Henry Mulenga Kapoko v The People (CAZ/09/90/2020) [2021] ZMCA 240 (21 April 2021)

lNJJj - OURT Of APPEA OF ZI\MBIA 1:10 D.fN A. I UJSAKA (Criminal Jurisdiction) CAZ/09/90/2020 BETWE N: HENRY MULENGA KAPOKO I J \ APPLICANT AND t I /\PK 2021 THE PEOPLE • ( RESPONDENT CORAM: Chashi, Lengalenga and Majula, JJA On 17th December, 2020 and 21st April, 2021. For the Applicant: Mr. C. K. Simukonda - Messrs Kang'ombe & Associates For the Respondent: Mr. L. C. Lemba - ACC RULING MAJULA, JA delivered the Ruling of the Court Cases referred to: 1. KAMBARAGE MPUNDU KAUNDA v THE PEOPLE (1990 - 92) ZR 2. STODDARF v THE QUEEN (1949 - 1954) NRLR 288 3. MUSONDA v THE PEOPLE (1976) ZR 215 (SC) R2 4. WILSON CHAMOTO v THE PEOPLE (1980) ZR 20 (SC) S. FINSBURY INVESTMENTS LTD & ORS v ANTONIO VENTRIGLIA & ANOR - SCZ JUDGMENT NQ 17 OF 2013 6. ANUJ KUMAR RATHI KRISHNAN v THE PEOPLE (2011) 2 ZR 1 7. TITO v WADDEL {NQ 2) (1977) CH D 106 Legislation referred to: 1. THE COURT OF APPEAL ACT, NQ 7 OF 2016 2. THE COURT OF APPEAL RULES, STATUTORY INSTRUMENT NQ 7 OF 2016 3. THE CRIMINAL PROCEDURE CODE, CHAPTER 88 OF THE LAWS OF ZAMBIA INTRODUCTION At the time we heard this application on 17th December, 2020, we sat with Honourable Lady Justice F. M. Lengalenga. She has since retired. Therefore this judgment is by the majority. This is the Applicant's composite application for admission to bail pending appeal and an order for stay of sale of forfeited properties which is brought by way of composite notice pursuant to sections 18(1)(A), 9(A) of the Court of Appeal Act, NQ 7 of 2016 as read together with Order 9 Rule 21(1) and Rule 3(1) of the Court of Appeal Rules, Statutory Instrument NQ 7 of 2016. The said application is supported by an affidavit sworn by Henry Mulenga Kapoko, the Applicant herein and skeleton arguments. R3 According to the Applicant's deposition, he was convicted for the offences of theft by public servant and money laundering by the Subordinate Court at Lusaka and sentenced to 18 years imprisonment with hard labour. On appeal to the High Court, the appeal partially succeeded since the sentence imposed by the Subordinate Court was set aside and replaced with one for 9 years imprisonment with hard labour. He further deposed that he is scheduled to be released on 12th December, 2023 after remission of his sentence and that he had served 3 years of the sentence. He deposed that he has filed an appeal to the Court of Appeal by which he is challenging the conviction, sentence and forfeiture order. He exhibited a copy of the Notice of Appeal and additional grounds of appeal as "HMK1." The Applicant further deposed that he had renewed his composite application for bail and stay of sale of forfeited properties before a single Judge of this Court and the said application was refused. He attached to the affidavit in support exhibits "HMK2" and "HMK3," being copies of the rulings by the single Judge. The gist of his composite application before the full Court is that his intended appeal has high prospects of success and that his appeal may be R4 delayed due to the voluminous record of proceedings and he is likely to have served either a substantial part of the sentence or the entire sentence before the appeal is heard, if bail is not granted. The Applicant deposed that the Respondent would not be prejudiced in any way if the bail pending appeal is granted. He further stated that he is able to provide credible sureties and to abide by any conditions the Court may impose. With regard to the application for an order to stay sale of the forfeited properties, the Applicant deposed that since there is a Court judgment in place that is capable of being enforced, this Court ought to grant the stay sought, because if it is not granted, he would suffer irreparable injury since the forfeited properties include land, the loss of which cannot adequately be compensated by damages or an interest in a particular piece of land or house, however, ordinary. It was argued that if the stay of sale of forfeited properties is not granted, the appeal would be rendered nugatory and a mere academic exercise. Apart from the affidavit evidence, Counsel for the Applicant relied on the filed heads of argument which he augmented by referring us to a number of RS authorities such as the case of KAMBARAGE MPUNDU KAUNDA v THE PEOPLE1 which he submitted is instructive on granting bail to an Appellant who is alleged to have committed a bailable offence. He also relied on the case of STODDARF v THE QUEEN 2 for the principle that an Appellant can be released on bail pending appeal if there are exceptional circumstances which are: (i) the likelihood that he will have served the sentence by the time the appeal is heard; (ii) where an appeal has raised an important or difficult point of law; (iii) where there is real doubt about the correctness of the conviction on a point of law; (iv) where the sentence is manifestly contestable on whether or not it is a sentence known to the law; (v) where there is a likelihood of success on appeal. Based on the affidavit evidence and principles referred to in the cited cases, it is contended that the Appellant has demonstrated that he has satisfied all the conditions for the Court to admit him to bail pending appeal. Counsel for the Applicant, therefore, urged the Court to grant the application. He further submitted on the issue of fine versus a custodial sentence where the legislature has provided for an option of a fine in some cases. He R6 referred the Court to a number of cases such as MUSONDA v THE PEOPLEJ where the Supreme Court held that: "Where either a fine or imprisonment or both are laid down as penalties by the legislature, in the case of first offenders where there are no aggravating circumstances a fine is appropraate and such an offender should be sentenced to a fine, with imprisonment only in default." • I Further reliance was placed on t he later case of WILSON CHAMOTO v THE PEOPLE where the Supreme Court reaffirmed the same principle on the need for courts to consider sentences of fines as opposed to imposing custodial sentences in cases of first offenders where t here are no aggravating circumstances. Counsel for the Applicant submitted that the Applicant's appeal has raised critical or important questions that are to be determined by this Court. With regard to the application for an order to stay the sale of the forfeited properties, it was submitted that the Court should grant it, as there is a court judgment in place that is capable of being enforced. A number of cases were cited such as FINSBURY INVESTMENTS LTD & ORS v ANTONIO VENTRIGLIA & ANOR5. It was further submitted that the essence for an application for a stay is that the appeal has prospects of success. The Court was urged to grant the R7 application ordering the stay of sale of the forfeited properties. counsel for the Respondent, Mr. Lemba in opposing the application for bail pending appeal submitted that it is trite law that bail pending appeal is granted at the discretion of the Court and that the Court must do so judiciously. He relied on the case of ANUJ KUMAR RATHI KRISHNAN v THE PEOPLE6 • He further submitted that upon perusal of the affidavit in support of the application he did not find exceptional circumstances to warrant this Court to exercise its discretion in the Applicant's favour. With respect to the application for an order for stay of the forfeited property he also submitted that it is granted at the Court's discretion upon considering whether there are prospects of success. He submitted that in this case, the affidavit in support of application does not disclose any prospects of success. Counsel for the Applicant replied that the Applicant had demonstrated the likelihood of success of the appeal based on the Applicant's contention that the sentence of 9 years imprisonment with hard labour substituted by the High Court was wrong in principle as the trial court only had jurisdiction to impose a sentence of up to 7 years imprisonment with hard labour when it meted out R8 one for 18 years. He argued that in the circumstances, it was erroneous and a misdirection for the High Court to substitute the sentence of 18 years with a higher sentence than what the trial court had jurisdiction to mete out. He referred us to the Criminal Procedure Code, Chapter 88 of the Laws of Zambia and particularly, to section 7(ii) which provides that: "A subordinate court presided over by a resident magistrate shall not impose any sentence of imprisonment exceeding a term of seven (7) years." He concluded by submitting that the appeal has high prospects of success and that the two applications ought to be granted to prevent the appeal being rendered nugatory and a mere academic exercise and the forfeited properties being sold and thereby causing the Applicant to suffer irreparable damage. (See:TITO v WADDEL {NQ 2) (1977) CH D 106)7 • We have considered the application, the affidavit evidence, respective arguments by Counsel, authorities cited and exhibited rulings by t he single Judge of this Court. We find that the Appellant's application does not meet the criteria for bail pending appeal as there are no exceptional circumstances upon which bail pending appeal can be granted and we, therefore, dismiss it. We turn to the application for an order to stay the sale of t he forfeited R9 properties. Since the lodging of an appeal in a criminal matter operates as a stay, it follows that any sale relating to the forfeited properties or goods is stayed, we find that the said application is misconceived and we, accordingly, dismiss it. I n conclusion, the Appellant's composite application for bail pending appeal and an order to stay sale of forfeited properties, therefore, fail and they are, accordingly, dismissed. J . Chashi COURT OF APPEAL JUDGE F. M. Lengalenga COURT OF APPEAL JUDGE ·········~&. ............... . B. M. Majula COURT OF APPEAL JUDGE