Henry Mulenga Kapoko and Ors v the People (HPA/21/2019) [2020] ZMHC 481 (16 April 2020)

IN THE HIGH COURT FOR ZAMBIA HOLDEN AT LUSAKA (Criminal Appellate Jurisdiction) HPA/21/2019 HENRY MULENGA KAPOKO ZUKAS MUSONDA KAOMA EVARISTO MUSABA VINCENT LUHANA JUSTINE JASPER PHIRI vs. THE PEOPLE BEFORE: Hon. Mr. Justice M. K. Chisunka For the Applicant: Mr. Friday Besa - Friday Besa & A ~~ociates. For the State: Ms. M. Chipanta Mwansa - Deputy Chief State Advocate and Ms. C. A. Bau leni - State Advocate, National Prosecution Authority, Mr. G. S. Kangwa & Mr. L. C. Lemba - Legal and Prosecution Officers, Anti-Corruption Commission. RULING ON BAIL PENDING APPEAL Legislation referred to: 1. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia 2. The Penal Code Act, Chapter 87 of the Laws of Zambia. 3. Tho ProhibJtton and Prevention of Money Laundering Act No. 14 of 2001. Cases ro c tJ,.r]_to: 1 . Rahim Obaid u. The Pe ople (2 ) Nadelllm Qua.smi u. The People (1977) Z. R. J 19 (H. C.). 2 . Stoddart v. The Queen ( 1954) 1 N. R . L. R. 228. 3. An4f Kumar Rathi Krishna v. The People (2011) 3 Z. R. 1. 4 . Joseph Watton {1979/ 68 Cr. App. 293. Introduction This ruling decides an application for bail pen din g appeal ma de by Evaristo Musaba (the "Applicant") who is also the 3 rd Appellant in th e main matter . The application was made pursuant to section 332 ( 1) of the Criminal Procedure Code Cha pter 88 of th e Laws of Zambia, by way of summons taken out on 2 nd April, 2020, seeking "the 3 rd Appellant to be admitted to bail pending the determination of Appeal". Brief Background Th e Applicant together with four (04) others, were convicted of Theft by Servant contrary to section 272 and 277 of the Penal Code, Chapter 87 of the Laws of Zambia and Money Laundering contrary to section 7 of the Prohibition and Prevention of Money Laundering Act No. 14 of 2001. The Subordinate Court sentenced the Appli cant to 9 year s imprisonment with h ard labour for the offence of The ft by Servant and 9 years impriso nin cnt w it h h a rd labou r fo r the offe nce of Money Laundering, with both sen tences to run consecutively and th ere by bring in g hi s total j a il te rm to 18 years. Shortly after conviction , the Applicant togethe r with the four (04) other convicts, applied for bail pending appeal before the Hon . Lady Justice C. L. Phiri. This application was dismissed on 22nd November, 20 18. Subsequently, a panel of three (03) High Court Judges comprising of Hon. Lady Justice C . L. Phiri, Hon . Lady Justice R. H. Chibbabbuka and myself was constitute d for the purposes of hearing th e main appeal. On 29 th October, 2019, the main appeal was h e ard and Judgment on Appeal is due to be delivered on 8 th May, 2020 . This is the brief background under w hich the Applicant has made this application for bail pending appeal. I heard the said application on 14th April, 2020. Affidavit Evidence and Submissions The Applicant The Applicant's bail application is supported by an affidavit in support filed on 2nd April, 2020, and sworn by the Applicant. In the affidavit in support, the Applicant deposed that: 1) Th e global outbreak of the Coronavirus disease (Covid 19) raises n ew, sufficient, compelling and exceptional circumstances which renders this application m eritorious a nd warrants his admission to bail pending d etermina tion of appeal. 2) The prison s are highly congested and therefore, th ey are fertile ground for the rapid s pread of Covid- 19. Prevention gu idelines such as social distancing and regular hygien e cannot, therefore, be achieved. 3) Covid - 19 is fatal for people of advanced age who have underlying health conditions. The Applicant, b eing 58 years of age and s uffering from dangerou s Keloids and High Blood Pressure, genuinely fears for his life 1n prison should he be left in th e congested prisons. 4) The gravity of the circumstances the Applicant now faces far o utweigh the circumstances t hat existed a t the time of his initial application for bail pen ding appeal. 5) The Judiciary , in general, a nd the Courts in particular, have taken judicial notice of th e dangerous situation Covid-19 poses in prison and in society such that Court hearings that are not con s ide red urgent h ave been suspended. 6) Courts have been urge d to grant a pplic ants bail with reasonable conditions so that the prisons can be d econgeste d with a view to c ontaining the spread of Covid- 19. 7) The offences for which he was convicted are bailable. Previously, h e complied and abided by the all the bail conditions imposed by the Subordinate Court durin g the period of trial. 8) Having had the benefit of hearing the main appeal and reading the heads of argument, this Court has had a chance to evaluate the prospects of success of his appeal which h e verily believes are high. At the h earin g, Counsel for the Applicant, in addition to the affid avit eviden ce, submitted that: 1) Section 332 Criminal Procedure Code (CPC) gives this Cou rt the power to admit the Ap p licant to bail and does n ot forbid the Applicant to make an application for bail more than once on t h e b asis of new circ umstances. 2) The call to p romote soc ial d istancing t o stem t h e sprea d of Covid- 19 m akes t h e need t o a dmit t h e Applic ant to b ail exceptional. 3) This Court h as been p r esen ted wit h a unique opportunity t o initiate t h e setting o f preced e nt in defining and c ons ide ring the novel n a ture of C ovid-1 9 or any othe r outbre ak in the future, as c onstituting an exceptional circums t ance. 4) The c ase of Rahim Obaid v. The People (2) Nadehim Quasmi v. The People (1977) Z. R. 119 (H. C.) relied on by Lh c S ta t e, is di s tingu i sh a ble in Lhc sen se tha t the earl ier bail n ppli cuti on a nd th is ap p lication h ave been m od e on diffe re nt fac t s a n d th us it d oes n ot prc.:vc.:nt this Co u r t fro m h earin g Lhi s appli cati on . The State The S ta te fil ed an affidavit in oppos ition on 14 th April, 2 020, sworn by Leon Chite ta Lemba, Counsel s eized with conduct of the matte r on be half of the State. He d eposed that: 1) The a pplicant m a d e an a pplication for bail p e nding a ppeal befo re the trial Court and it was dismissed for lack of merit. 2 ) The application for bail pending appeal was renewed before this Court and it too was equally d ismissed on 22 nd November, 2018. 3) Bail is given at the discretion of th e Court and in exercising its discretion, the Court is entitled to preview the prospects of success of the proposed appeal and the existence of exceptional circumstances. 4) The Applicant h as not demonstrated that his a ppeal h as prospects of success n either h as h e shown the existence of exceptional circumstances to warrant the granting of bail pending appeal. 5) The outbreak of Covid- 19 1s not an exceptional cir cumstance 6) Th e fact that the Appli c ant was on bail during trial, can provide credible surelics and a bide by bail c onditions are not cxcc plionaJ circum s tan ces. Counsel for the State augmented its pos ition and submitted that : 1) This Court had no jurisdiction to entertain an application which h ad already been determined by another J udge of the High Court. Counsel relied on the Rahim Obaid case for this principle. 2) Covid-19 was not an exceptional circumstance because it did not fall within the exceptional circumstances upon which bail pendin g appeal could be granted as listed by the Supreme Court in Anuj Kumar Rathi Krishna v. The People (2011) 3 Z. R. 1. 3) The Applicant is a convict and in line with the authority in the Anuj Kumar case the Court must b e cautious before releasing a convict on bail pending appeal. 4) The main appeal having already been heard b y a panel of three (03) Judges, this Court is precluded from delving into the merits of the a ppeal. Issue to be Determined The main issu e for d etermin ation is whelher t his is a proper case in which this Court should exercise its discretion and a dmit th e Applicant to bail pending appeal . To resolve this issue, I must fi1·st review th e principles that guide admission to b ail pending a ppe al. Bail Pending Appeal: The Relevant Principles In determining an application for bail pending appeal, it is imperative to note that bail is granted at the discretion of the Court. See section 332( 1) CPC and the Anuj Kumar Rathi Krishna case. In the Anuj Kumar Rathi Krishna case, the Supreme Court guided that it should always be borne in mind that in an application for bail pending appeal, the Court is dealing with a con vict and sufficient reasons must, therefore, exist before that convict can be released on bail pending appeal The case of Stoddart v. The Queen ( 1954) 1 N. R. L. R. 228 , discussed the r elevant principles applicable to an application for bail pending appeal. In that case, it was h e ld that bail pending a ppeal should only be grante d in exceptional circumstances and that in dete rmining wh ether there are exceptional circumstances, the Court must always consider: a) The likelihood of the a ppeal s ucceeding; and b) Wh e th e r lhc a ppe lla nt would h ave served a sub stantial portion o f the senten ce by th e Lime.: th e a ppeal was h eard . In Joseph Watton [1979/ 68 C r. App. 293, Lh c English Court of Appeal h e ld that th e two (02 ) exce ptional c ircum stances referred lo above 1nus t always exist and mu s t be disclosed in th e a pplication seeking bail pending appeal. Evaluation In the present case, Covid-19 has been disclosed as the reason and the n ew exceptional circumstance upon which t h e Applicant ought to be admitted to bail pending appeal. It has been argued on behalf of the Applicant that the facts presented in this bail application are different to those h e presente d in his previous bail application as Covid-19 did not exist at th at time. At this point, I must hasten to state that in all applications for bail pending appeal, the primary considerations are the likelihood of the appeal succeeding and whether there is a risk that a substantial portion of the sentence will be served b y the time the appeal is heard. Without satisfying these two (02) considerations a person cannot be admitted to bail pending appeal. This then entails that where a person is arguing that there are new circumstances which are exceptional, that person must demonstrate to the Court, that the new exceptional circumstances materially change the tvvo primary considerations in the sense that they can now b e answered in the affirmative thereby warranting a dmission to bail. r note Lh a t both con s icl c r ution s i .e. th e like lih ood o f the a ppeal s u cceed ing nnd th e ri s k o f serv ing a substanti al porti on of the sentence were con s iclc r c cl in the initi a l bai l appli cation by the H on. Lady Justice C. L . Phiri on 22 11 " November, 20 18 . In the a pplication before me, the App li cant has not d emon s trated how Covid-19 has materially changed his circums tances pertaining to the likelihood of his appeal s u cceed ing and the risk of serving a substantial portion of his 18- year sentence. All the Applicant has stated is th at this Court is better placed to consider the likelihood of his appeal succeeding on account that this Court had the benefit of hearing the main appeal an d reading the heads of arguments. This, I'm afraid is not a s u fficient reason to warrant admitting the applicant to bail pending appeal and in fact , is equivalent to having a second bite at th e ch erry. I h ave carefully cons idered this application and I do not see how th e a d ven t of Covid-19 has changed the prospects of the Applicant 's a ppeal nor changed th e chances of him serving a substantial portion of his senten ce . In my view, the facts and circumstances n ecessary to warrant the success of this application h a ve not changed from th e Applicant's p revious b ail application. In the premise s , I am precluded from interfering with the Ruling of the Hon. La dy Justice C. L. Phir i d e livered on 22nd November , 201 8, as she conclusively dealt w ith the two primary considera tions in th e prior a pplica tion for b ail pending appeal. Th e said considerations having not b een changed b y t h e "exception al circumstance" dis closed h e rein , it is unnecessary to re-op en this npp l ico tion nncl r c -con:-.idcr I lw pri111nry co11 Hicl •rntio 1rn nH lhl'y hove n J r ·ncly been nclj uclgl'cl . In u n y l'V c nl 11 11d 110lwil11 :-i l11ndi11g th e nlwvl', I 1u11 ol th e li rm view th n t th e rn ui n nppcnl h rtv i11 g f1 1rl'udy btTn hcurcl nncl Judgmen t rcscrvccl to 8 th M(l y, 2 0 2 0, 11 consicl<'rnt io 11 of lhc prospect s or uppcnl, cvc.: n thoug h /Jrin/CI fucie, c nrr ic.:H with il an inhere n t risk of delvi n g into th e tTH.: rits of th e muin nppc.:nl, n Lask which is the preserve of th e finul Judgment 0 11 Appeal. f mn fortified by th e Anuj Kumar Rathi Krishna case, w h c.:rc the Supreme Court uph eld a High Co urt ,Ju d ge's decision not lo cons ider th e prospects of the 1nain appeal on th e basis that doing so wou ld have been prejudicia l to th e parties. My con sidered view is th at the a dvanced s tage of this appeal, therefore, renders it un suitable for th e p rospects of the appeal to be considered in th e b ail a pplication as doing so n1 ay only serve to prejudice both p a rties and undermin e the appellate process. Similarly, t h e Applicant h aving been senten ced to 18 years imprisonment, it is highly unlikely that h e would h ave served a substantial portion of th e 18-year sentence b efore the Judgment on Appeal is delivered . Due to the foregoing, I am of the view tha t the risk in releasing a con vict for only a couple of weeks before his appeal is determined is too high, particu larly, when one consider s tha t prisoner s who's cases h ave been disposed of in the Courts and h ave no ch ance of release, have no option but to fight Covid- 19 within their prison quarters. • I h ave no doubt in my mind that as part of the collaborative efforts in combating Covid- 19 around the country, the Zambia Police Service and the Zambia Correctional Service have taken necessary m easures to ensure that prisone r s are protected from Covid- 19. Conclusion Taking all of the above into account, I find that this is not a proper case in which I can exercise my discretion to admit the Applicant to bail pending appeal. Accordingly, I dismiss this application. Delivered at Lusaka this ...... day of ... ............. ............ 2020. M. K. CHISUNKA HIGH COURT JUDGE