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[2013] ZAGPJHC 294
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Lemtongthai v S (A82/2013) [2013] ZAGPJHC 294; 2014 (1) SACR 495 (GJ) (30 August 2013)
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REPORTABLE
REPUBLIC
OF SOUTH AFRICA
SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE
NO A82/2013
DATE:
30 AUGUST 2013
In
the matter between
CHUMLONG,
LEMTONGTHAI
..........................
APPELLANT
versus
THE
STATE
.....................................................
RESPONDENT
Coram: Tsoka J and
Levenberg AJ
Heard: 29 August 2013
Delivered: 30 August
2013
J U
D G M E N T
TSOKA J:
[1] The appellant, a 44
year old Thai Citizen, Chumlong Lemtongthai, was charged in the
Regional Court of Kempton Park with 26
counts being counts 1 to 26
for contravention of section 80 (1) (i) of the Customs and Excise
Act, 91 of 1964 in that he unlawfully
and intentionally made improper
use of documents issued as per column 1 and column 3 of schedule A,
in respect of goods to which
the Customs and Excise Act relates, to
wit export of rhino horn.
[2] He was charged with
26 counts for contravention of the Provisions of Section 57 (1) read
with
Sections 1
;
56
(1)
57
(2)
97
(1)
98
(2)
101
(2) of The
National
Environmental Management: Biodiversity Act 10 of 2004
and Chapter 7
of the same Act read with Regulations 150, 151 and 152 published in
Government Gazette 29657 on 23 February 2007
and also Regulation 148
Published in Government Gazette 31899 on 13 February 2009, and also
read with schedule 1 of the
Prevention of Organized Crime Act 121 of
1998
read with
section 250
of the
Criminal Procedure Act 51 of 1977
,
in that he unlawfully and intentionally traded in rhino horn, a
listed threatened or protected species without the necessary TOPS
permits to either trade in such horns or hunt and / or kill or export
the rhino horns, counts 27-52
[3] Counts 53 to 79, ie.
Money Laundering in contravention of 54 of Act 121 of 1998 were
withdrawn against him.
[4] The appellant, who
enjoyed legal representation, on 5 November 2012 tendered a plea of
guilty in terms of
Section 112
(2) of the
Criminal Procedure Act 51
of 1977
to the 52 counts. He was duly convicted on the basis of his
plea.
[5] On 9 November 2012 he
was sentenced as follows:
5.1 Counts 1 to 26: 10
years imprisonment
5.2 Counts 27 to 36: 12
years imprisonment
5.3 Counts 37 to 46: 12
years imprisonment
5.4. Counts 47 to 52: 6
years imprisonment
The effective term of
imprisonment was therefore 40 years.
[6] On 16 November 2012
the trial court granted him leave to appeal his sentences.
[7] The imposition of
sentence falls squarely within the discretion of the trial court and
a court of appeal such, as this court,
can only interfere with the
trial court’s discretion when such discretion was not properly
exercised, or the sentence imposed
is as a result of an irregularity
or misdirection or such sentence so imposed, having regard to the
nature and circumstances of
the offence, is disturbingly
inappropriate or induces a sense of shock. See
S v Blank
1995
(1) SACR 62
(A).
[8] The issue in this
appeal is whether the trial court exercised its discretion properly
in imposing the effective sentence of
40 years imprisonment.
[9] Briefly, the facts in
this matter are as follows. The appellant is a Thai Citizen. He
validly entered the Republic of South
Africa at OR Thambo
International Airport. He is a director of a Thai company known as
Xaysanang Trading Export-Import. The company
deals in rhino horns,
lion bones, teeth and claws. He was involved in the shooting of 26
rhinos. Every one of the 26 rhinos shot
was legally shot after the
necessary legal hunting permit was issued to him. The rhinos were
shot, according to the appellant,
for trophies for trade in Asia, yet
the appellant knowingly misrepresented this fact to the South African
authorities that the
rhinos were shot and killed for trophies. After
the permits were thoroughly checked and cleared by the Customs and
Nature Conservation,
the appellant changed the address of the
consignees as appeared on the CITES (Conservation International Trade
in Endangered species
of Wild Fauna and Flora) permits so that the
rhino horns ended up in Laos, Thailand. The people reflected on the
permits as professional
hunters were in fact prostitutes hired by the
appellant to mislead the authorities into believing that indeed
professional hunters,
shot the rhinos, while in fact this was not
true.
[10] In considering an
appropriate sentence the trial court took counts 1 to 26 for purposes
of sentence, as one count, and sentenced
the appellant to 10 years
imprisonment. Counts 27 to 36 were also taken together for purposes
of sentence, as one count, and sentenced
the appellant to 12 years
imprisonment. Similarly, counts 37 to 46 were also taken together for
purposes of sentence as one count
and he was sentenced to 12 years
imprisonment. Lastly, with regard to counts 47 to 52, which were also
taken together as one count,
the appellant was sentenced to 6 years
imprisonment. The effective sentence of the appellant was therefore
40 years direct imprisonment.
[11] In terms of section
80 (1) (i) of the Customs and Excise Act, Act 91 of 1964 any person
who makes improper use of a permit,
such as the appellant, is liable
for a fine not exceeding R20 000.00 or treble the value of the goods,
whichever is greater or
to imprisonment for a period not exceeding
five (5) years or to both such fine and such imprisonment.
[12] In terms of
Section
101
(1) of the
National Environmental Management; Biodiversity Act 10
of 2004
, any person who contravenes the provisions of
Section 57
(1)
of the same Act, as is the case with the appellant, is liable to a
fine of R10 million or to imprisonment for a period not
exceeding 10
years imprisonment or to both such fine and imprisonment.
[13] That the maximum
imprisonment for contravention of the provisions of 80 (1) (i) of Act
91 of 1994 in respect of each count,
is 5 years imprisonment and 10
years imprisonment in respect of the other counts is quite clear. The
trial court, having taken
counts 1 to 26 for the purposes of sentence
as one, was therefore not entitled to impose the sentence of 10 years
imprisonment.
This is a misdirection that entitles this court to
interfere with the sentence so imposed. The same reasoning applies to
counts
27 to 36 and 37 to 46. Again this court finds that the trial
court misdirected itself with the result that this court is at
liberty
to interfere with the discretion that the trial court had in
imposing the sentences. With regard to counts 47 to 52, the trial
court exercised its discretion properly in imposing a 6 years
imprisonment instead of the maximum 10 years imprisonment. However,
as the sentencing process was tainted by misdirection, this court is
at liberty to assess the question of sentence
de novo
.
[14] Counsel for the
state conceded that the learned magistrate had indeed misdirected
himself in the manner set forth above. She
submitted both in her
written and oral argument that a sentence of 31 years would be
appropriate in the circumstances of this matter.
[15] What then is an
appropriate, just and fair sentence having regard to the personal
circumstances of the appellant, the nature
and circumstances of the
offences and the interest of society?
[16] First, the personal
circumstances of the appellant at the time of sentence were as
follows: He was 44 years old; he is married
with two children who are
at university in Thailand; he is a first offender; he pleaded guilty
to the charges levelled against
him; he was in custody for a period
of 16 months awaiting the finalization of the trial. He tendered his
apologies to the people
of South Africa for the offences and the
damage caused to them.
[17] On the other hand
the aggravating factors must, however, be considered. They are the
following. Although the appellant was
issued with legal permits to
shoot the rhinos, the permits were issued to him on the basis of the
fraud he perpetrated on the authorities.
He lied to the authorities
that the rhinos were shot for trophies while knowing that this was
untrue and that the rhinos were shot
for their horns to be traded in
Thailand. The offences were premeditated. His actions are as a result
of greed because at the time
he was employed as an agent for
Xaysavang Trade and Export / Import. Rhino related crimes are
prevalent in this country. A day
does not pass without reading in the
print media about the killing of these poor animals. The appellant
appears to be a member
of a syndicate that operates from Thailand and
specializes in dealing in rhino horn. Instead of disclosing the
identities of the
syndicate to the authorities to enable them to
smash the syndicate, the appellant failed to disclose this
information to the South
African Authorities. At the time of his
arrest, he had already placed an order for the hunt of another 50
rhinos. Of the 26 sets
of horns that were fraudulently exported, only
3 sets of horns were recovered. His actions, but for the fraudulent
permits, are
akin to that of poachers. The exploitation of the permit
system was over a period of 6 months.
[18] The rhino
population, since 2010 to date, has been in a decline as a result of
poaching. There is a public outcry for harsher
sentences to be
imposed by the courts for accused persons convicted of rhino related
crimes.
[19] In the unreported
judgment of Willis J, with whom Nicholls J agreed in this division,
in the matter of
Chu, Puc Manh v The State, Case No A407/2011
(GSJ) (29/08/2012),
the learned judge in paragraph (8) of the
judgment, arguing for preservation of rhinos, said the following:
(8)...... ‘It
is an argument for example that often received support of
organizations such as the World Wildlife Trust. The
Prince of Wales,
when he has addressed international conferences on conservation, has
used the argument that we, as human beings,
are stewards of the earth
and that part of our responsibility is to ensure that magnificent
creatures such as rhinos that have
been around for millions of years
should not be eliminated.’
[20] The sentiments
expressed by Willis J above resonate not only with the people of the
world but with the population of South
Africa. If we do not take
measures such as imposing appropriate sentences for people such as
the appellant, these magnificent creatures
would be decimated from
earth. Our Flora and Fauna would be poorer for it. South Africa would
no longer be the safe home of one
of the “Big Five”, as
it is known all over the world.
[21] In argument the
appellant referred us to the matter of
S v Engelbrecht
2011 (2)
SACR 540
(SCA)
wherein the appellant had
falsified documents to defraud the fiscus with regard to VAT. In that
matter the appellant was convicted
of 157 counts of fraud and one of
corruption. He was sentenced to 6 years imprisonment, of which 2
years were suspended. This sentence
was confirmed on appeal.
[22] The facts of
Engelbrecht
differ significantly to the facts in this
matter. In the present matter the appellant pleaded guilty to and was
convicted of 52
counts for contravention of two different statutes.
His crime is not simply one of fraud. It involves the destruction of
a national
treasure, the rhino population of this country. The
killing of the 26 rhinos involves an action which accounts for a
significant
percentage of the total number of rhinos illegally killed
in this country.
[23] The appellant also
submitted that he was not involved in poaching
per se
, but
only in the illegal trading of the rhino horns. However, the
appellant’s counsel conceded in argument that there were
26
rhinos killed as a result of the appellant’s illegal actions.
The practical effect of the appellant’s actions is
therefore
the same as if he had pulled the trigger himself.
[24] In any event, the
Legislature has deemed it fit to treat the crime of dealing in rhino
horns in the same manner as the actual
killing. Consequently,
reliance on
S v Engelbrecht
, in my view, is misplaced.
[25] In the
Chu
matter, wherein the appellant was convicted of 1 count of possession
of 12 rhino horns and in contravention of The
National Environmental
Management: Biodiversity Act, the
appellant was sentenced to 10 years
imprisonment. In that matter 6 rhinos would have had to be killed in
order for the appellant
to have come into possession of the 12 rhino
horns as each rhino has 2 horns.
[26] In the present
matter 52 rhino horns were involved as a result of the killing of 26
rhinos. More than 4 times the number of
rhinos was killed in this
matter than in
Chu
. If
Chu
was applied in
this particular case, it could have produced a sentence of over 40
years imprisonment. When this proposition was
put to the appellant’s
counsel, he was unable to explain why the appellant in this matter
should not at least receive a proportionally
similar sentence to that
which was imposed in
Chu
.
[27] In his written
submissions the appellant in the main, submits that as he pleaded
guilty and has tendered his apologies to
the people of South Africa,
he is remorseful, which fact should count in his favour in passing
sentence. His further main submission
is the fact that he has been in
custody for a period of 16 months awaiting the finalization of the
trial.
[28] From the evidence
on record it appears that the appellant tendered a plea of guilty in
order to bargain for a non-custodial
sentence. This explains the
reason why when he realized that the state was not prepared to
sanction a non-custodial sentence, he
changed his plea to that of not
guilty plea in terms of
section 113
of the
Criminal Procedure Act 51
of
1977. Realizing that the evidence against him was overwhelming, he
then changed his not guilty plea to a guilty plea in terms of
section
112
(2) of the same Act. This, in my view, is not a sign of remorse.
It is a sign of being realistic. I therefore find no basis for
concluding that the plea of guilty and the apology are a sign of
remorse.
[29] With regard to the
period of 16 months spent in custody as an awaiting trial prisoner,
it is unhelpful to artificially calculate
this period as double the
period spent in jail as was done in the full court in the matter of
S
v Brophy 2007 (2) 56 SACR (W).
In my view the period the
appellant spent in custody awaiting trial, should like all other
mitigating factors, be taken into consideration
in determining what
an appropriate sentence, in the particular case, should be. In
Radebe
v S (726/12)
[2013] ZASCA 31
(27 March 2013),
the court in
para [14] of the judgment said:
“
(14) A
better approach in my view is that the period in detention
pre-sentencing is but one of the factors that should be taken
into
account in determining whether the effective period of imprisonment
to be imposed is justified...........”
[30] The killing of
rhinos, solely to trade in their horns, is a serious crime. The
evidence on record reveals that 26 rhinos were
shot and killed for
their horns. The arrest and prosecution of the appellant prevented
the potential loss of further 50 rhinos,
solely for their horns. In
the present matter the appellant was issued with permits to
legitimize his unlawful and criminal activities.
I have no doubt in
my mind that, had the authorities known the truth, the permits would
not have been issued to the appellant.
[31] In as much as the
object of sentencing is not to satisfy public opinion but to serve
the public interest, public opinion and
indignation to the killing of
rhinos must be taken into account in passing an appropriate sentence.
The personal interests of the
accused must not prevail above those of
the public. The two must, as far as humanly possible, weigh against
each other and then
a determination should be made as to what a fit
and appropriate sentence, in a particular case, should be.
[32] In my view,
deterrence cries out in this matter. The sentence to be imposed must
not only act as a deterrent to the appellant
but must also serve as a
deterrent to all those who intend to embark on the illegal activity
of dealing in rhino horn. Potential
poachers must know that in the
event that they are caught, they will be prosecuted and a proper and
fitting sentence would be imposed
on them. Courts should not shirk
their responsibilities in meting out the appropriate sentence in
appropriate cases. They must
protect these ancient and magnificent
animals.
[33] Having regard to
the personal circumstances of the appellant, the nature and
circumstances of the offences that the appellant
was convicted of and
the interests of justice, the just and appropriate sentence would be
5 years imprisonment in respect of counts
1 to 26; 10 years
imprisonment in terms of counts 27 to 36; 10 years imprisonment in
respect of counts 37 to 46 and 10 years imprisonment
in respect of
counts 47 to 52, totalling 35 years imprisonment. It is ordered that
the 5 years imprisonment in respect of counts
1 to 26 run
concurrently with the 30 years imprisonment in respect of counts 27
to 52.
[34] In the result the
appeal against sentence imposed on the appellant succeeds. It is
ordered that the sentence imposed on the
appellant is set aside and
replaced with a direct imprisonment of 30 years.
It
is so ordered.
M.TSOKA
J
JUDGE OF THE HIGH
COURT
I agree.
P.N. LEVENBERG A J
JUDGE OF THE HIGH
COURT
COUNSEL FOR THE
APPELLANT: ADV VAN VUUREN SC
ADV MARIAS
INSTRUCTED
BY: JOHANNESBURG JUSTICE CENTRE
COUNSEL FOR THE
STATE: ADV M. VAN HEERDEN
INSTRUCTED
BY: DIRECTOR OF PUBLIC
PROCECUTION,
JOHANNESBURG
REPORTABLE
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NO:
A82/2013
In the matter
between:
CHUMLONG,
LEMTONGTHAI
..........................
APPLICANT
And
THE
STATE
.................................................
RESPONDANT
Summary
TSOKA J; LEVENBERG AJ
This is an application
for leave to appeal against the sentence. The appellant was charged
in the Regional Court of Kempton Park
with 26 counts for contravening
section 80 (1) (i) of Customs and Excise Act 91 of 1994, in that he
unlawfully and intentionally
made improper use of documents issued as
per column 1 and 3 of schedule A, in respect of goods to which the
Customs and Excise
Act relates, to wit, export of rhino horns.
The appellant is a
Thai citizen, and a director of a Thai company known as Xaysanang
Trading Export-Import. The Company deals with
rhino horns, lion
bones, teeth and claws. He was involved in the shooting of rhinos
after legal hunting permits were issued to
him for trophies.
This was a
misrepresentation to the South African Authorities by the appellant.
After the permits were thoroughly checked and cleared
by the Customs
and Nature Conservation, the appellant changed the addresses as they
appeared on the CITES (Conservation International
Trade in Endangered
species of Fauna and Flora) permits, with the result that the rhinos
horns ended up in Laos and Thailand. The
people reflected on the
permits as professional hunters were in fact prostitutes hired by the
appellant to mislead the South African
Authorities. It also emerged
that the appellant was a member of a syndicate that operates from
Thailand and specialises in dealing
in rhino horns.
The Court had to
determine whether the trial court exercised its discretion properly
in imposing the sentence of 40 years imprisonment.
Although the
appellant had legal permits to shoot the rhinos, he intentionally
lied to the authorities. The permits were issued
to him fraudulently
to legitimize his unlawful and criminal activities. The offences were
premeditated. The appellant knew that
the killing of rhinos for
trading is a serious crime.
The sentence must not
only serve as warning to the appellant but must also serve as
deterrent to all those who intent to embark
on illegal activities of
dealing in rhino horns. Poachers must know that in the event they are
caught, they would be prosecuted,
and a proper and fitting sentence
would be imposed on them. Courts should not shriek their
responsibilities in meting out the appropriate
sentences in
appropriate cases. These ancient and magnificent animals must be
protected.
Having regard to
the serious nature of the offences, the personal interest of the
appellant and the interest of justice, a just
and appropriate
sentence, in the circumstances, would be 30 years imprisonment.
The
sentence imposed by the trial court is therefore set aside and
substituted with a sentence of 30 years imprisonment.