G. G (A Juvenile) and S. K (A Juvenile) v The People (App No. 121,122/2022) [2024] ZMCA 105 (2 May 2024)

IN THE COURT OF APPEAL OF ZAMBIA App No. 121,122/2022 HOLDEN AT LUSAKA and NDOLA (Criminal Jurisdiction) BETWEEN G. G (A JUVENILE) S. K (A JUVENILE) AND THE PEOPLE U 2 MAY 2024 INAL REGIST 1 ST APPELLANT 2 ND APPELLANT RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga JJA ON: 22 nd March 2023, 24 th March 2023 and 2 n d May 2024 For the Appellant : W. Mubanga SC , Chilupe and P e rmanent Chambers , with M. Nsapato and A. K Machiya of Nsapato and Co. Advocates For the Respondent : M. M Chilufya, Senior State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases Referred to: 1 . The People v . Alfred Mumba , Charita Ngenda , Shadreck Nasilele and Obin Chamba [1978] Z . R . 405 2 . Emmanuel Chimfwembe v . The People [1998] Z . R . 32 .. . .. J2 Legislation referred to : 1 . The Penal Code , Chapter 87 of the Laws of Zambia 2 . The Juveniles Act , Chapter 53 of the Laws of Zambia 3 . The Probation of Offenders Act , Chapter 93 of the Laws of Zambia INTRODUCTION [11 The appe l lants and two others , appeared before the Subordinate Court (Honourable Mwabona) , on 3Q Lh March 2016 , charged with the offence of breaking into a building and committing a felony therein , contrary to Section 303 of the Penal Code . [ 2 1 At the time , the 1 st appellant was aged 16 years old and the 2 nd appellant was aged 14 years old . [3J The 1 st appellant admitted the charge , while the 2 nd appellant denied the charge . C4 J The 1 st appellant was found guilty of committing the offence after he also admitted the facts in support of the charge. He was then committed to a reformatory . cs1 In the case of the 2 n d appellant , he was found guilty J3 of committing the offence after a trial ; he was committed to an approved school . cGJ On the 21 st June 2016 , the appellants ' case was committed to the High Court for the confirmation of the orders that had been made against them . c11 It was not until the 18 th of February 2020 , that the High Court ( Penegele , J . ) , had the opportunity to confirm the orders issued against the appellants . cs1 Both appell ants have appealed against the confirmation of the orders by the High Court . CASE AGAINST THE 2 ND APPELLANT C9J Before we deal with the 3 grounds of appeal , which are against the orders imposed on the appellants , it is necessary that we consider the propriety of the finding of guilty against the 2 nd appellant . c101 When the two a p pellants appeared for plea , on the 16 th of March 2016 , the 1 st appellant ' s guardian was present , while neither the parents nor the guardians of the 2 nd appellant , were present in court . c111 From the record , there is no indication that the J4 parents or guardians of the 2 nd appel l an t attended any subsequent court hearings . c121 Section 127 of the Juveniles Act , which governed the trial of juveniles at the time , provided that where a juvenile was charged with an offence , a p~rent or guardian of that juvenile , was supposed to be present throughout the court proceedings . c13J In the case of The People v. Alfred Mumba and 3 Others 1 , it was held that it was mandatory under Section 127 of the Juveniles Act , for the parent or guardian of a juvenile who was charged with an offence to attend court throughout the proceedings , unless such attendance had been dispensed with . c141 This being the case , we find that the proceedings that resulted in the 2nd appellant being found guilty of committing the offence , were a nullity because the court was not properly constituted on account of his guardian or parent not being absent . c1s1 Consequently , we set aside the fin ding of guilty made against the 2nd appellant . .. . JS c1 61 We have considered the option of ordering a retrial as proposed by Ms . Chilufya . c111 We note that the offence the 2 nd appellant was found guilty of committing (Section 303 of the Penal Code) , attracts a sentence of up to 7 years imprisonment . c101 At the time the 2 nd appellant was granted bai l pending the hearing of this appeal , he had spent close to 4 years in custody . c191 Going by the circumstances in which the offence in this case was committed, a sen t ence of about 4 years would most probably have been imposed for committing the offence . c2O1 This being the case , we find t ha t it inappropriate to order a retrial as the 2 nd appellant has more or less ' served ' the sentence the offence attracts . 1 ST APPELLANT ' S GROUNDS OF APPEAL AND ARGUMENTS c211 The three grounds in support of t he 1 st appel lant ' s appeal raise one issue , that is , that the High Court Judge should not have confirmed the reformatory order J6 issued against the 1 st appellant given the period of time he had spent in custody prior to confirmation . [22i Section 37 of the Penal Code was referred to and it was submitted that even if a sentence ordinarily takes effect on the date it is imposed , the court ought to have exercised leniency and subtracted the four years the appellants had spent in prison prior to confirmation of the reformatory order . The case of Emmanuel Chimfwembe v. The People 2 was referred to in support of the proposition . COURT'S CONSIDERATION AND DETERMINATION OF 1 5 T APPELLANT'S APPEAL c231 Section 93 of the Juveniles Act, provided as follows : A reformatory order shall, subject to the provisions of this Act, be authority for the detention of the person named therein for a period of four years. c241 Further , Section 94 of the Juveniles Act read out as follows : (1) No reformatory order made by a juvenile court shall be carried into effect, except as provided in subsection (2) , until the record J7 of the case or a certified copy thereof has been transmitted to and the order confirmed by the High Court . (2) Any juvenile with respect to whom a reformatory order has been made shall be conveyed forthwith to the receiving centre without awaiting the confirmation of the order by the High Court. [2s1 In section 2 of the Juveniles Act, a ' receiving centre ' was defined as being "any reformatory or part thereof declared to be a receiving centre". [26J Going by Section 94 of the Juveniles Act, even if the reformatory order _had not been confirmed by the High Court , the 1 st appellant should have been conveyed to a reformatory pending that confirmation and not held at a prison . [211 We agree with counsel for the 1 sL appellant that because of the delay in the confirmation of the order against the 1 st appellant , the High Court should not have confirmed it because of the circumstances prevailing at the time of confirmation . JS c201 Following the confirming the order , the 1 st appellant was going to spend a total of 8 years in custody because the 4 years duration of the order , only started running on the date of confirmation. c291 The 8 years the 1 s t appellant would have spent in custody following the confirmation , is a year above the maximum sentence for the offence he was found guilty of committing . [3oJ We find that outcome to be unjust and we set aside the confirmation of the reformatory order . VERDICT c3 1 1 We allow the 1 s t appellant ' s appeal against sentence . In its place , we impose a 1 year probation order pursuant to Section 3 of the Probation of Offenders Act. c321 The probation order will be with effect from the date of this Judgment . J9 C33J In the case of the 2 nd appellant , we set aside the Conviction. We find it inappropriate to order a retrial , and consequently , we discharge him. C. F. R . Mchenga DEPUTY JUDGE PRESIDENT (lli II ......................... ~ ........... . P. C . M. Ngulube K. Muzenga COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE