Appellants convicted on amended larceny charge without plea  
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George Barclay

On appeal Full Court dismissed Mag.’s decision. THIS happened in 1961 after appellants Singh and Goberdhan were convicted on amended larceny charge that was incorrectly described, without a plea being taken. The Full Court constituted by Chief Justice, J.A. Luckhoo and Justice Jailal after a three-day hearing, dismissed the ruling by a Magistrate.

The Full Court ruling was based on the grounds that ownership incorrectly described – the duty of the magistrate was to amend and not to dismiss. It was disclosed that at the end of the case for the prosecution in a trial for larceny of certain shirts, the defence closed its case without calling evidence and submitted that  “Kirpalani Bros.”,  in whom the charge had laid the property,  had not been proved to be a  registered company or a corporate body,  the evidence being that the shirts were owned by M. K. and S.K. who traded under the name of ‘Kirpalani Bros.”

On application by the prosecution, the magistrate then amended the charge by substituting for the words “property of Kirpalani Bros.” the words ”property of M. K. and S. K.”,  and offered  the defendant an opportunity  of leading a defence  to the amended charge and of recalling for  cross-examination the witnesses  who had testified . The defendant declined both offers and was convicted on the amended charge without a plea taken thereto.

Held:

(i) where the ownership is incorrectly described in the particulars of a charge the court should amend the charge and not dismiss it.   Ralph v. Hurrell (1875). 40 J. P. 119,32 L.T. 816 applied:

(ii)  the magistrate was entitled to grant the amendment sought and proceed with the hearing without a plea being taken to the amended charge.

Appeal dismissed.B.O. Adams, Q.C., for the appellant.E. A.  Romao, Senior Crown Counsel (ag.) for the respondent.
Reasons for Decision: The appellant Singh was with one Dennis Goberdhan charged jointly with larceny of eleven shirts, contrary to section 66 (b) of the Summary Jurisdiction (Offences) Ordinance,  Cap,.  14. The ownership of the shirts was laid in the charge as that of “Kirpalani Bros.” At the close of the case for the prosecution, the two defendants also closed their case without leading evidence.

Thereupon counsel for the defendants submitted that it had not been proved that “Kirpalani Bros.” is a registered company or a corporate body. Apparently, the prosecuting officer applied for an amendment of the charge by the substitution for the words “property of Kirpalani Bros .” of the words  “property  of Murley Kirpalani   and Shamdas Kirpalani . The amendment sought was granted by the magistrate and the magistrate thereupon offered the defendants the opportunity of leading a defence to the charge as amended.

They were also offered an opportunity of recalling for cross-examination the witnesses who had testified. The defendants declined both offers. The defendants were both convicted on the charge as amended.  Both defendants appeal against the decision of the magistrate but the defendant Goberdhan subsequently filed a notice of withdrawal of his appeal.

On behalf of the appellant it was submitted that the magistrate erred in point of law when he amended the charge, in that the property had not been laid in a legal persona and was therefore originally bad and that it was not competent for him to amend the charge.         Section 7 (4) of the Summary Jurisdiction (Procedure) Ordinance, Cap. 15 , provides that the description of any offence in the words of the statute creating the offence, or in similar words, with a specification as far as practicable of the time and place when and where the offence  was committed, shall be sufficient in law.

Section 64 of the Summary Jurisdiction (Procedure) Ordinance, Cap. 15, provides as follows:-
“64. Statement of ownership of property.

(1)   Where, in any document in any proceeding under this Ordinance, it is necessary to state the ownership of any property whatsoever, whether movable or immovable, which belongs to or is in the possession of more than one person, it shall be sufficient to name one of those persons, and to state the property to belong to the person so named and another or others as the case may be.

(2)   Where, in the document, It is necessary to mention for any purpose whatsoever any partners or other joint owners or professors, it shall be sufficient to describe them in manner aforesaid.

(3)   The provisions of this section shall be construed to extend to all joint stock companies and associations, societies and trustees.”

Section 94 (2) of the same Ordinance provides as follows:-                                                “(2)   No objection shall be taken  or allowed,  summons, warrant, or other process for any alleged defect  therein in substance or in form,  or for any variance between any complaint or summons and the evidence adduced in  support thereof: Provided that if any variance or defect mentioned in this section appears to the Court at the hearing to be such that the defendant has been thereby deceived or misled, the court may take any necessary amendments, and, if it is  expedient to do so, adjourn, upon such terms as it thinks fit, the further hearing of the cause.”

Chief Justice Luckhoo who delivered the judgment for the Full Court added: Where the ownership is incorrectly described in the particulars of a charge the court should amend the charge and not dismiss it.  In Ralph v. Hurrell (1875), 40 J.P. 119, 32 L.T. 816, where the information charged willful damage  to a lamp affix to a club house, the property was laid in   “E.H.B.,S.C., and F.A., the trustees of the said Club.”  E.H.B. was apparently the lessee of the club, and the lamp was a tenant’s fixture.

It was held  that the justices  were not justified in dismissing the information on that account,  and that the hearing ought to be  adjourned and the defendant offered an opportunity of meeting the point if the justices thought he had been misled, but  that if they thought he was not misled they should have heard the case.

This type of misdescription is to be distinguished from the misdescription of the name of a defendant on a criminal charge where the charge is laid against a firm which is unincorporated. In such a case  a conviction against the firm in the partnership name cannot stand and the court cannot substitute one  defendant for another.           The other grounds argued by counsel for the appellant we found also to be without merit. We therefore dismissed the appeal. Appeal dismissed.

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