S v Kunaka (CRB 6114 of 2015) [2015] ZWHHC 814 (13 October 2015)

1 HH 814-15 CRB 6114/15 THE STATE versus TINASHE KUNAKA HIGH COURT OF ZIMBABWE MAWADZE J HARARE, 14 October 2015 Criminal Review MAWADZE J: It is clear to my mind that the learned Provincial Magistrate who dealt with the matter did not bother to check the relevant statutory provisions governing the charge for which the accused was being charged. The accused was convicted on his own pleas of guilty of three counts which are: couched as follows: “Count 1 Contravening s 157 (1) (a) of the Criminal Law Codification and Reform Act [Chapter 09:23] Possess Dagga. In that on 26th day of May 2015 at 1609 Glen Norah A Harare, TINASHE KUNAKA unlawfully and intentionally possessed dangerous drugs namely 1,063 kilogrammes of dagga (mbanje). Count 2 Contravening s 29 (1) (a) of the Medicine and Allied Substances Control Act [Chapter 15:03] Possess unregistered medicines In that on 26th of May 2015 and at 1609 Glen Norah A Harare, TINASHE KUNAKA unlawfully and intentionally possessed unregistered medicine namely 10 x 100ml bottles of broncleer cough syrup. Count 3 Contravening s 73 (1) as reads with S. I 38 of 1995 of the Medicines and Allied Substances Control Act [Chapter 15:03]: Possess prescription preparatory drugs without a prescription. In that on 26th day of May 2015 and at 1609 Glen Norah Harare, TINASHE KUNAKA unlawfully and intentionally possessed prescription drugs namely 197 diazepam tablets without a prescription in from a registered Medical Practitioner”. The agreed facts are that on 26 May 2015 Police received information that the accused was in possession of dagga at his place of residence 1609 Glen Norah A Harare. HH 814-15 CRB 6114/15 Acting on this information the Police proceeded to accused’s residence where they conducted a search resulting in the recovery of plastic paper bag full of loose dagga hidden in a washing basket whose weight is 1,063 kg. A further search in accused’s bedroom resulted in the recovery of 10 x 100 ml bottles of broncleer cough syrup valued at US$30.00 in count 2 and 197 Diazepam tablets in count 3 whose value is not given. All the 3 counts where treated as one for purposes of sentence and accused was sentenced to 15 months imprisonment of which 5 months imprisonment was suspended on condition accused does not within that period commit any offence involving possession cultivation or dealing in any dangerous drugs for which accused is sentenced to imprisonment without the option of a fine. The remaining 10 months were suspended on condition the accused completed 350 hours of community service at Glen Norah Satellite Clinic on the usual conditions. The dagga, the 10 x 100ml of broncleer cough syrup and 197 Diazepam tables were forfeited to the State. The conviction in respect of count 1 is in order as the charge is properly cited. The penalty provision for contravening s 157 (1) (a) of the Criminal Code [Chapter 9:23] is a fine not exceeding level 10 or imprisonment for a period not exceeding 5 years or both. There are indeed a number of misdirections in this matter. Firstly it is improper for the trial court to treat different statutory offences as one for purposes of sentence. This is so because the different statutory offences have different penalty provisions. This explains why the trial magistrate found it difficult to properly couch the conditions of suspending the 5 months imprisonment as it seemingly related to count a only and not count 2 and 3. There is no logical and reasonable explanation by the learned trial magistrate as to why these three counts were treated as one for sentence. The second anomaly relates to count 2. Section 29 (1) (a) of the Medicine’s and Allied Substances Control Act [Chapter 15:03] provides as follows: “29 Sale of Specified Medicines (1) Subject to this section no person shall sell any specified medicine – (a) Unless it is registered and (b) If it is registered subject to any conditions, otherwise that in accordance with such conditions”. The penalty provisions for contravening s 29 (1) of the Medicines and Allied HH 814-15 CRB 6114/15 Substances Control Act supra is a fine not exceeding level 12 or imprisonment for a period not exceeding 2 years or both. To start with, in count 2 the accused was not convicted of selling the said substance but the charge is clear that the accused unlawfully possessed the said 10 x 100ml bottles of broncleer cough syrup. I find the explanation by the learned trial magistrate that the charge is proper on account of the fact that the quantities of the said broncleer cough syrup the accused had is suggestive of the fact that he intended to sell it to be disingenuous. The relevant section which may relate to the offence disclosed in count 2 is contravening s 38 (1) as read with s 38 (3) of the Medicines and Allied Substances Control Act [Chapter 15:03] which prohibits the possession of any specified medicine by the Minister. The third challenge in this matter is that in count 2 the said medicine is identified by its product name rather than its chemical name. The relevant Statutory Instrument 150/91 in the 9th Schedule identifies the medicine by their chemical rather than the product name. There is therefore no medicine in the 9th Schedule of SI 150/91 listed as broncleer cough syrup. It was therefore incumbent upon the state to properly identify the said medicine which shows that broncleer cough syrup falls under the category itemised in SI 150/91. The principle to me is akin to the need to call a doctor who compiled a medical report to give evidence where the report is unclear. See S v Todzvo 1997 (2) ZLR 162 (S). The trial court, let alone the accused cannot be expected to guess whether broncleer cough syrup is listed in the relevant statutory instrument 150/91. Similarly the review court cannot be expected at this stage to carry out its own investigations to establish the correct term used in the Medicines and Substances Control Regulations SI 150/91 in respect of the broncleer cough syrup. In respect of count 3 the charge is again improperly cited as was later conceded by the learned trial magistrate. The proper citation of the charge would be as follows; “Contravening s 73 (1) of the Medicines and Allied Substances Control General Regulations SI 150/91 arw s 38 of the Medicines and Allied Substances Control Act [Cap15:03].” Section 73 (1) of the Medicines and Allied Substances Control Regulations S. I150/91 provides as follows; “73 (1) No person shall possess a prescription preparation unless he is a member of a class of persons authorised in terms of subsection (2) to be in possession thereof” HH 814-15 CRB 6114/15 Section 106 of the said regulations provide for the penalty for contravening s 73 (1) of the same Regulations. Further it is also not clear whether in count 3 the Diazepam tablets have been correctly identified by the designated chemical name as per Statutory Instrument 150/91. I am unable at this stage to rectify all the anomalies in this matter through the process of review. Further to that the accused was sentenced on 21 May 2015 and commenced to perform community service on 28 May 2015. I raised queries with the trial magistrate in June 2015 and only got the response in July 2015. As I said the conviction in respect of count 1 is in order. By now the accused may well have finished performing community service. All I can do in the circumstances is to withhold my certificate and decline to certify these proceedings as in accordance with real and substantial justice.