People v Wang Shunxue Kinghar Company Zambia Ltd (1 of 2022) [2022] ZMSUB 1 (23 March 2022)

IN THE SUBORDINATE COURT OF THE FIRST CLASS FOR £E1/01/2022 CHILILABOMBWE DISTRICT-HOLDEN AT CHILILABOMBWE (Criminal Jurisdiction) BETWEEN: re Eig Hino aA THE PEOPLE vs FRED KATAMBI ABDUL HASSAN MOHAMMAD ABOL MOHAMMAD i} LS? MAR 2909 jt Sey ry “Rao arg UBORCi ah Ale Las OM Before: D. M, SIMFUKWE (Esq.) In Open Court Appearing for the Prosecution: Mr. H. Chimpo of Messrs National Prosecutions Appearing for all Accused: Mr. P. Chavula, Principal Legal Aid Counsel and Authority (NPA) Mrs M. M. Kapolyo, both of Messrs Legal Aid Board RULING OF CASE/NO CASE TO ANSWER Cases referred to: (1) The People Vs Japau (1967) Z. R. 95 (2) Mwewa Murono Vs The People (2004) Z. R. 207 (3) The People Vs Winter Makowera and Robby Tayabunga (1979) Z. R. 290 (H. C) (4) Penias Tembo Vs The People (1980) Z. R, 218 Legislation referred to: (1) The Narcotic Drugs and Psychotropic Substances Act No. 35 of 2021 (2) The Criminal Procedure Code, Chapter 88 of the Laws of Zambia. (3) The Medicines and Allied Substances Act No, 3 of 2013 The accused persons herein stand jointly charged in Count 1 for Trafficking in Narcotic Drugs, Contrary to Section 15(1) (2) of the Narcotic Drugs and Rl Psychotropic Substances Act Number 35 of 2021, Chapter 96 of the Laws of zambia as read with Statutory Instrument Number 119 of 1995. A2, ABDUL HASSAN stands charged alone in Count 2 for the offence of Unlawful use of property, contrary to Section 29(1) (2) of the Narcotic Drugs and Psychotropic Substances Act Number 35 of 2021, Chapter 96 of the Laws of Zambia as read with Statutory Instrument Number 119 of 1995, Al, FRED KATAMBI pleaded guilty in count 1 and was on 10% January, 2022 convicted on his own admission and sentenced to 24 Months Imprisonment with hard labour with effect from 24 January, 2022, A2, ABDUL HASSAN and A3, MOHAMMAD ABOL MOHAMMAD pleaded not guilty respectively, With respect to Count 2, A2, ABDUL HASSAN pleaded not guilty. It follows that this Ruling is only with respect to A2 and A3 respectively. I have to decide at trial whether the Prosecution has established a prima facie case against each one of the accused persons to this stage in the persuade me to put them on their defence. | wish to state that prima facie evidence in its usual sense is used to mean prima facie proof of an issue, the burden of proving which is upon the Prosecution. In the absence of further evidence from the defence, prima facie proof becomes conclusive proof and the party giving it discharges its burden. At the close of the Prosecution’s case, the Prosecution opted to rely on the evidence on record while the Defence team filed written submissions with the court on 11 March, 2021. I must say that 1 am greatly indebted to the Defence team for the well articulated submissions. I have taken into account the whole evidence on record and the written submissions against a finding of case to answer. I wish to state that | am not obliged to reproduce the written submissions by the defence but suffice to say that | have fully taken them into account in arriving at my final decision in this Ruling. Riz In support of the Charge the Prosecution called four (4) witnesses. PW1 was KANDAFULA MUSONDA 41 years old, an Assistant Investigations officer with the Drug Enforcement Commission (hereinafter based at Chililabombwe, PW2 was PHILIP LWENDO NYANGA 37 years old and a Computer Systems Engineer with DEC based at Lusaka. PW3 was JONES SIASAMBA 40 Investigations at Chililabombwe, and PW4 was ELIJAH SINDAZI 28 years old, an Assistant Investigations Officer with DEC and was the arresting officer in this matter respectively, ‘DEC’.) Officer called based years DEC with old The evidence of PW1, PW3 and PW4 respectively was somewhat similar as they were part of a team of DEC officers that was constituted on 28th December, 2021 to verify information from their informers that the now accused persons were trafficking in narcotic drugs namely Codeine. PW3, Jones Siasamba was the team leader. According to PW1, PW3 and PW4, they had carried out an operation in Chililabombwe District beginning on the 24% December, 2021 when one male suspect was found with a drink mixed with suspected Codeine. The said suspect was apprehended and he revealed to the officers that his suppliers were Abdu Mohammad (A3) and Fred Katambi (Al). Investigations continued up until the 28h December, 2021 when the DEC officers got information that Al, A2 and A3 were at ONS Bar within town area with a motor vehicle, namely, Toyota Axio registration number BCB 1762 2M. The three suspects were found between 18.00 hours to 19.00 hours. The motor vehicle was surrounded by the DEC officers. Later Mohammad was seen throwing something while seated in the driver’s seat. According to PW1, PW3 and PW4 respectively, a search was conducted in the car and the following items of evidence were recovered namely; 1 bottle of grape Fanta which was suspected to be mixed with codeine, 1 X half bottle of Codeine, 1 measuring lid full of suspected Codeine and that the measuring lid in question was with Abdu Hassan and the same was put between the driver’s seat and the passenger’s seat. Fred Katambi (Al) was found seated in front in the R.3 passenger's seat where a black bag containing 4 bottles of suspected Codeine was recovered. Finally the above items of evidence together with the motor vehicle were recovered and seized as per notice of seizure admitted herein as exhibit P. 12. PW1, PW3 and PW4 respectively identified Al, A2 and A3 accordingly as suspects who were apprehended on 28 December, 2021. PW2, PHILIP LWENDO NYANGA and PW3, JONES SIASAMBA extended their investigations to the information contained in a Samsung Galaxy M31A Cell phone by subjecting it to digital analysis, The cell phone in question belonged to A3 and it was admitted in evidence as P.8. PW2 received the cell phone in question in a sealed evidence bag on 7th January, 2022 from PW3. PW2 and PW3 stated that after doing digital analysis and uploading all the videos, pictures, WhatsApp and SMS, A3 appeared in the videos and pictures consuming and abusing suspected Codeine, The contents of the videos were also viewed by this Court. PW2 and PW3 led the Court in viewing all the videos and pictures showing A3 holding a bottle of suspected Codeine and consuming suspected Codeine. The videos also showed that A3 had a number of suspected bottles of Codeine even at his house. The Digital Analysis Report, a Flash Disk containing the pictures and the videos and the Digital Evidence Chain Custody form were admitted in evidence as exhibits P.1, P.2 and P.10 respectively. In cross-examination, PW2 stated that although it was possible to know the date and place when and where the videos were taken from, he did not tell the court about the date and the place when and where the videos and pictures were taken, When cross-examined further, PW2 stated that he did not tell the court as to which part of the videos and pictures related to the events of 28th December, 2021 when the accused persons were allegedly to have trafficked in a Narcotic Drug namely Codeine, PW2 stated that Benylin with Codeine was a cough mixture taken on prescription, R.4 PWS stated that the motor vehicle Toyota Axio BCB 1762 ZM was seized because it was being used to ferry and sell drugs and that the documents namely the two letters of sale revealed that the owner of the motor vehicle was A2, Abdu Hassan. The motor vehicle Toyota Axio BCB 1762ZM and two letters of Sale were admitted in evidence as P.7 and P.13 respectively. PW3 stated that his area of interest was to know whether or not A3 was dealing in Codeine as a main supplier. When cross-examined further, PW3 stated that he agreed that Benylin with Codeine was a controlled medicine which could be taken with a prescription from a medical doctor and that it was a cough suppressant. He stated that he did not mention to the court if the accused did not have any prescription from a medical doctor. PW3 stated that during investigations no one admitted ownership and that if Al did admit before court, then PWS was not before court. According to PW3, the whole operation that took place on 28 December, 2021 was premised on the events that happened prior to 28% December, 2021. He further stated that there were no any messages relating to the events of 28 December, 2021 and also that A2 was not appearing in any of the videos or pictures tendered before court. There was no re-examination. PW4 was the arresting officer in this matter. He did not produce 1 X half bottle of suspected Codeine as an exhibit in this matter. PW4 told the court in cross- examination that he prematurely charged the accused persons on 28 December, 2021 because oA yet received evidence from the Public Analyst. The Public as only sworn on 26 January, 2022 and that the accused appeared for plea on 4 January, 2022. He stated further that the Affidavit shows that the suspected Codeine was received at UTH Laboratory Lusaka on 7‘ January, 2022 when it was not true that he took the exhibits to Lusaka on 7 January, 2022, According to PW4, the Affidavit produced before AS court as P, 14 was telling a lie and that it was not truthful because he took the ‘ Sus pected Codeine to the Public Analyst on 2nd January, 2022. . When cross- : c sitti Ss-examined further, PW4 stated that he did not tell the court the ing arrangements of the suspects in a Toyota Axio when they found them at NS Bar. PW4 further stated that “Benylin with Codeine was a nighttime cough Suppressant. According to PW4, it was not correct to call Benylin with Codeine as Sugar, or ammonium chloride as these were mixtures. He stated Benylin with Codeine is registered in Zambia under the code 082 /049POM and also that he has been seeing this product in chemistries where it is sold on a prescription. PW4 told the court that he was familiar with the Narcotic Drugs and Psychotropic Substances Act Number 35 of 2021. In cross-examination, PW4 stated that he could confirm that Benylin with Codeine was not one of the drugs listed under the schedule to the Act as the schedule only contains Codeine and not Benylin with Codeine. He further stated that he could do anything just to ensure that a suspect is punished and that all the DEC witnesses in this matter had the same common purpose. In re-examination, PW4 stated that he sent the exhibits to the Food and Drug Laboratory at UTH Lusaka after his investigations. The foregoing was the case for the Prosecution. It must now determine whether a case has been made out against A2 and A3 sufficiently to require each one of them make a defence in terms of Section 207(1) of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia. I propose to deal first with count 1 namely, Trafficking in Narcotic Drugs Psychotropic the contrary Substances Act Number 35 of 2021 (The ‘ACT. The ACT defines “trafficking” in Section 2 as; Narcotics Section Drugs 15(1) and (2) of to R.6 “being sal t a nvolved directly or indirectly in the unlawful buying or selling of, or : ki ing In possession of, Narcotics or Psychotropic Substances.” Before I critically look at the law applicable in this matter, | must hasten to say that given the facts of this case it is clear that A3 has been dealing in Benylin with Codeine. I say so because of similar fact evidence adduced herein namely the Digital report and the videos and the pictures tendered in evidence as exhibits P.1 and P.2 respectively. It is trite law that similar fact evidence is evidence tendered in a criminal trial to demonstrate that the accused previously engaged in the relevant prohibited activity. In my view the evidence was still essential to provide similar fact evidence which | carefully distinguished from character evidence provided that its evidential value outweighs the potential for prejudice. However, notwithstanding the foregoing similar fact evidence, there is one fundamental question that falls for determination in this matter. The question by the is whether Benylin with Codeine is Prosecution. According to Section 2 of the Act, “Narcotic drug” Narcotic drug as alleged a “means a natural or synthetic substance set out in the Second Schedule to this ACT.” At this stage of my Ruling, | find it convenient and prudent to refer to the Second Schedule of the Narcotic Drugs and Psychotropic Substances Act, Number 35 of 2021. The Second Schedule lists down the Narcotic Drugs. not one of them save only for one drug namely Benylin with Codeine is “Codeine.” PW4, Elijah Sindazi an Assistant Investigations Officer under the this matter Drug Enforcement Commission and conceded in cross-examination that Benylin with Codeine is not one of the Narcotic Drugs listed under the Second Schedule to the ACT. The arresting call Benylin with officer went on further to Codeine as sugar or ammonium chloride as these were merely mixtures. My that even simple understanding of the evidence of the arresting officer say that it was not correct to arresting officer the in is R.7 Codeine is merely one of the mixtures in Benylin with Codeine as a cough mixture, of be the one with Codeine to In view of the foregoing, I am of a firm view that if the Legislator had intended Drugs or Psychotropic Benylin Substances the same could have been listed under either the Second Schedule or the Third Schedule to the Act respectively. What this means is that Benylin with Codeine is neither a Narcotic Drug nor a Psychotropic Substance. I therefore graciously agree with the learned Defence Counsel Mrs. Kapolyo that a narcotic the Prosecution has failed to prove that ‘Benylin with Codeine’ ts Narcotic drug. What then is Benylin with Codeine? In attempting to answer the foregoing question I will revert back to the evidence on record. PW3, Jones Siasamba told the Court in cross-examination that Benylin with Codeine was a controlled medicine which could be taken with a prescription from a medical doctor. He further stated that he did not mention to the court whether or not the accused persons had a prescription or not. PW4 corroborated the evidence of PW3 when the court that Benylin with Codeine was a cough mixture (cough he Suppressant) which is an authorized medicine in Zambia and is duly registered with the Zambia Medicines Regulatory Authority under registration number 082/049POM. told In view of the foregoing evidence, it is clear that Benylin with Codeine is one of the controlled medicines in that it cannot be dispensed without a prescription by a qualified Medical Practitioner. | am therefore of a considered view that if indeed A2 and A3 were unlawfully dealing in Benylin with Codeine that is to say without any prescription from a Medical Practitioner or licence, then it would have been appropriate for the Drug Enforcement Commission to charge the accused persons under the Medicines and Allied Substances Act, Number 3 of 2013 as opposed to charging them under the Narcotic Drugs and Psychotropic Substances Act Number 35 of 2021, | take the above position Rd ven In view of the foregoing, which A2 and A3 were a Stage as they were cha Bl it is clear that the essential elements of the charges for rraigned before court have not been established at this rged under a wrong Act. I have in mind the guidance in the case of Japau Vs The People (1) where it was held inter-alia that; “A submission of no case to answer may be properly upheld if an essential element of the alleged offence has not been proved, or when the prosecution's evidence has been so discredited in cross- examination or no reasonable so manifestly unreliable, that tribunal could safely convict on it.” A similar finding was later made and well settled by the Supreme Court of Zambia in Mwewa Murono Vs The People (2) Invoking the above authorities to the instant case, it is clear that one of the essential elements is that Benylin with Codeine must be either a Narcotic Drug or a Psychotropic Substance which element has not been established by the Prosecution as the same does not fall under the Second Schedule to the ACT. Further, PW4 told the court that the Public Analyst Report (the AFFIDAVIT), P14, sworn by one Sumbukeni Francis Kowa was a lie or simply put untruthful because he had submitted the same to the Public Analyst on 2™4 January, 2022 and not on 7 January, 2022 as averred to by the Public Analyst in the Affidavit. Assuming that the accused persons were properly charged, | would or simply put still not have relied on untruthful as per evidence of the arresting officer. It follows that nothing was the Food and Drug Laboratory at UTH Lusaka for chemical the Affidavit because it was a submitted to lie analysis by the arresting officer, PW4. R.9 I were J agree with the learned Defence Counsel Mrs. Kapolyo that the evi pe a the arresting officer was seriously discredited during cross- examination in relation to ‘Benylin with Codeine’ not being a narcotic drug and the Affidavit being untruthful. Further, for unknown reasons the arresting officer did not even produce 1 X half bottle of suspected Codeine purportedly recovered from the now accused persons. | find comfort in the case I was referred to by the learned Defence Counsel Mrs. Kapolyo, the case of The People Vs Winter Makowera and Robby Tayabunga (3), where a similar finding was made as in the case of Japau cited supra. I do not lose sight of the fact that one of the accused's rights once placed on his defence is to remain silent, Assuming that on the evidence before me I placed is clear that A? and A3 on their defence and they elected to remain silent, it there is no tribunal properly directing its mind to the facts of this case that can safely convict. Clearly and strictly speaking and as submitted by the learned Defence Counsel, the facts of this case do not support the case against A2 and A3. 1 draw comfort and guidance from the case of Penias Tembo Vs The People (4) where DOYLE C. J. as then he was held that; is mandatory for the Court to acquit an accused at the close of the “i Prosecution’s case if the facts do not support the case against him and no evidence that is led thereafter can remedy or cure the deficiency or defects in the Prosecutions’ case.” Given the facts of this case, | am of a firm view that no evidence that can be led thereafter by the defence can cure the serious defects in the Prosecution’s case. This is so because an accused bears no burden to prove his innocence and in the same vein an accused person bears no burden to supply the omissions in the Prosecution’s case. R.10 I no pRioi Count 2 is de oniiey h is Count 2 whic nd - Thave already held in respect of A2. It is common cause that Pendent on the Prosecution establishing the essential elements of above that the Prosecution has failed to prove the of Count | and therefore Count 2 falls away automatically. of doubt the Prosecution has also failed to establish a prima nst A2 in Count 2. The end result is that I order that the motor namely Toyota Axio registration number BCB 1762 ZM be restored and essential elements For avoidance facie case agai _— 8iven back to A2 after 14 days from the date hereof. I do not lose sight of the fact that | Convicted Al on his own admission. I must In view of the foregoing and the authorities cited above, I find that a case has not been made out in Count 1 against A2 and A3 respectively and in Count 2 against A2 accordingly. | find A2 and A3 with NO CASE TO ANSWER. | accordingly enter a VERDICT OF NOT GUILTY and I ACQUIT both A2 and A3 of Count 1 and A2 of Count 2 and I set them at liberty. Say that at the time I was convicting Al, I did not carefully address my mind to the Second Schedule and the Third Schedule to the Narcotic Drugs and Psychotropic Substances Act Number 35 of 2021 respectively for me to fully appreciate whether or not Benylin with Codeine was a Narcotic Drug. It only came to my attention when the matter proceeded to trial in respect of A2 and & A3 respectively. It follows that the Conviction and Sentencing of Al on his own admission still stands as 1 am functus officio. The State are at liberty to appeal against my Ruling within 14 days from the date hereof. Dated at Chililabombwe this Bika, of) R.11