Lou Yu Ling v The State

The appellant was convicted of theft of trust property under s 113(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The complainant had business dealings with the appellant involving clothes. The complainant would give the appellant clothes to sell on her behalf, and the appellant would later give the complainant money from the sale. The appellant would receive clothes, place her own mark-up, and sell them. There was a misunderstanding over US$9,454.00 that the complainant believed was owed to her. The complainant and appellant communicated in English and Chinese respectively, which created communication difficulties. The complainant produced invoices she had written herself which were not signed by the appellant. The appellant kept records in Chinese. A book recording the transactions was lost. The trial court convicted the appellant and sentenced her to 24 months imprisonment (6 months suspended on good behaviour, 18 months suspended on community service). The appellant appealed both conviction and sentence.

• Whether the arrangement between the complainant and appellant constituted a trust relationship under s 113 of the Criminal Law (Codification and Reform) Act
• Whether the relationship between the parties fell within the exception to the definition of 'trust property' - namely a debtor-creditor relationship
• Whether the appellant was entitled to use the clothes as her own under the terms of the agreement
• Whether the matter was criminal in nature or should have been dealt with as a civil dispute

The conviction was set aside and the sentence quashed. The appellant was found not guilty and acquitted.

Where property is received on terms that expressly or impliedly stipulate that (i) the recipient is entitled to use the property as their own, and (ii) there is only a debtor-creditor relationship between the parties, such property does not constitute 'trust property' under s 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], and no offence of theft of trust property can be established. A commercial arrangement whereby one party receives goods for resale with the freedom to use them as their own (including placing their own mark-up and determining how to dispose of them) provided they pay an agreed amount to the supplier, creates a debtor-creditor relationship that falls outside the scope of criminal theft of trust property.

The court observed that there had been a communication breakdown between the parties who spoke different languages (English and Chinese). The court also noted that the transactions were poorly documented, with the main record book being lost and the complainant producing invoices she had written herself which were not signed by the appellant. The court emphasized that such commercial disputes involving questions of debt and payment properly belong in the civil courts rather than the criminal courts, reinforcing the principle established in previous cases such as Brian Tarisai Kambasha and another v The State HH 36-17 and Dalvin Dean Green v The State HH 283-16.

This case provides important guidance on the distinction between criminal theft of trust property and civil debtor-creditor disputes in Zimbabwean law. It clarifies the application of the exception to the definition of 'trust property' under s 113 of the Criminal Law (Codification and Reform) Act, particularly where parties have a commercial arrangement that creates a debtor-creditor relationship. The case reinforces the principle that not all commercial disputes involving alleged non-payment or misappropriation amount to criminal offences, and that courts must carefully scrutinize the nature of the relationship between parties to determine whether a matter is properly criminal or civil in nature. It serves as a cautionary example against the criminalization of civil debt disputes.