Supreme Court of Mauritius, 22 juin 2020, 2020 BRC 170 – Police v Sockalingum Veerasawmy

Police v Sockalingum Veerasawmy

2020 BRC 170

IN THE BAIL AND REMAND COURT

Provisional Cause Number 1246/17 (Upper Plaines Wilhems) BRC Cause Number 3148/19

In the matter of:

Police

v/s

Sockalingum Veerasawmy

RULING

The Applicant stands provisionally charged with the offence of SWINDLING in breach of Section 330 of the Criminal Code. The Applicant has moved that he be admitted to bail and he was represented by Me. D. Joyram appearing together with Me. S. Hawoldar at the hearing. The case for the Respondent was conducted by State Counsel and the Court proceedings were held in English language. The Respondent is resisting the motion and is objecting that the Applicant be granted bail on the following grounds:

(1) Risk of re-offending (2) Risk of absconding

THE CASE FOR THE PROSECUTION

PS 6162 Sogun, 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 18 th July 2019 the Declarant gave a declaration to the effect that the Applicant

was remitted the sum of Rs 1,206,000 in different instalments to be invested for a specific purpose and that the Applicant had failed to return her money.

Regarding the first ground of objection, the main enquiry officer went on to explain that the Applicant was borne on record for 30 dishonesty offences and Doc X was filed accordingly. Based on the document, the police officer explained that there was a propensity for the Applicant to indulge anew in similar offences and the Court was further informed that the Applicant was on bail when he was arrested for the present case. Doc A was filed accordingly.

Regarding the second ground of objection, the police officer explained that owing to the fact that a huge sum of money is involved and if found guilty the Applicant might face a heavy penalty, the police fear that he might abscond. The enquiry officer explained also that the Applicant has been convicted for obtaining a passport by false statement and for leaving Mauritius without being a holder of a valid passport. The police officer also went on to state that the main enquiry officer had denied the charge and that he has been positively identified by the Declarant. The Court was also informed that the police enquiry was completed and that on 8 th June 2020 the case file was sent to the Office of the DPP for advice. The officer further confirmed that the Applicant had a fixed place of abode.

In cross examination the main enquiry officer confirmed that the Applicant had a fixed place of abode and that he had fully cooperated with the police and that he was the main bread winner of his family. The officer further stated that he could not say when the formal charge would be lodged against the Applicant. 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 went on to say that he will respect all bail conditions should he be granted bail.

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.”

In the present case I note that according to Doc X, the Applicant has a long list of previous convictions for the offence he has been currently charged with. I have considered the fact that the Applicant has denied the charge against him and in Hurnam v The State, Privy Council Appeal No.53 of 2004, [2004] PVR 53, at para 11, the Board respectfully agreed with the observation made by Balancy J in the case of Maloupe v District Magistrate of Grand Port [2000] MR 264, “The presumption of innocence, guaranteed under the Constitution, should operate in the Applicant’s favour.”

RISK OF RE-OFFENDING

In relation to the present case, the first ground of objection raised by the police that is, the Applicant is likely to re-offend if he is granted bail. I shall refer to the case of CLOOTH V BELGIUM [1991] ECHR 71 (12 DECEMBER 1991 ) where the Court laid down as follows:

“the “danger” of a serious offence being committed by the applicant whilst on bail should be “a plausible one”.

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 present case, the Applicant has denied the charge against him and as confirmed by the main enquiry officer there is only the declaration made by the Declarant as evidence against him. 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. I have noted that the Applicant has previous convictions for swindling and other dishonesty offences as well as the fact that he was on bail when he was arrested for the present offence. However, he has never breached a condition of bail in the past. 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”.

Moreover, regular reporting to the police station will enable the police to properly monitor the Applicant’s whereabouts and will act as a deterrent for the Applicant from absconding or reoffending. I therefore find that the Applicant’s right to liberty outweighs any objection raised by the police in support of his continued detention.

In relation to the second ground of objection I have considered the fact that the Applicant has no history of having absconded in the past and therefore this ground of objection amounts to a mere apprehension and that conditions can be imposed to render the said ground negligible.

In the circumstances and taking into account the principle of presumption of innocence of the Applicant, I set aside the objection raised by the police in this case. I order that the Applicant be released on bail, pursuant to the Bail Act, under the following conditions:

(i) the Applicant should provide a surety in the sum of Rs 50,000 (cash); (ii) the Applicant should enter a recognizance of Rs 500,000 (own name); (iii) the Applicant should report to the police station nearest his place of residence once daily between 6 a.m. and 6 p.m.; (iv) the Applicant should leave his contact details with the police and leave his phone on at all times to be contacted upon by the police if necessary; (v) the Applicant should not re-offend whilst on bail; (vi) A curfew order is imposed. The Applicant is to remain indoors at his place of residence, address given to the police daily between 20 00 hours and 05 00 hours and in case of emergency, he is to inform the police of his predicament before proceeding outside; (vii) The Applicant is to reside at a fixed place of residence, address given and verified by the main enquiry officer or any other designated police officer.

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