Supreme Court of Mauritius, 17 avril 2020, 2020 BRC 93 – MS Moosun v Police

1 MS Moosun v Police

2020 BRC 93

Provisional Cause Number 11600/19 (Port-Louis (Third Division)) BRC Cause Number 21/20 THE BAIL AND REMAND COURT (MAURITIUS) In the matter of:- Mohammud Sakir Moosun v/s Police RULING

Introduction

1. The Applicant stands charged with the offence of drug dealing with aggravating circumstances: attempt to cause to be imported synthetic cannabinoids with an averment of trafficking in breach of sections 2 and 45 of the Interpretation and General Clauses Act coupled with sections 30(1)(b)(i), 41(3)(4) and 47(2)(5)(a) of the Dangerous Drugs Act. He has been on remand since the 12 th December 2019 and his Counsel, Me Hurhanghee, has moved that he be admitted to bail. Me Neeraye appeared for the Respondent, assisted by PS Appadoo.

2. Facts and circumstances of the case

On the 05 th September 2019, a Fed Ex consignment reached Mauritius, from France, by a flight, and which consignment was sent by Shan Jin Shan Zole Shenzhen YH Tech Co Ltd, China. It was consigned to one Nassim Nasser Kareeman, of Bambous Road, Lower Vale. The consignment was declared to contain Mica powder and on the same day, it was transferred to PATS Warehouse, Plaine Magnien, where a verification exercise was carried out, by

2 Customs Officers, in presence of one ADSU officer and one representative from Fed Ex.

One of the Customs Officers suspected the parcel to contain dangerous drugs, and the parcel was scanned and brought to CANS office, found at the same warehouse. The said parcel was opened and found to contain a carton box, with a transparent re-sealable plastic sachet, labeled “230 g”, which in turn, was found to contain a certain quantity of granulated substance, suspected to be synthetic drugs. The weight of the suspected drugs is 234.68 grams and the value, Rs 3,520, 200.

The parcel was substituted with a dummy one, in its original pack, and was sent to Fed Ex Pailles, for a controlled delivery exercise to be carried out. On the 01 st

October 2019, during the controlled delivery exercise at Fed Ex, Nassim Kareeman, Joshua Dharmesh Adjodah and Juliano Gerard Stephano Nina came forward to take delivery of the parcel. They were all arrested.

During the enquiry, they all made allegations against the Applicant, who is the owner of a hardware store, found at Royal Road, Lower Vale, as the very person who had caused the parcel to be imported and who has provided them with money, for the payment of the parcel, via Western Union. They also stated that it was the Applicant who had dropped them at the entrance of Fed Ex, Pailles, to take delivery of the parcel. Joshua Dharmesh Adjodah further stated that the Applicant had, on three occasions, caused him to import such parcels, from the same sender in China, by providing him with his contact number. One of the parcels was delivered at Winners Pereybere, the second one in Reunion Island and the third one is in relation to the present case.

All three co-Accused have positively identified the Applicant, and the latter has elected to remain silent.

Case for Respondent

3. Inspector Sadasing, of ADSU Plaine Verte, has been deputed by the Commissioner of Police to resist bail in the present case on the following grounds:

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

4. In support of the first ground of objection, Inspector Sadasing stated that the Applicant is likely to be charged with a serious offence at the Assizes, for which he will face a heavy penalty if found guilty. As such, the Police believe that the Applicant will abscond if granted bail, through fear of such penalty.

5. As far as the second ground of objection is concerned, given that drugs is a lucrative business and taking into consideration that the Applicant is borne on record for non-cognate offences (Doc X) and is on bail for a drug related offence (Doc A), the Police believe that the latter will indulge anew in such transactions should he be granted bail.

6. In relation to the third ground of objection, it came out that Joshua Adjodah stated that he had imported similar products via Fed Ex, from the same importer, and that the Applicant has given him his contact number. As such, the case involves international ramification, for which the Police have solicited the help of Interpol, to trace out that Company in China. The Police, therefore, believe that the Applicant will interfere with the sender in China, should he be released on bail.

7. It was confirmed that the enquiry is a complex one and is still at an early stage. The statements of all Accused parties have not yet been fully recorded and the FSL report has not been obtained, although the exhibit has already been examined. Mobile phones secured have already been examined by the IT Unit and the IT report is being awaited for. A request for an application for Judge’s Order, in relation to the itemised bills for all the phones secured, has been made at the ODPP, as well as information from Western Union and Interpol. It came out that receipt of the reports is being delayed due to the outbreak of the COVID 19. 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 and that his family needs him.

4 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 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

6 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 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

7 223] 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 three self confessed accomplices. It will be for the Trial Court, and not this Court, to assess the credibility of those self confessed accomplices, 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 self confessed accomplices, it was held in DPP v Marthe 2013 SCJ 386 a that :

“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 is 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 fact that he has no history of absconding. I have also considered 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 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) This Court has to also take into account other factors in deciding whether there is a serious risk of absconding. In Deelchand v DPP& Ors [2005 SCJ

9 215], it was held that “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 of 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.”

(d) In DPP v Marthe 2013 SCJ 386 a, it was held that “..we have to bear in mind that Mauritius is a small island having other islands as neighbours. This is something which is very specific to our country. It is very difficult, if not impossible, for the authorities to keep the whole of the shores of Mauritius under constant surveillance. This Court can take judicial notice of the fact that, in the recent past, there have been cases where accused parties awaiting trial and persons convicted of drugs offences gave simply left the country by hiring a powerful boat following which there has been a great public outcry in the country. There is therefore an increased responsibility on the Courts, whilst bearing in mind the general principle that liberty is the rule and detention the exception, to see to it that justice is not baffled.”

(e) The personal circumstances of the Applicant are such that he has a fixed address, is married, has three children and has strong community ties. It also came out that he is the owner of a hardware shop. However, we have to bear in mind that the enquiry is still at an early stage and as the enquiry progresses and takes a more concrete shape against him, his mindset may change when faced with the likelihood of real consequences (Re: Marthe (supra)).

(f) Bearing the above in mind, it further cannot be overlooked that the Applicant is likely to be charged with a serious offence and hence, face a heavy penalty if found guilty. 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

10 transactions should he be released on bail. Doc A shows that he has the propensity to commit drug related offences. 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 : “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. As far as the third ground of objection is concerned, that is interference with witnesses, it is the contention of the Police that the present case involves international ramification and is a complex one. The Police are still awaiting for reports from Interpol and Western Union, and an application will be made for a

11 Judge’s Order, in relation to itemised bills for all the phones secured. The Police believe that the Applicant will interfere with the sender in China, if bailed out.

25. 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”.

26. I bear in mind that the present provisional charge was lodged on the 12 th

December 2019, and the enquiry, is per se, still at a crucial and early stage. There is international ramification in the present case and the Police have sought for help from Interpol and Western Union.

27. More suspects may be discovered when the itemised bills are received and examined, and this is a factor, which cannot be discarded. Given that the enquiry is still at an early stage and the nature of the evidence against the Applicant is strong, the Applicant may be tempted to interfere with witnesses or to alert other

12 potential suspects involved in the present case, such as the sender from China. When considering the issue of bail, the Magistrate is called upon to consider reasonable possibilities (Re: Marthe (supra)). The third ground of objection, therefore, succeeds.

28. Having found that the three 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.”

29. 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”.

30. 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.

31. On a last note, the Respondent is reminded of the following authorities:

(a) Islam v Senior District Magistrate, Grand Port District Court [2006] SCJ 282, where the Supreme Court held that a detainee who has not been admitted to bail has “the right, in case of a continuing refusal, to a trial within a reasonable time with the special feature that it is a case of a remand prisoner.”

13 (b) Hurnam v The State [2004 PRV 53], where 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.”

32. As such, this Court urges the Police to complete the enquiry within the shortest delay so as to minimise prejudice to the Applicant. The case is fixed Pro-forma to the 06 th July 2020 for follow-up.

Miss Shavina Jugnauth District Magistrate This 17 th April 2020