Supreme Court of Mauritius, 10 mars 2020, 2020 BRC 26 – Police v Marie Christelle Isabelle Bibi

Police v Marie Christelle Isabelle Bibi

2020 BRC 26

IN THE BAIL AND REMAND COURT

Provisional Cause Number 3661/2017 (Port Louis (South)) BRC Cause Number 2826/17

In the matter of:

Police

v/s

Marie Christelle Isabelle Bibi

RULING

The Applicant stands provisionally charged with the offence of MONEY LAUNDERING in breach of Sections 39 (1) (a) (2) and 47 (5) (a) of the Dangerous Drugs Act. The Applicant has moved that she be admitted to bail and she was represented by Defence counsel, Me. A. Juwaheer at the fresh bail hearing. The case for the prosecution was conducted by State Counsel, Me. Nathire 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 grounds:

(1) Risk of absconding (2) Risk of re-offending (3) Risk of interfering with witnesses

THE CASE FOR THE PROSECUTION

Inspector Lepoids, 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 grounds. He went on to explain that

following the arrest of Navin Kisnah in a case involving the importation of drug worth more than MUR 2 billion, information was received that Applicant together with a certain Lucknarain Dookhit were implicated in money laundering. The said Lucknarain Dookhit revealed that Applicant had approached him on several occasions to indulge in money laundering and he stated further that he went to South Africa on at least 3 occasions to purchase construction materials. The first time the sum of 400,000 South African Rand was involved and the second time the sum of 1.9 million South African Rand was involved. The main enquiry officer explained that the enquiry revealed further that 2 mixers and 2 bobcats were also secured during the enquiry and there were still other items which had not yet been secured. The court was informed that the money involved was suspected by the police to be derived from the drug business and the main enquiry officer explained that the Applicant had been positively identified by the said Lucknarain Dookhit. Inspector Lepoids stated that the Applicant has denied the charge against her and that since the present case has international ramification the help of Interpol has been solicited.

Regarding the first ground of objection, the enquiry officer explained that money laundering is a very serious case under the Dangerous Drugs Act, and if found guilty the Applicant will face a heavy sentence and therefore if granted bail, the police has all the reasons to believe that Applicant will abscond. The officer explained further that the police enquiry is revealing that this case is linked to the network of drug dealing of Peeroomal Veeren and as they have big money, the Applicant can leave Mauritius and escape.

Regarding the second ground of objection the main enquiry officer explained that the Applicant had approached Lucknarain Dookhit on several occasions for money laundering and if granted bail, the police has all the reasons to believe that she will re-offend. Doc X was filed to show that Applicant had committed a cognate offence for drug dealing and that she was on bail for a case of money laundering when she committed the present offence.

Regarding the third ground of objection the main enquiry officer stated that various persons in Africa are being looked for following the statements of Lucknarain Dookhit and if granted bail, the police has all the reasons to believe that Applicant will interfere with the witnesses. The officer explained that emails sent by Applicant to these people have been retrieved and if granted bail, she will interfere with these people. The court was informed that the police enquiry was nearly completed and that replies from Interpol were being awaited and once received the police file will be sent to superior officers for advice.

In cross examination the officer stated that upon completion of enquiry the file will be sent for drafting of Form 100 and he confirmed that Applicant has been on remand for 3 years now. He stated that part replies have been obtained from Interpol and that the enquiry was a very complex one and he could not say when exactly he will get the Interpol replies but he stated reminders will be sent to Interpol. He further stated that he could not say at this stage when the main case would be lodged. The

main enquiry officer confirmed that the Applicant had a fixed place of abode as well as a child and maintained that the evidence against the Applicant was very strong as the retrieved emails from Applicant’s email address have shown all the transactions which have taken place. He confirmed that Applicant had denied the charge and explained that there was direct evidence against her. He stated that his grounds of objections were strong apprehensions and that the police believe that even if the court imposes bail conditions, the Applicant will abscond, she will re-offend and interfere with witnesses. The case was then closed for the prosecution.

THE CASE FOR THE DEFENCE

The Applicant was explained her Constitutional Rights and she elected to make a statement from the Dock. She went on to state that she would comply with all bail conditions imposed by the Court. She stated that she has not been with her son for four years now and still does not know why she was arrested.

Both Defence Counsel and State Law Officer offered brief submissions both in law and on the facts and relevant authorities were filed by State Counsel. Defence Counsel invited the court to consider the time spent on remand by Applicant and her right under the Constitution of Mauritius to have a fair trial within a reasonable time. State Counsel on the other hand argued that authorities have not been delaying matters as the case has international ramifications. The Prosecution submitted further that even stringent conditions would not suffice to render the grounds of objections negligible.

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 ABSCONDING

Regarding the first ground of objection for bail, being given the seriousness of the offence and the probable custodial sentence to be imposed should applicant be found guilty, there is no doubt, a serious risk that he may be tempted to abscond. However, this court also has to take into account other factors in deciding whether there is a serious risk of absconding. Indeed, “the severity of the sentence which the defendant would be likely to incur, if convicted, does not in itself justify the inference that he or she would attempt to evade trial if released from detention… other factors, especially those relating to the character of the person involved, his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country… may either confirm the existence of a danger of flight or make it appear so small that it cannot justify detention pending trial.” [As per Deelchand v. The State [2005] SCJ 251 citing Neumeister v. Austria (1968) 1 ECHR 91]

I have taken into consideration the fact that Applicant has a fixed place of abode and family ties. I have looked at the past conduct of the Applicant based on the reasoning that it would be indicative of what she may be capable of doing. I have also tried to make a reasonable projection of what the Applicant may do or may be tempted to do in the future bearing in mind the developments and circumstances surrounding her case. I have considered the fact that the police enquiry has very much progressed

and will be completed as soon as information from Interpol was received. The main enquiry officer explained that soon the case file will be sent to superior officers for the drafting of the Form 100. I have even considered the fact that Applicant was on bail for a similar offence when she was arrested for the present case. In light of the direct evidence against the Applicant and the contacts that Applicant has abroad, especially in South Africa who can help her to travel abroad and take refuge outside our jurisdiction and further taking into account the means that she has to effect payment in order to meet the expenses or organizing and carrying out the act of absconding, especially if it involves leaving the country bearing in mind that Mauritius is a small island having other islands as neighbours and that it would be impossible for our authorities to keep the whole of the shores in Mauritius under constant surveillance, there is an increased responsibility on this court, whilst bearing in mind the general principle that liberty is the rule and detention the exception, to see that justice is not baffled when Accused parties awaiting trial simply leave the country by hiring powerful boats as has been the case in the past. (Re: The Director of Public Prosecutions v/s Louis Jimmy Marthe [2013 SCJ 386a]). Regarding this ground of objection, I find in the light of all the observations above that there are no conditions that I can impose to render this ground of objection negligible.

RISK OF RE-OFFENDING

Regarding the second ground of objection raised by the prosecuting authorities, there is no doubt that drug trafficking being a lucrative business there are big amounts of money involved in money laundering connected to the drug business and therefore there is a serious risk of the applicant being tempted to commit further offences. The more so when one considers the sum of money involved in the present case, that too in foreign currency. 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 denied the charge against her but according to Doc A she is on bail for a cognate offence. I further note that Applicant has been convicted before the Intermediate Court for a cognate offence where she got a custodial sentence but however Applicant has appealed against the sentence. I have borne in mind that although there is a risk of the Applicant re-offending, the Court should consider whether conditions can be imposed on the Applicant to render these risks negligible. (RE: MALOUPE VS DISTRICT MAGISTRATE OF GRAND PORT). An imposition of a heavy security will ensure the Applicant’s appearance before Court and will be an incentive for him not to indulge in any other offence. In the case of DEELCHAND V THE DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (SUPRA) , the Learned Judge had this to say:

“Security appears applicable to all the risks as it may be an incentive to the applicant to appear for trial, to behave whilst on bail and to refrain from interfering with witnesses, or tampering with evidence”.

I have also taken into account the Applicant’s statement from the dock that she is prepared to abide by any conditions that the Court may impose. I am however of the opinion that there are no conditions, even severe, which could be imposed to effectively reduce the risk of the applicant re-offending to a negligible level.

RISK OF INTERFERING WITH WITNESSES

I shall now turn to the third ground of objection raised by the police in relation to the present case, namely the risk of interference with witnesses and evidence. I shall refer to the case of DEELCHAND V THE DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS [2005SCJ 215], where reference was made to Neil Corre quoting an extract of his book “Bail in Criminal Proceedings” (1990), to express the most common manifestations where there is a risk of interference with witnesses, namely:

(a) the defendant has allegedly threatened witnesses; (b) the defendant has allegedly made admissions that he intends to do so; (c) the witnesses have a close relationship with the defendant, for example in cases of domestic violence or incest; (d) the witnesses are especially vulnerable, for example where they live near the defendant or are children or elderly people; (e) it is believed that the defendant knows the location of inculpatory documentary evidence which he may destroy, or has hidden stolen property or the proceeds of crime; (f) it is believed the defendant will intimidate or bribe jurors;

(g) other suspects are still at large and may be warned by the defendant.

In the present case, the police apprehend that the Applicant might interfere with witnesses in South Africa. The main enquiry officer explained that emails sent by Applicant to Lucknarain Dookhit regarding transaction details and instructions have been retrieved and names of various people have been revealed. Replies from the Interpol are being awaited concerning these potential witnesses and if granted bail the police fear that Applicant with interfere with these people. I have considered that the fact that these witnesses have not yet given their statements and as the Applicant herself has denied the charge against her, I find that therefore, the risk of her interfering with the witnesses will bear much consequential effect. I therefore find that this ground of objection can stand.

After carrying out the required balancing exercise, I hold that the need for Applicant to be in continued detention in the circumstances outweighs her right to remain at large. The motion for bail is therefore set aside. However, the Applicant has the right to be tried within a reasonable time as stipulated under Section 5(3) of the Constitution. The Applicant “must, whatever the Bail Act says or does not say, be released unless he is brought to trial within a reasonable time” vide Hossen v District Magistrate of Port Louis [1993 MR 9]. In light of the above and after finding that the delay so far in this case is not of an undue nature taking into account the complexity of the police enquiry, I strongly urge the Prosecuting Authority to complete the enquiry as expeditiously as possible taking into account the amount of time spent by Applicant on remand so far and to lodge the formal charge against her so that she is tried within a reasonable time as guaranteed by the Constitution.

I am reminding the authorities that there are several pronouncements of the Supreme Court stressing the need for the prosecution authorities to adopt a fast track procedure in cases where defendants are the subject of pre-trial detention, as is the case before this bench today. (Re: Teeluckchand v District Magistrate of Riviere du Rempart [1989 SCJ 56] and Director of Public Prosecutions v Hurnam [2004 SCJ 153]).

The matter is fixed Pro-forma in 3 months’ time for stringent follow-up (the main enquiry officer to be present to report progress and should the main case not be lodged to explain why same has not been done).

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