Qian and Others v People

Country
Court
Seat of court
Lusaka
Court jurisdiction
Date of opinion
2018
Abstract

This was an appeal against the decision of the Magistrate’s court to convict and sentence the appellants for unlawful Possession of Prescribed Trophy Contrary to section 130(2) (a) and 86 of the Zambia Wildlife Act. The appellants argued that they were convicted on an indictment that did not disclose an offence; that the magistrate erred by convicting all the appellants when the first appellant had claimed complete ownership of the Rhino horns; that the magistrate shifted the burden of proof from the State to the appellants by requiring them to support their legal possession of the Rhino horns and the court failed to address its mind to the contradictory evidence of the prosecution. The court considered whether incomplete particulars of offence rendered a charge bad when the statement of offence is complete and accurate. The court was of the view that the offence was adequately disclosed despite the defective indictment and that the appellants suffered no prejudice by the omission in the charge sheet. The court also considered the issue of common purpose where the accused persons are jointly charged for an offence. It was noted that common purpose does not have to be expressed or otherwise premeditated. The court held that 4th and 5th appellant’s conviction was erroneous as there was no evidence to show their involvement in the offence. However, the court inferred the 2nd and 3rd appellant’s knowledge of the content in the bags given the weight of the Rhino horns.

Language of document
English
Reference number
[2018] ZMHC 244 (27 June 2018)
Charges
Unlawful possession of prescribed trophy contrary to section 130(2) (a) and 86 of the Zambia Wildlife Act No.14 of 2015.
Transnational
Yes
Decision
The appeal was dismissed with respect to the 1st, 2nd and 3rd appellants and their convictions and sentences were upheld. The court also granted them the leave to appeal. The appeal was allowed with regard to the 4th and the 5th appellants, their convictions were quashed and they were acquitted.
Appealed
Yes
Court cases cited
Hen,.Y Kapoko v The People 2016/ CC/ 0023
Humphrey Manyonga and other v The People' Appeal No. 121/ 122/ 123 of 2015
Phiri v The People SCZ JUDGMENT No. 53 of 2014
Isa Yona Sibale v The People (2009) ZR 4
Kenious Sialuzi v The People (2006) ZR 87
Mwewa Murano v The People (2004) ZR 207 I
Mutale and Phiri v The People (1995-1997) ZR 2,77
A.M. Madubula v The People (1994) SJ 63
Shamwana v The People (1985) ZR 41 I
Mark Herbert Kaunda v The People (1982) ZR 26
Legislation cited
Constitution Amendment Act No. 2 of 2016
Criminal Procedure Code Chap. 88
Penal Code Chap. 87
Wildlife Act No. 14 of 2015