Naidu v Fiji Commerce Commission [2014] FJMC 144; Criminal Case 596.2012 (4 November 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
CRIMINAL CASE NO: 596/2012

BETWEEN:

MUKESH NAIDU
APPLICANT

AND:

FIJI COMMERCE COMMISSION
RESPONDENT

Mr. A. Singh for the Applicant
Mr. Nandan for the Respondent

RULING ON BAIL

1. The applicant was convicted by this Court on 28th October 2014 one count of False and Misleading Representation contrary to sections 29 and 129(1) of the Commerce Commission Decree 2010. Subsequently he was remanded for his sentence.
   
2. The counsel for the applicant filed a notice of motion supported with an affidavit sworn by Ms.Varsha Priya( wife of the applicant ) seeking bail . The respondent filed two affidavits in reply and this was set down for hearing on 03rd November 2014 where both counsels made their respective oral submissions.
   
3. The learned counsel for the applicant submitted that the applicant presently engaged in a logging business and therefore no danger to public and also he failed to appear in this case and other cases as he was engaged in that business in Tailevu. The counsel further submitted that if granted bail the applicant would appear in this Court for sentence and also he is prepared to abide by any bail conditions imposed by this Court .
   
4. The counsel for the respondent in his submission pointed out that the applicant failed to appear for a long period in this case and they had to employ a bailiff to execute the bench warrant issued by this Court. Further he submitted that according to the affidavit of Nitin Prakash there is a danger of the applicant getting beaten up by villagers and for his interest the bail should not be granted. Finally the counsel said there are nearly 150 similar cases pending against the applicant and there is a possibility of him reoffending again if granted bail.
   
5. Answering to a question raised by this Court the applicant's counsel submitted that his client was having chest pain and he failed to appear in this Court because of his sick conditions. He also tendered the medical certificates to show the reason for him not to appear in this case.
   
6. Having considered the submissions as well as respective affidavits I would now turn my attention to the relevant law provisions for this application.
   
7. Section 03 of the Bail Act of 2002provides that the accused person has a right to be released on bail unless it is not in the interest of justice that bail should be granted. But since the accused has been convicted for this offence this presumption is no longer applies for him.
   
8. Section 17(2) of the Act stipulates that the primary consideration in granting bail is the accused person appearing in the Court to answer the charge.
   
9. Section 19(1) of the Bail Act outlines the reasons for refusing bail and they are as follows:-
   
   1. The accused person is unlikely to surrender to custody and appear in court to answer the charges laid;
      
   2. The interest of the accused person will not be served through the granting of bail; or
      
   100. Granting bail to the accused would endanger the public interest or make protection of the community more difficult
        
10. In Isimeli Wakaniyasi v State ( 2010),FJHC 20;HAM 120/2009 (29th January 2010), his Lordship Justice Goundar held that "All three grounds need not exist to justify refusal of bail, existence of any one grounds is sufficient to refuse bail".
    
11. In this case the respondent objected to bail based on all the three grounds set down in section 19 of the Bail Act. But I would limit my reason only on the first ground ( the applicant unlikely to appear in this court to answer the charge) as I believe that would be sufficient to decide this application
    
12. According to the counsel the reason for the applicant not to appear in this case was his sickness . This Court was ready with the judgment from 21st July 2014 but finally had to deliver it only on 28th October 2014 , nearly after 03 months because of his failure to attend this Court . According to the affidavits filed by the respondent the summons for other cases also could not serve him because all the time he was not in his home and was working in Tailevu. This position was confirmed by the counsel for the applicant also in his opening address . I find it hard to accept the fact that the applicant who was supposed to be so sick which prevented him from appearing in this Court on numerous occasions was able to go and work in Tailevu all these time. Therefore I find that there were no justifications for his failure to appear in this case on numerous occasions .
    
13. As mentioned earlier this Court has already convicted the accused for this case and can deliver the sentence as soon as the mitigation submission is filed on behalf of the applicant. This case was dragged this far on the fault of the applicant. Considering the past history I am doubtful that if granted bail the applicant would appear for his sentence .
    
14. Therefore considering the likelihood of the appearing in custody I refuse bail to the applicant.
    
15. 28 days to appeal
    

04th November 2014

H.S.P.Somaratne
Resident Magistrate, Suva