THE HIGH COURT OF MALAWI
CRIMINAL APPEAL NO. 117 0F 2005
CORAM: CHOMBO, J
Counsel for the Appellant
Counsel for the Respondent
R U L I N G
The appellant was
charged and convicted of theft by a public officer contrary to
section 283 (i) as read with section 278 of the
Penal Code. The file
was sent to High Court for sentencing and a custodial sentence of 14
years was imposed.
The appellant, not satisfied with the conviction
and sentence, appealed and the case came before Kamanga, J. who noted
that I had
handled the file on sentencing and she decided to forward
the case to my attention.
I have gone through the skeletal arguments for
both the appellant and the State and note from their submissions that
that the sum of K520,736.40 the appellant was charged with
comprised cheques and cash amounting to K77,916.40. The cheques, for
some reasons, were not cashed and therefore the money was not stolen.
The appellant did admit failing to account for the K77,916.40
that that was the amount he should have been charged with.
The appellant contends that the defect was so
gross that it cannot be cured and therefore he must benefit from such
a defect and
have the conviction quashed. In the alternative, he
argues, if he had been asked to account for the said K77,916.40 he
done so. He further submits that he should have been
asked to make restitution of the same. The sentence would therefore,
restitution, been in the range of 10 years.
have looked at the evidence on record and find that, though the
appellant was being asked for the said sums of money and other
he did not account for the K77,916.40. Appellants lawyer, in his
argument, submitted that the appellant would be willing
restitution of the said sums of money if appellant is given an
opportunity. I must remind the appellant, however, that
is voluntary. The record of the lower court does not indicate at any
point that the appellant made the application
to court to make
restitution. I have no doubt that if the application had been made,
the court would have entertained it. The
appellant has made the
offer for restitution in this court. It would be in order therefore
to order that the appellant be allowed
to make restitution thereof.
In the event of the appellant making the said restitution his
sentence will be reduced to a suspended
sentence of 2 years. The full
amount of K77,916.40 must be paid before the suspended sentence takes
effect. If, on the other hand,
the appellant elects not to make
restitution, then the sentence will be reduced to 10 years
imprisonment with hard labour effective
from the date of arrest.
in Chambers this 12th