R v Mutemwa Muhongo alias Lyembu (Criminal Review Case 316 of 1939) [1939] ZMHCNR 17 (31 December 1939)

78 V ol. II] R. MUTEMWA MUHONGO alias LYEMBU. Crim inal R eview Case No. 316 of 1939. Crim inal Procedure Code section 187 (2)—procedure on plea of guilty— examination o f witness to ascertain quantum o f sentence. On a plea o f guilty the case should not be tried ou t although it is not illegal to do so. Accused should be convicted forthwith. A witness can, however, be examined to ascertain the quantum of sentence. Law , C . J .: In view o f the accused’s unequivocal plea, which was accepted and recorded as one o f guilty, the Magistrate should have followed the mandatory provisions o f section 187 (2) Criminal Procedure Code. He should have convicted and sentenced the accused forthwith; no other form o f order against the accused seems to have been justified on the plea. A magistrate is relieved from taking that action, however, only if there appear to be sufficient cause to the contrary. In such circumstances the reasons for that sufficient cause should be recorded in explanation why he has not convicted and sentenced the accused or made any other order against him. In his judgm ent the Magistrate explains that he tried the case at length for the purposes o f quantum o f sentence. Apart from his omission to record his reasons for so doing, I cannot say that this action in trying-out the case was illegal. I t was merely an unnecessary procedure, and to that extent unusual and irregu­ lar, and occasioned a great deal o f trouble and loss o f tim e to him self and It would seem that the examination o f others concerned with the case. one witness (or two at the most) would have sufficed to enable him to form an opinion as to what would be adequate punishment, and would have been sufficient cause for not convicting and sentencing the accused forthwith.