Chinese bribery convicts again denied bail

ELLANIE SMIT



The High Court has dismissed an appeal by two Chinese nationals against a Windhoek Magistrate’s Court order that denied them bail, pending an appeal in their bribery case.

Acting Judge Ileni Velikoshi said the appellants, Xu Siyong and Yang Haifen, were convicted of contravening the Anti-Corruption Act “by directly or indirectly and corruptly offering or giving a police officer”, Inspector Beauty Mukuwa, N$4 000.

The money was given as an inducement to stop money-laundering investigations against Yang involving about N$1 million.

Both men were employed as managers at Chinese-owned construction company New Era Investment at the time of the bribery incident.

Both Xu and Yang pleaded guilty on 7 September and were sentenced to 24 months imprisonment each on 14 September.

On the same day they filed a notice of appeal on the only grounds that the imposed sentence, without an option of a fine, was harsh and induced a sense of shock.

Their application for bail pending their appeal was heard and dismissed by the Windhoek Magistrate’s Court on 27 September.

The appellants then lodged an appeal against the magistrate’s refusal to release them on bail, pending their appeal.

Velikoshi said the argument made that the magistrate erred by concluding that the two Chinese nationals are a flight risk, without hearing evidence to that effect, cannot stand, because it would have been unproductive for the state to lead counter-evidence on issues not in dispute.

“In any event, failure by the respondent to lead evidence does not inevitably entitle the appellants to bail.”

He said further because the appellants had been convicted and sentenced to a “sentence that has shocked them”, they will abscond to avoid serving it, seeing that they are Chinese nationals with no or very little ties to Namibia.

“The court is of the view that the magistrate did not need evidence to arrive at that decision. The fear of serving 24 months imprisonment is, after all, the reason why (an application) for bail, pending an appeal, was lodged in the first place.”

Velikoshi pointed out that the sentencing magistrate took into account, the appellants’ personal circumstances, acknowledged that they were first offenders, that they pleaded guilty and that they were family men with family responsibilities when their sentencing took place.

“She also looked at a sentence with an option of a fine, but in her view, it was inappropriate in light of the seriousness of the offence, because it would not have achieved the objective of deterrence.

“It was from this reasoning that the magistrate made a conclusion that it was unlikely that the court of appeal would upset the sentence of 24 months imposed on the appellants,” Velikoshi said.

He said if a convicted and sentenced offender desires to be released on bail pending an appeal, he or she must go beyond showing prospects of success and establish that there are positive grounds to be granted bail.

They must also show that granting bail will not jeopardise the interests of the public and the due administration of justice.

Velikoshi said the court is unable to find misdirection or an irregularity in the manner in which the magistrate exercised her discretion. The appeal was therefore dismissed.