Cheng Jie Liang v The State

The appellant was arrested on 14 September 2012 after police discovered large quantities of ivory in storage Units 12 and 349 at Storage Spot in Cape Town. He was found in possession of keys to both units and cell phones containing photographs of whole elephant tusks taken on 13 September 2012. The ivory had been freshly cut from 9 African elephants. The appellant's fingerprints were found on boxes in both units. Additional ivory was discovered on 3 October 2012 in Unit 349. The manageress identified the appellant as a regular visitor to Unit 12, which was leased by Mr Wu who had left for China. A vehicle registered in the appellant's name (a Caravelle) was found containing abalone, with the appellant's fingerprints on the boxes and plastic bags. The appellant had a prior conviction from 24 February 2004 for unlawful possession of abalone. He pleaded not guilty to all charges and chose not to testify or call any witnesses.

• Whether charging the appellant under counts 1 and 2 amounted to improper splitting of charges
• Whether the state proved the appellant 'acquired' and was in 'possession' of the ivory within the meaning of section 42(1) of the Nature and Environmental Conservation Ordinance 19 of 1974
• Whether the bail proceedings were admissible as evidence at trial where the appellant had not been warned in terms of section 60(11B)(c) of the Criminal Procedure Act
• Whether the trial court exceeded its monetary jurisdiction in imposing a fine of R5 million
• Whether the fine should have been imposed as a suspended condition rather than as a separate penalty
• Whether the sentence of 2 years imprisonment for the abalone offence was appropriate

1. The appeal succeeds in part. 2. The conviction in respect of count 2 is set aside. 3. The sentence in respect of count 1 is set aside and substituted with: 7 years direct imprisonment, plus a fine of R300,000 (or 24 months imprisonment in default), antedated to 5 September 2014. 4. The convictions on counts 1 and 3 are upheld as is the sentence of 2 years imprisonment imposed in respect of count 3 (the abalone count). The sentences shall not run concurrently.

1. Where multiple charges arise from a single incident with no evidence of separate acts, charging an accused with duplicate counts amounts to improper splitting of charges. 2. For purposes of section 42(1)(b) of the Nature and Environmental Conservation Ordinance, 'possession' means possession for one's own benefit, and a person carrying out unlawful instructions cannot escape liability by claiming to act as an 'employee'. 3. Bail proceedings admitted by consent under section 235 of the CPA remain inadmissible as to their contents at trial unless the accused was warned in terms of section 60(11B)(c), as section 235 is merely a procedural provision. 4. A regional court cannot exceed its monetary jurisdiction under section 92(1)(b) of the Magistrates' Court Act when imposing fines under a provincial ordinance unless the ordinance contains a specific provision conferring such extended jurisdiction. 5. Where legislation provides for two separate categories of penalty (a fine/imprisonment and a fine based on commercial value), these must be imposed as separate penalties and cannot be telescoped into conditions of suspension.

The court observed that the omission of a provision in the Nature and Environmental Conservation Ordinance similar to section 92(2)(a) of the Magistrates' Court Act or section 70(3) of the Marine Living Resources Act appears to be inadvertent, and stated: 'Given the consequences of this omission, if this is indeed the case there is clearly a pressing need for legislative correction of this oversight.' The court also noted the evidence regarding ivory poaching being syndicate-related with multiple persons forming a chain for individual financial benefit, but found it unnecessary to determine whether the appellant was part of such a syndicate given the clear evidence of unlawful possession. The court commented that if the appellant had intended to rely on the contents of his bail affidavits, he should have made this clear through section 220 admissions rather than merely consenting to admission of the record under section 235.

This case clarifies important principles regarding: (1) the proper approach to splitting charges where offences arise from a single incident; (2) the interpretation of 'possession' and 'acquired' under section 42(1) of the Nature and Environmental Conservation Ordinance, particularly in the context of syndicate activity involving illegal wildlife products; (3) the strict requirements for admissibility of bail proceedings evidence, confirming that section 235 of the CPA is merely procedural and does not override the warning requirements of section 60(11B)(c); (4) the monetary jurisdiction limits of regional courts in imposing fines under provincial ordinances where no specific provision extends that jurisdiction; and (5) the proper structure of sentencing under section 86(1)(b) of the Ordinance, which provides for two separate categories of penalty that should not be telescoped into conditions of suspension. The judgment highlights the need for legislative correction where provincial conservation ordinances lack provisions similar to section 92(2)(a) of the Magistrates' Court Act.