Supreme Court of Mauritius, 5 mars 2020, 2020 BRC 21 – Police v Mazim Golam Hosen

Police v Mazim Golam Hosen

2020 BRC 21

IN THE BAIL AND REMAND COURT

Provisional Cause Number 104/2020 (Curepipe) BRC Cause Number 353/20

In the matter of:

Police

v/s

Mazim Golam Hosen

RULING

The Applicant stands provisionally charged with the offence of DRUG DEALING- POSSESSION OF SYNTHETIC CANNABINOIDS FOR THE PURPOSE OF DISTRIBUTION in breach of Section 30 (1) (f) (ii) & 47 (5) (a) of the Dangerous Drug Act coupled with GN 93/2019. He has moved that he be admitted to bail and he stood inops consilii at the bail hearing. The case for the prosecution was conducted by Police Prosecutor 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 sole ground of Risk of re-offending.

THE CASE FOR THE PROSECUTION

PS Dilloo, 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 ground. He went on to explain that on 16 th

January 2020 following a search exercise carried out at the place of Applicant, the police seized 15 aluminium foils containing suspected synthetic drugs and the value of the drug was Rs 1500. The court was informed that Applicant had confessed to the charge and Doc X was filed showing that Applicant had 2 cognates for

possession of drugs. PS Dilloo further stated that only the FSL report was missing to complete the enquiry. In cross examination the main enquiry officer confirmed that Applicant had cooperated with the police and the case was 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 and that he had family ties and needed to support his children. The case was then closed for the Defence.

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

Regarding this ground 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. The more so when one considers the value of the drugs recovered. 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 confessed to the charge and only the FSL report was yet to be obtained. It is also not in dispute that Applicant has a fixed place of abode and family ties. 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 have carried out a balancing exercise and for all the above mentioned reasons, I find that this is a proper case for the present Court to exercise its discretion to grant bail to the Applicant on the following conditions:

(1) the Applicant should provide one surety of Rs 30,000 in cash (2) the Applicant should enter a recognizance of Rs 80,000 (in his own name) (3) the Applicant should report to the nearest police station daily between 06 00 hours and 18 00 hours (4) the Applicant should not re-offend whilst on bail

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 5 th March 2020