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Chinese trafficker off hook

How Lesotho ground-breaking case was bungled

SECHABA MOKHETHI

A 42-year old Chinese man was sentenced 15 years in prison with no option of fine but is now a free man after spending only two months in jail.

The Maseru magistrate court had slapped Zheng Chuan Xian with 15-years imprisonment in January 2012, but MNN Centre for Investigative Journalism learned he served two months in jail within that period; he had appealed the ruling and won.

Proceedings in the lower court were found to be marred with irregularities shown by flawed charge sheet among others, with the opposing lawyer denying himself chance to file an answering affidavit.

For the first time since anti-trafficking law came into force in 2011, Lesotho had with this case recorded one conviction related to human trafficking and forced labour.

Xian had been found guilty of trafficking a 29-year-old Chinese woman and turning her into a sex slave at a Chinese restaurant in one of the Maseru hotels.

Evidence that was adduced in court indicated that Huang Xiuli Li was in August 2011 lured to Lesotho on promise she would become a supermarket manager but was instead exploited and forced into prostitution.

“In May 2012, following the Chinese offender’s successful appeal of his conviction, authorities released him from jail; the director of public prosecutions (DPP) is currently appealing that decision,” reads a Trafficking in Persons report by United States Department of State of 2012.

The acting DPP Hlalefang Motinyane has not confirmed the said appeal as all efforts to meet her ran futile with questions emailed to her not answered. But to date, Xian remains a free man.

Of interest is how Xian won the appeal.

Xian’s argument, as seen by the Centre in the court papers, was that proceedings that led to his conviction were riddled with irregularities from the onset and prayed that they be quashed.

He claimed tortured at the hands of the Lesotho Mounted Police Service investigators whom he argues ordered him to confess and plead guilty; failing which he would be subjected to more torture.

It also appeared in the court papers that Advocate Chobokoane who had represented Xian before the magistrate court had entered into an agreement with the prosecutor on his client’s behalf.

The agreement was that Chobokoane had pleaded his client be granted an option of M10 000 fine “which amount he borrowed as the trial commenced”.

As he filed intention to oppose, Advocate Mahao for the respondents (Chief Magistrate, Senior Clerk of Court, the DPP) opted to invoke Rule 8 (10) (c) which provides that “If he intends to raise any question of law without any answering affidavit, he shall deliver notice of his intention to do so, within the time aforesaid, setting forth such a question”.

Justice Nthomeng Majara, now Chief Justice, then presiding over this matter noted in her judgement that “while Mr Mahao did not dispute these facts, he however, submitted that the applicant could not properly seek review of the proceedings while the respondents had noted an appeal”.

“I however dismissed this point for the reason that the two procedures were not mutually exclusive. That in addition, the applicant was not stopped from seeking review for the reason that the respondents had noted an appeal, not to mention that the two procedures are premised on different grounds.”

Judge Majara noted it was at that stage that Advocate Mahao unsuccessfully sought the indulgence of the Court to allow him to file the answering affidavit.

“The reason for my refusal was that where a party invokes Rule 8 (10) (c), he does so at his own peril and that it is only under exceptional circumstances that the Court will allow him to file an affidavit at that stage.

“Unfortunately, the consequence of this is that in the absence of such affidavit the applicant’s averments have not been gainsaid and remain undisputed facts,” she said.

The loopholes became Xian’s ticket to freedom.

Delivering her verdict, Justice Majara said with regard to the first point namely that the plea was not freely and voluntarily made, Counsel for the applicant made the submission that the alleged torture at the hands of the police, coupled with the agreement between the two sides that the accused would be given an option of a fine should he plead guilty, which did not happen, vitiates the proceedings.

“I am persuaded by this submission in light of the fact that the allegations of torture that compelled the applicant to tender a plea of guilty have not been gainsaid.”

In addition, the Judge said, the medical report bears the applicant out on this fact because it reflects that he suffered the alleged injuries at the hands of the police.

“Further, the record reveals that Mr Chobokoane did inform magistrate court that there had been a plea bargaining that led to the tendering of the plea.

“From the record of proceedings, the said Huang Xiuli Li is the complainant in this matter. However, the wording of the charge sheet seems to suggest that she was encouraged to engage the services of a victim of trafficking, not that she was the actual victim,” she noted.

“If that is the case, then I am inclined to accept that charge is definitely defective for it implies that Huang Xiuli Li was encouraged to the services of another person who would properly be the victim in terms of the charge.”

“In other words, the absence of any clarity on the charge in the form of how the applicant is said to have committed an offence under the section in question, does render the charge defective,” she ruled.

“It is the case of the applicant that the charge does not specify how he violated the section under which he was charged since it simply states that he encouraged the complainant to engage the services of a victim of trafficking.

I must hasten to add that I should not be understood to be saying that there is no case to be made against the applicant. What I am stating is that the charge should be sufficient to disclose an offence in order for him to have properly pleaded.“

“It was also submitted on behalf of the applicant that to allege an offence under a statute but fail to disclose every essential element thereof is a bad defect that cannot be cured by the evidence.”

On the said grounds, Justice Majara set Xian’s conviction aside and he was freed. “I might add that the Crown is at liberty to institute fresh proceedings against the applicant if they so wish,” she said.

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