UNIT 9 - CRIMINAL DAMAGE

Learning Objectives
• At the end of this lesson, you should be able to define the
elements for the offences of arson and criminal damage.
Arson s.328 PC
 S. 328 deals with the offence of arson
 Any person who wilfully and unlawfully sets fire to;
o building or structure completed or not; or
o vessel, motor vehicle, whether completed or not; or
o stack of cultivated vegetable produce, mineral or vegetable fuel
o mine, or the workings, fittings, or appliances of a mine;
o is guilty of a felony and is liable to imprisonment for life.
 the offence of arson is therefore committed wilfully and in a manner that
is not legally justified.
Punishment is imprisonment for a term of not less than 10 years and
maybe liable to imprisonment for life.
If the arson causes death, the offender is liable on conviction to
imprisonment for life
Arson Cont’d
• R v Turner (Criminal Review Case, 1951
• R v Damaseki (1961) R & N 673
Nondo v DPP (1968) ZR 83 CA - When the prosecution fails to put
forward eye-witness proof to the effect that the accused set the fire in
question, it must disprove "any possibility" of accidental fire.
o The case thus illustrates the point that an accidental fire is not considered to
be a criminal offence.
Attempts to Commit Arson
329. Any person who unlawfully
(a) attempts to set fire to any such thing as mentioned under s.328

(b) wilfully sets fire to anything which is so positioned that would lead
to anything mentioned under s.328 to catch fire from it;

is guilty of a felony and is liable to imprisonment for fourteen years.

Destroying or damaging property belonging to another

 S335
 Any person who wilfully and unlawfully destroys or damages any
property is guilty of a misdemeanour, unless otherwise stated
 The Person would be liable, if no other punishment is provided, to
imprisonment for two years.
 For this offence, it must be demonstrated by the prosecution that
the accused wilfully destroyed the property
Endangering Life
Offender commits a felony & liable to life imprisonment if in
destroying or damaging a dwelling house & vessel there is a person
inside – reasoning – One’s life is endangered(s.335(2).

Reasoning as to why the punishment is harsh is due to the fact that

one’s life would have been placed in danger - R v Wenton [2010]
EWCA Crim 2361
Attempt to Destroy or Damage Property
 s336. Any person who, unlawfully and with intent to destroy or
damage any property, puts any explosive substance in any place
whatever;
 is guilty of a felony and is liable to imprisonment for fourteen years.
 UNIT 10 - OFFENCES
INVOLVING DECEPTION
Learning Outcomes
In this unit we shall focus on the following:
• Obtaining goods/money by Deception
• Obtaining a Pecuniary Advantage by deception
• Forgery
At the end of this lesson, the student should understand the legal
consequence of deceptive conduct.
The Law on False Pretences
False Pretences is defined in S308 of the PC
o S308 – representation made by words or conduct, of a matter of fact or 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, & which the person making it knows to be false
or does not believe to be true, is a false pretence.
 False pretenses, is a crime that is a combination of fraud and theft
where an individual lies or makes misrepresentations in order to
obtain the property of another.
 False pretenses involves fraudulently representing a fact in order to
deceive another individual into transferring title to their property.
False Pretences
 False pretenses involves obtaining not only possession of another’s
property through deception, but proper title to the property as well.
 For example, if you convince a person to sell you their vehicle for
K10,000 and transfer title to you, but you do not have the intention to
ever pay them, you will likely be convicted of the crime of obtaining
goods through false pretenses.
False Pretences Cont’d
Covers offences of obtaining something by false pretences
o Accused must by false pretence or representation obtain as a matter of law or
fact, anything capable of being stolen (s309)
o Or any pecuniary advantage (s309a)
o Obtaining execution of a security (s.310)
o Obtaining anything capable of being stolen by trick or device (s.311)
o Obtaining credit or delivery of any charge on property (s.312)
Elements of False pretence
The prosecution can only succeed to secure a conviction for obtaining
something by false pretences after establishing;
Existence of representation made either by words, conduct or in
writing.

o Conduct – a person can imply something by their conduct i.e. If a person

checks into a hotel, there is a presumption that he/she intends to pay for the
room (Harris (1976) 62 Cr. App. R. 28.

o If someone issues a cheque (representation) presumption is that cheque is

presented for payment will be honoured (Gilmartain (1983) 1 ALL EA 829, CA
Elements of False pretence Cont’d
Representation must be a matter of fact or of law
o Fact – clear
Person making the representation must know it to be false or did not
believe it to be true
Must intend to defraud
Change of ownership must be induced by false pretence.
Obtaining goods by false pretences
S. 309 prosecution needs to prove false pretence & intent to defraud
Actus reus
False Pretences
o Accused must obtain
o A thing capable of being stolen
o That thing must belong to another person &
o Through false presence & intent to defraud
Mens rea s.309
 Mens rea of obtaining property by false pretence & intent to defraud
is that;
o Accused must have planned or recklessly acted in a manner which
constitutes false pretence with intent to defraud
o Actual obtaining of property must be fraudulent or dishonestly
o Obtaining must be with intention to permanently deprive the victim of their
property.
Punishment - False Pretences
Accused who is convicted would be liable to maximum of three years
imprisonment
false pretences offences are considered to be less serious
Example: False Pretences
Wilson Makasa Kapasa v. The People (1980) ZR 114
o A was convicted on two counts of obtaining money by false pretences
o He had obtained K10 by falsely pretending that he could show someone the
person who wanted to kill him when in fact he wasn't able to do so.
o A obtained the money with the promise that the money would be returned to
them after his had performed his magic
o This implied that the owners of the money did not intend to part with the
ownership of money. Therefore the act of taking the money by the A was theft
o The charge of false pretence was set aside and substituted for theft under
S265 PC
o The sentence of 30 months imprisonment with hard labour stood
o Appeal against sentence dismissed
Example
 John Crawford Mashilipa V The People (1988 - 1989) Z.R. 113 (H.C.)
o The facts as disclosed to the court were that the complainant agreed to buy
grain bags from the accused who promised to deliver the bags two days after
K3,000.00 was paid to him by the complainant. Thereafter, the accused was
unable to supply the bags or return the K3,000.00.
o The Court held that no false pretence was disclosed by the facts. What the
facts disclose was an ordinary contract between the appellant and the
complainant.
o The appellant has not been able to fulfil his contractual promise. No
fraudulent intent can be inferred from the facts of this case. It will be
observed from the facts that the appellant and the complainant entered into
a deal, i.e.. a contract on 16th June, 1988, whose performance according to
the appellant was to be on 18th June,1988, but that never materialised.
o This was a promise by the appellant to do some act in the future. Such a
promise in the future may not constitute a false pretence.
o The conviction was quashed.
Therefore
Theft – the owner of the thing stolen has no intention to part with his
property
False pretences –The owner does intend to part with his property but
it is obtained from him by fraud ( as identified in R v. Chungu (1954) 5
NRLR 681 High Crt of Northern Rhodesia).
 it is an essential ingredient for a conviction of obtaining by false
pretences that the victim should actually be deceived by false
pretence – see Patterson Ngoma V The People (1978) Z.R. 369 (S.C.)
Also read the cases of:
o Peter Kasanda V The People (1978) Z.R. 190 (S.C.)
o Tembo vs The People [2011] ZMHC 101
Summary Elements of False Pretences
A must make a false representation
As a result of the representation, A must obtain a thing
(property, credit, money).
A’s false pretence (or deception) must cause the obtaining
of the thing (credit) &
A must act fraudulently (dishonest).
Obtaining pecuniary advantage by false
pretence (s.309 A)
pecuniary advantage refers to monetary advantage or benefit
Specific situations which could lead to a person obtaining a pecuniary
advantage are highlighted in s. 309 A;
No need to prove that the A did actually obtain a pecuniary
advantage
No need for the victim to have suffered a financial loss
Obtaining pecuniary advantage by false pretences.309A
Actus Reus

o False pretence;
o Accused person obtains for himself or another person;
o Pecuniary advantage.
• According to s. 309A Pecuniary advantage would include situations
where the
(i) Accused borrows by way of overdraft (s.309A (b) – for example, the
accused pretends to be a well established business man
Obtaining pecuniary advantage by false
pretences.309A
(i) Being allowed to take out insurance policy on the basis of false
pretence –
o for example, A represents that he is non smoker so that he could be covered
under a particular insurance policy.
(ii) Accused is given an opportunity to earn remuneration or to win
money by betting –
o for example A forges his certificates, on the basis of which he earns a salary
which does not match what he is qualified for;
o A, a UNZA student is allowed to compete in a competition for UNILUS
students only because he is falsely representing himself as a UNILUS student.
Obtaining pecuniary advantage by false pretence
Mens rea - s.309A
Deliberately or recklessly acts (false pretence)
Dishonesty in relation to obtaining
Examples of offences which are prohibited under s.310 -317 PC ( read
the sections);
o Intent to deceive
o Cheating
o Obtaining credit by false pretence
o Obtaining registration by false pretence
o False declaration for passport etc
Punishment s. 309A
S. 309A – misdemeanour
Imprisonment maximum five years
Forgery

S.342 Definition
Forgery is the making of a false document with intent to defraud or
to deceive
Document – Piece of paper providing an official record of something
Exception; Trade mark or any other sign used for commerce purposes
though they may be written or printed (S343)
Forgery
Examples of documents which can be forged
o currency notes
o Will
o Document of title to land ( Title deed)
o cheque
o judicial record
o Policy of insurance
o stamp (date stamp)
Making False Documents

How can the offence of Forgery be committed?

o By making a false document

S344 PC - Any person makes a false document who –

a) If a person claims that document is a fact when it isn’t
b) Amending the document without authority
c) Including something into a document whilst it is being drawn
without authority which if had be included would change the
effect of the document
d) Signing of a document
Making False Documents Cont’d

What is meant by signing of a document?

1) Signing in a document name of another person without due
authority whether the name of the person signing is the same as
the name of the person he is signing as
o A document is to be signed by x, but y decides to sign it without X’s
authority/a document is to be signed by XY and a different XY signs without
his authority.
2) Signing the document in the name of a fictitious person (made- up
person).
o Its immaterial that the fictious person is given the same name as that of the
person signing.
Making False Documents Cont’d
3) In the name of a different person from the person signing it and the
person signing intents to be mistaken for the person rightfully supposed
to sign the document.
o X (a mere store worker) signs where y (store manager) is supposed to sign
and X intends to be mistaken for the store manager
4) Signing a document by way of Impersonation (imitation) of another
person and the effect of that document depends upon the identity
between the person signing it and the other person whom he professes
to be.
o For a document to have effect, either x or y can sign it but x decides to
sign as y.
Intent To Deceive(344A)

S. 342 speaks of an intent to deceive and s. 344A defines a intent to

deceive as follows:
An intent to deceive is established where one person encourages
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 or believes to be true;
o and in consequence of having been so induced does or omits to do
an act;
o whether or not any injury or loss is thereby suffered by any person.
Intent To Defraud(S345)
 An intent to defraud is presumed to exist if it, at the time when the false
document was made, there was in existence a specific person
ascertained or unascertained capable of being defrauded (using the false
document).
Presumption is not rebutted by proof that the offender took or intended
to take measures to prevent such person from being defrauded in fact,
nor by the fact that he had or thought he had a right to the thing to be
obtained by the false document.
o Example: X makes a false document (will) after y’s death in order to inherit from
y’s estate. Intent to defraud is established when he makes the false document. It
is immaterial that he tried or actually took steps to prevent Y’s family from being
defrauded or that he made the document because he believed he had a right to
inherit from y’s estate because he is actually his long lost son.
Punishment for Forgery
Different types of punishment is stipulated depending on nature of
document forged.
o General punishment for forgery (S347)
o Forgery is an offence which is classified as felony
o Person found guilty would be liable, to imprisonment for three
years.
o Any person is liable to imprisonment for life if document forged is
any stated under (s348).
o Judicial or official document – seven years imprisonment (s349)
o A person who forges a stamp would be to liable to imprisonment
for seven years (s350)
Examples of Cases under Forgery & other related areas

Mukoto v The People (SCZ, 1974) Z.R. 53 (S.C.)

o Accused (A) who pretending to be a Mr Phiri requested to
withdraw K200 from commercial bank in Kitwe claiming he had an
account in Ndola under the name Kabunda store
o Bank manager (BM) phoned Ndola & discovered there was no
account under the given name
o Despite the discovery BM issued the A with a blank cheque
o A filled in the cheque. He was convicted of forgery- false document
& attempting to obtain money by false pretences. A appealed on
basis cheque was not false document because it did not tell a lie
about itself but reduced certain falsehood writing.
Mukoto v The People (SCZ, 1974)
Crt dismissed appeal on the following basis;
o Reference to S.344 was made – ‘Any person makes a false document
who: (a) Makes a document purporting to be what in fact it is not’
o Prosecution had to show beyond reasonable doubt that this was the
case which implied that offence had been committed. After having
established this, Crt considered (d) which says that a document is a
false document if it is signed:
o ‘In the name of any fictitious person alleged to exist, whether the
fictitious person is or is not alleged to be the same name as the
person signing’
o In present case it was clear that the A’s name was not J. Phiri & there
was no Kabunda store.
Forgery Cont’d
Richard Sinkonde v The People (Appeal No. 109/2018) [2019] ZMCA 26
–
o Forgery is not the making of an instrument which purports to be what it really
is, but which contains false statements. Telling a lie does not become forgery
because it is reduced into writing.
o the fact that a document contains false information does not make it a forgery.
o It must lie about itself or to use the wording in section 344 of the Penal Code,
"purport to be what it is not".
o In this case, the cheque was not a forgery because it did not contain any
alterations nor was any information introduced that altered its effect after it
had been prepared;
o it was not signed in the name of any other person without the authority of that
person. It was signed by two signatories who signed it in their own names.
Further Reading
o Davis Jokie Kasote V The People (1977) Z.R. 75 (S.C.)
o Chuba V The People (1976) Z.R. 272 (S.C.)
o Phiri (Charles) V The People (1973) Z.R. 168 (C.A.)
o Chanda Simwaba v The People [2018] ZMSC 336 (25 July 2018);
o Read s. 342 – 362 of the Penal Code
 Job well done!! You have successfully completed unit 9 &
10
Now attempt the Activity on the portal with the title “Unit
9 and 10 Activity”