R v Uzioigwe (Case No. 03 of 2024 (Being criminal case No. 05 of 2024)) [2024] MWHC 61 (20 November 2024)

ES y | j . Eo 5) } 10 bee anzh | SEE _os\ UvoNewe Resisrey oP gots” PRIVATE BAG 15 LILONGWE * os ee JUDICIARY wre IN THE HIGH COURT OF MALAWI es LILONGWE DISTRICT REGISTRY FINANCIAL CRIMES DIVISION CRIMINAL APPEAL CASE NUMBER 03 OF 2024 Being Criminal Case No, 0S of 2024 before the SRM Court Sitting at Muka] ‘THE REPUBLIC VERsus ANNE NCHEKUBECHUKWA UZIOIGWE

Coram

HON. JUSTICE VIOLET PALIKENA-CHIPAO P. Masiye, Counsel for the Appellant . Khonyongwa, Counsel for the Respondent ‘Ms, Mkochi, Court Clerk Ms. Lupwayi, Court Reporter Chipao J JUDGMENT ON APPEAL. 1+ The Respondent, Anne, Nchekubechukwa Uzioigwe, was convicted of offence of illegal Possession of foreign cumteney contrary to Regulation 25(1) of the Exchange Control Regulations as read with Regulation 25(5) ofthe Exchange Control Regulations made the under Section 3 of the Fxchange Control Act. He was also convicted of the offence of atempsing (o illegally transfer foreign currency out of Malawi contrary to Regulation NM (ofthe same Regulations made under Section 3 of the same Act.

2. ‘The convict was found with USS48, 200 as she was about to board a flight for Nigeria at Kamuzu International Airport. She was sentenced to a fine of K500,000 forthe first count and K1, 500, 000 the second count, The trial The trial Court further on that that the foreign currency found on the convict be retumed to her.

3. ‘The State being dissatisfied with the order of the lower court directing the return of the foreign currency to the convict, filed the present appeal with this court against the ordet. ‘That appeal was made pursuant to section 350 of the Criminal Procedure and Evidence Code (the CP & EC). The grounds of the appeal are as follows:

1) That the Trial Magistrate erred in law in failing to property apply the mitigating and aggravating factors of the offences charged.

2) That the ‘rial Magistrate misconstrued the case of Kamanga v. Republic MIR. 187 when it was considering extenuating circumstances that require the court to exercised its sympathetic considerations before deciding whether or not to make An order or forfeiture of foreign exchange.

3) That the ‘Trial Magistrate erred in law by holding that returning for the foreign ‘currency to the respondent would not confer any benefit on the respondent

4) That the Trial Magistrate erred in law by holding that forfeiture would not serve the purpose of preventing crime in their circumstances.

5) That the Trial Magistrate erred in law by holding that the order of K2,000,000 which the tial court made was sufficient to deter the respondents from committing similar offences

6) That the tial magistrate improperly exercised its diseretion and misdirected itself in law by disregarding settled legal principles dealing with application of forfeiture.

4, The State therefore prayed that order restoring back the foreign exchange (forex) to the convict be set aside and that the forex be forfeited to the government in ful

Appellants Arguments on Appeal

5. On the first ground of appeal, the State observed that in its sentence, the Trial Court considered a number of aggravating and mitigating factors but did not properly apply the aggravating factors of the offence. the mitigating factors considered by the Trial Court were as follows:

(a) That the convict is a first offender

(b) That she demonstrated that in her 19 years of doing business, she has complied with

the laws of Malawi which include paying taxes (€) That She cooperated with the police soon after her arrest, including making a confession and an admission voluntarily. On aggravating factors, the Trial Court considered the following: a. The huge sum of money involved.

b. The circumstances of the offence

¢. Dishonesty in that when asked if she had foreign currency, the contract said that she ‘had US$10,000 and hid the rest.

4. The convict produced fake receipt.

©. Shortage of forex as such the offence committed by the convict affected the whole country.

6. ‘The State argued it is worth noting that the lower court had agreed that the respondent is a businesswoman and that she was dishonesty in that she hid the foreign currency so that she ould not be detected by the police officers. The State argued on the authority of the case of Republic v. Ashraf Bdallal E1AH Criminal Appeal Case Number 7 of 2012 that there is xno room for sympathy where there is blatant calculation and evidence of being a business Person whose intention was to exploit the system for personal benefits. The State argued ‘that with this and other aggravating factors, the Trial Court was supposed to order forfeiture,

7. Onthe second ground of appeal, the State argued that the law is to the effect that an accused person must show extenuating circumstances why foreign currency should not be forfeited. For this proposition, the State cited the case of Kamanga v. Republic [1975-77] 8MLR

187. The State having narrated the facts of the case argued that in arriving at its decision ,

the Court in the Kamanga v. Republic Case relied on the Phiri x. Republic Criminal Appeal Case No 88 of 1975 (Unrep) and that both cases were similar in that the Court considered the age of the convicts, the ways money was obtained, the possibility of replacing the same if forfeited and the circumstances in which the foreign currency was obtained,

8. The State argued that the present case cannot be compared with the above cited cases, It ‘was further argued that the Trial Court considered mitigating factors as extenuating circumstances. The State quoted the following passage from the Trial Court’s sentence;

The convicts further asked this Court to consider that there will be loss of livelihood for both her family and eight people she and her husband have employed in the shop. She States that the money is from her business which she will has built over 19 years and if it is forfeited the outcome would be devastating and catastrophic! 48, 200 USD is a considerable huge sum of ‘money; 1 am inclined to believe that it forms a large part of her business and ‘hat if forfeited it will indeed have dire consequences not only for her but also the eight employees. Therefore, as in Republic v. Kamanga (supra) I proceed fo consider the loss of livelihood for her and her employees as an extenuating circumstance,

Having concluded that there are extenuating circumstances which include the likely loss of livelihood for her and her workers, that she is a first offender and she pleaded guilty. forfeiture as prayed by the State is not necessary: ‘emphasis ows,

9. ‘The State argued that it is clear that the Trial Court failed to distinguish the case of Kamanga v Republic [1975-77] 8 MLR 187 in that the respondent was an old man, the money represented his entire life savings which he would be unable to replace by further employment whilst in the present case, the respondent is only 39 years old, the money does not represent her entire life savings that cannot be replaced. The State further argued that the respondent is a businesswoman and she should have been aware of the laws on exchange controls. The State further argued that not every loss of livelihood amounts to extenuating circumstances. It was the state’s argument that the facts must be considered in their totality.

10. The State further argued that there is no mercy where there is blatant calculation of commission of a crime and evidence that the respondent is a business person with intention to exploit the system for personal benefit. For this, the State cited the case of Zheng Yan % Republic Criminal Appeal Case No. 142 of 2009 (LL)(Unrep); Republic v. Ashraf Baallal E1 Ali Criminal Appeal Case Number 7 of 2012 (LL) (Unrep).

11, The State combined grounds 3, 4 and 5 in arguing the appeal. Under these three grounds, the State cited the case of Republic v. Henery Kopa Criminal Appeal No. 104 of 2016 ‘where the convict was sentenced to a non-custodial sentence of community service and the currency was not forfeited to the government and the High Court had this to say on appeal:

When all issues are factored In the matter at hand, one is persuaded to find that in ‘ordering that the respondent be given back an equivalent of the currency that was confiscated, the same being done in the absence of an imposition of a fine, the respondent was being allowed to benefit from his crimes. Coupled with the fact that the court imposed a non-custody of community penalty of community which the respondent could met out at his leisure was a mockery of justice system. Leniency with offenders does not mean rendering the criminal justice system defunct by rewarding criminals. ‘The exercise of judicial discretion in favour of the responding by failing to impose «a fine and thereafter ordering reimbursement of the confiscated matter as he was 10 perform community service was, in the circumstances, a penalty that was inordinately inadequate so as to constitute a sharp and extensive departure from well-established principles of law.

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