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[2014] ZASCA 131
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Lemthongthai v S (849/2013) [2014] ZASCA 131; 2015 (1) SACR 353 (SCA) (25 September 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 849/2013
Reportable
In
the matter between:
CHUMLONG
LEMTHONGTHAI
.........................................................................................
Appellant
and
THE
STATE
...........................................................................................................................
Respondent
Neutral
Citation:
Lemthongthai v S
(849/2013)
[2014] ZASCA 131
(25 September 2014)
Coram:
Navsa ADP, Wallis & Swain JJA
Heard:
10 September 2014
Delivered:
25 September 2014
Summary:
26 Contraventions of s 57(1) read with, amongst others,
ss 101(1)
and
102
of the
National Environmental Management: Biodiversity Act 10 of
2004
and 26 contraventions of
s 80(1)(
i
) of the Customs and
Excise Act 91 of 1964 – appellant fraudulently procured permits
to shoot and kill rhino for the ostensible
purpose of trophy hunting,
when in fact it was always intended to trade illegally in rhino horn
– regional court sentencing
appellant to 40 years’
imprisonment – reduced on appeal to the high court to 30 years’
imprisonment – misdirections
in both courts –
unsubstantiated assumptions made by high court – department
criticised for allowing manipulation of
the permit system and for
inadequate supervision – conservation of biodiversity
emphasised – need to protect and conserve
biodiversity for
present and future generations restated – constitutional rights
of citizens to have the environment protected
through reasonable
legislative and other measures that promote conservation –
sentence of 30 years’ imprisonment too
severe – appellant
spent 16 months in custody awaiting his trial – sentence
reduced to 13 years’ imprisonment
and a fine of R1 million
imposed.
ORDER
On
appeal from:
The South Gauteng
High Court, Johannesburg (Tsoka J and Levenberg AJ sitting as court
of appeal).
The following order
is made:
1. The appeal is
upheld to the extent reflected in the substituted order that follows.
2. The order of the
court below is set aside and substituted as follows:
‘
The appeal
against sentence is upheld to the extent reflected hereafter:
(a) The sentences
imposed by the court below are set aside and substituted
as follows:
(i) In respect of
count 1 to 26 the accused is fined R1 million or five years’
imprisonment.
(ii) In respect of
counts 27 to 52 a sentence of imprisonment of six months on
each count is
imposed.
(iii) Thus, the
effective sentence is payment of a fine of R1 million plus a period
of imprisonment of thirteen years, antedated
to 9 July 2011 and
failing payment of the fine to an effective period of
imprisonment of 18 years.’
JUDGMENT
Navsa
ADP (Wallis and Swain JJA concurring)
[1]
The appellant, Mr Chumlong Lemthongthai, a Thai national,
successfully applied in terms of Chapter 7 of the National
Environmental
Management: Biodiversity Act 10 of 2004 (the NEMBA) to
the Department of Environmental Affairs for 26 permits to shoot and
kill
rhino, representing to them that professional hunters would hunt
and kill the rhino for trophy purposes. In fact, the persons whose
names appeared on the permits did not participate in the hunt that
was supervised by department officials. Ultimately, at the instance
of the appellant, 26 rhino were shot and killed and most of their
horns exported. Simply put, the object was not to hunt rhino
for
trophy purposes but rather to engage unlawfully in trade in rhino
horn.
[2]
To that end the appellant unlawfully and intentionally made improper
use of customs documents to enable the rhino horn to be
exported. The
name of the consignee and country of destination was changed,
contrary to the Convention on International Trade in
Endangered
Species of Wild Fauna and Flora (CITES) (1973) in the permits issued
in relation to the rhino hunt.
[3]
The appellant was charged in the Regional Court with 26 counts of
contravening s 80(1)(
i
)
of the Customs and Excise Act 91 of 1964 (the CEA), in that he traded
illegally in rhino horn. He also faced counts 27 to 52 which
related
to contraventions of s 57(1) read with, amongst others, ss 101(1) and
102 of the NEMBA. The alternative counts are irrelevant.
[4]
Section 80(1)(
i
) of the CEA reads as follows:
‘
(1)
Any person who –
(
i
) makes
improper use of a licence, permit or other document issued in respect
of goods to which this Act relates;
shall
be guilty of an offence and liable on conviction to a fine not
exceeding R20 000 or treble the value of the goods in
respect of
which such offence was committed, whichever is the greater, or to
imprisonment for a period not exceeding five years,
or to both such
fine and such imprisonment.’
[5]
Section 57(1) of the NEMBA reads as follows:
‘
A
person may not carry out a restricted activity involving a specimen
of a listed threatened or protected species without a permit
issued
in terms of Chapter 7.’
Section 101 of NEMBA
provides for penalties and deals with further offences. Section
101(1)(
a
) reads as follows:
‘
(1)
A person is guilty of an offence if that person contravenes or fails
to comply with a provision of –
(
a
) section
57(1), 57(1A), 65(1), 67(2), 71(1), 81(1) or 81A(1); . . . .’
Section
102(1) and (2) provides:
‘
(1)
A person convicted of an offence in terms of section 101 is liable to
a fine not exceeding R10 million, or an imprisonment for
a period not
exceeding ten years, or to both such a fine and such imprisonment.
(2)
If a person is convicted of an offence involving a specimen of a
listed threatened or protected species, or an alien species
or
commencing the commercialisation phase of bioprospecting without a
permit issued in terms of Chapter 7, a fine may be determined,
either
in terms of subsection (1) or equal to three times the commercial
value of the specimen or activity in respect of which
the offence was
committed, whichever is the greater.’
[6]
Section 88 under Chapter 7 of NEMBA makes provision for permits to
engage in a restricted activity. Section 90 makes it obligatory
for
the permit to specify the purpose for which it is issued. Section 92
provides for ‘integrated permits’. Section
92(1)(
a
)
and (
b
) reads as follows:
‘
(1)
If the carrying out of an activity mentioned in section 87 is also
regulated in terms of other law, the authority empowered
under that
other law to authorize that activity and the issuing authority
empowered under this Act to issue permits in respect
of that activity
may –
(
a
) exercise
their respective powers jointly; and
(
b
) issue a
single integrated permit instead of a separate permit and
authorisation.’
‘
Restricted
activity’ is defined in s 1(
a
),
inter alia, as follows:
‘
(i)
hunting, catching, capturing or killing any living specimen of a
listed threatened or protected species by any means, method
or device
whatsoever, including searching, pursuing, driving, lying in wait,
luring, alluring, discharging a missile or injuring
with intent to
hunt, catch, capture or kill any such specimen;
. . .
(iv) importing into
the Republic, including introducing from the sea, any specimen of a
listed threatened or protected species;
. . .
(ix)
selling or otherwise trading in, buying, receiving, giving, donating
or accepting as a gift, or in any way acquiring or disposing
of any
specimen of a listed threatened or protected species; . . . .’
[7]
Rhino is undoubtedly a protected species and hunting, exporting and
trading in rhino fall under the definition of ‘restricted
activity’. As can be seen from the relevant provisions of the
CEA and the NEMBA referred to above, they fit hand in glove.
[8]
Initially, the appellant pleaded guilty to counts 1 to 7 and 24 to
26. The State accepted the plea but indicated that it would
nevertheless proceed to prove the remainder of the charges. This was
followed by an application on behalf of the appellant to change
his
plea to one of not guilty to all the charges preferred against him.
The Magistrate accordingly changed the plea in terms of
s 113 of the
Criminal Procedure Act 51 of 1977 (the CPA) to one of not guilty.
Shortly thereafter the appellant changed tack yet
again and pleaded
guilty to counts 1 to 26 and counts 27 to 52. It is necessary, at
this stage, in order to give context to the
charges and the plea of
guilty to repeat what is set out in the preamble to the charge sheet,
bearing in mind there were at that
stage co-accused charged with the
appellant:
‘
1.
The accused 1 is a 43 year old male person with passport number X
869280 of Thai nationality.
2. The accused 1 is
the director of a Thai company with the name Xaysavang Trading
Export-Import, Bolikhamxay Provincie Thailand.
. . .
6. The company deals
in the trade of rhino horn and lion bones, teeth and claws.
7. The accused [was]
instructing the export of rhino horns as indicated in count 1 to 26.
8. Permits were
obtained for these rhino horns under the pretence that it was meant
for trophy purposes, whilst the purpose was
for trade.
9. The conditions of
these permits were not complied with.
10. The accused paid
the shipper Air and Sea Trophy Exports in cash with accompanied
instructions.
11. The accused made
improper use of airway bills and/or SAD 500 (Custom declaration
forms) by instructing that inter alia the consignee
should be changed
and/or to change the country of destination contrary to the CITES
permit issued for the rhino horn.
12. Accused 3
supplied Rhino to the company and arranged the hunt of rhino, the
removal of the rhino horn, the weighing of the rhino
horn and the
ultimate removal thereof.
13. Accused 6 and 7
were employed by accused 3 in respect of these hunts.
14. Accused 5 acted
as the professional hunter that had to accompany the hunt and had to
make sure that the conditions of the permit
were adhered to.
15.
The accused acted with a common purpose and in concert with each
other in respect of the trade in rhino horn.’
[9]
It is now necessary to consider the statement made by the appellant
in terms of s 112(2) of the CPA
[1]
,
which reads as follows:
‘
1.
I am accused 1 of 6 in this matter.
2. I am a citizen of
Thailand and my entire family lives there.
3. I know and
understand the charges I am facing.
4. My legal
representatives through the official interpreter in this case Mr
Sunwa Tucha have explained to me:
4.1 the preamble to
the charge sheet and its evidential value.
4.2 The contents of
the 79 charges I am facing and the penalty provisions thereto.
4.3 My rights in
terms of Section 35(3) of the constitution of the Republic of South
Africa Act 108 of 1996 and in particular
4.3.1 my right to
silence.
4.3.2 My right to
adduce and challenge evidence.
4.3.3 My right to be
presumed innocent.
5. Although the
charge sheet alleges that I am the director of, the Company I am in
reality merely an agent of theirs. The Director
of this organization
is Vixay Keosauang.
6. I plead guilty to
counts 1 to 26 in that I unlawfully and intentionally made improper
use of a document set out in columns 1
and 3 of schedule A attached
to the charge sheet in respect of goods to which the Customs and
Excise Act relates to wit the export
of rhino horn.
7. I therefore plead
guilty to contravening Section 80(1)(i) of the Custom and Excise Act
91 of 1964.
8. In addition to
the above I plead guilty to counts 27 to 52 contravening Section
57(1) read with Section 56(1), 57(2), 97(1),
98(2), 101 and 102 of
the National Environmental Management Bio Diversity Act 10 of 2004
and Chapter seven of NEMBA and further
read with Regulation 150, 151
and 152 published in the government gazette number 29657 on 23
February 2007. Also Regulation 148
published in
Government Gazette
3189 on 15 February 2009. Also read with schedule 1 of the Prevention
of Organised Crime Act 121 of 1998 read with Section 250
of the CPA.
9. I admit that on
or about the date set out in column 1 of schedule A and at or near
O.R. Tambo Airport within the Regional Division
of Gauteng, I
unlawfully and intentionally carried out a [restricted] activity
involving a specimen of a threatened or protected
species to wit
trading in rhino horns (a listed, threatened or protected species
without the necessary permits to trade therein).
10. . . .
11. I make this
plea:
11.1 freely and
voluntarily.
11.2 Without undue
influence.
11.3 Whilst in my
sound and sober senses.
12. I live and work
in Thailand.
13. I also act as an
agent of various export and import groups and companies in Thailand
and Laos.
14. The Director of
Casa Vanga, Mr Qua Savang decided to send me to South Africa to
enquire about the purchasing of lion bones.
15. On my arrival in
South Africa I saw various advertisements of the hunting of the big
five including rhino. I informed Mr Qua
Savang who suggested that I
make enquiries and that he would fund any trade in rhino horn.
16. I contacted
various outfitters (persons who organise hunts) including Mr Marnus
Steyl accused 3.
17. I was informed
that if I bring hunters from Thailand to shoot rhino, application
will be made for hunting permits on their behalf.
18. As part of the
application the hunting is free. The age and gender of the hunter’s
to be would be forwarded to Nature
Conservation which would process
the application and if satisfied that all legalities have been met
would issue a hunting permit
in the name of the proposed hunter.
19. I have forwarded
all the necessary information as well as copies of the passports of
the hunters to the outfitters/landowners
who then applied on our
behalf for the hunting permits.
20. The people on
whose behalf the applications were made were not
bona fide
hunters
and their passports were merely used to fraudulently obtain hunting
permits in their names.
21. None of the
outfitters/landowners (including accused 3) were aware of the
above-mentioned facts. In short they did not know
. . . that the
hunters were a front for our decision to export rhino horn for trade
and not for trophies.
22. At all times
relevant to these charges I acted as an agent for Casa Vanga.
23. At all times
relevant to these charges I admit that I knew that my actions as
aforesaid were unlawful and intentional.
24. I humbly
apologise to the Court and to the people of South Africa for my role
in this matter. I appreciate that the emotions
of all animal lovers
in South Africa are running very high and that I was part of the
problem.’
[10]
The appellant was convicted by the Regional Magistrate on the
strength of his statement in terms of s 112 of the CPA on all
the
counts set out in para 3 above. The Magistrate did not consider the
appellant’s plea of guilty as a mitigating factor.
He saw the
plea of guilty as a manifestation of the appellant being realistic
and not as a demonstration of genuine remorse. He
could discern no
regret on the part of the appellant and considered the plea of guilty
to have been compelled by the overwhelming
evidence against the
appellant.
[11]
The Magistrate took into account the seriousness of the offence and
was particularly concerned about the appellant’s
manipulation
of the permit system. He held it against the appellant that he used
the identification particulars of other persons
in order to procure
the permits. The Magistrate considered, in favour of the appellant,
the fact that he had been in custody for
a period of approximately 16
months. He was concerned about preservation of South Africa’s
biodiversity. The Magistrate considered
the appellant to be ‘almost
the same as a poacher’ because the ultimate aim was to obtain
the rhino horn. For purposes
of sentencing, the Magistrate took
counts 1 to 26 together and sentenced the appellant to ten years’
imprisonment. Counts
27 to 36 were taken as one for the purposes of
sentencing and the appellant was sentenced to 12 years’
imprisonment. He took
counts 37 to 46 as one for purposes of
sentencing and the appellant was sentenced to 12 years’
imprisonment. Counts 47 to
52 were also taken as one for sentencing
purposes and the appellant was sentenced to six years’
imprisonment. In summary
he was sentenced as follows:
(i) Counts 1 to 26:
ten years’ imprisonment;
(ii) Counts 27 to
36: 12 years’ imprisonment;
(iii) Counts 37 to
46: 12 years’ imprisonment; and
(iv) Counts 47 to
52: six years’ imprisonment.
The
effective sentence was 40 years’ imprisonment. The Magistrate
provided no reason for grouping counts 27 to 52 in this
way and none
appears from the record. It seems that his concern was simply to
arrive at an overall sentence that he regarded as
appropriate without
trespassing beyond the statutory limits on his sentencing powers.
[12]
The appellant appealed the sentences to the high court (Tsoka J,
Levenberg AJ concurring), which took into account that the
maximum
period of imprisonment in terms of s 80(1)(
i
)
of the CEA was five years. The high court reasoned that, since the
Magistrate took the number of counts in relation to this section
of
the CEA as one, he ought rightly to have restricted it to five years’
imprisonment rather than the ten years’ imprisonment
imposed.
Similarly, so the trial court reasoned, the same applied in respect
of the sentences imposed in terms of count 27 to 36
and counts 37 to
46. Having determined that the trial court misdirected itself as
aforesaid the high court considered itself at
liberty to impose
sentence afresh. In engaging in that exercise the high court took
into account the appellant’s personal
circumstances, namely,
that he was 44 years old, married, had two children at university and
was a first offender. It considered
in his favour that he had been in
custody for 16 months awaiting the finalisation of his trial.
[13]
The high court took into account aggravating factors. First, that the
permits to shoot rhinos were issued on the basis of a
fraud
perpetrated on the authorities and that the offences were
pre-meditated, inspired by greed. The high court made an assumption
that the appellant was part of a Thai syndicate which specialises in
dealing in rhino horn. The high court held it against the
appellant
that he had not disclosed the identity of the syndicate to the
authorities.
[14]
Tsoka J correctly took into consideration that the rhino population
since 2010 has been in decline due to illegal rhino poaching.
He
referred to the decision in
Chu v The State
[2012] ZAGP JHC
204 (13 March 2012) in which the South Gauteng High Court, sitting as
a court of appeal, was emphatic in its concern
about our diversity
heritage and the protection of endangered species such as the rhino.
At para 20 Tsoka J said the following:
‘
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.’
[15]
The high court took the view that the present case called out for a
sentence that would act as a deterrent. Paras 33 and 34
of the
judgment of the high court, which contain its conclusion, are set out
hereafter:
‘
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.
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.’
Like
the magistrate, the high court divided counts 27 to 52 into arbitrary
groups in the quest to arrive at a sentence that was
both permissible
and, in its view, appropriate, but in the absence of any rational
reason for this grouping it was an inappropriate
approach.
[16]
Before us it was contended on behalf of the State that the offences
before us were more serious than if the appellant had been
a poacher
proper. It was submitted that the manipulation of the permit system
was such that it called for a harsh sentence and
that a long period
of imprisonment was warranted. When it was put to counsel for the
State that the sentence imposed (30 years’
imprisonment) should
not be disproportionate in relation to sentences imposed in respect
of other offences universally regarded
as odious, her response,
understandably, in the glare of public scrutiny, was that she could
take her submission on the necessity
for a harsh sentence no further.
[17]
The witness called on behalf of the State in aggravation of sentence
did not dispute, when it was put to her by the appellant’s
legal representative in cross-examination, that the rhinos that were
shot and killed, had been surplus bulls that were destined
to be shot
by trophy hunters. That concession alone distinguishes this case from
those of the conventional type of poacher, namely,
a person who kills
indiscriminately without any pretence at legality.
[18]
On behalf of the appellant it was contended that, in the
circumstances of the case, a non-custodial sentence was called for.
I
disagree. The manipulation of the permit system by the appellant is
to be decried. Equally, the relevant government department
can
rightly be criticised, not only for lack of proper supervision of the
authorised hunt, but, if the photographs that form part
of the record
are anything to go by, it appears that at least some of the officials
involved probably knew that the terms of the
permit were not being
met and that the stated purpose of the hunt was false. From the
photographs it appears that these officials
should have known that
the persons present during the hunt were not the persons to whom the
permits to shoot and kill rhino had
been granted and were not in
truth genuine trophy hunters.
[19]
The Constitution recognises that citizens have the right to have the
environment protected for the benefit of present and future
generations, through reasonable legislative and other measures that,
inter alia, promote conservation.
[2]
The objectives of the NEMBA are set out in s 2 as follows:
‘
The
objectives of this Act are –
(
a
) within
the framework of the National Environmental Management Act, to
provide for -
(i) the management
and conservation of biological diversity within the Republic and of
the components of such biological diversity;
(iA) the need to
protect the ecosystem as a whole, including species which are not
targeted for exploitation;
. . .
(
b
) to give
effect to ratified international agreements relating to biodiversity
which are binding on the Republic;
(
c
) to
provide for co-operative governance in biodiversity management and
conservation; and
(
d
)
to provide for a South African National Biodiversity Institute to
assist in achieving the objectives of this Act.’
[20]
The duty resting on us to protect and conserve our biodiversity is
owed to present and future generations. In so doing, we
will also be
redressing past neglect. Constitutional values dictate a more caring
attitude towards fellow humans, animals and the
environment in
general. Allowing the kind of behaviour that resulted in the
convictions in the present case to be dealt with too
leniently will
have the opposite effect to what was intended by the NEMBA. A
non-custodial sentence will send out the wrong message.
Furthermore,
illegal activities such as those engaged in by the appellant are fuel
to the fire of the illicit international trade
in rhino horn.
[21]
That being said, the high court wrongly had regard to the existence
of a rhino trading syndicate, of which there was no evidence.
Furthermore, equating the appellant with typical poachers was
unwarranted and its division of counts 27 to 52 into arbitrary groups
was inappropriate. In addition to these misdirections, the sentence
of 30 years’ imprisonment is too severe and induces a
sense of
shock. It is disproportionate when compared to the minimum sentences
statutorily prescribed for other serious offences.
Thus, we are at
large to interfere in the sentence. The appellant identified the
company he worked for and whose instructions he
carried out in
perpetrating the offences in question. In my view, having regard to
the fact that the killing of the 26 rhinos occurred
during one
operation, a sentence of imprisonment of six months in respect of
each of counts 27 to 52 is an appropriate sentence.
This amounts to a
total of 13 years’ imprisonment. In arriving at this
conclusion, I have borne in mind that the appellant
was in custody
for 16 months awaiting the finalisation of his trial.
[22]
In my view, in addition to the sentence of imprisonment referred to
in the preceding paragraph, a hefty fine is called for
in respect of
the contraventions of the CEA. It is clear that such a fine will
impact not only on the appellant, but also on the
directing minds
behind the offences in question. In this regard the penal provisions
under s 80(1) of the CEA, particularly in
relation to the imposition
of a fine, fall to be considered alongside the facts of the case. In
the latter regard, consideration
should be given to the tender made
in the trial court on behalf of the appellant, of a fine of R1
million, in lieu of a sentence
of imprisonment. Furthermore, it is
important to record that, before us, counsel on behalf of the
appellant conceded that from
the invoices that constituted part of
the record, the indication is that a fine of R1 million would not
exceed the maximum fine
that may be imposed, namely, treble the value
of the goods. In this regard, I have taken into account the globular
value of all
the rhino horn encompassing all the counts in relation
to a contravention of s 80(1) of the CEA.
[23]
For all the reasons aforesaid, the following order is made:
1. The appeal is
upheld to the extent reflected in the substituted order that follows.
2. The order of the
court below is set aside and substituted as follows:
‘
The
appeal against sentence is upheld to the extent reflected hereafter:
(a) The sentences
imposed by the court below are set aside and substituted
as follows:
(i) In respect of
count 1 to 26 the accused is fined R1 million or five years’
imprisonment.
(ii) In respect of
counts 27 to 52 a sentence of imprisonment of six months on
each count is
imposed.
(iii) Thus, the
effective sentence is payment of a fine of R1 million plus a period
of imprisonment of thirteen years, antedated
to 9 July 2011 and
failing payment of the fine to an effective period of
imprisonment of 18 years.’
____________________
MS NAVSA
ACTING
DEPUTY PRESIDENT
APPEARANCES:
FOR
APPELLANT: Adv J P Marais
Instructed
by:
Mc
Menamin, Van Huyssteen & Botes Inc., Pretoria
Botha
& De Jager Attorneys, Bloemfontein
FOR
RESPONDENT: Adv. M van Heerden
Instructed
by
The
Director of Public Prosecutions, Johannesburg
The
Director of Public Prosecutions, Bloemfontein
[1]
Section
112(2) provides as follows:
‘
If
an accused or his legal adviser hands a written statement by the
accused into court, in which the accused sets out the facts
which he
admits and on which he has pleaded guilty, the court may, in lieu of
questioning the accused under subsection 1(
b
),
convict the accused on the strength of such statement and sentence
him as provided in the said subsection if the court is satisfied
that the accused is guilty of the offence to which he has pleaded
guilty: Provided that the court may in its discretion put any
question to the accused in order to clarify any matter raised in the
statement.’
[2]
Section
24 of the Constitution.