Terrell JA:

The facts and arguments sufficiently appear from the judgment.

The discretion of fixing a proper sentence is vested in the Magistrate who tries a case, and an Appellate Court will always be unwilling to interfere with such discretion unless the sentence is manifestly excessive or inadequate, or unless the discretion has been exercised upon a wrong principle.

The accused in the present case was found guilty of secreting a postal package, an offence punishable under s. 69 of the Post Office Ordinance (Cap. 71). The maximum penalty under that section is seven years. The section, however, includes several different offences, which may be divided into two groups:-

(a) theft or dishonest misappropriation, and

(b) secreting, destroying or throwing away, a postal package.

It is obvious that the offences under (a) are of a more serious nature than offences under (b).

In para. 4 of his grounds of judgment the learned District Judge says "Accused, a well paid officer, deliberately stole the $10 from the articles passing through his hands". It is sufficient to observe that the prosecution never charged the accused with theft, and that the evidence necessary to establish a case of theft was not forthcoming.

Then again in para. 3 of his grounds of judgment the learned District Judge says, "accused ... took these two officials (Stoddart and Gurr) off their work in the Post Office to give evidence in Court. The authority pays accused and these two officials to work in the Post Office, not to dissipate their time in fighting out a criminal case in Court".

It is however, the duty of all citizens in a civilized state to give evidence in criminal cases, if they have knowledge of the facts, at whatever inconvenience to themselves, and it was none the less the duty of officials in the Post Office to give evidence in a matter which intimately concerned the proper running of their own department. I have never before heard of a suggestion that the gravity of an offence is enhanced by the inconvenience caused to witnesses. Nevertheless in para. 7 of his grounds of judgment the learned District Judge states that this was one of the matters he took into consideration in fixing the sentence.

If the learned District Judge had not misdirected himself on these points, and had nevertheless imposed a penalty of 12 months ri I would not necessarily have found such a sentence to be manifestly excessive. It is clear, however, that as a result of these misdirections the learned District Judge has imposed a heavier sentence than he would have otherwise considered adequate.

The offence is certainly not one which can be met by a binding over, as was urged by appellant's Counsel, even in the case of a first offender with 15 years of service. Imprisonment is the only punishment possible, but, in view of the circumstances stated above, the sentence is reduced to six months ri.

Sentence reduced.