Chen Guoliang v The State

### Preamble
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HH 418-13
B 1019/13
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CHEN GUOLIANG

versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 7 November & 15 November 2013& 19 November 2013

Unopposed Bail application

T. A.  Toto, for the applicant

D. A. Chesa, for respondent

TAGU J: This is an unopposed bail application. The brief facts of this case are that applicant is a male Chinese national residing at 4 Warren View close, Sentosa, Harare. He is on a temporary work permit that is expiring on 15 April 2014. On 21 October 2013 he arrived at the Harare International Airport intending to go to China. His luggage was screened through the scanning machine and 17 pieces of raw ivory tusks weighing 99.0 kilograms and ivory worked artifacts weighing 14.9 kilograms all valued at US$ 28 475.00 were recovered. He failed to produce a permit or licence to possess the ivory and the products as well as the authority to export the goods leading to his arrest. He is now charged with the crime of contravening s 45 (1) (b) of the Parks And Wildlife Act [Cap 20:14] “Unlawful Possession of Raw Ivory and Ivory Products” or Alternatively contravening s 54 (8) of the Customs And Excise Act [Cap 23:02] “Unlawful Exportation of Goods.”

The applicant appeared in the Magistrates court and was referred to this court for bail application. Applicant now applies for bail pending trial. He proposed to be released on

$ 1000.00 bail, surrender his Chinese Passport, reside at a given address and report once a week at Harare Central CID Section on Mondays between 6 am and 6 pm.

The Investigating Officer and the respondent are not opposing the application. The respondent submitted that the offence applicant is facing is serious and attracts a mandatory prison term of not less than 9 years, unless the convicting court is satisfied that there are special circumstances in the particular case justifying the imposition of a lesser penalty (Amendment 11-05-11 of the General Laws Amendment). The respondent proposes a bail amount of $5 000.00.

Our courts are guided by the time honoured principle of presumption of innocence of a suspect until proven guilty by a competent court. In granting bail, the court or Judge is not obliged to rubber stamp what has been agreed to by the applicant and the respondent although the state’s response to a bail application is very persuasive and should only be departed from if the court or Judge is of the view that respondent had missed a certain important and vital point.

In casu applicant is facing very serious allegations. This application turns on the risk of abscondment. The applicant is a foreigner who is in the country on a temporary work permit that is expiring on 15 April 2014. In S v Jongwe 2002 (2) ZLR 209 (S) at 215 B – C the Supreme Court stated as follows on judging the risk of abscondment:

“…..in judging the risk that an accused person would abscond the court should be guided by the following factors:

the nature of the charge and the severity of the punishment likely to be imposed;

the apparent strength or weaknesses of the state case;

the accused’s ability to reach another country and the absence of extradition facilities from the other countries;

the accused’s previous behaviour;

the credibility of the accused’s own assurance of his intention and motivation to remain and stand trial.”

See also Aitken & Anor v Attorney General 1992 (1) ZLR 249 at254 D – G.

In determining bail, the court should always bear in mind that at all times it should always balance the interests of the suspect against that of justice. The question that falls for determination is whether or not applicant is likely to stand trial if granted bail. In my view, applicant is involved in a serious case. Our boarders are so porous that the mere surrendering of a passport cannot stop one from absconding. If convicted applicant is likely to be imprisoned for a long time. In light of the above, he has every reason to abscond in order to avoid the rigours of prison life. If this happens the interests of justice would have been defeated.

The investigating officer’s affidavit is not helpful at all because he too has difficulties in communicating with the applicant. But the applicant has been able to deal with the people from whom he obtained the ivory from. He therefore has more questions to answer in order to extricate himself from this criminal web which he has entangled himself in. His travel itinerary was made before his arrest. He thought he could make it away with the ivory. On its own is not a guarantee that he would stand trial once released on bail. The state case is very strong against him.

The consequences of his release on bail are too ghastly to contemplate, as they will no doubt result in his sure abscondment thereby failing to appear in court for trial. He is a fright risk.

The application for bail is dismissed.

Mwonzora& Associates, applicant’s legal practitioners.

Attorney General’s Office, respondent’s legal practitioners