Chrispine Mukuka v People (APPEAL 47/2019) [2019] ZMCA 407 (30 August 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) APPEAL 47/2019 BETWEEN: CHRISPINE MUKUKA AND THE PEOPLE ..., ,l ,, 3 ') ,~LJ'.j 2ffJ •·-· . fi. ECk • ' ' APPELLANT RESPONDENT CORAM: Mchenga DJP, Sichinga and Siavwapa, JJA On 22nd August 2019 and 30 th August 2019 For the Appellants: Mr. K. Muzenga- Deputy Director, Legal Aid Board. For the Respondent: Mrs. M. G. K. Ngulube - Acting Principal State Advocate, National Prosecutions Authority. JUDGMENT Mchenga, DJP, delivered the Judgment of the Court. Cases referred to; 1. Chilufya Mangowani v The People [1977] Z. R. 101 2. Chomba v The People [1975] Z. R. 245 3. Isaac Njovu v The People SCZ Judgment No. 19 of 2018 Legislation referred to: J2 l. The Penal Code , Chapter 87 of the Laws of Zambia 2 . Criminal Procedure Code, Chapter 88 of the Laws of Zambia 3. The Wildlife Act, Act No. 14 of 201 5 Introduction 1 . Thi s appeal emanates from the Judgment of the High Court , (Chitabo J.) , del ivered in Mongu on 1 3 t h December 2018 . 2. The appellant, initially appeared in the Subordi nate Cour t sitting i n Sesheke (Hon . F. Phi ri) , fac ing two charges unde r The Wildlife Act. Following h is conviction, a sentence was imposed in one count , whi le the sentencing in the other count, wa s deferred to the Hi gh Court, b ecaus e the offence attracted a mandatory min imum sentence, that was above the jurisdiction of trial magist r ate . 3 . He has now appealed again st his convi cti on, and in the al ternat ive , the sentence i mpo sed by the High i Court. Charges before the trial court J3 4. In the first count, the appellant faced the charge of illegal possession of protected trophy contrary to section 130 (2) of the Wildlife Act. The allegat ion was that on 31 st December 2017, at Likushitu in Sioma District of Western Province,he had in possession a civet skin, without a licence or certificate of ownership. 5. The charge in the second count was that of unlawful possession of government trophy, contrary to sections 97 (1) and 136 (a) of The Wildlife Act. It was al l eged that on the same day, and in the same area, he had in his possession, a wildebeest tail, without a licence or certificate of ownership. Proceedings before the trial court 6. The appellant pleaded guilty to both charges. He admitted being in possession of both the skin and tail and not having a licence or certificate of ownership for either article. In addition, he told J4 the trial magistrate that they were given to him by a traditional healer to use as medicine. The trial magistrate entered pleas of guilty to both char ges. 7. Following the appellant's admission of the charges, a statement of facts was read out. According to that statement, on 31 st December 2017, the appellant was found with a civet skin and Wildebeest tail at Likushitu in Sioma District. He had no certi f icate of ownership or lawful authority to possess both articles. He admitted these facts as being tru e and correct. 8. Following his admission of the statement of fac t s, the appellant was convicted of both offences. Because the offence in the first count, carries a mandatory minimum sentence that is above the juri sdiction of the trial magistrate, the appellant was commi t ted to the High Court for sentencing. As for t h e second count, he was fined KS0,0 0 0.00, and in default,sentenced to 9 months simple imprisonmen t. Proceedings before the High Court JS 9. The appellant was sentenced to 5 years impr isonmen t with hard labour for the first count, (unlawfu l possession of protected government trophy ) . As regards the second count, (unlawful possession of government trophy),the sentence imposed by the trial magistrate was quashed and set aside on the groun d that the fine was unlawful because it was below the minimum mandatory sentence for that offence. In i t s place, a fine of K120,000.00 was imposed. 10. The judge also ordered that the two senten c es run consecutively. First ground of appeal 11. The first ground of appeal is that, since t h e appellant's pleas where equivocal, the trial magistrate should not have entered pleas of guilty. Mr. Muzenga pointed out that the appellant gave an explanation for his possession of the skin and tail, they were given to him for medical purposes by a traditional healer. J6 12. He then submitted that the explanations the appellant gave, amounted to a de fence and as such, the trial magistrate ought to have recorded pleas of not guilty in both counts. Mr. Muzenga referred t o the case of Chilufya Mangowani v The People1 , in support of the proposition. 13. In response to this ground of appeal, Mrs Ngulube submitted that the trial magistrate was entitl ed to enterpleas of guilty in both counts, because the pleas were unequivocal. She submitted that the appellant appreciated all the ingredients of the offences and admitted them. In both counts, he admitted possessing the articles without cert i ficates of ownership as required by sections 130(1), 97(1) (2) and 136 (a) of the Zambia Wildlife Act. 14. Mrs Ngulube also submitted that in the absence of a licence or certificate of ownership, the explanations given by the appellant, t hat the articles were given to him by a traditional healer, were immaterial. Pleasequivoca1 or unequivocal J7 15. A plea is said to be equivocal when an essential ingredient of a charge is disputed or wh en an explanation, amounting to a defence, is given, f or the act constituting the offence is rendered. 16. In this case, Mr. Muzenga has argued that the appellant's explanation that he got the skin a nd tail from a traditional healer for medical purposes, amounted to a defence. 1 7. The offence of illegal possession of a protected trophy is set out in Section 130(1) of The Wildlife Act. Itprovides as follows: "A person who is in possession of, sells, buys, importsor exports or attempts to sell, buy, import or export, a protected animal or trophy or meat of a protected animal in contravention ofthis Act commits an offence and is liable, upon conviction, toimprisonment, without the option of a fine, for a term of not less than five years but not exceeding ten years." Section 87(1) of the Wildlife Act goes on to p r ovide that a person in lawful possession of a prescribed J8 trophy will/should be issued with a certificat e of ownership. 18. In the case of the offence of unlawful possession of government trophy, Section 97(1) (2)of the Wildlife Act provides as follows: "(1) A person who unlawfully possesses or who purportsto buy, sell or otherwise transfer or deal in a Government trophy commits an offence. (2) For the purposes of this section, possession of a trophy bya person without the relevant licence or certificate of ownership in respect of the trophy shall be prima facie evidence of the trophy being a Government trophy and of the unlawful possession of it by the person." 19. Further, Section 89 of the Wildlife Act sets out the procedure for the transfer of ownership of trophies. It provides that a person who intends to transfer by way of gift, purchase or othe r wise, must apply to a prescribed committee set up under that Act, for such transfer. The relevant parts o f subsection 7,of that provision, reads as follows. " any person, who by way of gift, purchase or otherwise, purports to obtain from any other person ownership of a prescribed trophy, shall ensure that J9 the certificate of ownership for that trophy has been lawfully transferred to that person ............ " 20. From the foregoing, it is clear that a person who receives a trophy, whatever the circumstances, must have a certificate. It follows, that the fact that the trophy was received for medicinal purposes, does not excuse a person in possession, from be i ng required to have a certificate. 21. It is therefore our view that the appellant's explanation could not have rendered the p l ea equivocal because it did not amount to a defence. We agree with Mrs Ngulube, that the explanation was immaterial to the charge. We find that the trial magistrate rightly entered pleas of guilty in both counts. The first ground of appeal therefore fai l s. Second ground of appeal 22. The second ground of appeal was that the learned Judge erred when he ordered the sentences for the two counts to run consecutively. Mr. Muzengaargued that both offences were committed on 31 st December 2017, in similar circumstances, and so they formed "a course of conduct". He referred to the case of Chomba v The JlO People2 and submitted that the sentences should r u n concurrently. 23. In response to the second ground of appeal, Mrs Ngulube submitted that the learned Judge was on firm ground when he ordered the sentences to run consecutively despite the offences occurring in the same course of action. She argued that the learned Judge properly invoked the discretion veste d in h i m by section 28(1) (c) (i) of the Penal Code. 24. Before we deal with whether the sentences should have run concurrently or consecutively, it is o u r view that there is need to examine whether the tri al judge had the power to review the sentence imposed by the trial magistrate in the second count. Power to review sentence 25. The relevant parts of section 338 of The Criminal Procedure Code,which deals with the power of the High Court to review, read as follows: "(1) In the case of any proceedings in a subordinate court, the record of which has been called for, or which otherwise comes to its knowledge, the High Court may Jll (a) in the case of a conviction- (i) ............ , (ii) if it thinks a different sentence should have been passed, quash the sentence passed by the subordinate court and pass such other sentence warranted in law, whether more or less severe, in substitution therefor as it thinks ought to have been passed; (iii) ............ ; (iv) ............... ; (b) (2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of making representations in writing on his own behalf. (Emphasis is ours) 2 6. Section338 (1) (a) (ii) of The Criminal Procedure Code,clearly indicates that the Judge had the power to review the sentence, however that was subject t o the appellant being heard on the proposed revision, given that it resulted in an enhanced sentence. 2 7. We have examined the record of appeal and the re is no indication that the appellant was heard. Since the revision resulted in an enhanced sent ence, the failure to hear the appellant, as required by section 338 (2) of The Criminal Procedure Code, rendered the J12 increased sentence a nullity. We therefore set it aside, and re-instate the original sentence of a fine of KS0,000.00 and in default, 9 months simple imprisonment. Consecutive or concurrent sentences 28. Reverting to whether the sentences should run concurrently or consecutively, we agree with Mrs. Ngulube that Section 28 (1) (c) (i) of the Penal Codegives the courts the discretion to impose concurrent or consecutive sentences, where more than one sentence is imposed. However, it is common cause that case law has set out the parameters for t he exercise of the discretion. 29. The cases of Chomba v The Peopleand Ndlovu v The Peoplehave held that sentences should run concurrently where the acts constituting the different offences are part of "a course of conduct". In this case, both offences arise out of the same act. The appellant was stopped and when searched, found with the skin and tail. This being the case, we agree with Mr. Muzenga's submission that J13 the sentences should run concurrently. The second ground of appeal succeeds. Verdict 30. The appeal against conviction is dismissed because we are satisfied that the pleas were not equivocal. The trial magistrate correctly entered pleas of guilty in both counts 31. The appeal against the sentences running consecutively succeeds as the offences formed a course of conduct. The 5 years sentence, for the first count, will run concurrent to the 9 months simple imprisonment in default, of the KB0,000.00 fine, for the second count, which he has not paid. Both sentences will run from the 2 nd of January 2018 . . R. DEPUTY JUDGE PRESIDENT ······· · · ·~ · · ····· : D. L. Y Sich COURT OF AP - ··························· M. J. Siavwapa COURT OF APPEAL JUDGE ............................ .