Parties
Chumlong Lemthongthai v The State Case No. 849/2013
Court
Supreme Court of Appeal
Issue
Appeal against sentence.
Background
During November 2012, Chumlong Lemthongthai was convicted and sentenced to 40
years’ imprisonment by a Regional Magistrates Court in respect of 26 counts of
contravening the Customs and Excise Act and 26 contraventions of the NEMBA. In a
nutshell, Lemthongthai unlawfully and intentionally made improper use of a permit to
export rhino horn, and unlawfully and intentionally carried out a restricted activity
involving a specimen of a threatened and protected species; in that he unlawfully traded
in rhino horn.
Lemthongthai successfully appealed this sentence in the High Court where the
sentence was reduced to 35 years. In providing its reasons the High Court said that the
Magistrates’ Court had misdirected itself because although it took all 26 counts under
the Customs and Excise Act as one, it imposed a sentence of 10 years which is in
excess of the maximum 5 year sentence provided for by the Act. It then separated the
26 counts in terms of NEMBA into three groups, imposed a sentence of 10 years
imprisonment for each group of counts and allowed the 5 year sentence in terms of the
Customs and Excise Act to run concurrently with the NEMBA sentence.
In aggravation of sentence the High Court made an assumption that Lemthongthai was
part of a syndicate. It shared its view that the case called out for a sentence that would
act as a deterrent.
Judgment
Lemthongthai again appealed the sentence. This time to the Supreme Court of Appeal
(the SCA).
The SCA reduced the sentence to 13 years’ imprisonment (6 months for each NEMBA
charge) and payment of a fine of R1 million (in respect of the charges under the
customs and excise Act – the fine amount did not exceed the maximum fine that may
be imposed being treble the value of the goods).
Factors taken into account by the SCA included that:
•
•
•
•
•
the High Court incorrectly had regard to an assumption that Lemthongthai was
part of a trading syndicate without supporting evidence;
it was unwarranted for the Court to have equated his conduct with typical
poachers;
it arbitrarily grouped the NEMBA counts which was inappropriate;
the rhinos killed were surplus bulls destined to be shot by trophy hunters. This
distinguished the case from one where the poacher kills indiscriminately without
any pretence at legality; and
the sentence imposed was too severe and induced a sense of shock.
The Court, however, in coming to its decision, highlighted the fact that the Constitution
demands a more caring attitude toward fellow human beings, animals and the
environment in general. It therefore recognised the need to impose a custodial
sentence; starting that to do otherwise would send out the wrong message.
It must be noted that, in its judgment, Court criticised the relevant government
department for lack of proper supervision of the authorised hunt. It said that “from the
photographs that formed part of the court record the officials involved probably knew
that the terms of the permit were not being met and that the stated purpose of the hunt
was false. From the photographs it appears that these officials should have known that
the persons present during the hunt were not the persons to whom the permits to shoot
and kill rhino had been granted and were not in truth genuine trophy hunters.”