Scott v State [2011] FJHC 634; HAM157.2011 (12 October 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO. HAM 157 OF 2011

BETWEEN:

SHALEND KRISHNA SCOTT
Applicant

AND:

STATE
Respondent

Ms. N. Khan for the Applicant
Mr T. Qalanauci for the State

Date of Hearing & Ruling : 12th October, 2011.

RULING

[1] By way of Notice of Motion and Accompanying Affidavit, the applicant applies for bail pending trial and a review of the Magistrate's decision at Nadi, to remand him in custody.

[2] The applicant has been charged with four counts of serious computer offences contrary to Section 340 of the Crimes Decree 2009. The details of the charges are highly relevant and I will discuss that later.

[3] It is unclear from an extract of the court record that I have been provided with whether these charges were proferred in the court below, the extract dealing solely with the question of bail which the Magistrate refused on the grounds of "Flight risk and incomplete investigation".

[4] The summary of facts of the case prepared by the Police, and obviously accepted by Counsel for the applicant, are that consequent to the publishing of confidential documents belonging to Air Pacific Fiji Ltd, the company instigated their own internal investigations. Those investigations revealed that the applicant had accessed the email accounts of senior executives within the company through different internet protocol addresses; that access being made from Fiji, Australia and Hong Kong. The applicant is a second officer on the B767 aircraft which flies to Australia and Hong Kong. The investigation uncovered four particular instances which are the subject of the four charges. I have been provided with details of the particular information garnered by this "hacking", but it is not necessary to disclose that for the purposes of this application. In addition he is said to have downloaded about 1800 other Air Pacific documents. The company made complaint to the Police who arrested the applicant at premises in Lami where they found data storage devices.

[5] The applicant, in an interview under caution admitted gaining access to the corporate e-mail accounts without authorisation but out of curiosity using the company default passwords he had been provided with. He had sent these documents to a gentleman who is a Union Consultant for the Fiji Airline Pilots Association. The applicant is the Secretary of the Association. The consultant and the applicant discussed the documents, with the consultant deciding to upload them on to an anti-government blog site.

[6] The State tells me that the investigations for this case are now complete, although another similar investigation is to be launched following on from multiple access to Air Pacific documents from Hong Kong in September 2011. They submit:

(i) that the applicant is a flight risk and
(ii) if he is admitted to bail he would be able to hamper police investigations by having access to computers.

[7] When pressed on their view of his being a flight risk, Counsel for the State submit that he is a pilot and is therefore able to fly himself out of the country.

[8] Ms. Khan for the applicant submits that applicant is willing to surrender both his Fiji and Australian passports and thereafter would have no access to the airport through its immigration control. The applicant was born in Fiji and has maternal relatives here and is in a stable relationship with a lady in Lami. He has his job as a pilot, but he is on suspension from that. She submits that despite admissions in a caution interview the evidence is not strong, the charge is inappropriate and her client was given the protocols to access the sites he did.

Analysis

[9] I have full regard to the presumption in favour of bail (unless rebutted by the State) as a first step in this analysis.

[10] One of the factors relied on by the State in the Magistrate's Court was "ongoing investigations" but I am now told by State Counsel that the investigations are complete, so this ground of objection must fall away. The fact that there is a possibility of further investigations into other offences is totally irrelevant. This matter is presumably now ready to proceed to trial.

[11] Although perhaps the applicant can be regarded as a "flight risk" in so much as he is facing novel changes with highly political undercurrents, this is a matter that can be cured by strict conditions. It is not enough for the State to say he is a flight risk because he is a pilot.

[12] While it is not for me in this application to make findings of fact or to analyse the charges he faces, it is highly relevant and persuasive to the application that the charges laid against him are misconceived. The charges as presently laid and if proved could lead to sentences of life imprisonment, but facing the correct charge, he faces a maximum of two years imprisonment only. Such results of course give weight in deciding his status of flight risk.

[13] The applicant is presently charged with four offences under Section 340 of the Crimes Decree which is described in the Decree as "serious computer offences". There are three limbs to that offence:

(i) that there was unauthorised access
(ii) he knew it was unauthorised and
(iii) he intended thereby to commit a serious offence.

State counsel is unable to tell me what the serious offence intended by the applicant was. Nor is there any evidence before me or any indication of the intention to commit a serious offence.

[14] The far more appropriate charge in the circumstances is the summary offence of knowingly making unauthorised access to data, contrary to Section 343 of the Decree. The conviction on this charge leads to a maximum penalty of 2 years imprisonment.

[15] Obviously the State can lay the charges that they wish to, but there is a huge difference between a potential life imprisonment and a maximum of two years imprisonment. Such expectations would obviously affect the applicant's motivation to flee.

[16] Given the State's inability to justify to me the charges that have been laid, I am therefore constrained to offer the benefit of the uncertainty to the applicant.

[17] I am not satisfied that the State in its confusion has displaced the presumption in favour of bail and the application therefore is granted.

[18] The applicant can be admitted to bail on the following strict terms:

(i) cash bail in the sum of $1,000,

(ii) two sureties at $1,000 in their own recognizance,

(iii) The applicant's Australian and Fiji passports to be surrendered to the Registry of this Court as well as his flying licence,

(iv) Not to go to Nadi airport, unless as part of Police Investigations,

(v) To live at a fixed address in Kennedy, Nadi and not to move from that address without leave of this court (Judge or Registrar),

(vi) To report to Namaka Police Station three times a week on Monday, Wednesday and Friday between 6.00am to 6.00pm,

(vii) Not to leave Viti Levu,

(viii) To report to Court everytime his case is called,

(ix) Not to interfere with potential prosecution witnesses.

[19] A contemporaneous immigration stop order is issued.

Paul K. Madigan
JUDGE

At Lautoka
12th October 2011