MAFUSIRE J: In S v Chitepo, in the course of a review
judgment, in a matter in which the charges preferred against the accused person
and the sentence meted out to him had been mishandled, I wrote:
“I caution in passing that great
care and precision should always be taken and exhibited in the drafting of
criminal charges and the handling of criminal matters. Criminal proceedings
affect some of the fundamental human rights and freedoms enshrined in the
Constitution, namely the right to liberty, and even the right to life.”
It was the same problem in
this matter.
The second accused [“the
accused”] was charged with three counts arising out of a single
criminal enterprise. The allegations against him were that he was the
conductor-cum-loader for a certain bus that was intercepted at the Beitbridge
Border Post with quantities of copper and several packs of cigarettes. The bus had
already crossed the Zimbabwean side of the border with South Africa. The goods
were hidden in some false compartment above the fuel tank.
The first count was framed
as contravention of s 3 of the Copper Control Act, Cap 14:06. The charge sheet read:
“Deal or possess copper without a
licence – in that on the 19th
day of March 2016 and at Beitbridge Border Post, Chikare Clever unlawfully had
in in his possession 1363.30 kilogrammes of copper without a permit or license
in contravention of the said Act …”
The accused was not
represented. He pleaded not guilty. His defence was that on the day in question
he was off-duty. He was a mere passenger en route to South Africa. He knew
nothing about the contraband. He insinuated that those that knew about the
stuff were the driver, i.e. the first accused, and some two other crew members
that had run away upon the arrival of the police.
A full trial ensued. The
court disbelieved the accused's defence. It was right to do so. The evidence
showed that the accused knew full well about the contraband. Among other
things, upon being questioned by the police, he went inside the bus, pulled out
a spanner and opened the hidden compartment where the stuff was. It was him that
showed it to the police. The police said upon enquiry, the bus driver had
referred them to the accused whom he said would know better. The driver had
confirmed that he and the accused had been the only two crew members on the day.
The police denied that anyone had run away or that anyone had told them of
anybody running away.
The accused was
convicted. For count one he was sentenced to a fine of $250, or in default,
thirty days imprisonment.
The problem was with the charge.
Section 3 of the Copper Control Act prohibits dealing in copper without a
licence. It says:
“Any person who carries on trade or
business as a dealer otherwise than as a holder of a licence shall be guilty of
an offence and liable to a fine not exceeding level seven or to imprisonment
for a period not exceeding one year or to both such fine and such imprisonment.”
Thus, the offence created
by this section, as read with the definition of “licence” in sections 2 and 4
of the Act, is the carrying on of a trade or business as a dealer [in this
case, in copper] without the appropriate dealer's licence. So the State had to
prove, among other things, that the accused was carrying on, or purporting to
carrying on, trade or business in copper but without the relevant licence. That
might well have been what the accused was doing. But that is not what the
evidence established. What the evidence established was mere possession of the copper.
Of course, the heading to
s 3 of the Act refers to a prohibition against dealing in copper without [a]
licence. But then, what is meant by “dealing” is to be discerned from the substantive
provision. It is to carry on trade or business as a dealer in copper without a
licence.
No attempt was made to
lead evidence that this was what in fact the accused was doing. The
circumstances of the accused's possession of the stuff was highly suspicious.
But suspicion alone is neither proof nor evidence. Suspicion is merely an
apprehension of something wrong, a hunch. It generally forms the basis of an
investigation to dig up the evidence required. This was not done.
The record does not show
that the accused was ever asked to account for the copper, i.e. to explain his
possession of it. From the evidence, he seemed quite cooperative. He was the
one that opened the false compartment. The State witnesses, comprising the
arresting detail and the investigating officer, both said that without the
accused showing them, they would not have discovered the contraband on their
own.
Section 10 of the Copper
Control Act makes it an offence for failure to give a satisfactory account of
possession of copper. It reads:
“Any person who is
found in possession of copper in regard to which there is a reasonable suspicion
that it has been stolen and is unable to give a satisfactory account of such
possession, shall be guilty of an offence and liable to a fine not exceeding
level eight or to imprisonment for a period not exceeding two years or to both
such fine and such imprisonment.”
There are several
elements to this offence. It is not just mere possession that is criminalised.
It is [1] possession of the copper; [2] in circumstances in which there is a
suspicion that the copper was stolen; and [3] the person in possession fails to
give an account of such possession, or if he does, [4] such account is
unsatisfactory.
In this case, there was
only possession. There was no evidence at all that the police suspected that the
copper had been stolen. All they said was that they had been tipped that the
bus was carrying copper and cigarettes which were intended to be smuggled to
South Africa. However, when they intercepted it, they did not call upon the
accused to account. It was never established whose copper it was, and what the
accused meant to do with it. Why did that bus have a false compartment anyway?
None of this was investigated.
Thus, it follows that
except for possession, none of the other elements of the offence under section
10 was proved.
When I raised the query,
the trial magistrate first conceded the anomalies and then went on to suggest that
the charge should have been either possession of copper, or in the alternative,
dealing in copper. However, and with all due respect, it could not
be either. As shown above, the case was
poorly investigated and poorly prosecuted. There was no evidence to sustain
either of the offences.
In the circumstances, the
conviction on count one is hereby quashed and the sentence set aside.
The second count
preferred against the accused was “smuggling”, purportedly in contravention of
s 182 of the Customs and Excise Act, Cap
23:02. The charge was worded thus:
“In that on the 19th day
of March 2016 and at Beitbridge Border Post, Chikare Clever unlawfully exported
1363,30 kilogrammes of copper and 40 packs each with 6 bricks containing 10 x
20 Mega Blue cigarettes without a permit or licence in contravention of the
said Act …”
The Customs and Excise
Act defines “smuggling” as, among
other things, any importation, or exportation, or attempted importation or
exportation of goods with intend to defraud the State or to evade any
prohibition, restriction or regulation on the importation or exportation of any
goods required to be accounted for under the Act.
Section 182 of the Act
reads:
“[1] Any person who smuggles any goods shall be
guilty of an offence and liable to-
[a] a fine not exceeding level fourteen or
three times the duty-paid value of the goods, whichever is the greater; or
[b] imprisonment
for a period not exceeding five years;
or to both such fine and such
imprisonment.”
Thus, neither the
definition of “smuggling” in s 2 of
the Act, nor s 182 that creates the offence, requires the absence of a licence
or a permit to establish the offence. The charge sheet needs not have referred
to “… without a permit or a licence …”
However, this is not a big point. That anomaly was not fatal. Among other
things, no prejudice was suffered. The elements of the offence were clearly
established. The evidence was clearly sufficient to convict. Therefore, the
conviction under count two is hereby confirmed.
Nonetheless, the above anomaly
serves to emphasise the importance of precision in the drafting and treatment
of charges. For statutory offences, it is important to stick as closely as
possible to the actual wording of the statute.
The court a quo sentenced the accused to a fine of
$500, or in default, ninety days. But this was for both counts two and three.
Count three was framed as “unlawful
possession of goods liable to excise duty”, in contravention of s 184 [e] of the Customs and Exercise Act. The
particulars of the charge were:
“In that on the 19th day
of March 2016 and at Beitbridge Border Post, Chikare Clever not being a person
licensed to manufacture goods liable to excise duty, had, without authority, in
his possession, or custody, 40 packs each with 6 bricks containing 10 x 20 Mega
Blue cigarettes liable to excise duty or surtax upon which such duty or surtax
had not been paid.”
Section 184 creates
miscellaneous offences. Paragraph [e]
creates the offence of an unlicensed person being in possession, custody or
control, without lawful authority, of any manufactured goods, or partly
manufactured goods, that are liable to excise duty or surtax where such duty or
surtax has not been paid.
Both the charge and the
conviction for count three were proper. The conviction is hereby confirmed.
The penalty for the
offence under s 184[e] of the Customs
and Excise Act is a fine not exceeding level twelve, or three times the
duty-paid value of the goods that are the subject of the offence, whichever is the
greater, or imprisonment for a period not exceeding five years, or both such
fine and such imprisonment.
The court a quo, without explanation, imposed one
sentence for both counts two and three, namely the fine of $500 aforesaid, or
in default, ninety days. That was manifestly irregular.
When I sought an
explanation, the trial magistrate conceded the anomaly. But he was referring to
count two [smuggling] and count one [possession of copper] as the two that he
had improperly combined for the purposes of sentence. But that had not been
what I queried. What I had queried was his combining count two [smuggling] with
count three [non-payment of excise duty or surtax] for the purpose of sentence.
The trial magistrate,
mistakenly referring to counts two and one, felt that he been justified in
treating them as one for the purposes of sentence since, in his own words: “… they had been committed concurrently … with
the same motive and intention …”
With respect, that
explanation, whether for one or other of the counts that had been combined, was
not satisfactory. If any two could be combined, as the magistrate argued, then
there was no logical reason why he did not combine all three. He only combined
two, yet all three emanated from a single criminal enterprise.
The three counts hung on
different and separate, stand-alone statutory offences, each with its own
prescribed penalty. In all three, a fine is the first option. The trial court
intended to, and did, impose fines.
Fines cannot be ordered
to run concurrently. Each count had to be sentenced separately. Combining counts
two and three, as the court did, was a misdirection.
For count two, the
prescribed fine is an amount not exceeding level fourteen [$5 000], or three
times the duty-paid value of the goods involved. The goods involved were copper
and cigarettes. Although the copper was said to be valued at $68 165, it seems
nobody bothered with the duty-paid value. The State said the exportation of
copper is prohibited. But for the cigarettes, the duty-paid value was assessed
at $1 731-36. Three times that amount is $5 194-08. That means, in assessing
the appropriate fine, the magistrate could go up to an amount not exceeding $ 5
194-08.
For count three, the
prescribed fine is an amount not exceeding level twelve [$2 000], or three
times the duty-paid value of the goods involved. The goods involved were
cigarettes, the duty paid value of which, as said already, was $1 731-36. Thus,
again the court could go up to $5 194-08 for the appropriate fine.
Given the misdirection
aforesaid, the combined fine of $500 for counts two and three is hereby set
side. It means this court is now at large to use its own discretion to assess
the appropriate fines.
For count two the accused
is sentenced to a fine of $250, or in default of payment, twenty five days
imprisonment.
For count three, the
accused is sentenced to a fine of $200, or in default of payment, twenty days
imprisonment.
In the result, the court a quo is directed to recall the accused
and pronounce to him the following final result:
1
The
conviction and sentence in count one, i.e. contravention of s 3 of the Copper
Control Act, Cap 14:06 [“deal with
copper without a licence”] are hereby set aside;
2
The
conviction in count two, i.e. contravention of s 182 of the Customs and Excise
Act, Cap 23:02 [“smuggling”] is
hereby confirmed;
3
The
conviction in count three, i.e. contravention of s 184[e] of the Customs and Excise Act [“non-payment of duty or surtax on
manufactured goods by unlicensed person”] is hereby confirmed;
4
The
combined fine of $500 for both counts two and three above is hereby set aside
and substituted with the following:
4.1
for
count two, a fine of $250, or in default of payment, twenty five days
imprisonment;
4.2
for
count three, a fine of $200, or in default of payment, twenty days imprisonment
5
Both
the copper and the cigarettes shall be forfeited to the State.
3 March 2017
MAWADZE J agrees: ____________________________
