Supreme Court of Mauritius, 10 avril 2020, 2020 BRC 58 – Police v Mohammud Javed Abdullah

Police v Mohammud Javed Abdullah

2020 BRC 58

IN THE BAIL AND REMAND COURT

Provisional Cause Number 211/2020 (GRAND PORT) BRC Cause Number 905/20

In the matter of:

Police

v/s

Mohammud Javed Abdullah

RULING

The Applicant stands provisionally charged with the offences of (1) DRUG DEALING to wit “POSSESSION OF DANGEROUS DRUGS FOR THE PURPOSE OF SELLING” in breach of Sections 30 (1) (f) (i) and 47 (5) (a) of the Dangerous Drugs Act (2) MONEY LAUNDERING in breach of Sections 30 (1) (f) (i) and 47 (5) (a) of the Dangerous Drugs Act. The Applicant has moved that he be admitted to bail and he was represented by Defence Counsel at the bail hearing. The case for the prosecution was conducted by Police Prosecutor and the proceedings were held in Creole language for the benefit of the Applicant.

The Respondent is resisting the motion and is objecting that the Applicant be granted bail on the following ground: Risk of absconding.

THE CASE FOR THE PROSECUTION

PS Bonomally, the main enquiry officer was called by the Prosecution and he explained that he had been deputed by the Commissioner of Police to resist the present bail application on the above mentioned ground. The police officer went on to explain that on 11 th February 2020, an undercover operation was carried out and the police arrested Applicant who had tried to sell 114 capsules suspected to be dangerous drugs to ADSU officers. The officer further explained that the sum of

Rs 4, 275 was secured suspected to be proceeds of drug dealing. The court was informed that the value of the drug was Rs 8,850 and that Applicant had confessed to the charge under the first count but elected to remain mute in relation to the charge under the second count. The main enquiry officer explained that the Applicant was working at Winners supermarket as a baker and as he is unemployed and taking into account that drug dealing was a lucrative business, the police has all the reasons to believe that should Applicant not be granted bail, he will re-offend. The officer further stated that Applicant was borne on record for non-cognate offences and Doc X was filed accordingly. The court was explained that the police enquiry was short of the FSL report and memo from government pharmacy. In cross examination the enquiry officer stated that he could not confirm that Applicant had lost his job and he could not say when the FSL report would be obtained and consequently when the main case would be lodged. The officer confirmed that Applicant had family ties and was the sole bread winner of his family and had a fixed place of abode. The main enquiry officer admitted in cross examination that the ground of objection was a mere apprehension and the case was closed for the Prosecution.

THE CASE FOR THE DEFENCE

The Applicant was explained his Constitutional Rights and he elected to make a statement from the Dock. He stated that he would comply with all bail conditions imposed by the Court and the case was then closed for the Defence.

Defence Counsel offered no submissions and simply left matters in the hands of the court.

THE RELEVANT SECTIONS OF THE LAW

In the case of Hurnam v The State [2005 UKPC 49], the Privy Council held that only section 4(1) (a) of the 1999 Act specifies the core reasons for refusing bail. Individually, they are to be considered to provide a conclusive reason for refusing bail. Section 4(1)(a) of the Bail Act 1999 reads as follows:

4. Refusal to release on bail

(1) A Judge or a Magistrate may refuse to release a defendant or a detainee on bail where (a) (a) he is satisfied that there is reasonable ground for believing that the defendant or detainee if released is likely to – (i) (i) fail to surrender to custody or to appear before a court as and when required (ii) (ii) commit an offence, other than an offence punishable only by a fine not exceeding 1000 rupees (iii) (iii) interfere with witnesses, tamper with evidence or otherwise obstruct the course of justice, in relation to him or to any other person.

Secondly, as regards to paragraphs 4 (1)(b) to (f) of the Bail Act which are not compelling grounds or core reasons per se to deprive an individual of his liberty but, if relevant, the court need to take into account in order to determine the likelihood of the risks listed in section 4(l)(a) to materialise. The section of the Bail Act 1999 provides as follows:

(1) A Judge or a Magistrate may refuse to release a defendant or a detainee on bail where-

(b) he is satisfied that the defendant or detainee should be kept in custody – (i) for his own protection; or (ii) in the case of a minor, for his own welfare; (c) the defendant or detainee, having been released on bail, has – (i) committed an act referred to in paragraph (a); or (ii) breached any other condition imposed on him for his release: (d) the defendant or detainee is charged or is likely to be charged with a serious offence; (e) there is reasonable ground for believing that the defendant or detainee has – (i) given false or misleading information regarding his names or address; or 5 (ii) no fixed place of abode; (f) a detainee has failed to comply with section 12(2).

Thirdly, a set of consideration is provided under section 4(2) of the Bail Act 1999 to assess the likelihood of the risks enumerated under section 4(l) (a) to materialise. This section provides that:

In making a determination under subsection (1), the Judge or Magistrate shall have regard to such considerations as appear to the Judge or Magistrate to be relevant, including –

(a) the nature of the offence and the penalty applicable thereto; (b) the character and antecedents of the defendant or detainee; (c) the nature of the evidence available with regard to the offence.

Hence, the wording of section 4(1) of the Bail Act 1999 makes it clear that release on bail at pretrial stage is the release upon conditions designed to ensure that the suspect:

(1) appears for his trial, if he is eventually prosecuted; (2) in case he happens to be the author of the offence of which is he suspected, does no further harm to society whilst being at large; and (3) does not interfere with the course of justice, should he be so minded.

The rationale as to bail was clearly set out in the case of Maloupe v The District Magistrate of Grand Port [2000] SCJ 233, where it was held as follows:

“The rationale of the law of bail at pre-trial stage is, accordingly, that a person should normally be released on bail if the imposition of the conditions reduces the risks referred to above- i.e risk of absconding, risk to administration of justice, risk to society- to such an extent that they become negligible having regard to the weight which the presumption of innocence should carry in the balance when the imposition of the above conditions is considered to be unlikely to make any of the above risks negligible, then bail is to be refused.”

It is also trite law that in deciding whether to grant bail to the applicant, a balance must be struck between “on the one hand the need to safeguard the necessary respect for the liberty of the citizen viewed in the context of the presumption of innocence and, on the other hand the need to ensure that society and the administration of justice are reasonable protected against serious risks which might materialise in the event that the detainee is really the criminal which he is suspected to be” [Labonne v. DPP & Anor 2005 SCJ 38]

RISK OF RE-OFFENDING

Regarding the sole ground of objection, there is no doubt that drug trafficking being a lucrative business, there is a serious risk of the applicant being tempted to commit further offences. The more so when one considers the value of the drugs recovered in this case. I am therefore satisfied that the danger of re offending is “plausible” [as stated in Deelchand v. DPP & Anor (supra) citing Clooth v. Belgium [1991] ECHR 71 (12 December 1991) at para 40].

I have therefore addressed and applied the two-limbed test as laid down in the case of DEELCHAND V THE DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (Supra), namely that:

(i) if the evidence against him appears strong, he is more likely to think he has nothing to lose by re-offending;

(ii) if the evidence appears weak to him, he will be less likely to take the risk of detection upon re-offending.

I have assessed an overview of the evidence. (RE: MALOUPE VS DISTRICT

MAGISTRATE OF GRAND PORT (2000) MR 64) . In the case of DOOKHIT S. v THE DISTRICT MAGISTRATE OF PAMPLEMOUSSES, DISTRICT COURT, PAMPLEMOUSSES (2011) SCJ 101 , his Lordship laid down as follows:

“Although the risk of re-offending would necessarily be based on conjecture, the nature of the offence charged and the record of an applicant are useful pointers for a court to decide on this issue”.

I have therefore taken into account the past records of the Applicant. In the present case, the Applicant has confessed to the charge of drug dealing but denied that of money laundering. I note that there is real evidence against him. He has not offended whilst being on bail and according to Doc X on record he has not committed any cognate offence. I have borne in mind that in cross examination, the main enquiry officer stated that the ground of objection was a mere apprehension.

I have also taken into account the Applicant’s statement from the dock that he is prepared to abide by any conditions that the Court may impose. I therefore admit Applicant to bail on the following bail conditions:

(1) Applicant is to furnish a surety in cash in the sum of Rs 40,000 (2) Applicant is to enter into a recognizance in his own name for the sum of Rs 100,000 (3) Applicant is to report to the nearest police station daily between 06 00 hours and 18 00 hours. Applicant is to start reporting on the 1 st day after the confinement period. (4) Applicant is not to re-offend whilst on bail (5) Applicant in case he is bailed out is to report to Grand Port District Court on the 1 st day after the confinement period

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 10 th April 2020