Tak Sang Hao v The State [2001] FJHC 15; HAM0003d.2001s (26 April 2001)

Fiji Islands - Tak Sang Hao v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

MISCELLANEOUS ACTION NO: HAM 0003 OF 2001S

BETWEEN:

TAK SANG HAO

Applicant

AND:

THE STATE

Respondent

Counsel: Mr M. Raza for Applicant

Mr nidau for Respondentspan>

Hearing: 25th April 2001

Ruling: 26th April 2001

RULING ON BAIL

This is an application for bail pending trial. The Applicant Tak Sang Hao makes this application, by motion and affidavit, under section 108 of the Criminal Procedure Code. Committal to the High Court for the Applicant, and two other accused was made on 15th March 2001, on the following charges:

FIRST COUNT

Statement of Offence

IMPORTATION OF CERTAIN DANGEROUS SUBSTANCES: Cry to sections 16, 41(a) ana) and 41(2) of the Dangerous Drugs Cap 114.

ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> Particulars of Offence

WONG KAM HONG, TAK SANG HAO also known as BILL HAO and SHI JIE also known as SHI KIT between 19y of November 1999 and 28th 28th day of October 2000 at Suva in the Central Division, imported into Fiji dangerous substances namely Diacetylmorphine otherwise known as heroin weighing approximately nett 357.1875 kilograms without lawful authority.

SECOND COUNT

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Statement of Offence

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FOUND IN POSSESSION OF DANGEROUS DRUGS: Contrary to sections 22 and 41(2) of the Dangerous Dous Drugs Cap 114.

Particulars of Offence

WONG KAM HONG and TAK SANG HAO also known as BILL HAO between 13th day of April 2000 and day of October 2000 at Suva Suva in the Central Division, were found in possession of a quantity of certain dangerous drugs namely Diacetylmorphine otherwise known as heroin weighing approximately nett 357.1875 kilograms, without lawful authority.

THIRD COUNT

Statement of Offence

ATTEMPT TO EXPORT CERTAIN DANGEROUS SUBSTANCE: Contrary to sections 16, 41(1)(a) and 41(2) of ) of the Dangerous Drug Act 114 and section 381 of the Penal Code Cap 17.

Particulars of Offence

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WONG KAM HONG and TAK SANG HONG alown as BILL HAO on the 28th day of October 2000 at Suva in the Central Division attempted tted to export to Australia, a quantity of dangerous substance, namely Diacetylmorphine otherwise known as heroin weighing approximately nett 35 kilograms, without lawful authority.

The High Court is yet to receive an Information by the Director blic Prosecutions in respect of the charges. No trial date has been allocated.

The Applicant has made several bail applications in this case. He was first arrested by the police on 28th October 2000 and harged on 4th November 2000 2000, on two counts. On the same day a bail application was made before the learned Magistrate. It was refused as were subsequent applications made in the Magistrates Court every fortnight. An application for bail was made in the High Court before my brother Surman J, and it was refused on 6th December 2000. At page 4 of his ruling, his Lordship said:

“In reaching a decision in this matter, I have considered ully the submissions made by both counsel. In particular I ar I have reminded myself that the Applicant is innocent until proved guilty, and that he has no previous convictions. I have also been assisted by the factors conveniently summarised by Fatiaki J in Singh’s case.

I also have to assess whethe Applicant will attend his trial, and the prospect of interference with or by other witnesstnesses involved.

Without doubt the charges as listed are ser A significant amount of drugs is involved. The matter of the security of the Applicant is t is relevant and important. In all the circumstances I have decided to refuse the application for bail in this case.”

The grounds for this present application are set out in the affidavit of Yogesh Narayan, sworn on 12th February 2001. Thosunds are that the Applicanticant is a Fiji citizen, and has a fixed address at 52 Panapasa Place, that he is the Managing Director of Ming Palace Restaurant and employs twenty five people, that he has denied the offences charged, that he is willing to accept any conditions to bail, and that in refusing bail, the learned Chief Magistrate had failed to exercise his discretion judiciously.

In response the prosecution filed the affidavit of Bruce Giles, Federal Agf the Australian Federal Police. His is a lengthy affidavitdavit. In summary, he says that there is sufficient evidence against the Applicant on the basis of his admissions to the police. He says that there is a risk that the Applicant may leave the country because he has associations with persons (including the 1st Accused) who were found in possession of false travel documents. He says that there is a possibility that the Applicant may be charged with further offences as investigations are still continuing. He says that the Applicant has travelled extensively abroad, and has valid visas for the United States of America, Canada, China and New Zealand.

The affidavit includes an annexed list of the Applicant’s ad business interests abroad (some of which are disputed by counsel for the Applicant). At p At paragraph 49 Bruce Giles says:

“That the offences are of such a serious nature and the eve against the applicant persons is strong; that there are rare reasonable grounds to believe that the Applicant will not appear in court to answer the charges if bail is granted.”

Counsel for the Applicant objected to the affidavit of Bruce Giles on the ground that it had not been properly sworn before a Notary Public. In civil proceedings Order 41 Rule 12 requires an affidavit sworn in a Commonwealth country to have on it the seal or signature of a court, judge, notary public or a person having authority to administer oaths in a part of the Commonwealth outside Fiji. I am not told why a justice of the peace in the Queensland Attorney-General’s Chambers does not fall into this last category. In any event, the High Court Rules do not apply to criminal proceedings brought by the State (Order 1 Rule 2(1) ) and I have therefore considered the contents of the affidavit.

At the hearing of this application Mr M. Raza he Applicant, submitted that the evidence against the Applicant is based solely on his asso association with the 1st accused. He further said that whilst there had been frequent refusals of bail in the Magistrates Court, he had never been given reasons, despite several requests for the rulings. He said that the Applicant was entitled to bail as of right, and that a period of five month’s pre-trial custody was excessive. He said that the safety and security of the Applicant was irrelevant on an application for bail.

Mr Tunidau for the State said that the offences were serious, that the nce showed a trans-national link which was novel for Fiji, and that bail should be refused used in the public interest.

The principles relevant to bail are now well-settled. Section 34, the freedom of movemenvision of the Constitution provides that:

“Every citizen and every other person lawfully in the Fiji Islands, has the right to move freely throughout the Fiji Islands and the right to leave the Fiji Islands.”

Section 34(6) provides:

“A law, or anything done under the authority of a law, is not inconsistent wit rights granted by this secs section to the extent that the law:

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(ii) &nnbsp; &nnbsp; &nbp; &nsp;&nsp; nsequof e of his oris or her conviction for an offence; or

(iii) &nnsp;&&nsp;;&nspp;&nssp;&nsp; for urpope of e of protecting another person from apprehended violence.”

The other exemptions to the right to freedom of movement, are detention for illentry to Fiji, extradition, the unlawful abduction of childrhildren, the transfer of prisoners to prisons in their own country, and the regulation of persons who unlawfully trespass on land.

Section 34(6) therefore prescribes the only exceptions to the freedom guaranteed by section 34. The factors prescribed which are relevant to bail are firstly, to ensure the appearance of accused persons in court, and secondly to protect another person from apprehended violence. Section 34 does not sanction the detention of persons “for their own safety.”

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The principles governing bail application have developed around the fundamental question of whether the accused appear in court.

In England bail is governed by the 1976 Bail Act, which pes that bail may be refused where there are substantial grounds for believing that the defe defendant if released on bail, would fail to surrender to custody, commit an offence while on bail, interfere with witnesses, and where the court is satisfied that the defendant should be kept in custody for his own protection and welfare (schedule 1 Part 1(2) ). However, case law on the interpretation of the Human Rights Act 1998, and the European Convention on Human Rights shows a shift towards a more narrow approach to the refusal of bail. Article 5(3) of the Convention states that a person charged with an offence must be released pending trial unless the state can show that there are relevant and sufficient reasons to justify his continued detention. Further, bail may be refused for only four reasons.

Firstly that there a risk that the accusel fail to appear at trial. Relevant factors are the character of the accused, his home, occ, occupation, his assets within the country, his family ties and any other ties within the country (Newmeister -v- Austria [1968] ECHR 1; 1 E.H.R.R. 91. The seriousness of the offence is relevant but not the predominant factor.

The second legitimate reason for refusing bail is possible interference with the course of justice.

The third factor is that the accused may commit further offences on bail.

The fourth relevant factor is that the nature of the crime alleged and the likely public reaction are such that the release of the ad may give rise to public dlic disorder. In Letellier -v- France [1991] ECHR 35; 14 E.H.R.R. 83, the court said that this factor was only relevant to offences which were particularly serious.

The Fiji courts have developed principles of bail along similar lines. In the authorities cited to me by counsel, the factors relevant to a bail application, were summarised as follows (Fatiaki J in Adesh Singh & Ors Miscellaneous Act No. 11 and 12 of 1988):

1. ;&nbssp;&bbsp; &nbssp; &nbp; &nbp;&nbs; ; Tesumptsumption ofon of innocence;

lang=EN-GB>2. ; &nnsp;&&nsp;;&nbp; &nbp; &nnbp;& Whether the accusedcused to appear to stand trial;

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: 1"> 5. 6.GB>6. &nnsp;&&nsp;;&nspp;&nssp;&nsp; &nbsppan>sny interference wnce with prosecution witnesses; lang=EN-GB>7. & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;&&nsp; Tpan>The accused’sacharacter;

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&nnsp;&&nsp;;&nspp;&nssp;&nsp; The Stateposipion tion to bail.

1"> These principles echs echo theo the sentiments of the European Convention on Human Rights, and of sectio6)(a) of the Constitution. The fundamental principle has alas always been, and continues to be, that bail will be granted unless the court believes that the accused may not appear for trial. The factors listed above, help to assist the court in arriving at a conclusion in respect of this fundamental principle of bail.

In respect of remanding persons for their own protection, I doubt that section 34(6) permits such a justification for remand on its own. I note that such justification was included by statute in England (the Bail Act), and is not one of the developed factors relevant for bail, under the European Convention on Human Rights. As Fatiaki J said in Pita Vuli -v- The State Miscellaneous Act No. 8 of 1990, at page 2, 3:

“As to the safety of the cant himself, it is the court’s view that this alone is an insufficient ground for deprivinriving a person of his liberty.

If I might say so, the protec safety and security of persons in this country rests primarily with the police and not witt with prison wardens. Furthermore it is not suggested that the police would not be able to carry out its normal responsibilities in regard to the applicant or that he has received life-endangering threats.”

I therefore disregard the prosecution’s suggestion that the Applicant’s life is at risk if he is released, particularly because no evidence has been presented to me that the Applicant has been threatened by any person or persons, or that his release will result in public disorder.

I do however consider the evidence of the Applicant’s business ints in Fiji (limited to his position of Managing Director at the Ming Palace) as compared witd with his business interests abroad. Although the extent of those interests are uncertain, the Applicant does not deny the existence of significant interests in New Zealand, Australia and the United States of America.

I also consider his family ties in this country, his association with persons who have been allegedly found in possession of false travel documents, and the seriousness of the offence. I also accept the evidence of Bruce Giles that this prosecution is part of an on-going investigation into the importation, sale, and exportation of large amounts of heroin in the region.

Finally I note previous refusals of bail in the Magistrates Court and the High Court. I note with concern that Counsellains he was not given reas reasons for the refusals in the Magistrates Court. Reasons for such refusals (or grant) of bail should always be made available to counsel. The rules of natural justice apply in criminal proceedings particularly in matters concerning the liberty of the individual. Furthermore orders for bail may now be the subject of appeal, and pursuant to section 311(8) of the Criminal Procedure Code, a person entitled to appeal or his barrister or solicitor shall be entitled to peruse the record of the proceedings. As Gates J said in Ananaia Nawaqa & Ors. -v- The State Miscellaneous Action No. HBM0014/2000L:

ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “Magistrates at such centreuld ensure these rights are catered for swiftly, and that no bureaucratic impediment or delr delay is placed in the path of those wishing to appeal or to consider an appeal. For in addition to the specific rights accorded to potential appellants by the Criminal Procedure Code there is a need also, a need increasingly recognised by jurists, for openness and transparency to be observed and infused into our justice system.”

In all the circumstances, the prosecution has satisfied me that there is a substantial risk that if released, the Applicant may not appear at the trial of these charges.

For these reasons, this application for bail is refused.

Nazhat Shameem

JUDGE

At Suva

26th April 200an>

Ham0003d.01s