S v Shi and Others (CA 04/2007) [2007] ZANWHC 42 (23 August 2007)

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO: CA 04/2007

In the matter between:

ZING

RUI SHI First Appellant

SHU

QING YANJ Second Appellant

KHUMALO

MANDUZI Third Appellant

and

THE

STATE Respondent

CRIMINAL APPEAL

HENDRICKS J; SWART AJ

DATE OF HEARING : 22 JUNE 2007

DATE OF JUDGMENT : 23 AUGUST 2007

COUNSEL FOR THE APPELLANTS : ADV

E KILIAN

COUNSEL FOR THE RESPONDENT: ADV

L A MORE

JUDGMENT

SWART AJ:

[A] Introduction:-

[1] The three Appellants stood trial in the Magistrate’s Court of Rustenburg on inter alia a charge of:-

“[1.1] contravening Section 58(1) (a) read with Sections 1, 13(1), (3), Section 70(3) of the Living Marine Resources Act, No 18 of 1998.

(Count 1)

[2] They pleaded guilty and was sentenced to an effective term of imprisonment of four (4) years on count 1.

[3] Leave to appeal against this sentence on count 1 was granted to the Appellants, hence the appeal.

[B] The Charge Sheet:-

[4] The charge sheet on count 1 reads as follows:-

“The State will allege that the Accused contravened section 58(1)(a) read together with section 1, section 13(1) and (3) and section 70(3) of the Living Marines Resources Act, Act 18 of 1998 read further with section 250(1) of the Criminal Procedure Act, Act 51 of 1977 in that the Accused, during the period from 13 March 2006 and 18 May 2006, and/or near the farms Portion 37 of Spruitfontein, and/or Portion 18 of Grootfontein near Buffelspoort in the district of Rustenburg, undertook ‘fishing or related activities’ in contravention of section 13, in that they undertook the buying of fish or any fish product commonly known as abalone, and/or that they undertook the onshore storing of such fish or fish products and/or that they undertook the processing of fish or any fish product, without a permit being issued by the Minister to perform such activities.”

[5] The sentence prescribed for contravention of the aforesaid is to be found in Section 58(1) of the Marine Living Resources Act, Act 18 of 1998, which reads as follows:-

“58. Offences and penalties:-

(1) Any person who, subject to the provisions of subsection (2) or (3):-

(a) undertakes fishing or related activities in contravention of:-

(i) a provision of section 13,

(ii) …

(iii) …

(b) contravenes any other provision of this Act, shall be guilty of an offence and liable on conviction to a fine not exceeding R2 million, or to imprisonment for a period not exceeding 5 years.”

[C] The Merits:-

[6] In pleading guilty the Appellants made the following admissions:-

“APPELLANT 1:-

[1] He was present on the farm referred to in the charge sheet between the period 13 March 2006 to 18 May 2006, the latter date being the date of his arrest.

[2] At the relevant times he was employed by a certain Mr Hau. Mr Hau required him to work and reside on the premises referred to.

[3] Prior to taking up employment with Mr Hau, he was unemployed and approached three weeks prior to the 13th of March 2006 by Mr Hau who offered employment to him.

[4] Mr. Hau transported him and his co-accused to the premises where they arrived on the 13th of March 2006.

[5] At the premises they were informed by Mr Hau that the premises were utilised in the processing of fish, more specifically abalone:-

‘We were instructed that our duties in the main was to oversee the drying of abalone brought to the premises from time to time.’

[6] Appellant 1 appreciates that these activities were done in the absence of the necessary permit issued by the Minister.

[7] Appellant 1 states that he was unemployed in a foreign country and ‘hopelessly desperate for any means of income’.

APPELLANT 2:-

Apart from stating that he was employed by B&M Trading in Johannesburg prior to taking up employment with Mr Hau but left this employment three weeks prior to 13 March 2006, his plea explanation reiterates the same acts as Appellant1.

APPELLANT 3:-

The plea explanation of Appellant 3 confirms the same facts as that of his co-accused.”

[D] Evidence in Aggravation:-

[7] The State called Mr Angus McKenzie as an expert witness in aggravation of sentence. He is from the Marine & Coastal Management Office of Cape Town and he testified that:-

[7.1] he was involved with abalone research since 1979, which research includes the monitoring of the abalone resources of South Africa;

[7.2] he indicated that abalone takes 3 to 4 years to mature and only after the abalone is seven years old, is the legal harvest thereof permitted;

[7.3] the density of abalone has been on drastic decline since 1995 with the present population of less than 5 abalone per 60m²;

[7.4] illegal harvesting of abalone and processing thereof takes place because of the demand in the Far East, which outweighs the supply for purely financial gain;

[7.5] the current total allowable catch is 2 to 3 tons for the whole area per season;

[7.6] during cross-examination of the witness he did not attempt to identify the Appellants as the divers who would be in the first line of poaching;

[7.7] he conceded that divers illegally removed the abalone from the bed of the sea. Thereafter it is transported for drying. The Appellants being general labourers with little knowledge of the diving would be able to partake in the drying process.

[8] A set of photographs was handed in as Exhibits “F1”, “F2”, “F3” and “F4”. The prosecutor indicated that Exhibit “F2” depicts:-

“simply a pile, a little mountain, can I call it of the abalone found in one of the houses on one of the farms …”

[9] The State did not quantify the number of the abalone or the weight thereof in the charge sheet, nor was any evidence led to that effect. Despite this, the learned Magistrate found the quantity of abalone to be something like about 57 000 on an estimation made by the prosecutor. This is a misdirection. In my view the learned Magistrate erred in placing too much emphasis on the quantity of abalone for which there was no evidence placed before him.

[10] Suffice to say that exhibit “F2” depicts a large quantity of abalone. One can safely infer from it that it was not for personal use.

[11] From the admissions made by Appellants it is clear that they were involved in an operation which undertook the processing of abalone, without a permit being issued by the Minister.

[12] Taking into consideration the large quantity of abalone and the actual processing thereof, it is clear to me that the operation is a commercial operation and not merely for personal use.

[13] Counsel on behalf of Appellants submitted that Appellants’ role in the operation is a minor one, I respectfully disagree. The harvesting, transportation and processing of abelone are all necessary for the success of such an operation. As long as there are people like Appellants, who would willingly participate in illegal activities, such illegal activities will continue, irrespective of what role they play.

[14] Barely a year prior to appearing in the court a quo, all three Appellants were convicted for a similar offence to which they were sentenced to a fine of R165 000 or two years imprisonment of which half was suspended.

[15] I find it more than a “coincidence” that the appellants having been charged and sentenced in Upington on a similar offence, would end up in a similar illegal operation just a few months later in another town (Rustenburg).

[16] It is also clear that the Appellants have not learned from their previous experience. They should have realised from the previous sentences imposed on them that the processing of abalone without a permit is a serious offence. However they again became involved in a similar operation shortly after having been sentenced.

[17] Appellants under the circumstances knowingly accepted the risk of being sentenced more severely should they commit the same offence again.

[18] In view of the fact that Appellants were already given an opportunity to stay out of prison and it seems that they were undeterred by a partly suspended sentence, I am of the view that the only appropriate sentence under the circumstances would be a substantial term of imprisonment.

[19] I have also taken into account the possibility that the suspended sentence imposed on Appellants previously, may be put into operation.

[20] Having found that the learned Magistrate misdirected himself in putting too much weight on the quantity of abalone (for which there was no proper proof), I am of the view that I can interfere with the sentence.

[23] Having regard to the charge sheet, the pleas of guilty and the evidence of aggravation, and ignoring the inadmissible inference as to the quantity of abalone, I am of the view that a significantly different sentence would be more appropriate.

[E] Conclusion:-

[24] In the premises the following order is made:-

[i] The appeal against the sentence on count 1 is upheld.

[ii] The sentence of four (4) years imprisonment is set aside and substituted with the following:-

“Appellants 1, 2 and 3 are sentenced to three (3) years imprisonment.”

A J SWART

ACTING JUDGE OF THE HIGH

COURT

I agree.

R D HENDRICKS

JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPELLANTS:-

SUN ATTORNEYS c/o HERMAN SCHOLTZ