-Restores his conviction order
IN 1971, a Magistrate quite rightly convicted an employee for larceny because that clerk had concealed certain cosmetic items in flour and sugar that were presented to the cashier to collect payment for the latter items only. The clerk, Etwaroo, appealed to the Full Court, which allowed the appeal and ordered the magistrate to convict him for attempting to commit the offence of larceny on the ground that the facts of the case did not disclose larceny, but only an attempt to commit larceny.

The dissatisfied Etwaroo appealed to the Guyana Court of Appeal, which dismissed the matter and ordered that the conviction and sentence of the magistrate be restored on the ground that the facts established the offence of larceny, and gave its decision the same year.  (See 1971 18 W.I.R. 211)

The result was that Etwaroo had to abide by the ruling of the magistrate.

Before the Full Court, Mr. Doodnauth Singh, S.C., had appeared for the appellant, while Mr. G.H.R. Jackman  appeared for the respondent, Jagdeo Persaud Jagsarran.

According to the facts, Etwaroo was an employee of a supermarket where various items of food, as well as articles such as Brylcream and Vaseline hair dressing were sold. Employees were permitted by the management to make purchases in the same manner as members of the public, that is, to remove the articles from the shelves where they were displayed, and pay for them at the cashier’s desk.

Etwaroo took a parcel of sugar and one of flour to the cashier, and offered to pay for those items only. Concealed at the bottom of the two parcels were four jars of Brylcream, and two bottles of Vaseline.

When challenged by the cashier, Etwaroo said that the parcels of sugar and flour with the cashier were not the ones he had placed there.   He was charged with the larceny of the Brylcream  and Vaseline before  a Magistrate, who convicted him of that offence.

On appeal to the Full Court, it was submitted that at the time the parcels were taken to the cashier, the transaction of sale and purchase had not yet been completed, and that the articles in question were still in the possession of the proprietor of the supermarket.

The Full Court, constituted by Chief Justice Harold Bollers, and Justice Akbar Khan held that:

(i) the facts did not disclose the commission of the offence of larceny, but only of an attempt to commit the offence of larceny;

(ii) the articles had not, at the material time, been reduced into the exclusive possession of the appellant; and

(iii) the evidence established an attempt to commit the offence of larceny, for which the magistrate had power  to convict by virtue of the Summary Jurisdiction  (Procedure) Ordinance, Chapter 15, S. 38, and the matter would be remitted to the magistrate, with a direction to convict of an attempt  to commit the offence of larceny.

The Full Court allowed the appeal, and the matter was accordingly remitted to the magistrate, with directions to convict for attempt to commit larceny instead of larceny.     But all these directions by the Full Court were in vain.

As a consequence, the dissatisfied appellant (Etwaroo),  who was out to get a clean criminal record,  appealed  to the Guyana Court of Appeal, which, after hearing arguments, dismissed the appeal and directed that the conviction and sentence of the magistrate be restored on the ground that the facts established the offence of larceny.

In the Magistrate’s Court, Etwaroo was charged and convicted of the offence of larceny by a clerk or servant  contrary to  Section 89 of the Summary Jurisdiction (Offences ) Ordinance , Chapter 14.

The particulars of the offence read as follows:

Etwaroo,  on Thursday November 19, 1970, at Georgetown, in the Georgetown Judicial District,  being employed as a clerk or servant with Messrs. Kwang Hing Supermarket, stole four jars of Brylcream valued $7.00, and two bottles of Hair Cream Vaseline valued $4.00.  Total value $11.00 property of Kwang Hing Supermarket, his employer.

According to the Full Court judgment, which was now upturned, the evidence revealed that during the month of November, 1970, the appellant had been employed as a Clerk at Kwang Hing’s Supermarket, situate at 141 Camp Street, Georgetown.

It appears that the appellant was a union official of the CCWU (Clerical and Commercial Workers Union), and had been active in the Trade Union Movement in making representation on behalf of the workers of the union.

In an interview between the Union  and the proprietor/manager of the supermarket, the latter had stated that he wanted to get rid of the appellant, because he had been giving a lot of trouble,  in that when his fellow employees wanted to work, he would tell them not to do so, which caused dissension.

The employees in the supermarket were permitted to make purchases of goods in the same way as customers and members of the public, i.e., they were allowed to remove goods from the shelves on which they were displayed and take them to the cashier, who would check the articles and strike the amount on the cash register, receive payment for the goods, and hand a bill to the purchaser.

In the case of an employee, the goods were not always closely checked.   On the day in question, the appellant (Etwaroo), whose duties included taking up orders and getting together goods, made a purchase of two items on his own behalf, i.e., four pounds of sugar and four pounds of  flour in two separate parcels, which he placed in a bag and took to the cashier.

He informed the cashier that he had four pounds of flour, and  four pounds  of sugar in the bag, and instructed the cashier to take out the money for the flour and the sugar. The cost of the flour was 54 cents, and the sugar 38 cents.

As he was about to hand the money over to the cashier, the latter enquired of him why he was buying on Thursday, because he generally buys on Fridays.   The appellant replied that he was buying the items for a lady.

The cashier then opened the bag, removed the parcel of flour, and felt it.   Secreted in the flour, he found four jars of Brylcream, and when he repeated the process in respect to the parcel of sugar, he found concealed in the sugar two jars of Vaseline hair cream.

At no time did the appellant say that he was paying, or offering to pay, for these items, which  were the subject matter of the charge, nor did he in fact  pay or tender any money to the cashier at all.

The proprietor/manager of the supermarket was sent for, and in the presence of the appellant, a report was made by the cashier to the manager of what had taken place, and the appellant stated that the two parcels were not those that he had put in the bag.

Later, the police were summoned, and the cashier made a report  to them in the presence of the appellant that the appellant had stolen some Brylcream and Vaseline and had put them with the contents of the two parcels.

The exhibits were then shown to the police, and as a result, the appellant was arrested and cautioned. He made no reply, and was then taken to the station and charged.