State v Ho [2014] FJHC 920; HAR001.2014 (12 December 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
REVISIONAL JURISDICTION

High Court Review Case HAR 001 of 2014

BETWEEN:

STATE [F.I.C.A.C]
Complainant

AND:

JUSTIN STEVEN MASIH HO
Respondent

Counsel: Ms F. Puleiwai (F.I.C.A.C.]
Mr. A. Ravindra Singh for the Respondent

Date of hearing: 25 November 2014
Date of Ruling: 12 December 2014

RULING

1. On the 24th October 2014 in the Magistrate's Court in Nadi, this respondent appeared as an accused person charged with one offence of bribery of a government official and one offence of using false documents.
   

Without plea being taken, the learned Magistrate admitted the accused to bail on strict conditions (including a curfew to be observed between 6pm and 6am daily) and he acceded to the defence application that the accused's name be suppressed until further order.

2. Pursuant to s.260(1) of the Criminal Procedure Decree 2009, this Court has now called for the record of the proceedings below in order to consider whether the name suppression order was properly authorized and whether the curfew order made on the respondent was appropriate in the circumstances.

3. At a hearing on the 25th November 2014, counsel for the complainant (F.I.C.A.C.) provided written submissions on the propriety of name suppression but chose not to address the Court on the curfew, submitting that the curfew order was made on the specific application of the defence in a concerted attempt to obtain bail for their client. Mr. Ravindra Singh for the respondent chose not to file submissions nor to provide any cases which would have given the learned Magistrate authority to make a name suppression order. Confirming that it was the defence's suggestion below that a curfew be imposed, he was not in a position to submit one way or the other as to whether that curfew should remain.

4. In the lower Court Mr. I. Khan for the accused had submitted that the respondent being the leading squash player in Fiji and also a young man, he was a role model to other players and his name as a sports ambassador for Fiji should be protected by having his name suppressed. .

5. The Magistrate then made the order requested saying "appears to Court accused being a national squash player and a coach and that he's being a sports ambassador for squash in Fiji and as such if not granted his future will be ruined because of his name being out to be published in papers. Further as a young person if that happened, you've submitted to Court that one of his career (sic) will be ruined as well."

He then went on to make a temporary name suppression order without reference to case law until the next mention of this case in January 2015 when he would receive legal submissions and make a definitive legal ruling.

6. It is quite settled in this jurisdiction that apart from the Constitutional right to equality before the law, no man however great or revered has the right to have his name suppressed on the grounds that publication of his name may cause him embarrassment or prejudice. (masculine references not gender specific)

7. Gates C.J. encapsulated this sentiment in his dicta from David Batiratu HAR 001.2012 (Suva) when he said:

"Celebrity status may involve many facets. The person in question might be rich, famous, notorious, highly popular, a foreign dignity, prominent in politics, an aristocrat or member of a royal household, or a star of film, television or the sporting world. It is essential that the Courts treat such persons no differently from the ordinary person in the street. Before the law no more can be expected of them than from others. They do not come to the Courts with a handicap nor with an edge on others. They are not to be penalized for their fame, nor given greater leniency for their importance and standing in the community."

8. In relying on the House of Lords decision in Attorney-General v. Leveller Magazine Ltd [1979] AC 440, this Court decided in Doreen Singh HAR005 of 2009 (Suv) that the only test for making an order to suppress a name can be when the order is necessary;-

(i) For the due administration of justice; or
(ii) An order to serve the ends of justice.

It was said in Doreen Singh: (para 10):

"public embarrassment at one's judicial predicament is not reason enough to seek suppression of name. Despite the fundamental presumption of innocence, if a person's actions bring suspicion upon (him/her)self then that person must bear the consequences of that behaviour including having their affairs brought into the public arena."

9. Being the country's top squash player and being young are not two attributes that would lead to injustice if the respondent's name were to be published. By undertaking activities that brought suspicion on himself, the respondent ran the risk of being exposed for his deeds and his prowess at a racquets game affords him no special favours. Some of the most famous footballers in the United Kingdom have been drunkards and/or rogues and vagabonds – qualities that do not seem to have deterred their fervent fans.

10. Being "young and a role model" to youth does neither allow for him to hide behind a name suppression. On the contrary being a role model to sporting youth may well remind them of the ease that one can fall to disgrace from one's lofty perch and thereby teach them a lesson of diligence and the benefits of a law abiding life.
11. There is no justification whatsoever for the name of the respondent to be suppressed and the order doing so in the Court below is quashed.

12. In an exerted attempt to secure bail for their client, the two defence counsel below offered the onerous condition of a night time curfew. This was perhaps unwise in hindsight because the respondent has since made applications to lift the curfew for sporting purposes. Imposing a curfew is a very useful condition when allowing robbers or burglars to be admitted to bail. It is normal that such criminals ply their trade by night – to keep them detained in the night time hours may well help to protect the public to some degree.

13. There is no reason whatsoever why a person charged with bribery and uttering should be so detained. Should he have a wont to continue in such pursuits, he can do so probably better by day than by night.

14. Counsel for F.I.C.A.C submits that the curfew may assist in keeping the respondent from interfering with that Commission's investigations of his near acquaintances, but there is in place a condition that he will not interfere in on-going investigations and that will have to suffice to protect any continuing investigations.

15. The curfew condition is lifted with immediate effect.

P.K. Madigan
Judge

At Suva
12 December 2014