Kennedy Mungaila v People (Appeal No. 01/2019) [2019] ZMCA 416 (5 July 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (C ivil Jurisdict ion ) Appeal No . 01/2019 BETWEEN: KENNEDY MUNGAILA AND THE PEOPLE APPELLANT RESPONDENT CORAM: Mchenga DJP, Chishimba and Mulongoti, JJA On 23 r d April 2019 and 5 t h July 2019 For the Appellant : D. Makinka , Legal Aid Counsel, Legal Aid For the Respondent : A . K . Mwanza, Senior State Advocate , National Prosecution Authority Board JUDGMENT Mchenga , DJP, delivered the judgment of the court . Cases r efer red to : l. Rahim Obaid v The People (2) Nadehim Quasmi v The People [1977] Z . R . 119 2. Nelson Banda v The People [1978] Z. R. 300 3. Director of Public Prosecutions v Risbey [1977] Z. R . 28 4. Jutronich, Schutte and Lukin v The People [ 1965] Z. R . 5. Richard Sinkonde v The People, Appeal No. 109 of 2018 Legislation referred to : J2 l. The Penal Code, Chapter 87 of the Laws of Zambia 2. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia 3 . The Court of Appeal Act, Act No. 7 of 2016 Introduction l. This appeal emanates from the judgment of the High Court (M . Chanda J . ) , delivered on 27 th September 2018 . By that judgment , the appellant ' s appeal against his conviction by the Subordinate Court (Hon . R. Chikalanga) for the offence of theft of public servant , was dismissed. In addition , the High Court increased the sentence imposed by the trial magistrate from 12 months to 4 years imprisonment with hard labour . History of the case 2 . The appellant initially appeared in the Subordi nate Court (Hon . D. Chimbwili) , on a charge of Theft by Public Servant on 14 t h September 2010 . He denied the charg€ and four prosecution witnesses were called . The witnesses called were Esther Siamasusu, Goodwil l Muleya , Daniel Kambala and Elijah Zyambo. J3 3 . At the end of that trial , he was convicted and sentenced to 2 years impri sonment on 28 th February 2011. He appealed against the convict i on and on 1 st February 2012 , the High Court (Chashi J , as he then was ) set aside the conviction and ordered a retrial . The re-trial 4. On 31 st August 2016 , the appe l lant re - took the plea before a different magistrate , but on the same charge of theft by publ i c servant contrary to sections 272 and 277 of the Penal Code. The particulars of offence, as in the initia l t r ial , alleged that on 19 t h May 2010 , at Choma , i n the Choma Distr i ct of the Southern Province of the Republic of Zambi a , being a person employed in the public service as Cle r k o f Court , he stole K3 , 800 cash the property of Esther Siamasusu which came into his possession by virtue of h i s employment . 5. He denied the charge and the matter proceeded to trial Evidence in the re-trial 6. In September 2009 , Jacob Muleya , Goodwill Muleya ' s father was ordered to pay K3 , 800 to Esther Siamasusu . JS entered in favour of Esther Siamasusu , Goodwill Muleya ' s father failed to pay the judgment sum . Trial magistrate's findings in re-trial 10. The trial magistrate accepted Goodwil l Muleya ' s evidence and found that the appellant received K3,800 from him . He a ls o found that since the money was pa i d into court, it was not stolen from Esther Siamasusu but from the judiciary , t he appellant ' s employer . He convi c ted the appellant of the c harge of theft by pub l ic servant a n d sentenced him to 12 months impr isonme nt . Appeal to the High Court after re-trial 11 . The appellant advanced 3 grounds in support of his appeal to the High Cour t. He a r gued that the case should not have proceeded on a cha rge of theft by public servant because no one from the judiciary complained of the theft . In addition , i n the absence of evidence of who filed the comp l aint at the po l i ce station , he should not have been convicted . Fina l ly , h e argued that the l etter he denied making or signing , should not h ave been relied on to determine his guilt . J6 12. After reviewing the evidence , the High Court judge found that there was sufficient evidence before the trial magistrate to warrant the appellant ' s conviction on a charge of theft by servant. She reviewed the testimony of Esther Siamasasu , Jacob Muleya and Daniel Kambala and concluded that it established that he received the K3 , 800 and signed the letter confirming receipt. He then undertook to pay back the money . 13 . On the claim that there was no complainant, she referred t o section 90 of the Criminal Procedure Code and opined that anyone could have filed the complaint and it was therefore immaterial that evidence was not led of who complained. The appeal against conviction was then dismissed for lacking merit. 14. The judge then invoked section 327 of the Criminal Procedure Code, which a ll ows a judge to review the sentence even when the appeal is only against convict i on. She considered the principles set out i n the case of Berejena v The People and indicated that the sentence came to her wi t h a sense of shock for being J8 17. Mrs Mwanza conceded that the judge in the court below, erred when she relied on the evidence in the original trial . However, she submitted that even if she had only considered the evidence in the second trial, she would have still upheld the conviction. 18 . Mr. Makinka ' s repl y was that the trial magistrate heavily relied on the disputed letter. The appellant having denied receiving the money and disputed signing the l etter , the prosecution should have led evidence proving that it was the appellant ' s signature that was on it . 19 . As was rightly conceded by Mrs . Mwanza , it was erroneous for the Judge on appeal to take the proceedings o f the original trial, into account, when hearing the appeal before her . The fact that it was the case is evident from her r eference to the test imony of Esther Siamasasu and Daniel Kambala, as these two witnesses did not testify in the second trial. Notwithstanding, the issue really is whether the evidence in the second trial did prove the charge. This J9 deal with and there is therefore no need for us to send the case back to the High Court for the rehearing of the appeal. 20 . The only witness who gave evidence that implicated the appellant in the second trial was Jacob Muleya . He told the trial magistrate that he paid him the judgment sum . He also told the trial magistrate that foll o wing the seizure of the animals , and upon being confronted , the appellant acknowledged receipt of the money and wro te the letter setting out how he was going to pay it back . 21. In the case of Nelson Banda v The People it was held , inter alia , that : (i) There is no rule in our law that the evidence of more than one witness is required to prove a particular fact. that more (ii) In any given set of circumstances, where there is evidence than one person witnessed a particular event , if the happening of the event is disputed when first deposed to and the prosecution chooses not to call any of the other persons alleged to have been present, this may be a matter for comment and a circumstance which the court will no doubt take into account in the decision as to whether the onus on the prosecution has been discharged . ...... . n o In this case , the bailiff who witness ed the s ign ing of the letter was called b ut d ied before he could give his evidence. That aside , it was still competent for the trial magistrate to determine the case on the basis of the credibility of the testimony of Jacob Muleya be cau se he is t h e person who paid the money to the appellant. We are n ot persuaded by Mr . Makinka ' s argument that eviden ce should have been led proving the signature because the trial magistrate did not heavily rely on the letter , a s he claims . 22. I n t h e case o f Director of Public Prosecutions v Risbey it was held that: " ...... where the issue is one of credibility and inevitably reduces itself to a decision as to which of two conflicting stories the trial court accepts , an appellate court cannot substitute its own findings in this regard for those of the trial court" In this case , the t ri al magistrate found Jacob Mu l eya ' s account of what transpired more credible than that of the appel l ant. Having exami ned the record and the judgment i n particular , we find no basis on wh i ch we can fault him . Jll We find no merit in the appeal aga inst the conviction and we dismiss it . 23. Coming to the sentence , we equally find no basis for tempering with it . In the case of Jutronich, Schutte and Lukin v The People, the Court of Appe a l held that : "In dealing with appeals against sentence the appellate court should ask itself these three questions: (1) Is the sentence wrong in principle? (2) Is the sentence so manifestly excessive as to induce state of shock? (3) Are there exceptional circumstances which would render it an injustice if the sentence was not reduced?" We do not find the 4 years sentence imposed by the High Court judge to be either wrong in principle or manifestly excessive as to induce a sense of shock in us . We uphold it . Statutory judgment 24. In the case of Richard Sinkonde v The People, the appellant , a public servant employed in the Ministry of Justice , was convicted of the offence of theft by public servant , we held t ha t Section 171(1) of the Criminal Procedure Code, made it mandatory in such a case for J12 the trial magistrate to enter statutory judgment in favour of Attorney General for the amount stolen. It follows , that having convicted the appellant for the subject offence , there was a misdirection when the trial magistrate failed to enter statutory judgment. 25. Section 16(5) of the Court of Appeal Act empowers this court to impose an order that the trial court could have imposed on the conclusion of a trial . Consequently , we enter statutory judgment in the sum of K3 , 800 in favour of the Attorney General . Verdict 26. The the appeal against conviction fails . The increase in the sentence , from 12 months to 4 years , is upheld. Further , statutory judgment in the sum of K3 , 800 , is entered in favour of Attorney General . C. F. R. Menn DEPUTY JUDGE PRE IDENT F. M. Chishimba COURT OF APPEAL JUDGE J. Z. Mulon oti COURT OF APPEAL JUDGE