IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION, CAPE TOWN]

Case no: A257/2024

In the matter between:

BEIPING ZHANG Appellant

and

THE STATE Respondent


JUDGMENT DELIVERED (VIA EMAIL) ON 12 DECEMBER 2024
(BAIL APPEAL)
___________________________________________________________________

SHER J:

1. This is an appeal against the judgment and order which was handed down by
the magistrate of Cape Town on 21 August 2024, in terms of which the bail
which had been granted to the appellant a year earlier, on 3 August 2023, was
cancelled. The parties agreed that the matter could be determined on the
basis of written submissions which they filed on 21 and 2 6 November 2024,
without the need for oral argument.

2. The circumstance s which gave rise to the decision of the magistrate are
briefly as follows. The appellant was arrested on 26 July 2023 in West Beach,
~
Bloubergstrand on charges of contravening the Marine Living Resources Act
18 of 1998 (‘the MLRA’) and the regulations which were promulgated
thereunder. Together with four others who were arrested with him, h e is
currently awaiting trial on 4 charges. These concern the alleged unlawful
acquisition and possession of 7855 units of dried and wet abalone with a
combined value of approximately R2.89 million , and the unlawful operation of
an abalone processing plant.

3. At the appellant’s first appearance on 28 July 2023 the matter was remanded
to 3 August 2023 for further investigation. On 3 August 2023 the prosecutor
informed the magistrate that some 3 months earlier, on 29 May 2023 , the
appellant had pleaded guilty in the regional court of Gqeberha to similar
offences involving abalone, which had been committed in July 2021. In fact,
the appellant had been convicted not only of contravening the MLRA but also
of the offence of ‘money-laundering’, in terms of the provisions of the
Prevention of Organised Crime Act 121 of 1998 (‘ POCA’). On each of the two
charges the appellant was sentenced to 2 years imprisonment which was
suspended for 5 years, on condition that he was not again found guilty of
contravening the relevant provisions of the MLRA and POCA, during the
period of suspension.

4. Notwithstanding these circumstances and even though the prosecutor noted
that although the appellant was in pos session of a passport issued by the
Republic of China his status in the country was unclear, he did not oppose the
appellant’s release on bail. After the appellant’s legal representative
‘confirmed’ (sic) that he was entitled to be in the country, the magistrate duly
set bail in an amount of R 100 000. As part of his bail conditions the appellant
was required to surrender his passport and to report twice weekly to his local
police station.

5. Eight months later, on 9 April 2024, and whilst he was on bail, the appellant
was arrested again, this time in Durbanville, on charges of contravening the
MLRA. On 24 April 2024 he entered into a plea and sentence agreement in
the regional court of Bellville, in terms of s 105A of the Criminal Procedure Act
51 of 1977 (‘the CPA’), whereby he pleaded guilty to charges of contravening
ss 44(2) and 18(1) of the MLRA , by illegally receiving and processing 10 121
units of wet and dried abalone, for which he had unlawfully operat ed a
processing plant. It is notable that the value of the abalone was not set out in
the plea and sentence agreement. It clearly should have been , as it impacted
on the seriousness of the offence and was a factor which the court needed t o
be apprise d of for it to determine whether the sentence which had been
agreed was an appropriate one . In his affidavit in this matter the investigating
officer placed a value of R3.5 million on it. In the absence of any reference to
the value of the abal one in the agreement it does not appear that, in
concluding it on behalf of the state , the regional court control prosecutor took
any, or proper, account of it.

6. Notwithstanding his previous conviction and the suspended sentence which
had been imposed on him less than a year earlier, the appellant managed to
persuade the prosecutor to agree to the imposition of another, wholly
suspended sentence of imprisonment , this time of 5 years, in respect of each
charge. It seems that the prosecutor agreed to this because he likewise did
not have due and proper regard for the previous conviction and the sentence
which was imposed, as it was not even listed in the agreement as an
aggravating factor relevant to the imposition of sentence. Bizarrely, it was
noted, in para 1 of section E of the agreement , as one of the mitigating
factors, that the appellant had ‘a previous conviction for a similar offence’, but
the particulars thereof were not set out. Thus, it appears the prosecutor either
concluded the plea and sentence agreement hastily, without properly
ascertaining what the particulars of the appellant’s previous conviction and the
sentence which was imposed in respect of it were , or he concluded the
agreement well-knowing what they were but failed to ensure that they were
disclosed to the court in the agreement , as they should have been . The
previous conviction and the sentence which was imposed were also factors
which impacted materially on the imposition of an appropriate sentence. As
the magistrate in this matter rightly commented in passing , given the
appellant’s record and the quantity and value of the abalone , the sentence
which was agreed upon was, on the face of it, wholly inappropriate.

7. Sections 105A(1)b)(ii)(aa)-(dd) of the CPA provide that a prosecutor may only
enter into a plea and sentence agreement if he/she has had due regard ‘at
least’(sic), for the well-known triad of factors which the court considers when it
imposes sentence i.e. not only the accused’s personal circumstances but also
the nature and circumstances pertaining to the offence and the accused’s
previous convictions, as well as the interests of the community.

8. A prosecutor who is authorised to conclude a plea and sentence agreement in
a serious matter such as this one, which involves the rapacious depletion of
our endangered marine and wildlife resources , must give due and proper
consideration to all the factors which are listed in the section and should not
merely pay the proverbial lip service to them.

9. In terms of directives 4 and 8 of the directives which were issued by the
National Director of Public Prosecutions on 22 October 2010 , prosecutors
negotiating a plea and sentence agreement are not meant ‘to bargain away’ a
sentence of imprisonment for a non -custodial sentence, as appears to have
occurred in this matter, and negotiations for such an agreement are not to be
finalized unless the accused’s record of previous convictions has first been
obtained. The latter requirement is obviously there to ensure that before
concluding an agreement the state is properly apprised of the accused ’s
criminal record, so that it is given due weight by the prosecutor when
considering what an appropriate sentenc e to agree to would be. Although s
105A does not expressly require that the particulars of an accused’s previous
convictions and the sentences which were imposed in respect thereof should
be set out in a plea and sentence agreement, to safeguard against ab uses in
this regard such a requirement is surely implicit.

10. Sections 105A(1)(a)(i) and (ii)(aa) empower an authorized prosecutor not only
to negotiate and enter into an agreement in respect of a plea of guilty to an
offence with which an accused has been charged , but also a ‘just’ sentence
which is to be imposed by the court in respect thereof. The section therefore
imposes a duty on a prosecutor to ensure, as best as they are abl e to, that
they do not enter into a plea and sentence agreement which is clearly ‘unjust’
i.e. one which is not fair and appropriate, having regard not only for the
accused’s circumstances and aim of negotiating the li ghtest sentence
possible, but also tak ing into account the nature and seriousness of the
offence and the accused’s record of previous convictions, a nd the interests of
the community, which, in matters involving the poaching and depletion of our
endangered marine and wildlife species rightly demands the imposition of firm
punishments, especially for serial offenders whose actions are motivated by
commercial greed and gain.

11. In terms of s s 105A(4)(a)(ii) and 105A (5) the court before whom a plea and
sentence agreement is placed must be satisfied that it complies with the
requirements of both subsection (1)(b)(i) i.e. that the prosecutor has consulted
the investigating offi cer before concluding the agreement , and subsection
(1)(b)(iii) i.e. that the prosecutor has inter alia taken the nature and
circumstances relating to the offence and the interests of the complainant
(which in this case is the community, as represented by the state), into
account, after allowing the accused to make representations, before it accepts
the agreement and requires the accused to enter a plea in accordance
therewith, and before it proceeds to allow the terms of the agreement to be
entered into the record and the accused to confirm the contents thereof. If the
court is not satisfied that there has been due and proper compliance by the
prosecutor with the duties which are imposed on them by subsections (1)(b)(i)
and (iii), it may not proceed with the agreement as it stands and is required to
inform the pr osecutor of its difficulties , and afford the prosecutor and the
accused an opportunity to rectify the non-compliance.

12. Unless the particulars and circumstances pertaining to an accuse d’s previous
convictions are set out in the plea and sentence agreement, the court will not
be in a pos ition to determine whether the prosecutor has complied with the ir
statutory duties and it will not be in a position to determine whether the
sentence which has been agreed upon is a ‘just’ one i.e. one that does justice
to the triad of factors to which regard must be had . Unlike in conventional
criminal trial proceedings, where the question of an appropriate sentence only
arises if, and when, an accused has been convicted , in proceedings in terms
of s 105A if, after considering the contents of the plea and sentence
agreement the court is satisfied that the accused has properly admitted the
elements of the charge(s) and that he/she is accordingly guilty of the
offence(s) in respect of which the agr eement was entered into , it must
proceed to consider the sentence which has been agreed upon,1 and only
once and if, it is satisfied that the sentence is ‘just’ and has informed the
parties of this, does it proceed to convict the accused and sentence him/her in
accordance with the agreement, in a single, combined judicial act.2 If the court
is of the view that the agreed sentence is ‘unjust’ it must inform the partie s
thereof and of the sentence which it considers to be ‘just’ i.e. the sentence
which it considers to be fair and appropriate hav ing regard for the triad of
factors the court is required to take into account .3 In such a case the parties
have the choice of either abiding by the agreement in respect of the conviction
and allowing the court to impose an appropriate sentence, after evidence and
argument in respect thereof has been presented, or they may resile from the
agreement, in which case the trial must start de novo before another presiding
officer.4 In the circumstances, given the structure of the provisions of s 105A it
is vital that when a court is presented with a plea and sentence agreement its
contents are such that the court is properly placed in possession of all the
relevant facts and circumstances it is required to have regard for, not only in
relation to the charges and the accused’ s plea in respect thereof, but also in
relation to the sentence which the parties have asked it to impose. The plea
and sentence agreement which was put before the regional court of Bellville
was deficient in this regard.

13. In my view, prima facie the conclusion by the regional court control prosecutor
of a plea and sentence agreement whereby it was agreed that the appellant,
who was a serial, countrywide offender, was to receive yet another suspended
sentence for the unlawful receipt and processing of a large quantity of illegally
harvested a balone (worth millions of Rands) , a wildlife resource which has

1 Section 105A(7)(a).
2 Section 105A(8).
3 Section 105A(9)(a).
4 Section 105A(9)(b)(i) and (ii).
been practically poached to extinction in this country, which by the accused’s
own admission was destined to be exp orted for commercial gain, without due
and proper regard for the value of the abalone and the appellant’s criminal
record for similar offences, constituted a dereliction of duty. Consequently, the
matter must be referred to the Director of Public Prosecutions for an
investigation to be held into the circumstances under which the agreement
was concluded by the prosecutor concerned. I note that a confiscation order
of R250 000 was included in the agreed sentence, but given the value of the
abalone it hardly served to convert an inappropriate se ntence to one which
constituted sufficient and appropriate punishment for the serious, repeat
offences to which the appellant had pleaded guilty , and the fact that the
appellant had brazenly breached the terms of the suspended sentence of
imprisonment which had been imposed on him, less than a year earlier.

14. Even after the imposition of th e sentence in April 2024 the appellant’s run of
good fortune continued unabated. On 6 June 2024 he managed, somehow, to
persuade the magistrate of Gqeberha not to put the suspended sentence of
imprisonment which had been imposed by the regional court the previous
year, into operation, notwithstanding that he had breached the terms thereof
only 11 months later in April 2024, by committing a similar offence in Cape
Town, involving over 10 000 units of abalone . Instead, the magistrate elected
to re-suspend the sentence for a further period of 5 years. Once again, how
the appellant was able to get away with this defies comprehension and
requires investigation by the Director of Public Prosecutions. In this regard it is
not apparent whether the circumstances of the appellant’s conviction and
sentence in April 2024 were properly brought to the attention of the magistrate
by the state , or whether the court provided the parties with an opportunity to
address it, as p age 2 of annexure B of the record of proceedings has a line
drawn through it. The page contains pro forma paragraphs (5-9), which make
provision for the court to inform the accused of the nature of the applic ation
and his rights, and for the accused to indicate whether he wishes to make any
submissions or tender any evidence, and for the state to indicate whether it
wishes to make submissions. If either party elects to make submissions, there
is space for these to be noted. Not only were the paragraphs of this page of
the annexure left blank, but they were crossed out. Despite this, at para 10 of
the annexure th e magistrate indicated that ‘good and sufficient reasons’
existed as to why the sentence should not be put into operation, although
what these were was not disclosed.

15. It is not surprising and somewhat relieving then that, in the light of these
circumstances the state made application to the magistrate, in the current
proceedings, that the appellant’s bail be withdrawn . In support of the
application the state tendered an affidavit by the investigating officer in which
he set out details of the appellant’s previous convictions and pointed out that,
after his conviction in May 2023 he had effectively again committed similar
offences on 2 occasions: the first on 26 July 2023, some 2 months after the
conviction and imposition of the suspended sentence in Gqeberha, for which
he was arrested in this matter in Bloubergstrand on the charges he is
currently facing; and then again in April this year when he was arrested in
Durbanville for similar offences, to which he pleaded guil ty in the regional
court in Bellville. The investigating officer expressed the view that if the
appellant were to be allowed to remain on bail he would continue to commit
such offences.

16. The state also tendered an affidavit which was made in terms of s 212(1)(a) of
the CPA, by an immigration control officer in the Department of Home Affairs,
who was required to verify the appellant’s status in the country as a foreign
national. The officer ascertained that the appellant entered the country on 10
December 2020 on a visa which expired on 21 January 2021, from which date
he has been in the country illegally. In terms of s 49(1)(a) of the Immigration
Act 13 of 2002 the appellant’s continued residence in SA after the expiry of his
visa constitutes a criminal offence for which he is liable to imprisonment for a
period of up to 2 years. In his affidavit the investigating officer expressed the
view that, given these circumstances, he had reason to believe that unless the
appellant’s bail was withdrawn he was likely to abscond before the
proceedings in this matter could be concluded.

17. It is notable that in the affidavit which the appellant filed in response to the
application he did not deal with the averment that , after he was released on
bail, he had twice committed similar offences , and he simply averred that he
had duly complied with his bail conditions . He also did not refute the
statement by the immigration control officer that he was in the country illegally
since January 202 1, when his visa expired. Although he alleged that his
passport, which was in the possession of the police , was valid until 2031 -
2032, and that it contained a ‘valid’ visa for him to be in the country until 15
February 2024, he said that he had applied for another visa on 8 February
2024 and was awaiting the outcome thereof . His application for a further visa
clearly did not serve to convert his unlawful status in the country to a lawful
one. On his own version he has been in the country illegally since at least 15
February 2024.

An assessment

18. In her judgment the magistrate found that , given that the appellant had
committed similar offences in April this year whilst he was on bail in this
matter, there was a real likelihood that if his bail was not withdrawn he would
continue to commit such offences. She was accordingly of the view that it was
necessary, in the interests of justice, that he be committed to prison pending
the outcome of the current proceedings.

19. In terms of s 68(1) of the CPA a court before which a charge is pending in
respect of which an accused has been granted bail, may cancel such bail and
order that the accused be committed to prison until the conclusion of the
proceedings, if it is satisfied from information which has been place d before it
on oath, of the existence of one or more of the various grounds which are set
out in the section. These include that the accused is about to evade justice or
abscond,5 has interfered or th reatened to interfere with witnesses ,6 has
defeated or attempted to defeat the ends of justice 7 or poses a threat t o the

5 Section 68(1)(a).
6 Section 68(1)(b).
7 Section 68(1)(c).
safety of the public or a complainant ,8 or further evidence has since become
available, or factors have arisen, which might have affected the decision to
grant bail had they been known at the time ,9 or it is otherwise in the interests
of justice to cancel the accused’s bail.10

20. As the cancellation of bail has been held to be tantamount to a refusal of bail ,
it is appealable ,11 but, in terms of s 65(4) of the CPA this Court may only set
aside a magistrate’s decision in this regard if it is convinced that it was wrong.
In my view, the magistrate’s decision was anything but wrong . As is evident,
the appellant is a serial offender who has no respect for the law . As the
magistrate pointed out with reference to the decision in Sewela 12 the fact that
the appellant committed a similar offence whilst he was on bail awaiting trial in
this matter suggests that he has a propensity to commit such offences and will
continue to do so , and he is disrespectful of the law and the legal system. To
allow the appellant to remain on bail in such circumstances would clearly not
be in the interests of justice , and would be inimical thereto , as it would
undermine the criminal justice system and constitute an abuse of the right to
be released on bail pending trial . It would erode what lit tle confidence the
public has in the justice system and the assurance which the public deserves
that bail will not be granted to those who keep committing offences , whilst
they are awaiting trial.

21. Notwithstanding the extraordinary run of good fortune which the appellant has
had up to now, it must surely have come to an end , and given his record and
the fact that he has already twice received the benefit of a suspended
sentence the chance that, in the event of a conviction in the current matter, he
will be lucky for a third time , is remote, and he is likely to receive a lengthy
sentence of imprisonment. Consequently, I share the investigating officer’s
concern that, if he were to have remained on bail, he was likely to have

8 Section 68(1)(d).
9 Section 68(1)(f).
10 Section 68(1)(g).
11 S v Nqumashe 2001 (2) SACR 310 (NC) para 14; S v Porrit 2018 (2) SACR 274 (GJ) para 9;
Ntsasa v S [2023] ZAFSHC 218 paras 4-5
12 Sewela v S [2010] ZASCA 159 para 11.
absconded at an approp riate moment , thereby evading justice . For this
reason too the magistrate was correct in withdrawing his bail.

22. In the result, I make the following order:

22.1 The appeal is dismissed.

22.2 The matter is referred to the Director of Public Prosecutions for
investigation into:

22.2.1 the circumstances under and in terms of which the regional court
control prosecutor of the regional court Bellville concl uded a plea and
sentence agreement with the appellant in case number RC 4/65/2024
on 24 April 2024 , and whether in doing so the regional court control
prosecutor breached or failed to have due and proper regard for the
provisions of sections 105A(1)(b)(ii)(aa)-(dd) of the Criminal
Procedure Act 51 of 1977 and/or directives 4 and 8 of the directives
which were issued by the National Director of Public Prosecutions on
22 October 2010; and

22.2.2 the circumstances under which the suspended sentence of
imprisonment which was imposed by the regional court of Gqeberha in
case number RCPE112/2022 was re-suspended by the magistrate of
Gqeberha, and whether particulars of the appellant’s previous
conviction and sentence in the Bellville regional court under case
number RC 4/65/2024, including particulars pertaining to the quantity
and value of the abalone involved , and a copy of the plea and
sentence agreement , were disclosed by the prosecutor to the
magistrate of Gqeberha.

22.3 For the purpose of giving effect to paragraphs 22.2.1-22.2.2 the state
advocate who submitted heads of argument on behalf of the state shall
ensure that a copy of this judgment is delivered to the Director of Public
Prosecutions.


M SHER
Judge of the High Court
(Digital signature)


Appearances:

Appellant’s counsel: Adv R Mckernan
Appellant’s attorney; Du Plessis & Associates (Gordon’s Bay)
Respondent’s counsel: Adv S Rubin
Director of Public Prosecutions, Cape Town