Wong v Regina [2004] SBHC 135; HCSI-CC 472 of 2004 (22 December 2004)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 472 of 2004

ALEX WONG

-V-

REGINA

Date of Hearing: 15th December 2004
Date of Ruling: 22nd December 2004

P. Tegavota for the Applicant
R. Barry for the Respondent

RULING

Mwanesalua, J. The applicant was convicted of corruption, contrary to Section 91(b) of the Penal Code [Cap. 26] by the Central Magistrate Court. He was sentenced to three and half year's imprisonment with effect from 7th September 2004. He appealed against conviction and sentence. The appeal has not yet been heard. On 14th September 2004 and 7th October 2004, he made unsuccessful applications for bail to the court which convicted and sentenced him. He now comes to this court with a third application for bail pending the determination of his appeal.

In support of his application, first, he relied on the affidavits of Dr. John Rakei file don 29th September 2004 and 15th December 2004, and annexures marked "JR1", "JR2" and "J". These annexures are medical reports of the Applicant. They show the following information: that the Applicant is 60 years old; he has a history of high blood pressure and liver problem as from August 2004; that apart from 22nd and 23rd September 2004 when his blood pressure rose up to 150/80 and 160/90 respectively, his blood pressure between 17th and 28th September 2004, fluctuated between 130/90 and 140/80; that on 14th December 2004 his weight dropped to 55kg compared to 65kg a month ago; his blood pressure on 14th December 2004 was 140/100 being consistent with 140/100 a month ago; and the results of a recent liver function test on the Applicant is still to be received for assessment and comparison with his previous test results.

Second, the Applicant relied on the affidavit of Mathew Natei filed on 29th September 2004, and, annexures marked "MN1", "MN2", "MN3" and "MN4". Mathew Natei is the medical officer appointed and posted at Rove Central Prison. His evidence is that he examined the Applicant on 17th September 2004. The weight of the Applicant was 64kg and his blood pressure was 140/100. He diagnosed that the Applicant had high blood pressure and complications of liver diseases. These findings were not confirmed by a doctor. He reported these findings to the General Manager of the Prison with his recommendations on types of treatment and food which should be provided to the Applicant. The Solomon Islands Prison Service does not have funds for extended medical treatment and for overseas travel for sick prisoners.

Third, the applicant relied on his own affidavits filed on 13th September 2004 and 13th December 2004. Annexure marked "AW3" to his affidavit of 13th September 2004 is a medical report on him by Dr. Nathan Kere. It was an additional medical report made on him by Dr. Kere on 30th August 2004. These medical reports show that the Applicant has abnormally raised liver enzymes (AST and ALT), and Gamma GTP. According to Dr. Kere's opinion, the rise in these enzymes in the Applicant's blood indicate that the Applicant has an active liver disease.

Counsel for the Applicant, Mr. Tegavota, submits that the Applicant should be released on bail on the basis of ill-health pending the determination of his appeal. He says ill-health constitutes an exceptional circumstance within Section 290 (1) of the Criminal Procedure Code [Cap. 7] (CPC) which would entitle the Applicant to be admitted to bail.

The prosecution opposed the application. Mr. Barry of counsel submits that ill-health does not constitute an exceptional circumstance within Section 290 (1) of the CPC.

The Law

The law which empowers the court to grant bail to a convicted person pending the determination of his appeal is Section 290 of the CPC. Section 290 (1) states:

"Admission to bail or suspension of sentence pending appeal.

290 (1) Where a convicted person presents or declares his intention of presenting a petition of appeal, the High Court or the court which convicted such person may, if in the circumstances of the case it thinks fit, order that he be released on bail, with or without sureties, or if such person is not released on bail, order that the execution of the sentence or order against which the appeal is pending be suspended pending the determination of the appeal. If such order be made before the petition of the appeal is presented and no petition is presented within the time allowed the order for bail or suspension shall forthwith be cancelled."

The granting of bail pending an appeal from conviction is different from granting of bail before conviction. Bail will not be granted after conviction, unless the circumstances are exceptional or unusual.

In this case, the Applicant has made three successive applications to be admitted on bail pending determination of this appeal against conviction and sentence. He has twice made unsuccessful applications for bail on 14th September 2004 and 7th October 2004, to the court which court which convicted and sentenced him. The grounds which he relied on in his application for bail before this court were the same grounds which he relied on in his unsuccessful application for bail on 7th October 2004. These grounds were that he had liver problem; he had high blood pressure; that the environment, food and accommodation provided in prison would worsen his ill-health; and that if he were to be released on bail he would be able to make medical checks on his liver illness.

I think he can still receive special treatment for his illnesses and be supplied with suitable food to improve and maintain his health when he is in prison. He can be taken from the prison to the hospital for treatment and medical attention in the event of serious illness and condition. (See Section 48 (1) of the Prisons Act [Cap.111]; (regulations 39 and 83 (4) of the Prison Regulations).

In RV Gott (1921) 16 Cr. App. R. 86, the Applicant was convicted of blasphemy and was sentenced to nine months' imprisonment with hard labour. The Applicant applied for bail on ground of bad health. The application was refused.

I have considered the submissions made by Mr. Tegavota on behalf of the applicant. However, I am not satisfied that the grounds underlying those submissions establish exceptional circumstances sufficient for me to grant bail. The application is refused.

Having ruled in the way I did I make these additional observations:

1. The prison authorities must ensure that the Applicant is accorded all the rights of a convicted prisoner in relation to special treatment of his illnesses and the daily supply of mineral water and additional food by his relatives subject to his agreeing to meet the costs.

2. The Applicant have access to all medicines he needs subject to the approval of a doctor.

3. The medical officer at the prison in consultation with the prison authorities exercise discretion and remove the Applicant from prison to hospital for medical attention and treatment in the event that he suffers from any serious illness or condition.

F. Mwanesalua
Puisne Judge