People v Tex Muntu ((1963 - 1964) Z and NRLR 188) [1964] ZMHCNR 23 (23 December 1964)

THE PEOPLE v TEX MUNTU (1963 - 1964) Z and NRLR 188 1963 - 1964 Z and NRLR p188 [Before the Honourable the Chief Jus�ce, Sir DIARMAID CONROY on the 23rd December, 1964.] Flynote Sentence - transfers between subordinate courts - sec�on 73 (a) of the Criminal Procedure Code, Cap. 7. Headnote (i) The transfer of a case under the Original Procedure Code (Cap. 7) s. 73 (a) requires the recipient court to hear the case de novo; a transfer solely for sentencing is ineffec�ve. (ii) A convicted but unsentenced prisoner may be sentenced in the court of convic�on by a magistrate other than the one who convicted. [ Cases cited: (1) R v Gibson Mumba 4 NRLR 73. (2) R v Wallace 1958 R & N 408. (3) R v Pepper and Platt [1921] 3 KB 167. [Editorial Note:]The Subordinate Courts Ordinance was amended by Act No. 28 of 1965, but these amendments have not affected the decision of the learned Chief Justice. Judgment Conroy CJ: The accused was charged in the Court of the Resident Magistrate at Chingola, with the� contrary to sec�on 243 of the Penal Code, the par�culars of the offence being that he stole a pair of trousers and a shirt valued at £3 5s. 0d. He was brought before the resident magistrate (Mr. Pollock) on 28th September, 1964, and pleaded guilty. The public prosecutor outlined the facts of the case; the accused admited that they were correctly stated. Whereupon the court convicted the accused and, at the request of the public prosecutor, granted an adjournment to 12th October for record and sentence. The resident magistrate then transferred the case to the court of the magistrate, class II, Chingola. It is relevant to note that the proper �tle as prescribed in sec�on 4 of the Subordinate Courts Ordinance is " the subordinate court of the second class " at Chingola. The mater came before the subordinate court of the second class at Chingola on 12th October, when the accused was sentenced to eighteen months imprisonment with hard labour and put under police supervision for a period of three years from the date of his release. The sentence of eighteen months imprisonment required to be confirmed by the High Court, under sec�on 8 (3) of the Criminal Procedure Code. The record of the case was therefore transmited to the High Court. Sec�on 73 (a) of the Criminal Procedure Code empowers any magistrate holding a subordinate court of the first class to transfer for inquiry and trial, any case of which he has taken cognizance, to any subordinate court empowered to inquire into or try such case within the local limits of such first - class subordinate court's jurisdic�on. It is clear to me (for reasons I give below) that the legislature, when enac�ng this provision, intended that where a magistrate holding a subordinate court of the first class had taken cognizance of a trial and embarked upon it, he could 1963 - 1964 Z and NRLR p189 CONROY CJ transfer it for trial to another subordinate court within the appropriate local limits of jurisdic�on, but the later court would have to conduct the trial de novo. In R v Gibson Mumba 4 NRLR 73, Robinson, Ac�ng CJ, laid down that where a subordinate court has convicted a person, the same court must pass sentence, but that the magistrate who passes sentence can be a different magistrate from the one who convicted, provided he is si�ng in the same court. This decision was followed in R v Wallace 1958 R & N. 408. In neither case did the High Court give the reasons upon which its decisions were based, but I think that the High Court must have proceeded upon the following reasoning. Sec�on 73 (a) enables a subordinate court of the first class, which has taken cognizance of a case, to transfer the case for " inquiry or trial " to another subordinate court in certain circumstances. We are not concerned here with an inquiry, but only with a trial. The subsec�on does not authorise the transfer of a case for sentence. For prac�cal reasons, it is clear that the legislature, when providing for a transfer to another court for trial, by using the expression " for inquiry or trial " must have meant the new court to conduct the whole trial. Therefore, under sec�on 73 (a) some of the evidence could not be heard before court A, and the remainder of the evidence heard before court B. Where court has taken cognizance of the case to the extent of hearing part of the evidence, it can s�ll transfer to court B, but court B must start the trial again from the beginning and hear all the evidence de novo. But if court A has proceeded to convic�on and has convicted the accused, it is not possible to transfer the case to court B under sec�on 73 (a), because by virtue of sec�on 128 court B is precluded from star�ng the trial de novo. Sec�on 128 provides that where a person has been tried by a court of competent jurisdic�on for an offence and convicted, he shall not be liable to be tried again, while such convic�on remains in force, on the same facts for the same offence. Its terms would preclude court B from trying the accused, because he would have been tried and convicted by a court of competent jurisdic�on (court A) and his convic�on by the later court would remain in force when he was brought before court B. The difficulty in fact arose here because a�er convic�ng, Mr. Pollock was transferred away from Chingola and he was replaced by Mr. Watson, magistrate who only enjoys class II powers. The way out of the difficulty is that suggested by Robinson, Ac�ng CJ, in Gibson Mumba's case, when he said: ". . . There is authority (Rex v Pepper and Platt [1921] 3 KB 167) and also precedent in this court for saying that a convicted but unsentenced prisoner can be brought before the same court which convicted him and he can be sentenced by the magistrate then presiding over the court although that magistrate is not the same who convicted. The full record should be before the sentencing magistrate and the prisoner should be given an opportunity of saying anything he wants before sentence is passed." The order of the resident magistrate, Chingola, transferring the case to the subordinate court of the second class, Chingola, for sentence was, therefore, bad and I set it aside. The sentence passed by the later 1963 - 1964 Z and NRLR p190 CONROY CJ court is also set aside, as it was ineffec�ve, being passed without jurisdic�on. The court of the resident magistrate Chingola, must con�nue the trial of the case and complete it by dealing with the ques�on of sentence. The resident magistrate presiding need not be Mr. Pollock, but may be some other resident magistrate, si�ng in the court of the resident magistrate, Chingola. The accused will be remanded in custody pending the determina�on by the court of the resident magistrate, Chingola, of the ques�on of sentence. I have no doubt that when this ques�on is decided, due considera�on will be given to ordering any sentence of imprisonment to take effect from some day prior to that on which it is pronounced, under sec�on 38 of the Penal Code (Cap. 6).