Shadreck Mwinga v The Queen ((1963 - 1964) Z and NRLR 81) [1964] ZMHCNR 22 (13 April 1964)

SHADRECK MWINGA v THE QUEEN (1963 - 1964) Z and NRLR 81 1963 - 1964 Z and NRLR p81 [Before the Honourable Mr. Jus�ce CHARLES on the 13th April, 1964.] Flynote Chea�ng - whether fraudulent trick or device need be one calculated to deceive or affect the public at large - sec�on 280 of the Penal Code, Cap. 6 - authority of a court composed of two judges. Headnote The appellant was convicted in the subordinate court of chea�ng in that he induced one Bothwell Nyambe to hand over £18 to him by falsely represen�ng that he could turn this sum into £700 by certain processes involving wrapping up the money, and washing one's face with the resultant parcel. The trick was not one calculated or likely to affect the public at large and there were conflic�ng High Court decisions as to whether this was fatal to the charge. Held: (a) The fact that the trick was not one calculated or likely to affect the public at large was not material to the charge. (b) The decision in Mukese v Reginam 1958 R & N. 366 would appear not to state the law correctly. Appeal dismissed. Cases cited: (1) Mukese v Reginam 1958 R & N 366. (2) R v Mubwana 1958 R & N 890. (3) Ali v Reginam 1959 (1) R & N 14. (4) Wallace - Johnson v Reginam [1940] 1 All ER 241. A B Mitchell - Heggs, Assistant Crown Counsel for the Crown: The appellant appeared in person. Judgment Charles J: This is an appeal from the Subordinate Court of the Resident Magistrate, Livingstone, against convic�on. The convic�on against which the appellant appeals on a charge of chea�ng contrary to sec�on 280 of the Penal Code, in that, on the 29th November, 1963, by means of a fraudulent trick or device, he induced one, Bothwell Nyambe, to deliver to him the sum of £18, the said sum being a thing capable of being stolen. The sentence imposed consequent upon convic�on was imprisonment with hard labour for twelve months. Bothwell Nyambe gave evidence that he was induced to sell his bicycle, and to hand over to the appellant the proceeds and other money, amoun�ng to £18 in all, by the appellant's representa�on that he would convert it into £700 by wrapping up the £18 with a piece of skin in a piece of paper and a handkerchief, provided that the money was le� so wrapped up for three days, during which �me Bothwell Nyambe was to wash his face three �mes a day with the parcel a�er dipping it in water. That evidence, as to which there was some corrobora�on, was accepted as true by the learned resident magistrate. The appeal is on various grounds which in substance amount to error on the part of the resident magistrate in believing the evidence of Bothwell Nyambe. 1963 - 1964 Z and NRLR p82 CHARLES J There is nothing in the record to afford any basis for that ground of appeal. The appellant, however, at the hearing of the appeal produced two leters which purported to have been writen by Bothwell Nyambe to the appellant since the later has been in prison. One of those purported leters was in English and the other was in a vernacular language. In both, the writer stated, in effect, that he would compensate the appellant for having been sent to prison. The appellant relied upon the purported leters as showing that Bothwell Nyambe had given false evidence against him. While mindful that the purported leters could have been a fraudulent trick or device directed at this court, I considered it proper to inves�gate the mater by having Bothwell Nyambe called to give evidence in respect of them. He denied that he could read or write English and that he had writen the purported leter in English, but he admited having writen the purported leter in the vernacular to the appellant. He stated that he had writen the leter in pencil but that parts of it, those rela�ng to compensa�on, had been inserted in ink by someone else. On examina�on in bright daylight, the documents showed clearly that the purported leter in English is in a handwri�ng different to that part of the vernacular leter which Bothwell Nyambe acknowledged as having been true. That examina�on also showed that parts of the vernacular leter were in different handwri�ngs as well as some being apparently in pencil, while the others were in ink. The signature " G. H. Bothwell Nyambe " is also different on the two documents and that on the leter in English corresponds neither with the signature on the vernacular leter nor with a specimen signature which Bothwell Nyambe made in this court. Further, while Bothwell Nyambe was not a very intelligent witness, I have no doubt that his evidence was truthful. As a result, I have no doubt that he did not write to the appellant offering to compensate the later a�er he comes out of prison, and that the purported leters do not assist the appellant. The grounds of appeal, therefore, are untenable. There is one mater, however, to which it is desirable to refer. The trick or device used by the appellant was not one which was calculated or likely to affect the public at large. In Mukese v Reginam 1958 R & N. 366, Somerhough, Ac�ng CJ, and Mosdell, Ac�ng J, held on review that such a quality was essen�al to a fraudulent trick or device being a chea�ng under sec�on 280 of the Penal Code, as it is at common law. On the other hand, in Regina v Mubwana 1958 R & N. 890, Evans, J, declined to follow that decision and held the contrary. In this case the learned resident magistrate followed the later decision. Mukese v Reginam was not followed, and Regina v Mubwana was followed, by the High Court of Nyasaland in Ali v Reginam 1959 (1) R & N. 14, in respect of a sec�on in the Nyasaland Penal Code which is iden�cal with sec�on 280 of the Penal Code in this territory. In my judgment, the decisions in Regina v Mubwana and Ali v Reginam were right, and the decision in Mukese v Reginam was wrong, and, subject to the following comments, I adopt the reasons given by Spenser - Wilkinson, CJ, in Ali v Reginam. In my judgment, sec�on 4 of the Penal Code only expresses what would otherwise for the most part have been implicit, namely that the Penal Code is to be interpreted in 1963 - 1964 Z and NRLR p83 CHARLES J accordance with the principles of legal interpreta�on obtaining in England. In a country in which the basic law is the common law of England, statutory law is necessarily to be interpreted according to the common law principles of statutory interpreta�on in the absence of statutory provision to the contrary, and it was on that basis, I think, that the decision of the Privy Council in Wallace - Johnson v Reginam [1940] 1 All ER 241, proceeded. It may be, of course, that sec�on 4 goes further by applying to the interpreta�on of the Penal Code any statutory rule which may have displaced or modified a common law rule on the same subject. That is a ques�on which does not arise here. The ques�on which has concerned me is whether both the learned resident magistrate and this court were bound to follow the decision in Mukese v Reginam by reason that it was a decision of this court cons�tuted by two judges. The conclusion which I have reached is that that decision is not so binding. In the first place, it is difficult to see how there was any jurisdic�on for this court to be cons�tuted by two judges for the purpose of review, as dis�nct from appeal. In the second place, the judgment is to be regarded as having been given per incuriam as it was given without regard to the Wallace - Johnson case and it is inconsistent in principle with it. In my judgment, therefore, Mukese v Reginam is not a decision which should be followed either by subordinate courts or by this court, and the law is that, for the offence of chea�ng under sec�on 280 of the Penal Code to be commited, it is unnecessary for the fraudulent trick or device used to be one which was calculated or likely to affect the public at large. The result is, in my judgment, that this appeal fails. It will accordingly be dismissed. The sentence which was imposed upon the appellant is less than I would have imposed having regard to his record, and I have given considera�on to whether it should not be increased. However, I am not sa�sfied that it is manifestly too lenient and so I shall leave it as it is.