The People v Chishimba Kambwili and Ors (SSPB/045/2018) (9 September 2021) – ZambiaLII

J IN Tl IE $UU RDINA1'l£ Ct >UP1' 01~ 1'1l l~ ltU~ll'l' DI Pl 1/tMt /~010 '- L.A ~ I• )1, 1'Hlt 1.U~;\l(J\ l)l~'l'l1ll'1' H l.DliN AT LU~Al<A (Cn'111i,ial JwiscU 0011) THE PEOPLID v. CHISHIMBA KAMBWILI, MWAMBA KAMBWILI, MWAMONA ENGINEERING AND TECHNICAL SERVICES LTD, MUSONDA BRANO LUKWESA & MULENGA MAKASA KAPILIMA Before: Hon. Mwaaka Chlgali Mikalila- sitting as PRM For the People: Mr. S. Muchuln &, Mr 0. NKwlru • Antl-Corrupllon Cornmlt1Nlon For the 1•1 , 2nd & 3"1 acctised: Mr. I<. Mwoombn - Mo~1:1rn l<ollh Mwcombu Aclvocut011 Mr. 0. Phlrl - Mcssrn PNP Advocotott For the 41 h Accused: Mr. I<. Kombe & Mr. C. BwL1lya - Mc:1:111rn Anc.Jrcw & Pu_rlnor11 For the 51h accused: Mr. Nyasulo - Messrs Lcgul Aid Oourcl JUDG'JVCBWT References: 1. The Penal Code, Chaptt,r 87 of the Lows of Znmbin 2. Nyalugwe v. The People ( 1976) ZR 176 (S.C) 3. The People v, Austin Chisangu Liato (Appeal No. 291/2015 I 4. Shaubru1 Bin Hasscin & Others v. Chong Fook Kon & Another (1903) 3 Al ER 1629 JI In this matter are 39 counts. In count 1, A4 and AS are jointly charged with making a document without authority contrary to section 356 of the Penal Code CAP 87 of the Laws of Zambia. Particulars of the offence are that on unknown dates but between 15th February, 2014 and 6th March, 2014, the accused at Kitwe on the Copperbelt Province of the Republic of Zambia, with intent to deceive, jointly and whilst acting together without lawful authority or excuse, did make a Zambia Revenue Authority (ZRA) Tax clearance certificate number 012MK dated 4th May, 2014 for Mwamona Engineering Technical Services Limited purporting that the said Mwamona Engineering Technical Services Limited was tax compliant when in fact not. In count 2, Al and A3 are charged with uttering a false document contrary to section 352 of the Penal Code, CAP 87. Particulars of the offence allege that on 18th July, 2014, the accused at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with intent to deceive did utter a false document namely ZRA Tax clearance certificate No. 10001624827 to ZESCO Limited. In count 3, Al and A3 are charged with obtaining pecuniary advantage by false pretences contrary to section 309A of the Penal Code. Particulars of the offence allege that on dates unknown but between 21st January, 2015 and 26th May, 2015, the two accused at Lusaka in the Lusaka District, jointly and whilst acting together, dishonestly did present a false ZRA tax clearance certificate number 10001624827 to ZESCO Limited purporting that it was genuinely issued resulting in an award of contract No. ZESCO/0632014 thereby obtaining pecuniary advantage of a contract sum of K 1,652,482.81. J2 In count 4 Al and A3 are charged with obtaining pecuniary , advantage by false pretences contrary to section 309A of the Penal Code. Particulars of the offence allege that on dates unlrnown but between pt August, 2014 and 20th September, 2016, the two accused at Lusaka in the Lusaka District, jointly and whilst acting together, by means of false pretence, dishonestly obtained US$ 105,220.07 from China Henan International Corporation Group Limited purporting that A3, a company which was subcontracted was executing the works on the Luwingu-Mansa Road when in fact not. In count 5, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are tl1at on 5th May, 2014, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 60,000.00 in his personal bank account No. 1013423100125 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 6, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 5th May, 2014, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 55,000.00 in his personal bank account No. 1013423100226 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 7, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are th that on 17 June, 2014, the accused at Lusaka in the Lusaka District J3 did have under his possession money amounting to K 0,000.00 in his personal bank accounl No. 1013423100125 domiciled at Zambia .... National Commercial Bank, property reasonably suspected of bolng a proceed of crime. In count 8, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71 ( l) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulm·s of the offence are that on 23rd June, 2014, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 100,000.00 in his personal bank account No. 1013423100125 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 9, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71 ( 1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 4th July, 2014, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 180,000.00 in his personal bank account No. 1013423100125 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 10, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 5th August, 2014, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 9,000.00 in his personal bank account No. 1013423100125 domiciled at Zambia N ti al C . a on ommerc1al Bank, property reasonably suspected of being a proceed of crime. In count 11, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 291h August, 2014, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 50,000.00 in his personal bank account No. 1013423100125 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 12, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on lSth September, 2014, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 100,000.00 in his personal bank account No. 1013423100125 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 13, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on29th October, 2014, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 100,000.00 in his personal bank account No. 1013423100226 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 14, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 7th November, 2014, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 155,000.00 in his personal bank account No. 1013423100125 JS ' i '\\\i ,h: l \t , nl\\hl \ Nntlonl\\ 'nnHnN, 1,1 l\l\nl , 1 ipt1 1y t nNotu\hly or ' \\~P' 'h' \ of t_•lntt t\ pl .h' ( t\ t~i·ln, . In ,,nt \, , t\l 1. elu,,·ut•d wlth l'H' it' hm of prnp< 11 nu 1wN ,(I lO l> " ts f c\'lm<' C'on1nuy 10 tlN'llotl '/1(1) of lh trorfdllH of "'cd~ < f dmt' l\t•l No. \() uf ' 0 10. Pnrlln1lnn1 of tlin ollo1t l\r th ,t '-'" , 8'1\ N\lvt"mb<'t', , 01·1, th ~ nl't'\.\tl d nt l.\lfl{\l<n In llH Luool<n ,~tri 't did )uwt~ unde,· hln po1rn nolon .1llo11ty nmountll\ij to I{ 0 , 0 i n 1, l s p rAnt1 11 \ bt\llk O ount Nu. l01342310012 d mi He \ nt Znmbln Notlonn\ omm t ll\l Dnnk, prop rLY r nsonobly u pe ·ted f being f\ pl'O c cl of crlnw. In ount 16, Al is horg d with Po~~ sslon of proport.y s\rnpootod to bo pro eds of crhne ntrnry to se tlon 71(1) of th 11'01·~ lturc of Pro eed of Crime Act No. l of 2010. I Uttlct1llH'S of tho offonco nro thnt on 28th November, 20 l q, tho uccu.s d nt Lusoko In tho Lusolcn Distri t did hnvc undor his possession monoy amounting lo K 50,000.00 in his porsonul bunk uccou11t No. 1013423100125 domi iled nt Znmbin Nntionnl Commercial Bunk, proporty roC\sonnbly suspected of being n proceed of crime. In count 17, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71 ( 1) of the Forfe i tu re of Proceeds of Crime Act No. 19 of 2010. Pnrticulnrs of tho offence are that on 3rd December, 2014, the o.ccusod nt Lusaka 1n U1e Lusaka District did hu~ under his possession money amounting to K 140,000.00 in his personal bunk account No. 1013423100125 domiciled at Zambia National Commercial Bnnk, property reasonably suspected of being a proceed of crime. In count 18, Al is charged with Poss s ion of property suspected to be proceeds of crime contrary to section 71(1) of tho Forfeiture of Proceeds of Crime Act No. 19 of 2010. Pnrticu tnrs of the offenco cu·e tbo.t on 13tJ, December, 2014, the accused ot Lusnkt\ in lhe LusnkCl J6 ) District did have under his possession money amounting to K 130,000.00 in his personal bank account No. 1013423100226 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 19, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 13lh December, 2014, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 100,000.00 in his personal bank account No. 1013423100226 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 20, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 5th January, 2015, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 220,000.00 in his personal bank account No. 1013423100226 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 21, A 1 is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 8th January, 2015, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 65,000.00 in his personal bank account No. 1013423100226 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. J7 In count 22, Al is charged with Possession of property suspected to be proceed~ of crime contrary to section 71(1) of the Porfeiturc of , Proceeds of Crime Act No. 19 of 20 l 0. Particulars of lhe offence are that on 8th January, 2015, the accused ul Lusaka in the Lusaka District did have under his possession money amounting to K 100,000.00 in his personal bank account No. 1013423100125 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 23, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71 ( 1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 14th January, 2015, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 40,000.00 in his personal bank account No. 1013423100125 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 24, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 24th January, 2015, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 110,000.00 in his personal bank account No. 62516634450 domiciled at First National Bank Zambia, property reasonably suspected of being a proceed of crime. In count 25, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71 ( 1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 13th February, 2015, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 95,000.00 in his personal bank account No. 1013423100125 J8 i domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. I ln count 26, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 21st February, 2015, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 105,000.00 in his personal bank account No. 62516634450 domiciled at First National Bank Zambia, property reasonably suspected of being a proceed of crime. In count 27, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 21st February, 2015, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 110,000.00 in his personal bank account No. 1013423100226 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 28, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71 ( 1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 28th February, 2015, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 50,000.00 in his personal bank account No. No. 62516634450 domiciled at First National Bank Zambia, property reasonably suspected of being a proceed of crime. In count 29, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are U-rnt on 7th April, 201 S, tho accuood llt. Luonka In tho Lu oaka District did hnvc under his poMStHrnlo,, money omouritlng to K 100,000.00 in his personol bonk occounl No. 62516634460 domiciled at First t Nalionul Bnnk Zombln, property reasonably suspected or bclng a proce d of crime. In count 30 Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 15lh May, 2015, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 640,000.00 in his personal bank account No. 62516634450 domiciled at First National Bank Zambia, property reasonably suspected of being a proceed of crime. In count 31, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71 (1 ) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 12th February, 2016, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 47,600.00 in his personal bank account No. 1013423100226 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 32, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 22nd February, 2016, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 80,895.00 in his personal bank account No. 1013423100226 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. JtO ln count 33, Al is charged with Possession of property suspected to be proceeds of crime contrary to sec lion 71 ( 1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Parlicular1:1 of the offence are I that on 7th ApriJ, 2016, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 150,000.00 in his personal bank account No. 1013423100226 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 34, A 1 is charged with Possession of property suspected to be proceeds of crime contrary to section 71 (1 ) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 11th July, 2016, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 50,000.00 in his personal bank account No. 62516634450 domiciled at First National Bank Zambia, property reasonably suspected of being a proceed of crime. In count 35, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 19th July, 2016, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 70,000.00 in his personal bank account No. 1013423100226 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 36, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71 ( 1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 22nd July, 2016, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 450,000.00 in his personal bank account No. 62516634450 domiciled at First JI 1 National Bank Zambia, property reasonably suspected of being a proceed of crime. I In count 37, Al is charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 181h August, 2016, the accused at Lusaka in the Lusaka District did have under his possession money amounting to K 495,000.00 in his personal bank account No. 1013423100226 domiciled at Zambia National Commercial Bank, property reasonably suspected of being a proceed of crime. In count 38, Al and A2 are charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 24th August, 2016, the accused at Lusaka in the Lusaka District, jointly and whilst acting together did have under their possession money amounting to K 180,000.00 in bank account No. 62516634450 domiciled at First National Bank Zambia, property reasonably suspected of being a proceed of crime. In count 39, Al and A2 are charged with Possession of property suspected to be proceeds of crime contrary to section 71(1) of the Forfeiture of Proceeds of Crime Act No. 19 of 2010. Particulars of the offence are that on 9th September, 2016, the accused at Lusaka in the Lusaka District, jointly and whilst acting together did have under their possession money amounting to K 480,000.00 in bank account No. 62516634450 domiciled at First National Bank Zambia, property reasonably suspected of being a proceed of crime. The accused persons pleaded not guilty in all counts. J12 J wnm myself ot tho outocl that the burden lie on the prooccution to prove the cosc beyond nlJ rcuuonablc doubt nnd there Is no onua on the accused to prove his/her lrrnoccncc. If ~fter con ldcrlng all or the I evidence odduccd for and against tJ1c charge, I remain in reru,onable doubt as to their guilt, then 1 shall be duty bound to resolve that doubt in the favour of the accused. in order to establish the guilt of the accused the prosecution must satisfy me upon each and every ingredient of the offences charged. As regards count 1 section 356 of the Penal Code states: Any person who, with intent to defraud or to deceiue- (a) without lawful authon·ty or excuse, makes, signs, or executes, for or in the name or on account ofa nother person, whether by procuration or otherwise, any document or writing; or (b) knowingly utters any document or writing so made, signed, or executed by another person; is guilty ofa felony and is liable to imprisonment/or seven years. Thus, the prosecution ought to establish that the accused made a document, namely, tax clearance certificate without lawful authority in the name or on account of ZRA The second point to prove is that the accused made the false document with intent to deceive. Intent to deceive is defined in the Penal Code section 344A: •An intent to deceive exists when one person induces another person- (a) to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false; or (b) to believe a thing to be false which is true, and which the person practising the deceit knows to be true; Jl3 and in consequence of hauing been so induced does or omits to do an act whether or not any i,vury or loss ls thereby suffered by any person. I Turning to count 2, the ingredients to be proved are that the accused: 1. knowingly, and 2. fraudulently 3. uttered a false document. The word "utter" is defined in the Penal Code, section 4 as follows: "Utter includes using or dealing with and attempting to use or deal with and attempting to induce any person to use, deal with or act upon the thing in question.• "Knowingly" means that the accused must have knowledge of the falsity of the document when he utters it and "fraudulently" means an intent to defraud. Archbold, 38th Edition at paragraph 2186 says: • ... to defraud is to deprive by deceit; it is deceit to induce a man to act to his injury.• Thus, it must be proved that Al and A2 used or dealt with a false ZRA tax clearance certificate in their dealings with ZESCO with full knowledge of its falsity, thereby causing ZESCO to act to its detriment. As regards count 3, the relevant portion of section 309A of the Penal Code states as follows: (1) Any person who, by any false pretence, dishonestly obtains for himself or another any pecuniary advantage, is guilty of a misdemeanour and is liable to imprisonment for five years. (2) The cases in which a pecuniary advantage within the meaning of this se ti · t b c on zs o e regarded as obtained for a person are cases whereJl4 (nJ anu cJ 1.Jt or cltoryo for which lw makes l,lm elf lfabl0 or Ls or mo.y b come Uabln (i,,aludlt10 ona not tooally o,iforcoabta) I roduccd or in w/10l0 or in port evocled or tlejfu-red: or (lJ) lie is allowed to borrow by way of overdraft, or to take out any policy of insurance or annuity contract, or obtains an improvement of Ute temts on which he is allowed to do so; or (c) he is given the opportunity to earn remuneration or greater remuneration in an office or employment, or to win money by betting. Section 308 of the Penal Code defines a false pretence. This section states as follows: Any representation made by words, writing or conduct, of a matter of fact or of law, either past or present, including a representation as to the present intentions of the person making the representation or of any other person, which representation is false in fact, and which the person making it knows to be false or does not believe to be true, is a false pretence. Therefore, in order to establish the accused's, guilt 1n count 3, the prosecution must establish: 1. that accused made a representation to ZESCO that A3 had a genuinely issued tax clearance certificate from ZRA 2. that the accused, when making the representation knew it to be false or did not believe it to be true 3. that through the dishonest representation, the accused was awarded a contract by ZESCO with a contract sum of K 1,652,482.81. Similarly in count 4, the prosecution must establish that: JIS 1. that A 1 and A3 made a representation to China Henan International that A3 was executing the works on the Luwingu Mansa Road. J 2. that the accused, when ma.king the representation knew it to be false or did not believe it to be true 3. that through the dishonest representation, the accused obtained US$ 105,220.07 from China Henan International. As regards counts 5 to 39, section 71(1) of Act number 19 of 2010 states as follows: A person who, after the commencement of this Act, receives, possesses, conceals, disposes of or brings into Zambia any money, or other property, that may reasonably be suspected of being proceeds of crime commits an offence and is liable upon conviction to- (a) if the offender is a natural person, imprisonment for a period not exceeding five years; or (b) if the offender is a body corporate, a fine not exceeding seven hundred thousand penalty units. Therefore, the prosecution must prove that the accused named in counts 5 to 39 had in his possession the amounts stated therein and that the said moneys are reasonably suspected of being proceeds of crime. In support of its case the state called 18 witnesses. Each of the accused elected to give evidence on oath and called no other witness. The following is the gist of the evidence heard. PWl was Selah Mtonga, a Banker at Zambia National Commercial Bank who told court that A 1 was their client. She produced his mandate file (ID 1) and bank statement (ID2) covering the period January, 2014 to December, 2017. The documents were admitted in evidence marked Pl and P2 respectively. Jl6 According to PWl, she was summoned to the Anti-Corruption Commission (ACC) offices on 13th June, 2018 where she was availed 15 deposit slips to verify with the statement, P2. The deposits were ,I identified and collectively marked 1D3. It was PW l's testimony that all 15 deposits on 1D3 were reflected on the bank statement, P2 and she highlighted them. When cross examined, PW 1 stated that she was the Money laundering compliance officer of the bank tasked to compile Suspicious '7 Transaction Reports (STR) as well as cash tI:ans.actk>n reports (CTR) to law enforcement agencies. She said she had never compiled a suspicious or cash transaction report regarding the transactions highlighted. There is nothing special about these transactions. The compliance department had never complained to her about the transactions in issue being suspicious. She however, could not point out that the transactions are suspicious or not because the bank has a department to look into such issues. She further stated that the transactions in issue were done in different branches and each branch has its own compliance officer. She was not aware if Al's account had been seized or frozen by law enforcement. Still in cross, PW 1 stated that she was aware that Al was•a business man but did not know if he was a high profile one. The account in question is a personal account and the KYC did not capture the business he is involved in. PWl also stated that in her tenure as compliance officer, she had not received any complaint regarding Al's account until, 2018. PW2 was Mukuka Chipula, a branch administrator at First National Bank (FNB) responsible for processes and procedures. It was his testimony that sometime at the end of 2016, he received a Mr Kombe of the ACC who had with him 9 deposit slips from 2015. He advised that they were transactions done on Al's account and he wanted to J17 confirm if they were genuine. Copies of the cash deposit slips were identified and marked 104. According Lo PW2, he went ahead to print Al's bank statement (marked IDS) and availed the mandate file (106). He and Mr. Kombe perused the statement and confirmed that the transactions were genuine. IDs 5 and 6 were tendered in evidence and marked PS and P6 respectively. When cross examined, PW2 stated that he was the money laundering and compliance officer at Ncades branch, therefore, ideally, he would 7 know about suspicious transactions reports and cash transactions reports (STRs and CTRs). He also stated that there has never been STR on either Al or A2 from his centre but there has been one from compliance. He was reliably informed that compliance submitted an STR to Financial Intelligence Centre. The mandate has K 29,000 as income so anything above that is reported. According to PW2, there is nothing wrong with someone depositing into Al's account more money than is indicated as threshold provided it is from a legitimate source. Further in cross, PW2 stated that A2 is not connected to PS. The account holder is Al. PW3 was Regina Musonda Chabala, an Accountant at ZESCO holding the position of Senior Manager - Treasury and Taxation who is part of the process of paying contractors. It was her testimony that in 2017, she was approached by officers of the ACC who were enquiring about a payment made to a contractor called Mwamona Engineering and Technical Services (A3). According to PW3, she searched through the records and found a copy of the transfer made to A3. The payment was an advance payment on contract number ZESCO 063/2014 between ZESCO and A3 for the construction of houses and toilets under the Lunzua Hydro Power project. Attached to that transfer were the required supporting documents namely copy of the memo from the Project manager, a copy of memo from procurement, a copy J18 of advance bank guarantee and copy of an invoice. The contract ~um was K 8,000,000.00 plus but the advance payment was 20% which was about K 1,652,482 paid into A3's account held at Finance Bank Luanshya branch. PW3 identified and tendered in evidence 8 documents relating to the payment and they were collectively marked P7 a-h. When cross examined, PW3 stated that she did not know whether or not ZESCO had laid a complaint. She also stated that the payment in issue was made before the service was rendered and this was lawful at the time. She, however, does not know if the service was eventually provided. She said the project manager would know. She also said she had not verified if Al had obtained pecuniary advantage of the contract sum of K 1,652,482.81 as alleged in count 3. The contract was awarded to a limited company and not Al. PW3 said she had not been to Lunzua power station therefore could not give a position of the works done there. She further stated that the procurement office verifies the tax status of a contractor and not her department. Still in cross, PW3 stated that P7g is a letter requesting payment from ZESCO authored by Famous Kabwe of A3. It was not Al making the request. She also stated that their role as finance was to approve payment and they were satisfied that all procedures had been followed. When procurement gives a go-ahead to pay, it means they have checked tax status. PW4 was Brian Chongo Kambole, Senior Manager - Procurement and Stores, ZESCO Ltd responsible for all procurement of goods and services among other duties. It was his testimony that on 2nd December, 2016, a warrant of access was served on Managing Director's (M.D) office and in that warrant, ACC was requesting for documents relating to a contract signed by ZESCO and A3. These documents were bidding documents, the evaluation report, the J19 contract, ZESCO procurement committee resolution and signed minutes of the contract negotiations. The same were compiled and submitted to ACC through the M. D's office. The Resolutions (1D8) and the contract (1D9) were admitted in evidence marked P8, P9 respectively. PW4 also identified the Bid document and it was marked 1D10. V According to PW4, the tax clearance certificate was a mandatory document without which the bid would have been disqualified. When cross examined, PW4 stated that they approved the contract which means all criteria were met. He said the tax clearance certificate was valid at the time and the evaluation committee had no problems with it. He also stated that he never dealt with Al in this transaction. Al never presented any document concerning this contract to PW4. According PW4, the bid was correct and A3 was genuinely awarded this contract. This means the company was entitled to be paid for the service rendered. It was paid in accordance with the signed contract. PW5 was Nalishebo Chibatabata, Branch manager at Atlas Mara, Luanshya branch. It was her testimony that on 16th February, 2017, officers of the ACC visited the branch and requested for bank account mandate (1D11) and statement (1D12) for account number 0314451790201, a dollar account for Mwamona (A3). The documents were admitted in evidence and marked Pl 1 and P12 respectively. In cross examination, PWS was referred to the indictment and she indicated that Atlas Mara is not mentioned. Count 4 is the only one with dollar amount but no bank is mentioned. She stated that she is unaware of any illegal activities by Al at Atlas Mara. No suspicious transaction report or cash transaction report had been brought to her J20 attention. The accounts were properly opened and have never been frozen. PW6 was Zhou Xiao Zhan, Chief Representative of China Henan Group International. It was his testimony that in March, 2017, he was summoned by ACC regarding one of their projects - Mansa Luwingu Road and a named sub-contractor, A3. According to PW6, he was not involved on this project and so he had to return to the office to pull out the information. The one involved had since returned to China. It was PW6's testimony that he found a contract between Road Development Agency (RDA) and China Henan (identified and \ marked (1D13). He also found a nomination letter dated 9th August, 2013 issued by RDA (marked 1D14) to China Henan with a list of sub contractors and A3 was top of the list. PW6 told court that after receiving the nomination letter, they require the nominated sub contractor to file their documents for scrutiny before entering the subcontract. They have to submit company registration certificate, tax registration certificate, VAT registration certificate, tax clearance certificate and National Council for Construction certificates. The 7 certificates submitted by A3 were identified and collectively marked 1D15. According to PW6, A3 qualified to enter into a subcontract and the same was executed. The sub contract plus the two addenda were identified and marked 1D16. After the contracts were signed, A3 appointed a representative to act on their behalf called Zhao Yong Fei and wrote two letters introducing him (marked ID 17). PW6 further told court that he also came across 8 Interim Payment C~rtificates (marked ID 18) submitted by A3 and approved by China Henan. As custodian of the documents marked IDs 13 to 18, PW6 produced them in evidence marked P13 to P18 respectively. When referred to the subcontract (P16), PW6 told court that clause 3.7 of the contract specifies that the subcontractor should do the work themselves and if they wish to subcontract, they should inform the J21 mnin contractor. It was hi~ evidence that there are no records of appointment by A3 of n third pnrty to work on the contract. When refened to the Interim Payment Certificates (Pl8), PW6 told court that these were clnims by A3 for works done and thelr records showed that po,ymcnts were made to A3 to a tune of about $842,000. When cross examined, PW6 stated that PW 18 was issued because the works were completed by A3 and China Henan was satisfied. He is not aware of any breach by A3. PW6 also stated that A3 did not obtain pecuniary advantage as alleged in count 4 and the $ 105,220,07 stated therein is much lower than the $ 842,000 that China Henan actually paid. He said China Henan had no contract with Al. He also said there was nothing illegal about the payment to A3. It is not proceeds of crime. Still in cross, PW6 stated that their records did not have A3's tax clearance certificate for 2013. PW7 was George Manyele, a Civil Engineer in the employ of RDA as Director - Construction and Rehabilitation responsible for the supervision of contractors and consultants on major projects in Zambia on roads. It was his testimony that he was approached by officers of ACC in March, 2017 as regards the Mansa-Luwingu Road project. According to PW7, he confirmed that RDA had engaged China Henan on the project and presented to the officers the signed contract. (Referring to P13). PW7 also confirmed that a number of subcontractors had been appointed on the project and that A3 was nominated. He identified P14 as the nomination letter on which A3 was appointed together with other subcontractors. It was PW7's further testimony that RDA has modalities and guidelines on engagement of subcontractors on road works. He produced the same document and it was admitted in evidence marked J22 Pl 9. He explained that this is a framework on which RDA has been ,. implementing subcontracting designed to ensure that local frrms participate in implementation of projects above K 30 million. The guidelines provide for 2 types of subcontracting namely domestic and nominated. Under domestic subcontracting, the main contractor selects a contractor to work with where as under the nominated subcontracting, the employer, RDA, nominates the subcontractor to work with the main contractor as was the case with A3. When cross examined, PW7 stated that RDA considers competence and capacity to deliver when nominating. He said there were no issues with the Mansa-Luwingu Road project because the project was completed in a competent manner. PW8 was Noel Mutinta Muleya, an Architect employed by National Council for Construction (NCC) as Monitoring and Compliance Specialist. He told court that his duties include monitoring and inspection of construction projects in order to determine compliance with national standards and contractual obligations as well as to assist in the scrutiny of applications submitted by contractors who intend to register with NCC. It was PWS's testimony that on 14th February, 2017, he was visited by officers from ACC who were enquiring about the project that he visited in Luapula province undertaken by China Henan. According to PW8, he confirmed visiting the site with a colleague. He said they came across a site office for Mwamona Engineering and requested to see the supervisor. A Chinese national by the name of Zhao Yong Fei appeared and mentioned that he was responsible for the site. He took them to the site to check on the works and thereafter, PW8 prepared a report based on their findings which report was signed by Mr Zhao on behalf of A3 as an indication that he was satisfied that everything was correct. PW8 identified the Inspection book containing the report and it was marked 1D20. It was further his testimony that at the time the J23 site was visited, they found 3 Chines nationals, 15 male Zambians and 2 females. He said he observed that the Chinese were the ones supervising the works. This caught his attention because the information they had was that A3 was the one carrying out the works. His suspicion was that the Chinese were carrying out the works and not A3. When questioned as regards his relationship with A3, Mr Zhao said he was employed by A3. When cross examined, PW8 reiterated that Mr Zhao Fei informed him that he was employed by A3, the subcontractor. The said Mr Zhao was representing A3 at the site. There was nothing wrong with Chinese working for A3. PW8 stated that the work undertaken was satisfactory. There was no illegality whatsoever on the part of the sub-contractor and the subcontractor was entitled as of right to a payment, having successfully executed the project. He also said an entity that has been paid for successfully carrying out works can spend the money in any manner it deems fit. PW9 was Mirriam Sabi, Director, VAT operations - Zambia Revenue Authority (ZRA). At the material time, PW9 held the position of Assistant Director Tax Payers Services and Returns and Payments. She told court that under tax payer services, they design policies and provide guidelines to operating units. She explained the conditions under which a tax clearance certificate can be issued. She said a tax clearance certificate is a compliance tool which ZRA uses to ensure that tax payers are complying with payment of tax and filing of returns. The conditions are that: the tax payer must be eligible for tax types; they should file respective returns under the tax tyµes they are registered for which have due dates and whenever they are late, _penalties apply; they should make payments due. PW9 also explained that a tax payer can have an agreement to pay in instalments under the Commissioner General's authority. She further explained that a tax clearance has a time frame under which it should be issued and the clearance itself will contain that information. It can only be issued within the charge year which ls from l11t January, to 3l•t December. I' Where the tax payer has a time to pay agreement, the clearance is normally issued under a short period such as l11t January to 30th June to ensure that the tax payer is complying. Under cross examination, PW9 stated that the guidelines are in the legislation and the manual they operate under is an extract of the legislation. She confirmed that she had not raised any issue specific to the case in court. She also confirmed that she had not pointed to any irregularity in this matter. PWl0 was Obert Chileshe Kangwa, Assistant Director - Direct Taxes in ZRA, Northern province. He told court that his duties include implementing plans and programs to do with tax payer services, returns and payments. It was his testimony that in June, 2017, he received ACC officers who came with a copy of a tax clearance certificate in the names of Mwamona Engineering and Technical Services. They wanted to verify whether the certificate was issued through the office. According to PWl0, a perusal of the exercise book called Tax Clearance Register for Collection in which is recorded those that collect tax clearance certificates revealed that A3's name was not recorded. The advice centre was searched with the aim of finding any. -; i d.. ocument that related to the issuance of the tax clearance certificate in issue. The search yielded nothing. According to PWl0, he then handed over the ACC officers to the registry supervisor. • When cross examined, PWl0 stated that he could not tell if A3 was tax compliant but he did not have a document to prove that A3 was not. He also stated that issues relating to Mopani Copper Mines are ~ dealt with under the Mining unit - large and specialised office. He had no evidence on whether or not ZRA owes Mopani VAT refund for - the period under consideration. He said that Mopani was responsible J25 for collecting tax from A3 and other contractors. The arrangement was that Mopani would collect from A3 and subsequently remit payment to ZRA. He had no proof that A3 was not remitting truces to Mopani. When referred to 1D21, the tax clearance register for collection, PWlO stated that the mere fact that the document searched for is_n ot found does not mean it does not exist. He also stated that A4 has authority to issue a tax clearance certificate to a company that is tax compliant. For the tax clearance certificate in issue to have been issued, it meant L. A3 was tax compliant. He said when ACC officers sought clarity on the tax clearance certificate, he did not give the position that the certificate was a forgery. He also said 4 years had elapsed since ACC came to verify the authenticity of the certificate and yet no ZRA officer had been dismissed as a result of the certificate. PW 10 further stated that he did not know if A3 had filled in the application form. The mere fact that they did not find the documentation has nothing to do with A3. When shown an email from one Mwelwa of internal affairs unit to A4, PWl0 stated that the email indicates that there were quite a number of tax clearance certificates that were not registered in the register. When shown another email in which he was copied, PWlO admitted that the document has a list of all tax clearance certificates issued in the period 13th January, 2014 and 24th March, 2014 and A3's certificate is included. It tallies with entry 1770. He also admitted ~ - - that by virtue of entry 1770, the transaction was processed. In re-examination, ~W 10 told court that he did not come across any application form for issuance of the clearance certificate. / PW! 1 was Clement Chabala, a Registry Clerk at ZRA whose main duty to is to file records received in the Registry. He confirmed that in June, 2017, PW 10 introduced ACC officers to him who came in search of a copy of a clearance certificate for A3. According lo PW 11, the copy of the certificate could not be found in A3's file and neither could the application form nor the record deposit form. He then concluded that the tax clearance certificate for A3 for 2014 was not in the Registry. When cross examined, PW 11 stated that missing documents were not an uncommon occurrence in the Registry. He also stated that the person that was working on the document was supposed to bring it to the registry for filing. It was not A3's duty to ensure that the certificate was filed. PW12 was Chilambi Kafunti, an Accountant at the Ministry of Finance. It was his testimony that in December, 2017, he was tasked by the Accountant General to provide information to ACC officers regarding Al's earnings which came through the pay roll. A 1 was on the political and statutory payroll from January, 2014 to July, 2016. He printed the payslips for the period and compiled a summary. He produced in evidence, 32 payslips (1D22) and the summary (1D23) and the documents were admitted in evidence marked P22 and P23 respectively. He told court that the total pay for 2014 was K 215,250.58; K 208,250.58 for 2015 and; K 141,962.82 for 2016 which ended in July. Al earned a total of K 565,463.98 for the entire period. When cross examined, PW 12 stated that the money summarised on P23 was legally earned by Al. PW13 was Bibian Munachoonga, a Senior Tax Inspector in ZRA whose duties include preparation of compliance reports for enforcement agencies and reconciling tax payer accounts. It was her testimony that in January, 2017, she got a letter through her director to do tax compliance reports for five companies which included China Henan · J27 and A3. She explained the steps taken which included checking registration date of the company, the date the company registered for taxes and looking at submission of tax returns and if there are payments made on the account. The reports compiled showed that all the companies were non-compliant. PW13 identified a copy of the letter that accompanied the compliance report and it was marked 1D24. It was further PW13's testimony that for A3, some returns were V missing for all tax types and K 3 million was owing. Income tax for 2013 and 2014 were not filed and the general conclusion was that the company was not tax compliant._ When cross examined, PW13 stated that she is not aware that the other companies have not been prosecuted and that China Henan was given a contract by government in 2014 despite not being tax compliant. She is however aware that ZRA appointed Mopani to collect VAT and not a~y other type of tax from all mining related companies. She denied knowledge of a dispute over VAT refund between Mopani and ZRA. When shown unmarked documents, PW13 stated that they were tax clearance certificates issued by ZRA to A3 for the period 2013 to 2018. She said when a tax clearance certificate is issued, it means a company is tax compliant. PW13 also stated that she is aware that A4 was charged in connection with this matter and that the charge came way after the commencement of this matter in April, 2020. W_?en shown A3's tax clearance certificate for 2014, PW13 stated that the certificate should not have been issued because no returns were submitted in that period. PW13 admitted that there is ongoing . reconciliation of all accounts. She however did not know if A3 had ?een called for a discussion on the same. She said the K 3million debt remains unpaid. J28 PW 14 was Joseph Nonde, who, at the material time, held the position of Director-Direct Truces. It was his testimony that in January, 2017, he was approached by officers of the ACC who showed him a 2014 Tax clearance certificate in the name of A3 (identified and marked 1025) and requested that he comments on its authenticity. He examined the document and noted firstly that the box number was for head office, Lusaka and yet it showed Kitwe. Secondly, the tax payer identification number or Tpin was quoted differently in the body of the certificate. Thirdly, the general outlook of the certificate in terms of font size was different. According to PW14, he told the ACC officers that he doubted if ZRA officers could make such errors. He also noted that the certificate was valid up to 31st December, 2014 implying that if it was an authentic certificate, then the tax payer it was issued to was a very compliant tax payer. PW14 said he had reservations about the certificate and asked for sufficient time to verify the compliance status. The general overview was that A3 was not tax compliant. This < was because there were a number of missing returns that the v company did not submit. Furthermore, there were some payments that were still outstanding on the account. This confirmed his earlier doubts of the certificate issued as if the tax payer was compliant. PW 14 explained that in accordance with the Income Tax Act, where a tax payer makes satisfactory arrangements with the Commissioner \ General, the Commissioner General can issue a tax clearance certificate. So, when the tax payer is owing money, they can apply for a time to pay agreement and also the commissioner can give the tax payer time within wpich to file missing returns. What shows that there were satisfactory arrangements made, is the duration of the certificate. Where there are underlying issues to be resolved, a certificate will not be issued for the full year. It would be issued for 6 !£ months so that the tax payer is compelled to resolve the issues. V:.._as PW14's further testimony that he did not find a time to pay agreement with regard to A3 and none was brought to his attention. .. When cross examined, PW 14 stated that he had no evidence that the tax clearance cerlificate (1025) was a forgery. tie confirmed that A4 signed 1025 and that he was one of his officers. He admitted that an officer who issues a document, issues it in his official capacity as officer of ZRA whether or not mistakes are made. A4, by virtue of his title had authority to prepare 1D25. PW14 insisted that if a client is non-compliant, a tax certificate d not be issued unless satisfactory arrangements are made. It is not A3's problem that 1025 issued with no satisfactory arrangements in place. W'.3-S Still in cross, PW 14 denied the assertion that missing numbers are a common mistake on ZRA documents. He admitted that the only difference between the Tpin on top and the Tpin in the main body on 1025 is the missing number "l". He stated that someone had to manually input the information and so it is possible that A4 when typing 1D25 made an error by omitting one number. When shown tax certificates issued to A3 for the period 2014 to 2018, PW14 stated that ZRA has been issuing certificates to a non­ �ompliant company.. When shown a certificate issued to another company in 2014 by a different officer with a similar error as on 1025 (P.O Box number) PW14 admitted that there are internal issues at ZRA. h PW14 further stated that Mopani is a witholding company for VAT and remits to ZRA. He said if Mopani does not remit on behalf of A3, then its not A3's fault. He also said he is not aware of any dispute between ZRA and Mopani over remittance. When shown an email from Pumulo Akapelwa of Domestic Taxes Division addressed to assistant commissioners, senior inspectors and station managers dated 14.th January, 2014, PW14 confirmed that the J30 email was giving guidance that aJl tax clearance certificates should be up to 31st December. Another document shown to PW14 authored by PW9 of ZRA read that 'smaller offices could issue short term clearance certificates but within the charge year'. He admitted that Kitwe (which issued 1D25) is a big office. When shown an email, PW14 stated that it was from A4 to one John Nyirenda dated 22°d February, 2018 requesting for a list of tax clearance certificates issued by March, 2014. He said Mr Nyirenda provided the information and A3 is appearing at number 1770. PW14 admitted that !D25 was accounted for in this email. Its dated 4th March, 2014. PWlS was Phyllis Connie Tembo, a Banker/Branch Operations Manager, Atlas Mara. It was her testimony that she printed a statement of account for A3 whose main signatory is Al. She then verified the inflows and outflows on the account. She tendered the statement in evidence and it was admitted marked P26. She told court that the entries of interest were cash withdrawals of$ 5,000 on 23rd , 24th , 25th and 29th September, 2014. Then there was an in house transfer of$ 33,000 and another of$ 148,000 on 27th October, 2014. On 19th December, 2014 was an outgoing transfer outside Zambia of$ 119,730 and the last was another outgoing transfer of$ 40,290. The figures add up to about $ 575,000. When cross examined, PWIS stated that as a result of merger, the source of the funds in the account was not traceable at that stage. She also stated that its obligatory to report suspicious transactions to Financial Intelligence Centre as well as law enforcement agencies and failure to report has serious consequences on the bank. She further stated that she is not aware if the account in issue has been seized. As far as she is concerned, the account is still very active and operational. The bank has no issue of illegality as regards this J31 account. Further, she has no evidence that the funds on the account are from an illegal source. When shown the indictment, PW15 stated that the account number on P26 does not appear on any of the counts. The only banks appearing are FNB and ZANACO. .. PW 16 was Sandra Okeke, a banker at Bank of China whose testimony , was that A3's account was opened in January, 2016 at their branch in Kitwe. The mandate file shows 2 signatories to the account, Al and one Yu Hao. The account was active from January, 2016 to October, 2016. Three transactions were made on that account. The first two were inward transfers from China Henan on 2nd March, 2016 in the sum of $ 74,744 and $ 252,992.17. The next was also inward transfer from China Henan to the account in the sum of$ 47,709.61. And lastly a transfer from A3's account to Voto in the sum of $ 327,736 She produced the bank statement in evidence and it was marked P27. When cross examined, PW16 stated that all the right documentation was presented and so the transactions went through according to bank regulation. When shown the indictment, PW 16 stated that Bank of China is not appearing. She also stated that none of the three transactions highlighted appear on the indictment. PW17 was Brian Muleya Mutakwa, a Manager at ZANACO Bank. It was his testimony that following a request by ACC to ascertain transactions on two accounts being number 1013423100125 domiciled at North end branch and account number 1013423100226 domiciled in Luanshya, he printed the bank statements for the two accounts for the period March, 2014 to August, 2016. The two accounts are in Al's name. The two statements were produced and J32 marked P28a and P28b respectively. PW 17 ran through the statements to highlight the deposits he verified. When cross examined, PW 17 stated that they, as a bank, arc }~ obligated to report suspicious transactions to Financial lnttllige.ncc Centre. He also stated that the two nccounts in issue \\~.re properly opened in accordance with established procedure. As a bank. they were satisfied that all funds were from legitimate sources. To this d~\ they have never lodged a complaint as to sources of the funds in the accounts. The accounts have never been frozen on the basis of containing proceeds of crime. Still in cross, PW 17 stated that he could not dispute the assertion that A 1 has income from Mopani Copper Mines and other mines and al income from his maize business, scrap metal business and trud-s business. He said he was aware that Al was a cabinet Jninister in the period under consideration and his remuneration inch1ded allowances. PW18 was Ferguson Kombe, an Investigations officer of th AC who told court that in April, 2016 he was tasked to investigate this m" tt:er which alleged abuse of authority of ofiice nguinst n formt~ minister and then Roan member of parliament, the now Al. It wns ull~~-d th.o.t Al's company, A3 ,vas receiving undue fuvouritism in th n\unnor contracts were being tlwardcd from qunsi ROvc.·1·11n1e.nt instilllti U$ such as RDA, ZESCO and Ministry of Locnl 00\ nun :nt, lt wn, 11 alleged that A3 won a contract at ZESCO using u fnk"t) tu.~ ck~ran certificate and obtained undue advantage when it wns prod K L · million advance payment. It was further ollegc.'d tlrn.t Chinn Henon Corporation Limited had mudo hugo d posits in J\31s n ounts whi \ moneys were withdrawn and transferred to Chin "se nutionnls J'('s.ide.nt in Zambia and in China. Furthermore, it wns nlloged thtn A 1 Wt\ in possession of various huge sums of mon y nnci hnd n\odo v ui.O\\ J33 I I I I co h dcposlts in various occountu domlollcd dl Zo.n'1co o.nd Firet I Nntfonnl bnnk. I I A cording to PW18, he carried out his investigations. At ZESCO, he I looked at U1e bid submitted by A3 for the tender to construct 33 I I Rcsettlcrs houses complete with VlP double toilets under the Lunzua project. He examined the tax clearance certificate (1D25) and observed I I the following: the word serial was misspelt as 'serio'; the word I certificate was missing the letter 'i'; there were 2 different tax I clearance certificate numbers - on one, the number 'l' was missing; I the document had a box number 35710, Kitwe. It was dated 14th I March, 2014 and valid for the full year. It also had A4's signature and I A5's initials signifying that the two were involved in its preparation I and issuance. I I I At ZRA he interviewed various people and reviewed various tax I documents pertaining to A3. -For the period 2013 to 2016, it was I established that A3 owed ZRA K 3.1 million m tax liabilities. I Meanwhile, PW9, during interviews, described a tax clearance I certificate as a certificate issued by the Commissioner General valid I for the period stated thereon indicating that the person to whom it has I I been issued has fulfilled all his tax obligations or has made I arrangements satisfactory to the Commissioner General. What I emerged from this was that it was unusual for ZRA to issue a Tax I clearance certificate for a full year to a tax payer with tax liabilities. I I As custodian of IDs 21, 24 and 25, PW18 tendered the documents in I I evidence and they were admitted marked P2 l, P24 and P25 I respectively. He also produced A4's three warn and caution I statements and they were admitted marked P29a, P29b and P29c. I AS's warn and caution was also admitted and marked P30. I I I I I I PW18 testified he interviewed then of Operations for that the Director f A3, Mr Famous Kabwe who conirmed the exist,ence of the contract ZESCO (P9). Mr Kabwe the {1D31) with availed bid document which had the disputed ,certificate, P25. PW18 produced the bid document and it was admitted m.aiked P31. PW18 also re, corded a statement fr.om Al who indicated that he had contracted a Mr wisdom Sibanda whom he suspected was not submitting returns and making payments when taxes fail due. He only realised that the returns were not sulbmiUed in when they were invited by ZRA. PW18 t further testified that in dealing wih the complaint regarding China Henan, he ,conducted a search at Finance Bank Zambia Limited and in a made one account were number of deposits by Chiria Henan. One such deposit was of a sum of $467,000 and out of this$ 341,000 was withdrawn and transferred to Mr Yu Shubin and a company called An of had Voto .Engine,ering Limited. account at batik China r,eceived about $375,000 from China Henan which amount was later transferr·ed to Voto Limited. China Henan denied knowing Voto Limited with regard to this tender. Voto Limited was visited and the Yu that proprietor, Mr Shubin confirmed they had arranged with A3 and that a that they be giv•en a contract joint account be opened at i Fnance bank with both Al and Yu Shubin as joint signatories. Later another joint account was opened at Bank of China. No contract was signed between the two companies and A3 was to receive a management fee of 6% and remaining amount would go to Voto. Mr also confirmed .Skm stretch Yu that that the under the Mansa Luwingu project was done by Voto and Mr Zhou Yon. g Fei was an ,employee, of Voto. PW18, cash According to he compiled the deposits made to Al's accounts at Z.anaco and the list transactions was admitted of in JlS evidence and marked P32. Also produced was Al's warn and caution statement and it was admitted marked P33. PW 18 also discovered that in addition to the salary paid to Al as minister, gratuity was also paid to him as M.P on two occasions. The first was in 2014 in the sum of about K 804,000.00 and the second in 2016 was about K 760,000.00. There was no connection between these amounts and the questioned deposits (P32). Further, Al used to receive sitting allowances which according to PW 18 were not quite significant. PW18 also learnt that A3 had contracts with Mines such as Konkola and Mopani but analysis of the matter indicated the cash deposits in issue did not come from the payments made by the mines. After interrogating the evidence, PW18 made up his mind to charge and arrest Al for being in possession of the various deposits which he reasonably suspected to be proceeds of crime. He also charged A 1 a together with A3 with uttering a flse document namely tax clearance certificate (P25). He then charged Al together with A3 with obtaining pecuniary advantage in the way he obtained contract from ZESCO Limited for K 8.4 million of which K 1,6 million was paid. He further charged Al jointly with A3 with obtaining over$ 105,000 in a contract that was awarded to A3 whose works were done by Voto Limited. Two deposits, that is, K 450,000 deposited on 22nd July, 2016 and K 180,000 in August, 2016 were in the possession of A2 and when interviewed, he opted to remain silent. PW18 further charged A4 and A5 with making a document without authority. All accused denied the charges. When cross examined by counsel for the l to 3rd accused, PW 18 8t stated that by virtue of their employment, the 4th and 5th accused had authority to make tax clearance certificates. He admitted that errors may occur when preparing documents. He also stated that he has no proof that Al uttered the tax clearance certificate to ZESCO. In his ., . , ' warn and caution statement (P33), Al indicated that he was not involved in the day to day running of the company, therefore, could not have uttered the document. PW18 said he does not know the actual person to whom P25 was uttered. He further stated that A3 followed the right procedure in obtaining the contract from ZESCO. He however does not agree with the position that A3 performed the contract. No one complained that the contract was not performed. The works were done. When referred to P32, the list of deposits into Al's Zanaco account, PW18 stated that he does not know the sources of the amounts thereon. PW18 was shown a couple of receipts issued by Al's transport business in diverse amounts as well as the amounts stated on the indictment and he stated that Al was entitled to deposit money from the transport business to his personal account at Zanaco. PW18 said Al was given an opportunity to avail these receipts but did not. Other than the transport business, Al informed him that he also deals in scrap metal and owns numerous properties on rent. After the deposits, numerous withdrawals were made. PW18 admitted that Al was entitled to withdraw moneys from his transport business and deposit into his FNB account. When shown numerous lease agreements under the style Chishimba Kambwili Estates, PW18 stated that if a property is on lease, then it generates income. He also said Al did inform him that he had numerous contracts. When shown a contract between Mopani Copper Mines and A3 dated 30th April, 2011 with a contract price of $ 729,804, PW18 admitted that Al was not yet a Minister at the time. As regards the RDA contract, PW18 stated that 20% was meant to benefit a citizen owned company. The main contractor was China J37 Henan and A3 was sub contracted. Bringing in Voto, according to PW 18, was illegal. In cross examination by counsel for A4, PW 18 was shown a job profile for a senior inspector, a position held by A4 at the material time, and he stated that the role of senior inspector included issuance of tax clearance certificates to all tax payers. When shown unmarked defence documents, PW 18 stated that the documents indicated that there were tax clearance certificates not traced to the register and that there was need for a Revenue clerk to attend to filing of documents. When shown a tax clearance certificate for a company called Mentra Enterprises signed by one John Nyirenda and issued in October, 2014, PW18 confirmed that the errors in the spelling of the word 'serial' and 'certificate' on P25 were the same as on the Mentra certificate. He also confirmed that even the box number was the same on both documents. PW18 could however not confirm if the errors on the Mentra certificate made it a fake document but stated that P25 is fake. He also couldn't confirm if Mr Nyirenda has been arrested for issuing the Mentra certificate. He further couldn't confirm the authenticity of the guidance to station managers to issue certificates within a charge year. H .. e said PW9 did not avail him this document. He however said it was unusual for P25 to have been issued up to 31st December, 2014 when A3 had tax liabilities. When shown another defence document, PW18 stated that it shows that Mount Meru had tax liabilities of up K 1,500,000.00 and yet was issued a tax clearance certificate on 5th January, 2018 valid up to 31st December, 2018. It was signed by one Moses Shuko who to his knowledge, has not been arrested. ----, When cross examined by counsel for AS,- PW 18 stated that P25 was - - ---- ~ approved by AS's supervisor. He said that the fact that the document had typos is one of the reasons he concluded that it was fake. In their defence, the accused opted to give evidence on oath. A 1, Chishimba Kambwili testified that A3 is a family business. The directors are his son, A2 and his wife and he is Board Chairman. He and the two directors had a loose gentleman's agreement to start a mining business. That business was funded from his other businesses and he paid for the mining equipment. The arrangement was that he would control the finances and recover his investment slowly until the company stood on its own. According to Al, he would be drawing some money as and when he had a need for it and deposit in his personal account. It was also Al's testimony that he owns properties across Zambia where he earns rentals including blocks of flats and farms. At the time of the charge, he owned 30 blocks of flats in Luanshya. Al produced 19 Tenancy Agreements Collectively marked D 1. He also produced a title deed to prove ownership of these properties as well as a letter from Atlas Mara showing that the bank has in its possession a title for a property along Ndola Road Luanshya which has 12 flats. The title deed and letter were tendered in evidence and marked D2 collectively. It was further Al's testimony that he runs a transport business in conjunction with A3 and this is because at the time of purchasing trucks from UK, he had to use an institution with a TPIN. He did not have a personal TPIN. So, the arrangement was that A3 would be the owner of the trucks and he would be the absolute owner. The business has a total of 14 thirty tonner trucks that he uses to ferry goods within and outside Zambia. Al said he has had contracts with J39 FJ~A, Vorun bcvcrnges, Za.mbezi Portland and lndivldua.le. He tendered in evidence the White Books for the 14 tTucks and they were marked 03. Ho also tendered two contracts collect.ively admitted and mo.rkcd D4 plus 14 recclpts under the transport business and they were marked D5 collectlvoly. To show that A3 has had contracts from which money was earned, Al produced contracts between A3 and Mopani, Konkola, Kruger Veolia, ZESCO, Gomes Haulage Limited, Government of the Republic of Zambia, China Henan and Luanshya Mines and they were admitted in evidence marked D6. He highlighted that A3 had a contract with KCM worth over$ 11 million dollars. Al also produced bank statements for 4 accounts held by A3 at Atlas Mara Luanshya branch marked D7a as well as a letter from the bank dated 15th May, 2021 showing that Al, his wife and son are signatories to these accounts marked D7b. To prove the existence of a contract between A3 and FRA, Al produced 43 loading orders collectively marked D8. He said the company earned K 12 million from this contract after the kwacha was rebased. He also produced a contract between A3 and Luanshya Copper Mines in which over K 6 million was earned and it was marked D9. To prove that he was not involved in the day to day running of A3 but was merely a Board Chairman, Al produced as part of his evidence a resolution of change of particulars of Directors (IDDl0a), PACRA print out showing Shareholders (IDD!0b) and Power of Attorney (IDDl0c) and the documents were marked D 10 a - c. He said the power of attorney (D !0c) clearly defines his role. As Chair, he is not involved in going to ZRA to make applications and he is not involved in tender procedures. Al further told court that a summary was compiled showing the sources of the amounts deposited in the Zanaco account which are subject of the 34 counts alleging proceeds of crime. The said summary was admitted in evidence marked D 11. He highlighted the features of D11 which generally shows that on diverse dates, moneys moved from the Mwamona Engineering Atlas Mara account to the Zanaco account (personal account). It also shows that the cash payments received from the transport business (as per receipts marked D5) were deposited into the Zanaco account. In reacting to count 4, Al told court that to the best of his knowledge as chairman, A3 was contracted, performed the job and legitimately earned the $ 105,220 as rightly stated by PW6. Al said he was not mentioned as the person that received the money but that A3 did. In concluding, Al testified that A2 is his son and from time to time would give him money to deposit. He made this clear during investigations but he was charged anyway. When cross examined, Al stated that the moneys in counts 2 to 39 were obtained from the transportation business and Mwamona Engineering account. They have been running the transport business since 2012/2013 under the style CK Transporters. It was a registered business even at the material time and they did have a licence for the use of the vehicles as pubic service vehicles as per Road Traffic Act. Al also stated that A3 had outstanding tax obligations. He denied the assertion that the tax clearance certificate, P25 portrayed the position that A3 had cleared its tax obligations. He also denied the assertion that a tax clearance certificate is only issued under two circumstances, that is, when the company has no obligation and when a time to pay agreement has been reached. He explained that ZRA entered into an agreement with all suppliers to Mopani Mining J41 Company and aJl contractors Umt Mopani must be collecting taxes when paying these companies and remit the same to ZRA. Mopani and ZRA had a misunderstanding that mode Mopani withhold the moneys. Al said he was not privy to the agreement between ZRA and Mopani but that this was explained to him. He also said he had not come across any document indicating that A3 was tax compliant in _Qie Eeriod 2Ql.3_to�Ol..5_.__lie�dmitted to not producing any evidence to show that taxes were paid. He only learnt of the existence of P25 when ACC called him. When referred to D10, Al stated that A3 was operating various accounts but he was not signatory to all of them. He also stated that counts 5 to 14 are covered under moneys from Atlas Mara Mwamona Engineering account and these moneys ended up in his personal account. The loose family agreement following his funding of the company in the initial stages allowed him to recover his money. ln re-examination, A1 told court that the charges against him are not about paying taxes. He also said A3 had not met its tax obligations because Mopani had not remitted the money to ZRA. DW2 was A2, Mwamba Kambwili. He testified that Al is his father and a businessman of high standing. Thus, the fact that money comes to his and A1 's possession is not strange. He has, time and again, been sent by Al to deposit money into Al's personal account. When he was called by ACC, he did state that he was merely sent by his father to deposit the money and that he knew nothing about where the money came from. When cross examined, A2 stated that he became director in A3 when A3 was registered and that was before 2010. The other director is his mother. He also stated that he had no idea how A3 was awarded a contract by ZESCO as he was in the United Kingdom. J42 DW3 was Famous Lengwe Kabwe, the Chief Executive Officer of A3. He testified that A3 had an understanding with a ZRA accredited agent by the nam�_ o·f- Wisdom Sibanda of Incledon consulting over tax issues. He is the one that used to submit documents to ZRA and he would be paid a commission. According to DW3, Mr Sibanda would receive inputs from the company accountant on income, expenses, wage bill, PAYE and VAT input and output. The agent would then come up with a declaration submittable to ZRA. At the end of the year, ZRA and the agent would balance off and the company would be issued a tax clearance certificate. It was DW3's testiql.ony that as Mwamona, they had no direct interface with ZRA. All their --------- transactions were �a�led_by the.agent. DW3 produced in evidence copies of 9 tax clearance certificates issued to A3 between 2014 and 2018 marked D12. DW3 also produced a template and assessment forms showing that they used to submit to the agent marked D13. The said agent, Mr Wisdom Sibanda has since died. His death certificate was admitted and marked D13a. ·..:_:..:..:..::..::...:..:..::..::.�=--=-��:...:::....:�:....=-=-=��� . It was DW3's testimony that as far as A3 is concerned, they have been tax compliant from 2013 to date as evidenced by the certificates duly issued by ZAR . Their role ends at submitting inputs to ZRA. through the agent and it is up to ZRA to issue or not to issue the certificates. He said when one compares the 2013 certificate to the 2014 certificate, one notices that the typographical errors are similar and yet the two documents were signed by different ZRA officers or authorised signatories and duly stamped with a genuine ZRA authorised date stamp. DW3 thus stated that count 2 is not correct as A3 has no input and Al is not involved in the day to day running of the company. DW3 also testified that ZRA did decide that Mopani Cooper Mines would recover Value Added Tax (VAT) at source from the suppliers and contractors and A3 submitted returns to Mopani when they fell due. Thus, the failure by Mopani to adhere to the agreement with ZRA to remit VAT from A3 to ZRA is not A3's fault. That's the more reason why ZRA was issuing tax clearance certificates to A3. As regards count 3, DW3 told court that the contract between A3 and ZESCO provided for 20% advance payment for as long as they submitted a bank guarantee for that sum of money. According to DW3, if A3 wanted to steal that money as alleged, it would not have been bank guaranteed. DW3 said the K 1,652,482.81 was genuinely obtained. As regards count 4, DW3 testified that A3 entered into a contract with China Henan worth K 7,650,000.00 as a subcontractor. After securing the contract, they realised that it would not be economically viable for them to buy new equipment. They then entered into an equipment supply and operator contract with Voto Engineering services. All the money received from China Henan was for the works undertaken by A3. DW3 denied the allegation that they stole the $ 195,220.07 from China Henan. He said even China Henan confirmed to court that money paid was worked for. He thus wondered why they we.re in court. When cross examined, DW3 reiterated that A3 did file tax returns C through the agent for the certificate in issue (P25). He, however, had no proof of that fill He admitted that without tax returns, a tax � ... clearance certificate cannot issue. He also admitted that there was no time to pay agreement between ZRA and A3. He, however stated that it was not correct to assert that P25 was issued without authority. It was properly issued. He further stated that A3 had no reason to question the agent. They gave him inputs and the only proof he would avail to show that he had submitted. documents would be the certificate itself. The company did not demand any other proof. DW4 wns Musonda Bruno Lukwcsa, A4 herein. He told court that he has worked for ZRA for 22 years. In 2014, he held the position of Tax Payer Services Manager. Between February and March, 2014, he was Manngcr ut Kitwe office and had 7 officers under him including AS. ,. His responsibilities included issuing tax payer's certificates such as tax clearance certificates. It was A4's evidence that at ZRA, when given a new responsibility, you are also given a profile prescribing the scope of your responsibilities. A4 produced the document titled Role profile and it was admitted marked D14. He said D14 shows that he was responsible for issuing tax clearance certificates at Kitwe office. He was the only one with that responsibility. A4 explained that when a tax payer requiring a tax clearance certificate walked into the office, the officer would check the tax compliance status of that particular tax payer. If there were no debts and no returns missing, the officer 'Yould straight away prepare a compliance report and 2 copies of the certificate and recommend issuance of the certificate on the compliance report to the manager. In the event that complian.ce report shows existence of some debts and missing returns, the officer would inform the client and if the client agreed, he would be sent to Returns and payment unit and later to arrears and compliance unit. If the client disagreed with the position given, he would be sent to the arrears and compliance unit to settle matters. A4 also explained th at a tax clearance certificate is not issued to a tax payer when returns and compliance unit confirms that debts are owing. However, there are time when not all returns and receipts are accounted for and so the account would have to be reconciled. A4 testified that on a quarterly basis, he would forward reports to his station manager and these reports would contain information relating to tax clearance certificates and other certificates issued in a quarter. He tendered as part of his evidence a report for the first quarter of 2014 (marked D15). He showed court the tax clearance certificate si s u e d t o A 3 n u m b e r e d 1 7 7 0 si s u e d o n 4 t h March, 2014. The length o e f x a p c a l e n i r t e fii d c a th t e a t d e t p h e e n d gu s o di n e g n i l u e d i s e fo l n i r e s 2 0 g i v e n w i e n r e h t a h t t a p t a r al t c i l u tax l a r y c e e l ar a r . an ti � c e > --- �ertificates were to be issued up to the end of the year and this was to avoid congestion in bigger offices such as Ndola, Lusaka and Kitwe. Smaller offices could issue shorter term certificates. A4 further explained that he received the 2014 guidelines via email from Sabi, PW9 herein, and he produced the same as evidence. It was marked 016. ' ,.. . On the time to pay agreement, A4 testified that it was a scheduled payment plan entered into between ZRA and a tax payer when ZRA satisfied itself that the tax payer had no capacity to pay the whole debt at once. Such an agreement is only entered into when the tax payer agrees to the debt and not when there is a dispute. When referred to P2 l, the tax clearance certificate collection book or register tendered by PWl0, A4 told court that missing documents was a common occurrence as highlighted by PWl0. One would not know that documents were missing unless there was someone looking for them. After identifying the problem of missing documents, as manager, A4 deduced that the problem lay in the fact that they did not have a clerk in the tax office. He asked that the position be filled through an email sent to his superior Felix Ntalasha. However, nothing was done then. He produced the said email and it was marked D 17. A4 told court that prior to him joining the Kitwe office in 2013, there was a case were an auditor called Mwewa Chilubula highlighted that a lot of registers were devoid of tax clearance certificates. He wrote an email to A4 stating that fact and the email was produced in evidence marked D18. Attached to the email was a schedule of tax clearance certificates which could not be traced in the register for 2013. He pointed out that the relevance of this evidence was to show that it was not peculiar for documents to go missing at Kitwe office. In order to minimise the problem of not recording the certificates in the register, A4 issued a directive that only one officer issues certificates. This was through an email to his officers directing them to send all tax clearance certificates to AS so that if one went missing, they would not know who to point at. The email was admitted and marked D19. ., It was further A4's testimony that on a date he cannot recall, he was ; .. summoned to the Director's office where he found ACC officers. They gave him a copy of a tax clearance certificate and asked him if he originated it. He could not confirm because it was a copy. Later in 2017, he was again interviewed and he gave a statement. In the first quarter of 2018, a warn and caution statement was recorded from him and he was eventually arrested. According to A4, he continued working normally and was only charged at work in April, 2020 way after this matter had commenced in court. The charge was that he issued a document outside procedure. . A4 produced the charge form ·and his written statement and the two documents were admitted and marked D20 and D20 a respectively. The outcome was that there was no sufficient evidence to uphold the charge and he received a letter of acquittal. The letter was produced (marked D21). On P25, A4 told court that the errors identified should not be an issue. The document was sent to all offices by PW9 with those errors. Typists type manually so it is not peculiar to have errors. He testified that PW9's guide to issue all certificates up to the end of the year was followed by an email from Pumulo Akapelwa titled issuance of tax clearance certificate. A4 produced the email (marked D22). According to A4, the assertion that tax clearance certificates can only be issued where there are no liabilities is not true. The certificates are issued even when there is a debt and even when there are missing returns. This is how ZRA has been operating. It really depends on guidelines given in a year. A4 then produced an email from one Clement J47 Sambo.ko who was in ,charge •Of debt showing A3 as a tax payer appearing on unreconciled debt. The email w.as tendered marked D:23. As a:t .28-th March, 2014., A3's account had not been reconciled .. meaning .ZRA did not know the true .state of that account until it was reconciled. � ✓ A4 concluded by saying it is not true that a tax clearance certificate is issued only when there is no liability, It can be issued even when the . a•ccount is not reconciled. He therefore denied being guilty. \ When cross examined by Al, A4 stated that he never interacted with Al at ZRA. He said he had never seen him there. When cross examined by the learned PP, A4 stated that the signature on P25 looks like his signature. When referred to D12 (copies of tax clearance certificates) A4 stated that the contents thereon where on P25. When referred to P24, a letter from ZRA to the Director General of the ACC, A4 stated that it says the returns for 2013, 2014, 2015 and 2016 had not been submitted. Not that they were missing. P24 further states that the tax payer was not compliant. On income tax, the document says no returns submitted from December, 2013 to December, 2016. A4 admitted that he had no sight of A31s returns for. .2014 but stated that he was not in tax returns office. He also stated that a tax clearance certificate can be issued even when tax returns are missing. He said it was a legal requirement for a tax payer to file tax .returns. It was however, wrong for PW9 to have stated that the requirement for issuance of tax clearance ,certificate is that returns must be filed. T�re is a guideline that allows issuance of a certificate to a tax payer that has not filed tax returns. He, however, had not� produced the said guideline in his evidence. J48 In re-examination, A4 told court that where ZRA cannot establish the ? 77 position of a client because the account is not reconciled, they issue the tax clearance certificate because its not the client's fault. DWS was AS, Mulenga M. Kapilima. She explained that when a tax payer made a follow up on a clearance certificate, they were advised to visit Returns and Payments for a compliance status. One of her responsibilities under the Tax Payers Services was to prepare all tax f clearance certiicates. It was AS's testimony that while on duty at the Kitwe office on 4th March, 2014, one of the officers from Returns and Payments approached her and informed her that Al was in his office making a follow up on a tax clearance certificate. The tax account was undergoing reconciliation because the balances brought forward from the old system had affected its compliance. According to AS, she proceeded to prepare the tax clearance certificate because she was ided by the Returns and Payment department. She then took the � • �\_J., �arance for approval to her supervisor, A4. It was issued from 4th n � arch to December, 2014. � � Sometime in 2017, she was invited to ACC for an interview. During q \\...: .__.')GJ interviews, she was shown a tax clearance certificate for 2014. She clv- k -h v­ then recalled that she had prepared a clearance for A3 and admitted to preparing it. She was asked why it had so many errors such as incorrect spelling for certificate and a number missing from the TPIN. She explained to the officers that in September, 2013, was ACC ZRA migrating from manual to electronic and they received a template or standard form to be issuing because the tax clearance certificate had not yet been uploaded on the system. Those errors were treated as normal because under the Income Tax Act, section 70 covers any errors in assessment. The errors on the document were made at J49 source. The document came from the Design office through PW9's office. Her input on the document was the TPIN. It was AS's evidence that she was invited for another interview after some time and a statement was recorded from her. She was then arrested. As part of her evidence, AS produced a Tax Payer Services Unit operating manual admitted and marke D24. It lists the responsibilities under tax payer office. A5 told court that she was charged with issuing a clearance certificate without following procedure in March, 2019 and on 9th October, 2020, she went for disciplinary hearing. She was cleared. In November, she received her early retirement letter for which she had applied before the case started. She was retired with full benefits after almost 24 years of service. It was AS's further testimony that she had full authority to prepare the clearance in issue. She said the law is that a certificate can only be issued to a compliant tax payer. However, at the time, ZRA was migrating from the old to the new system and a lot of tax payers had a challenge. As a result of long queues, they operated under guidelines from management. AS explained that at the material time, they had about 20,000 tax payers and a lot of returns were just piled in data entry office. In the case of A3, the debt was not yet known as the tax account was under reconciliation. Under the guidelines, they were to issue a clearance up to the end of the ye8!, It was not her responsibility to enforce submission of returns. Where there was a ) debt, it was Arrears and Compliance to enforce payment_; To her knowledge, A3 was reconciled sometime in May, 2017. � �1.r � was prosecution evidence that returns were missing on A3's account in 2013 and yet a clearance was issued. Clearance certificates were issued even in 2017 2018 and 2019 under similar circumstances by other officers of ZRA and yet they are not before court. JSO When cross examined by Al, AS stated that she did see Al at the office ut she did not converse with him. She said Al did not ask her for the certificate. AS also stated that P25 is not a fake document. Its an authentic ZRA document. al When cross examined by the learned prosecutor, AS stated that she did see the prescribed form before issuing P25. She however does not know where the document is today. She agreed that submission of tax return is one of the requirements for issuance of a tax clearance certificate. She said she did not see a return before preparing P25. . She also said there was a compliance report because the account was under reconciliation. In re-examination, AS told court that she issued P25 despite not seeing the returns because she was guided by Returns and Payments that the account was under reconciliation. She also told court that under the current situation, clearance certificates are issued even when one owes ZRA or does not have returns. I have considered the evidence and written submissions on behalf of the accused. The submissions seem to indicate that the 4th prosecution did submit in writing but the said submissions did not reach me. I now state my findings of fact. It is a fact that in March, 2014, the 4th and 5th accused, who were at the material time employees of ZRA at the Kitwe office, issued the tax clearance certificate in contention, P25, to A3 herein. AS generated the document while A4 approved it fV by appending his signature. P25 was submitted to ZESCO Limited by A3 when A3 tendered for the contract known as ZESCO 063/2014. V A3 was paid a sum of K 1, 652,482.81 under the same contract. __!. J51 rt is undeniable that A3 was subcontracted under a contract awarded to China Henan International Corporation by RDA for the Mansa Luwingu project and A3 received over $ 800,000 from China Henan under the same. It is further a fact that between May, 2014 and September, 2016, Al did receive, in his personal accounts held at Zanaco bank and FNB, I • . •! f varied cash deposits ranging from K40,000.00 to K 640,000.00. The prosecution sought to establish that A4 and AS made P25 without authority, that P25 is therefore a false document and consequently A3 should not have been awarded the contract by ZESCO Limited. Further, the prosecution sought to establish that A3 did not execute the sub contract, thus, any moneys paid by China Henan to A3 under that sub contract were dishonestly obtained by A3. Furthermore, the prosecution sought to establish that the moneys deposited to Al's personal accounts held at Zanaco and FNB are reasonably suspected to be proceeds of crime. However, I ask myself if there is sufficient evidence to prove the allegations made by the state. .......,_ I As regards the allegation on making a document without authority (count 1), the prosecution's case is that a tax clearance certificate can be issued only if it is established that a tax payer was compliant with regard to return submission and tax payments in all tax types. A tax payer can however enter a time to pay agreement with the Commissioner General if the tax payer cannot pay the debt at once and in that regard will be issued with a short-term tax clearance certificate. The evidence on record has established that tax returns in relation to A3 were not submitted and further that A3 had not entered J52 into a time to pay agreement with ZRA. It is on this basis that the prosecution alleges that P25 was made without authority. It is the prosecution's position that at the least, P25 should have been issued for a shorter term so as to compel A3 to comply. However, the defence evidence, particularly AS's testimony, is that AS generated P25 following the r.,e.c ommendation to issue it made by the Returns and Payments department which department was responsible for scrutinising a taxpayer's compliance. A4's evidence is that he _ signed the certificate after satisfying himself that it was proper to do ----------- --- so meaning the application form had been completed by the tax a er ____;p ? and the compliance unit had given a go ahead. . � r ' "" I n o t e t h a t t h e r e i s n o d o c u m e n t a r y e v i d e n c e t o s u p p o r t t h e a s s e r t i o n (] that the application form was completed and that the Returns and payments department recommended issuance of P25. However, I !'-file � remind myself that it is not the accused's duty to prove his innocence. f"'Q\...,. The prosecution bears the burden to prove the charge. T-hus, the .....--- ?7 prosecution was under an obligation to prove beyond reasonable ---- doubt that no such recommendation was ever made by the relevant . ' unit. This court was told, and the evidence was not rebutted, that the ZRA Kitwe office had a challenge when it came to record keeping as it did not have an officer to file documents. The issue of missing documents was quite common. D17 is an email evidencing the fact that services of a revenue clerk were requested for in March, 2014. In light of the state of affairs as it existed then, this court cannot rule out the possibility that the relevant documents were attached at the time A4 signed the certificate but that the said documents could not be found �ue to the disorganisation in the Registry as a consequence of the absence of a filing clerk. As it is, this court will never know if the two accused, A4 and AS acted with or without considering what the relevant unit or department had to say as regards whether or not to issue a certificale. / Further, the defence is on record as saying that P25 was issued up to , _ 1,..,t' the end of the charge year, that is, up to 31 t December, 2014 becaus · � � of the . directive issued by PW9 to all station managers. The_emaily C marked D 16 purportedly authored by PW9 states that tax clearan e � _ � certificates were to be issued up to the end of the year to avoid w- •congestion especially in big stations. Kitwe, the office that issued P25 , ·. )._ , ',,, was considered a big station. This evidence was not challenged. C ear y, therefore, A4 and AS cannot be faulted for issuing a certificate � o-- �­ that was valid up to the end of year. That was the directive issued 2 � . �� /4 W, There was also evidence from the defence that was not rebutted that P25 was issued despite the absence of the conditions ne � t?J> issuance because A3 was on the list of unreconciled debts and it was (� \ the practice at ZRA that tax certificates were to be issued to a payer whose debt was not reconciled. I had no qualms accepting this �.. � explanation because A3 was issue1 d tax clearance certificates in the � � succeeding years, that is 2015 2 0 1 6 a n d 2 0 1 7 u n d e r s i m ilar (.\.. W-01 n t � :::::::�::::: ::.:.:::::.:c:: r:::1�::P::::: -,-0 being tax complaint. This is evident through P24 which shows that not all returns were filed. That P25 had errors does not in my view make the document fake as it was alleged. Other tax clearance certificates produced in defence for other companies and issued by ZRA officers not before court did show that the errors highlighted were not peculiar to P25. The undisputed evidence on record is that the initial template sent to the issuing officers through PW9 was the one with the mistakes which were unfortunately perpetuated. J54 The foregoing is merely to show that the evidence brought forth by the state in its endeavour to show that A4 and AS acted without authority did not establish anything unusual. It appears from the evidence that ,. � �ere were irregularities in the way business was conducted at ZRA as it ...r elated to issuance of tax clearance certificates . '• What I ought to determine is whether the two acted without authority when they made P2S. The evidence on record establishes that A4 was authorised to issue tax clearance certificates. That was one of his duties as outlined in the role profile produced in evidence and marked •. . 014. AS was under the Taxpayer Services unit and according to the operating manual D24, one of the duties of an officer in that unit is to \ prepare tax clearance certificates. Further, as station manager at Kitwe office, A4 issued a directive that AS would be responsible for preparing all tax certificates. There was no evidence to show that this I I. directive was irregular. Clearly therefore, the two accused had authority to issue tax certificates and P25 was no exception. I quite agree with the submissions on behalf of A4 that the assertion by the state that a tax clearance certificate could not be issued without the filing of returns does not mean that A4 did not have the authority to issue P25. This argument applies to AS. In buttressing their argument, A4's advocates drew my attention to the case of Nyalugwe v. The People (2) where the Supreme Court stated that "It is quite clear from the wording of section 356 that the essence of the offence is the want of authority, not the simulation of someone else's signature." Similarly in this case, the issue for primary consideration is whether the two accused had authority to issue P25. The element of compliancy is secondary. ------....::___--'-----✓ JS.5 - ' ,... .� , - • . From the evidence on record, it is clear to see that the two accused had the authority to make P25. They m.:ID:. have been reckless in the way they handled the application for the issuance of P25 by not C paying close attention to the rules of procedure but that has nothing .. ·to do with their authority. It is important to note that the word 'may' has been used because as earlier alluded to in the judgment, there is no cogent evidence to dispel the claim by A4 and AS that the unit charged with scrutinising a taxpayer's compliance okayed the issuance of P25. The state's case is further weakened by the fact that an intent to defraud or to deceive has not been established. There is no evidence that at the time of issuing P25 to A3, A4 and A5 were aware that the certificate would be used to obtain pecuniary advantage through an award of a contract to A3 by ZESCO Limited. The prosecution should have at least shown the benefit obtained by A4 and AS or that which the two stood to gain through the issuance of P25. What is on record is that the two acted in the usual course of theri duties. . The conclusion therefore is that the allegation that P25 was made without authority is not supported by the ;evidence on record. No evidence has been adduced to prove that P25 is a false document within the meaning of section 344 of the Penal Code. It was prepared ,-.., and issued, albeit irregularly, by officers clothed with authority to issue it. This pro�ably explains why both A4 and AS were cleared of the disciplinary charges laid against them by their employer, ZRA. It is a cardinal principle of the law that no matter what suspicion attaches to an accused, where there are doubts, th,e same must be resolved in favour of the accused. In the circumstances, I find A4 and A5 NOT GUILTY in count 1 and 1 accordingly ACQUIT them. Having found that P25 is not a false document, it follows that the charge of uttering a false document has no legs to stand on. Consequently, in respect of count 2, I find Al and A3 NOT GUILTY and I accordingly ACQUIT them . ... Turning to count 3, it is alleged that A 1 and A3 obtained pecuniary advantage by false pretences. The prosecution sought to establish that P25 was instrumental in the decision by ZESCO Limited to award the contract known as ZESCO 063/2014. Now, it is a fact that the said contract was between ZESCO Limited and A3. Al was not a party to the contract and it has been satisfactorily shown that he was neither director nor shareholder in A3. The evidence further establishes that ZESCO Limited made an advance payment on the contract ZESCO 063/2014. The payment remittance advice marked P7b and the advance payment guarantee from FNB (P7f) and all other documents forming part of P7 point to the fact that payment was made to A3, a limited company with a distinct legal personality capable of receiving and paying out moneys. There is no evidence that a payment was also made to 1 under the same contract. A by ZESCO Clearly therefore, Al ought not to have been charged for obtaining pecuniary advantage in count 3. Nevertheless, can A3 be said to have obtained pecuniary advantage as alleged? From a reading of section 309A quoted earlier in the judgment, the element of false pretence ought to exist for an accused to be found guilty of obtaining pecuniary advantage. It must be shown that the accused made a false representation which representation it knew to be false or did not believe to be true. Thus, firstly, the prosecution ought to have established that A3 made a representation to ZESCO that A3 had a genuinely issued tax clearance certificate from ZRA which representation was false in fact. J57 The prosecution has not satisfactorily proved that P25 was not genuinely issued. There is no evidence that A3 connived with A4 and AS to fraudulently make P25. As has been found, P25 was made by r officers with authority to make it. In the absence of proof of dishonest representation, it is inevitable that the charge collapses. As such, I find both Al and A3 NOT GUILTY in count 3 and I accordingly ACQUIT them. •• I I now deal with count 4. I ask myself if Al and A3 dishonestly obtained US$ 105,220.07 from China Henan. As alluded to earlier, the prosecution had to show that Al and A3 . - made a representation to China Henan that A3 was executing the l works on the Luwingu Mansa road when in fact not and as a result of this dishonest representation, obtained over$ 100,000. The key witness in this charge was the chief representative of China Henan (PW6) who is on recording as saying A3 was nominated as a subcontractor to work on the Mansa-Luwingu project. PW6 further told court that A3 appointed a representative to act on their behalf called Zhao Yong Fei and letters (produced and marked Pl7 ) were written to China Henan introducing the said individual. PW6 said there is no record of appointment by A3 of a third party to work on the contract. PW7 employed by RDA told court that there was no issue with the Mansa-Luwingu project because it was completed in a competent manner. I am alive to the evidence of PW8 of the National Council for Construction to the effect that he visited the project and observed that Chinese nationals were the ones supervising and carrying out the J58 works. One Chinese called Mr Zhao, who was representing A3 at the site, informed him that A3 employed him. In cross examination PW8 stated that there nothing wrong with a Chinese working for A3. Meanwhile, the evidence of the investigating officer, PW18 suggests that A3 did actually subcontract a company called Voto without China Henan's consent thereby going against clause 3.7 of the subcontract (P16) which states that the subcontractor shall not assign the subcontract nor subcontract the whole or any part of the work to be ... . performed without prior written consent of the Contractor. PW18's testimony is contrary to the testimonies of PW6 and PW8 who both said the Chinese representative was employed by A3. Furthermore, there was no contract produced to show that Voto was subcontracted contrary to the terms of the subcontract and the so called Yu Shubin that PW18 claims to have spoken to about the relationship between A3 and Voto was not called to testify and confirm the allegations of the existence of an illegal sub contract. For purposes of the matter before court, the important factor to consider is whether A3 was erroneously paid through dishonest representations made to China Henan. From the evidence of the witnesses and particularly PW6, it is clear that A3 was rightly paid as the works were carried out satisfactorily. The project was concluded. PW6 is on record as saying that actually, A3 was paid far more than is stated in count 4. China Henan paid A3 in excess of$ 800,000 and never complained anywhere that A3 had breached any term of the subcontract. In the circumstances, I have also failed to appreciate the allegation that Al and A3 obtained pecuniary advantage by false pretences in count 4. As such, I find them NOT GUILTY and I ACQUIT them accordingly. J59 Counts 5 to 39 shall be dealt with simultaneously. What ought to be determined in these counts is whether or not the prosecution has proved that Al had in his possession moneys in his accounts and that these moneys may reasonably be suspected of being proceeds of crime. It is not in dispute from the bank statements produced in evidence for account ending 125 and account ending 226 domiciled at Zanaco bank Northmead and Luanshya branches and the account domiciled at FNB that the amounts stated in counts 5 to 39 of the indictment were indeed deposited into the three accounts which are Al's personal accounts. As found, the amounts are varied with the lowest amount being K 40,000 and the highest amount deposited being K640,000.00. The element of possession of the money having been established, the next issue to be considered is whether the money may reasonably be suspected of being proceeds of crime. The Supreme Court in the case of The People v Austin Chisangu Liato (3) stated that it is the prosecution which must harbor the reasonable suspicion and which must prove it. The Court quoted with approval the case of Shauban Bin Hassien and Others v. Chong Fook Kan and Another (4) where Lord Devlin stated as follows: "Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking, 'I suspect but I cannot prove. 1 Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is completed and its ready for trial and passes on to its next stage." The court then went on to state that reasonable susp1c1on is not arbitrary; there ought to be a factual basis upon which it is anchored. If there are no grounds which make suspicion reasonable, then such J60 susp1c1on is mere susp1c1on or is unreasonable suspicion. To prove ..... reasonable suspicion under section 71(1) of the Act, therefore, the prosecution does not have to show the link between the source of the • money or the accused to possible criminal conduct. It is sufficient that possession and reasonable suspicion are proved. So, then the question is: is there a factual basis upon which the suspicion against the accused is anchored? I am of the view that this question can only be properly answered after reviewing the evidence of both the prosecution and the defence on the issue. Section 71(2) of the Act does afford the accused an opportunity to explain the absence of reasonable grounds on his part, for suspecting that the property he was found in possession of under section 71(1) was proceeds of crime. The provision states: the It is a defence under this section, if a person satisfies the court that that person has no reasonable grounds for suspecting the property referred to in the charge was deriued or realized, directly or indirectly, from any unlawful activity. A 1 in this matter seized the opportunity and ran court through his various sources of income which included numerous properties that he owns that he has put on lease from which he receives rentals. He also tendered evidence proving that he is proprietor of a transport business from which he receives income. He also produced various contracts that A3, a company he called family business in which he is chairman, entered into with big conglomerates some of which are in m i l l i o n s o f d o l l a r s . A l t e s t i fi e d , a n d h i s t e s t i m o n y w a s n o t c h al l e n g e d t. t fr h o a m t h A e i n i n i t i o a r l l d y e r fu t n o d r e e d c o A v e r a h n i d s h i n a v d e s a tm l o e o n s t e a g r e e m e n t t o d r a w m o n e y s J61 In a nutshell, Al's evidence is that the amounts suspected o,f being proceeds crime were from legitimate sources through the bus,ines.s ventures that he has interests in. Having seen the contracts and receipts in various amounts, and there being no evidence to discredit the authenticity of the said documents, I am satisfied with Al's. explanation. I am of the view that the grounds for suspecting th.at the money in his possession was proceeds of crime have been watered down. • • • I,, As for A2, I note that in both counts 38 and 39, the account which received the money belongs to A 1. This is account 62516634450 domiciled at First National Bank. Clearly, therefore, it was·, Al in. possession of the moneys and not A2. The mandate produced! in evidence (P6) shows that the account belongs to Al only. In light of the foregoing, I find that counts 5 to 39 have not been proved. As such, I find Al NOT GUILTY in counts 5 to 39 and A2 NOT GUILTY in counts 38 and 39 and I accordingly ACQUIT them. DELIVERED IN OPEN COURT THIS 9TH SEPTEMBER, 2021. I I ........ J62