Banda v State (Criminal Appeal 145 of 2017) [2018] MWHC 857 (22 February 2018)

.. -------· / i Alfred Banda and U,onarcJ Zin/amb ira v The Republic Criminal Appeal No 145 of 2017 Mzl-fC ., ... ··-· ............ ---'4-''ll~ ... -,.. ... HIGH COUR" ; t ; t..lBRARY 1 / l f~ - REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU REG1STRY: CRIMINAL DIVISION CRIMINAL APPEAL NUMBER 145 OF 2017 (Being Criminal Case No 153 of 2016 in the Chief Resident Magistrate Court sitting at Mangochi) BETWEEN ALFRED BANDA ... .. .......... ........ . . : ..... ........ .... .............................. APPELLANT AND THE STATE ... ............. .. ....... .... .. ........ .............. ... ........ . ,, .. ... .... .. . .. RESPONDENT CORAM: HOUNORABLE JUSTICE D. A. DEGABRiELE Mr. vV. Nkosi Mr . . A. Siadi Mrs. L Munthali rv1rs. R Luhanga Counsel for the State Counsel for the . A.ppe!!ant Official Interpreter Court Reporter DeGabriele, . J Introduction JUDGEMENT ON APPEAL The appei!ant vtlas arrested, and charged together V)ith 2 others namely Lazard rv1u!i\vu and Leonard Zintarnbira, v,rith the offence of Theft by Servant contrary- to section 286 of the F\e·nal Code. The brief __ p2rticu!2rs of the offence \/Vere that the convicted person, belvleen the rnonth of Januarv. 2016 and . Julv 20-; e 2t Ch:buku Brevveriss in f\/ianaochi District being the servants en··1ployed by Chibu(~u Products Li rnited as stores supervi2.o:·s 1 ,. ' '-' ~ producti on controt!er- and stores clerk respectively ~:.tc!e i 9300 en1pty packets of Ci1lbuku a!! valued at }(1, 1 OC,090 .00 the property· if C:hibuku F)rcducts Lin1i ted. /-\!! the accused Aifred Barvla amJ Leonard Zintarnbira v The Repub/Jc Cnm inal Appeal No 145 of 2017 MzHC pleaded not guiity. After trial the 1st and 3 rd accused were convicted and the 2 11 d accused \Vas acquitted. They were each sentenced to 5 years imprisonment with hard labou r. The appellant is now appealing against both conviction and sentence . Grounds of Appeal The grounds of appeal are as follows; 1. The lower court erred in law and fact in convicting the appellant of theft by servant when there was no such evidence against him. 2. The learned magistrate court erred in law and fact in convicting the appellant when elements of the offence of theft by servant \Vas not provided against him. 3. The lower court erred in law and fact in failing to take into consideration all the factors which clearly pointed to it that the appellant did not commit the said offence. 4. The sentence of 5 years imprisonment with hard labour was excessive in the circumstances regard being had to all the mitigating factors e.g. being a first offender. The Law In cases of appeals to the High Court, the fv1almvi Supreme Court of Appeal laid the principles in Pryce v Republic (1971-72) 6 ALR (Mal) 65, that "In our opinion the proper approach by the High court to an appeal on fact from a magistrates' court is for the court to review the record of the evidence, to weigh conflicting evidence and to draw its own inferences. The court . . .. must then make up its own mind, not disregarding it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is vvrong". The High Court would, after perusing the record of the lower court come to a conclusion of w hether or not there \Vas sufficient evidence to justify the find:ng of facts and law of the lov;er court. • - Alfred Banda and Leonard Zintambira v The Republic Cnrnina! Appeal No 145 of 2017 MzHC The State has a duty to prove each and every element of this offen ce and the standard required by the criminal law is beyond a reasonable doubt. Section 187(1) of the Criminal Procedure and Evidence Code provides that, "The burden of proving any particular fact lies on the person v,;ho wishes the court or jury as the case may be to believe in its existence, unless it is provided by any v1ritten law that the proof of such fact shall lie on any particular person. Provided that subject to any express provision to the contrary in any written law the burden of proving that a person is guilty of an offence lies upon the prosecution''. Under section 187 of the Criminal Procedure and Evidence Code, the iaw stipulates that the burden of proving that a person who is accused of an offence is guilty of that offence lies upon the prosecution. Further, under sub-section (2) of the above section the law places the burden of proving any fact necessary to be proved in order to enable any person to give evidence of another fact is on the person who wishes to give such evidence. A court of law \Vii!, on being satisfied that the case has been proved beyond reasonable doubt, convict a person charged with a crime. Failing to prove a criminal matter to the requisite standard of proof beyond reasonable doubt vviil lead to an acquittal, see DPP vs Woolmington (1935) A. C. 462 The Evidence The first prosecution witness told the lower court that he worked in the accounts department as Chibuku Products Limited. He stated that on 12th July 2016, 16 bags of rnaize v-.rhich 'Nere in the custody of A!fred Banda, the first accused (and the appellant herein) were stolen. He was taken to ths police together with G4S guards. While in custody the appsilant adrnitted to have carried out the theft and that Leonard Zintambira 'N2S a!so involved. Leonard Zintarnbira was suspended. A requisition for sleeves to pack Dser 'Nas made but it was discovered that 38 boxes \Vern em pty without the sleeves. On 1 (~~h . Juiy 2016, tr1e ! st ,~ccused vvas due to be released on bail but he vvas further- detained as he was the one 'Nho had custody of the cartons. The 1st and 3rd accused we re stores clerk at1d assistant stores c!erk and vvere responsible for supplying the cartons. The v1itness V./as of the vi?:V/ that since no other cornp2 ny uses the sleeves 1 they did not go :, .) - Aifred Banda and Leonarcl Zintambira v The Rep u/J /ic Criminal Appeal No 145 of 2017 MzHC out empty but were used to steal beer. The dispatch clerk ran away and remains at large. In cross examination the witness stated that a stock taking was done every Friday. v\/hen the 1st accused was arrested, the keys were given to the 2nd Accused . The keys were given to the witness on the night of the 13t1i of Ju!y 2016 by the 3rd Accused and the next day the missing cartoons were discovered. During stock take the number of boxes \Nere counted but not the number of sleeves in each of the boxes. The missing sleeves were for the consignment of March 2016. PW2 told the court that each of the boxes had 500 sleeves inside and 38 boxes were found to be empty as the sleeves were missing . . At the scene of crime, the witness explained and demonstrated how the boxes were packed. He also stated that the theft of the sleeves 'Nas done systematically and bit by bit. The 3rd accused was the production contro!!er who requisitioned the cartons from the I st /1,ccused who was the stores clerk and his assistant stores clerk who was the 2nd accused . There was no possibility of receiving ernpty boxes from suppliers . Once the sleeves were used, the empty boxes were soid off by management and were not brought back to the stores. !n cross examination he stated that the sleeves can go up to the next month depending on production and consignments, and that the 2na accused fo!!owed procedures on writing requisition forms. He did not know why the 3rd accused was not called on the day the discovery was made. PV\/3 was tl,e casual labourer who had been sent to collect 45 boxes and discovered that the boxes were empty. He a!so stated that he was involved in putting the boxes in the \Varehouse supervised by the 1st and 2na accused persons. In cross examination he stated that ti1e boxe-s were full on arrival as they 1Nere sealed and the 1st accused was present when the boxes arrived. PW4 vvas the investigation office:·. He stated in cross exam ina tion that he did not rne2t all three accused persons \Vhen he visited the scene of crin1e as th e 1st accused vvas in custody and the other 2 vvere not there. ·rhe keys to the vvarehouse vvere \-vith f\/lr. iv1unthalt who had reported the matte 1·. [i\f\11 Vlas tl:e 1st accused V\!ho told the lovv'er court that he reported for v1ork in i'\ovember 2015 and the:,e \Vas a stock taking betv\reen hir11 1 the a cting stores assistant and another~ - Alfred Banda anc! Leonard Zintambira v The Republic Cnrninal Appeal No 145 of 2017 MzHC for purposes of handover. He told the court that there were 50 boxes remaining and the production department had received 45 boxes, and there were 5 remaining in the warehouse. A stock taking was done in February 2016 and Blessings was removed and Zintambira came to join the ·pt accused as assistant stores clerk. During the Fridays and monthly sock taking no boxes were found to be empty. In May 20·16 the 1st accused and 2nd accused agreed among themselves that one of them should come to work early to facilitate speedy processing. The 2nd accused came early and he had the keys. D\N1 went to Blantyre for a 2-day training on 25th or 2st11 June 2016 and on return he found out that a consignment of 560 boxes had been received and the 2nct accused had signed the delivery notes. DW1 stated that some maize was received and was kept in a room where boxes and maize were stored and the accountant had the keys to this room on 11th July 2016. On 14th Juiy 2016 he was taken back to the office where he was told that some sleeves were missing from their boxes. He was shown the store house, then he was taken to the production and was arrested. DW1 explained that production department requisitions the boxes of the sleeves and the stores issues the boxes with a note. The accountant then verifies the requisition and the supplied boxes. In cross examination he stated that he never gave out shortages and he ne'.1er dispatched without a requisition form. He stated that he was not present when the shortage was discovered and he had handed over keys when everything was in order. He stated that he was taken to police on maize issue. In cross examination he stated that he J1ad the keys from January to May and Zintambira had keys from rvlay to July. He a!so stated that the boxes which were empty which he was shown 'Nere from the January to May period. He a!so said that there was no way that empty boxes vvere taken back to the sto:·es but that sometimes production returned boxes \Vhich stili had some sleeves back to stores. He stated that he received a consignment of 595 boxes in Decernber oniy. He knev.; that the dispatch rider was at large . 0\/\/2 \N3. S the production cc,ntroile: wr-:o had requested 50 cartons through a requisition . The accountant then asked if hi.s vvas ready to receive and he sent some labourers deliver the cartons. The i2bourers then reported that the boxes were empty. He then told Zintambira V/ho advised llirn to talk to the accountant V/ho had opened the store roon1 on that day. There were 38 boxes \Vhich \Vere empty. DW2 was thsn arrested . in cross - Alfred Ban(la and Leonard Zintamt)ira v The P.epuiJlic Cn!'ninal Appeal No 145 of 2017 MzHC examination he stated that that on the date it was different men who went to coliect the cartons and discovered the empty cartons. This was also the first time Munthali was issui ng cartons and Leonard was fueling a car. He also stated tha.t no boxes were issued without the accountant signing off the requisition . He said that empty boxes were laid flat and could not be stacked. He also stated that he used to send his own men to collect the boxes. He also stated that some empty boxes \Viii return from production team after failing to sell them but they would be flattened out. He just sent people to collect the boxes but he himself never went to the stores . He stated that all empty boxes were sold on 12th and 14th July 2016 and none were returned to the store room. He also said that one of his men was the one taking empty cartons back to the stores. He said that he knew the dispatch rider and that he was at large. He also stated that some boxes would be pul!ed of the delivery van when they ran out of boxes. DW3 stated that he was an assistant stores clerk and that on 14th July 2016 he was told on arriving at work that there were empty cartons found in the store house . He was fueling a vehic!e at that time. He said the accountsnt then bought police officers to the store house and the witness was arrested. He st3ted that he kept keys for on!y 2 days. He also stated that the accountant had spare keys and had access to the store room a!so . He stated that the accountant never issued cartons. He also stated that he was the one who did the physical count of the cations during stock taking . He said after the 1st accused v..;as arrested he kept the keys only for 2 days but from January to July 2016 it was hin1 and the 1st accused who kept keys and had access to the warehouse. He said in stock taking they counted boxes from the top to the bottom and from the left to the right but not checking the contents of the boxes. The concerned boxes were packed against the wail and it was not easy for anyone to know that they were empty. • There are four grounds of appeal. /\ iook at the four grounds of appeal reveals that the first three grounds talk to t'."le same thing wriich is the prosecution d/d not prove the elements of the offence against the appe!iant beyond re asonab le doubt. I have looked at the evidence before the lovver court and i have exarnined the judgment of the lovver court. The lovie1· court vvas very c!ear in its process of identifying the elements of the offence - Alfred Banda and Leonard Zintarnbira v The Repu/Jlic Criminal Appeal No 145 of 2017 MzHC and anaivzina the evidence. i do not find fault with the judgement of the lower court , ..., Section 286 (1) of the Penal Code stipulates that; ''if the offender is a clerk of servant and the thing stolen is the property of his employer. or came into the possession of the offender on account of his employer, he shall be liable to imprisonment for fourteen years" The elements of the offence of theft by servant are that the accused must be an employee, that he must have custody of the things stolen, that the things belong to the employer and that the accused fails to produce the things when required to do so. In this case, the appellant was an employee and some 38 boxes containing 500 sleeves each \Vere missing and the appellant had control and custody of the same and he failed to account for the same. In his evidence in the lower court the appe!iant admitted that he had custody of the keys from January to ~v'iay 2016, and that the 38 empty boxes were from the consignment of the same period of January to May 2016. The evidence of all the witnesses indicate that t!1e \Nay the ernpty boxes vvas stores was tr-iat they were packed against the wall at the back and it \Nas difficult for anyone to notice that they were empty unless they !if-ted them . Further, ali evidence shows that there was regular stock taking but it was stock taking that only counted the boxes from top to bottom and from left to right without physicai!y checking the contents. The stock taking vvould not have revealed that the sleeves contained inside the boxes were missing or stolen. The appellant's evidence about a stock taking of 50 boxes was for the year 2015 when he arcived in Mangoch i and does not make sense or add value to the 2016 stock, unless he showed the court that the 5 remaining boxes were empty as well . The appeliant also acknov;iedges that sometimes boxes with sorne sleeves \Vere returned to the storehouse. :t is the conclusion of this Court that returning such partially fiiied boxes opened up the possibility of pilfering; in that other boxes were opened and their contents re -distributed . based on the nurnber cf sleeves returned in sorne of the boxes. The appeliant 'Nas aware • of this and he was in sole control together 1.:vith the 3rd convict of the store house. He had - the tirrfe and opportunity to systen1atica!iy pilfer the bo.xes. Alfred Banda and Leonard Ziniambira v The i"<.epub!ic Criminal Appeal No 145 of 2017 Mzl-fC The evidence of PW1 showed that the sleeves were unique to the company and could not be soid at the market. His opin ion was that the sleeves were used to sell beer. At this point, it was not essential for the prosecution to prove that the appellant had stolen beer through the use of the sleeves. The elements require that the appellant who was an employee, was in custody and control of the propetiy belonging to his employer and he failed to account for it when he 'Nas called to do so. Tl1e evidence of DW2 showed that specific men were the ones sent to collect the boxes. On this day of discovery, different men went to co!lect the boxes. It seems to this Court the ·usual' men knew which boxes not to take while the new men just decided to take whicl'1ever boxes . The theft was only discovered when the persons who had the usual and daily control and custody of the warehouse or storeroom were not in contrnl. This goes to the point that the theft of the sleeves from the 38 boxes was systematic and done over a period of time and the theft was only discovered in July 2016. The evidence shows that the theft did not occur on the days the keys had been handed over to Mr. Muntha!i or the accountant. The appellant together vvith the 3rd convict had fu!i access to the vvarE.:house and vvhen their full access v,1as interrupted, the systematic theft vvas discovered. The appellant has argued that when he handed over the keys \. Vhen he was put into custody for the maize issue, there was no problems on the stock in the warehouse. This Court notes that there is nothing in evidence here to state that an actual stock taking was done on that day. The handing over of the keys were just done because the appellant was being taken into CU§>tody. !n view of the foregoing, i find that the lower court correctly found that the prosecution had proved the offence against the appellant. I therefore confirm the convicti on and the appeal against the conviction fails and its dismissed. The 2ppeliant \vas sentenced to 5 years in:prisonrnent for the offence of theft by a servant. Trie sentence is punishab!e by a maximum prison sentence of 14 years. The appe!iant has 2ppea!ed against the sentence, stating that the sentence was manifestly excessive because they Viere strong n1itigating factors; \.'Vhich vvere that he \Vas a first offender and there \Vas no l12rm occasioned in the cornrniss!on of the offence. It is settled !avv that 'N!1ere a convicted person has been shovm to riavs a lead a clean and blameless lifo prior - Alfred Banda and Leonard Zintaml>ira v The Rep ubfjc Criminal Appeal No 145 of 2017 MzHC to his conviction, such factors goes to his credit and ought to be given meaningful consideration as the court address its mind to th e question of sentence, see The Republic v Eneya and others criminal case no 53 of 2000. However, every sentence or punishment has to be considered based on the circumstances of the case, and the aggravating and mitigating factors attendant thereto. Indeed, in mitigation, th e appellant is a first offender. However, the aggravating factors were that the breach of trust as he was employed for the specific reason of taking care if the ve ry storeroom he stole from, and the theft occurred in a systematic well-planned manner and the stolen sleeves valued at Mf<1 ,000,090.00 were not recovered. Against a maximum sentence of 14 years as provided by the law, I find that the sentence of 5 years imprisonment with hard labour was not manifestly excessive in the circumstances. I therefore confirm the sentence. The appea: against the sentence fails in its entirety. Made in Chambers at fv'lzuzu Registry this 22 11 d day of February 2018 -------·---- ~-~· Ot/1112 Ji,d J1 D. A. DEGi-t.~ .... t:LE r JUDGE -