Shah v Reginam [1978] FJSC 44; Criminal Appeal 056 of 1978 (31 July 1978)

IN THE SUPREME COURT OF FIJI
Appellate Jurisdiction

Criminal Appeal No 56 of 1978

Between:

AFZAL ZAINULLAH SHAH
s/o Hubdar

and

REGINAM

JUDGMENT

On the 22nd May 1978 at Suva Magistrates Court the appellant was convicted after trial of larceny of a pair of socks from Morris Hedstrom Limited and was fined $25.

He has appealed through counsel, the original grounds being that the verdict is unreasonable and cannot be supported by the evidence, and that hearsay evidence was admitted as to identity and ownership of the socks in question.

To take the second ground first, this has no merit as the socks in question were properly and positively identified by the head of the menswear department of Morris Hedstrom Limited, who testified as to his own handwriting on a label attached to the socks which established that they came from the menswear department of Morris Hedstrom Limited.

As to the first ground of appeal, this Court has pointed out time and again that before it can succeed an appellant must shew that there was no evidence on which the trial Magistrate could reach the conclusion which he did reach if he properly directed himself (Kamchan Singh v. The Police (1953) 4 F.L.R. 69); and it is difficult to credit, in the circumstances of this case, that counsel for the appellant could have seriously entertained any prospects of success.

The prosecution evidence established that during the afternoon of the 19th December 1977 in the vicinity of Morris Hedstrom Limited the appellant was seen behaving in a suspicious manner and appeared to be concealing something inside his trousers. He was detained and searched by two security officers and upon the appellant opening his trousers a pair of brand-new socks, identified as having come from the menswear department of Morris Hedstrom Limited, were found to be sticking out of the tight-fitting underpants he was wearing. He made no attempt to account for his possession of the socks and when subsequently interviewed by the police he declined to answer any questions.

However at his trial the explanation given by the appellant, under oath, was that at about 12.30 p.m. on the day in question, after having a shower at his house, he took a pair of clean underpants from a drawer in his bedroom which also contained his socks, that unbeknown to him a pair of his socks had inadvertently found their way inside the underpants, and that when he put on the underpants the socks remained concealed inside them; that he then took his wife and daughters to do some shopping, and walked around town in ignorance of the fact that a pair of socks were inside his underpants, other than feeling some irritation, until he was stopped by the security officers and asked to unbutton his trousers, whereupon the pair of socks which had come from the drawer in his bedroom were discovered in his underpants. I need hardly add that this preposterous story was rejected by the trial Magistrate, who rightly convicted the appellant.

On the hearing of the appeal, counsel for the appellant was allowed to argue additional grounds, which warrant no more than the following brief reference:

(a) That the trial Magistrate erred in law in allowing the prosecution to add an alternative count of receiving stolen property.

As section 175 of the Criminal Procedure Code enables a court on a charge of larceny to convict a person of receiving although not charged with it, it was not necessary for the offence of receiving to be specifically charged. While the fact that it was added does not, in my view, constitute an error in law this ground of appeal, as counsel for the appellant concedes, is irrelevant to the conviction of the appellant for larceny.

(b) That the trial Magistrate erred in law in holding that there was a case to answer.

On the contrary, had the trial Magistrate not held that there was a case to answer he would, on appeal, have been directed by this Court to do so.

(c) That there was insufficient evidence to support a finding that the appellant stole the socks in question.

On the contrary, the evidence led irresistibly to the conclusion that the appellant stole the socks in question and any other finding would have been perverse.

(d) That in his evidence one of the security officers referred to the head of the menswear department having identified the socks in the presence of the appellant who thereupon said "Please think of my reputation"; that this reference to identification was hearsay and the comment of the appellant in breach of the Judges Rules.

This evidence was not tendered for the purpose of identifying the socks, but as evidence of the appellant's reaction, for which purpose it was admissible; and the Judges Rules have no application to the comment spontaneously offered by the appellant. Even if they had applied, as the trial Magistrate specifically stated that he drew no adverse inference from the appellants comment this ground could not succeed.

(e) That in his evidence one of the security officers testified that on the way to the police station the appellant offered to pay for the socks if the security officer let him go; and that this offer by the appellant was in breach of the judges Rules and should not have been admitted.

There was no suggestion that the appellant's offer was made as the result of any promise, threat or inducement on the part of the security officer, nor in answer to any question from the security officer relating to the offence, so the Judges Rules do not fall to be considered. Even if there had been a breach of the Judges Rules, which there was not, this ground of appeal could not succeed as the trial Magistrate stated specifically that he drew no adverse inference from the appellant's offer.

That the trial Magistrate's judgment contained certain misdirections in law.

There are no misdirections in the judgment o£ the trial Magistrate, who gave to the appellant the benefit of every conceivable doubt.

(g) That in his judgment the trial Magistrate referred to the appellant "wearing a pair of swimming trunks under his trousers"; that there was no evidence the appellant was wearing swimming trunks and therefore there has been a substantial miscarriage of justice.

In twenty years on the Bench I have rarely encountered a more frivolous ground of appeal. At his trial the appellant produced for inspection the garment that he wore beneath his trousers, variously referred to in evidence as "underpants " or "supporters," but which the trial Magistrate considered it more accurate to describe as "swimming trunks". This Court also has had the advantage of inspecting the apparel with which the appellant chose to gird his loins and I am in no doubt that it is designed as swimming attire. Quite apart from its other features, although it has no opening at the front and no buttonholes it is decorated with three metal buttons embossed with anchors - an ornament more suited to swimming trunks than underpants. However the garment obviously can be put to various uses e.g. as underpants and a receptacle for stolen socks, and nothing turns on the nomenclature.

During the hearing of the appeal I called upon the appellant to shew cause why the sentence should not be enhanced. In the ordinary run of shoplifting cases involving items of small value and persons of humble estate who, having succumbed to temptation, honestly admit their guilt, a fine of $25 may well be adequate. But in this case, bearing in mind the appellant's position - a civil servant and high school principal and that there are no mitigating circumstances, a heavier fine is warranted.

The appeal against conviction is dismissed, and in substitution for the fine imposed by the lower court the appellant is fined $75.

In view of the unwarranted grounds of appeal, the appellant will pay $25 as costs.

Clifford H. Grant
Chief Justice

Suva,
31st July 1978.