REPUBLIC OF MALAWI

IN THE PRINCIPAL RESIDENT MAGISTRATE COURT

SITTING AT NKHATABAY

CRIMINAL CASE NO. 145 OF 2020

THE STATE

-VS-

ARTHUR MHANGO

RAY CHILIZWAZWA BANDA

CORAM: H/W PETER M.E. KANDULU, PRM

Sup. Mchawi & Arthur Nyirenda, Public Prosecutors.

Ngwira and Mbotwa, Counsels for Accused Persons.

Allan Sibale, Court Clerk

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 SENTENCE

A. INTRODUCTION
1. The Convicts, Arthur Mhango and Ray Chilizwazwa Banda were convicted on 15th
December, 2021 on three counts to wit being found in possession of specimen of
endangered species without licence contrary to section 110A(b) of the National Parks and
Wildlife Act, illegal holding of fish which contravenes section 16(1) as read with section
45(2) of the Fisheries, Conservation and Management Act and taking of specimen of
endangered species without licence contrary to section 47 (1) as read with section 110A
(a) of the National Parks and Wildlife Act. The court’s conviction came after fully trial.
2. The first convict was employed by the second convict at the latter’s company based in
Salima known as Chiliga Aquatics. At all material times the first convict assumed the role
of a manager whereas the second convict was a Director.
3. On or about 1st day of October 2020 the first convict was found at Njaya Beach in
possession of 1200 pieces of Cichlids (Mbuna fish) valued at MK8, 470,000.00. He was
arrested and later on his Director was arrested as well. When called upon by the police and
Fisheries officials to produce a licence they failed to do so.
4. They all denied the charges and the state went on to parade a total of eight witnesses in
order to discharge its burden of proving the case beyond any reasonable doubt that the two
accused persons had no valid licence at the time the crime was committed.
5. At the conclusion of the case, they were all convicted. It is now time to consider to impose
an appropriate punishment for them.
B. ANTECEDENTS AND MITIGATING FACTORS
6. The State informed this Court that the convicts are first time offenders. However, despite
being first time offenders, they pleaded not guilty, while all aware that they did not possess
a valid permit to possess mbuna fish when they committed the offence. They had wasted
courts time and resources. They premediated to the commissioning of the offence. There
was loss of income as some mbuna fish died when the oxygen which was being supplied
to the tanks by the convicts had run out.
7. The state informed the court that offences of that nature are rampant not only in the north
but across Malawi. Therefore, the State asked this Court to pass a sentence befitting the
offenders and the crime.

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 8. In mitigation, counsels for the convicts told the court that the convicts are first time
offenders to get involved in the commissioning of the crime. It was their submission that
they deserve a non-custodial sentence and a fine would be most suitable in the instant case.
The defence submits that there was no loss to the Fisheries Department. They submits that
there was evidence that when the mbuna fish was found with the convicts, most of them
were put back alive into the lake of Malawi, hence no loss or harm occasioned to the
species.
9. Counsel for the first convict submits that the 1st convict was a mere employee of Chiliga
Aquatics Company, hence it was not his duty to renew the licence, but his employer was,
hence he deserve lenience.
10. Counsel for the 2nd convict submits that the 2nd convict was of advanced age 64 years old.
He cooperated with both the State and the court throughout the proceedings from the time
of arrest up to the time of conviction, he suffers high blood pressure and that coupled with
his old age it is in a very deteriorating state.
11. Counsels have submitted that the court must remember that a shorter sentence should just
be effective as a longer sentence, especially to first time offenders. They cited Rep versus
Phale and Another (1991) 14 MLR 438 (HC).
12. They also cited R v Chiboli (1997) 2 MLR 89 which interpreted section 340 of the Criminal
Procedure and Evidence Code that first time offenders, a custodial sentence should be
suspended and where it is not suspended a reason must be given.
C. ANALYSIS OF ANTECEDENTS AND MITIGATION
13. In order to arrive at an appropriate sentence this Court will have to weigh the mitigating
and aggravating factors. This involves considering the extent and the circumstances in
which the crime was committed, the personal circumstances of the offenders, the impact
of the crime on the economy of Malawi, and the public interest: Republic vs. Nazombe
[1997] 2 MLR 108.
14. Circumstances escalating or diminishing the extent, intensity or complexion of the actus
reus or mens rea of an offence go to influence sentence. Sentencing court must from
evidence during trial, received in mitigation, balance circumstances affecting the actus reus
or mens rea of the offence: Republic vs. Kachule (Confirmation Case No. 234 of 2001).

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15. A just sentence not only fits the crime; it also fits the offender. As such, apart from
circumstances around the offence, the sentencing court should have regard to the offender’s
circumstances generally, before, during the crime, in the course of investigation, and during
trial: Republic vs. Kachule (as cited above).
16. It is trite that the courts bears sentencing discretion. However, there is a distinction
between sentencing principles and the purpose for sentencing as distinguished in the case
of Rep v Nkhoma Confirmation case No.3 of 1996 (unreported).
17. Kachale J noted in Rep v Bester Kamayanika, Criminal Review No.7 of 2021(unreported)
what the judge said in the case of Nkhoma (supra) by emphasizing that the sentencing
court cannot attain any of the purposes of sentencing (such as retribution, deterrence,
incapacitation, reformation and rehabilitation) at the expense of the sentencing principles.
18. Sight should not be lost that the sentencing court must have regard to the nature and
circumstances of the offence, the offenders and the victims and the public interest hence
an appropriate sentence must achieve proportionality, equality as well as restraint.
19. On the nature of the offence (s) which the convicts herein have been convicted of, Section
110A(b) of the National Parks and Wildlife Act provides for the offence related to
endangered species is couched in the following manner:

Any person who is convicted of an offence involving: Possession of,

20. Section 110 A(c) & (d) of the National Parks and Wildlife Act provides for the sentence
befitting those convicted of the offences related to endangered species:
c) The contravention of provision of this Act which provides for the
conduct of a licensee under a professional hunter’s license or
d) the contravention of sections 33, 35 (c) and 38 of this Act, shall be
liable to a fine of K15,000,000 and to imprisonment for a term of thirty
years and in any case the fine shall not be less than the value of the
specimen involved in the commission of the offence (emphasis supplied).

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21. Considering that the convicts herein have been convicted for a violation of the National
Parks and Wildlife Act, the court should be guided by the six-stage analysis set forth in
the ‘2017 Sentencing Guidelines for Wildlife Crimes in Malawi Courts’.
22. In the present case, the first and second stages of the Sentencing Guidelines calls for
determination of the relevant punishment which should befit the offence under
consideration as well as a consideration of minimum and maximum penalties so that the
seriousness of the offence(s) is appreciated. Hence, a plain meaning of section 110 A(c)
& (d) of the National Parks and Wildlife Act which provides for a fine of K15 million and
maximum term of thirty years imprisonment with hard labour clearly justifies the
seriousness of the offence(s) which the convicts herein have been convicted on.
23. In Ayami v R (1990) 13 MLR 19 (MSCA) the court stated that in considering the
appropriateness of a sentence, it is imperative to evaluate the extent of the crime, the effect
on the victim (victims) and the circumstances in which it was committed and come up with
a sentence which is appropriate in that particular case.
24. The convicts herein had a premeditated mind which was well executed because they had
full knowledge that the license had expired, and they were not supposed to make any
transaction in the absence of the said license. It is because of the foregoing reasons that the
state is of the view that evaluating the extent of the crime by seriously looking at the
economic value that the mbuna fish brings to the economy of Malawi through attraction of
tourists, the convicts herein deserve a deterrence sentence.
25. In the case of R v Chilemba (Confirmation case No. 354 of 1999), it was noted that:
courts should, when passing sentences be guided by public interest. The
object is not only to punish the offender but also to prevent the crime.
Punishment should not be so negligible as to encourage would be
offenders who may wish to gain from criminal activities
26. The public interest in this case rests on the economic value that mbuna fish brings to
Malawi and the extinction of this endangered species would mean downscaling the rate at
which tourists would be visiting Lake Malawi.
27. Despite the convicts being first time offenders, the state submits that they should not benefit
from the provisions of sections 339 and 340 of criminal Procedure and Evidence Code
which is to the effect of considering a suspended sentence to first time offenders. However,

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 the said section 340 of Criminal Procedure and Evidence Code empowers the courts to
melt custodial sentences to first time offenders where they are justified reasons. The state
is of the opinion that in the present case the convicts deserve a fine and a custodial sentence.
28. The defence has objected to the custodial sentence, they have argued that if custodial
sentence is to be imposed by the court, the same should be suspended because according
to their submissions, there was minimal loss to the Fisheries department as most of the fish
was put back alive into the waters of Lake Malawi. Additionally, at least, the convicts had
a licence only that it got expired and they had made application for renewal, it was only
the Fisheries department that was delaying to renew the said licence. It was their
submission that the court should impose a fine in the instant case.
29. The state argues that additionally, the convicts pleaded not guilty thereby it can be argued
that they did not show any remorse and wasted court’s time. Over and above, the crime
committed has had great negative impacts on the economy of the Republic of Malawi and
the citizenry at large. The defence agrees to the argument by the state, however, the defence
maintains that there was no loss hence most of the Mbuna fish was put back into the seas
alive. So if there was economic loss, the loss was mitigated when the mbuna fish was put
back into the seas.
30. The court would like to agree with the defence that indeed, if there was loss of economic
value attached to the Mbuna fish, the same was mitigated when most of the Mbuna fish
was put back into the lake of Malawi.
31. Justice Prof. Kapindu in R V Oswald Lutepo Criminal Case No. 02 of 2014(HC)
unreported, commenting on sections 339 and 340 of the Criminal Procedure and Evidence
Code and gravity of the offence had this to say:
“…. I wish to state here, for the purposes of sections 339 and 340 of
CP and EC, that given the gravity of the crimes committed by the
convict herein, no other form of punishment other than custodial prison
term would be appropriate”
32. In light of the discussion herein, and indeed evaluating the extent of the crime, and the
circumstances in which it was committed the State is humbly submitted that cumulatively,
on the three counts, the court should impose a fine to the convicts with a sum of K2 million

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 and custodial sentence of 2 years imprisonment with hard labour as that would be
appropriate.
33. The State opines that since the law provides that a fine should not be less the value of the
specimen and in the present case the value of the specimen is K8 million, a departure to
that can be explained owing to the fact that despite that few specimen died, a majority of
them were thrown back into the waters of Lake Malawi. These sentences, the state opines,
achieves proportionality, equality as well as restraint in the given circumstances.
34. The convict before this Court are first offenders and it is relevant to look at the law on
first offenders. Section 340(1) of the Criminal Procedure and Evidence Code states:
Where a person is convicted by a court of an offence and no previous
conviction is proved against him, he shall not be sentenced for that
offence, otherwise than under section 339, to undergo imprisonment,
not being imprisonment to be undergone in default of the payment of a
reasonable fine, unless it appears to the court, on good grounds, which
shall be set out by the court in the record, that there is no other
appropriate means of dealing with him.
35. Section 339 (1) of the Criminal Procedure and Evidence Code provides:
Where a person is convicted of any offence the court may pass sentence
of imprisonment but order the operation thereof to be suspended for a
period not exceeding three years, on one or more conditions, relating to
compensation to be made by the offender for damage or pecuniary loss,
to good conduct, or to any other matter whatsoever, as the court may
specify in the order.
36. In the case of Rep vs. Pearson [1995] 1 MLR 230, Justice Mwaungulu sets out the issues
to be considered when sentencing a first offender as follows:
The first thing that the court must consider when faced with a first
offender, is to decide whether the other non-custodial sentences such as
absolute or conditional discharge, probation or fine are not the
appropriate way of dealing with the offender. There is a process of
elimination. The factors to consider are youthful age, old age,
character, antecedents, home surroundings, health or mental condition

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 of the accused, or to the fact that the offender has not previously
committed an offence or the nature of the offence or to the extenuating
circumstances in which the offence was committed.
13. It is the view of this Court that the convicts should benefit from the provisions above. The
convicts are first offenders. Furthermore, the Court has also considered that most of the
Mbuna fish which was found in possession of the convicts were put back into the waters
of Lake Malawi alive thereby mitigating the impact of the loss that could have been
occasioned.
14. The court would also like to briefly advise the Fisheries department to ensure that they
expedite the process of renewing licences to avoid this scenarios. In this case there was
will and desire by the convicts to renew their licence, but the same was delayed by the
bureaucratic tendencies of the government agency.
15. Had the State realise that there is economic value to Mbuna fish as they allege now, they
could have put in place mechanism which would have ensured that renewal of licences are
done within 14 days from the date the submission of application for renewal is received.
16. The court believes that partly the commissioning of this offence was occasioned or
contributed by the state when they delayed to the renewal of the licence of the convicts
though this should never be a motivation to commit offences.
D. ORDER ON SENTENCE
37. For all I have reasoned above, this Court agrees with the State especially on submission
that the convicts should be ordered to pay a fine and in that regard, the court orders you
Arthur Mhango to pay a fine of K1, 500, 000-00 and Ray Chilizwazwa Banda to pay a
fine of MK1, 500, 000. 00 to the Malawi Government. In default to serve a jail term of 24
months. This fine must be paid by the 28th of day of December, 2021.
38. The court further imposes a custodial sentence of 36 months of which its operational is
suspended to 24 months on condition that during the period of suspension, you Arthur
Mhango and Ray Chilizwazwa Banda shall not commit similar nature of the offences.

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39. The sentence is subject to be confirmed by the High Court. Any party who are not satisfied
with the sentence should appeal to the High Court within 15 days from the date this
sentence is pronounced.

Pronounced in open court, this 24th day of December, 2021 at NKHATABAY.

PETER M. E KANDULU

PRINCIPAL RESIDENT MAGISTRATE

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