Alubi and 3 Others v R (Criminal Appeal Case 14 of 2022) [2022] MWHC 239 (22 September 2022)

IN THE HIGH COURT OF MALAWI! CRIMINAL DIVISION Zomba Registry Criminal! Appeal Case No. 14 of 2022 [Being Criminal Case No. 519 of 2021 Before Senior Resident Magistrate’s Court Sitting at Mangochi] BETWEEN DAMIANO ALUBL....-ccssssssssessessccssesceesessnssnessssorsensensenssussnestansgesenenensssessees 157 APPELLANT GASTE Al lecscssssssscscsscscssessesssssessccssccsecsseseessnssnececenseasaneaneaeanansensecenseasenanees 2"4 APPELLANT IVIUSA ALL! JAWADUQ......cscccecceeccsececeessssseceneneneeneaenesersnssensceaneneneeaaennne 3° APPELLANT MMITELERA WISIKI....:-ccoccssescessssesseesccsssetsessecssatsseesersessessneansnonsnenceceeceneaeeass 4" APPELLANT AND THE REPUBLIG..c.c:c-cscessosesscesesssesssosecersstsoestsssnconereseecuesazeresssesuconeneatsennsacans RESPONDENT CORAM: HONOURABLE JUSTICE D. H. SANKHULANI A. Tolani, of Counsel for the Appellants R. Mkweza, of Counsel for the Respondent Mrs. G. Chilombo, Court REporter A. Kazambwe, Court Clerk JUDGMENT Sankhulani J. Introduction This judgment follows hearing that was held on the Appellants’ appeal against their convictions and sentences as recorded and imposed, respectively, by the Senior Resident Magistrate’s Court sitting at Mangochi. Background The appellants were convicted of the offence of unlawful wounding, contrary to Section 241(a) of the Penal Code, by the Senior Resident Magistrate’s Court sitting at Mangochi, after a full trial. Accordingly, the Appellants were each sentenced to 18 months’ imprisonment effective 14» December, 2021. The Applicants are now serving their sentences in prison. Being dissatisfied, the Appellants appealed against both conviction and sentence to this Court. The Appellants filed a notice of appeal as well as grounds of appeal. The appeal was heard in the presence of both sides hereto. At the hearing, the Appellants made oral arguments. Counsel for the respondent did not make any oral arguments due to the fact that there was communication breakdown at his chambers which then made it impossible for him to make any oral arguments. Instead, the Respondent opted to put in written submissions, after the hearing. At the close of the hearing, the Appellants indicated that they would file final submissions. After the hearing, this Court gave the parties time limits within which they had to file their final submissions and then adjourned this matter to today’s date for judgment. Hence this judgment. May we put it on record that, subsequent to the hearing of the appeal, the Appellants filed their final submissions whereas the Respondent did not file their final submissions. Grounds of Appeal The Appellants, by the present appeal, seek an order quashing their conviction and setting aside their sentence. in the alternative, they seek an order for retrial of the case. In this vein, the Appellants filed seven grounds of appeal, which are as follows: (1) The Learned Magistrate erred in law and in fact in holding that the prosecution had proved the offence of wounding according to Section 241(a} of the Penal Code yet when the incident was happening the Appellants were not there they were only told that someone was wounded; (2) The Learned Magistrate erred in law in disregarding all other evidence and only proceeding to hear prosecution evidence saying that the Appellants had wounded a person yet when the incident was happening the Appellants were not there they were only told that someone was wounded; (3) The Learned Magistrate erred in law and in fact in meting a custodial sentence when the Appellants were first offenders; (4}The Learned Magistrate erred in law in taking into account irrelevant factors when sentencing the Appellants (5) The sentence to the accused was by all accounts excessive; (6) The sentence meted out is against the weight of the evidence; (7) The Learned Magistrate erred in law in proceeding in a manner that did not accord the Appellants the right to justice in that he was prejudiced as he had already formed an opinion on the case. However, in our opinion, some of the Appellants grounds of appeal outlined above are either redundant or untenable altogether. To begin with, Grounds (1) 3 and Ground (2) are one and the same ground. As for Ground (4), it is obviously untenable in that the irrelevant factors referred to have not been mentioned before this Court. With regard to Ground (six), it is untenable for being misconceived. We hold so because it has not been explained to this Court how, in the context of the present maiter, the sentence may be said to have been ‘against the weight of the evidence’. With respect to Ground (7), our view is that it is not untenable, as it is a mere opinion that has not been substantiated. Accordingly, the grounds of appeal that we shall deal with herein have significantly reduced in number, and are now as follows: (1)The Learned Magistrate erred in law and in fact in holding that the prosecution had proved the offence of unlawful wounding, contrary to Section 241(a) of the Penal Code, when the Appellants were not there when the incident was happening; {2) The Learned Magistrate erred in law and in fact in meting out a custodial sentence when the Appellants were first offenders; (3) The sentences were, by ail accounts, excessive. In order to properly guide ourselves and, also, for ease of following by the parties hereto, we shall deal with these grounds of appeal separately, when it comes to our determination. And we must add that we shall refer to the parties’ arguments and/or submissions, where necessary, in tackling these grounds of appeal. The Applicable Law On Appeals Before The High Court In Criminal Matters Any person aggrieved by any final judgment or order or sentence of any subordinate court may appeal to the High Court (Section 346(1) of the Criminal Procedure and Evidence Code). In terms of number of presiding judges, an appeal from a subordinate court is heard by a single judge of the High Court, except where the Chief Justice directs that an appeal be heard by two or more judges (Section 347(1) of the Criminal Procedure and Evidence Code). When the High Court is considering an appeal from the subordinate court, it proceeds by way of rehearing (see Mulewa vs. Rep [1997] 2 MLR 60}. By this is meant that the High Court considers the evidence that was in the court below, the findings of fact and the law applied to the facts and determines whether or not the court below directed itself to the relevant facts and the applicable law in arriving at the verdict it came up with (see Mulewa vs. Rep, supra). However, an appellate court is to be slow to reject findings of a trial court because of the trial court’s advantage of seeing and hearing witness, unless there is insufficient evidence to support those findings or there is cogent evidence to the contrary which has been misinterpreted or overlooked (Chakufwa Thom Chihana vs. Republic, MSCA Criminal Appeal No. 09 of 1992). As regards sentence, an appellate tribunal may not alter a sentence passed by a subordinate court unless the sentence is manifestly excessive or grossly inadequate or wrong in principle, and not merely because it would itself have imposed a somewhat different sentence, if it were to have tried the case (Esther Kathumba & 3 Others vs. Republic, MSCA Criminal Appeal No. 21 of 2006). The reason for this is that it is a generally-accepted view that a convicting tribunal is the one better placed than any other to assess a punishment in any given case (Esther Kathumba & 3 Others vs. Republic, supra). The Evidence At this juncture, we shall outline the material evidence as was proffered before the court below. May it be noted, in this vein, that there were three prosecution witnesses and seven defence witnesses. PW1 was Ajida Daudi (Complainant/victim), aged 32 years, from Kwintunji Village, T/A Katuli, Mangochi. In examination-in-chief, he stated that he knew the four accused (Appellants) who lived in the same village as him. On 2"? October, 2021, he was at 1/A Katuli’s court (hereinafter referred to as ‘the place’), having previously been invited thereto. He had gone to the place as a member of a group. The other part also had a group. The material time was around 9a.m. There was a beating of drums. He heard singing about Mr. Mphaya that he was a chief. This 5 other group started beating him. The Ath Accused (1* Appellant) beat him first and the 2" Accused (2"! Appellant) came. Then the 3™ Accused (3 Appellant). They took wood. The 1% Accused (4"" Appellant) started beating him with a fist. The 2"¢ Accused held him so that he should be beaten. The 3" Accused took a wood and hit him with it on the knees (the court below recorded being shown the POP on the Complainant’s leg). The A‘ Accused (15t Appellant) beat him with wood until he lost two teeth(the court below recorded being shown the place where the Complainant’s lost two teeth were). He was rescued by police. Under cross-examination, PW 1 stated that He had asked others that ‘kodi munaveka ufumu? (did you install a traditional leader?). Then the 1* accused started beating him. It was around 9a.m when he was beaten. The 2" Accused held him while his (2°4 Accused’s) friends beat him. He didn’t know what wrong he had done. He met the 3" Accused at the place on 2" October, 2021 at around 9a.m. He didn’t know where Kalaya was because the 3 Accused was beating him. In re-examination, PW 1 stated that he met the accused persons at the place. They were in the group that was beating the drums. These are the people that beat him. PW2 was Alick Willy, aged 34 years, from Kwintunji Village, T/A Katuli, Mangochi. In examination-in-chief, he stated that he knew the four accused persons. He lives in the same village as the four accused persons and the Complainant. On 1% October, 2021, he heard that they were need at the place the following morning. While at the place, at around 9a.m., he saw people fighting. The Complainant was being beaten. The 1 Accused person was beating the Complainant with fist. The 2° Accused was holding the Complainant. The 3 Accused took a wood and, with it, hit the Complainant on the leg. The 4" Accused took something like a metal and, with it, hit the Complainant on the mouth, and he (the Complainant lost two teeth}. He was close. They took the Complainant to Police, and he was referred to the hospital. The Complainant got injured in the mouth and on the leg. Under cross-examination, PW 2 stated that the 1* Accused was beating the Complainant at the place. He didn’t know what caused this. The 2™4 Accused beat the Complainant at the place. He came in to rescue him (the Complainant). He 6 met the 3" Accused at the place on 2"? October, 2021. He saw the 3" Accused with a weapon. It was him {PW 2) who took the Complainant to the hospital. It was the Complainant who came to the place first. The 4" Accused beat the Complainant. !t was around 9a.m. He didn’t know the reason. He saw it {the beating) with his own eyes. In re-examination, PW 2 stated that the four accused were at the place and they beat the Complainant. He (PW 2) could not mistake each one of them (the four accused). He saw it (the beating) himself. PW 3 was a lady police officer, from Namwera Police. In chief, she stated that, on 3° October, 2021, she received a complaint. The victim was referred to Namwera Health Centre where he was referred to Mangochi Hospital. The Accused were arrested and charged. She cautioned the Accused and charged them. They all denied the charge. May it be noted that, in her evidence in chief, PW 3 tendered in evidence the caution statements and evidence of arrest for all the four Accused. She also tendered a medical report relating to the Complainant’s injuries, marked as Exhibit P 09. It must also be noted that there was nothing material that came from PW 3’s cross examination. That is why we have not reproduced what she said under cross-examination. The foregoing marks the end of the material evidence as was proffered before the court below by the prosecution. We shall not reproduce the evidence that was proffered by the defence. The reason is that the defence did not have a duty to prove the innocence of the four accused persons who are the Appellants herein. Suffice it to state that the essence of the Appellants’ evidence is that they were not there when the incident, whereby the Complainant was wounded, happened. According to them, they were only told that some people were beaten at the place. The Appellants claim that they only arrived at the place at around 11a.m., whereas the incident happened at around 9a.m. This Court’s Determination Ground (1} — Offence Not Proved Beyond Reasonable Doubt The Appellant’s first ground of the appeal herein is that the Learned Magistrate erred in law and in fact in holding that the prosecution had proved the offence of unlawful wounding, contrary to Section 241(a) of the Penal Code, when the Appellants were not there when the incident was happening. In essence, the Appellants argue that they were not present when the incident, whereby the Complainant was wounded, happened. The Appellants, therefore, submit that the prosecution had not proved the offence beyond reasonable doubt. The offence with which the Appellants stood charged, and were convicted of, in the court below, as we have already said, was unlawful wounding, contrary to Section 241(a) of the Penal Code. The particulars of the offence, as per the charge sheet, read as follows: “Mitelera Wisiki, Gaste Alli, Mussa Alli Jawadu and Damiano Alubi on the 2°? day of October, 2021 at Kwintunji Village in the District of Mangochi willfully and unlawfully wounded Ajida Daudi” Section 241 of the Penal Code, in whole, provides as follows: “Any person who — (a) unlawfully wounds another, or (b} unlawfully, and with intent to injure or annoy any person, Causes any poison or other noxious thing to be administered to, or taken by, any person, shall be guilty of a felony, and shall be liable to imprisonment for seven years.” It should be noted that, although we have reproduced the whole provision, we are, for purposes of the present maiter, only concerned with Section 241(a) of the Penal Code, which relates to unlawful wounding. ‘Unlawful wounding’ has been defined as wounding with intent that is not justified by, for example, self-defence or by statutory powers given to the police to arrest criminals (Oxford Dictionary of Law (Sixth Edition), page 556). Putting it simply, therefore, unlawful wounding is, in our opinion, wounding with intent that is not legally justifiable. in the matter at hand, as is always the case with any other criminal matter, the burden of proof was on the prosecution to prove the Appellants’ guilt (see Section 187(1) of the Criminal Procedure and Evidence Code). Indeed, there was no duty on the Appellants to prove their innocence. Again, as is always the case with any other criminal matter, the standard of proof in the present matter was proof beyond reasonable doubt (see Republic vs. Joyce John [2012] MLR 329). Therefore, in the matter at hand, the burden of proof was on the prosecution to prove, beyond reasonable doubt, the guilt of the Appellants on the charge of unlawful wounding, contrary to Section 241(a) of the Penal Code. The sole question that, then, arises is: did the prosecution in this case discharge this burden to the requisite standard? We answer this question in the affirmative. Erom the evidence of PW 1 and PW 2, which we find to have been firm and not assailed, it is clear that the Appellants, in concert with one another, wounded the Complainant, and also that the wounding was unlawful in that it was not legally justifiable. Therefore, the finding of the court below that the State had proved the case beyond reasonable doubt was correct. We so hold. We are reinvigorated in this holding, bearing in mind the fact that the court below had the advantage of seeing and hearing all the witnesses. Accordingly, we ultimately find that that the prosecution had, in the court below, proved beyond reasonable doubt the offence of unlawful wounding, contrary to Section 241(a) of the Penal Code. The Appellants’ first ground of appeal fails. Ground (2) — Unsuspended Custodial Sentence On First Offenders The Appellants’ second ground of the appeal herein is that the Learned Magistrate erred in law and in fact in meting out a custodial sentence when the Appellants were first offenders. Under this ground, the Appellants argue that the court below erred in meting out a custodial sentence that was not suspended, them being first offenders. First offenders are supposed to benefit from the prescriptions of Sections 339 and 340 of the Criminal Procedure and Evidence Code, for purposes of sentencing. However, Sections 340 of the Criminal Procedure and Evidence Code allows a court, on good grounds to be set out in the record, to impose a sentence of imprisonment to a first offender without having recourse to Sections 339 of the Criminal Procedure and Evidence Code, if it is satisfied that there is no other appropriate means of dealing with the convict. In the matter at hand, the court below, when it got to sentencing, said as follows: “1 will sentence each one of you to 18 months imprisonment. | wil! not suspend this because earlier on this issue erupted in your village and | sentenced the people to community service. It seems you do not want to change in that village which is putting people at risk of being severely wounded. This can lead to death of others. You take the laws in your hands. This is bad. You can appeal to the High Court 30 days from today. It will start from today.” It is clear from the above-reproduced sentence that the court below addressed its mind to the prescriptions of Sections 339 and 340 of the Criminal Procedure and Evidence Code and, pursuant to the latter provision, gave reasons, which were set out on record, why it did not suspend the custodial sentence imposed on the Appellants. Therefore, the court below cannot be faulted for not suspending the custodial sentence it imposed on the Appellants. We so opine and find. The Appellants’ second ground of appeal fails. 10 Ground (3) — Excessive Sentence The Appellants’ Third ground of the appeal herein is that the sentences were, by all accounts, excessive. The maximum penalty of the offence herein is seven (7) years imprisonment. However, in view of the legal fiction that maximum sentences are reserved for worst offenders, an appropriate sentence had to be determined in the present matter. To do that, aggravating and mitigating factors of the offence had to be considered. Also, mitigating factors of the Appellants had to be considered. As regards aggravating factors of the offence, we note that there was group action, serious injuries caused to the Complainant, high prevalence of the offence in the Appellants’ area and use of weapons. All these are aggravating factors of the offence, as per the Magistrates’ Court Sentencing Guidelines 2018. As for mitigating factors of the offence, this Court did not find any, as per the Magistrates’ Court Sentencing Guidelines 2018. Getting to mitigating factors of the Appellants or convict mitigation, we did not find any, in respect of each of the Appellants. May it be noted that at the time the Appellants were sentenced, the youngest was the 2°¢ Appellant who was then 39 years old. In the case of R vs. Zwangeti {{(Confirmation Case No. 245 of 2001 supra){2002] MWHC 48 (02 October, 2002}}, the defendant, for no reason and unprovoked, stabbed the complainant in the belly with a knife. The complainant had to undergo a surgery. The defendant had been sentenced to 5 years’ imprisonment by the court below. On review, the High Court reduced the sentence to 2 years’ imprisonment. Coming to matter at hand, as we said earlier on, the Appellants were each sentenced to 18 months’ imprisonment effective 14 December, 2021, the date of sentence. The Complainant herein Jost two teeth, and the position in the mouth where the teeth were lost is not known, from the evidence. However, although we have found above that there are no mitigating factors either in respect of the offence herein or in respect of each of the Appellants herein, we il are of the firm view that 18 months’ imprisonment from the date of sentence was excessive, having regard to all the circumstances of the present matter. We would have held differently, had the sentences been ordered to run from the date of arrest, which was on or about 9 October, 2021. As of today, the Appellants have served their respective sentences for over 9 months. In our most considered opinion, this is an appropriate case where a sentence resulting in immediate release must be ordered. The Appellants’ third ground of appeal succeeds. Conclusion In view of the foregoing holding that the sentences of 18 months’ imprisonment from the date of sentence was excessive, having regard to all the circumstances of the present matter, and also in view of our holding that this is an appropriate case where a sentence resulting in immediate release must be ordered, we hereby set aside the sentence of 18 months’ imprisonment from the date of sentence in respect of each of the Appellants and replace it with one that must result in immediate release in respect of each of the Appellants. Accordingly, we order that the 1* Appellant (Damiano Alubi), the 2" Appellant (Gaste Ali), the 3 Appellant (Mussa Alli Jawadu) and the 4" Appellant (Mtelera Wisiki) be set at liberty forthwith, unless any of them is held for other lawful reason. The appeal herein succeeds in part. 12 Delivered in Open Court at Zomba this 22° day of September 2022 \ cossuecnaneennaneateaetecenensenas Dick Harry Sankhulani JUDGE 13