THE HIGH COURT OF MALAWI
CASE NO. 410 OF 2005
Second Grade Magistrate Court sitting at Lilongwe. Being Criminal
Case No. 6 of 2005.
Kafotokoza, Senior Law Clerk
convict Daniel Wanda appeared before the Second Grade Magistrate
Court sitting at Lilongwe on 26th
January, 2005. It was on a charge of being Found in Possession of
Property reasonably suspected to have been stolen or unlawfully
obtained contrary to section 329 of the penal code. The convict was
convicted on his own plea of guilty. He was sentenced to
is the propriety of the conviction arising from the particulars of
offence which raises doubt. The particulars read:
Wanda on the 14th
day of January, 2005 at old town in the city of Lilongwe having been
found in possession of one refridgerator reasonably suspected
having been stolen or unlawfully obtained does
not give a good account to the satisfaction of the police how he came
by the same.
court takes issue with the statement that convict had not given a
good account to the satisfaction of the police of how he
came by the
same. What is the correct position under the penal code? Section
329 of the penal code provides:
person who is brought before a court charged with having in his
possession anything which may be reasonably suspected of having
stolen or unlawfully obtained, and who does not give an account to
the satisfaction of such court of how he came by the same shall be
guilty of a misdemeanour.
correction position at law is that a person charged under section 329
of the penal code has to give account to the satisfaction
court of how he came to posses the item in issue. It is an
established rule of practice in cases of this nature for a court
simply enter a plea of not guilty. This gives an accused person an
opportunity to explain in defence how he came to possess
the item in
issue. It is only after hearing both sides would court be in a
better position to make an informed decision whether
it is or not
satisfied with the accused persons explanation.
the present case the state misdirected itself to require the convict
to give account to the satisfaction of the police how he
possess the refridgerator. With the respect to the lower court, it
too, misdirected itself to interpret section 329 of
the penal code as
requiring convict to give a satisfactory account to the police. Such
misinterpretation was tantamount to introducing
a new criminal
offence under the penal code.
the present case convict stated in his statement under caution that
he lives at Chinsapo location here in Lilongwe. Early morning
January he left chinsapo with a view to go to Kamuzu Central
Hospital. Near Lilongwe Bottom Hospital he met two men carrying a
refridgerator. They offered him piece work to carry the
refridgerator to the bus depot at a fee of K50. Convict accepted the
offer and carried it. In the course of performing this task he was
confronted by the public to explain about the refridgerator.
two men disappeared into thin air. The public arrested him and took
him together with the refridgerator to Lilongwe police
These are the facts upon which the lower court should have made its
finding whether or not it was satisfied with the
explanation. In the circumstances it is this courts view that it
is unsafe to uphold the conviction. Consequently
the conviction is
quashed and sentence set aside.
court is reluctant to order a retrial. Therefore the convict to be
released forthwith unless held on other lawful ground.
is ordered that the refridgerator if not claimed be forfeited to the
state. Order accordingly.
in Chambers on this 18 day of May 2005 at Lilongwe.