Bato v R (Criminal Appeal 29 of 2022) [2023] MWHC 126 (6 February 2023)

ee Republic of Malawi IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY CRIMINAL DIVISION CRIMINAL APPEAL CASE NUMBER 29 OF 2022 {Being Criminal Case Number 455 of 2022 before Senior Resident Magistrate sitting at Mangechi) LYTON BATO APPELLANT THE REPUBLIC RESPONDENT CORAM: THE HONOURABLE JUSTICE T. S. MASOAMPHAMBE I. C. Twea, of Counsel for the Appellant R Mkweza, of Counsel for the Respondent C Tweya, Official Interpreter G Amos, Court Reporter JUDGMENT Introduction {1} By the amended charge sheet, on 4" August 2022, the appellant, Lyton Bato, was charged before the Senior Resident Magistrate sitting at Mangochi of the charge of possessing charcoal without a licence contrary to section 68(3)(a) of the Forestry Act, as amended by the Forestry Amendment Act 2019. The particulars of the charge were that on or about 27" July 2022 at Matola Village along the Mangochi-Namwera Road in the district of Mangochi, the accused possessed 31 bags of charcoal without a licence or permit. {2] The lower court record indicates that the appellant pleaded guilty, and thereafter the State proceeded to narrate the facts. After the facts were narrated, coupled with the tendering of the appellant’s caution statement, evidence of arrest, and the vehicle together with the charcoal, the lower court convicted the appellant. Following the conviction, the trial court then proceeded to impose a sentence of 4 years’ imprisonment. The appellant now appeals against the lower court’s Page 1 decision. The grounds of appeal are that: (a) the lower court erred in entering a plea of guilty when the appellant qualified his plea; (b) the lower court erred in convicting the appellant when the facts narrated do not substantiate the charge; and (c) the lower court erred in imposing a lengthy custodial sentence against the appellant who had no previous conviction record. [3] The State opposes the appeal. [4] Both parties filed skeleton arguments in support of their positions. They also orally addressed the court. This Court bears in mind their submissions as it makes the determination. Legal issues [5] The Court considers the following issues to be relevant for the disposal of this appeal: (a) Whether the lower court erred by entering a plea of guilty when the appellant entered a qualified plea? (b) Whether the lower court erred in convicting the appellant when the facts narrated do not substantiate the charge? (c) Whether the sentence imposed by the trial court was excessive in the circumstances? Law and disposal of the case [6] This matter comes to this Court by way of appeal. Appeals from magistrates’ courts to this Court are by way of re-hearing. This entails that, as was stated in Pryce v Rep (1971-72) 6 ALR (Mal) 65, this Court must review the entire record of evidence that was given in the lower court, and come up with its own conclusion while giving due consideration to the findings of the lower court which had lived the case in the course of trial. [7] The first ground of appeal relates to the entering of a plea of guilty. The law on the taking of plea requires that before a court can enter a plea of guilty, the plea must be unequivocal — Rep v Mphande [1995] 2 MLR 586. The Mphande case (supra) further states that more care is needed when entering a plea of guilty. In that regard, Chatsika J in Rep v Benito (1978-80) 9 ALR (Mal) 211 emphasised that before a court can enter a plea of guilty, it must ensure that all the ingredients of the offence have been put to the accused person and he must admit each and every one of those ingredients. It is only when this has been done that a plea of guilty may be entered. But the Proviso so section 251(2) of the Criminal Procedure and Evidence Code (CP and EC) further states, in mandatory terms, that before a plea of guilty is recorded, the court must ascertain that the accused Page 2 understands the nature and consequences of his plea and intends to admit without qualification the truth of the charge against him. In Sosten Sipolo v Rep, Criminal Appeal No 36 of 2016 [2018] MWHC 716, the Court quoted with approval the decision of Marvellous Masamba v Rep, Criminal Appeal No 21 of 2017 in which it was held that the Proviso to section 251(2) of the CP and EC must be religiously followed, and that the failure to ascertain that an accused, more so an unrepresented one, understands the nature of the plea and that he intends to plead without qualification the truth of the charge against him renders the plea irregular. [8] The appellant herein was charged with the offence of possession of charcoal as criminalized under section 68(3)(a) of the Forestry Act as amended in 2019. The provision states: A person who, without a licence or permit, engages in the production, possession, trafficking or sale of charcoal commits an offence and shall be liable, upon conviction, to a fine of K5, 000, 000 and to imprisonment for a term of 10 years [9] The lower court record indicates that when the appellant was taking plea, he responded as follows: “I admit that I was found with charcoal. They were 31 bags. I took them for Matola going to M’baluku”. After this, then the trial magistrate entered a plea of guilty. There are two errors here. The first is that the appellant, who was unrepresented, was not informed, as required by the Proviso in section 251(2) of the CP and EC, if he understood the consequences of his plea and intended to admit the charge nonetheless without qualification. If he was, then that should have been put on record. The second is that lack of licence or permit is an essential element of the offence that the appellant was answering. The response from the appellant shows that that ingredient was not put to him before a plea of guilty was entered. In the premises, a plea of guilty was wrongly entered by the lower court. [10] The cases of Magwaya v Rep 8 MLR 323 and Rep v Clifford Dzinkambani, Confirmation Case No 481 of 2000 [2003] MWHC 36 however suggest that a plea that is wrongly entered can be cured by the facts. However, in this matter even the facts do not support the charge. The facts narrated before the lower court are silent on the essential element of the appellant lacking a licence or permit. That being the case, even the facts of the case cannot prove the charge. In the premises, the court finds that the conviction against the appellant was wrongly entered. This defect, in this Court’s view, cannot be cured by section 3 of the CP and EC. The conviction is therefore quashed and the sentence of 4 years’ imprisonment is set aside. Page 3 [11] Having so concluded, the question that then arises is what is the appropriate order to make in the circumstances. This Court, on appeal, can make several orders including reversing the finding and sentence of the lower court, or ordering that the appellant be tried by a court of competent jurisdiction — see section 353(2)(a)(i) of the CP and EC. In this matter, the appellant was convicted on 4 August 2022. He has therefore been in custody for over 5 months. The allegation is that he was found carrying charcoal in a vehicle. From the reading of the lower court’s record, that vehicle did not belong to the appeliant and was released to the owner. It is not clear from the record what happened to the charcoal. There is therefore no guarantee that the charcoal will be available if a retrial is ordered. In the circumstances, the Court finds that ordering a retrial would not be appropriate. The Court therefore acquits the appellant and orders that he be released forthwith unless the state continues to hold him for some other lawful reasons. [12] tis so ordered. Pronounced in open court this 6" day of February 2023 at Zomba Te Ll S. Masoamphambe GE Page 4