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S v Korong (CLCLB-005-08) [2008] BWCA 27 (24 April 2008)

.RTF of original document


IN THE COURT OF APPEAL FOR THE REPUBLIC OF BOTSWANA
HELD AT LOBATSE

                                                                       
Court of Appeal Criminal Appeal No. -08


In the matter between:

AKANYANG KORONG                                      Appellant

and

THE STATE                                                              Respondent

Appellant in person
Mr J. J. Matomela for the Respondent


JUDGMENT


CORAM:   TEBBUTT JP
                  ZIETSMAN JA
                  FOXCROFT JA


FOXCROFT JA;
At the conclusion of the hearing of this appeal, the following order was made;

1.      
(i) The appeal succeeds to the extent that the conviction of the appellant under section 9 (1) of the Arms and Ammunition Act (Cap. 24:01) as read with Section 9 (5) is set aside and there is substituted therefor a conviction under section 9 (1) as read with section 9 (4) of the Act.

(ii) The sentence of Five (5) years’ imprisonment imposed in terms of Section 9 (5) is set aside and substituted with a fine, in terms of Section 9 (4), of P50.00 (Fifty Pula) to be paid within seven (7) days of the appellant’s release from prison as ordered in paragraph 2 below.

2.      
The appellant, who is presently in prison in consequence of this offence, be released forthwith.

The reasons are as follows:-
The Appellant was charged with unlawful possession of certain ammunition in contravention of the Arms and Ammunition Act, Cap 24:01. The charge sheet read as follows:

SINGLE COUNT
STATEMENT OF OFFENCE
Possession of Ammunition of War without a licence contrary to Section 9 (1) (5) of the Arms and Ammunition Act Cap 24:01 of Botswana Laws.

PARTICULARS OF OFFENCE
The accused person on the 30th March 2005 at Gaborone West in the Gaborone Administrative District had in his possession seventeen (17) life (sic) rounds of 7.62, twenty-five (25) life (sic) rounds of 9mm and three (3) hand grenades bottles without a licence.

As Kirby J pointed out in his judgment in the court a quo, this was an incorrect citation of the relevant sections. The charge should have stipulated;

“contrary to Section 9(1) read with sections 9(4) and 9(5)”

It is clear from the record that no prejudice resulted from this faulty citation of the relevant sub-sections.

What is of more significance is that although reference is made in the statement of offence in the charge sheet to “possession of ammunition of war”, this is not mentioned in the particulars of offence.

A similar approach to the framing of the charge was adopted in Phineas Ramokate vs The State CA Criminal Appeal No. 13/2004. At page 5 of the judgment of Zietsman JA in that matter, the Learned Judge of Appeal said the following;

“In view of the fact that the prescribed sentence for possession of an arm and ammunition of war is so much greater than for the possession of an arm or ammunition which is not an arm of war, it is essential that the State, when charging a person with being in possession of an arm or ammunition of war, must pertinently draw the attention of the accused person to the fact that he is being charged with the much more serious offence, and that if he is convicted he will become liable to the more serious sentence set out in Section 9 (5) of the Act. See in this connection the judgment of this court in the case of David July and Another v The State (Criminal Appeal No. 11 of 2002).

In my opinion, in the present case, although reference is made to “arm and ammunition of war” in the Statement of Offence the charge sheet, read as a whole, does not contain a sufficient indication to the accused that the State intends to charge him with the more serious offence described in Section 9 (5) of the Act. The question, however, is whether the Appellant was in any way prejudiced by the inadequate wording of the charge sheet. If he was at all times fully aware of the fact that he was being charged with the more serious offence, and that if convicted he would be liable to the sentence set out in Section 9 (5), it can hardly be said that he suffered any prejudice”

Zietsman JA went on to note that the Appellant in that matter was an ex-police officer who had held the rank of Sub-Inspector. He had been given a copy of an affidavit by Captain Matebesi containing a reference to the finding that the pistol in that case was an “arm of war”. What also appeared was that the Appellant Ramokate, during the course of his trial, when referring to the affidavit said;

“Police charged me of a (sic) more serious offence”

Ramokate also cross-examined Matebesi at length on his evidence that the pistol in that matter was an arm of war.

What is the position in the matter before this Court? It appears that the charge was read over and explained to the Appellant in Setswana, who acknowledged that he understood it. He was not asked to plead since investigations were ongoing and exhibits had to be analysed.

On 24 May 2005 the Public Prosecutor indicated to the Court that an affidavit had been received from the Botswana Defence Force but that it was defective. He applied for an amendment to the particulars of the offence in line 3 thereof to correct the calibre of the ammunition and only that. The changes appear from an examination of the original and amended charge sheets at page 10 and 11 of the record.

The amended charge was put to the Appellant and he pleaded guilty. The case proceeded the following day and a statement of facts was read to the Appellant and marked “A”. That document is not before this Court and Mr Matomela was not able to shed any light on it.

The Appellant then acknowledged that he had heard the written statement of facts and that they were correct. He admitted that on 30 March 2005 he was found in possession of 17 live rounds of 7.62, 25 live rounds of 9 mm and 3 hand grenade bottles. He admitted that possession of these items was unlawful but added;

“However, by the time I received the exhibited items I thought they were not live”.

The Magistrate then, quite correctly, entered a plea of “not guilty” (record page 18)

The Investigating Officer Detective Sergeant Stephen Khethiwe (PW2) testified in relation to the events of 30 March 2005. He was informed by a Constable that two men had been arrested on suspicion of transporting stolen goods. He questioned the Appellant who confirmed that he had resigned from the Botswana Defence Force.

PW2 also saw ammunition, 3 hand grenades, 3 thunder flashes and a bottle of camouflage cream. The ammunition found formed the subject of the charge but the hand grenades did not unless what the Investigating Officer (PW2) saw were the hand grenades bottles which did feature in the charge sheet. Thunder flashes do not appear in the charge sheet.

The appellant explained to PW2 that he had obtained these items from a “training” conducted by British and Botswana Military personnel. PW2 cautioned him about the need for a licence. Appellant had no licence.

The Investigating Officer also testified that he would send the ammunition to the ballistic technician to confirm or determine whether they were ammunition of war or not.

He did not say what the Appellant’s response, if any, was or whether he understood the significance of his remark. Later, after testing of the ammunition, he served a copy of Matebesi’s affidavit on the Appellant. He did not inquire into the truth of what the Appellant said about being given the ammunition by British/Botswana Training Instructors;

“…because I did not believe that it was lawful for anyone to possess such kind of items without a licence”.

In his testimony, the Appellant confirmed previous testimony of state witnesses and added

“I told the Investigating Officer that I did not know if the ammunition were (sic) harmful or not and I did not know if they were genuine or not. I further told him that I used them as part of decoration in my house”.

In answer to the Court, he added that he “knew them to be training ammunition which were harmless”.

The training course had lasted three months. Under cross-examination, Appellant admitted that

“After the affidavit (Exhibit P4) came out I realized that it was unlawful for me to keep these items”.

The obvious inference from this statement is that he had not appreciated the unlawfulness of the possession before he saw the affidavit. The penultimate question put to him was

“Are you now admitting that you were in unlawful possession of ammunition of war”?

The Appellant answered in the affirmative and was then asked;

“So are you admitting that you were in unlawful possession of the exhibited live ammunition”?

He answered;

“Yes, I do, in fact I had pleaded guilty right from the beginning”.

The Appellant’s final answer reflects, to my mind, what he thought the case was about, namely possession of live ammunition without a licence. That is what the particulars of the offence stated and there is nothing in this record to show that he appreciated that he was at risk of being convicted of the much more serious charge of possession of arms of war as envisaged in Section 9(5) of the Act.

It is also worth noting that as Zietsman JA pointed out in the earlier decision in Gare v The State (2001) BLR 143, CA;

“Section 10 of the Constitution of Botswana provides, inter alia, that a person charged with a criminal offence must be afforded a fair hearing and must be informed, in a language which he understands, and in detail, of the nature of the offence”. (emphasis added)

This being the case, the Appellant was certainly prejudiced by the inadequate wording of the charge sheet. It was not pertinently drawn to his attention that he would become liable, if convicted, to the far more serious sentence provided for in sub-section 9(5). What is more, he was unrepresented. See Ramokate’s case (supra) at page 5 and David July and Another vs The State (Criminal Appeal No. 11 of 2002.)

When the attention of Mr Matomela for the State, was drawn to these decisions, he very properly did not press for the conviction under sub-section 9(5) to be upheld and suggested that the Appellant be convicted under sub-section 9(4) of the Act. This was certainly a competent finding on the evidence, and an offence to which the Appellant had pleaded guilty.

The order substituting a fine for the sentence of imprisonment was accordingly made together with a direction that he be released from prison forthwith.

DELIVERED IN OPEN COURT AT LOBATSE THIS …. DAY OF APRIL 2008.


-----------------------
J. G. FOXCROFT
JUDGE OF APPEAL



I agree           -------------------------
                                                                        P. H. TEBBUTT
                                                                        JUDGE PRESIDENT



I agree           --------------------------
                                                                        N. W. ZIETSMAN
                                                                        JUDGE OF APPEAL
                                            

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