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Mohamed Hassan v. R., Crim. App. 348-D-68, 6/11/68, Biron J.



 Mohamed Hassan v. R., Crim. App. 348-D-68, 6/11/68, Biron J.

The appellant was convicted of burglary and stealing c/s 294(1) and 265, Penal Code and was sentenced to imprisonment for two years and six months respectively, to run concurrently, and to the statutory twenty four stokes corporal punishment. The appellant had previously been employed as a house servant by the complainant. He admitted that he had taken the clothes from the complainant’s room by opening the widow and “pole-finishing” then out. He justified this by declaring that the complainant had dismissed him from his employment owing him three moth’s wages, and, as the complainant had failed to pay the wages due to him, despite repeated requests, he decided to take his clothes.

Held: “If the appellant’s story is true, it would constitute a defence to the charge, as the appellant may well have thought he was acting under a claim of right. Although it was never put to the complainant that he owed the appellant any wages, it must be borne in mind that the appellant is but a youth ……. That could well account for his failure to put his case to the complainant in cross examination, and likewise for his taking the complainant’s clothes, if in fact the complainant owed him wages which he refused to pay. The learned magistrate in his judgment has not directed his mind to this aspect of the case as to whether the appellant was acting under a claim of right. Had he done so, he might will have thought that there was a reasonable doubt whether he was in fact so acting. In all the circumstances of the case, I consider it would be most unsafe to uphold the conviction. It is not irrelevant, I think, to not, though this would not be known to the magistrate, that his was the appellant’s first appearance in court, and a good record is an asset which can be used to weight the scales in an accused’s favour, particularly so in a case of this nature. The appeal is accordingly allowed, the conviction is quashed, and the sentence imposed thereon is set aside”.

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