Narayan v Reginam [1977] FJSC 90; Criminal Appeal 084 of 1977 (28 October 1977)

IN SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Appeal No. 84 of 1977

1. RAJENDRA NARAYAN
s/o Ram Narayan Mohan Dass
2. SUBHASH CHAND
s/o Latchmi Narayan
Appellants

v.

REGINAM
Respondent

JUDGMENT

The first appellant, Rajendra Narayan, was convicted by the Magistrates Court Suva of larceny contrary to section 294(1) of the Penal Code and sentenced to 4 years' imprisonment.

The second appellant, Subhash Chand, who was tried together with the first appellant, was convicted by the same Court of receiving contrary to section 347(1) of the Penal Code and sentenced to 3 years' imprisonment.

Each appeals against his conviction and sentence. The two appeals were heard together.

Many of the facts are not in dispute. Examination papers for New Zealand School Certificate for the year 1976 were received at Nausori Airport and distributed to various centres. The Examination Officer who received the parcels did not inspect the contents of the parcels. One Ram Narayan s/o Mohan Dass, principal of Rishikul School and supervisor of the School Certificate Examination at his school, received one carton of these papers from the Examination Officer. The Examination Officer produced in Court sample examination papers for various subjects for the year 1976. To her knowledge, students in Fiji did those examination papers in 1976. Ram Narayan took the carton of examination papers given to him to his home in Nacara Street and placed it in his bedroom under his bed. The carton was held closed by means of a tape.

The examinations ware held, presumably all over Fiji, from 22nd November 1976 to 3rd December 1976. If any Supervisor was not supplied the required number of papers for his centre, he could get extra papers from the Examination Officer who had received an additional stock of them. Ram Narayan did not ask for extra papers for his centre. The first appellant is Ram Narayan's son and the second appellant is a cousin of the first appellant's.

The prosecution case depended largely on the statements made to the statements made to the police by themselves. The defence did not object to these statements being produced in evidence.

In his statement the first appellant admitted removing the tape with which the carton under his father's bed was sealed and taking out one set of examination papers. He sold, he said, the book-keeping paper to a Gujerati shopkeeper in Cumming Street for $20 and the Biology paper to one Satish s/o Parshotam for $25. The papers for Mathematics, English and Chemistry he gave to the second appellant who, according to him, had customers for them. Afterwards he received $72 from him. Altogether, he said, he had given the second appellant five papers. The record of the interview then is as follows:

"Q. What happened to the original question papers?

A. He returned all five which I kept in my room. Two have been brought by Police and I think I have lost three.

Q. Did make any copies from the original question papers?

A. No.

Q. Do you know if Subhash has made any?

A. I don't think so because there was no sense of making photo-copies or duplicates as he could have given the original to someone, if he wanted."

At the trial the first appellant elected to make an unsworn statement. He said:

"It is in my interview when Sgt. Het Ram asked me what did I do with the papers. It was where he misunderstood me. When accused 2 returned me 5 papers I put it back with my father's packages and resealed it."

In support of this statement, they relied on Ram Narayan's evidence who, a prosecution witness, had said he had opened the carton just before the examination started and checked the number of papers inside. It had corresponded with the number specified on the package.

This witness, however, in the very next breath said,

"In case of English papers none were missing - 2 extra."

If there were two extra papers, their number could not have corresponded with the number specified on the package. The statement can only mean there are two more papers in the package than should have been. He again said in re-examination,

"No shortage in Bookkeeping papers. A surplus of two."

The learned Magistrate who had observed this witness in the box formed the impression that this frail old man was not very alert and as he put it, "one can well understand the conflict he must have felt within himself when he gave evidence for the prosecution against his own son".

In any case, this man's evidence, and that of the Examination Officer's, only shows that, as far as the exact number of papers in each package was concerned, the packing was not foolproof. Even in the normal course of events there might be more or fewer papers in a package than was needed. In case of a shortage, additional stocks were held by the Examination Officer; in case of a surplus the Supervisor might keep the papers not required for the examination.

The first appellant's defence was that Sgt. Het Ram had misunderstood him during the interview and that he had in fact returned the five papers to his father's carton indicating that there never was any larcenous intent.

Grounds (a), (c), (d) and (e) together urge that the learned Magistrate erred in rejecting the first appellant's unsworn statement which was, in substance, supported by his father Ram Narayan's sworn evidence.

I cannot accept that submission. I have already made my comment on Ram Narayan's evidence concerning the exact number of papers in each package. Furthermore, the contents of the record of the interview quoted above are such as to make it extremely difficult to see how, or where, any misunderstanding could have occurred. The first appellant specifically stated that the two papers found in his room and seized by the police were the papers he had taken from his father's carton and given to second appellant which the latter had subsequently returned. More significant is his answer to the question,

"Do you know if Subhash has made any (photo-copies)?

A. I don't think so because there was no sense of making photo copies or duplicated as he could have given the original to someone if he wanted."

It is, in my view, completely irreconcilable with the suggestion that, at the time the first appellant took these papers from the carton, or even later when he gave them to the second appellant, he had an intention of returning them to the carton.

These grounds, therefore, fail.

Ground (b) complains that the New Zealand's School Certificate Examination papers (Ex. 5 and 7) produced in Court were inadmissible as evidence and, in any case, no weight should have been attached to them. Learned Counsel for the defence seemed to suggest that the printer who printed them and everyone who handled them after printing should have been called as witnesses to make the papers admissible. The submission is misconceived.

These papers were seized in the first appellant's room. From that moment they remained in police custody and were properly identified at the time of production in Court. The first appellant admitted that those were the papers that he had removed from the carton under his father's bed and given to the second appellant who had later returned them.

It to true that, by the time these papers were seized, the examination had long been over and there may have been thousands of exam papers available to all and sundry but the weight to be attached to these papers had to be assessed on the basis of what the two appellants themselves told the police about them. 1 can see no merit in this ground which also fails.

The first appellant's appeal against conviction is dismissed.

As for the second appellant, he also made certain admissions to the police during an interview from which it is clear that he took the examination papers from the first appellant knowing them to have been stolen. He gave three of them to one Sunderensan Sivan Naicker of 4 Sese Street, Suva. For these he received $100 cash and three wrist watches. Those watches were produced in Court. The cash was shared between the two appellants.

He also sold one examination paper to one Praven for $20.

According to the interview, Suderesan Naicker later retained the papers to him and he returned them to the first appellant. Whether Proven returned the paper he had purchased in not clear.

Suderesan Naicker was called as a witness and confirmed what the second appellant had said in his statement to the police, except that he said he had paid $75 and 3 watches, for the three papers. He had made copies of the papers and returned them to the second appellant. He had taken the papers from the second appellant's house where the first appellant was also present.

At the trial the second appellant also made an unsworn statement. He said,

"I took 5 papers from Accused 1. After having it photostated I returned papers to him the following morning."

The main ground of appeal urged on behalf of this appellant is that, while he may have temporarily "handled" the papers, he eventually returned them and cannot, therefore, be guilty of receiving. In support of this, learned counsel points to Naicker's evidence in which he says that the papers were handed to him by the second appellant in 'his house in the presence of the first appellant.

The evidence, however, clearly shoes that it was the second appellant who carried out the negotiations with Naicker. There was also the other purchaser Praven. These were customers found by him, not by the first appellant. This, in substance, is supported by the second appellant's own statement to the police. In my view there was sufficient evidence on which the learned Magistrate could have found, as he did, that the felonious intent and possession had both been proved (See Archbold 36th Edn. para 2091 and 2092 where the law is stated as it is applicable in Fiji).

Another ground urges that, though the second appellant may have been told the papers had been stolen, they were not in fact stolen and he could not, therefore, have been guilty of receiving. I have already dealt with this aspect of the case while dealing with the first appellant's appeal and find no merit in it.

Learned Counsel also complains that the evidence against each of the two appellants was not assessed separately as they should in a joint trial. It may well be that in a trial with assessors certain specific directions would have been required about accomplices and about the statement made by each of the appellants to the police implicating the other, I do not think the nature of the trial in this case and the evidence before the court amounting to each appellant's own admission called for those directions in the learned judgement.

The other grounds are common to both appellants' appeals and have already been dealt with.

The second appellant's appeal against conviction is also dismissed.

Both appellants' ground for appeal against their sentences is,

"That the sentence in harsh, excessive and based on principle not known to law."

Section 294(1) of the Penal Code under which the first appellant was charged carries a maximum penalty of 5 years' imprisonment. The appellant received 4 years. He is 20 years of age with an unblemished past.

Learned Magistrate quite correctly stated -

"I appreciate that the rewards for the 2 accused are small but they have shown no remorse and were solely motivated by agreed without any thought other than for themselves."

He however also said,

"It is the clear duty of the court to show to the citizens of Fiji and the educational authorities in Australia, New Zealand and the like that it will take an available steps to eradicate this cancer within our society for otherwise a pass in Fiji in the New Zealand School Certificate will become a worthless piece of paper."

There was no evidence before the court which could even remotely suggest that larceny of examination papers was so deep-rooted in our society an to deserve comparison with "cancer". In fact, all that the Court knew was that it had before it an isolated act of such larceny and receiving. Of the 3,000 students whose results were withheld initially, only 19 were disqualified. Nor was there any evidence before the Court to suggest that "many of them (students) were enable to pursue higher education or take employment pending the outcome of their examinations." Even while describing the seriousness of the offence, the prosecution had said no such thing.

It may well be that many parents, and indeed most decent citizens, were greatly incensed at what had happened but those performing judicial functions must bear in mind what the Count of Appeal said in R. v. Mohammed (1975 Crim. L.R. 53):

"The courts do not exist for judges to express their indignation in the form of long sentences."

The learned Magistrate was quite correct in rejecting the submission that consideration be given to probation as the case warranted nothing less than a custodial sentence. There was, however, nothing before him either in evidence or in what the prosecutor had said from the bar table which could justify a near maximum sentence. The first appellant was undoubtedly motivated purely by the desire to make a few quick dollars, but such a desire could not but have been inspired by the crass negligence of the authorities, of whom the appellant's father was one, in leaving such confidential and tempting material lying around in cardboard carton with nothing but a piece of tape to secure them. In this regard see also R. v. Austin (1961 Crim. L.R. 416) where Lord Parker C.J. reduced the maximum sentence of 5 years to one of 3 years to allow for conceivably much worse cases which may occur from time to time.

I will, therefore allow each appellant's appeal against sentence.

The first appellant will serve a sentence of 2 1/2 years in. place of 4 years.

The learned Magistrate correctly held that the second appellant, who is only 19 years of age and who was not the prime mover in the whole transaction, should receive a lesser sentence. His sentence is reduced from 3 years to one of 2 years.

G. Mishra
JUDGE

Suva,
28th October, 1977