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trial Magistrate found the appellant guilty and convicted him accordingly. After Counsel's "submissions in ^mitigation of sentence on behalf of the appellant, the learned trial Magistrate sentenced the appellant to 10 years' imprisonment and a fine of ?15,000 as prescribed by the law. The learned trial Magistrate taking the view
that he was obliged under the law to .impose a sentence of corporal punishment on the appellant, ordered that he be given 8 strokes of the cane if he was certified fit by a medical practitioner.
Attorneys on behalf of the appellant on March 21, 1986 filed a Notice of Appeal in due form against both the conviction and sentence of the appellant by the learned trial Magistrate. Five grounds of appeal were filed and they are as follows:
1.
The Learned Chief Magistrate erred in failing
to discharge the Accused at the close of the State's case as the State had failed to prove that the tablets found in Accused's possession were "Methaqualone BP otherwise known as
Mandrax" or "Methaqualone BP" or "Mandrax". Indeed the State evidence of Kruger, the expert, was exactly
to the contrary. The tablets did not fall into any of these categories.
2.
The Learned Chief Magistrate erred in holding that the letters "BP" were mere surplussage in the Act and were a red herring insofar as Appellant's argument went. The wording of legislative enactments (particularly penal -legislation) cannot be wished away.
3.
The Learned Chief Magistrate erred in holding that the prescribed substance was "Methaqualone" and not "Methaqualone BP".
4.
In any event, .the conviction was against the weight of the evidence and the Learned Chief Magistrate erred in failing to give due and proper credence to the Appellant's explanation in evidence.
5.
The sentence was unjustly severe in all the circumstances.
2.
The appeal carr.e before Murray, „., sitting in .Tancis:own in February .1987. The appellant as. well as the State were_._both represented by learned Counsel. After listening to some arguments from both counsel -in the case, Murray., J., instead of deciding the issues raised in the grounds of appeal as set down above.decided to refer to this Court pursuant to section 15 of the Court of Appeal Act
the following question:
"When a person is charged with possession of "methaqualone (BP) otherwise known as mandrax tablets" contrary to the
prohibition under Section 3 (1) (b) of the Habit Forming Drugs Act [Cap. 03:64] as amended and Statutory - "Instrument Number ^7 of 1982 is it incumbent upon the State to prove that either or both the following matters:-
(a)
the relevant substance is methaqualone in accordance with the criteria laid down in the British Pharmacopeia; or
(b)
such substance is "mandrax"; i.e.a product containing methaqualone produced by or under the authority of a person entitled by law to use the name "mandrax" on such product?"
Before proceeding further with this judgment I would like
to call attention to one matter of importance. Although the Court
of Appeal Act, section 15, says that -
"A Judge of the -High Court may reserve for consideration by the Court of Appeal any question of law which may arise during any civil or-criminal proceedings before him",
the High Court should not make it a practice to refer every point
of law, difficult or not, to this Court. The liberty given to
the High 'Court to rr.ake reference to this court for a decision
on a point of -law should be sparingly utilised. Whilst the
circumstances in which it will be proper for a Judge of the
High Court to request the Court of Appeal for a decision
under Section 15 cannot be exhaustively set down here
certain circumstances readily come to mind. It will be proper,
for example, to make such a reference when there are two decisions
of the Court of Appeal which are obviously in conflict with each other,
or which cannot be easily reconciled by the Judge of the High Court.
Similarly a reference will be proper in order to avoid a delay in arriving
at a final decision in the case. This will be so where a resolution of
a point of law by the Court of Appeal will serve as an effective resolution
of the dispute before the High Court, Otherwise High Court Judges, being
judges of a Superior Court of Record,have the responsibility to decide
all issues of fact and points of law in all cases coming before them,
and they must not abandon that responsibility. Any mistakes which
they may make in resolving difficult points of law can always be
corrected on appeal by the Court of Appeal.
In the present case, before arriving at the decision to refer, the above question to this Court for an answer.Murray, J., had given some indication as to how he would have answered the question himself. Based upon that indication he in fact released the appellant on bail. His"Reasons for Reference" to this Court run up to 20 pages of type-script. This, in my view, is most undesirable.
If after listening to argument from Counsel, the learned Judge a QUO formed the opinion that he ought to refer a point of lav/ for a consideration of this court, then-he had no business to proceed to give full consideration to that same point. His duty at that stage would be only to formulate succintly and' clearly the point of law in respect of which he required an answer. In this case, Murray J., ended
his 20 page "Reasons for Reference by saying that -
"When the Court of Appeal" has resolved "the .
question referred it is asked to remit
the matter to me either-formally to allow
the appeal or to rule on other aspects
thereof.""
-
He thereupon released the appellant "on bail until ordered to appear
Conditions of the bail were not specified. None of the
difficulties inherent in this approach by the learned Judge a quo
surfaced at the time the the reference came before this court in
July 1987. All that this Court did, after giving full consideration
to the matter under reference, was to answer yie two arms of the
quesion, namely (a) and (b), in the negative. Although Murray, J.,
was in error in saying that he was asking this court to remit the
matter to him, what this Court in fact did was to make available
to him our answers as stated. Having received the answers, the
High Court in Francistown then put the cause on the cause list
for August 19, 1987. As it happened, Murray, J., who was still
the Judge in that station was unable to take the case on that
day. There is no indication that it was postponed to any later
date. Some time after August 1987, Murray, J., left Botswana
and ceased to have the power to execise judi-eial functions in this
country.
It does not appear that any further step was taken in this
matter until March 13, 1989. Meanwhile another Judge, Aboagye,
J., _had been posted to Francistown... On-that date the Attorney who
had previously represented the appellant, Mr. Collins, received a
notice that the appeal had been set down for hearing on March 15,
1989. As at that date Mr. Collins was overseas. However, the
appeal was, on June 6, 1989, heard by Aboagye, J. The' learned Judge delivered a. considered judgment on July 3, 19892 dismissing ..the appeal in its entirety. Thereafter the appellant filed this appeal which was argued by Mr. Camp for the appellant-and Mr. Chadwich- for the-Attorney-before a full court on Monday November 27, 1989.
The arguments proferred before us- by Mr-. Camp can be summarized under four broad headings:
1.
That Aboagye, J., did not have the jurisdiction or the capacity to entertain the appeal since Murray, J., was seized of it.
2.
That it was highly prejudicial to the appellant, and not in keeping with the provisions of_our ; Constitution, for the appeal to be prosecuted • against the appellant after the extreme length of time as in this case.
3.
That in spite of the answers given by this Court to the question put to it under the reference as herein before mentioned, it is still
necessary for the State to prove that the methaqualone allegedly contained in the tablets found with the appellant is of the standard
of purity described in the British Pharmacopoeia and that it is not enough simply to show that since it is common cause that methaqualone
was present, and since the British Pharmacopoeia talks of methaqualone the methaqualone in question is British Pharmacopoeia methaqualone;
and that in any event it was still necessary for the State to prove that the pills in question were methaqualone of the "BP" variety whatever that might mean and
that the pills were known as "mandrax".
4.
That irrespective of whether or not the
sentence imposed on the appellant on March 21, -1986
was fair, but as at June 1989, it had become unfair
and the question of the legislature having prescribed
a minimum sentence had become irrelevant by
reason of the effluxion of so much time.
I shall now consider seriatim the arguments' proferred under these four broad headings. It was Mr. Camp's submission that hyperlinkMurray, J., had part-heard the appeal, Abcagye, J., had no juriscic-
tion to' confi :iue the appeal 3" the point where Murray, J., had reached in the proceedings. There had been no formal gazette notice that Murray, J., had ceased to be a judge in this jurisdiction, therefore
another judge lacked jurisdiction to complete taking this appeal,so it was further argued by Mr. Camp. In spite of the notarious fact that Murray J.,, had not performed judicial functions in this country since. 1987 and that another Judge has been posted to take his place, it was nevertheless the submission of Mr. Camp that since Murray, J., was seized
of the appeal, it was both proceduraly essential and necessary that he
should complete the appeal and that it amounted to gross injustice,
o and double jeopardy, for the appeal to bave been completed by
another judge. Although Mr. Camp admitted that he filed and argued new grounds before Aboagye, J.,and that he was given full opportunity to put before the court every argument available to him, he nevertheless submitted before us that what occurred was not a hearing
of the appeal de novo, but a continuation of the appeal. It was also his submission that if Murray, J., was no longer available and the Magistrate who
tried the case in the first instance was also no longer available, the appellant should be discharged and acquitted.
In my view all the arguments proferred by learned Counsel under this heading as set down above are untenable and devoid of substance. I fail to see how an appeal can be taken de novo save to permit the appellant to argue his appeal fully as if he had never proferred any argument before that court.- "The "only point in this case is that Murray, J., had asked this Court to give answers to a certain question of law which we had given. It was no longer open, to the appellant
either Jpefore Murray, J., or berore Aboagye, J., to advance further, argument for or against the answers given by this court. However the basis of the case of the appellant was-not that he was prevented from-proferring arguments for or against the answers given by this
court. It was that either Murray, J., should come back to this country to comp taking the appeal or the appeal should be allowed by this court. I cannot accept this startling and rather curious argument.
This takes me to the consideration of one of the difficulties which Murray, J.'s long desertation which he termed "Reasons for- : Reference" created. The appellant was apparently misled to the mistaken belief that Murray, J., would have allowed his appeal, and this was clearly the foundation of the baseless submission of Counsel for the appellant that Aboagye, J., lacked jurisdiction
in this appeal. In his Heads of Argument, learned Counsel for the appellant put it thus:
"It can be inferred with respect that his Lordship Mr. Justice Murray was inclining in a certain direction when he referred the matter to the Honourable Court of Appeal on certain points, and had formed a prima facie view. For this reason, it is submitted, he granted bail to the Appellant on lenient -conditions, when bail had been repeatedly refused before, even on appeal.
It would be highly prejudicial to the Appellant for a new Judge to dispose of the.appeal, in circumstances where the new Judge might incline to a different view from that held by His Lordship Mr. Justice Murray."
As stated earlier, Murray, J., had ended his "Reasons for Reference"
by saying that "when the Court of Appeal has resolved the question
referred it is asked to remit the matter to me to either formally
allow the appeal or to rule on other aspect thereof". Indeed the- learned. J-udge
had in fact ruled, on certain other aspect of the case-indeed a very vital aspect. . The learned Judge had asked-that Counsel should address him on the significance of the letters "BP" in the Statute. According to the learned Judge Mr.
Collins for the appellant had argued that "the letters "BP" meant, that the possession of methaqualone was only an offence if the methaqualone possessed conformed to the standard of preparation specified in the British Pharmacipeia. The counter argument of Mr.
Chadwick was that the letters "BP" were mere surplusage and could
- o
be ignored." After considering this point in six pages of typescript, the learned Judge held as follows: "I state at this stage that I find Mr. Chadwick's argument in this regard untenable. Having
regard to the authorities that I have quoted I would therefore have had little difficulty at the conclusion of argument in allowing
the appellant's appeal upon this point."
In all these circumstances it is clear that it was Murray, J., who by his long desertation gave the appellant a hope which unfortunately for him became unrealisable. In conclusion on this aspect
of the case I am firmly of the view that Aboagye, J., did not lack jurisdiction to entertain the appeal, and the appeal cannot be
allowed on this point.
The second point taken by Mr. Camp for the appellant-was that it was highly prejudicial to the appellant and not in.keeping with the
provisions of our Constitution for the appeal to be prosecuted against the appellant after the length of time which elapsed in this case. I have already given the history of this case, and I need
not repeat it here. It is on the fact of that history that. Counsel argued in his Heads of Argument that "to find-against "him (the appellant) by way of dismissing the appeal is against the spirit of the Constitution of Botswana, and is contrary to the letter of Section 10'of
the Constitution." Now Section 10(1) says that-
"If any person is charged with a criminal offence, then, unless the charge is withdrawn the case shall be afforded a fair
hearing within a reasonable time by an independent and impartial court established or recognized by law."
The only possible aspect of this provision that-the appellant could o
have had in mind would have been fair hearing "within a reasonable time". In my view this provision relates to trials of cases at first instance. I am fortified in this view by the use of the phrase "unless the charge is withdrawn", which is not applicable
to the hearing of appeals in criminal cases, where appeals are permitted by law.
In oral argument, Counsel submitted that what happened in this
case amounted to torture or inhuman or degrading treatment, contrary
to section 7 of the Constitution. According to Counsel the appellant
was-released on bail on May 8, 1987, his appeal was not finally dismissed
until July, 3 1989, when he was obliged to continue to serve the remaining
part of the term of imprisonment to which he was originally sentenced on
March 17, 1986. It is all these which in Counsel's submission amounted
to a contravention of section 7 of the Constitution. ' With.all due respect
to learned Counsel, this argument is untenable. By no stretch: of the
imagination can the provision of section 7 of the Constitution be made
to apply to the facts of this case.
- -
I have no doubt whatsoever in my mind that the appeal in this case cannot succeed on the grounds that the procedure adopted by the Court a quo contravened either section 7 or section 10 or any other section or the-spirit of the Constitution of this country.
The third broad heading of argument proferred in this case goes as follows: In spite of the answers given by this court to the question put before it by Murray, J. as set down earlier in this judgment
it is nevertheless still necessary for the State to prove that the methaqualone allegedly contained in the tablets found with the appellant
is of the standard of purity described in-the British Pharmacopeia. It is not enough, so argued Counsel, simply to show that since it is common cause that methaqualone was present in the tablets and that since the British Pharmacopeia talks of methaqualone, the methaqualone in question is British Pharmacopeia methaqualone. It was further submitted that whatever the weight accorded to the term "BP" it was still
necessary for the State to show that the methaqualone in question was "otherwise known as 'Mandrax". The State having failed
to prove all these things, it was finally argued,the conviction was wrong and ought not to be allowed to stand.
It appears obvious that all these arguments fly in the face of the
judgment of this Court given as a result of the request made by Murray,
J., in this case to which I have made reference earlier in this judgment.
In the case of Michael Mzwinila v. The State. Court of Appeal, No. 8 of
1987, this Court held in this particular case it was not incumbent upon
the State to prove -
(a) that the relevant substance is methaqualone in accordance with the criteria laid down in
the British Pharmacopeia; or
(b)
that such substance was "Mandrax", that is, a
. .~ . product containing methaqualone produced by or under the authority of a person entitled by ,lav to use the name "Mandrax" on such product.
In the later case of John Maten v The State, Court of Appeal, No.
23 of 1988, the full Bench of this Court held that methaqualone in
whatever state, combination with other substances," concentration or
percentage composition of any admixture could be properly held to
be a habit forming drug iii terms of the Habit Forming Act.
The fourth major point canvassed by Counsel on behalf of the
appellant relates to sentence. -The appellant was convicted under a
o statute which provides for a minimum sentence in respect of the
offence for which he has been convicted.Much as the Courts frown
against statutory provisions of minimum punishments, they are
nevertheless obliged to impose the minimum punishment laid down in
every case in which provision for the same is clear, unambiguous, and
not capable of any other meaning. In this case the statute lays
down in clear and unambiguous terms minimum sentences for the offence
for which the appellant has been convicted.
The Habit Forming Drugs Act section 3 as amended in 1984 says
that -
"(2) Any person who contravenes subsection (l)(a)
shall be guilty of an offence
and shall
be sentenced to all the following punishments -
(a) imprisonment for a term of not less than 10 or more than 15 years;
(b) a fine of not less than P15,000 or in :
default of payment, imprisonment for an additional term of not less than 3 or more than 5 years;
(c)
corporal punishment
"
- -
i 3
The learned trial Magistrate imposed a sentence of 10 vears' imprisonment, plus a fine of P15,000, and 3 "years' imprisonment in default of payment of the fine, and eight" strokes of
the cane. The argument which Counsel addressed t.o this Court was that the' original conviction took place a long time ago, that the appellant was on bail for a long period and that in-between his circumstances must
clearly have changed; and for these reasons we should take some evidence with a view to reducing the sentence. In view of the clear
provisions of the law, I have not been persuaded by these arguments. If the appellant hopes for an amelioration of his punishment
as regards the term of imprisonment and the fine he should look outside the judiciary. A totally different consideration, however, applies to the imposition of corporal punishment. A full Bench of this Court has held in Desai & Modi v The State, Criminal Appeal No. 9 of 1986, that the combination all the three mandatory provisions in casu is inhuman and degrading and thus ultra vires Section 7(1) of the Constitution.- This Court therefore struck down paragraph (c) of subsection (2) of Section 3 of the Act. Thereafter
it was no longer permissible for any Court in this country to make an order of corporal punishment along with the two other mandatory
punishments.
For all the reasons herein before given I will and do dismiss
the appeal of the Appellant in respect of both the conviction and the
sentence save that the order of the imposition of corporal punishment
is' herebv set aside.
DELIVERED IN OPEN COURT at Lobatse this 6 December, 1989.
T. A. AGUDA JUDGE OF APPEAL
I agree
A.N. E. AMISSAH JUDGE PRESIDENT
I agree
B. A. DOYLE JUDGE OF APPEAL
I agree
W. H. R. SCHREINER JUDGE OF APPEAL
I agree
J.C. PUCKRIN
JUDGE OF APPEAL
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