VLOGER Simon Chitambala Mwewa on Friday traded his six-month prison sentence for a K6,000 fine, in a matter where he was convicted of malicious damage to property.
The Lusaka High Court partially upheld Mwewa’s conviction for malicious damage to property, but quashed the six-month sentence on reasons that it was extreme, as the offense committed was a misdemeanor.
The lively Tiktoker, known for eloquently commanding the queen’s language, live Facebook street broadcasts, was on January 9, 2024, sentenced to six months simple imprisonment for maliciously deflating tyres of a minibus he thought was improperly parked on Kalusha Bwalya road, near his business premises, Simoson Building, in June 2023.
Magistrate Fine Mayambu’s conviction announcement left the “national teacher of English” at sea such that, he forgot the meaning of mitigation when he was asked to mitigate his case.
Mwewa appealed against the judgement in the Lusaka High Court arguing that, magistrate Mayambu erred in law and in fact, when he held that the prosecution had proved that he deflated the tyres of the hiace mini bus belonging to Ricky Nyimbili in the face of contradictory evidence he alleged he heard air pressure coming from the left front and rear tyres and subsequently saw him walk in front of the bus with a knife whilst Frank Tembo a conductor alleged that he heard air coming from the front tyre, disembarked and saw Mwewa slit the rear tyre.
He argued that magistrate Mayambu erred in law and in fact when he established that the evidential burden of proof had been met by the prosecution with regards to his identity, as the person who deflated the tyres on account of the driver and conductor having seen him with a knife and him being known to both of them for years.
Mwewa argued that if the duo knew him personally, and he had seen him deflate the tyres as alleged, they would have confronted him upon seeing him deflate the rear tyre.
“The learned trial magistrate erred in law and fact when he established that the evidential burden of proof had been met by the prosecution with regard to the identity of the accused as the person that deflated the tyres,” he said.
“The learned trial magistrate erred in law and in fact when he did not take into account the fact that detective James Lungu, did not discharge his duty when carrying out investigations as no eye witness account was taken. The incident having taken place in congestion there ought to have been someone other than Yembo witnesssing what had happened. It was submitted that under this ground there was dereliction of duty on the part of Lungu.”
Mwew argued that the learned trial court erred in law and in fact when he found that he willfully and intentionally deflated the tyres, on account of his walking away without saying anything.
He submitted that the magistrate erred in law and in fact when he decided to sentence him to six months imprisonment, which was excessive in view of the value of the damages property, and the fact that he was a first offender.
During hearing Mwewa urged the court to take judicial notice of the fact that Kalusha Bwalya road where the incident occurred, is a very busy road and as narrated by Nyimbili, the bus was on the queue.
“It is not probable that a person would be able to walk freely with a knife in his hand, in full view of everyone without drawing attention to himself,” Mwewa said.
Mwewa submitted that the court should have opted for a fine equivalent to the value of the tyres, rather than sentencing him to six months imprisonment which was excessive for a first offender.
The State conceded that the sentence was excessive.
“In light of the law in Section 335(2) of the Penal Code the charge against the appellant is a misdemeanor which requires a sentence of an option of a fine. The trial Court should have sentenced the appellant to a fine as opposed to a custodial sentence since he was a first offender, and additionally there were no aggravating factors to warrant the learned trial court to impose a custodial sentence,”the State said.
It added that magistrate Mayambu erred in principle, when he sentenced Mwewa to six months imprisonment.
In his judgment dated November 22, 2024, Judge Mwanajiti Mabbolobbolo said he could not fault the magistrate for finding that Mwewa wilfully and intentionally deflated the tyres, when he walked away without uttering a word after his deeds.
He said if indeed it was not intentional, Mwewa could have exculpated himself in his defense for the act.
“The assertion made on behalf of the appellant that he has no history of violence, lacked a motive and is of no effect. In any event I have gleened the record and find no such evidence by the appellant which makes this a submission of evidence from the bar,”judge Mabbolobbolo said.
He said the fact that Mwewa was a first offender does not on itself, form evidence that he has no history of violence and could not have punctured the tyres of the mini bus.
“In the circumstances, I am inclined to agree that the sentence meted out on Mwewa by the learned trial magistrate of a custodial sentence, was excessive and a departure from the principles of sentencing, as the courts have applied them in a plethora of authorities,”judge Mabbolobbolo said.
He found that there were no aggravating circumstances as it appears that the magistrate in imposing a custodial sentence was carried away by what he termed his disappointment that Mwewa would act so irresponsibly for the person of his caliber.
“The learned magistrate took into account extraneous matters which should not have been the case. In the view that I have taken, ground five of the appeal must succeed.Having found merit in ground five only I partially uphold the appeal,”said judge Mabbolobbolo.
“For the avoidance of doubt, the conviction of Mwewa stands, but the custodial sentence of six months simple imprisonment is set aside. In place of the set aside sentence, Mwewa shall pay a fine of K6,000 within five days of hereof and in default of payment, to three months simple imprisonment from the date of default.”
And reacting to the recent judgment which he considered to be fair, Mwewa during a live broadcast on his Facebook page, said freedom is priceless.
“Freedom is not valuable it’s unquantifiable there’s no price to it. The (High) court has asked me to pay a fine, it’s a fair fine and the great thing is that I don’t have to go to prison,”he said.
He jeered at his haters that wanted to see him bear the cross for his misdeeds.
“I know there are some of you guys that wanted to see me go back to prison. I know you, that’s fine, that’s not a problem if that’s what you wanted am sorry you didn’t get what you wanted but that’s just life sometimes. It was fair, the judge was fair,”said Mwewa.
By Mwaka Ndawa
Kalemba November 30, 2024.
