Chigona v R (Criminal Appeal 7 of 1994) [1994] MWHCCrim 2 (22 July 1994)

LO/ CR/326/3/93 - - - - - - - - ' - - - - - - ' - - - ,If - IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CRIMINAL APPEAL NO. 7 OF 1994 "•G,.,,. ,_:(} I "''~kAR CIHGONA versus THE REPUBLIC From the Resident Magistrate's Court from Blantyre Criminal Case No. 45 of 1993 CORAM: CHATSIKA, J Chipeta, Chier St,7tc Advocr1tP, for t:hP State l.111:erprcter Nkhoma, Officir1L Mikanda, Recording O[ficer JUDGEMENT The appellant, Isaac Pi.us Chigonr1, who, until his arrest on the 11th February, 1993 was a Police Officer holding the rank of a person Senior Superintendent, was convicted of employed in the public service contrary to section 278 as read with section 283(1) of and was sentenced to 14 years to this court. against conviction and sentence. the Penal Code (Cap 7:01) He appeals theft by IHL. then added two more grounds In his initial ground of appeal, it was stated that there was insufficient evidence at his trial to justify the conviction. the He documentary evidence which was adduced at the trial and also attacked the alleged failure by the trial magistrate to properly consider the evidence relating to the fact that one of the safes in the appellant's office was damaged and that it could not be locked. It was the appellant's contention that some of the money whicr, was alleged to have been stolen was k ept in the damaged safe and that it was stolen by some people when the appellant was I away. consider the evidence. these grounds of appeal later when in which he attacked I shall deal with According to the evidence, the appellant came to Limbe in August 1990 and assumed the responsibility o f station officer at Limbe Police Station. Part of his duties as Station Officer was to keep cash exhibits. The procedure relating to cash exhibits it was was The registered in a register which was kept for that purpose. register to . the appellant, in his capacity as station officer, who would check the entry against the cash and sign in the appropriate column in the cash was brought the money wou1d together with the station, that when then be taken to - 2 - the register indicating that he had received The appellant kept the money in a safe and returned the register to the record-keeper. the When appellant would write on the reason for paying out the money and the recepient would sign for it in the "rec epien t" column. There was money which came in as "exhibit" relating to a particular crimial case which would be paid out to concluded and there was some the owner when the case would be money which was "lost and found" money. However, the procedure of receiving and paying out the two types of money was the same. the money was the "remarks" column to be paid out the cash. the audit that On the 8th February 1993, government auditors came to audit the appellant's books. The audit took the form of comparing the register in which the money exhi'bi ts were recorded against the It was discovered during and at physical cash kept in the safe. in the safe the end of relating the than less corresponding register as having been rec e ived by the appellant. The auditois made a list showing the amount shown the appellant, the amount actually produced by the appellant and the difference between the two amounts as money which the appellant was unable to produce. The total amount of the shortfa l l was the amount which the appellant was presumed to have stolen. the actual cash kept the registe r was the register as having been received by to some entries amount shown the in in in In some of the ent r ies, the appellarit was unable to produce to the auditors the whole amount which, according to the entry in the register, he had received. He was therefore presumed to have stolen the total amount of the money which he had received and which he had failed to produce to the auditors. The total amount of shortfall, the that is money which appellant produced but was the corresponding amount which he received was KS,590.77. The total amount of money which the appellant received and which he could not produce at all to the auditors was KSS,435.00. He was, however, charged with theft by a public servant of the sum of K64,020.77 (It should have been K64,025.77). less than In the course of the lists which were the trial, when prepared by the auditors were examined closely, it was found that certain figures had been duplicated. This error was corrected and the charge was accordingly amended to read K63,555.77. This the figure which the appellant was finally convicted of as was having stolen. In arguing this court, the appeal before the appellant submitted that he should not have been convicted of theft by a person employed in the public service on the grounds that the money which he was alleged to have stolen was not money belonging to the Government but rather money belonging to members of the public. He contended that, if anything, he should have been convicted of simple theft contrary to section 278 of the Penal Code. This argument, judgement, can not be sustained. The court below went into details to establish that the appellant was in my - 3 - He a public servant. the money by virtue of his employment. He was unable to produce it or make due account for it. He was, therefore, according to the words used in section to have stolen the same unless he could successfully rebut the instant case the appellant failed to rebut the presumption. the Penal Code, presumed that presumption. received ( 1) of In the envelopes containing some of The appellant also argued that one of the safes kept in his office was damaged and that it could not be locked. In relation to this safe, the appellant stated that on the 29th December 1992 he suddenly became ill while he was in his office and he was taken to the hospital where he was hospitalised for about a week and given off-duty for three weeks. He only reported for duties on the 29th January 1993. He stated further that he believed that in hi s unconscious state on the 29th December 1992, he must the have put damaged safe and that it was stolen while he was in hospital. I have considered this submission very carefully and I must say at the very outset that [ cannot accept it. While it is true that there is no evidence there was a damaged safe in his office that that safe was ever used for keeping money. There is no evidence that on his return to work on the 29th January 1993 he found the envelopes containing the money in the damages safe. If indeed, the appellant had put the envelopes containing the money in t he mistake upon his return to work, he would have i mm ediately reported the matter to his superiors. the appellant's illness and his absence from work for a month appears to me as having been self inflicted for the purpose of providing a defence to the appellant well knew would soon come. impending charge of theft by public servant which the damaged safe and had discovered t h e whole matter of the money Indeed, the in to Limbe Police Station One matter which gave some concern was the fact that the appellant came to assume duties as Station Officer on the 1st August 1990 while the list prepared by the auditors shows that so me of the entries in the register on A careful which irregularities were found dated back to 1989. perusal of the record shows that a handing over was made between the appellant and his predecessor when the appellant took over the money which was previously handled by his predecessor. It is inconceivable that the appellant would have accepted to receive money from his predecessor which was less than the corresponding amount in the register. am satisfied beyond doubt that the handing over was done properly and that the appellant received to the corresponding amounts from his predecessor money equal that any shown shortfalls or complete disappearance of any money took place during the period the appellant was the Station Officer. therefore satisfied the book. in am I I I find no merit in the appellant's appeal against conviction which is hereby dismissed. The mandatory minimum sentence for theft by public servant The appellant was of money convicted of theft by public servant of the sum of K63,500. It was open to the court to impose a sentence which was well above in excess of KS,000 is 14 years. - - the minimum sentence of 14 years . do so. that the 14 years sentence may remaining resulting in the appeal being dismissed in its entirety. I do not, however, intend to The appellant is not a young man and i t could well be the better part of his is dismissed, The appeal against sentence life. take Pronounced in Open Court this 22nd day of July 1994 i'l.t Blantyre. LA CHATSIKA JUDGE