Chinese ivory smugglers fail to overturn Sh54 billion fine

Dar es Salaam. The Court of Appeal has dismissed an application by two Chinese nationals challenging a Sh54.3 billion fine or 20 years in jail for smuggling 706 pieces of elephant tusks.

Three justices of appeal said the application by Huang Qin and Xu Fujie was a disguised attempt to have the highest court review its own judgment against the law.

The duo were arrested in Dar es Salaam November 2013 during a special police operation following intelligence reports that a consignment of elephant tusks was hidden at their residence.

Police officers trailed the suspects up to their residents at Kifaru Street, Mikocheni A, Dar es Salaam, where 706 elephant tusks stuffed in polythene bags were seized.

The suspects allegedly attempted to dish out Sh30 million to bribe the officers who searched the house and retrieved the government trophies.

In March 2016, the Kisutu Resident Magistrate’s Court sentenced them to pay Sh54 billion fine or serve a 30-year jail term, in default.

Their first attempt to challenge the conviction and the sentence failed in the High Court flopped in 2019 after the court dismissed their appeal for want of merit.

Still protesting their innocent, they lodged the second appeal in the Court of Appeal consisting eight grounds of appeal, arguing that prosecution evidence were marred with discrepancies, inconsistencies and contradictions.

In May 2021, justices of appeal Rehema Mkuye, Gerald Ndika and Jacob Mwambegele dismissed their appeal. However, they reduced the custodial sentence from 30 years’ imprisonment to 20 years.

The dismissal was not the end of it all for the two Chinese nationals who went back to the Court of Appeal in the likely final attempt to assail the decision of the High Court which had dismissed their appeal.

They wanted the Court of Appeal to review its judgment of May 2021, claiming that the decision “has a manifest error on the fact of the record, resulting in miscarriage of justice on the part of the applicants.

Their main complaint was that the sentence meted out to them should have been under the Economic and Organised Crime Control Act (EOCCA) and not under the Wildlife Conservation Act (WCA), as it was.

At the time of the commission of the offence, the punishment provided under section 60 (2) of EOCCA, under which the applicants were charged, was a maximum of 15 years.

Through their advocate Said Ndomba, they argued that the court should have gone for a sentence under the EOCCA. “The error is apparent on the face of the record and prejudiced the applicants (Qin and Fujie) and thus court should rectify it in this review,” argued the lawyer.

Senior state attorney, Mwanaamina Kombakono resisted the application, terming it as an appeal in disguise.

Although she conceded that the appellant should have been sentenced under section 60 (2) of the EOCCA which then provided a milder sentence of not more than 15 years, she was quick to submit that the ailment was rectifiable in an appeal, not in an application for review.

The jurisdiction of the Court of Appeal to review its own decision is provided for under section 4 (4) of the Appellate Jurisdiction Act, Such powers are exercisable in very limited circumstances spelt out in Rule 66 (1) (a) to (e) of the Tanzania Court of Appeal Rules.

One of the circumstances that can warrant the court to review its own decision is when there is an oversight and blunders of judgment on the face of the record

The justices of appeal also rejected the application, saying the application have failed to give sufficient legal reasons to warrant review of the decision.

“With utmost respect to the learned counsel for the applicants, this is an appeal in disguised against the sentence. He wants use to sit on an appeal on sentence against our own decision. That is not legally acceptable,” said the justices.

The justices went further to state: “What the advocate has succeeded to bring before us is a ground of appeal which is not amenable to review. We reiterate in this ruling that it is in the interest of the State that litigation must come to an end,” said the justices.