Chrispin Mulenga & 2 Others v The People (Appeal 56 of 2007) [2007] ZMSC 24 (7 June 2007)

I* (cid:9) IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 56a, b, c/2007 HOLDEN AT NDOLA (APPELLATE JURISDICTION) CHFJSPIN MULENGA BENSON MULENGA SAMUEL KAMB OLE and THE PEOPLE CORAM: LEWANIXA, DCJ, SILOMBA, JS KABALATA, AIJS On 5th and 7th June 2007 For the Appellants: For the Respondent: E. M. SIKAZWE, Acting Director of Legal Aid Mrs. J. C. KAUMBA, Deputy Chief State Advocate JUDGMENT LEWANIKA, DCJ delivered the judgment of the Court. Authorities referred to: 1. (cid:9) P1-IIRI VS THE PEOPLE, 1990, Z. R 178 The Appellants were convicted of the offence of espionage contrary to Section 3(d) of the State Security Act, Cap 111 of the Laws of Zambia. The particulars of the offence being that the Appellants on a date unknown but between the 1st October, 2005 and 23rd October, 2005 at I (cid:9) (cid:9) 'S Kasama in the Kasama District of the Northern Province of the Republic of Zambia, jointly and whilst acting together for a purpose prejudicial to the interest of the Republic of Zambia did without lawful excuse cut and remove Tanzania Zambia Railway Communication wires an act which was likely to interfere with railway services, a necessary service. The lS Appellant was sentenced to 25 years imprisonment with hard labour and the 2nd and 3rd Appellants were sentenced to 23 years imprisonment with hard labour. Initially the Appellants had appealed against both conviction and sentence, but at the hearing of the appeal, Counsel for the Appellants informed us that they were now appealing against sentence only. The evidence on record is that on 14th October 2005, PW 1 discovered that the transmission lines between Kasama railway station and Nkolemfumu had been cut and the cables removed. As a result of this there was no communication between the two railway stations as well as any trains that might be using the line. On 22 nd October 2005 PW 3 received a report that transmission lines between Kasama railway station and Chambeshi railway station had been cut and the cables removed. This also resulted in a breakdown of communication between the two railway stations. On the same day the 1 and 2nd Appellants were apprehended whilst they (cid:9) (cid:9) were in possession of the cut cables, which were concealed in sacks, and the 3id Appellant led the police to the recovery of more cables which were also concealed in sacks. The total weight of the recovered cables was 21 kilogrammes and the total value was given as K9,440,,840.00. The three Appellants who had pleaded not guilty were convicted after a trial. Counsel for the Appellants has only advanced and argued one ground of appeal, to wit, that the learned trial Judge had erred in principle in sentencing the Appellant to 25 years and the second and third Appellants 1st to 23 years each when they were first offenders. Counsel submitted that the learned trial Judge erred when he did not give any credit to the Appellants for being first offenders. He referred us to our decision in the case of PHIRI VS THE PEOPLE (1) on the point and urged us to allow the appeal against sentence. We have considered the submissions of Counsel as well as the evidence on record. There is no dispute that the three Appellants were first offenders and as such they were entitled to some lenience. But we are also mindful of the fact that the minimum penalty prescribed by law for this offence is twenty years. Taking into account the magnitude and extent of the transmission lines cut by the Appellants and the potential danger that this breakdown of communication posed to members of the traveling public and the prevalence of this offence, we would not agree that this was a case which warranted the imposition of a minimum penalty. However, we note that the learned trial Judge imposed a stiffer penalty on the first Appellant on the ground that he was the ringleader. We can find no justification for this and we therefore set aside the sentence of 25 years with hard labour meted on the I Appellant and substitute it with one of 23 years with hard labour to be in line with the sentences given to the 2nd and 3rd Appellants. To that extent only, does this appeal succeed. DEPUTY CHIEF JUSTICE VSS Silomba SUPREME COURT JUDGE ACTING (cid:9) 1 I COURT JUDGE 4