Chukwu v The State (Criminal Appeal No. 6/2000 ) [2000] BWCA 11; [2000] 2 B.L.R. 17 (CA) (1 July 2000)

The Appellant (as accused No.2) and one Jude Okafor (as accused No.1) were found guilty by the senior magistrate in Gaborone on a charge of possession of cocaine in contravention of Section 16 (1) (b) of Act No. 18 of 1992 and they were each sentenced to the minimum sentence of 10 years' imprisonment together with a fine of P15,000 00 or in default of payment thereof a further 3 years' imprisonment.

They both appealed to the High Court against their convictions and sentences. Jude Okafor's appeal against his conviction succeeded and his conviction and sentence were set aside. The present appellant's appeal failed and his conviction and sentence were confirmed. He was however given leave to appeal further to this court against his conviction.

In his judgment on appeal to the High Court Lisimba J. makes the allegation that the trial magistrate failed to take a plea from the appellant. He however concluded that this irregularity was not material and that there was no prejudice to the appellant as the trial proceeded on the assumption that the appellant had pleaded not guilty to the charge. It appears from the record however that Lisimba J. was mistaken. The record indicates quite clearly that the appellant in fact pleaded not guilty to the charge. It is in the circumstances not necessary for us to deal further with this point as no irregularity was committed.

The most important State witness at the trial was Sinah Page Vlug, a 19 year old student. She stated that she met the appellant in June 1996. She gave him her telephone number and he later contacted her and spent a night with her at her parents' home in Otse. He thereafter kept in telephonic contact with her and during

September or October 1996, he told her telephonically that he wanted to send her a present. During December 1996 she received a parcel slip from the post office indicating that a parcel had been sent to her from England. She fetched the parcel and found that it contained two folders or desk pads in two separate manilla envelopes which had evidently been posted originally from Lima, Peru. Each envelope also contained a Christmas card written in Spanish. It later appeared to Sinah that the folders had been tampered with, and on the advice of her father she took them to the police. The folders were found to contain packets of cocaine and the police told Sinah to contact them if anyone claimed the parcel.

A week later Sinah received a telephone call from the appellant and he asked her whether she had received any parcels. As instructed by the police Sinah told him that she had received a parcel slip but that she would have to pay P50.00 to retrieve the parcel from the post office, and she asked the appellant to go to her home the next morning. Sinah reported this conversation to the police. Superintendent Kebonyemodisa then arranged for one of the envelopes containing one of the folders and some of the cocaine to be returned to the post office, and for a further postal slip in respect thereof to be given to Sinah.

The next day the appellant and Okafor arrived at Sinah's home. Sinah showed them the parcel slip which they carefully examined, and the appellant then said that they should all go and collect the parcel from the post office. The appellant gave

Sinah the required P50.00 and she duly retrieved the parcel while the appellant and Okafor stood outside the post office. The three of them then proceeded back to Sinah's home. When they arrived there Okafor left them to go and purchase cigarettes from a nearby garage. At Sinah's home the appellant asked her to accompany them to Lobatse. She said that she would have to change her clothes first and she handed the parcel containing the cocaine to the appellant. She went into her house to change her clothes and came out with a plastic bag into which the appellant placed the parcel. The appellant and Sinah then walked in the direction of the garage to which Okafor had gone. The appellant was then carrying the plastic bag containing the parcel.

The movements of Sinah, the appellant and Okafor had been under police surveillance and at the garage the police, who had already arrested Okafor, arrested the appellant and Sinah.

Sinah's evidence is supported by the evidence of her mother, Elizabeth Vlug, her father, Gerit Vlug, Anastacia Molefi, the senior postal officer at the Otse post office, and superintendent Kebonyemodisa.

The appellant and Okafor declined to give evidence at the trial but they both made unsworn statements. In his statement the appellant merely admitted having

At the hearing before this Court, the appellant argued his case in person. He submitted that Sinah's evidence that he had asked her whether she had received any parcels, and her evidence that he had supplied the P50.00 for the parcel, should not have been accepted by the magistrate. There was no evidence at the trial to contradict Sinah's evidence and the magistrate correctly accepted her evidence.

Even on the acceptance of Sinah's evidence the appellant argued that his guilt had not been proved beyond a reasonable doubt. He submitted that it had not been proved that he had known Sinah's address and that he therefore could not have arranged for the parcel to be sent to her. It is however clear from the evidence that he had visited Sinah at her home and had slept there, and he therefore must have known her address.

The appellant submitted that it had not been proved that he was the person who had dispatched the parcel to Sinah, or that he was aware that the parcel had been sent to her. It was however proved that he told Sinah telephonically that he wanted to send her a parcel, and he later telephoned her and asked her whether she had received any parcels. When she told him about the parcel slip he proceeded to her home, carefully examined the slip, provided the P50.00 needed to retrieve the

parcel and accompanied her to the post office for that purpose. The only reasonable inference to be drawn from these facts is that the appellant had been aware of the fact that the parcel would be sent to Sinah. His particular interest in the parcel is also an indication that he knew what the parcel contained.

The appellant submitted further that it had not been proved that he possessed the parcel at the time of his arrest, arguing that his mere detention of the parcel handed to him by Sinah did not prove an intention on his part to claim or to control the parcel. Sinah however stated specifically in her evidence that the appellant did not hold the parcel on her behalf, and from the facts to which I have already referred it is clear that the appellant had a direct interest in the parcel and intended to control and to possess it.

The appellant's final argument was that the police had set a trap for him, and referring to case such as R v. Vlok and Vlok 1954 (1) SA 203 (S.W.) and Brannan v. Peek 1947 (2) AER 572 (K.B.) he submitted that the court should have expressed its concern and disapproval of the method used to trap him, and should not have accepted the State evidence. This is however not a trapping case, where an innocent person has been tempted and persuaded by the police to commit an offence. In this case Sinah and her parents acted responsibly in reporting to the police the suspicious circumstances surrounding the parcel received by Sinah, and the plan adopted and put into operation by the police was designed simply to

IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
Court of Appeal Criminal Appeal No. 6/2000 High Court Criminal Appeal No. 85/1998
In the matter between:
PHILLIP KINGSLEY D. CHUKWU Appellant
and
THE STATE Respondent
Appellant in Person
Mr. F. K. Mpopang for the Respondent

The most important State witness at the trial was Sinah Page Vlug, a 19 year old student. She stated that she met the appellant in June 1996. She gave him her telephone number and he later contacted her and spent a night at her parents' home in Otse where Sinah was living. He thereafter kept in telephonic contact with Sinah

and during September or October 1996, he told her telephonically that he wanted to send her a present. During December 1996 she received a parcel slip from the post office indicating that a parcel had been sent to her from England. She fetched the parcel and found that it contained two folders or desk pads in two separate manilla envelopes which had evidently been posted originally from Lima, Peru. Each envelope also contained a Christmas card written in Spanish. It later appeared to Sinah that the folders had been tampered with, and on the advice of her father she took them to the police. The folders were found to contain packets of cocaine and the police told Sinah to contact them if anyone claimed the parcel.

The movements of Sinah, the appellant and Okafor had been under police surveillance and at the garage the police, who had already arrested Okafor, arrested the appellant and Sinah.

The appellant and Okafor declined to give evidence at the trial but they both made unsworn statements. In his statement the appellant merely admitted having

Botswana: Court of Appeal

Chukwu v The State (Criminal Appeal No. 6/2000 ) [2000] BWCA 11; [2000] 2 B.L.R. 17 (CA) (1 July 2000)