Tendai Rupapa Senior Court Reporter
The High Court has quashed the conviction and sentence of a Chinese man jailed 10 years for illegally possessing gold and emeralds before ordering a fresh trial. Li Cheng Ping was arrested at the Harare International Airport on November 17 last year while on his way to China in possession of 2,94 grammes of gold valued at $105,70 and three emeralds valued at $240,70.
Li pleaded guilty to the offence and was slapped with a 10-year jail term by a Harare magistrate.
Justice Loyce Matanda-Moyo agreed with the submissions made by Li’s lawyer, Mrs Gamuchirai Dzitiro of Mutumbwa Mugabe and Partners, in her application for review that the accused had not been provided with a Chinese interpreter.
He then ordered for a fresh trial before a different magistrate.
“After reading documents filed of record and hearing counsel, it is ordered that the applicant’s conviction and sentence by the court a quo be and is hereby set aside. The matter is remitted to the court a quo for a trial de novo,” ruled Justice Matanda-Moyo.
In the review application, Mrs Dzitiro argued that non-provision of an interpreter was a procedural irregularity and violation of the Constitution.
“First respondent did not take any steps in particular those set out in Section 271 (2) (b) of the Criminal Procedure and Evidence Act which require the court not only to explain the charge and essential elements, but also ‘to enquire from the accused whether he/she understands the charge’ as well as Section 70 (1) (b) which provides for the right of an accused person to have the proceedings of the trial interpreted into a language that they understand,” she said.
In his founding affidavit which formed part of the application, Li said the proceedings were conducted in English, a language he did not understand.
“When I was arrested, my employer’s representative, Mr Lin Ou, came to the police station with a lawyer I know as Mr Muhonde who told me that I had been arrested for a simple matter which only attracted a fine of $50,” he said.
“Mr Lin interpreted to me what the lawyer was saying and was told that when I get to court I should plead ‘guilty’ and pay a fine. My new lawyer has informed me that the lawyer who represented me then told the court that he had explained to me the essential elements of the offence and that the plea was in accordance with my instructions.”
He added: “With greatest respect, the lawyer’s statement is not correct. The plea was in accordance with the advice I got from him as interpreted by Mr Lin. As for the gold charge, my possession of the sample I had picked from a waste dump, was lawful because my company is authorised to deal in gold. The magistrate ought to have established and satisfied himself that I had indeed understood the offence.”
Li was sentenced to five years behind bars on each count.