Dennies Stephen Banda v The People (H N A 211/1970) [1970] ZMHC 5 (23 October 1970)

DENNIES STEPHEN BANDA v THE PEOPLE (1970) ZR 15 (HC) HIGH COURT CHOMBA Ag J I 23rd OCTOBER 1970 30 H N A 211/1970 Flynote Criminal law and procedure - Impersonation - Whether a mere false representation enough to constitute the offence. I Criminal law and procedure - Official corruption - Ingredients of offence. 35 Headnote The appellant was convicted by the subordinate court of personation and official corruption and was sentenced to twelve months' imprisonment with hard labour. He had made a false representation to a security guard that he was a CID officer and thus secured admission for his family to a club. When he was taken into custody by police officers for 40 personating a public officer he gave as bribe K2 to each of the two police officers. ■ 1970 ZR p16 CHOMBA AGJ Held: (i) In order that a person should be guilty of an offence of personation under s. 87 (2) of the Penal Code, he should, in addition to the false representation, assume to do an act or attend in 5 any place for the purpose of doing any act by virtue of his assumed office. In the instant case securing permission for the family to enter the club premises had nothing to do with the duties of a CID officer. I (ii) The offence of official corruption is committed when the accused 10 bribes a public officer to persuade him to refrain from executing his duty under a belief, even though mistaken, on the part of the accused that he had committed an offence for which the public officer wanted to take action against him. (iii) In giving the bribe the appellant was persuading the officers to 15 refrain from executing their duty as required of them by the law. Both the actus reus and mens rea were present. ■ ■ ■ ■ Legislation referred to: Penal Code, 1965 (Cap. 6), ss. 79 (2), 87 (2). Appellant in person. D M Lewanika, Senior State Advocate, for the respondent. 20 Judgment Chomba Ag J: The appellant was convicted of three offences, namely one of personation contrary to s. 87 (2), Cap. 6 and two of official corruption, contrary to s. 79 (2), Cap. 6. He was sentenced to a total of twelve months' imprisonment with hard labour. He now appeals against 25 conviction on all three counts. On the personation charge the evidence was that the appellant, in order to secure the permission of Security Guard Jackson Nkoya: PW1, for his wife and children to enter Kafue Country Club, into which the said wife and children were otherwise forbidden to enter, represented 30 himself to the said Jackson Nkoya as a CID officer from Lusaka. On the strength of this representation, which was in fact false, his family were allowed to enter into an office on the club premises. Those were the simple facts in support of the charge. In order that a person should be guilty of an offence under s. 87 (2), 35 Cap. 6, he should, in addition to the representation, assume to do an act or attend in any place for the purpose of doing an act by virtue of his assumed office. An obvious example would be where a person falsely represented himself to be a police officer and by that reason I purported to take another man into his custody. 40 In the present case the fact of securing permission for his family to enter the club premises had nothing to do with the duties of a CID Officer. In evaluating the evidence on this count the trial magistrate used facts unrelated to the charge. The appellant ■ ■ allegedly, but at a later stage, also falsely represented himself to two police officers who came to 1970 ZR p17 I ■ ■ CHOMBA Ag J club house as a CID officer from Lusaka who was investigating a case of one Isaac Zulu who had absconded without paying a Government loan of K3,000. The magistrate regarded this representation as substantiating the charge. The appellant was charged with making a false 5 representation to the security guard and not to the police officers. The conviction on this count cannot be sustained and it is quashed; the sentence thereon is set aside. As regards the convictions on the official corruption counts, the evidence briefly was that when it was eventually realised that the appellant was not in fact a CID officer, the police officers referred to above 10 took him into custody for personating a public officer. Each of these officers testified that the appellant gave him K2 to secure the appellant's own release. In his second ground of appeal, the appellant states that if he was not guilty of personation, there was nothing in respect of which he could 15 corrupt the police officers. As Mr Lewanika, Senior State Advocate, submitted, for him to have given the bribes the appellant must have believed, as did the police officers, though wrongly, that he had committed the offence of personation. In the absence of such a belief he would not have resorted to such a practice as he would have been certain of his 20 eventual release in any event. As however, he had the said belief, he undoubtedly gave the bribes with an intent to corrupt. On the other hand, the police officers, in their belief too, that the appellant had committed that offence, were required by law to take the appellant to the police station and there possibly to investigate the matter further. By 25 giving them the bribe, the appellant was persuading the officers to refrain from executing their duty as required of them by the law. The actus reus and mens rea were both present, thus consummating the offence. In conclusion I observe that the trial magistrate failed to consider the defence of drunkenness which the appellant raised. I am however, 30 satisfied that there was not sufficient evidence in support of that defence. In consequence I feel that the failure by the trial magistrate did not occasion a substantial miscarriage of justice and I therefore dismiss the appeal against convictions. With regard to the sentence, I take into account the fact that had 35 the arresting officers known their law they should not have arrested the appellant for what they thought was the offence of personation. If this had not happened then the offences of official corruption would not also have arisen. Secondly, I take into consideration the fact that the appellant is a first offender. Therefore the sentence of twelve months' 40 imprisonment with hard labour he got in respect of each count appears excessive. I set both sentences aside and replace them with a sentence of six months' imprisonment with hard labour on each count. The sentences are to run concurrently and are backdated to the 10th June, 1970. Conviction upheld but sentence substituted 45 ■ ■ ■ ■ ■ ■