Simon Tongowana Kapuya v the People (HPA/28/2024) [2024] ZMHC 306 (15 November 2024)

HPA/ 28 / 2024 IN THE HIGH COURT AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: SIMON TONGOWANA AND THE PEOPLE Before:The Honorable Madam Justice M. S. Ngoma in Open Court this 15u, November , 2024 For the Appellant: A. Mwansa SC, of Messrs AMC Legal Practitioners, and S. Mambwe, of Messrs Mambwe, Siwila & Lisimba Advocates. For The State: Ms. M. Muchimba, State Advocate, National Prosecution Authorit . JUDGMENT Case referred to: l . Kambili ma and others v The People SCZ Judgment n u mber 14 of 2003 (unreported). 2 . Champako v The People v (2010) 25 Vol 1. 3 . The People v Principal Resident Magistrate and Anor3 (SCZ 8 93 of 2009; SCZ Judgment 17 of 2009) [2009] ZMSC 169. 4 . The People vs. Fred M'membe and Bright Mwape (1997) SJ 63. 5. Esme Mary Gallias v The People (HNA 284/1970) (1971) ZMHC 6 . 6. Mwewa Murono vs. The People (2004) ZR 207. 7 . Teper vs. R (1952) 2 ALL ER 447. 8 . Shamwana and 7 Others v People (S. C. Z . Judgment 12 of 1985) [ 1985] ZMSC 9 . 9. Mutambo and Ors v People (CAZ 8 15 of 1965) {1965] ZMCA 7. 10. Chanda Simwaba v The People (Appeal 82 of 2017) (2018] ZMSC 336. 11. Faustin Mwenya Kabwe and Francis Herbert Kaunda v The People HPA/33 / 2008. Jl Legislation referred to: 1. Section 206 of the Criminal Procedure Code, Cap 88 of the Laws of Zambia. 2. The Penal Code, Chapter 87 of the Laws of Zambia. Other Works Referred to: l. Gardner J. and Jung H. (1991) Making Sense of Mens Rea: Antony Duffs Account, Oxford Journal of Legal Studies Vol 11, No 4. INTRODUCTION 1. This is an appeal against a judgment of the Senior Resident Magistrate, Honourable T. Kasanda Kalisilira, delivered on 18th June, 2024 in which the Appellant was convicted on two counts of Procuring execution of documents by false pretences contrary to Section 354 of the Penal Code, Chapter 87 of the Laws of Zambia (hereinafter referred to only as the Penal Code). BACKGROUND 2. The Appellant was charged with and tried on five (5) counts, which are reproduced hereunder. However, for the purposes of this appeal, only the first two counts, on which he was convicted, which conviction he now appeals against, shall be considered: COUNT 1 Procuring Execution of Documents by False Pretences contrary to Section 354 of the Penal Code. The particulars of the offence being that he, the appellant, between 21st September 20 I 8 and 22nd September 20 18 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, by means of false and fraudulent representation, did procure Gurumurthi Mahaderai and Michael Adonis to sign a )2 document, namely, Memorandum of Lease Agreement dated 22nd June 2018 between Picton Limited and Printech Limited (the "New Lease"). COUNT2 Procuring Execution of Documents by Palse Pretences contrary to Section 354 of the Penal Code. The particulars of the offence being that he, the appellant, between 21st September 2018 and 22n d September 2018 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, by means of false and fraudulent representation, did procure Gurumurthi Mahaderai and Michael Adonis to execute a document, namely, a letter of cancellation of Lease Agreement dated 21•t September 2018 between Copperleaf Tobacco Company limited ("Copperleaf') and Printech Limited ("Printech"). This Lease shall be referred to as the ("Initial Lease") COUNT 3 Making documents without authority contrary to Section 356 (a) of the Penal Code, the particulars being that the Appellant made a Memorandum of Agreement for Sublease between Picton and Copperleaf (the "Sublease") with intent to defraud or deceive and without lawful authority; COUNT4 Making documents without lawful authority contrary to Section 356 (a) of the Penal Code, particulars being that the Appellant made an Equipment L,ease Agreement between Universal Machine Co Ltd and Copperleaf without lawful authority and with intent to deceive or defraud;and COUNTS Obtaining pecuniary advantage contrary to Section 309(A){l) of the Penal Code, the particulars being that as Director of Copperleaf, the Appellant obtained US$63, 000.00 for Picton Management Limited which he made himself liable by means of false pretences, dishonestly paying the said amount as rentals to Printech Company Limited. J3 3. The prosecution called 7 witnesses in total but of relevance to this appeal, 1 shall only refer to the evidence of PW2, PW4 and PW3 in that order. PW2 was Alexander George Nedcalf, a Director at Copperleaf who testified that in 2016, a management agreement was signed between Copperleaf and Pacific Cigarettes Company ("Pacific Cigarettes") for Pacific Cigarettes to take over the management of Copperleaf. He further testified that Copperleaf decided to rent premises from Printech at Washama Road, Light Industrial Area, Lusaka, to install machinery that the company would acquire through equipment leasing from a South African company called Universal Leasing Company on recommendation by Pacific Cigarettes. Copperleaf would further upgrade the ZESCO transformer and after paying USD9 , 500.00 equivalent to one month's rent, Copperleaf was given keys to the premises and they began to renovate the premises and upgrade the transformer. 4. In August 2018, Copperleaf received an invoice for August and September 2018 rentals and PW4, Mr Allan Macnab, asked the Appellant in PW2's presence where the Lease was and the Appellant responded that the original was in the custody of ZESCO as a requirement for upgrading the transformer. 5. PW2 testified that Copperleaf continued to pay rentals for the subsequent months upon being invoiced by Printech and the Appellant kept claiming that the lease was with ZESCO. Finally, in December 2018, upon request by PW4 via a telephone call which was made in the presence of PW2, the Appellant advised that the lease was at the reception of Copperleaf. Upon inspection of the lease, it was discovered to be made bel:\l\feen Picton Limited ("Picton") and Printech. At that point, neither PW2 nor PW4 knew of Picton. Upon conducting a search at PACRA, it was discovered that Picton was owned by Pacific Cigarettes and was incorporated on l 3th August 2018 and the J4 Directors were Auther, the Company Secretary and F'inancial Director at Copperleaf and two other persons. 6 . The remainder of PW2's testimony during examination in chief was based on what PW4 told him which will be summarised under PW4's testimony. In cross examination, PW2 stated that the lease between Picton and Printech did not show that it was the Appellant who created it and the PACRA printout for Picton did not contain the appellant's names. 7. PW4 was Allan Graham Mcnab, a Managing Director at Copperleaf. He testified that the appellant, a representative of Pacific Cigarettes, was employed by Copperleaf as a Managing Director to run the company under a Management Agreement Contract with Pacific Cigarettes. It was his testimony that the Appellant took pecuniary advantage at Washama road when he converted the lease agreement and company machinery from Copperleaf to a company, he had an interest in being Picton Management Services. 8. PW4 testified that the lease between Copperleaf and Printech was negotiated at USD$9, 000.00. However, when it was discovered that the Initial Lease had been changed to a company called Picton, which he had never heard of, he asked his daughter to conduct a PACRA search and it was discovered that Pacific Cigarettes owned 99% shares while 1% shares were held by Authur Malaya who was a Board member of Copperleaf and the financial director appointed by Pacific Cigarettes. Additionally, it was discovered that there was a sublease between Picton and Copperleaf at a higher rate of USD$9, 500.00 which the Appellant signed on behalf of Copperleaf without the knowledge and consent of Copperleaf. 9. PW4 also testified that upon discovery of the changed lease, he went to Printech and spoke with the Accountant at Printech, Mr. Gurumurthi (PW3). PW3 informed PW4 that the Appellant made a mistake to put the lease in Copperleafs name and had it changed to JS Picton and asked Printech to backdate the lease to the 22 nd June 2018 being the date of the lease between Copperleaf and Printech. 10. As earlier stated, PW3 was Gurumurthi Mahadevtyen, a Chief Accountant at Printech Limited who reported to the Managing Director, Mr Anif Ali. His testimony was that the Appellant met Mr Anif Ali in September 2018 and indicated that the lease in the name of Copperleaf had to be cancelled and a fresh lease was to be generated in the names of Picton and Printech and that the Appellant presented a draft letter to Mr Anif Ali to that effect. The letter indicated that the lease agreement with Copperleaf was cancelled and the lease would be made in the name of Picton who would then sublease the property to Copperleaf. He further testified that Printech agreed to the proposal and the Appellant prepared a New Lease in the names of Picton which Printech signed with the effective date being 22 nd June 2018 which was the same date as the first lease. 11. PW3 further stated that it was agreed that Picton would sublease the demised premises to Copperleaf and from November 2018, invoices were raised in the name of Picton and the money was received from Copperleaf via bank transfer up to February 2019. 12. During cross examination, PW3 stated that the invoices issued to Copperleaf and later to Picton were paid for and Printech received the money. He further stated that he was not present during the discussions regarding the lease for Washama property between Mr Anif Ali and the Appellant and he was only told about the discussions by Mr Anif Ali. Additionally, he did not see the Appellant prepare or handover the draft letter to Mr Anif Ali and there was nothing in the letter that suggested that it was prepared by the appellant. He further stated that he was told about the draft letter by Mr Anif Ali who gave him the said draft letter purported to have been signed by Mr. Michael Adonis. J6 13. After stating the findings of fact from the evidence before him, the trial magistrate warned himself that it was competent for a court to convict on a single identifying witness provided thaL the possibility of honest mistake was eliminated. Fo r this, he relied on Kambilima and others v The People. 1 He proceeded to discuss the law relating to corroboration and real evidence. 14. In relation to corroboration, the trial Magistrate, upon citing various authorities made a finding that a trial cou rt must be satisfied as to the reliability of the witness' observation so that the possibility of honest mistake is ruled out. The trial Magistrate, therefore, found there was sufficient evidence of identification of the Appellant because he, the appellant, worked with PW2 and PW4 at Copperleaf and he also worked with PW 1, an electrical technician engaged by Copperleaf during the installation of the machines at the demised premises on Washama road. 15. The trial Magistrate considered a number of authorities on real evidence, the gist of which was that exhibits constitute evidence just as the oral testimony of ,...,itnesses and the same standard of proof applied to oral evidence must be applied to real evidence. 16. As regards count 1 and 2, the trial Magistrate stated that the prosecution would need to establish the following elements to prove its case: i. That the accused, as he then was, and now the appellant, by means of false and fraudulent representations as to the nature, contents or operation of the Memorandum of Lease Agreement dated 22nd of June 2018 between Picton Limited and Prlntech Limited did procure Gurumurthi Mahaderai and Michael Adonis to sign the said document in respect of count one; ii. That the Appellant person by means of false and fraudulent representations as to the nature, contents or operation of a letter of cancellation of lease agreement dated 21" September 2018 between Copperleaf Tobacco Company Limited and Printech Limited did procure Guromurthi Mahaderai and Michael Adonis to execute the said document in respect of count two. 17. Upon analysing the evidence, the trial Magistrate made a finding that the evidence of PW4 that he was told that the Appellant went to Mr Anif Ali and informed him of the cancellation of the lease between Copperleaf and Printech and the preparation of a New Lease between Picton and Primech was corroborated by PW3. As such the trial Magistrate found that the Appellant met with Mr Ali and informed him of the cancellation of the Initial Lease, prepared the draft letter cancelling the Initial Lease and prepared the New Lease between Picton and Printech. 18. The Magistrate therefore found that the Appellant did procure PW3 and Michael Antonis to sign the Memorandum of Lease Agreement with knowledge that the nature and contents of the said lease agreement was untrue as there was no agreement subsisting between Picton and Copperleaf to warrant the preparation and execution of another lease. 19. The trial Magistrate equally found that the Appellant, by means of false and fraudulent representations as to the nature and contents of the cancellation letter, procured Michael Adonis to sign the said document knowing that the nature and contents of the said documents was untrue as there was no cancellation of the lease agreement between Printech and Copperleaf. The trial Magistrate noted that the draft JS cancellation letter was not s igned by Michael Adonis. However, the Magistrate stated that since PW3 had testified that the draft letter was prepared by the Appellant and the Agreement between Picton and Printech was executed thereafter, it could be inferred that the draft letter was prepared by the Appellant for the execution of Michael Adonis even though he did not sign it, the Appellant procured it for his signature knowing the conten ts of the cancellation letter were untrue. 20. On the above-stated premise, the trial Magistrate found the Appellant guilty on the first and second counts and convicted him accordingly. The Appellant was sentenced to 12 months imprisonment with hard labour on each count, to run concurrently, with effect from 18<h June 2024. He was acquitted on counts 3 , 4 and 5 . 21. Dissatisfied with the court's decision , the Appellant appealed to this court against the conviction by way of Notice of Appeal filed on 18th June 2024. GROUNDS OF APPEAL 22. The Appellant filed t11e following grounds of appeal: (i) That the Learned Trial Magistrate erred in law and in fact in convicting the Appellant of two counts of the offence of procuring execution of documents by false pretences in the absence of evidence of the personal involvement of the Appellant. (ii) That the Learned Trial Magistrate erred in law by convicting the Appellant of two counts of the offence of procuring execution of documents by false pretences in the absence of mens rea. (iii) That the Learned Trial Magistrate erred in law by convicting the Appellant of two counts of the offence of procuring execution of documents by false pretences against the J9 weight of available evidence which Induced reasonable doubt. (iv) That the Learned Trial Magistrate erred in law when he found the Appellant wit h a c ase to answer on the charges prof fered against him as no prlma f acte case had been established against the Appellant. ARGUMENTS OF THE PARTIES 23. The Appellant argued Ground (iv) first; then Grounds (i) & (ii) were argued together, with Ground (iii) being argued last. 1 shall follow the same order. GROUND livl 24. In arguing this ground, the appellant's counsel drew this court's attention to Section 206 of the Criminal Procedure Code, Cap 88 of the Laws of Zambia, which provides that if at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence, the Court shall dismiss the case, and shall forthwith acquit him. 25. The Appellant submitted that the two counts of falsely and fraudulently procuring PW3 and Michael Adonis to execute the alleged documents required evidence that the two executed the alleged documents. The Appellant stated that a prima facie case was not made out against him because there was no evidence that either PW3 or Adonis actually executed the documents in issue. Moreover, Michael Adonis was never called and no reason appears on record as to why he was not called. 26. It was further argued that there was no evidence that he procured PW3 or Adonis to sign anything. ft was submitted that to procure someone to do something is to actively seek llO that person to do it. No evidence was led to show that the Appellant asked PW3 or Adonis to execute the documents in issue, and PW3 never testified of a time when he met the Appellant. 27. My attention was further drawn to the evidence of PW3 in cross examination, appearing at Page 72 of the Record of Appeal where PW3 stated that he was only told about the meeting between the Appellant and Mr Anif Ali to discuss the cancellation of the lease between Copperleaf and Printench and the New Lease between Picton and Printech and that he never, in fact , witnessed this meeting. The Appellant submitted that this evidence, which was the only evidence supporting counts I and 2, was clearly hearsay and ought not to have been used as a basis for putting the Appellant on his defence. 28. In response, the respondent"s counsel, in their written arguments, stated that PW3 was present when the Appellant called Mr. Anif Ali informing him to cancel the earlier lease and sign another lease with a draft letter of cancellation. The respondent's counsel further stated that the Appellant made a representation to Printech to which PW3 and Michael Adonis were procured to sign. The basis for this argument was the testimony of PW4, Allan Macnab. I hasten to add that no specific portion of PW4's testimony was cited by the respondent's counsel. 29. It was further argued that the signature of PW3 as a witness on the New Lease proved that there was a false representation made by the Appellant which led to the signing of the New Lease by Michael Adonis and PW3 who signed as a witness. 30. In responding to the absence of Michael Adonis as a witness and allegations of hearsay, the respondent's counsel stated that PW3 was present at all material times during the transactions and he signed as a ,vitness on the New Lease, therefore, his testimony could not be said to be hearsay. Additionally, the respondent argued that PW3, being Jll responsible for the finances and collection of rentals for Printech, dealt directly with the Appellant. 31. It was further argued that procuration need not come out in evidence as it was enough for a person to sign based on a representation made to such a person especially where the person making it knows that it is false. 32. The respondenfs counsel stated that a prima facie case had been made against the Appellant. She cited the case of The People v Champako Joseph2 where it was held that: "That a prima facte case does not mean proving each and every ingredient of the offence charged. If there is evidence to prove one element, then there is a prima facte case that sufficiently requires him to make a defence, and does not mean to prove the case beyond reasonable doubt." 33. In order to determine whether the trial Magistrate was on firm ground to find the Appellant with a case to answer on the charges proffered against the appellant, I must, firstly, not lose sight of section 206 of the Criminal Procedure Code reproduced above which requires that an accused person be acquitted where it appears that a case is not made out against him. 34. The Supreme Court in The People v Principal Resident Magistrate and Anor3 made a determination of what amounts to prima facie case and stated the following: "The expression "prima facte" is from Latin. According to various English Dictionaries, among many others, the expression means: on its first appearance; by first instance; at first sight; at first view; on its face; the first nush; and from a Rrst impression ... J12 In our constdered view, a finding of a case to answer is based on the Courts' feelings or impressions and appearance of the evidence. But above all, the finding of a prima facte case is not a final verdict. In the case of Harrison V. Department of Securtty•7' (Also cited in Archbold page 407, 1999 ed), the Court stated: "Magistrates are not obliged to give reasons for rejecting a submission of no case to answer." (Emphasis mine) 35. The above-cited case makes it clear that a trial court need not be satisfied that the charge against the Appellant has been proved beyond reasonable doubt. It must merely appear to the trial court that there is a case to answer based on his personal feelings and impressions of the evidence presented to him. Therefore, under this ground, this court cannot look into the evidence that was adduced and question the trial Magistrates' reasoning as to why he felt that there was a case to answer as Magistrates are not obligated to give reasons for their finding of a case to answer. 36. However, the issues raised regarding the admissibility of hearsay evidence and the corresponding response will be considered under the other grounds below. Without belabouring the point, I find that this ground of appeal fails. GROUNDS (il & (ill 37. The Appellant argued grounds (i) and (ii) together and submitted that the Learned Trial Magistrate e rred in law and in fact in convicting the Appellant of two counts of the offence of procuring execution of documents by false pretences in the absence of mens rea and the personal invo lvement of the Appellant. It was submitted that if a person is not personally involved in a transaction, there can be no mens rea on h is part to commit an offence. J13 38. The Appellant argued that the documents alleged to have been executed by fraudulent and false procuration were commercial and involved three separate entities, namely , Copperleaf Tobacco Limited, Picton Limited, and Printech Limited. The Appellant was not party to those documents and in that sense he was not personally involved. Additionally, there was no evidence of any personal benefit to the Appellant on record. It was thus submitted that in light of the clear disconnect between the Appellant and the documents, it was safe for this Court to find an absence of mens rea to commit this offence. 39. It was also submitted that the acquittal of the Appellant on the counts alleging that he made or prepared the documents whose execution is alleged to have been fraudulently or falsely procured was further proof of a lack of intention to commit the offences charged as this showed a lack of personal involvement in the offences. 40. The respondent's argument was that the Appellant made a decision to change the lease agreement from Copperleaf to Picton, which was a company only known to the Appellant. The respondent stated that Picton was incorporated on 13 th August 2018 which was after the signing of the lease on 22n d June 2018. The respondent reasoned that the procuration was made on behalf of Picton which was non -existent and this fraud was within the knowledge of the Appellant who signed the lease on behalf of Picton. Therefore, the changing of the leases with backdated dates established mens rea. 41. Additionally, it was submitted that mens rea was established through the letter of cancellation and the replacement lease in the name of Picton Limited, which was ov.'Tled by Pacific Tobacco, which was the company that seconded the Appellant to Copperleaf. 42. 1 will begin by addressing the misapprehension of facts that I have noted in the Appellant's argument. The Appellant claims that his J14 acquittal on the counts alleging that he prepared the documents whose execution is alleged to have been fraudulently or falsely procured was further proof of a lack of intention to commit the offences charged. As the record shows, the Appellant was acquitted under counts 3 and 4 in respect of the offence of making documents without lawful authority. The document in question under count 3 and count 4 are the Memorandum of Agreement for Sub-lease of Premises between Picton and Copperleaf and the Equipment Lease Agreement between Universal Machine Co. Ltd and Copperleaf, respectively. Conversely, the documents in question under counts l and 2 are the Memorandum of Lease Agreement between Picton and Printech and the leller of Cancellation of Lease Agreement between Copperleaf and Printech, respectively. Therefore, in my opinion, the acquittal of the Appellant under counts 3 and 4 does not have any bearing on counts I and 2 as these counts refer to different documents all together. Moreover, the reason for the acquittal under count 3 and 4 was that the prosecution failed to demonstrate that the Appellant lacked the authority to prepare the stated documents as he was the Managing Director of Copperleaf, and not that the Appellant did not prepare the said documents as alleged by the Appellant's counsel. 43. I now turn my attention to the issue regarding a lack of mens rea in the commission of the offences due to lack of personal involvement and personal benefit to the Appellant. 44. In the case of The People v M'membe and Other,4 which was cited by the Appellant's counsel, the following principle of criminal law is well established, as is reproduced below: "Except in cases of strict liability, which this case is not one of such cases, the basis for criminal liability is still the Maxim Actus non facit reum mens sit rea. An act alone does not make a man guilty unless it is accompanied by guilty mind. " JlS 45. In Esme Mary Galllas v The People,5 the High Cou rt stated the following in relation to how mens rea is incorporated as an element in an offence: "The mental element in crime is usually marked by incorporating any of the following words, that is, "maltciously", "fraudulently", "negltgently" or "knowingly", in the statute creating the crime". 46. The statute c reating the offence, in this case, the Penal Code, identifies the mens rea that must be present in a particular offence. The intention of a person to commit an offence is thus identifiable from their actions or the manner in which they performed the criminal act which reveals an intention to commit the crime, for example, if the Appellant acted in a manner that was malicious, fraudu lent, negligent, etcetera. 4 7. The offence the Appellant was charged with under count (i) and (ii) is provided for at section 354 of the Penal Code, aforesaid. Section 354 is reproduced hereunder, for ease of reference: "Any person who, by means of any false and fraudulent representations as to the nature, contents or operation of a document, procures another to sign or execute the document, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had forged the document." 48. Mens rea or the intention to commit the offence will therefore be established in the above offence if the Appellant made false and fraudulent representations regarding the documen ts to the persons who executed them. The Appellant's argument that he was not a party to the documents is unsound as the Appellant could not possibly have been a party to the lease agreements as he was not acting in his personal capacity but rather on behalf of Copperleaf as its Managing J16 45. In Esme Mary Gallias v The People,s the High Court stated the following in relation to how mens rea is incorporated as an element in an offence: "The mental element in crime is usually marked by incorporating any of the following words, that is, "maliciously", "fraudulently", "negligently" or "knowingly", in the statute creating the crime". 46. The statute creating the offence, in this case, the Penal Code, identifies the mens rea that must be present in a particular offence. The intention of a person to commit an offence is thus identifiable from their actions or the manner in which they performed the criminal act which reveals an intention to commit the crime, for example, if the Appellant acted in a manner that was malicious, fraudulent, negligent, etcetera. 4 7. The offence the Appellant was charged v.~th under count (i) and (ii) is provided for at section 354 of the Penal Code, aforesaid. Section 354 is reproduced hereunder, for ease of reference: "Any person who, by means of any false and fraudulent representations as to the nature, contents or operation of a document, procures another to sign or execute the document, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had forged the document." 48. Mens rea or the intention to commit the offence will therefore be established in the above offence if the Appellant made false and fraudulent representations regarding the documents to the persons who executed them. The Appellant's argument that he was not a party to the documents is unsound as the Appellant could not possibly have been a party to the lease agreements as he was not acting in his personal capacity but rather on behalf of Copperleaf as its Managing Jl6 Director. The Appellant's involvement in the transactions leading up to criminal allegations levelled against him is indisputable. The record shows that the Appellant signed the Initial Lease and the Sub-lease on behalf of Copperleaf, and paragraphs 62 and 63 of the record demonstrate the Appellant's involvement in this case. 49. Further, in my view, monetary benefit to the Appellant is not the deciding factor in this charge as pecuniary benefit is not an element of the offence the Appellant was convicted of. Moreover, whatever motive the Appellant may have had is outside the scope of mens rea because mens rea in criminal law does not encompass motive as put thus in the Oxford Law Journal 1991 by J. Gardner and H. Jung: "The criminal law, however, hesitates to include conside rations of motive in its armoury of mens rea variables, and rightly so. Leaving aside the special problems which proof of motive raises, there is the general consideration that the evils which the criminal law may legitimately proscribe within the terms of the harm principle can typically be identified quite independently of motive. " 50. Having established what constitutes mens rea generally, and in relation to this case, the question of whether there was requisite mens rea can only be established if there is sufficient evidence in this case to establish the actus rea, that is, the criminal act or conduct beyond reasonable doubt . I will proceed to consider this in the ground below as I am of the view that these grounds are interrelated. 51. GROUND Ulil Under ground 3 , the Appellant argued that the Learned Trial Magistrate erred in law by convicting him of two counts of the offence of procuring execution of documents by false pretences against the weight of available evidence which induced reasonable doubt. It was submitted that the trial Magistrate based his conviction on the J17 evidence of a single witness, being PW3, who was the only witness that gave evidence on the two counts. Counsel argued that while it is competent for a court to convict on the evidence of a s ingle ,vitness, the evidence must be "clear and satisfactory in every respect" and must establish the guilt of the convict o r prisoner "beyond reasonable doubt" as stated in Mwewa Murono vs. The People6 case. 52. It was submitted that an honest perusal of che evidence of the single witness shows that he had no personal knowledge of the evidence upon which the Court based its conviction. Counsel cited the case of Teper vs . R 7 , where Lord Normand, at page 449, stated the follov.<ing: "The rule against the admission of hearsay evidence ls fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross• examination, and the light which his demeanour would throw on his testimony is lost." 53. Counsel argued that the trial court took as truth what Mr. Anif Ali told PW3 without calling Mr Anif Ali as a witness which meant that the trial cou rt based its conviction on the hearsay evidence of PW3 only, and such a conviction was unsafe and could not be upheld by this Court. 54. In response, it was argued that being that PW3 was the subject of the procuration, no other witness could be called to testify to prove the said offence. The possibility of honest mistake had been ruled out because the Appellant was well-known to PW3 as they conducted regular transactions together in relation to Copperleaf, Printech and Picton. Jl8 55. r n response to the assertion that the court convicted the Appellant on hearsay, the respondent stated that the record of appeal illustrates that PW3 was handed the draft cancellation Jetter and New Lease which he executed himself and the instruction to PW3 co begin raising invoices in the name of the Picton was an instruction from the Appellant. 56. Having considered the arguments by both sides and studied the record of appeal, I wish to encourage counsel for the respondent to make accurate references to the evidence on record to avoid misleading the court. There is no mention either on the record of court proceedings or in the judgment of the trial Magistrate that the Appellant gave an instruction to PW3 to raise invoices in the name of Picton. Additionally, the respondent's counsel" s statement that the draft letter of cancellation and the New Lease between Picton and Printech were handed over to PW3 by the Appellant is in stark contrast to the testimony of PW3. Th e relevant portion of PW3's statement in his examination in chief and cross examination as contained in the record of proceedings on pages 70 and 72, respectively reads as follows: "In September 2018, Mr. Kapuya met Mr. Anif Ali to indicate that the lease in the name of Copperleaf had to be cancelled and a fresh lease in the name of Picton had to be prepared. To this effect, Mr. Kapuya came with a draft letter that he showed Mr. Anif Ali. " 57. In cross examination, PW3 stated as follows : "There was a c onversation between Mr. Anif Ali and Mr. Kapuya for the lease of t he Washama Property. I was not present when the discussions were made. I was just told about the discussions by Mr. Anif Ali. Mr Kapuya prepared the draft letter and gave it to Mr. Anif Ali. I did not see h im prepare the draft letter Jl9 - I did not see Mr. Kapuya handover the draft letter to Mr. Ali. I was only told this by Mr. Anif Alt. He gave me the draft. Mr Kapuya did not give me the draft letter, it was Mr. Ali." 58. It is evident from the above cited portions of PW3's testimony that he did not personally witness the conversation between the Appellant and Mr Anif Ali. Further, that he, PW3, did not receive the draft Letter of cancellation of Lease from the Appellant, but from Mr Anif Ali. 59. It is an established principle of law that hearsay evidence is inadmissible in criminal proceedings. The celebrated case of Subramanian v Republic Prosecuto r cited in Shamwana v The People,8 provides the fo llowing guidance regarding the circumstance when evidence will not be considered to be hearsay and, as such, can be admitted into evidence: "Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It ts not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made." 60. Additionally, the Court in Mutambo v the People9 gave the following illustration to demonstrate the admissibility of evidence that is adduced to prove the fact that the statement was made: "If A delivers a chattel to B, both A and B can depose to the fact of delivery and receipt of the chattel, as can a third person who J20 was present and witnessed the delivery and receipt. What difference is there really between such acts and the giving of a verbal order by a superior to a subordinate? Insofar as the order contains allegations of fact, the evidence as to the giving and receipt of the order and its tenns is no more than hearsay as to the truth of the allegations and clearly is not admissible as to them. But I can see no reason why evidence by the recipient, or by a third party who was present and heard the order given, is not admissible as to the facts of the giving and tenns of the order when those facts are relevant to a matter in issue. (Emphasis mine)" 61. The above cited authorities make it clear that the purpose or use of the evidence is what determines whether it is hearsay or not. If the purpose is to establish the fact that the statement was made, such evidence is not hearsay and is, thereby, admissible. However, an important qualification m ust be noted in the cases cited. The witness giving testimony in court must have personally heard the statement uttered (by the other person who has not been called as a witness) in order for him to be able to speak to what he heard as proof that the statement was made. If the witness was not even present when the statement was uttered, how then can his testimony be accepted as evidence that the statement was made? Therefore, instances where the witness was merely told about a statement that was not made in his presence goes beyond the principles in the Subramaniam case. 62. It has already been established from PW3's own testimony that he was not present during the purported conversations between Mr Anif Ali and the Appellant when the Appellant gave instructions for the cancellation of the Initial Lease and the creation of a New Lease. Additionally, PW3 d id not witness the Appellant hand over the draft letter of cancellation or the New Lease agreement to Mr Anif Ali. He was mere ly informed by Mr Anif Ali of the instructions given to him by J21 the Appellant and it was Mr Anif Ali who gave PW3 the draft letter of cancellation. Therefore, it is evident that PW3's testimony cannot be used as proof that the Appellant instructed Mr Anif Ali to cancel the Initial Lease and create a new one. PW3's testimony is, therefore, inadmissible. The same applies to PW2 and PW4's testimonies whereby PW4' s testimony was based on what he was told by PW3 and PW2's testimony was based on what PW4 told h im. 63. The question that now begs to be determined is whether there was any evidence on record to justify the conviction of the Appellant in the absence of the testimony of PW3. 64. The Appellant was convicted of having procured PW3 and Michael Adonis to execute the New Lease and the cancellation letter of the Initial Lease. The New Lease appears to have been executed by Michael Adonis and PW3 on behalf of the lessor, Printech. These signatures appear to be similar or same to the ones in the Initial Lease which were similarly executed by Michael Adonis and PW3 on behalf of Printech. However, the signature endorsed on behalf of Picton is in stark contrast with the Appellant· s signature on the Initial Lease where he s igned on behalf of Copperleaf against h is name which was handwritten. 65. 1 have taken note that there was no handwriting expert called to verify the signatures on the documents adduced in evidence. However, the role of a handwriting expert does not negate the discretion of a trial court in analysing the documents or handwriting specimen and arriving at his or her own conclusion as stated by the Supreme Court in Chanda Simwaba v The People 10 thus: "The function of a handwriting expert is to point out similarities or differences in two or more specimens of handwriting and the court is not entitled to accept his opinion that those similarities or differences exist but once it has seen for itself the factors to which )22 the expert draws attention, it may accept his opinion to the significance of these factors. The case of Sithole goes on to state that: "Where an appellate court ts in as good a position as a trial court to draw inferences, it is at liberty to substitute its own opinion which the trial court might have expressed." 66. Therefore, the statement made by the respondent's counsel in their written arguments that the Appellant signed on behalf of Picton is not supported by evidence, and in the absence of evidence supporting such an assertion , I find that it was not proved that the Appellant executed the New Lease on behalf of Picton. There is, further, no evidence connecting the Appellant co the preparation or execution or procuration of execution or the New Lease. 67. An examination or the draft letter of cancellation of the Initial Lease and the signed cancellation letter printed on Printech letterhead do not indicate any input from the Appellant. 1, therefore, find that there is no evidence that the Appellant prepared the draft letter and procured the execution of the letter of cancellation by Michael Adonis. 68. Notably, the Sublease between Picton and Copperleafwas executed by the Appellant on behalf of Copperleaf on the 25"' June 2018, three days after the execution of the New Lease on 22nd June 2018, whose date coincides with the date or execution of the Initial Lease. Clause 2.1 of the Sublease states that the lease was to commence on 21" September 2018, notwithstanding the date of signing of the lease. A similar clause at 2.1 of the lnitia.l Lease and New Lease state that they would commence on 1st September 2018, notwithstanding the date of signing of the lease. However, the letter of cancellation was issued on 21 •• September 20 I 8 and it stated that the Initial Lease was terminated with effect from 20•h September 2018. J23 69. Additionally, Picton was only incorporated on 13th August 2018 by Pacific Cigarettes, the company that introduced the Appellant into Copperleaf by virtue of the management services agreement. 70. The dates on the documents create an anomaly as Picton was not in existence at the time of the execution of the New Lease and the Sublease, and the Initial Lease had not yet been cancelled at the point of the execution of the New Lease and the Sublease. Mr. Mwansa, S. C, on behalf of the Appellant, argued that although Picton had not yet been incorporated when the New Lease was executed, that could not invalidate the New Lease as Pacific Cigarette could be liable for any liabilities arising from the New Lease, thus absolve the Appellant from any liability. He referred me to the case of Faustin Kabwe and Francis Kaunda 11 where ZCCM offered for sale Ndola Primary School to Ndola Trust School Limited. At the time, Ndola Trust School was not yet registered. The court held that the sale was not irregular even if Ndola Trust School had not yet been incorporated and that if there were any liabilities, the sponsors of Ndola Trust School would be liable. Indeed, the execution of the New Lease prior to the incorporation of Picton, by itself, does not demonstrate foul play or a criminal mind on the part of the Appellant as suggested by the respondent it is not unheard-of for sponsors of a company to enter into legal relations on behalf of their yet-to be incorporated company. 71. I must mention that the respondent, in arguing to some considerable length that it is competent for a court to convict on a single identifying witness provided honest mistake is ruled out, appear to have misapprehended the gist of the Appellant's attack on the evidence of PW3. The argument was not so much about the court's competence to convict on a single identifying ,vitness. It was that the evidence of PW3 was hearsay. 1 accept that on the basis of the authorities cited above, in particular Teper v R7 and Shamwana and 7 Others v The People 8 , the evidence of PW3 was hearsay and the trial court misdirected itself in proceeding on the basis that the said evidence of PW3 was clear and J24 satisfactory in every respect. PW3"s evidence, if anything, established that the statement was made to him by Mr. Ali and not necessarily the truth of what is contained in the statement. 72. Having stated the foregoing, I, again remind myself of established principle of law that the burden of proof lies from the beginning to the end on the prosecution to prove the guilt of the Appellant beyond reasonable doubt as espoused in Mwewa Murono v The People.o From the consideration made above, it is evident that this burden was not discharged by the prosecution. The prosecution's evidence was largely based on hearsay. The trial Magistrate, therefore, wrongfully convicted the Appellant on the hearsay evidence of PW3, which was the basis of the testimony of PW2 and PW4 in respect of the Appellant's culpability. Conclusion 7 3. In the light of the foregoing, l find merit in the first, second and third grounds of appeal and I allow them. I find it unsafe to uphold the Appellant's conviction on the basis of the hearsay evidence of PW3. 74. All in all, I allow the appeal and quash the conviction and set aside the sentence. The Appellant stands acquitted and is set at liberty forthwith. 75. Leave to appeal is granted. Delivered at Lusaka this 15th da M . . HIGH COURT J25