Roland Routh
WINDHOEK – Two Chinese nationals sentenced to 24 months in jail each for attempting to bribe a police official with N$4000 to stop her investigation into a money laundering complaint against one of them was last Friday denied bail pending an appeal they lodged against the sentence.
The two, Sixong Xu and Haifen Yang pleaded guilty to a charge of contravening the Anti-Corruption Act before Magistrate Vannessa Stanley in the Windhoek Magistrate’s Court and was sentenced to a term of imprisonment instead of the fine they expected. Not satisfied with the sentence, they lodged an appeal and at the same time applied for bail pending the appeal hearing.
The magistrate refused bail on the grounds that they are a flight risk. According to Acting High Court Judge Ileni Velikoshi, who heard the appeal, the reasoning for the magistrate’s finding that the applicants are convicted felons who are sentenced to a sentence that shocked them, they will abscond to avoid serving the sentence seeing that they are Chinese nationals with little or no ties to Namibia.
He said that the fear of serving 24 months in prison was after all the reason for applying for bail pending appeal. According to the judge, while the defence counsels placed much emphasis on the fact that the penalty clause provides for a sentence with an option of a fine, Judge
Liebenberg in one of his judgements said, ‘’The fact that a fine is provided for in the penalty provision does not mean that it must be imposed in all instances. It is trite that in serious offences it has become the norm to resort to custodial punishment even on first offenders as the objectives of punishment in these case are usually deterrence and retribution,” Judge Velikoshi went on to say that the magistrate made it very clear in her judgement that she took the personal circumstances of the applicants, specifically the fact that they are first offenders; that they have pleaded guilty and are family men with family responsibilities into account when she decided on a punishment. He said the magistrate also looked at a sentence with the option of a fine, but that in her view was inappropriate in light of the seriousness of the offence and because it would not have achieved the objective of deterrence. He also said that it was from this reasoning that the magistrate concluded it was unlikely an appeal court would interfere with the 24 month sentence. Judge Velikoshi further stated even if the appeal court would pass a different sentence, it still, is not a good enough reason to justify the substitution of the trial court’s sentence.
According to the judge, the onus rests on the applicants to convince the court to grant them bail. “In that regard if a convicted and sentenced offender desires to be admitted on bail pending appeal, he or she must go beyond showing prospects of success on appeal and must establish that there are positive grounds commending him or her to the grant of bail and that the admission to bail will not jeopardise the interests of the public and that of the due administration of justice.
In this instance, he said, the applicants did not achieve that goal. The two convicts were represented by Advocate Louis Botes assisted by Advocate Werner Boesak instructed by Siyomunji Law Chambers and the state by Advocate Felicitas Shikerete-Vendura.