THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CRIMINAL DIVISION

CRIMINAL SESSION CASE NO.38 OF 2012

(Arising from Criminal Case No. MAK- CO-3250 of 2012)

UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTION

VERSUS

1. ACEMA PATRICK

2. OKUONZI PETER

3. MUHANGUZI AMBROSE

4. SSEBURO BENON :::::::::::::::::::::::::::::::::ACCUSED PERSONS

JUDGMENT BY HON.MR. JUSTICE JOSEPH MURANGIRA

1. Introduction.
The prosecution was represented by Mr. Mazige, Senior State Attorney, working with
the Directorate of Public Prosecutions. Whereas, the accused persons were represented
by Mr. Okwalinga Moses from Legal Aid Project of Uganda Law Society.

The Assessors in this Court were:

i. Ms. Muhairwe Judith.
ii. Ms. Kisakye Flavia

2. Facts of the case

2.1 Indictment
The accused persons were indicted with Aggravated Robbery Contrary to
Section 285 and 286 (2) of the Penal Code Act.

2.2 Particulars of the offence

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 On 21st day of July, 2012 at Munyonyo Zone, Makindye Division in
Kampala District, the four (4) accused persons and others still at large
robbed Wei Wen Zhong, Liang Ling Tung, Ling Chen Wel, Ling Chen Fung
and Xie Shui You of US$ 3,500, Ug. Shs. 8,500,000/=, 15,000/= Kenya
Shillings, 1800 Chinese Yan, 3 mobile phones, bag containing identity card
of Xie Shui You, and immediately before or immediately after the time of
the said robbery used a deadly weapon to wit guns to the said
complainants.

2.3 Ingredients of the offence charged.

i. Theft of property.
ii. During the incident a deadly weapon was used or violence was used.
iii. Participation of the accused in the commission of the offence.

3. Consideration of the case.

3.1 Burden of proof
It is important to note that in all criminal cases except a few statutory
offences, the prosecution bears a burden of proof, that is, to prove the case against
each accused beyond reasonable doubt. The standard of proof is proof beyond
reasonable doubt. The burden of proof does not shift to the accused person to prove
his/her innocence. The burden of proof, to prove the case against the accused always
rests on the prosecution. See the cases of WOOLMINGTON –VS- DPP [1935] AC
462 AND Section 101 of the Evidence Act, Cap. 6, which states that:
“Whoever, desires any Court to give judgment as to any legal right or
liability dependant on the existence of facts, which he/she asserts must
prove that those facts exist.”

3.2 In the instant case, the prosecution must prove each ingredient of the
charged offence against each accused person beyond reasonable
doubt.

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3.3 In order to prove its case against each accused person, the prosecution
adduced evidence from the following witnesses:-
i. Liang Tung, PW1.
ii. Wei Wen Zhong, PW2.
iii. No.39421, CPL Nsereko Richard.
iv. No.40310 CPL Okoth James.
v. No. 36427 D/CPL Okwe Denis, and
vi. D/AIP Titus Namonyo Okanya who recorded a Charge and Caution
Statements from Acema Patrick and Okuonzi Peter.

3.4 Defences

Each accused person gave evidence not on oath, and called no other witnesses to
give evidence in his/their support. However it is maintained that the accused
person is in criminal law not expected to prove himself/herself innocent. The
burden of proof always rests on the prosecution. When the accused is put on
defence, he/she is expected to give evidence that will create doubt in the
prosecution case.

3.5 Submissions by the parties.

3.5.1 At the end of the defence case, the prosecutor, Mr. Hamuza
Muzige, Senior State Attorney, in his submissions, evaluated the
entire evidence on record and submitted that the prosecution
proved its case against each accused. He prayed to Court that each
accused be found guilty and be convicted as charged.

3.5.2 In his submissions in reply to the prosecutor’s submissions, Mr. Okwalinga

Moses, submitted that the prosecution miserably failed to discharge its duty of the
burden of proof. He, too, evaluated the entire evidence on record and came to the
conclusion that each accused person is not guilty of the charged offence. He
prayed to Court to acquit each accused of the charged offence.

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3.6 The Assessors’ opinion
In the Assessors’ opinion, the two assessors analysed the entire evidence on
record as they were guided by the Trial Judge during the summing up notes to the
Assessors. The two Assessors advised Court to convict A1, A2, and A3 of the
charged offence, and to acquit A4 of the same charged offence.

3.7 Consideration of the case by Court

As stated hereinabove in this judgment, the accused persons are indicted with
aggravated robbery Contrary to Sections 285 and 286 of the Penal Code Act. The
ingredients of the offence charged are well set out. In their respective
submissions each party’s Counsel considered each ingredient of the accused
offence alongside the evidence adduced by each party. My duty in this case is to
determine whether the prosecution adduced evidence that proved each ingredient
of the charged offence beyond reasonable doubt against the accused persons.

On the 1st ingredient theft of property.

Counsel for the defence/accused submitted that the prosecution never proved the
ingredient of theft of property beyond reasonable doubt. The items allegedly
stolen from the complainants were put in the indictment. The indictment was read
and explained to each accused in English and Luganda languages, and each
accused person denied the charge. In defence apart from denying the charged
offence, no evidence in defence was led from each accused person to negative the
prosecution evidence that the property named in the indictment were never stolen.
All the five (5) prosecution witnesses testified that the items in the indictment
were stolen from the complainants. The money stolen from the complainants
were recovered from A2, Okuonzi Peter, and A3, Muhanguzi Ambrose. The
money stolen and the three (3) mobile phones were exhibited in Court. In cross-

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examination, each prosecution witness never contradicted themselves. Each
prosecution witness evidence was never challenged in cross-examination.

To amount to theft, the following ingredients of the offence theft Contrary to

Section 254 (1) of the Penal Code Act have to be proved by the prosecution:

i. There was taking of property from one place to another with intention to
permanently deprive the owner of the property, which is called aspiration.
ii. That property is capable of being stolen.
iii. The participation of the accused persons.

From the evidence on record, the exhibits, that is, the money in various currencies
and the three (3) mobile phones, are properties capable of being stolen. A2 and
A3 were arrested in as certain corner with the said money and the mobile phones
within the compound of the complainants. A2 and A3 by the time of their arrest
had already moved the said exhibits from the complainants and taken out of their
house. There was, thus, asportation of the said properties. And the accused had
deprived the owners of their properties.

From the evidence on record and the law cited, I am in agreement with the
assessors and the prosecutor that the ingredients of theft of property were proved
by the prosecution beyond reasonable doubt.

On the 2nd ingredient: Use of the deadly weapon immediately before, during and
after the robbery or use of violence during the robbery.

Mr. Okwalinga Moses, Counsel for the accused argued that the prosecution never
exhibited the alleged guns in evidence. That, therefore, the prosecution failed to
prove to the required standard that a gun which is a deadly weapon was used in
the alleged robbery. In his submissions, Counsel for the prosecution, Mr. Hamuza
Muzige, Senior State Attorney, submitted that the prosecution proved this 2 nd

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ingredient beyond reasonable doubt. The two Assessors in their joint opinion
stated that the prosecution proved this ingredient beyond reasonable doubt.

I have considered the evidence of PW1, PW2, PW3, PW4 and PW5, whose
evidence is that two guns were recovered from the scene of crime. And that, that
was after the exchange of gun fire. The two guns were recovered from A2 and
A3 who were arrested inside the perimeter wall of the scene of crime. There is
evidence on record that there was exchange of fire from the robbers who were
inside the perimeter wall and the police officers who came to rescue the
complainant from the robbery. There is also evidence that the recovered guns
were sent to the ballistic experts for examination.

It is settled law that once a gun is fired during the course of the robbery, it is
deemed to be a deadly weapon. See the case of PC Ben Mulwani and Another
–Vs- Uganda, SCCA No.3 of 1992.

Further, PW1 and PW2 testified that they were tied and that by the time of the
robbery the assailants had a knife, two guns and that they were threatening then to
give the assailants money. There was use of violence in that regard by the
assailants. It is also important to note that in cross-examination, the prosecution
evidence on this 2nd ingredient of the charged offence was never challenged. In
defence, each accused person denied involvement in the robbery. Each accused’s
evidence in defence never created any doubt in the prosecution case.

Therefore, Ian in agreement with the Assessors and Counsel for the prosecution
that the prosecution proved this 2nd ingredient of the offence charged beyond
reasonable doubt.
On the 3rd ingredient: Participation of each accused in the commission of the
charged offence.

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In this instant case, there are four accused persons. The Court has to establish
participation of each accused in the commission of the charged offence.

From the evidence on record, the accused persons are jointly charged. Under
Section 19 (1) and (2) of the Penal Code Act, such persons can be referred to as
principal offenders. And that under Section 20 of the Penal Code Act, the
accused persons are joint offenders in the prosecution of common purpose. They
are deemed to have common intention to commit the charged offence. Each of
them is deemed to have committed the offence.

Counsel for the prosecution Mr. Hamuza Muzige, Senior State Attorney in his
submissions, he submitted that each accused person was put at the scene of crime.
And that each accused person committed the charged offence that the prosecution
proved its case against each accused person beyond reasonable doubt. The two
assessors in their joint opinion stated that the prosecution proved its case beyond
reasonable doubt against A1, A2 and A3. That is, A1, A2 and A3 participated in
the commission of the charged offence. The assessors further, stated that the
prosecution never proved its case against A4, Sseburo Benon. They advised
Court to convict A1, A2 and A3 of the charged offence, and acquit A4 of the
same charged offence.

Counsel for the accused submitted that the prosecution failed totally to prove
participation of each accused person in the commission of the charged offence.
To come to this conclusion, Counsel for the accused, too, evaluated the entire
evidence on record.

On A1, Acema Patrick, it is true that he was found outside the gate at 9:00p.m the
place where robbery was being committed inside the perimeter wall Counsel for
the accused argued that A1 was not put at the scene of crime. In his defence he
denied the offence in total. He denied making a Charge and Caution Statement
(Exh. PW1 (b)). In his evidence not on oath, he gave evidence that he was

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tortured and forced to sign on a document which was already prepared by PW6. I
have evaluated A1’s defence; I hasten to add that such evidence is a mere denial.

In a ruling in a Trial within a Trial, the Court found that Acema Patrick (A1)
voluntarily made a Charge and Caution Statement. Accordingly to police Form
24 in respect of A1 which was admitted in evidence by consent of the parties
under Section 66 (1) of the Trial on indictments Act, Cap 23, the said medical
report (Exh.P1) shows that A1 had no injuries on his body. There were no signs
of torture on his body. And was found mentally normal. Therefore, his
allegations that he was terribly tortured are farfetched. His defence is
unbelievable.

PW3 testified that he arrested A1 at the gate of the scene of crime at around
9:00p.m. That he was dressed in half security uniform (trouser) and half Civilian
(Shirt). That on seeing them A1 attempted to ran away, but that he was arrested.
That on his arrest A1 had a bag which contained a pair of pliers, screw-driver, and
also a knife, which are all instruments which can be used in house breaking.

PW6 gave evidence that A1 made a charge and Caution statement, wherein A1
admitted to him that his role was of guarding and watching mission while A2
(Okuonzi and others) were inside the Chinese’s house robbing. That the A1 in his
Charge and Caution Statement admitted being partly to the robbery together with
A2 and others. In his Charge and Caution Statement he narrated his participation
in the commission of the charged offence. The A1’s Charge and Caution
Statement is corroborative of the prosecution evidence on Court that record, that
A1 is a principal offender ad that he is deemed to have committed the offence
(See Sections 19 (1) and (2) and 20 of the Penal Code Act.)

A1 is brought at the scene of crime by virtue of his admissions in a Charge and

Caution Statement; being arrested at the scene of crime as the main gate of the
perimeter wall of the Chinese’s house is part of the scene of crime, the time of his

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arrest was on the same date, month and year at 9:00p.m., and his attempt to ran
away was not the conduct of an innocent person. The A1 made admissions to
PW6, which admissions PW6 put in writing in a form of a Charge and Caution
Statement and are admissible as against the maker (A1). See Sections 16 and 17
of the Evidence Act, Cap. 6 and the case of Anyanga –VS- R [1968] EA 239.

In the result and in agreement with the assessors, I hold that the prosecution
proved the participation of the accused (A1) in the commission of robbery as
charged, beyond reasonable doubt.

As for A2, Okuonzi Peter’s participation. In defence A2 gave evidence not on

oath. He denied the charged offence in total. In his evidence he alleged that this
charge is charged with is a frame up. He denied making a Charge and Caution
Statement [Exh.PW1 (a)]. That he was seriously tortured and that he was forced
to sign on the document which was already prepared and written by PW6. He
said that his Charge and Caution statement was obtained forcefully and under
duress.

On the issue of a Charge and Caution Statement, during the hearing, the accused
denied making a Charge and Caution Statement as was being testified by PW6.
At that stage a Trial within a Trial was conducted. In the ruling of the Court, it
was established that the Charged and Caution Statement was voluntarily made to
PW6 by A2. According to Police Form 24 in respect of A2 (Exh.P2), the said
medical report shows that A2 had no injuries on his body and that he was
mentally normal. Therefore, the allegation of serious torture raised by A2 in his
defence farfetched.

From the evidence of PW1, PW2, PW3, PW4 and PW5, A2 was arrested
immediately after committing the robbery and after the exchange of gun fire with
them (A2 and A3). That A2 and A3 were found in a corner, where A2 threw

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down the gun and surrendered to them. A2 and A3 were arrested from the scene
of crime. That A2 and A3 were the ones who had the two (2) guns.

Further, PW1 – PW5 testified that upon the arrest of A2 and A3, they recovered
some sums of money from their stockings and that A2 and A3 were attempting to
jump over the fence but that they failed. Again A2 made a Charge and Caution
Statement wherein he admitted participating in the robbery of the complainants.

It should be noted that this particular case where A2 and A3 were arrested red-
handed at the scene of crime. The prosecution witnesses gave direct evidence as
against A2 and A3. At the scene of crime there was sufficient light from the
compound and inside the house and that upon arrest of A2 and A3, the
prosecution witnesses saw the prosecution witnesses saw them clearly. There is
no error or mistaken identity that the persons (A2 and A3) who were arrested at
the scene of crime were none other than the two accused persons. Certainly,
therefore, A2’s and A3’s evidence in their respective defences are just mere
denials.

Wherefore, in agreement with the Assessors and Counsel for the prosecution, I
hold that the prosecution proved beyond reasonable doubt the 3rd ingredient of the
offence charged against A2 and A3.

On the part of A4, Sseburo Benon, Counsel for the defence, Mr. Okwalings
Moses, submitted that the prosecution never brought any evidence against A4 to
put him at the scene of crime. That he was found by the boda boda riders above
200 meters from the scene of crime, with a wound on his right through. He
prayed that A4 be acquitted of the charged offence. The two assessors in their
joint opinion stated that the prosecution failed to prove the charged offence
against A4. They advised Court to acquit A4 of the charged offence.

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 From the evidence of PW1, PW2, PW3, PW4 and PW5, there was exchange of
gun fire within the compound of the scene of crime. They testified that shortly
after arresting A1, A2 and A3, A4 was brought at the scene of crime by the boda
boda riders who said that they arrested A4 when he was trying to escape. A4 had
a fresh wound which was bleeding, on the right thigh. That he, too, was arrested
and made him join his group of robbers. In a Charge and Caution Statements A1
and A2 mention a one Nick was part of the gang who robbed the Chinese of their
property.

A1 and A2 in their respective Charge and Caution Statements stated immediately

after their arrest Nick was also brought by the boda boda riders at the scene of
crime with a wound bleeding on the right thigh. From such statements, the one
they were calling Nick is certainly A4, Sseburo Benon. There is also
unchallenged prosecution evidence that there was exchange of gun fire. That gun
fire must have resulted into the wounding of A4 on his right thigh. There is
evidence that the security guard one Atama at the Chinese’s residence escaped.
Thus, Circumstances point to the fact that A4 was also at the scene of crime, and
escaped alongside the said security guard who knew the escape routes within the
fence that formed part of the perimeter wall. It is also evidence that A4 was
arrested by the boda boda riders immediately the gun-shots ceased, and A4 was
brought to the scene of crime. I considered A4’s evidence in defence, and find his
evidence to be a mere denial of the charged offence. A4’s evidence in defence
never created any doubts in the prosecution case. Therefore, in agreement with
Counsel for the prosecution, I hold that A4 participated in the robbery as charged.
And that as such the prosecution proved this 3 rd ingredient of the charged offence
against A4 beyond reasonable doubt.

4. Conclusion.
In closing, considering the entire evidence on Court record, the law and the
authorities cited hereinabove in this judgment, the submissions by both Counsel
for the parties and the joint opinion by the assessors, I find each accused person

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 guilty of the charged offence of aggravated robbery Contrary to Sections 285 and
286 (2) of the Penal Code Act. Each accused person is accordingly convicted as
charged.

Dated at Kampala this 3rd day of December, 2015.

………………………………
Joseph Murangira
Judge.

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CRIMINAL DIVISION

CRIMINAL SESSION CASE NO.38 OF 2012

(Arising from Criminal Case No. MAK- CO-3250 of 2012)

UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
PROSECUTION

VERSUS

1. ACEMA PATRICK

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2. OKUONZI PETER

3. MUHANGUZI AMBROSE

4. SSEBURO BENON :::::::::::::::::::::::::::::::::::ACCUSED

PERSONS

SENTENCING

Mr. Okwalinga Moses for the convicts.

A1: Is a young man – 25 years.
Has a young family of 2 children 5 years and 3 years respectively.
He is a guardian of his siblings and the aging father.
 He has been on remand for 3½ years.
 The aggravating factors are narrated by the prosecution do not apply to him since
he was outside.
 Has been engaged in reformatory activities while in prison and he has a certificate
to that effect. This is a report from the Prisons Authorities.
 His malaise of participation be used as an accessory before and after a fact.

A2: Is 24 years old – he is a father of young children of abread winner of his family.
 Looks after his elderly parents and 2 orphans of his late siblings.
 He has been on remand for 3½ years.
 He has also been engaged in reformatory activities while in the prisons.
A3: He takes care of his old and crippled mother, 2 orphans of his late siblings.
 Aged 23 years
 He has a medical condition of anthrax – which usually bothers him not.
 1st time offender.
 Has spent 3½ years on remand.
A4: Sole bread winner of his family of 7 children who are now almost destitute.
 He is also aged 32 years and takes care of his old mother.
 He is 1st time offender and has spent 3½ years on remand.
 He has a bullet wound which had never fully healed.
 He has undertaken reformatory activities while he is in prison.

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  Throughout the trial it is his prayer that he never used violence.

For all the co-accused persons. These are still people who are young men – have many
years of livelihood.
 Should be given a short sentence to reform them.
 For A1 and A4 – I would propose 5 years imprisonment.
 For A2 and A3 I propose 10 years
 I so pray.

Court: Sentence shall be delivered on 11/12/15 at 9:00 a.m.

Joseph Murangira
Judge
10/12/15

.
Sentence and Reasons for the sentence.
In passing the sentence against each convict the following have been considered:-
1) All the mitigating factors that were submitted by both the prosecution and the
defence Counsel.
2) The maximum sentence for the offence of aggravated robbery Contrary to
Sections 285 and 256(2) of the Penal Code Act is Death.
3) The nature of the offence, that is A2 and A3 broke into the residence of the
complainants, tortured the complainants and caused harm to them. The property
which had been stolen was received from A2 and A3.
4) The circumstances of the offence charged, that is the manner in which it was
committed; A2 and A3 used deadly weapons to wit: 2 guns and ropes to tie the
complainants. The A2 and A3 inflicted grievous harm to the complainants.

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 5) The offence of aggravated robbery is prevalent in Kampala District, Kampala City
and generally in the whole Country.
6) A1 and A4 are principal offenders. Their level of participation in commission of
offence.
7) The convicts are young people, whose youthful ages have to be taken into
consideration.
8) The sentence to be passed must be in proportion with the charged offence of
aggravated robbery, so that the sentence passed against each convict shall reflect
the justice of the case.
9) Each convict has been on remand for a period of 3½ years.

Wherefore, in consideration of all the abovestated factors, I would have sentenced A1

and A4 to 13½ years imprisonment. I thus deduct the period of 3 ½ year each has spent
on remand. And A2 and A3 I would have sentenced them to 20 ½ years. I thus deduct
the period of 3½ years each convict has spent on remand.
Accordingly, therefore, A2 is sentenced to 17 (seventeen) years imprisonment. A3 is
sentenced to 17 (seventeen) years imprisonment. A1 is sentenced to 10 (ten) years
imprisonment. A4 is sentenced to 10 (ten) years imprisonment.

Date at Kampala this 11th day of December, 2015.

Joseph Murangira
Judge.

Court: The prosecution shall return the complainants’ properties that were recovered
from the convicts to the complainants, to wit: US$ 3,500, Ug. Shs. 8,500,000/= Kenya
shillings 15,000/=, 1800 Chinese yan, 3 mobile phones and a bag within 10 (ten) days
from today.
Dated at Kampala this 11th day of December, 2015.

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 Joseph Murangira
Judge.

11/12/15
Mr. Wanamama Mics Isaiah Senior State Attorney for state. I am holding a brief for Mr.
Hamuza Muzzier Senior State Attorney for state.
The accused persons are in Court.
Their lawyer is absent.
The 2 Assessors are in Court.
Hajjat Nakibuuka Mariam the interpreter and Ms. Kagaso Lillian the clerk are in Court.

Court: Sentence is delivered to the parties in open Court.

Right of appeal is explained to the parties.

………………………………
Joseph Murangira
Judge.
11/12/15

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