The People v Zaza Mweenda (HLA/66/2020) [2022] ZMHC 65 (23 March 2022)

IN THE HIGH COURT FOR ZAMBIA HOLDEN AT LIVINGSTONE (Criminal Jurisdiction ) HLA/66/2020 BETWEEN: THE PEOPLE vs ZAZA MWEENDA BEFORE HON. MR. JUSTICE KENNETH MULIFE APPEARANCES: FOR THE APPELLANTS (The State):MR. WALUZIMBA (Deputy Chief State Advocate), MRS. NSOKOLO PHIRI (Senior State Advocate) and MR. MULULU (State Advocate) - National Prosecution Authority. FOR THE RESPONDENT: No appearance JUDGMENT ON APPEAL CASES REFERRED TO: 1. Simango v The People (1974) ZR 198 2. Banda v The People SCZ Judgment No.14 of 1979 3. The People v Patrick Masissani [1977) Z. R. 234 . STATUTES REFERRED: 1. Electronic Communication and Transactions Act No. 21 of 2009 2. The Penal Code Chapter 87. 3. The Criminal Procedure Code Chapter 88 1.0 INTRODUCTION C 1.1 This is an Appeal by the State against the Judgment of the Subordinate Court of the Second Class for Livingstone, acquitting the Respondent on one Count of the offence of Accessing Data Without Authority contrary to Section 99( 1),(2)&(8) of the Electronic Communication and Transactions Act No. 21 of 2009 of the Laws of Zambia (under count 1) and the sentence of 6 months imprisonment suspended for 12 months for the offence of theft by servant contrary to Sections 272 and 278 of the Penal Code, Chapter 87 of the Laws of Zambia (under count2) . 1.2 Particulars of count one alleged that Zaza Mweenda, on a date unknown but between lsL May, 2019 and 31 st December, 2019 at Livingstone in the Livingstone District of the Southern province of the Republic of Zambia , unlawfully did access J2 data from Atlas Mara Bank Account No. 0235868328018 after overcoming security measures designed to protect access to the said Account belonging to Humphrey Hansafu and Flannet Simabele, respectively. 1.3 The particulars of count two alleged that Zaza Mweenda on a date unknown but between 1st May, 2019 and 5 th January, 2020 at Livingstone, in the Livingstone District of the Southern Province of the Republic of Zambia, being a servant to Atlas Mara Bank Zambia Limited as a banker did steal K20,300.00 cash, the property of Atlas Mara Bank Limited, his employer. 2.0 THE EVIDENCE (i) Evidence on behalf of the Prosecution 2.1 At trial, the Prosecution relied on the evid ence of 5 witnesses to support their case. Briefly, the evidence of the first witness (PW 1) came from Mainga Dubeka Matamwandi, the Branch Manager for Atlas Mara. He testified that on 6 th January, 2020, he received a verbal complaint from their customers who had a joint pre -savings account. The customers, Humphrey Hansafu and Harriet Sinabele claimed tha t when they checked their J3 bank account balance, it was contrary to what it should have been. They told him that they had deposited K20,300.00. Pwl advised the duo to reduce their complaint into writing. 2.2 Upon receipt of the written complaint, Pwl checked the statement of account and found that the deposits made by the customers amounted to K20,300.00. He checked the transactions on the account and one of the transactions was done using a mobile phone. A static data amendment history report was generated to help guide when the debits on the account were done. The mobile number on the account was verified and showed that the mobile number 0966941828 was the number that was being used to perform the various debit transactions on the account. The transactions done \,Vere ATM transaction limits, purchase of airtime and transfers from the same number to 0977571043 . 2.3 The status data report also showed that on 10th June 2019, there was an amendment of phone numbers where the initial phone numbers belonging to Humphrey Hansafu were replaced with phone nun1ber 0966941828 and the employee user J4 account used to conduct this change, was Zaza Mweenda, the Respondent herein. 2.4 He explained the security feature that grants someone access to the system and the process of opening a bank account. The number that was identified as 0966941828 was found to b elong to the Respondent using 'true caller'. The ATM reports also showed that there were transactions from the customers' account using the number established to belong to the Respondent. They reported the findings to the customers and the respondent was charged as an employee by the bank. The witness also produced the attendance register which showed that the time the alleged transactions occurred, the Respondent was on duty. He explained that anything done on the account must be supported by an instruction. He said he was not aware of any agreement between the Respondent and the customers concerning the transaction, in the month of December, a or at a ll. 2.5 PW2 was Flannet Simabele, one of the complainants. Her evidence was that in May 20 19, she and Humphrey Hansafu (PW4), went to Atlas Mara to open an account. They met the JS Respondent who advised them on the requirements for opening the account. The account was finally opened by the Respondent on 3lsL May, 2019 and a deposit of KS,000.00 was made and he advised them to deposit a further K200.00 for the account's maintenance. On 28Lh June, 2019, a further deposit of K3,000.00 was made and she called the respondent on phone to inform him of the said d eposit. From there onwards, they d eposited money every month and when they did not, the r espondent would remind them to do so. In the month of November, PW4 requested for a bank statement and when she called the Respondent requesting for the bank statement he said he would get in touch with them to explain how the account was p erf arming. f . 2 .6 They met the Respondent a t Kazmani Lodge after working hours where the Respondent bought some drinks and told them that the account was doing well b ecause of the interest that was accumulating. He told them he was busy and could not collect the bank statement but h e did not state the amount in the a ccount. In December 2 019, she d eposited a sum of Kl,500.00 in the bank account but did not tell the Respondent. J6 2.7 In January, 2020 they decided to go to the Bank and request for a bank statement. They found that the Respondent was on leave at the time. When they asked a lady who was attending to them how much was in the account, they were informed that there was only K62.00. They told her that they did not withdraw any amount from the account. She told them that the money deposited in May was withdrawn on 10th June, 2019 by the Respondent. They were further told that each time money was deposited, the respondent would withdraw it using an MTN number. They saw the Manager, PWl, who advised them to write a formal complaint explaining the status of the funds in their account and that they had not withdrawn any money from that account. 2.8 The bank responded to their letter stating that the bank had investigated the matter which showed that amendments were made to their account details by the Respondent including the name of his wife. She testified that when she spoke to the Respondent on 7 th January 2020, he said there was K27,800.00 in the account and he told her to deposit money in the account so that the amount would accumulate to K30,000.00. She also testified that they deposited a total of amount of K20,300.00 and the bank refunded them the sum of K21, 100.00 including interest. 2.9 PW3 was Antony Mpanga who was the Country Manager for Core Banking. His evidence was that he received instructions from the Head of Fraud and Investigations to look at the static data change that happened on the account of Humphrey Hansefu with account number 023555868328018. He confirmed the evidence of PW 1 on the changes that occurred on the account details and the transactions performed thereunder. He also confirmed that the mobile phone number that was r egistered with the account initially, was never registered with 1nobile banking and no transactions were r egistered with that number. The number that was registered under the names of the Respondent was the one that was found to have made transactions on this account. He also confirmed that the Respondent made changes to the account using a flex tube core banking application. He said that the customer can't authorize changes on the system as it is the bank that does so. J8 K30,000.00. She also testified that they deposited a total of amount ofK20,300.00 and the bank refunded them the sum of K21, 100. 00 including interest. 2 . 9 PW3 was Antony Mpanga who was the Country Manager for Core Banking. His evidence was that he received instructions from the Head of Fraud and Investigations to look at the static data change that happened on the account of Humphrey Hansefu with account number 023555868328018. He confirmed the evidence of PW 1 on the changes that occurred on the account d etails and the transactions performed thereunder. He also confirmed that the mobile phone number that was registered with the account initially, was never registered with mobile banking and no transactions were r egistered with that number. The number that was registered under the names of the Respondent was the one that was found to have made transactions on this account. He also confirmed that the Respondent made changes to the account using a flex tube core banking application. He said that the customer can't authorize changes on the system as it is the bank that does so. JS They were referred to the manager and later a formal complaint was made. The Bank subsequently opened another account for PW2 and PW4 and deposited a total of K21,000.98 . 2.12 PWS was the arresting officer who received a report from Atlas Mara Bank that one of their customer's bank account was tampered with and money was stolen from the same account. He conducted investigations and recorded statements from the complainants and the bank official who complained on behalf of the bank. The wife of the Respondent, Carol Kufika was summoned and interviewed with regard to her mobile number that appeared on the bank details. She confirmed it to be hers and stated that at some point she did not know where the sim card for that number was, as she had challenges with her handset and had stopped u sing the sim card. She said she did not use the card the entire 20 19 as she last used it in 2018 . 2. 13 When shown the transaction alleged to have been made using her number, she said expressed complete ignorance. When he interviewed the Respondent, he told him that there was an agreement between the account holders and himself that he could use the money and thereafter return it with interest. JlO When the complainants were summoned, they disputed having made any agreement with the Respondent and that they only communicated with the Respondent when they discovered that the money in the account was below t he book balance. Further investigations were made with the IT specialist at the bank and it was discovered that the Respondent made the changes to the account in question where he added the number belonging to Carol Kufika. The data on the account also showed one Airtel number belonging to the customers and another Airtel line belonging to the Respondent. The Respondent was later charged for theft by servant and accessing data without lawful a uthority which charges he denied. (ii) Evide nce on behalf of the Respondent. 2 . 14 In his Defence, the Respondent testified that PW2 and PW4 were known to him as PW 4 's mother was a matron at his wedding. That Pw2 and Pw4 wanted to open an interest earning account for their wedding. He helped them open an account on agreement that it would accrue 25% interest per annum if they deposited any amount every month. He said the payments into the account were supposed to be made at the Jll end of December 2019 and that this was an oral agreement between the parties. 2.15 He said that an agreement was made to deposit the money either by mobile wallet or giving him actual cash. He said for every transaction, there was a mediator who authorizes and a junior officer who checks the details . He confirmed that he was the mediator who changed the customer's numbers on the account. 2.16 He a dmitted that in order to make changes, there must b e instructions by the account holder which instructions, give directives to the bar1k before any other p erson can authorize . He said the customer must sign the instruction which information is kept with the bank. In the absence of the customer amendment form, no changes can be effected. According to him, h e was the m ediator and he had three differ ent a uthorizers. The documents were also verified and checked by the Bank Manager, Mrs. Mainga. He said that the auditing r eport was not submitted to court for the p eriod ending 31 st December, 2019. J12 2. 1 7 He said that the basis of resolving all financial matters could never be complete without the audit report. According to him, there was authorization to amend the Customer Update Form and there was a verbal agreement between himself and the complainants regarding the interest on the total amount they were to invest. He denied that there was theft as there was an agreement b etween himself an.cl the customer. He said he did not know Carol Kufika and denied that she was his wife. He said there was an agreement that he could borrow the money from the customers and pay back with 25% interest. According to him, the customer deposited 30,000 which h e borrowed and that the agreement was personal and the bank was not involved. €- i 3.0. FINDINGS OF THE COURT BELOW 3.1. With respect to Count 1, the Court found that the Respondent made alterations to PW2 and PW4's bank account details by amending Pw2 and Pw4's cell phone numbers. It was also found tha t the Respondent accessed the data in issue but the access to the data was authorised as this action was J13 authorized by three other people - his superiors in the bank. As such, the Court acquitted the Respondent for the offence of accessing data without authority. 3.2. With respect to Count 2, the Court found that the money in issue was indeed transferred to the Respondent's mobile wallet and that at times, the Respondent was given cash, without authority from Pw2 and Pw4 as such authority was not exhibited. Under the circu:r:nstances, the Court found that the Respondent stole the money and the loss was attributed to Atlas Mara Bank because the bank refunded Pw2 and Pw4 the money in issue. Thus, the court convicted the Respondent as charged on count two of the offence of theft by servant contrary to sections 272 and 278 of the Penal Code, Chapter 87 of the Laws of Zambia whereupon it sentenced him to 6 months imprisonment suspended for 12 months. 4.0. GROUNDS OF APPEAL 4.1. Dissatisfied with the foregoing decision, the State has appealed to this Court advancing the grounds of appeal reproduced below thus: J14 (i) The lower court erred in law when it acquitted the Respondent on the overwhelming evidence adduced in Count 1 which evidence was sufficient to justify a conviction; (ii) The lower court erred in law when it acquitted the Respondent in Count 1 that he had authority to remove or change the cell phone numbers for the two clients and (( replace them with his or his wife's cell phone numbers. And, (iii)The lower court erred in law to give a suspended sentence to the respondent owing to the nature and circumstances of the case. 5.0 SUBMISSIONS 5 .1 I only received submissions from the Appellant. The Respondent did not file submissions and neither did he a ttend Court despite having b een duly served with the requisite court process. However , he is not prejudiced because I have considered the evidence on r ecord. 5.2 The Appellant submitted that there was overwhelming evidence on record that proved the elements of both offences the Respondent was charged with. It was submitted that the JlS court below erred in law to acquit the Respondent in the face of this overwhelming evidence adding that this is because the court did not correctly analyze the evidence. 5.3. It was submitted that banking services are essential services within the meaning of section 2 of the State Security Act where the concept of 'necessary service' is d efined to include "(a) any service relating to the generation, supply or distribution of electricity; (b) (c) any fire brigade or fire service; any sewerage, rubbish disposal or other sanitation service; (d) any health, hospital or ambulance service; (e) any service relating to the supply or distribution of water; {f} any service re la ting to the production, supply, delivery or distribution of food or fuel; (g) mining; (h) any communications service; (i) {j) any transport service; any road, railway, bridge, ferry, pontoon, airfield, harbour or dock; or (k) any other service or facility, whether or not of a kind similar to the foregoing, declared by J16 the President to be a necessary service for the purposes of this Act". 5.4 Suffice to state that I have not found any relevance of the foregoing submissions r elating to the Section 2 of the State Security Act, to the present matter as banking s ervices are not part of the services listed under the mentione d provision. I (( therefore take it tha t the provision was been cited out of context and for that reason, I shall not consider this submission. 5.5 It was submitted that PW2 and PW4 were paid or refunded their money by Atlas Ma r a Bank Zambia Limited because the money was stolen from the b ank by the Respondent who was at the time working for the complainant as a banker. The State submitted that the judgment on p age J22 acknowledged tha t the accused p er son a dmitted that he wa s going to pay back PW2 and PW4 but that when they requested for the money in December, 2 01 9, h e didn't have the n1.oney a nd the accused p erson p romised to p ay in January, 2 02 0 but that PW2 and PW4 opted to go to the bank. J17 5.6 It was submitted that the Respondent did not steal the money from the two witnesses but from the bank after overcoming all security measures on that account. It was contended that it was wrong for the court to have found that there was an oral agreement between the Respondent and PW2 and PW4. 5.7 Concerning the substituted offence of theft, it was submitted (( that it was not correct for the court to say that the money belonged to PW2 and PW4. It was contended that the offence of theft by servant should have been sustained because once the money 1s deposited in the bank by a customer, if a bank employee steals that money the offence should be theft by servant and not just theft. 5.8 Counsel referred me to the following holding 1n the case of ~ .· Simango v The People( 1) "The offence of theft by servant has two ingredients: there must be actual theft of money and the money must be stolen from the employer". 5 .9 I reject this submission because it 1s contrary to what the impugned judgment states. According to page j23 of the mentioned judgment, the Respondent was convicted for the offence of theft by servant and not theft. Counsel ought to have J18 read the judgment carefully to avoid misleading the Court. I shall therefore say nothing more on this submission. 5.10 The Appellant implored the court to quash the acquittal 1n count one. 5.11 The foregoing are the issues and sub1nissions involved in this Appeal. 6.0 CONSIDERATION AND DECISION OF THIS COURT (( 6.1 I have considered the issues and s ubmissions. Suffice to add that I am indebted for the submissions. Henceforth, I shall state my determination. 6.2 In the main, the issues in dispute and for determination by this Court are twofold as follows: (i) Whether the Respondent had lawful authority to make the impugn ed changes to PW2 and PW4's bank account d etails . This r ela tes to grounds one and two of appeal. And· ' (ii)Whether a suspended sentence under count 2 is legally tenable. This relates to ground 3 of appeal. 6.3 Turning to the first issue, it is not in dispute that the Respondent altered the details on the bank account in issue J19 by way of introducing his cell phone numbers. According to PW 1 and PW3, for such alterations to have been made, they should have been authorised by Pw2 and Pw4. The two witnesses denied the existence of any such authority. 6.4 The Respondent does not dispute having made the impugned alterations. He also concedes that the changes should have b een authorised by Pw2 and Pw4. However, he contended that he was authorized by his superiors to make the changes. Suffice to state that the alleged authority was not exhibited. 6.5. Having considered the foregoing testimonies of pwl, pw3 and the Respondent himself, I am of the firm view that the overriding consideration h ere is if Pw2 and Pw4 had granted the Respondent authority to make the changes. I am of this view because it is the authority of the account holder which triggers subsequent approvals by the Respondent's superiors to empower the Respondent effect the changes. Without the accountholder's authority, there would b e no basis empowering superior bank officials to allow the Respondent to make the alterations. J20 6.6 Turning to the present case, Pw2 and Pw4 have denied granting the Respondent authority to make the alterations in issue and this position coincides with Pw 1 and Pw3 's testimonies that there was no authority authorizing the Respondent to make the alterations. The Accused has also not tendered any such authority in evidence. He has just verbally alleged that he was authorised to do so. 6.7 I urge that documentary evidence of the same needed to be exhibited since, according to Pwl, Pw3 and the Respondent, such an instruction should b e in writing. Further, seeing that Pw2 and Pw4 disputed having granted th e authority, the Accused, if indeed he had been granted the authority but had difficulties accessing the bank records, should have asked the court to subpoena a requisite official at Atlas Mara Bank, to produce the requisite mandate file. This, the Respondent did not do thereby entitling me to conclude that the authority was not granted and therefore not in existence. My position here is supported by the following holding of the Supreme Court of Zambia in the case of Banda v The People SCZ Judgment(2) J21 " ... The piece of paper was not produced and there/ ore the evidence as to its contents was not the best evidence and should not have been accepted by the trial court. Either the document should have been produced or acceptable evidence should have been given as to why its production was impossible ... " ( 6.8 It is evident from the above cited authority that for reliance to be placed on any piece of evidence contained in a document, such documentary evidence must be before the court. No such evidence was produced to aid the Respondent's assertion that he either acted on instructions from either Pw2 and Pw4 or that h e was authorized to make the alterations by ( his superiors. 6.9 Further, the requirement for Pw2 and Pw4's mentioned authority cannot be offset by the approvals alleged by the Respondent, even assuming that they had been exhibited and this is on grounds outlined above. Under the circumstances, I have no h esitation in finding that the Respondent h a d no authority to make the impugned changes and this is what J22 amounts to the offence of accessing data without authority contrary to s ection 99 of the Electronic Communication and Transactions Act No. 21 of 2009 of the Laws of Zambia. I accordingly quash the acquittal by the court b elow in count one and thereby r etain a conviction as charged , of the offence of accessing data without authority. 6 . 10 That said, I turn to the s entence and this is on the authority of section 32 lA of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia (hereinafter referred to as 'Cap. 88') which, quoting only relevant portions, prescribes as follows: "321A. (1) If the Director of Public Prosecutions is dissatisfied with ajudgment of a subordinate court as being erroneous in point of law, or as being in excess of jurisdiction, he may appeal against any such judgment to the High Court within fourteen days of the decision of the subordinate court. (2) On an appeal under this section the High Court may- (a) reverse, affirm or amend any such judgment; J23 (b) find the person in relation to whom such judgment was given guilty of the offence of which he was charged in the subordinate court or of any other offence of which he could have been convicted by the subordinate court and may convict and sentence him for such or such other offence". 6.11 Reverting to the sentence, the offending prov1s1on h erein, section 9 9 ( 1) and (2) of Act no. 21 of 2009 prescribes punishment for the offence of accessing data without lawful authority, to b e a fine of five hundred thousa nd p enalty units or imprisonment not exceeding five years or to both. I note that the charge also cites s ecti on 99 (8) of Act no. 21 of 2 009 to be one of the offending provisions in this matter. The provision pre s cribe s a s enten ce of between fifteen and twenty years imprisonment, for the same offence if it is committed in rela tion to d a ta in critical database or if it is c oncerned with n a tiona l s ecurity or the provision of an essentia l s ervice. 6.1 2 In so citing s ection 99 (8) of Act no. 2 1 of 2009 , the State is inviting m e to impose a s entence of between 15 years and 2 0 J24 years. That as it 1nay, I decline the invitation because the evidence does not disclose that the present offence was committed under the circumstances prescribed by section 99 (8) of the Act. 6.13 I accordingly sentence the Respondent to a fine of KS000.00 payable forthwith in default of payment, 2 years • __ , simple imprisonment. 6.14 Ground one and two of appeal has therefore succeeded. 6. 15 Concerning ground three of appeal, namely if the suspended sentence that was imposed by the court below for the offence of theft by servant under count 2 is legally tenable, section 16 of the Criminal Procedure Code Chapter 88 of the Laws of Zambia (hereinafter referred to as the CPC), gives courts discretion to suspend a sentence of imprisonment provided the offence in issue is not listed in the Fifth Schedule of the CPC. Presently, the offences listed under the Fifth Schedule are any offence punishable by death, any offence against section 226 of the Penal Code (namely acts endangering railways J25 and persons travelling thereon), arson. Robbery, any offence in respect of which any written law imposes a minimum punishment and any conspiracy, incitement or attempt to commit any of the above-mentioned offences. 6.16 Clearly, the present offence (theft by servant) is not part of the offences listed under the Fifth Schedule. Under the circumstances, the court has discretion to suspend the sentence. Guidelines in the exercise of such discretion, are provided for by Case law, such as The People v Patrick Masissani (3). In the main, the material consideration in suspending a sentence is the extent to which s uspension would fail to protect the public eith er directly by leaving the offender at large or indirectly by serving as an inadequate deterrent. Further, the extent to which the court will be influenced by mitigating factors will depend upon the circumstances of each given case. Thus, the circumstances of a particular case may, or may not, warrant the imposition of a custodial sentence. J26 t I 6.17 The circumstances of the present case are such that the sentence imposed by the trial court comes to me with a sense of shock. It is manifest that the defendant was guilty of gross abuse of the trust reposed in him by the bank to safeguard clients' money, should not have been treated with leniency. Proceeding in the manner the Magistrate did, will send a wrong message to would-be offenders, a development which would erode public confidence in the banking sector in particular and the economy of the country in general, as members of the public may resort to keeping their money in homes instead of circulating it in the economy through the banking sector. 6.18 The Respondent, being a professional man (an Accountant and Relationship Officer) is in a better position to appreciate the consequences of his dishonesty conduct in the banking sector. His duty primarily entails safeguarding clients and bank funds and not stealing it. I also note that similar conduct is prevalent in Zambia. J27 ' t 6.19 Based on the foregoing, I reiterate that the sentence imposed by the Magistrate in count 2, is grossly inadequate. And, pursuant to section 32 lA of Cap. 88, I accordingly quash it. In its p lace, I impose a sentence of two years imprisonment with hard labour. The sentences under counts 1 and 2 shall run concurrently. In the view that I have taken, a bench warrant shall forthwith issue against the Respondent to facilitate for the execution of the sentence. The sentence shall begin to run from the date the bench warrant shall b e executed. 6.20 The appeal has succeeded in its entirety. 6.2 1 Le ave to appeal is granted. DELIVERED AT LIVINGSTONE IN OPEN COURT THIS 23RD DAY OF MARCH 2022. _\~wJ&. KENNETH MULIFE HIGH COURT JUDGE J28