By K Quincy Parker

Disgusted with the failure of the government to shut down cash-for-gold businesses, former Assistant Commissioner of Police Paul Thompson Sr. recently urged the police to ramp up the use of the charges of Receiving and Unlawful Possession.

The Journal has examined the Penal Code, and we give below a summary of the highlights of these charges.

Section 62: Explanation of Dishonest Receiving

Section 62 (1) of the Penal Code says that a person is guilty of dishonestly receiving any property which he knows to have been obtained or appropriated by any crime or offence, “if he receives, buys, or in any manner assists in the disposal of the property otherwise than with a purpose to restore it to the owner.”
Section 62 (2) makes it immaterial whether the crime or offence by which the property was obtained or appropriated was or was not committed within the jurisdiction of the court. Under this section it is also immaterial if the property was obtained or appropriated beyond the jurisdiction of the court by an act that – if committed within the jurisdiction – would be a crime or offence punishable under the Penal Code.

“Such act is for the purposes of this section, equivalent to an offence punishable under this Code,” the law reads.

Section 62 (3) makes it possible for any number of receivers to be tried together.

Section 63: Detention For Unlawful Possession

Section 63 (1) allows any peace officer to stop and detain – without a warrant – any person having in his possession anything which may be reasonably suspected of being stolen or unlawfully obtained, in order to ascertain who the person is and the nature of such thing in his or her possession.

The law makes it the duty of the peace officer to detain anyone unable to give a satisfactory account of himself or herself and of his or her possession of the thing in question. The person, the thing and the vehicle containing the thing (if one exists) are all liable to detention until the question of ownership of the item goes before a magistrate.

Section 63 (2) also allows for anyone to whom anything is offered to be sold, pawned or delivered – if he has reasonable cause to suspect that the item may have been improperly acquired – to apprehend “and forthwith take before a magistrate the person offering the same, together with such thing, to be dealt with according to law.”
Section 63 (3) and(4) pave the way for immediate detention of anyone – by anyone, and without a warrant – found in the act of stealing or found committing the offence of dishonestly receiving anything, and stipulates the standard for a search warrant.

Section 64: Accounting To The Court

Section 64 is crucial to Mr. Thompson’s argument: he says that the charge of unlawful possession is one of the few charges in law in which the accused must prove his innocence, rather than the state being charged to prove his guilt.

Section 64 (1) lays out the ways in which a magistrate may examine the evidence and determine who had possession of the item(s) in question, but the following line is pertinent:
“ …and if it appears to the court before which the matter is tried that any person or persons so brought before it had possession of such thing, every such person may be deemed to have had possession of such thing at the time and place when and where the same was found or seized, and the onus probandi shall be on him or them to show that such possession was honestly come by.”

“Upon the refusal or inability of any such person or persons to satisfy the court that such possession is or was lawful, it shall be deemed prima facie evidence of his or their guilt of the offence charged in relation to such possession,” the law says.

Section 62 (2) makes the possession of a carrier, agent or servant the possession of the person who employed such carrier, agent or servant to convey such thing.