Zeng Denghui and Others v The State

### Preamble
1
HB 142/19
HC 640/19
X REF HC 1228/19
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ZENG DENGHUI

And

PEICONG WANG

And

LUI CHENG

And

YU XIAN

And

YONG ZHU

And

CHEN XIANGFU

And

QUI JINCHANG

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 13 & 19 SEPTEMBER 2019

Opposed Application

G. Mvhiringi and M. Chasakara for the applicants

K. Jaravaza for the respondent

MAKONESE J:	The seven applicants are Chinese nationals.  On the 23rd of December 2018, the applicants were arrested at Victoria Falls and charged on the first count with contravening section 45 (1) (b) of the Parks and Wildlife Act (Chapter 25:14), that is, acquire, use or possess rhino horns.  On the second count the applicants were charged with violating section 8(3) as read with section 8(8) of the Money Laundering and Proceeds of Crime Act (Chapter 9:24), i.e. unlawfully acquire, use or possess property knowing or suspecting at the time of receipt that such property is the proceeds of crime.  The applicants were arraigned before a Regional Magistrate sitting at Hwange facing trial for these offences.  The state led evidence from five witnesses before closing its case.  The applicants, through their legal practitioners applied for discharge at the close of the state case.  The presiding magistrate held and found that the state had established a prima facie case and ordered that the applicants be placed on their defence.  Aggrieved by the decision of the trial magistrate, dismissing their application for discharge at the close of the state case, the applicants have filed this application for review.  The application is opposed in part, by the state.

Mr Jaravaza, appearing for the state, made a concession that the 1st, 2nd, 4th, 5th, 6th and 7th applicants had no case to answer but contends that 3rd applicant must be put on his defence as the evidence led by the state established a prima facie case against him.  Inspite of the concession, Mr Chasakara, appearing for the applicants argued that all the applicants ought to have been discharged at the close of the state case.  It was necessary to hear argument in full in this matter.

The broad grounds for review as set out in the application are these:-

The trial magistrate’s ruling is irrational and outrageous and does not accord to law.

The trial magistrate erred and acted outrageously in placing applicants on their defence on account of their communal use of the house were pieces of rhino horns were found.

The trial magistrate’s dismissal of the application for discharge was grossly unreasonable in that the evidence led at the close of the state case did not establish a nexus between the occupation of the house in question and the intention to possess the rhino horns.

The trial magistrate’s finding that it was not necessary for the state to establish mens rea (to possess the rhino horns) at the close of the state case was irrational and outrageous and not in accordance with the law.

The state has opposed the application for review, in part, indicating that sufficient evidence was led by the state, to establish a prima facie case against the 3rd applicant.

Factual background

The factual background leading to the arrest and subsequent prosecution of the applicants is as follows.  On the day of the arrest the applicants who are all Chinese nationals were renting a house from one Oscar Sikuka.  It is not in dispute that the lease agreement was entered into between the 2nd applicant and Oscar Sikuka.  The property leased out is situated at 858 Aerodrome, Victoria Falls.  The property was furnished by the landlord and none of the applicants brought furniture into the rooms.  At the material time at least nine Chinese nationals lived at the house. At the time of the arrest, two of them had left for Harare.  At the time of the arrest seven people were physically on the leased property.  It is not disputed that the police obtained a search warrant before proceeding to the property.  The seven applicants were found seated in a sitting room.  It would appear that only the 2nd applicant was proficient in the English language.  The police officers explained that they had a warrant to search the premises.  A search was conducted and all the rooms were searched. The police discovered ivory weighing 20.89kgs valued at $938 700 in one of the bedrooms.  In that room, one plastic bag was on the floor with cut pieces of rhino horns.  A second plastic bag was on the floor with cut pieces of rhino horns.  A third plastic bag inserted in the base of the bed contained more pieces of rhino horns.  A silver suit case was near the bed packed with pieces of rhino horns.  A portable electric scale was recovered from the same room.  Other bags inside the room contained male clothing items and were of little interest to the police.  The police searched rooms belonging to 1st, 2nd, 4th, 5th, 6th and 7th applicants and nothing was recovered.  All the pieces of rhino horns were recovered from a room that was being used by 3rd applicant.  The police then proceeded to arrest all the applicants in what may be referred to as a “dragnet” arrest.  The applicants protested their innocence.  The applicants continued with their denials during the trial.  The state led evidence from five witnesses and closed its case.  The defence made an application for discharge at the close of the state case in terms of section 198 (3) of the Criminal Procedure and Evidence Act (Chapter 9:07).  The trial magistrate dismissed the application and ordered all seven applicants to be placed on their defence.

Application for discharge at close of state case

In his dismissal of the application for discharge at the close of the state case the learned Regional Magistrate made these findings:

“… While it can be possible that there were other Chinese nationals who had travelled elsewhere but were part of the occupants of the said, (sic) the totality of the evidence at this stage in respect of the seven accused and those other two, unknown does not suggest that they could have possibly been separated in one house.  What seems to have been established is the communal use of the house.  This court would not be wrong to hold that this house was one ordinary house with 3 bedrooms one sitting room and a kitchen.  That the doors of the absent two were found ajar and the accused enjoying a siesta in the sitting room exposed them to a real possibility or likelihood that they shared the house jointly.  In any case they are all of Chinese nationality.  If the other two Chinese nationals were at this house on a separate understanding, with Oscar Sikuka that would have been known by Sikuka …”

It is clear that the trial magistrate based his conclusions on the fact that the applicants shared the same house.  This led to the conclusion that the intention to possess the pieces of rhino horns could be established by the fact that applicants were found in one room ‘enjoying a siesta’.  It is trite law, that criminal liability cannot be inferred.  Each essential element of a charge has to be proved.  Evidence must be led by the state to prove all essential elements of a charge.  It is a necessary feature of every adversarial system of justice for the state to prove through the leading of evidence, every essential element of a charge.

The learned Regional Magistrate made further observations in his findings as follows:

“…  There is a common thread of association or sharing or being joint (sic) that was established at this stage of trial …”

Reliance on the doctrine of common purpose must meet the requirements which must be proved to exist.  Before the state can rely on common purpose it must further prove the commission of the offence against the accused person.  Liability based on common purpose can only be based on one of the two requirements which are, liability based on prior agreement and liability based on active association.  The leading cases in this regard are: S v Safatsa & Others 1988 (1) SA 868 (A) and S v Mgedzi & Ors 1989 (1) SA 687 (A).

In S v Safatsa, it was stated that the requirements for liability on common purpose are as follows:

that the accused person must have been present at the scene of the crime when the offence was committed.

that he or she must have been aware of the commission of the offence.

that he or she must have intended to make common cause with the person or persons committing the offence.

that he or she must have manifested his sharing of common purpose by himself or herself performing some act of association with the conduct of others.

that the accused must have had the requisite mens rea to commit the offences.

Section 196 (2) of the Criminal Law Codification and Reform Act (Chapter 9:23) provides for factors tending to show that two or more persons accused of committing a crime in association with each other together had the exquisite mens rea to commit the crime namely if they:

were present or in the immediate vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime or

were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged.

engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged.

The state led evidence from five witnesses.  Tafara Shumbanhete’s evidence was to the effect that he is based at CID Minerals and that he led a search at the house occupied by the applicants.   He confirmed that during the search he found ivory in a room which was being occupied by the 3rd applicant.  Nothing of interest was found in the rooms occupied by the rest of the applicants.  Lemwani Nkomo the second state witness also confirmed that the ivory was found in the room occupied by the 3rd applicant.  The third state witness also confirmed that the ivory was found in the room occupied by the 3rd applicant.  The third state witness Oscar Sikuka testified and confirmed that he was the owner of the property in question.  He confirmed that when he entered into the lease agreement he was made to believe that only eight people would occupy the premises, but noticed that there were occasions when more than eight people were at the house.  The Investigating Officer Needmore Machara testified that all the applicants were at the house at the time of the arrest.

Application of the law

It is settled law that the High Court “s statutory powers of review under section 29 of the High Court of Zimbabwe Act, 1981, can be exercised at any stage of criminal proceedings before an inferior court.  This court, has in any event, inherent powers of review.  However, in interminated proceedings this court should exercise these powers sparingly and only in rare cases where grave injustice might otherwise occur.  Where the trial magistrate performs his functions in a proper and regular manner the High Court will not interfere.  It is desirable that the actual merits of the case be speedily disposed of and that any decisions which are wrong at law be corrected in the ordinary way, by way of appeal.

See Ndhlovu v Regional Magistrate, Eastern Division & Anor 1981 (1) ZLR 204 (HC); Ginsberg v Additional Magistrate of Cape Town 1933 (PI 357; Levy v Benatar 1987 (4) SA 693 (S).

In the more recent case of Prosecutor General of Zimbabwe v Intratrek Zimbabwe (Pvt) Ltd & Ors, PATEL (JA), held that:-

“…  In short, the learned judge a quo, erred at law in interfering with unterminated criminal proceedings, in the absence of exceptional circumstances warranting such intervention …”

This application has been brought in terms of Order 33 of the High Court Civil Rules, 1971.  This court has been invited to set aside the order of the Regional Magistrate dismissing the application for discharge at the close of the state case.  This court has been asked to substitute the decision of the trial magistrate with an order acquitting all the applicants.

Inspite of the concession by the state in this matter, I am of the view that the state established a prima facie case against the applicants.  I must indicate that whilst the dragnet arrest approach that was adopted by the police must be discouraged, the court must look at the totality of the evidence led at the close of the state case.

In respect of the 3rd applicant, Mr Chasakara contended that the state failed to prove a prima facie case, principally because the state relied on a confession by the 2nd applicant, pointing out that the room where the ivory was found belonged to the 3rd applicant.  It is the contention by the defence that the alleged confession is inadmissible at law, and that in any event, the alleged confession does not satisfy the requirements on the law regarding confessions.  As authority for this proposition, Mr Chasakara relief on the following basis:  S v Tsorayi 1985 (1) ZLR 138 HC; State v Mudenda HB-86-12; Mudenda v The State SC-54-05.  In the Mudenda case, the Supreme Court held that the trial court had correctly found that the contents of the warned and cautioned statement was an expression of a genuine confession by the appellant  of his involvement in the  planning and murder of the deceased.  The appeal court cited the case of Edward Diva v The State SC-129-07, and held that there was sufficient evidence aliunde showing that the deceased had been killed in the manner revealed in the warned and cautioned statement.

Mr Jaravaza, argued that the state had the sufficient evidence to establish a prima facie case against the 3rd applicant.  It is the state’s contention that the 3rd applicant was linked to the offence as there is evidence, though disputed, that the 2nd applicant pointed out that the room in which the ivory was found belonged to the 3rd applicant.  It is the view of this court that the adequacy or otherwise of the evidence against 3rd applicant, including the admissibility of the alleged confession, are matters for the trial court.  What the state is required to prove at the close of the state case is that there exists a prima facie case against the accused persons.  The settled legal position is that an accused is entitled to a discharge at the close of the state case where:

there is  no evidence to prove an essential element of the offence.

there is no evidence on which a reasonable court, acting carefully, might properly convict

the evidence adduced on behalf of the state is so manifestly unreliable that no reasonable court could safely rely on it.

See; State v Tsvangirai & Ors HH-119-03; AG v Makamba 2005 (2) ZLR 54 (S) and S v Hartleybury & Anor 1985 (1) ZLR (1).

I am not persuaded that there is any basis for this court to interfere in uncompleted proceedings before the Regional Court.  All the applicants in this matter were in the house where ivory was recovered.  The applicants have tendered a defence denying criminal liability. This court must allow the proceedings before the trial magistrate to continue.  A prima facie case was established. Evidence was placed before the court a quo indicating that the applicants entered Zimbabwe on tourist visas using different ports of entry.  1st, 4th, 6th and 7th applicants entered the country through the Victoria Falls International Airport in December 2018.  2nd and 5th applicants entered the country through the R. G. Mugabe International Airport during the same month.  3rd applicant drove into the country through Forbes Border Post in a Ford Ranger motor vehicle bearing Mozambican registration plates during the same period.  At the time of arrest all the applicants were at 852 Aerodrome Victoria Falls sharing a rented property.  As part of their defence outline the applicants allege that their own investigations revealed that two unnamed Chinese nationals possessed the rhino horns and wondered why they were rounded up.  Clearly the applicants must be placed on their defence.  The coincidence of all applicants visiting Zimbabwe as tourists, entering the country through different ports of entry and finding themselves in a house at Victoria Falls where 20.89kg of ivory is recovered calls for an explanation.

The state is not required to prove its case beyond reasonable doubt at the close of the state case. The applicants must proceed to their defence case.  If the evidence against the applicants is not adequate at the conclusion of the trial, the applicants would be entitled in a verdict in their favour.  At this stage of the proceedings however, there is no cause for interference by this court. I must indicate that applications of this nature are being filed in the High Court with increasing frequency.  Whilst it is the right of any litigant to seek redress by way of review even in uncompleted proceedings, the court will be slow to interfere in proceedings pending before the lower courts unless such proceedings are being conducted in an irregular and improper manner, not consistent with the law.

In the result, for the aforegoing reasons, the following order is made:

The application be and is hereby dismissed.

No order as to costs.

Mvhiringi & Associates, applicants’ legal practitioners

National Prosecuting Authority, respondent’s legal practitioners