Thomas Sanford Sharpe v The People (H.L.A 49/70) [1970] ZMHC 16 (24 July 1970)

THOMAS SANFORD SHARPE v THE PEOPLE (1970) ZR 71 (HC) HIGH COURT HUGHES J 24th JULY 1970 (H. L. A 49/70) Flynote Criminal law and procedure - Charges - Particulars of charge omitting 45 fundamental and essential ingredient - No offence disclosed. 1970 ZR p72 HUGHES J Headnote The appellant was convicted of selling different kinds of beef at prices exceeding those permitted by law. The particulars of the offence stated inter alia that the appellant committed the offence in the Choma District of the Southern Province. The statutory requirement was for 5 the offence to be committed "at any place within ten miles of the line of rail". This was not included in the particulars. Held: Without a clear indication in the particulars that the offences were committed at a place within ten miles of the line of rail the charges 10 did not disclose an offence at all. Cases cited: (1) Patel v The People (1970) ZR 66. (2) R v Molloy, [1921] 2 KB 364; 90 L. J. K. B. 862; 15 Cr. App. R170. (3) R v Disney, 24 Cr. App. R 49. 15 (4) R v Nicholls, [1960] 2 All ER 449. (5) Meek v Powell, [1952] 1 All ER 347. Legislation referred to: Statutory Instrument No. 58 of 1968, para. 3. Control of Goods (Price Control) Regulations, regs 2 (1) and 17 (1) (f) (i). 20 Statutory Instrument No. 382 of 1967. O F I Sardiwalla, Counsel, for the appellant. Miss L P Chibesakunda, State Advocate, for the respondent. Judgment Hughes J: The appellant was convicted on his pleas of guilty on four counts of selling different kinds of beef at prices in excess of the 25 price allowed by order of the Minister of Commerce, Industry and Foreign Trade contrary to para. 3 of Statutory Instrument No. 58 of 1968, as read with regs 2 (1) and 17 (1) (f) (i) of the Control of Goods (Price Control) Regulations (Cap. AL 15), as amended by Statutory Instrument No. 382 of 1967. The particulars of each count recited the date of the alleged offence, the place where the offence was committed, namely the Choma District of the Southern Province of the Republic of Zambia, a description of the particular type of beef involved and details of the alleged overcharge. This appeal was argued mainly on the additional grounds of the 35 appeal filed by the appellant's counsel before the hearing. The first of such additional grounds is that the learned magistrate was wrong in law in calling upon the appellant to plead to the counts on the charge sheet as they were defective. Paragraph 3 of Statutory Instrument No. 58 of 1968 provides: "3. No person shall sell, offer or expose for safe at any place within ten miles of the line of rail, any beef at a price exceeding the appropriate price shown in the Schedule hereto." 1970 ZR p73 HUGHES J There can be no doubt that the words "within ten miles of the line of rail" constitute a fundamental and essential ingredient of the offences charged, requiring a more precise description of the locus of those offences than "in the Choma District of the Southern Province of the Republic of Zambia". Without a clear indication in the particulars that the offences 5 were committed at a place within ten miles of the line of rail the charges do not disclose an offence at all. In a recent case - Patel v The People (1) - the Court of Appeal for Zambia quashed the conviction having decided that the particulars of the charge as laid omitted to recite an essential ingredient of the offence and because the charge was also 10 defective on the grounds of duplicity. Although the appellant, who was not legally represented in the court below, pleaded guilty to these charges he should not have been allowed to do so without an amendment first having been made. Following the decisions cited by the Court of Appeal in Patel's case (supra) namely 15 R v Molloy (2), R v Disney (3), R v Nicholls (4) and also the decision in Meek v Powell (5), it would seem that the fundamental defect in these charges cannot now be cured by an amendment under s. 300 (l ) Criminal Procedure Code, nor is this an appropriate case for the application of the provisions of s. 323 Criminal Procedure Code. 20 In view of this finding it is not necessary to consider the appellants' other grounds of appeal. This appeal is allowed and the convictions and sentences of the court below are quashed. The fines, if already paid, are to be refunded to the appellant forthwith. Appeal allowed 25