Supreme Court of Mauritius, 13 mars 2020, 2020 BRC 127 – JN Bundhoo v Police

1 JN Bundhoo v Police

2020 BRC 127

Provisional Cause Number 1168/18 (Riviere du Rempart (Mapou)) BRC Cause Number 2768/18 THE BAIL AND REMAND COURT (MAURITIUS) In the matter of:- Jean Noel Bundhoo v/s Police RULING

Introduction

1. The Applicant stands charged with the offence of drug dealing with aggravating circumstances – deliver cocaine with an averment of trafficking in breach of sections 30 (1)(d)(ii), 41(3)(4) and 47 (5)(a) of the Dangerous Drugs Act. He has been on remand since the 23 rd July 2018 and his Counsel, Me Teeluckdarry, has moved that he be admitted to bail. Me Patten appeared for the Respondent, assisted by PS Vythelingum.

2. Facts and circumstances of the case

On the 02 nd July 2018, in the parking area of Angsana Hotel, Balaclava, one Yanlikha Bin Ibrahim Soopee, was arrested after three parcels of cocaine, concealed in his car, were found and secured by the Police. The total weight of the drugs is 2947 grams and the street value, Rs 45 million.

Upon being cautioned and questioned, the said Soopee stated the following: “missie ena 3kgs cocaine la-dans. Mo ti pou ale livrer ca.”

2 During the course of enquiry, on the 19 th July 2018, the said Soopee made allegations against the Applicant, to the effect that on the 01 st July 2018, the latter called at his place and remitted a military bag, with the three parcels of cocaine, to him, for safe keeping, on behalf of one Jessen. On the same day, the Police looked for the Applicant and a report on departure was filed against him at the PIO, as there was information obtained that the latter was about to abscond.

On the 20 th July 2018, at 21 30 hours, at SSR International Airport, the Applicant was about to leave Mauritius for France, in haste, when he was arrested by ADSU officers at the Immigration Counter. The booking was made on the same day and the latter only had a hand luggage with him, and no pocket money. He was positively identified by the said Soopee, as the one who had remitted the three drugs parcels to him.

The Applicant has denied the charges leveled against him and averred that, on the material date and time, he had gone hunting, with his mother, at Montagne Blanche. He conceded, however, that he was well acquainted with the said Soopee.

Case for Respondent

3. WPI Nageea, of ADSU HQ, has been deputed by the Commissioner of Police to resist bail in the present case on the following grounds:

(i) Risk of absconding (ii) Risk of reoffending (iii) Interference with witnesses

4. In support of the first ground of objection, WPI Nageea stated that the Applicant is likely to be tried before a higher court and will face a heavy penalty if found guilty. As such, the Police believe that he will abscond, if granted bail, through fear of such penalty. Further, despite being aware that he was looked for by the Police, in relation to the present case, he attempted to leave Mauritius on the 20 th

July 2018.

5. As far as the second ground of objection is concerned, given that drugs is a lucrative business and taking into account the quantity and the value of the drugs

3 involved in the present case, the Police believe that the Applicant will indulge anew in such transactions if granted bail. It was confirmed that the latter has a clean record and is not on bail.

6. In relation to the third ground of objection, there are two witnesses, who are abroad, and who are needed for the purposes of the present enquiry. As such, the Police strongly believe that the Applicant will try to contact them, if bailed out, and thus obstruct the course of justice.

7. It was confirmed that the enquiry is short of a DNA report and investigation in relation to the two witnesses, who are abroad, and that two months are needed to complete the enquiry. The main EO was duly cross examined by Learned Counsel for the Applicant.

Case for the Applicant

8. From the dock, the Applicant stated that he would abide to all conditions imposed if granted bail.

The Law

9. I bear in mind the sacrosanct principle of presumption of innocence and the Constitutional rights of the Applicant to enjoy freedom and liberty.

10. Section 3 of the Bail Act provides that “Notwithstanding any other enactment and subject to section 4, every defendant or detainee shall be entitled to be released on bail.”

11. Section 4 (1) of the Bail Act reads as follows:

A court may refuse to release a defendant or detainee on bail where –

(a) it is satisfied that there is reasonable ground to believe that the defendant or detainee, if released, is likely to –

(i) fail to surrender to custody or to appear before a Court as and when required;

(ii) commit an offence, other than an offence punishable only by a fine;

(iii) interfere with witnesses, tamper with evidence or otherwise obstruct the course of justice, in relation to him or to any other person;

(b) it is satisfied that the defendant or detainee should be kept in custody –

(i) for his own protection;

(ii) in the case of a minor, for his own welfare; or

(iii) for the preservation of public order;

(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

(ii) no fixed place of abode;

(f) a detainee has failed to comply with section 12 (2).

12. Section 4(2) of the Bail Act provides that:

In considering whether or not to refuse bail on any ground mentioned in subsection (1), the Court shall decide the matter by weighing the interests of society against the right of the defendant or detainee to his liberty and the

5 prejudice he is likely to suffer if he is detained in custody, taking into account every consideration which, in its opinion, is relevant, including –

(a) the period for which the defendant or detainee has already been in custody since his arrest;

(b) the nature and gravity of the offence with which the defendant or detainee is or is likely to be charged and the nature and gravity of the penalty which may be imposed on him;

(c) the character, association, means, community ties and antecedents of the defendant or detainee, including any non-compliance with any condition imposed for his release on bail with respect to any other offence; and

(d) the nature of the evidence available with regard to the offence with which the defendant is charged.

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

“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 the 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.”

14. I bear in mind that the right balance has to be struck between the constitutional right of the Applicant to enjoy freedom and the interest of society at large.

15. It was held in Deelchand v The Director of Public Prosecutions and Others (2005) SCJ 215 that “In all countries where human rights are respected, the function of the law of bail is likely to be the same, being to reconcile, as stated in

6 Labonne v The D.P.P (supra, at para 2.2.), “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 reasonably protected against serious risks which might materialise in the event that the detainee is really a criminal which he is suspected to be.”

16. In Islam v The Senior District Magistrate Grand Port District Court [2006] SCJ 282 at para 37, it was held that “Pre-trial bail is not a form of punishment to any individual. It is a form of partial and temporary restriction of his liberty with a view to disabling him against antisocial behavior.” Finding Nature of the evidence

17. It was held in Maloupe v The District Magistrate of Grand Port [2000] SCJ 223] that in an application for bail, the Court should not examine “…the precise evidence available to the police and to conclude as to whether it amounts to a prima facie case… Witnesses in the course of the hearing of an application for bail should only be allowed to depone as to the nature i.e. the kind of evidence available (including external circumstances which have a bearing on its quality…”

18. Without delving into the merits of the case or making a detailed evaluation of the available evidence, this Court bears in mind that the evidence against the Applicant comes from a self confessed accomplice, that is Yanlikha Bin Ibrahim Soopee. It will be for the Trial Court, and not this Court, to assess the credibility of that self confessed accomplice, as expounded in the cases of DPP v P Sathebajee 2019 SCJ 8 and S Dookhit v The District Magistrate of Pamplemousses, District Court, Pamplemousses 2011 SCJ 101.

19. For the purposes of the present bail application, on the issue of the evidence available against the Applicant emanating from the self confessed accomplice, it was held in DPP v Marthe 2013 SCJ 386 a that :

7 “The fact that the evidence against an applicant for bail comes from a self- confessed accomplice does not necessarily mean that it is weak or unreliable. It cannot be overlooked that in drug transactions involving more than one person, some of the best evidence against traffickers can and does come from accomplices. The fact remains that Magistrates and Judges have very often convicted accused parties based on the sole evidence of an accomplice after having given themselves the appropriate warning that accomplice evidence is to be treated with care.”

20. It was further held in Marthe (supra) that:

“Indeed, if an accused has denied the charges pending against him, the Magistrate may take that into consideration. But, the denial of a charge has to be assessed in the light of the strength of the evidence available against the accused by the prosecution. If the evidence of the prosecution is strong, the denial is neither here nor there. If the evidence of the prosecution is so weak as to be almost incapable of sustaining the charge against the accused at the subsequent trial, then the Magistrate may weigh the denial of the accused in the balance before deciding to reject the objection taken by the police.”

21. Based on the above, I find that the nature of the evidence against the Applicant appears to be strong. Analysis of the grounds of objection 22. As far as the first ground of objection is concerned, that is the risk of absconding, I have considered the personal circumstances of the Applicant and the following authorities: (a) In Hurnam v The State [2004] PRV 53, at para 16, the Board held that:- “The European Court has, realistically, recognised that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re- offending (see, for example, Ilijkov v Bulgaria (Application no 33977/96, 26 July 2001, unreported)), para 80, but has consistently insisted that the seriousness of the crime alleged and the severity of the sentence faced are not, without more, compelling grounds for inferring a risk of flight: Neumeister v Austria (No. 1) (1968) 1 EHRR 91, para 10; Yagci and Sargin v Turkey Series A No 319 (1995) 20 EHRR 505, para 52; Muller v France Reports of Judgments and Decisions 1997 – II, 374, para 43; IA v

8 France Reports of Judgments and Decisions 1998 – VII, 2951, paras 105, 107. In Ilijkov v Bulgaria, above, para 81, the Court repeated “that the gravity of the charges cannot by itself serve to justify long periods of detention on remand.”” (b) In Hurnam v The State (Supra), at para 15, the Board held that :

“It is obvious that a person charged with a serious offence, facing a severe penalty if convicted, may well have a powerful incentive to abscond or interfere with witnesses likely to give evidence against him, and this risk will often be particularly great in drugs cases. Where there are reasonable grounds to infer that the grant of bail may lead to such a result, which cannot be effectively eliminated by the imposition of appropriate conditions, they will afford good grounds for refusing bail.”

(c) The Applicant is a family man, has a fixed address and has never jumped bail in the past. However, it cannot be overlooked that the Applicant is likely to be charged with a serious offence and hence, may face a heavy penalty if found guilty. Further, it cannot be ignored that he has tried to leave the island, despite being aware that the Police were looking for him. I, therefore, am satisfied that there is indeed a serious risk of the Applicant absconding if granted bail. The first ground of objection, therefore, succeeds.

23. In relation to the second ground of objection, that is the risk of re-offending, considering the value of drugs involved in the present case, the nature of the evidence against the Applicant, and drug dealing being a lucrative business, I find that there is indeed a high risk that the Applicant might indulge anew in such transactions should he be released on bail. The present ground therefore succeeds after considering the following authorities:

(a) In Deelchand v The Director of Public Prosecutions & Ors [2005] SCJ 215 at para 5.8, it was held that : “In practice the ground of risk of reoffending is only likely to be invoked where the offence feared is quite serious and punishable by a custodial sentence. It goes without saying that the risk of reoffending must be a real one, and that there must be adequate reasons to explain its existence. In Clooth v Belgium [1991] ECHR 71 (12 December 1991), at para 40, the court said that the

9 “danger” of a serious offence being committed by the applicant whilst on bail should be “a plausible one.” Several factors may be relevant in the assessment of the seriousness of the risk and the propriety of detention to avert the danger. The criminal record of the applicant is an important consideration. So too, the nature of the offence or offences which the applicant is suspected to have committed as some offences are more likely to be repeated than others. There may be ground for fearing, for example, that one or more murders or rapes with which the applicant stands charged, are part of serial killing or serial raping by a psychopath. On the hand, a “crime de passion” may be unlikely to be repeated. The sentence expected in case of conviction is also a relevant consideration because of the greater risk that the offender may think he has nothing to lose by offending whilst on bail. The extent to which the offences which the applicant is suspected to have committed are lucrative should also be considered as the temptation, in case the applicant is guilty, that he may wish to make as much money as possible whilst on bail, is likely to be greater.” (b) In Islam (Supra) at para 32, it was held that: “Thus, somebody who is admitted to bail, who has been able to purchase – so to speak – his freedom by some monetary condition, walks out of the court- room, free from any type of effective control over his movements or his activities other than presumably reporting to the nearest police station twice a day. In between, where he goes, under whose influence he falls, with whom he associates himself to pursue what design is left to himself.” (c) In Hossen v District Magistrate of Port Louis [1993] MR 9, it was held that: “Everyone knows that the consumption of certain drugs, like any other vice one may think of, is never likely to disappear completely from the face of the planet and that, at times, it may not be reasonable to insist on the detention of suspects of a certain type. But when, on the contrary, we are faced with a proliferation of drug consumption, or a resurgence of this scourge which can only result in the corruption and degradation of the country’s youth in particular, then the Courts have the duty and the responsibility to protect the public against every person who is involved in any activity that is likely to facilitate or encourage the drug trade”.

24. With regards to the third ground of objection, that is, interference with witnesses, it is the contention of the Police that there are two witnesses, involved in the present case, who are abroad, and as such, the Police believe that the Applicant will interfere with them if released on bail.

• In the case of Deelchand v The Director of Public Prosecutions and Others (2005) SCJ 215, it was held that: “It would be preposterous to hold the view that in each and every application for bail, it would suffice that an enquiring officer should express his fear that the applicant would interfere with one or more witnesses for the accused to be denied bail on that ground. To satisfy the court that there is a serious risk of interference with a witness, satisfactory reasons, and appropriate evidence in connection thereof where appropriate, should be given to establish the probability of interference with that witness by the applicant.” The following extract from “Bail in Criminal Proceedings” (1990), Neil Corre, was also referred to in the same case as follows: “The exception’s most common manifestations are in cases where: (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 The exception does not apply simply because there are further police enquiries or merely because there are suspects who have yet to be apprehended”.

• No concrete evidence as to the steps taken by the Police to lay hands on such witnesses or as to whether they have credible information as to their whereabouts has been ushered in. As such, the third ground of objection is

11 based only on a mere apprehension on the part of the Police, and thus, fails.

25. Having found that the first and second grounds of objection have been substantiated, this Court has an inherent duty to assess whether conditions can be imposed to adequately curb the risks identified, so as to render such risks negligible as expounded in the case of Maloupe (Supra). In Deelchand (Supra), it was held that “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.”

26. In the case of Rangasamy M.N. v The D.P.P & Anor 2005 SCJ 249, the Court stated the following:

“We consider that judicial officers in Mauritius who have first-hand knowledge of the prevailing local conditions regarding law and order and organized crime should have a margin of appreciation in exercising their discretion and deciding on the need for a detainee to be admitted to bail, taking into account all the public interest grounds for refusing bail listed in section 4 of the Act”.

27. The circumstances of the present case are such that no conditions can be imposed to reduce the risks that have been identified. As such, this Court declines to exercise its discretion in favour of the Applicant and finds that his continued detention is warranted. The present application is, therefore, set aside.

On the issue of delay 28. Learned Counsel for the Applicant emphasised, at submission stage, that the Applicant has been on remand since July 2018 and that such prolonged detention clearly infringes his rights under Section 5 (3) of the Constitution, which provides that he should be tried within a reasonable time.

29. The European Court of Human Rights has held, in relation to cases involving pre-trial detention of a person accused of drug trafficking, that “such alleged offences were of a serious nature…it emphasised, nonetheless, that the “existence of a strong suspicion of the involvement of the person concerned in a

12 serious offence, while constituting a relevant factor, cannot alone justify a long period of pre-trial detention.” [Eur. Court HR, case of Van Der Tang v Spain, judgment of 13 July 1995] – referred to by the Learned Judges in the case of Seewoochurn K M v The Commissioner of Police & Ors 2019 SCJ 189.

30. In Hurnam v The State [2004 PRV 53], the Judicial Committee of the Privy Council stated the following: “the general right to be released on bail and the right to be released if not brought to trial within a reasonable time, which are both important rights but distinct and different rights.”

31. What is a long period of pre-detention depends upon individual jurisdictions. However, the Human Rights Commission has held that what constitutes “reasonable time” is a matter of assessment for each particular case. [Re: Communication no. 336/1988, N. Fillastre v Bolivia (view adopted on 5 November 1991), as referred to in the case of Seewoochurn (Supra).”

32. In Seewoochurn (supra), the Learned Judges held that “…a balance must be struck between, on the one hand, the need for the applicant’s continued pre-trial detention and, on the other hand, his constitutional right to personal liberty and to the presumption of innocence. Despite the applicant’s prolonged pre-trial detention, the police have not given any serious and precise indication as to when they will complete the enquiry and intend to lodge the formal charge.”

33. Bearing in mind that the present case is indeed a complex one, involving collaboration with at least one foreign jurisdiction, it cannot be said that the Police is unduly procrastinating with the enquiry. However, this does not justify the Applicant being kept in custody for a prolonged period, whilst the Police go on a fishing expedition in relation to, mainly, those two witnesses, who are allegedly in France.

34. Taking into account the views expounded by the Learned Judges in the above authorities and based on Section 5 (3) of the Constitution, I order that if a formal charge is not lodged against the Applicant by latest the 16 th July 2020, the Applicant shall be admitted to bail on the following conditions:

(a) The Applicant shall furnish a first surety of Rs 2,000,000 by bank cheque;

13 (b) The Applicant shall furnish a second surety of Rs 3,000,000 by bank cheque;

(c) The Applicant shall enter into a recognisance of Rs 10,000,000 (in his own name);

(d) The Applicant shall reside at a fixed address, which he shall provide to the police. He shall not move to another address without the prior consent of the District Magistrate of the court concerned;

(e) The Applicant shall report to the nearest police station to his place of abode everyday, twice a day, that is, once between 06 00 hours and 10 00 hours and once between 15 00 hours and 19 00 hours;

(f) The Applicant shall inform the police of his daily movements when he reports at the police station;

(g) The Applicant shall endeavour not to be in communication with any person, other than the authorities, in connection with the present case either in person or by means of any technology such as phone, email, whatsapp, messenger, facebook, twitter or any other social media platform;

(h) A curfew order is imposed on the Applicant. The Applicant shall stay at his residential address, as provided to the Police, from 21 00 hours to 05 00 hours on a daily basis. In case of an emergency warranting him to go out, he must contact the Police to inform them of his predicament before proceeding outside during the hours of curfew and

(i) The Applicant shall:

(1) be permanently equipped with a mobile phone, the number of which he shall communicate in advance to one or more ADSU officers nominated for that purpose;

(2) ensure that the mobile phone is in good working condition and open for communication at all times and

14 (3) ensure that the mobile number is available solely and exclusively for the present monitoring purposes to enable any ADSU officer at any time to ascertain his movements and location and if necessary to direct him to be in attendance at any indicated spot.

35. The case is fixed Pro-Forma to the 16 th July 2020.

Shavina Jugnauth (Miss) District Magistrate This 13 th March 2020