ON March 8, 2016, Li Yuchang, a Chinese national, walked into Harare International Airport, as it was then called. He was on his way home. He was booked on the Emirates flight to Dubai and onward to China. Things did not go according to plan.
Alex MAGAISA: LAWYER
As he was negotiating his way past the airport procedures, Yuchang hit a snag.
He was stopped by detectives attached to the Minerals and Border Control Unit. They had him under surveillance, although he was blissfully unaware of big brother’s eye. The detectives had received a tip-off that Yuchang was up to no good.
Upon searching his person and possessions, the detectives found several things that stretched legal boundaries.
He had the following items:
l Three buffalo skin belts;
l One crocodile skin handbag;
l Three crocodile skin purses;
l Two elephant skin belts;
l Three elephant skin purses; and
l Three hippopotamus skin belts.
It is not clear whether he had declared to the Zimbabwe Revenue Authority, the tax authority. In any event, these items did not seem to concern the authorities.
It was the cash they found on him that drew their attention and caused him a lot of trouble. Yuchang had a total of
US$32 000 in cash. Of this amount, US$10 000 was secured under his belt strapped around his waist. US$20 000 was stashed inside his hand luggage, which had been shrink-wrapped. The remaining US$2 000 was in his wallet. At the time, Zimbabwe’s exchange control laws imposed a maximum limit of US$5 000 for money taken out of the country at any given time. Yuchang exceeded this limit by US$27 000. He was therefore arrested.
When he appeared in court, Yuchang claimed ignorance of the law. He also pleaded a language handicap: he said he struggled with the English language.
This is what his lawyer told the court as a special circumstance to be considered in sentencing. To his credit, Yuchang did not waste the court’s time by trying to deny the alleged offence. After all, he had been caught red-handed and he probably realised the futility of denying it. He chose refuge under the guise of ignorance of the law and language.
It was the sentencing that raised eyebrows. Yuchang was sentenced to pay a fine of US$200. If he defaulted, he would have to spend 30 days in prison. One might say the sentence was lenient given its disproportionate character with the amount at stake: US$32 000. And this is where the eyebrows went even higher.
The magistrate ordered that the
US$32 000 which had been confiscated by the law enforcement authorities would be returned to Yuchang. While he had a legal bill to his lawyer, one must wonder whether his freedom was as cheap as the judgment suggested.
Interestingly, the prosecution did not seem concerned by the dubious nature of the sentence. It was the magistrate who sensed that he had made an error. He submitted the case for review at the High Court, where the matter was handled by Justice Joseph Musakwa.
The High Court has the power to review judgments from the magistrates’ court. It can set aside a magistrate’s judgment on the ground of gross irregularities in the handling of the matter. The magistrate thought he had mishandled the matter, which is why he referred it to the judge.
Upon reading the papers, the judge expressed doubt that Yuchang was not aware of the law or the language as he had claimed. Yuchang had a business in Harare, where he ran a bookshop at Borrowdale Brooke, an eminently affluent location in Zimbabwe’s capital.
Before this, he had been employed as a consultant by the Zimbabwe Defence Industries (ZDI), a private entity of the country’s military. Like many other foreign nationals who come to work in Harare, he had found comfort and opportunity, which prevented him from leaving. The apparent face of Yuchang’s opportunity was selling books. It must have been very profitable.
After analysing the way Yuchang had carefully hidden his money, the judge expressed doubt at the claim of ignorance.
“This does not appear to be the act of a person who was unaware of the financial regulations,” the judge wrote.
“The very fact of hiding cash under the belt was a well-calculated act”.
The judge also doubted the plea that Yuchang did not understand English given his history in Zimbabwe, where he had worked for the ZDI and operated a bookshop.
“If these issues had been ventilated, it is doubtful that a finding of special circumstances would have been arrived at [by the magistrate],” the judge said.
Still, despite these findings and expressions of incredulity, the judge concluded that the magistrate’s decision did not constitute a gross irregularity warranting a review.
“Notwithstanding the above observations”, the judge said, “it is doubtful that the decision of the court might be characterised as amounting to gross irregularity warranting review as opposed to a misdirection meriting appeal by the prosecution”.
Therefore, for the judge, there was no gross irregularity. The irony is that the magistrate who had passed the ridiculously lenient sentence had effectively reported himself to a superior court believing that he had committed a gross irregularity! Although he was impressed by Yuchang’s explanations, the judge still found that there was no gross irregularity.
In the judge’s view, the magistrate’s decision should have been challenged on appeal on the ground that he had misdirected himself. So why was there no appeal? If the magistrate thought he had made a gross error warranting a review, surely the prosecutors must have felt aggrieved on behalf of the state and noted an appeal?
Surprisingly, according to the judge, “The prosecution does not appear to have been concerned with the findings of the trial court and the resultant sentence”.
Perhaps Yuchang must count himself fortunate that he was not a member of the opposition party. The absence of appetite on the prosecutors’ leaves unanswered questions. For his part, the judge felt that he was constrained by the law and that he could not do much to change what had happened at the magistrates’ court.
This is how the matter ended. Yuchang had only suffered a minor inconvenience. More significantly, he got all his money back. It is easy to forget, but in those days, foreign currency was extremely scarce in Zimbabwe.
This meant that US$32 000 cash was a considerable amount of money to be found on one person. At the time, the government and monetary authorities were making a lot of noise about the so-called externalisation of foreign currency. What Yuchang had done was more than an abomination. And yet, he got off very lightly, a little more than a slap on the wrist.
It is four years since this matter was concluded. Yuchang is probably back home in China. He must have heaved a sigh of relief after his lucky escape. But was it the doing of Lady Fortuna alone? Or was it the hand of humankind?
The justice system in Zimbabwe can be inept, but it is hard to believe that the ineptitude, in this case, was merely by accident. The prosecution’s lack of appetite in the face of such gross errors makes one wonder what might have happened behind the scenes. But there is another reason: there is currently before the magistrates’ court the case of an attempt to smuggle gold out of Harare to Dubai. It is very easy to forget because, in these days of great flows of information and scandals, the public’s attention span is very short.
One day people will gasp and wonder how the accused persons got away with it. Because there is a good chance of those cases going Yuchang’s way. And everyone will be left asking: how did they get away with it?
Magaisa is a Zimbabwean lawyer and academic at the University of Kent, where he teaches public law and governance. He was chief of staff in the Prime Minister’s Office during the inclusive government (2012-13). The article first appeared on his blog Big Saturday Read. Twitter: @wamagaisa, email: email@example.com