Supreme Court of Mauritius, 15 juin 2020, 2020 BRC 165 – Police v Ahmad Ali Zaffar Hossen

Police v Ahmad Ali Zaffar Hossen

2020 BRC 165

IN THE BAIL AND REMAND COURT

Provisional Cause Number 92/2020 (Moka) BRC Cause Number 531/20

In the matter of:

Police

v/s

Ahmad Ali Zaffar Hossen

RULING

The Applicant stands provisionally charged with the offence of DRUG DEALING: POSSESSION OF SYNTHETIC CANNABINOID FOR THE PURP OSE OF SELLING in breach of section 30 (1) (f) (ii) and 47 (5) (a) of the Dangerous Drugs Act coupled with GN 242/13. The Applicant has moved that he be admitted to bail and he was represented by Me. N. Ramdass at the bail hearing. The hearing for the Respondent was conducted by State Counsel, Me. Dawoodharry and the Court 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 grounds of Risk of re-offending and the Risk of absconding.

THE CASE FOR THE PROSECUTION

PS 7828 Aza, 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. The police officer went on to explain that on 29 th January 2020 at 12 00 hours ADSU officers searched the dwelling house of Applicant at Royal Road, Montagne Blanche and in Applicant’s bedroom they secured 8 plastic sachets each containing a certain quantity of leaf matter suspected to be synthetic drugs and the value of the drugs was Rs 160, 000. The police officer went

on to state that the Applicant elected to remain silent in his defence statement and that he was on bail for 3 non-cognate offences when he was arrested for the present offence. Doc A was filed accordingly and the main enquiry officer went on to explain that the Applicant was borne on record for 5 non-cognate offences and Doc X was again filed accordingly. The police officer went on to explain that based on the value of the drug secured and after taking into account the fact that drug dealing is a lucrative business, the police have all the reasons to believe that if granted bail, the Applicant will re-offend. Furthermore, the main enquiry officer went on to explain that given that the value of the drug secured is high and if found guilty the Applicant is likely to face a heavy penalty, the police have all reasons to believe that he will abscond if granted bail. The Court was lastly informed that only the FSL report was missing to complete the police enquiry and once obtained the formal charge would be lodged against the Applicant.

In cross examination the police officer confirmed that the Applicant had a fixed place of abode and lived with his parents and is in employment at a car wash and that he was not holder of a passport. The officer further confirmed that no paraphernalia was found and maintained both grounds of objections. The case was then closed for the Prosecution.

THE CASE FOR THE DEFENCE

The Applicant was explained his Constitutional Rights and from the dock he stated that he would abide by all bail conditions imposed by the Court. No defence witness was called and the case was then closed for the Defence.

State Counsel offered no submissions and simply left matters in the hands of the Court and Counsel for the Applicant filed 2 bail rulings from the Bail and Remand Court, both dated 2017 and invited the Court to grant bail to the Applicant.

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 the first ground of objection raised by the prosecuting authorities, there is no doubt that drug trafficking being a lucrative business and the substantial value of the drugs secured in the present case, there is a serious risk of the Applicant being tempted to commit further offences, the more so that he has weak professional ties as he is employed as a helper at a car wash. I have further borne in mind the test as laid down in the case of CLOOTH V BELGIUM [1991] ECHR 71 (12 DECEMBER 1991), that is whether “the “danger” of a serious offence being committed by the applicant whilst on bail should be “a plausible one”.

On this score, I have assessed an overview of the evidence as per the decision in MALOUPE VS DISTRICT MAGISTRATE OF GRAND PORT [2000 MR 64] and I

have taken into account the records of the Applicant which act as useful pointers in ascertaining the risk of re-offending on the part of the Applicant as referred to in the case of DOOKHIT S. v THE DISTRICT MAGISTRATE OF PAMPLEMOUSSES DISTRICT COURT, PAMPLEMOUSSES [2011 SCJ 101].

I have considered that in the present case that the drugs were secured in the Applicant bedroom, this amounting to strong and direct evidence against him. I note that the Applicant has retained his right to silence and I have considered the notion of the presumption of innocence operating. I have noted that the Applicant is borne on record for non-cognate offences only and therefore it cannot be said that he has an overriding pattern of behaviour which would induce him to commit a similar offence if released. Despite the lucrative nature of the drug business, I find that there is no evidence to support to the first ground of objection raised by the police.

In relation to the second ground of objection, the risk of absconding I find that the Applicant is not borne on record for breaches of conditions of release and has never absconded in the past. I therefore find that this ground of objection cannot stand.

I find therefore that 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 to an acceptable level. 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”.

I have also taken into account the Applicant’s statement from the dock that he is 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 to effectively reduce the risk of the Applicant re-offending to a negligible level.

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 pursuant to the Bail Act 1999 on the following conditions:

(1) The Applicant is to furnish a surety of Rs 300, 000 by bank cheque;

(2) The Applicant to enter into a recognizance in the sum of Rs 700,000 in his own name; (3) The Applicant is to reside at a fixed place of abode as indicated by him to the police; (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) A curfew order is imposed on Applicant. He is to remain indoors at his residential address as provided to the police between 20 00 hours and 05 00 hours on a daily basis. In case of emergency, the police are to be contacted to inform them of his predicament before proceeding outside during the hours of curfew; (7) The Applicant is to be permanently equipped with a mobile phone, the number of which he shall communicate in advance to the ADSU officers nominated for that purpose; (8) The Applicant is to ensure that the mobile phone is in good working condition and open for communication at all times to enable ADSU officers at any time to ascertain his movements and location for the present monitoring purposes.

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 15 th June 2020