Chewe v The People (APPEAL NO/ 179/2022) [2023] ZMCA 229 (31 August 2023)

• IN THE COURT OF APPEAL HOLDEN AT NDOLA (Criminal Jurisdiction) OF ZAMBIA APPEAL NO/ 179/2022 BETWEEN: BRUCE CHEWE APPELLANT AND THE PEOPLE RESPONDENT CORAM: MCHENGA DJP, MUZENGA AND CHEMBE JJA on 23rd August, 2023 and 31st August, 2023 For the Appellant Mr. Manda Kapisha -Legal Aid Counsel Legal Aid Board For the Respondent Mr. G. Zimba -Deputy Chief State Advocate, Authority National Prosecutions JUDGMENT CHEMBE, JA delivered the judgment of the Court to: Cases referred 1. George Misupi vs The People (1978) ZR 271. 2. Musonda and another v The People (1976) ZR 218 3. Steven Nyoni v The People (1987) ZR 99 4. Siwale and another ZR 182 (CA). vs The people (1973) 5. Savenda Management Services Limited vs Stanbic Bank Limited SC Selected Judgment No. 10 of 2018 J2 6. Muvuma Kambanje Situna vs The People ( 1982) ZR 115 7. Tick v The People (1968) ZR 21. 8. Chimbini vs The People ( 1973) ZR 191 9. Mutambo and Others v The People (1965) ZR 19 10. Mwape v The People ( 1976) ZR 160 11. Bless Kapepa v The People Appeal No. 08 of 2021 Legislation referred to: 1. The Penal Code Chapter 87 of the Laws of Zambia 1.0 INTRODUCTION 1.1 The Appellant was convicted of one count of aggravated robbery contrary to section 294 (1) of the Penal Code and sentenced hard labour by lady to 15 years imprisonment with Justice Ms. C. B. Maka. 1.2 The particulars of offence were that on 22nd January, 2021, the appellant and Moses Mudenda at Livingstone and jointly whilst acting together stole a cellphone valued at K3,500.00 the property of Archie Mubika and at or immediately before or immediately after such stealing did use or threaten to use J3 actual violence to the said Archie Mubika in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained. 2.0 THE PROSECUTION'S EVIDENCE 2.1 The prosecution called 3 witnesses 1n support of its case. According to the prosecution evidence, on 22nd January 2021 around 20:30 hours, the complainant Archie Mubika was walking home with his friend Kondwani when they encountered the Appellant and his colleague. 2.2 The Appellant and his colleague confronted the complainant and his friend and grabbed a water bottle whilst brandishing a knife and threatening to assault them with a brick. There was evidence that in the melee that ensued, the Appellant's colleague got a phone from Archie's pocket. 2.3 Archie and his friend managed to escape from their assailants and went home. When he got home, Archie reported what had happened to his aunt who relayed the information to his mother. The matter was reported to Dambwa Central Police on the same night. J4 2.4 When his aunt called Archie's phone number, someone answered and claimed that Archie owed him some money. 2.5 The following morning, Kondwani to the led the complainant home of the Appellant's co accused but they did not find him. With the help of some people, the Appellant and his co accused were apprehended. 2.6 The Appellant was found in possession of the stolen cellphone which was identified by Archie as his. The Appellant and his colleague were arrested and detained. 3.0 THE DEFENCE 3.1 The Appellant denied that he took part in the robbery. His explanation was that as he was walking home on 22nd January 2021 with Moses when they met the complainant and his colleague along the way. 3.2 Moses informed him that he recognized the complainant as the person who had stolen his money. Moses confronted the complainant and held him by his hand. An argument ensued where the complainant started struggling with Moses. When Kondwani joined the melee and hit Moses, the Appellant JS intervened. The complainant and Kondwani started running away and it was whilst they were running that the phone fell from the complainant's pocket. 3.3 Moses picked the phone and they tried to follow the complainant but did not find him. He advised Moses to keep the phone safe in case the owner went back for it. 3.4 He informed the Court that the following day, four guys confronted Moses and demanded for Archie's phone but he refused to hand it over until Archie gave him back his money. 3.5 Later as he was going to Choppies with Moses, some guys started beating them. Archie came on to the scene and searched him. He found the phone that Moses had given him. He was taken to the police station where he was arrested and detained. 4.0 DECISION OF THE COURT BELOW 4. 1 After evaluating the evidence before her, the learned trial Judge found that there was undisputed evidence that on 22nd January, 2021 around 20:30 hours, there was a confrontation J6 between the Appellant and his co accused on one hand and the complainant and Kondwani on the other. 4.2 The learned trial Judge rejected the evidence that the complainant had stolen K250.00 from Moses as it was discredited in cross examination. She also rejected the evidence that Moses picked the phone as the complainant was running away and found that he physically grabbed the phone from the complainant's pocket. She accepted the evidence that the appellant had threatened Kondwani with a knife. 4.3 She rejected the evidence that the Appellant took possession of the stolen phone moments before they were apprehended as it was illogical. She found that the Appellant and Moses were acting jointly. 4.4 The trial Judge found that the prosecution had adduced sufficient evidence to prove the offence of aggravated robbery and convicted the Appellant and Moses. J7 5.0 THE APPEAL 5.1 Dissatisfied with the decision of the trial Court, the Appellant lodged this appeal in which he raised the following grounds of appeal. 1. The trial Judge erred in law and fact when, without supporting evidence, found and held that the Appellant acted together with Moses Mudenda and stole a phone from Archie Mubika and consequently convicted the appellant of aggravated robbery. 2. The trial Court erred in law and fact when it convicted the appellant on uncorroborated evidence of a suspect witness or a witness with an interest to serve. 3. The trial Judge did not accord the appellant a fair trial when it/ailed to inquire into his actual age. 4. The trial court erred in law and fact when it failed to give adequate consideration to the appellant's evidence and defence. 6.0 THE APPELLANT'S ARGUMENTS 6 .1 In support of the 1st ground of appeal, Counsel for the appellant submitted that there was no evidence that the appellant participated in the commission of the offence. He charged that the trial Judge made findings that the appellant participated in the robbery which were not supported by JS evidence. He argued that the evidence of PW 1 was that the appellant was tussling with Kondwani when the juvenile offender grabbed the phone. 6.2 It was submitted that the appellant could not have acted jointly with the juvenile offender as he only became aware of the phone after the juvenile offender came back with it. Counsel submitted that the appellant's was evidence supported by the juvenile offender who confirmed in his testimony that he chased after PWl and Kondwani and picked the phone. He challenged the trial court's finding that the appellant used force and acted together with the juvenile offender to steal Archie's phone. 6.3 A further argument by the appellan t was that the finding that he was wielding a knife was not supported by the evidence. It was submitted that the only evidence available was the uncorroborated evidence of PWl as Kondwani was not called as a witness. J9 6.4 The appellant also argued that even if it were to be accepted that a knife was used by the appellant, the evidence was that it was Kondwani who was threatened with a knife and not PWl. 6.5 Regarding the second ground of appeal, that it was submitted the complainant was a suspect witness whose evidence required corroboration. The appellant contended that PWl belonged to a category of witnesses whose evidence required corroboration as was held in the case of George Misupi vs The People1 • 6.6 In relation to ground three, the appellant submitted that the accepted practice in criminal matters court to was for the trial conduct an inquiry into the age of the accused immediately after receiving an indication that the accused person might be a juvenile. Our attention was drawn to the case of Musonda and another v The People2 where the Supreme Court pronounced itself on the issue. 6.7 It was submitted that the record showed that the trial court first received information that appellant might be a juvenile on 19th May 2021 when the appellant stated that he turned 19 in January. The appellant's argument was that the court should JlO have realized that the appellant was a juvenile at the time of commission of the offence in January 2021. 6.8 It was submitted further that the failure by the trial court to inquire into the age of the appellant resulted in the appellant suffering injustice as he was sentenced as an adult in accordance with the law. We were referred to the Juveniles Act which defined a juvenile as a person who has not attained the age of 19 years. 6.9 We were also referred to section 73 of the Juveniles Act which provided guidance on sentencing of a juvenile who has committed a serious offence. Reference was also made to the case of Steven Nyoni v The People3 where the Supreme Court held that a Juvenile tried as an adult should be sentenced as a juvenile. We were urged to follow the decision in Siwale and Another vs The People4 • 6.10 In relation to ground four, the appellant criticized the trial court's failure to consider the all the evidence before it. It was submitted that the trial court totally ignored the appellant's Jll evidence and defence. It was argued that the trial court in analyzing the evidence did not refer to evidence of the appellant before it contrary to the guidance in Savenda Management Services Limited vs Stanbic Bank Limited5 here the Supreme stated that the decision with must show that the judge wrestled the parties' claims and arguments. to the We were also referred cases of Muvuma Kambanje Situna vs The People6 and Tick v The People • 6.11 We were urged to allow the appeal and quash the conviction and sentence and set the appellant free. 7.0 THE RESPONDENT'S ARGUMENTS 7.1 In response, the respondent supported the decision of the trial court. Regarding the first ground of appeal, the respondent submitted that there was evidence adduced by PW 1 that the appellant was acting together with the juvenile offender when they robbed him of his phone. Reference was made to page 19 of the record of proceeding where PWl testified appellant had threatened Kondwani with a knife. J12 7.2 As for the assertion that PWl was a suspect witness whose evidence needed to be corroborated, the respondent submitted that as held by the Supreme Court in the case of Chimbini vs The People8 , a conviction on uncorroborated evidence of a single witness was competent. 7.3 On the argument that the threat of violence was directed at Kondwani (from whom nothing was stolen) and had no bearing on the theft of the phone, the respondent that submitted according to Section 294 of the Penal Code there was no requirement that the threats of violence should be directed to the person in possession of the thing stolen. We were referred to Section 21 of the Penal Code which defines the doctrine of common purpose. The respondent maintained that the evidence showed that the appellant was acting together with the juvenile offender during the commission of the offence. 7.4 Regarding the second ground of appeal, the respondent submitted that whilst the evidence of a child below the age of 14 required corroboration in terms of Section 122 (b) of the Juveniles Act, PW 1 was 14 years old at the time of testifying and therefore did not require corroboration. J13 7.5 On the argument into that the trial court should have inquired the actual age of the appellant of the at the time of commission offence, the respondent submitted that whilst that was the correct position of the law, there was no such indication during the trial as the defence counsel had informed the court that the appellant was not a juvenile. 7 .6 Relying on the case of Nyoni v The People3 and Section 302 of the Criminal Procedure Code, the respondent that submitted the trial court was entitled to try the appellant as an adult but was required to treat him as a juvenile for purposes of sentencing. It was however contended that in mitigation, no submission was made that the appellant at the was a juvenile time of commission of the offence. It was submitted there was no injustice that was occasioned to the appellant as a result of the sentence. 7.7 In relation to ground four, the respondent submitted the trial court did give adequate consideration of the appellant's evidence and discounted as disclosed at pages 87, 79 and 80. We were urged to dismiss the appeal in its totality. J14 8.0 DECISION OF THE COURT 8.1 We have carefully considered the judgment appealed against together with the grounds of appeal and arguments advanced by both parties. According to the first ground of appeal, the appellant is challenging the decision of the trial court on the ground that the prosecution did not adduce sufficient evidence to support a conviction on a charge of aggravated robbery. The issue we need to determine is whether is whether the trial Judge was entitled, on the evidence before her, to find that the prosecution had established to the required standard that the Appellant had robbed with Moses Archie whilst acting together Mudenda. 8.2 From the evidence adduced, it was not disputed that the Appellant's co accused, Moses, took possession of the complainant's phone on the evening on 22nd January 2021. The evidence also showed that the complainant did not permit Moses to take the phone. Moses' own evidence was that he picked it when it fell as the complainant was running away. evidence 8.3 The Complainant's as reflected at page 19 of the record JlS was that the appellant and Moses confronted them and demanded for money. He explained while the appellant snatched a drinking bottle from Kondwani, the Moses grabbed phone from his pocket. 8.4 The Appellant's testimony was that there was a struggle between Moses and the complainant which he broke up. This corroborates the complainant's testimony that he struggled with Moses in a bid to retrieve had his phone which the latter grabbed from his pocket. 8.5 According to Moses, he confronted the complainant because he owed him money. If that was the case the logical reaction would have been for the appellant to assist his colleague to recover his money. His explanation that he was only separating the fight did not ring true and was correctly rejected by the trial court. 8.6 There was also evidence that when Kondwani tried to rescue the complainant, the Appellant prevented him from doing so by brandishing a knife. The Appellant's own evidence which was J16 confirmed by Moses was that the complainant and Kondwani ran away from the scene. 8.7 In our view, the complainant ran away because he was threatened and feared for his safety. There is no other explanation for his fleeing given the evidence that he tried to recover his phone from Moses. The above shows that there was evidence that the appellant was acting together with Moses in the robbery. On the basis of the evidence adduced, the learned trial Judge was entitled to find that the offence of aggravated robbery had been committed by the appellant and Moses. 8.8 From the 1st ground of appeal and the defence proffered, the Appellant disassociates himself from the offence by maintaining that the only role he played was to intervene in the fight between Moses and the complainant. 8.9 However, his conduct does not support this stance. The Appellant's testimony was that when the complainant dropped the phone, they followed him so that they could hand the phone back to him. He claims to have told Moses to look after the phone in case the owner came back for it. But when he was J17 confronted by the men who were demanding the complainant's phone, he hid it in his pocket. Surely if he had not been part of the robbery, he would have handed over the phone. 8.10 The trial Court was entitled to hold that the appellant and Moses acted jointly with a common design in stealing the phone. Section 22 of the Penal Code provides as follows on the doctrine of common purpose: "When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such an offence is committed of such a nature that its commission was a probable consequence of such a purpose, each of them is deemed to have committed the offence." 8.11 There is a plethora of cases where the Court has interpreted the doctrine of common purpose. In the case Mutambo and Others v The People9 the Court of Appeal held that: "Under section 22 of the penal code, 'the common purpose' need not be by express agreement or otherwise premeditated. For purposes of section 22 of the penal code a probable consequence is that which a person of average competence can foresee as likely to follow from a given course of action. who did not participate in the offence." J18 8.12 In Mwape v The People10 the Supreme Court held as follows: "In law a participation which is the result of a concerted design to commit a specific offence is sufficient to render the participant a principal". 8.13 In the present case, the evidence establishes that the Appellant assisted Moses in retaining the stolen cellphone by threatening violence to Kondwani and restraining him from assisting the complainant. He did not disassociate himself from the offence by taking the stolen cellphone to the police station or leaving the scene. Instead when confronted by the men sent to retrieve the phone, he opted to hide the phone in his pocket. In my view this behavior is not in accord with a person to look after the phone in case the owner came back for it. 8.14 Further, the Appellant's testimony that he told Moses to keep the phone safely in case the owner went back for it shows that he knew that there was no reasonable justification for keeping the phone and that Moses had no basis for holding on to it. In my view this was a feeble attempt to reduce his moral blameworthiness which directly contradicted his co accused's • • •. J19 evidence that he had some legal justification for taking the phone. 8.15 The appellant also submitted that the Court erred when it found that a knife was used in the commission of the offence as there was no evidence to support the finding. the However, appellant did acknowledge that there was evidence from PWl who testified Kondwani was threatened with a knife. The appellant made a bizarre submission that even if the knife was used to threaten Kondwani it cannot be said that this qualified to be a threat of violence against the complainant to satisfy the requirements of the offence of aggravated robbery. 8.16 However, as correctly submitted by the respondent, section ( 1) of the Penal Code which provides for the offence of aggravated robbery does not state that the violence has to be directed at the person in possession of the item that is stolen. The section provides that: "Any person who, being armed with any offensive weapon or instrument, or being together with one person or more, steals anything, and, at or J20 immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony of aggravated robbery ...... " (emphasis ours) Clearly the above shows that the threat can be of violence directed to any person. The submission by Counsel for the appellant in this regard is therefore completely misconceived. 8.17 We are inclined to agree with the respondent that the was sufficient evidence to support acted a finding that the appellant together with Moses in the commission of the offence. The first ground of appeal therefore fails. 8.18 In the 2nd ground of appeal, the appellant argued that the trial Court convicted him on the evidence of on the uncorroborated evidence of a suspect witness. We note that the appellant did not articulate the basis for deeming the complainant to be a suspect witness. But it would appear that the appellant was • J21 relying on the Juveniles Act which provided that in section that the evidence of a child below the age of 14 years needed to be corroborated by other material evidence implica ting the accused. 8.19 As correctly submitted by the respondent, the record shows that the complainant told the court that he was 14 years old. This evidence was not challenged by the appellant in cross examination or at any other time during the trial. It follows, therefore, that the evidence of the complainant did not require to be corroborated as a matter of law. 8.20 The second ground of appeal lacks merit and fails. 8.21 In ground three, it was submitted that the trial court failed to accord the appellant a fair trial when it failed to inquire into his actual age when it first received information that he might be a juvenile. The appellant contended that he suffered an injustice as a result of the failure to inquire into his age as he was sentenced when as an adult when the offence was committed he was a juvenile at the time of commission of the offence. • . " JZZ 8.22 We accept that section 118 of the Juveniles Act placed a duty on the trial court to inquire into the age of a person before it who appeared to be a juvenile. In the present case, the record shows that the appellant was legally represented when he appeared before court for trial. His Counsel informed the Court that he turned 19 in January 2021. In our view, the submission by defence counsel absolved the trial court of the duty to inquire into his age. 8.23 The trial court was therefore entitled to try the appellant as adult. We are fortified in this view by the decision in the case of Steven Nyoni vs The People3 (supra) where it was held a person who is no longer a juvenile should be tried as an adult. 8.24 However, the real issue in contention appears to be that when sentencing the trial court did not consider that the appellant committed the offence when he was a juvenile. In the Steven Nyoni case referred to above, it was held that for purposes of sentencing, a person who was a juvenile at the time of commission of the offence should be sentenced as a juvenile although he was tried as an adult. .. J23 8.25 In view of the foregoing, we agree that the trial court fell into grave error when it ignored the law and practice on sentencing of offenders who were juveniles at of the the time of commission offence. Although the issue was not advanced in mitigation, the trial court had an obligation to consider the age of the appellant at the time the offence was committed because it was on record that he had just turned 19 at the commencement of trial. 8.26 In our view, had the trial court addressed its mind to the issue it would not have sentenced the appellant to the mandatory minimum sentence of 15 years imprisonment with hard labour in view of the restrictions on the type of punishment that can be imposed on juveniles that were contained in the Juveniles Act. In the case of Bless Kapepa v The People11 we stated that the general rule is that a juvenile adult should be sentenced based on the age he was at the time he committed the offence. We therefore find that this ground of appeal has merit and we allow it. 8.27 Regarding the fourth and final ground of appeal, the appellant charged that the trial court failed to consider the appellant's evidence and defence in its judgm ent. We have carefully J24 perused the judgment of the trial court and have noted that the trial Judge was faced with two conflicting accounts and on the basis of credibility, she accepted the prosecution witnesses' version. 8.28 We therefore find that the trial Judge did consider the appellant's evidence. We do not find any merit in this ground of appeal and it fails. 9.0 CONCLUSION 9.1 Our conclusion 1s that all the necessary of the ingredients offence of aggravated robbery were present in the evidence adduced against the appellant. The prosecution evidence showed that the Appellant whilst in the company of Moses stole a cell phone from the complainant and that at the time of stealing threatened violence to their victims. We, therefore, cannot fault the trial Judge for finding that the prosecution had proved its case against the appellant beyond reasonable doubt. 9.2 Having found that the trial court misdirected itself when it sentenced the appellant as an adult and imposed the J25 minimum mandatory sentence for aggravated robbery, we set aside the sentence of 15 years imprisonment with hard labour. We are alive to the restriction under section 72 of the Juveniles Act that no young person shall be sentenced to imprisonment if he can suitably be dealt with in any other manner. 9.3 Having considered the circumstances of this case, we are of the view that there were no aggravating circumstances that would attract a departure from the general rule. We accordingly impose a two year probation order against the appellant with effect from the 31st August 2023. C. R. . MCH DEPUTY JUDGE PR.�D K. MUZENGA Y. CHEMBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE