IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CRIMINAL
APPEAL NO. 71 OF 2006

BETWEEN

WESLY
MWAMBUTSA ………………………….APPELLANT

AND

THE
STATE ……………………………………….RESPONDENT

From
the Second Grade Magistrate court sitting at Mtakataka. Being
criminal case No.40 of 2006

CORAM: HON.
JUSTICE CHINAGWA

Mr.
Kachule, Counsel for the State

Mr.
Nkhono, Counsel for the Appellant

Mrs
C. Nakweya, Court Interpreter

Miss
C. Jalasi, Court reporter

JUDGMENT

The appellant
Wezly Wambutsa appeared before the Second Grade Magistrate Court
sitting at Mtakataka in Dedza district on 28^th
July, 2006. It was on a charge containing two counts. The 1^st
count was unlawful wounding contrary to section 241(a) of the penal
code. The injured victim was Lenford Mlewa. The 2^nd
count was also unlawful wounding and the injured victim was Bamusi
Moyo. The appellant was convicted on his own plea of guilty.
He was
sentenced to 18 months penal servitude.

The appellant
through counsel Nkhono of Legal Aid Dept appeals against both
conviction and sentence. There are 4 grounds of appeals:

1. 
   The learned
   magistrate erred in law in entering a plea of guilty on the
   appellant’s equivocal plea in respect of the 1^st
   count.

   
   

2. 
   The learned
   magistrate erred in law in entering a plea of guilty on the
   appellant’s equivocal plea in respect of the 2^nd
   count.

   
   

3. 
   The learned
   magistrate erred both in law and in fact in considering alleged
   previous conduct of the appellant when the same was
   not part of the
   statements of facts and prosecution led no evidence of previous
   convictions.

   
   

4. 
   The sentence
   imposed by the learned magistrate let alone a custodial sentence was
   excessive and wrong in law.
   
   

   
   

Facts narrated in
the trial court was as follows, On 24^th
June, 2005 at about 7pm the complainant on the 1^st
count Mr Mlewa was at his house. The house is situated at Yuda
plots, Mtakataka. He was selling Dairy Board goods. The appellant

approached him asking for Embassy cigarettes. It is alleged that
appellant was drunk. From that enquiry a misunderstanding arose

which eventually developed to a fracas. The victim on 2^nd
count Bamusi Moyo attempted to stop, but the appellant injured him.

It should be
stated at the outset that the State does not support the conviction
and sentence.

Counsel Nkhono
argued grounds 1 and 2 together. His argument is that the plea of
guilty entered in both counts was equivocal and
not in compliance
with section 251 of the Criminal Procedure and Evidence Code. The
appellant said in his plea that he was defending
himself. Counsel
argues that the trial court should have entered a plea of not guilty
to allow for a full hearing. That would
have enabled appellant
chance to give his defence. I reproduce the plea of appellant on
each count.

1^st
count: I understand the reading of the charge and I admit the
charge. I admit to have wounded the complainant on his hand because

I was defending myself. I used a bottle to wound the complainant.

Court: Plea of
guilty entered.

2^nd
count: I admit the charge. I admit because on this one we were
fighting each other.

Court: Plea of
guilty entered.

We have to look at
the law specifically section 251 of the Criminal Procedure and
Evidence Code.

“section
251(1) when an accused appears or is brought before a court, a charge
containing the particulars of the offence of which
he is accused
shall be read and explained to him and he shall be asked whether he
admits or denies the truth of the charge.

2. 
   If the accused
   admits the truth of the charge his admission shall be recorded as
   nearly as possible in the words used by him and
   he may be convicted
   and sentenced thereon:

   
   

Provided that
before a plea of guilty is recorded, the court shall ascertain that
the accused understands the nature and consequences
of his plea and
intends to admit without qualification the truth of the charge
against him”

It is observed
that on 1^st
count appellant qualified his plea that he acted in self-defence.
This was not an admission of guilty. On the 2^nd
count the answer that “I admit” was an insufficient plea of
guilty. The trial court should have entered a plea of not guilty
on
both counts and proceed to full trial.

Before proceeding
any further it is important to this court to examine the position at
law regarding a conviction resulting from
a plea of guilty. This is
to be found in section 348 of the Criminal Procedure and Evidence
Code.

It provides:-

“No appeal
shall be allowed in the case any accused who has pleaded guilty and
who has been convicted by a subordinate court on such
plea, except as
to the extent or legality of any sentence imposed as a consequence of
such conviction”

It is my view that
this provision applies whenever the plea of guilty is unequivocal.
In the present case the trial court ignored
the appellant’s defence
of self-defence which he advanced. I find that this provision has no
application in the present case
otherwise it would perpetuate
injustice on appellant.

I proceed to 2^nd
ground. Counsel argues that the trial court when imposing sentence
took into account matters which were not submitted by the
prosecution. I have examined the pronouncement the trial court made
on sentence. The relevant part reads:-

“However, the
court will be lenient when passing sentence by considering his age,
being first offenders and that he admitted the
charge. But, however,
the court is forced to impose a stiff sentence still because the
offender committed similar to 2 complainants
but the cases were
withdrawn, I, therefore, sentence the convict to 18 months will
effect from date of arrest. The sentence is
subject to high
confirmation.”

It is observed
that the prosecutor informed the trial court that appellant was a
first offender. There was no mention of known
previous convictions.
It is my view that the trial was not justified to take into
consideration, in determining the quaritum of
sentence, cases which
were withdrawn.

It is also
observed that the trial court imposed a single sentence for both
counts. That was irregular. The trial court should
have imposed a
separate sentence for each count. The trial court was required to
order whether the sentences were to run concurrently
or consecutively
and date of operation. It is also a practice to state whether the
custodial term is with hard labour or light
work.

In conclusion, it
is my better judgment that the conviction be not allow to stand. It
is quashed and sentence of 18 months set
aside. I have considered
section 353(2)(a) of the Criminal Procedural and Evidence Code to
order a retrial, but it would not serve
any useful purpose.

Appeal allowed.

Pronounced in open
court on 20^th
day of October, 2006 at Lilongwe District.

R.R. CHINANGWA

JUDGE