Supreme Court of Mauritius, 22 juin 2020, 2020 BRC 169 – Police v Louis Paul Nicola AH-HOCK

Police v Louis Paul Nicola AH-HOCK

2020 BRC 169

IN THE BAIL AND REMAND COURT

Provisional Cause Number 693/2020 (Rose Hill)

In the matter of:

Police

v/s

Louis Paul Nicola AH-HOCK

RULING

The Applicant stands provisionally charged with the offence of DRUG DEALING: POSSESSION OF HEROIN FOR THE PURPOSE OF DELIVERING in breach of Section 30 (1) (f) (ii) and 47 (5) (a) of the Dangerous Drugs Act. He has moved that he be admitted to bail and he was represented by Counsel at the bail hearing. The case for the prosecution was conducted by State Counsel and the proceedings were held in English language. The Respondent is resisting the motion and is objecting that the Applicant be granted bail on the grounds of Risk of re-offending and Risk of absconding.

THE CASE FOR THE PROSECUTION

PS Jules, 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 on 13 th

March 2020 following a search exercise at Applicant’s place, the police secured 16 folded aluminium foils and 2 pieces of transparent plastic sachet suspected to contain heroin. The police officer went on to state that the value of the drug was Rs 75 200 and that there was direct evidence against the Applicant. The main enquiry officer stated that the Applicant had denied the charge of “dealing” but had confessed to that of “possession”.

Regarding the first ground of objection, the enquiry officer explained that the Applicant was borne on record for cognate offences and also as drug dealing was a lucrative business, if released, the police strongly believe that the Applicant will re- offend. Doc X was filed.

Regarding the second ground of objection, the main enquiry officer explained that if found guilty the Applicant risks a heavy penalty and the police fear that he might abscond.

The police officer further explained that the Applicant was not on bail and that he had a fixed place of abode and that only the FSL report was missing to complete the enquiry.

In cross examination PS Jules stated that he did not know when the FSL report would be obtained and he confirmed that the Applicant had never jumped bail or absconded in the past. The case was then 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 will abide by all bail conditions imposed by the court if he was granted bail. The case was then closed for the Defence.

Both Defence Counsel and State Counsel did not make any submissions and they both 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 AND RISK OF ABSCONDING

Regarding both grounds of objection raised by the prosecuting authorities, 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 taking into account the value of drug secured. I note that the Applicant is borne on record for 2 drug offences dated in the year 2007 and 2009 respectively. I am therefore satisfied that the dangers of re- offending and absconding are “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 of “drug dealing” and only the FSL report was yet to be obtained. I have also taken into account the Applicant’s statement in Court from the dock where he stated that he was prepared to abide by any conditions that the Court may impose. I am of the opinion that there are conditions, even severe ones, which could be imposed at this stage to effectively reduce the risk of the Applicant re-offending and absconding to a negligible level, the more so that there is no indication as to when the formal charge could be lodged against the Applicant.

After carrying out the required balancing exercise, I hold that the need for Applicant to be in continued detention in the circumstances does not outweigh his right to remain at large. The Applicant is to be granted bail under the Bail Act on the following conditions:

(1) The Applicant is to provide a surety in the sum of Rs 200 000 (bank cheque); (2) The Applicant is to provide a second surety in the sum of Rs 100 000 (open); (3) The Applicant is to enter a recognizance of Rs 500 000 (own name); (4) The Applicant is to report to the nearest police station once daily between 06 00 hours and 18 00 hours; (5) The Applicant should not commit any offence and reoffend whilst on bail; (6) The Applicant is to reside at a fixed place of residence, address to be provided to the enquiry officers; (7) The Applicant is to have on him a mobile phone in good working conditions at all times, number to be communicated to the enquiry officers so that he may be contacted at reasonable times for the purposes of the police enquiry (8) A curfew order is imposed on the Applicant. He is to reside indoors at his residence at the given address to the enquiry officers daily between 20 00

hours and 05 00 hours. In case of emergency, he is to inform the police before proceeding outside.

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 22 nd June 2020