IN THE HIGH
COURT OF NAMIBIA

MAIN DIVISION,
HELD AT WINDHOEK

CASE NO.: CA
59/2010

In the matter
between:

THE STATE
…...............................................................................APPLICANT

And

JIAN GUO CHEN
…........................................................................RESPONDENT

CORAM:
NDAUENDAPO, J

Heard on: 07
February 2011

Delivered on: 21
May 2012

_____________________________________________________________________________

APPLICATION FOR
LEAVE TO APPEAL

JUDGMENT:

NDAUENDAPO J

JUDGMENT

[1] This is rather
an unusual application for leave to appeal by the state against a
decision or ruling of the Regional Court not to order forfeiture of
foreign currency seized from the accused.

[2] The
respondent, to whom I shall refer to as the accused, was charged in
the Regional Court at Windhoek with various counts of contravening
provisions of the Exchange Control Regulation of 1961 (reg 3.5 as
read with reg 22 thereof) pertaining to seizure and forfeiture. He
was also charged with contravening section 35 (2) of the
Anti-Corruption Act No. 8 of 2003. The accused pleaded guilty and
handed in a written statement in terms of section 172 (2) of the
Criminal Procedure Act 51 of 1977, setting out the facts which he
admitted and on which he pleaded guilty. He was found guilty as
charged.

[3] The facts of
this case can be summarized as follows:

The accused, a
Chinese national, was arrested on 14 November 2007 at Hosea Kutako
International Airport in possession of U$451 492.00 with the aim of
taking the currency out of Namibia without declaring it and without
treasury authority. When he got arrested, he offered three Police
officers amounts of N$700.00 and N$870.00, N$10 000.00 respectively
as an inducement not to arrest him for unlawfully possessing the
currency.

The foreign
currency was seized from him and booked in as exhibits at the
Katutura magistrate’s court. On 3 September 2010 when the
accused pleaded guilty, the court was informed by the clerk of the
court that the foreign currency was stolen and could not be traced.

The Prosecutor, Ms
Husselman, who appeared for the State nevertheless applied to court
for the forfeiture of the missing currency in terms of section 35 (1)
of the Criminal Procedure Act 1977 (Act 51 of 1977) or regulation 3.
(5) of the Exchange Control Regulations 112 of 1961. The presiding
officer declined the application on the basis that he could not do so
because the foreign currency was stolen.

Dissatisfied with
that, the state filed an application for leave to appeal against that
decision. It is trite that in an application of this kind the
applicant must satisfy the court that the applicant has a reasonable
prospect of success on appeal. (see: R v Nxu Malo 1939 AD 580

The grounds on
which the state applies for leave to appeal are inter alia
stated as follows:

[4] 4.1 “The
learned magistrate misdirected himself and or erred in law or fact by
declining to make an order for forfeiture of the foreign currency
involved or its equivalent value in Namibia currency regardless of
the fact that the foreign currency was missing from the office of the
clerk of court. The learned Magistrate misdirected himself and or
erred

Alternatively,
in law or fact when he failed to make any order in terms of section
35(1) of the Criminal Procedure Act and or failed to forfeit to the
state foreign currency involved, its equivalent value or the
respondent’s right to such foreign currency or its equivalent
value thereof”

[5] Section 35
provides that:

“35
Forfeiture of article to State

(1) A court
which convicts an accused of any offence may, without notice to any
person, declare-

(a) any weapon,
instrument or other article by means whereof the offence in question
was committed or which was used in the commission of such offence; or

(b) if the
conviction is in respect of an offence referred to in Part 1 of
Schedule 2, any vehicle, container or other article which was used
for the purpose of or in connection with the commission of the
offence in question or for the conveyance or removal of the stolen
property,

And which was
seized under the provisions of this Act, forfeited to the State:

Provided that
such forfeiture shall not affect any right referred to in
subparagraph (i) or (ii) of subsection (4) (a) if it is proved that
the person who claims such right did not know that such weapon,
instrument, vehicle, container or other article was being used or
would be used for the purpose of or in connection with the commission
of the offence in question, or that he could not prevent such use,
and that he may lawfully possess such weapon, instrument, vehicle,
container or other article, as the case may be”.

It is clear from
the section that the court has a discretion to order forfeiture or
not and that the discretion must be exercised judicially. In S v
MARAIS 1982 (3) 988 (A) AD: 1001 the court held that: ‘’
section 35 (1) is clearly an enabling and not a compulsory provision
since it provides that the court which convicts the accused may, if
it thinks fit, decree forfeiture. It is a matter which lies within
the discretion of the court and in the exercise of that discretion
the court will take into account all relevant circumstances’’

In casu,
the state does not allege that the discretion was not exercised
judicially. In my respectful view the court a quo correctly exercised
its discretion based on the fact that there was nothing to forfeit as
the currency was stolen.

[6] The
alternative ground is equally bad in law. Section 35 (1)
clearly states that it is the article or object used in the
commission of the crime that must be declared forfeited. An
equivalent currency can never be the same as the missing currency
used in the commission of the crime. That alternative ground is
therefore without merit.

[7] “ The
next ground is stated as follows:

4.2 “the
learned Magistrate misdirected himself and or erred in law or fact by
omitting to enquire and establish whether the respondent was the
rightful owner of the seized foreign currency, as this was relevant
to the issue of his entitlement to compensation in lieu of the seized
foreign currency.’ In terms of section 35 (1) the inquiry about
ownership of the seized currency becomes relevant only if there is a
forfeiture order, but in the absence of such an order that inquiry
does not arise. That ground is without merit.

The next ground
is:

[8]“4.3 the
learned magistrate misdirected himself and or erred in law or fact in
his conclusion that only the seized item was liable to forfeiture to
the state as the Criminal Procedure Act 51 of 1977 permits
compensation in lieu thereof to the owner if the article has been
disposed of thus allowing for forfeiture of the right to compensation
of the respondent, if he was the rightful owner”. Section 35
clear states that only the currency used in the commission of the
crime is liable to forfeiture.

The last ground is
stated as follows:

[9] ‘’4.4
The learned magistrate misdirected himself and or erred in law or in
fact by declining to make an order for forfeiture or making an order
of referring the matter to treasury on the basis that there would be
no benefit accruing to the national revenue fund, leaving the way
open for the respondent to possibly fully benefit from his crime if
he was to claim compensation”. The learned magistrate could not
have made an order of referring the matter to treasury in the absence
of the stolen currency and there would be no benefit accruing to
treasury if such an order is made.

Having regard to
what I said, there are no prospects of the success on appeal.

In the
circumstances, I come to the conclusion that the learned magistrate
exercised his discretion not to order forfeiture judicially.

[10] In the
result, the application for leave to appeal is refused.

_______________________

NDAUENDAPO,
J

ON
BEHALF OF PLAINTIFF: S. NDUNA

INSTRUCTED
BY: PROSECUTOR-GENERAL OFFICE

ON
BEHALF OF THE STATE: MR SISA NAMANDJE

INSTRUCTED BY:
NAMANDJE & CO