealand police officer said he also knew a woman in New Zealand called Christina Doreen Skipper and gave her address which was not that given by appellant. It is clear this person could not be appellant. The only explanation appellant gave for her present name when faced with this evidence was that it was a coincidence her "husband's" surname was the same as her father's. Unless she had married or changed her name she would still retain Skipper as her surname. No other attempt was made to explain these two very dissimilar names. When appellant filled in the Fiji immigration card she printed her first name as "CHRISTIAN".

A ground of appeal, abandoned at the hearing, dealt with the use of an assumed name while travelling and the use of a false passport and that comment had been made that appellant never revealed her true identity until she heard the evidence of the New Zealand police officer. These are all important findings of fact which cannot be reconsidered in this Court but they are fully borne out by the evidence. The explanations given by appellant were not accepted whilst the evidence of the customs officers was. Thus it is clear that appellant has given false explanations concerning the; suitcases. If her explanations were accepted they would negative knowledge of the contents of the suitcases and this was the crucial position of fact. This is important in respect of the first ground of appeal which reads:

"That the learned appellate judge erred in law in holding that the evidence of the character and purported connections of one Mrs. Scally was admissible in evidence as being part of res gestae inasmuch as:-

(a) such evidence cannot be regarded as part of res gestae, and

(b) such evidence was evidence of bad character and since the appellant had not put her character in issue such evidence was inadmissible and that in any event its prejudicial value outweighed its evidentiary value."

No question of the exercise of a discretion to exclusive prejudicial evidence arises as a matter of law. This was conceded by counsel but the questions of relevance and admissibility do arise. The evidence of the New Zealand police officer was that the phone number of Mrs Scally was an unlisted number and that she is a person convicted of narcotics offences and on bail for two alleged offences.

The ground itself sufficiently sets out the contentions of counsel for appellant. The short question in our opinion is whether or not this evidence was admissible as evidence of fact relevant to an issue: vide Rattan v R (1972) 56 C.A.R. 18, 21. It was not argued that it was excluded by the hearsay rule but it was argued that this was an attack on appellant's character; was evidence of her disposition in so far as she associated with a person concerned in illegal narcotics activities; and that it was an attempt to introduce similar fact evidence. We have reviewed this evidence at some length for the purpose of demonstrating that it was relevant to a fact in issue. It was a material element in proof of appellant's knowledge of the contributions of the suitcases as a summary of the salient facts will now show.

The acts of appellant on arrival were a representation by conduct that the suitcases were her ordinary luggage. She explained that she could not unlock them because her husband (we will call him such) had the keys. She claimed her husband had gone from Singapore to Delhi to a seminar. Appellant initiated the question of the use of a telephone by asking for the Chief Officer's name and number. As a result of that, a man claiming to be her husband did telephone the Chief Officer from Auckland. At this stage it is pertinent to note that she claimed that the two suitcases had been given to her by her husband. That the responsibility for the suitcases would be placed on her husband now became clear because she changed her explanation and said he had gone to Auckland thus contradicting the earlier statement made to the customs officer. In fact in her statement from the dock she quite clearly placed him as the person who packed the suitcases. The character and nature of the persons with whom she is now communicating became particularly relevant to her explanations. There is, of course, no proof that the person, either in Singapore or in Auckland was the person wh [sic] had named. So all the Crown has is that a male person in Auckland has been communicated with by telephone by appellant and as a result a customs officer got return call from Auckland to the name and number appellant had requested.

A fresh attempt was made to avoid the opening of the suitcases by having them retained in bond (which was earlier requested by appellant) and cleared for Tonga. This new approach to the avoidance of detection camp as a result of the call to Auckland and the return call to the officer in Fiji. When this attempt was thwarted appellant immediately made a request to phone her aunty and gave her name and phone number. There was no evidence to identify the person or the number used on the earlier phone calls. Nor was there any evidence of what was said except that a change of plan, designed to avoid detection, was put into operation, but, when that failed, appellant's immediate reaction to this long chain of explanation being made by her was a request that she be permitted to ring her auntie. It is to be noted that this call did not purport to be to her husband (or the male person who had earlier phoned the customs officer), who was concerned about the clearing of the suitcases and a trip to Tonga, but it followed closely on and was connected with the putting into operation of that plan and its failure. The long sequence of explanations and appellant's activities therein by the use of telephone calls to Auckland would be incomplete without evidence concerning the identity and character of a person she has now called her "aunty". Appellant had already made contradictory statements about her "husband" and where he was. It became relevant to show the nature of this last call particularly since communication with Auckland was striking feature of the thwarted second plan to avoid the opening of the suitcases. The use of a telephone to communicate with someone in Auckland took a significant role in the differing explanations being made by appellant and her behaviour and actions were an integral part of the attempts to avoid detection. She had herself used a false name and false passport. Then nature of the final call could not be truly understood if it were left as a simple call to a relative of a person in distress. For those reasons, and after a perusal of the explanations she gave from the dock, we are of opinion that the evidence was relevant to the trend of the explanations being made and to meet any attempt by her to claim that it was a simple isolated call to a relative. This ground fails.

Grounds 3 and 5 may be considered together. They read:

"3. That the learned trial Magistrate and the learned appellate Judge erred in law in holding that the items purported to be Indian hemp and heroin were such within the meaning of Dangerous Drugs Act.

5. That the learned appellate Judge and the learned trial Magistrate erred in law in drawing the inference that the carried out by the analyst showed positive presence of heroin, it followed that the substance was heroin."

Grounds 3 and 5 mean that there was no evidence to prove that the materials were Indian hemp and heroin respectively. One witness said that when a suitcase was opened part of the contents were put separately into each of two envelopes which he took to the Government Analyst in Suva. By consent the certificates of the Government Analyst were put in as evidence. Section 42 the Dangerous Drugs Ordinance (Cap.95) (hereinafter called "the said Ordinance") provides that the certificates produced shall be prima facie evidence of the facts stated therein. The certificate for Count 3 in its material parts reads:

"The nature of the analysis required is as follows:-

Identification of the sample of dried leaves twisted to stick form and the composition.

The result of the analysis of the sample referred to above was as follows:-

I received the sample in a sealed condition. The contents were found to be Indian Hemp leaves."

The certificate in respect of Count 4 reads:-

"The nature of the analysis required is as follows:-

Identification of the sample of white powder and the composition.

The result of the analysis of the sample referred to above is as follows:-

I received the sample in a sealed condition. Tests for Heroin were positive."

Section 4 of the said Ordinance provides as follows:

"4(1) The provisions of this Part of this Ordinance shall apply to raw opium, coca leaf, and Indian hemp, and resins obtained from Indian hemp and preparations of which such resins form the base.

(2) No person shall import or export any of the substances to which this Part of this Ordinance applies."

By section 2 Indian hemp is defined as follows:

"'Indian hemp' means either of the plants Cannabis sativa or Cannabis indica or any portion thereof;"

The learned magistrate made a simple finding that "the dried leaves twisted to stick form were Indian hemp". The learned judge dealt with the question at greater length. He said:

"However, in my view, whether it is cannabis indica or sativa it is still Indian hemp according to the legal interpretation. The Shorter Oxford English Dictionary describes 'cannabis' as meaning hemp or of the nature of hemp; and cannabis (indica) is Indian hemp; and the dried flowering tops of the female plants of cannabis sativa as Indian hemp. It also gives the meaning of 'hemp' as cannabis. In H. J. Walls, Forensic Science, 2nd Edn. p.126, it is observed that cannabis has many names in many languages: it has 251 synonyms of which the most familiar are Indian hemp, pot, hashish, marijuana and bang. Glister's Medical Jurisprudence And Toxicology, 10th Adn., p.634, refers to cannabis indica and cannabis sativa as used for producing Indian hemp. It is clear that the expression 'Indian hemp' is a common mode of describing either cannabis sativa or cannabis indices when used ns a drug. Throughout the Dangerous Drugs Ordinance the expression Indian hemp is used frequently and no reference is made anywhere in the Ordinance to cannabis except in the interpretation section, Section 2. In using the expression Indian hemp the Government Analyst was using a term contained in the dictionary (supra) and in medical text books and which is used repeatedly in the Dangerous Drugs Ordinance. His certificate shows it was Indian hemp and the offence as expressed by the Ordinance is importing Indian hemp."

We can find no ground in law why this finding of fact ought to be disturbed. The learned magistrate and the learned judge accepted the certificate as proving the fact that the substance was Indian hemp and that finding cannot be disturbed on the ground that the certificate did not proceed to state which of the two species it was. This was an expert witness making an examination for a specific purpose of identifying a drug in the course of a case in a Court of law. The Courts below were entitled on the evidence to conclude as a fact that the total substance were of the nature alleged. These grounds fail in relation to Indian hemp. The substance heroin is about to be discussed.

Grounds 4 and 6 and the reference to heroin in Ground 3 may be dealt with together. Grounds 4 and 6 read:

"4. That the learned appellate Judge erred in law in holding that there are no types of heroin the importation of which is not prohibited inasmuch as the Dangerous Drugs Act and the Regulations there under do exempt from the prohibition of importing certain substance containing heroin.

6. That the learned trial Magistrate and the learned appellate Judge erred in law in not holding that the charges were defective inasmuch as there were material omissions there from."

The charge was laid under section 14 of the said Ordinance. The section reads:

"14. No person shall import or export any substance to which this Part of this Ordinance applies except in accordance with the provision of sections 22 to 30, inclusive, of this Ordinance."

The charge made no reference to the exceptions when importation is in accordance with sections 22 to 30. These sections are comprehensive controls for the importation and export of a large number of substances (including heroin) set out in section 13. The sections all appear in Part IV which deals with medicinal opium, morphine, cocaine and certain other drugs. Elaborate precautions are taken to control all such dangerous substances and part of that control is to make it an offence to import or export such drugs except in accordance with these provisions. This submission must fail because section 123(b)(ii) of the Criminal Procedure Code provides:

"(ii) it shall not be necessary, in any count charging an offence constituted by an enactment, to negative any exception or exception from, or proviso or qualification to, the operation of the enactment creating the offence;"

A further objection was that section 13, so counsel claimed, described "various types of heroin" so that it was for the prosecution to prove a particular type of heroin as an ingredient of the charge.

Subsection (1)(c) provides:

"(1)(c) morphine and its salts and diacetylmorphine (commonly known as diamorphine or heroin) and the other esters of morphine and their respective salts;"

This provision is extended by subsection (f) which reads:

"(f) any preparation, admixture, extract or other substance containing any proportion of diacetylmorphine;"

The argument appears to be that the prosecution should prove that the material did not come within subsection (f). With respect we are unable to follow the argument. A substance in 1(c) is heroin which is a common name for the substances earlier named. There was no question of material containing a proportion of heroin - the finding was that it was heroin. There is no merit in this submission. Grounds 4 and 6 accordingly fail as does Ground 3 in so far as it refers to heroin.

Ground 7 reads:

"7. That the learned appellate Judge erred in law in confirming the conviction of the appellant on Count III inasmuch as the evidence did not support the offence under the Section under which she was convicted."

Count 3 contained a statement of the particulars of the offence alleged and of the section relating to such offence. The section specified was section 5 whereas it is plain that there was a slip on the part of the draftsman because the particulars clearly refer to section 4. Section 5 deals with Indian hemp seed whilst section 4 clearly deals with the material in question. The case before the Magistrate's Court and on appeal was conducted on the basis that the charge was under section 4. It was not until the learned judge was delivering judgement that attention was drawn to the error. The learned judge said:

"At no time during the trial was any reference made to Indian hemp seed. The appellant could not possibly have been misled into thinking that she was charged under Section 5 for importing Indian hemp seed."

The correctness of this comment is not denied. The learned judge was apparently exercising his powers under section 323 of the Criminal Procedure Code. But it is now argued that conviction on Count 3 was a nullity and that this Court must quash it.

Counsel relied on section 154(2) of the Criminal Procedure Code (Cap.14). Section 154 provides:

"154(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by the presiding officer of the court in English, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it:

Provided that where the accused person has admitted the truth of the charge and has been convicted, it shall be a sufficient compliance with the provisions of this subsection if the judgment contains only the finding and sentence or other final order and is signed and dated by the preceding officer at the time of pronouncing it.

(2) In the case of a conviction the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted, and the punishment to which he is sentenced.

(3) In the case of an acquittal the judgment shall state the offence of which the accused person is acquitted and shall direct that he be set at liberty."

Section 154 must be considered in conjunction with section 123 which deals at some length with rules for framing charges and informations. We can confine our attention to section 123 subsection (a)(iv) and the appropriate proscribed form in the second schedule. This provision requires particulars of the offence to be set out and also that the section of the appropriate statute relating to the offence be stated. The person charged then has particulars of the facts of the offence and notice of the statutory provision providing for the offence alleged. Section 154(2) requires, not particulars of the offence, but a description of the offence and the relevant statutory provision. There is thus clear notice to be given so that an accused at his trial may not be prejudiced in meeting the charge, and, later upon conviction (or acquittal) the judgment will record sufficient particulars in the event that either the conviction (or acquittal) may become a relevant matter for proof or for any other reason on a later date then there is a sufficient record.

Counsel for appellant relied on a judgment of this Court in David Kio v R. 13 F.L.R. 21 and on the general proposition that the provisions of section 154(2) were mandatory and the failure to comply therewith resulted in the conviction being a nullity. In Kio's case no conviction had been entered. The Court approved of a passage from Jean Charles Confiance v R [1960] E.A. 567 which reads-

"As, however, it is axiomatic that there must be a judgment in a criminal trial, it also follows that certain requirements must be regarded as basic, as non-compliance with them would result in there being no judgment at all."

The Court then held that the absence of a conviction was a basic defect and one which was not curable by the Court on appeal. There is a conviction in the present case and the only defect is in the number of the section in the relevant statute. However, Kio's case is useful in drawing attention to the difference between a basic defect, which is not curable, and an irregularity which may be curable. Counsel for appellant argued that the defect was basic and not curable.

Section 3 of the Indictments Act 1915 (U.K.) is, for the purposes of the present question, in the same terms concerning the framing of charges as section 123 of the Criminal Procedure Code. A line of cases has now established that, if it is clear that no embarrassment or prejudice was caused by an omission to state the required particulars correctly, the proviso would be applied and the appeal would be dismissed. It is sufficient to cite instances in R. v McVitie, 44 CA.R. 201; R v Power 66 C.A.R. 159; R v. Yule [1942] CthArbRp 217; 47 C.A.R. 229 and R. v. Miller and Hanomer (1959) Crim. L.R. 50. Clifford Nelson [1949] CthArbRp 419; 65 C.A.R. 119 in another case and further reference will be made to it.

When dealing with a submission that a failure to state the statute which was alleged to have been contravened the Court in Clifford Nelson (supra) at pages 122 and 123 said:

"The very fact that the judge could have amended the indictment indicates to us that the indictment was not a nullity; it was merely defective. Lord Goddard CJ. dealt with this matter in the case of Meek v. Powell [1952] 1 K.B.164. The case itself turned on an entirely different type of technicality, namely what powers Quarters Sessions had to amend an information which had been dealt with by a magistrates' court. In the course of his judgment, at pp, 167-168, Lord Goddard adverted to the position if there was a defect in an indictment. He said this: 'I would only add one word. If this were a conviction on indictment, and the indictment had charged an offence under the wrong section, although the Court had power to amend the indictment before trial and put the section in, it seems clear that if the conviction took place without the indictment being amended, the Court of Criminal Appeal would have no option but to quash the conviction.' That appears to have been decided in Taylor (1924) 18 Cr.App.R. 105; 40 T.L.R. 836, where a wrong section had been referred to in the indictment. Although the particular section had been repealed and replaced by another section, the Court of Criminal Appeal held that as the wrong section had been mentioned in the indictment, the indictment had to be quashed.

This Court is satisfied that, as a Court, it has no jurisdiction on appeal to amend the indictment; but what it has clearly got is power to consider a case where there has been a defect in the indictment because there has been failure to comply with the indictment rules. That was decided in the case of McVitie (1960) 44 Cr.App.R.201; [1960] 2 Q.B. 483 that was a case which was argued before the full Court. One of the matters which had to be considered by the Court was whether the Court had power, where there was a defective indictment, to apply the proviso. It was held that the Court had got power to do so. I should call attention to the fact that the defect in McVitie's case (supra) had arisen not because there had been an omission to state the statutory provision under which the indictment had been framed, but because there had been an omission to set out in the indictment an essential element of the offence. The important of McVitie's case (supra) is that the Court adjudged that it had the power to apply the proviso on the ground that the indictment had been defective. It could not have applied the proviso to the then section 4(1) of the Criminal Appeal Act 1907 if the proceedings had been a nullity. By analogy with McVitie's case (supra), it would seem to this Court that, on the face of it, this indictment was defective and could be considered by this Court."

This Court has a power similar to the proviso referred to in the English cases earlier cited. It is contained in section 22 subsection (6) of the Court of Appeal Ordinance which reads:

"22. (6) On any appeal brought under the provisions of this section, the Court of Appeal may, notwithstanding that it may be of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal it if considers that no substantial miscarriage of justice has in fact occurred."

A similar provision is contained in a proviso to section 23 subsection (1) which relates to appeals from trials in the Supreme Court. To borrow an expression from R v Power (supra) to suggest that there had been the slightest miscarriage of justice is quite absurd. The defect was an irregularity. It was not a basic defect in the proceedings. Accordingly we invoke the provisions of section 22(6) and dismiss this ground of appeal.

We turn lastly to Ground 8 which reads:

"8. That the learned appellate Judge erred in law in making the sentences imposed on the appellant to be served consecutively inasmuch as:-

(a) The appellant was thereby effectively punished twice for the same act;

(b) The appellant was not given a chance to show cause why the same ought not to be done;

(c) In any event the learned appellate Judge misdirected himself and/or did not properly direct himself and/or did not properly apply the principles applicable to consecutive sentences."

The only question in respect of grounds (a) and (c) which requires consideration as a question of law is the effect of section 20 of the Penal Code (Cap. 11) which enacts:

"20. A person cannot be punished twice either under the provisions of this Code or under the provisions of any other law for the same act or omission, except ......."

The exception deals with cases where death ensues and does not apply. It was contended that the importation of Indian hemp and heroin was, in the circumstances, the same act. A number of cases in the Court of Appeal for Eastern Africa were cited and also the case of Brijanand v. R. 7 F.L.R. 174. The facts in each of these cases are not sufficiently analogous. There is danger in argument by analogy: per Lord Wilberforce Henry Kendall v. William Lillico [1968] 2 All E.R. 449, 490. Lord Reid in the same case commented on the legitimacy of taking general words used by judges in other cases and treating them as a test of universal application (p.449). The question in each individual case, and facts vary infinitely, is whether the proved facts come within the words of the statute: per Lord Loreburn, John Stewart & Son (1912) Ltd. v. Longhurst [1917] A.C. 249, 255.

In the present case an offence was committed against section 4 by the act of importing Indian hemp and an offence was committed against section 14 by the act of importing heroin. Each is under a different Part of the Ordinance namely Parts II and IV respectively dealing with distinct and different types of drugs. The method or means, even if used contemporaneously, is not necessarily the test. The gravamen of the importing is the nature of the goods imported. The respective drugs are separately dealt with in the Ordinance. We are concerned only with the facts of this case. In our view, on the true construction of section 20 as applied to the facts of this appeal, the imposition of two penalties does not punish appellant twice for the same act. The question whether penalties should be concurrent or consecutive is, subject to appeal, a question for the sentencing Court, which may, in proper circumstances, impose no additional punishment. This ground fails.

Ground 8(b). This ground raises the point whether this Court can, as a matter of jurisdiction, consider the sentences imposed on the ground that appellant was not given an opportunity of being heard on enhancement of sentence. It is true that counsel for appellant would be aware of the power of the Supreme Court to exercise such a power, but neither counsel for the prosecution nor the learned judge himself adverted to the power of enhancement. This Court considered the question in Naidu v R Cr.App. 20/1974 but did not find it necessary to give a final decision. After dealing with some English cases where a warning was given the Court said:

"We see this as an application of the rule, be it of natural justice or the common law, that a judicial body will not condemn a person who has had no opportunity of being heard:"

The case referred to were cases where appellant was not represented. Later after dealing with the case of R v Abdul Aziz (1948) 15 E.A.C.A. 53 the Court said:

"In that case the Court of Appeal did not need to decide whether upon the ground of lack of notice alone the sentences would be quashed, as it decided upon the merits that the enhancement was in any event unjustified; clearly, however, the Court took the view that the appellants, even when represented by counsel, were entitled to be forewarned. The Court obviously assumed that, if there were no application for enhancement by the Crown, and if the appellate Court was inclined sui moto to enhance a sentence it would afford an opportunity to the appellant to show cause. With this approach we agree."

After reviewing the facts the Court further said:

"The note quoted above shows clearly that the learned Judge made some statement at the hearing as to the measure of the sentence by which this crime might be punished. We think this in the circumstances would have been sufficient to alert counsel, who addressed the court immediately afterwards; even if the Judge did not specifically indicate his intention. We are not prepared, therefore, to treat this episode as an error of law on the part of the Judge; we would add that had the question of severity been open to us on the merits, we would not have been disposed to interfere with the increased sentence."

In Prem Chand & Anor. v. R. Cr.App.No. 5/1976 this Court also said:

"We read section 22(1) as meaning that there is no jurisdiction to entertain an appeal against sentence which goes to the quantum or extent of a sentence even if a question of law is involved."

As we see the present problem it raises a question concerning a right which has been rigidly observed by the Courts, and enforced by the Courts on other tribunals, that a party whose rights or liberty may be adversely affected must be given an opportunity to be heard. The question as we see it is: Has appellant the right to be heard on this question which affects her liberty? In our opinion she had a right in respect of what, at least as a matter of natural justice and universal practice, has acquired the nature of a legal right. As such we consider that it is a matter cognizable by this Court under section 22 of the Court of Appeal Ordinance. Appellant was denied that right so we are of opinion that the enhancement of the total sentence ought not to stand.

In the result we affirm both convictions and dismiss the appeals against conviction. As to the appeals against sentence we are of opinion that the learned judge erred, when, without giving appellant an opportunity of being heard, he imposed sentences which exceeded the term imposed by the learned magistrate. We pass no opinion on what was a proper sentence for these very serious offences, if counsel had been heard on the matter of sentence. We therefore quash both sentences and impose the same total sentence as that imposed by the learned magistrate. The head sentence should be in respect of the more serious offence. The sentences now imposed are:

(1) On Count 4 a term of five years imprisonment; and

(2) On Count 3 a term of one year to be served consecutively on (1) above.

T. J. Gould
VICE PRESIDENT

T. Henry
JUDGE OF APPEAL

B.C. Spring
JUDGE OF APPEAL