Chongo and Anor v People (SCZ Appeal 133 of 1998) [1999] ZMSC 86 (20 April 1999)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE. (Criminal Jurisdiction) 52. SCZ Judgment No. 10 of 1998. SCZ APPEAL NO, 133 OF 1998 FRANCIS CHONGO PETER NGOSA MAKOLA 1ST APPELLANT 2ND APPELLANT AND THE PEOPLE RESPONDENT Coram: Sakala, Muzyamba and Lewanika JJS. 20th April, 1999. For the Appellants, Mr. A. Mulemena, Senior Legal Aid Council. For the Respondent, Mr. J. Mwanakatwe, Principal State Advocate. ___________________________ JUDGMENT___________________________ Sakala JS delivered the Judgment of the Court. The appellants who were charged with armed robbery and convicted of the same, were sentenced to life imprisonment. The particulars of the offence alleged that the two appellants on the 29th January, 1997, at Ndola jointly and whilst acting together with another person unknown and whilst armed with a firearm, robbed Funny Mwale various items including K50,000,00 cash, all valued at K197,000.00 and used violence at the time of the robbery. The evidence of PW1 established that on the night of 29th January, 1997 some intruders broke into her house while she was sleeping and demanded money. According to her, they were armed. They threatened to shoot her. They subsequently collected the items the subject of the charge. As the intruders were leaving the house, PW1 shouted for help. PWs 2 and 3, among others, responded to the call for help. One of the two witnesses chased the two appellants while they were carrying the stolen items. According to these witnesses they heard gun shots while chasing the appellants. In their defence on oath, the two appellants testified that they were merely passers by when they were apprehended as thieves. They denied being found in possession of a matress identified as stolen. According to the learned trial judge the robbery and the use of the firearm was not in dispute. What was in dispute, according to him, was the identity of the robbers. He found that PWl’s evidence on identity of the robbers in the house was doubtful; but that the evidence of possession of the matress by the appellant supported the doubtful evidence of identification. The court found the appellants guilty as charged. In considering the sentence imposed on the appellants the court said:- “Armed robbery carries death sentence but since no life was lost and part of the property was recovered I find this to be extenuating circumstances. I therefore sentence each of the accused to life imprisonment with effect from today”. : 12: We have very carefully considered the submissions on behalf of the appellants to the effect that the learned trial judge erred in law in convicting the two appellants on the charge of armed robbery and sentencing them to life imprisonment. In our view, although this appeal can not succeed on any of the arguments advanced in so far as it relates to the convictions, the court failed to make certain findings of fact and also made wrong conclusions and passed wrong sentences in law. As a Supreme Court, we must correct the errors which we hope will be brought to the attention of this particular trial court. We say so not out of disrespect but because of the frequent similar mistakes on sentencing on the charge of armed robbery made by the same court. We take note that even in this session there is another appeal coming up where the same mistake was made by the same court. The appellants were charged of armed robbery. The court made no findings that the gun was used and that if it was used it was capable to cause death. We are satisfied that there was no evidence that a gun was used. Indeed, we note that there is evidence of a witness suggesting that they saw a gun and suggesting that they heard gun shots but there is no evidence suggesting that any empty catriges were recovered from the scene. In any event even an air gun makes noise. The most serious mistake of law made by the learned trial judge, and we take note that this is not the first time, was the conclusion that the law of extenuating circumstances for the offence of murder also applies to the offence of armed robbery. We want to make the point that the law of extenuating circumstances was introduced in Zambia as a measure between the extremes of the offence of murder and manslaughter. It was only intended for cases of murder and not any other offence under the Penal Code or any written law. To invoke the principles of extenuating circumstances in sentencing an accused in an armed robbery offence other than murder is not only wrong in principle but also wrong in law. We hope that other trial courts will take note of the observations we have made in this appeal. Turning to the appeal before us, although the evidence did not establish armed robbery it overwhelmingly established aggravated robbery without a firearm. We therefore quash the conviction of armed robbery and substitute it with that of ordinary aggravated robbery. The sentence of life imprisonment being wrong in both principle and law, we set it aside. We are therefore at large. The facts disclose that the appellants attacked PW1 while she was asleep in the night and they threatened her and demanded money from her. Offences of aggravated robbery particularly those committed in the night are op the increase. This offence was committed by a gang. The appropriate sentence, therefore, which we now impose, is one of 18 years imprisonment with hard labour with effect from the date of arrest. The appeals are therefore dismissed. E. L. Sakala, SUPREME COURT JUDGE. W. M. Muzyamba, SUPREME COURT JUDGE. D. M. Lewanika, SUPREME COURT JUDGE.