Republic v Chizinga and Others (CRIMINAL CASE NUMBER 26 OF 2003) ([node:field-casenumber]) [2004] MWHC 60 (01 July 2004);

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         The first accused is also charged with attempting to give the above named Police officers gratification as an inducement for the said Police Officers to forbear from carrying out their duty of checking foreign currency and suspected foreign individuals on GDC trucks.
         Under Section 14 (b) of the Corrupt Practices Act, an offence of misleading officers of the Anti Corruption Bureau will be committed when the accused person has given any false information to the said officers of the Anti Corruption Bureau. The giving of such false information must be done knowingly. Section 14(b) provides as follows-
Any person who knowingly –
(a)      makes or causes to be made to the Bureau a false report of the commission of an offence under this Act; or
b)       misleads the Director, the Deputy, Director or other officer of the Bureau by giving any false information, or by making any false statements or accusations.
Shall be guilty of an offensive and liable to a fine of K100,000 and to imprisonment for ten years.”
         For an offence under the above section to be proved it must be established by the prosecution that the accused gave false information or made a false statement to the Anti- Corruption Bureau. It must also be demonstrated that the false information or the false statement were made by the accused knowingly. Further, it must be established that the false information or the false statement misled the Director, the Deputy Director or other officer of the Bureau.
As noted earlier, the second accused was charged with two counts of corrupt practices by public officers. In the first count he is alleged to have accepted the sum of K234, 160 between the period 1st April 1996 and 31st July, 1998 from GDC. He is also alleged to have accepted entertainment. It is alleged that the above was accepted as an inducement for forbearing to carry out detailed weighing of GDC foreign registered trucks.
In the second count, he is alleged to have accepted and to have solicited similar amounts from GDC Holdings Limited at Blantyre as an inducement for him to forbear the above weighing and checking of GDC trucks.
         The evidence that has come in Court is that among the monthly payments by GDC to public officers, some payment was going to Balaka Weighbridge where Mr. Phangire was stationed.
         For an offence of corrupt practices by public officers to be established against the second accused, the prosecution should prove that the second accused corruptly accepted gratification to forbear from carrying out the detailed weighing and the checking of Toll Fees on GDC trucks. It must also be shown that such weighing and checking was a concern of the Road Traffic Commission. It cannot be disputed that the weighing and checking are a concern of the Road Traffic Commission. The issues are whether the second accused accepted gratification and whether he forbore to do so weigh the trucks and check toll fees. Nevertheless, In terms of Section 33 (1) and 47 of the Corrupt Practices Act it would not be a defence on the part of the second accused to say that he did not forbear to check toll fees and weigh the said trucks as long as it is proved that he accepted or solicited gratification from GDC. Sections 33(1) and 47 provide as follows-
Section 33 (1)If, in any proceedings for an offence under any section of this Part, it is proved that the accused accepted any gratification, believing or suspecting or having reasonable grounds to believe or suspect that the gratification was given as an inducement or reward for or otherwise on account of his doing or forbearing to do, or having forborne to do, any act referred to in that section, it shall be on defence that:-
(a)     
he did not actually have the power, right or opportunity so to do or forbear;
(b)     
he accepted the gratification without intending so to do or forbear; or
(c)     
he did not in fact so do or forbear

Section 47“Where any public officer has corruptly solicited, accepted, obtained, or agreed to accept or attempted to receive or obtain any gratification, it shall not be a defence in any trial in respect of an offence under Part IV:-
(a)      that the appointment, nomination or election of such person or any other person as a public officer was invalid or void; or
(b)      that such public officer or any other public servant did not have the power, authority or opportunity of doing or of forbearing from doing the act, favour or disfavour to which the gratification related; or
(c)      that the public officer did not actually do any act, favour or disfavour to induce the gratification, or never had the intention of doing so”.   
         As it were, this section suggests that the absence of actual forbearance therefore would not be fatal to the prosecution case.
         The third accused, GCD Holdings Limited, is charged with three counts of the offence of corrupt practices with public officers contrary to Section 24 (2) of the Corrupt Practices Act and in the alternative an offence of official corruption contrary to Section 90 (b) of the Penal Code.
         It is alleged that the third accused corruptly gave gratification amounting to K234, 160.00 to Raibon Enos Mwenitete, the second accused, Tonnex Mphepo and Selwin Simfukwe all officials of the Department of Customs and Excise, The Road Traffic Commission and the Immigration department respectively and other unknown public officers. The third accused is also alleged to have invited the above persons and other unknown public officers to parties. The said sums of money and the parties, it is suspected, were given as an inducement for the above persons and other unknown public officers to forbear from collecting Toll Fees in excess of K8.6 million in the case of Raibon Enos Mwenitete and the second accused and to expedite the checking of travel documents for GDC drivers and unknown suspected passengers on GDC Holdings trucks in the case of Selwin Simfukwe.

         For an offence of corrupt practices with public officers to be proved, the prosecution must show that the third accused gave gratification to public officers. Further, for an offence of official corruption under Section 90 (b) to be established the prosecution must prove that the said third accused person gave property or benefit to persons employed in the public service. The prosecution must also prove that such giving was on account of an act or omission by the said persons employed in the public service.
         Moreover, my understanding is that in terms of section 24 of the Penal Called once a corporation is found to have committed a criminal offence every person charged with or concerned with the control or management of the affairs of the company shall be guilty of such offence. Section 24 of the Penal Called provides as follows:
         “Where an offence is committed by any company or other body corporate or by       any society, association or body of persons, every person charged with or concerned      or acting in, the control or management of the affairs or activities of such     company, body corporate, society, association or body of persons shall be guilty of      that offence and shall be liable to be punished accordingly, unless it is proven by      such person that, through no act or omission on his part, he was not aware that the      offence was being or was intended or about to be committed, or that he took all          reasonable steps to prevent its commission.”
         The above section further means that the person charged with the responsibility of running the company will be exculpated from liability if they show that they were not aware that the offence was being committed and that they took all reasonable steps to prevent its omission.

Law and Discussion

         Burden of Proof
         Section 187 of the Criminal Procedure and Evidence Code is instructive on the burden of proof in criminal trials in Malawi. The said provision is to the effect that the burden of proving that a person who is accused of an offence is guilty of that offence lies upon the prosecution. Further, in R vs. Sinambale 4, cited with approval the case of Miller vs. Minister of Pensions, is for proposition that the degree of proof required in a criminal case is a proof beyond reasonable doubt but that this does not mean proof beyond a shadow of doubt. Thus, if the evidence leaves only a remote and improbable possibility in the accused’s favour the conviction will still be justified as to do otherwise would mean that the criminal law will not adequately protect society.
         The burden of proof on all the charges the defendants are answering is on the State. The State must therefore prove all the elements of the offences charged based on the particulars asserted by the State in the Charge Sheet.
         Preliminary remarks
         The prosecution’s hypothesis
         The court has observed that the prosecution’s case rests on the theory that GDC Holdings Limited was giving gratification to public officers. Further, it is well to observe that the state is of the view that Rodrick Ibo Chizinga was acting on behalf of GDC Limited (3rdDefendant) when he allegedly gave gratification to Police Officers at Mwanza Police. Accordingly, in the event that this court finds that GDC Holdings Limited is not in any way liable I see no reason why there ought to be a case against any of the Defendants.
        
         Status of the 3rd Defendant
         State Exhibit P1 shows that the 3rd Defendant is a Malawi registered company. It is not a foreign company and does not own any foreign registered vehicles.
         Vicarious and Corporate Liability
         There is no doubt that the 3rd defendant as a corporate entity did not itself engage in the commission of an offence. It is its servants and agents who may have acted or omitted to act in circumstances giving rise to the suspicion that offences had been committed. It is therefore a legitimate exercise to determine if the 3rd defendant will be criminally liable for the actions of its servants. Generally at law there is no vicarious criminal liability for the acts of another. The only exception relates to aiding abetting counselling and procuring the commission of an offence. Moreover, being a corporate entity, a company has no mens rea of its own. For certain purposes however the mental state of key personnel of a company will be treated as the mental state of the company. Generally it is the mens rea of very senior or personnel at the Board level of a company which will be held to be the means rea of a company. Further, it was stated by Arlidge and Parry on Fraud 2nd edition as follows-
Where an offence is committed by a person whose position within a Company is such as to justify regarding his actions and intentions as those of the company itself, the Company will also be guilty of the offence”             
Arlidge proceeds further on page 199 to say that:
An officer who positively encourages or assists in the commission of the offence will in any event be guilty as an accessory. It is arguable that the same would apply to a director, at least who simply acquiesces in the fraud, on the ground that a person who has authority to prevent an offence being committed may be implicated by the mere failure to exercise that authority.””
         In the instant case the 3rd Defendant engaged a General Manager and an Accountant as its employees. The General Manager testified that he was not aware of any toll fees being evaded. The Accountant testified that funds were withdrawn from the company to pay public officers so that toll fees were not paid. He conceded in cross examination that he had never seen evidence of payment to any public officer. If it had been established by the State that these two officers were in fact carrying out orders of the Board or were doing something for the Company even if the Board was not aware of what they were doing, there would have been a possibility of the mens rea of these officers being attributed to the 3rd Defendant (GDC). From the mere delegation by the board of the functions of general manager and accountant to these officers it cannot be concluded that acts or omissions of these persons were in the realm of criminal justice the acts and omission of the 3rd defendant. In any event they did not admit to participating in the commission of any offence.
        
         Obligation to pay toll fees
         It is commonplace that toll fees were payable only by foreign registered trucks. The legal obligation to pay toll fees, therefore, rested on the owners of the foreign registered vehicles which entered Malawi. These were GDC Limitada, a Mozambican company and GDC Hauliers Limited, a Zimbabwean company.
         The offence in Count 9, against 3rd Defendant, cannot be sustained on the evidence because all the vehicles in respect of which it is alleged that toll fees were not paid belonged to foreign companies from Mozambique and Zimbabwe. Though the State offered no explanation for the involvement of the 3rd Defendant it is clear that the 3rd Defendant as a local company merely acted as an agent for the foreign companies in arranging and paying toll fees for their vehicles. The State had no legal or any right to collect toll fees from the 3rd Defendant just like the 3rd Defendant had no obligation to pay such fees.
         In a letter from the Controller of Customs to the Anti Corruption Bureau, dated 6th May 1998 the State explains how the toll fee collection system was managed. Several points appear from this letter which ought to have been answered or explained by the State but which were ignored. These are:
1)      
The Department of Customs & Excise maintained the records regarding the payment of toll fees;
2)      
Receipts for all payments were in existence but could not be produced by Customs because they were surrendered to the Treasury Cashier;
3)      
Only foreign registered vehicles pay toll fees.