Regina v Thang [2011] SBHC 70; HCSI-CRC 109 of 2011 (15 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

v

NGUYEN VAN THANG

Date of Hearing: 3 August 2011
Date of Judgment: 15 August 2011

Mr. Fugui for the accused/Applicant.
Ms. Walenenea for the Crown/Respondent.

RULING

Apaniai, PJ:

Introduction

1. The applicant, Nguyen Van Thang, is charged with the murder of Nguyen Van Huong on or about the 2nd February 2011. In addition, he is also charged with the unlawful wounding of Nguyen Van Toan on that same date.
   
2. The incidents happened on board the MV Pacific Pride, a foreign fishing vessel (the "vessel"), on the 2nd February 2011 while the vessel was anchored off Point Cruz, Honiara.
   
3. The applicant is a foreigner and so are the victims, Mr. Huong (deceased) and Mr. Toan. All three of them were from Vietnam and were members of the vessel's crew which consisted of nationals from Asian countries including Japan, China, Taiwan and Vietnam.
   
4. A short form preliminary inquiry was conducted on 1st April 2011 at the end of which the applicant was committed for trial at the High Court.
   
5. He now applies to be granted bail while awaiting trial.
   

Alleged facts

6. It is alleged that the applicant, along with some of the vessel's crew members, were celebrating the Chinese New Year on board the vessel while the vessel was anchored out in the sea off the Point Cruz wharf. That was about 10pm on or about 2nd February 2011.
   
7. It is also alleged that during the celebrations, alcohol was consumed and that the applicant appeared to be drunk.
   
8. It appears that as the celebrations were coming to an end, the applicant went to the deceased's room and argued with the deceased. It is alleged that during the argument, the applicant stabbed the deceased in the left eye with a knife. The knife fractured the deceased's skull and entered the left frontal region of the brain which caused the death of the deceased.
   
9. Having assaulted the deceased, the applicant then moved on to Mr. Toan. The applicant had had an argument with Mr. Toan sometime earlier which resulted in some damage being caused by the applicant to the shirt worn by Mr. Toan that evening. Mr. Toan had then gone to his room to change the shirt. The applicant, after stabbing the deceased, then went on to Mr. Toan's room, approached Mr. Toan from behind and stabbed Mr. Toan on the shoulders while Mr. Toan was bending down looking for fresh clothes in his room.
   
10. Both the deceased and Mr. Toan were rushed to the National Referral Hospital in Honiara, but the deceased was pronounced death at about 12 midnight while Mr. Toan was treated and then admitted and placed under medical observation. He was later discharged.
    
11. It is not clear from the depositions what was the reason for the applicant's behavior that evening although it was suggested that he was under the influence of alcohol.
    
12. The applicant was then arrested at about 3 am the next day and placed in custody. He has been in custody since then.
    

Ground in support of application

13. It appears from the affidavits filed by the applicant and by Hon. Tran filed in support of the application, the applicant's main reason for wanting to be given bail is the difficulty in communications.
    
14. The applicant says he does not understand English nor pidgin and therefore finds it difficult to communicate with the prison authorities and even the other prison inmates as well as the medical staff while in custody. Although he mentioned difficulty in communicating with the medical staff, there is no evidence that the applicant is suffering from any medical ailment.
    

Grounds in opposition to the application

15. The Crown opposes the application. The reasons for opposing the application are the seriousness of the offences charged, the strength of the Crown case against the applicant and the risk of flight. The Crown, however, concedes that there is no fear of interference with Crown witnesses as its main witnesses are all abroad.
    

The law on bail

16. I am satisfied that the offences with which the applicant is charged are very serious offences indeed, particularly the murder charge. However, the seriousness of the offence, by itself, is no reason to refuse bail to a person charged with the offence. It has been decided in a number of bail applications in murder cases which have so far been decided in this jurisdiction that the fact that a person has been charged with murder does not necessarily mean that the person cannot be granted bail[1]. Each case must depend on its own particular circumstances and there may be cases where the circumstances are such that bail may be refused.
    
17. Kwaiga v R[2] was a murder case. It was alleged that, although the applicant was not involved in the actual killing of the victim, he was seen giving instructions to those who carried out the killing. It was held that the applicant was married to a woman from Papua New Guinea ("PNG") and could have easily absconded and live with his wife in PNG but did not abscond. He was granted bail on the grounds that there was no risk of flight and that the evidence against him was flimsy.
    
18. The case of R v Maeni[3] was another murder case where bail has been granted to the accused. The Crown's objection to bail in that case was based on the risk of flight. The accused was a police officer at the time of the offence and the offence was committed during a police operation to capture a number of criminal offenders. The court had taken into account the circumstances of the offence and concluded that there was no risk that the accused will not attend his trial. Bail was therefore granted.
    
19. These two cases show that bail can still be granted even in cases where the offence alleged to have been committed is murder.
    

The present case

20. In the present case, I am not so much concerned with the seriousness of the offence or the fact that the Crown has a strong case as asserted by the Crown. No one will question that murder is a serious offence and indeed the depositions clearly show that there is a strong case in favour of the Crown.
    
21. However, to justify a refusal of bail, the Crown must show something more than the fact that the charge is serious or the fact that the Crown has a strong case. It must show that at least there is a possibility that the applicant might abscond or that the applicant might interfere with Crown witnesses or that the applicant might re-offend or that there are other justifiable reasons why bail should not be granted.
    
22. In the present case, I have considered the material before me and the submission for and against the application. In my judgment, this is a case where bail should be refused.
    
23. The reasons are, first, the applicant is a foreigner. Knowing that the offence is a serious one which will attract a mandatory life sentence if convicted, I am satisfied that there is a possibility that the applicant might attempt flight if granted bail.
    
24. It has been suggested that such fear will be alleviated if the applicant surrenders his travel documents. In my view, surrender of travel documents will assist only where the applicant tries to travel abroad in the usual and lawful manner, but not if the applicant tries to leave the country by other illegal means. If the applicant leaves the country, there is absolutely no possibility of getting him back to face trial.
    
25. I applaud Hon. Tran for offering himself as surety for the applicant. There are very few people who will avail themselves like Hon. Tran to assist a complete stranger in situations such as the present.
    
26. Unfortunately, I do not think Hon. Tran will find the time to sufficiently supervise or keep a close watch over the applicant every day so as to ensure the applicant does not make any attempt to abscond.
    
27. In his affidavit, the applicant says that Hon. Tran is the sitting Member of Parliament for West Honiara, Deputy Speaker of Parliament and Deputy Chairman of the Government Caucus. It is also a well-known fact that Hon. Tran is a business man. With all these important and major responsibilities being placed upon him, I am not satisfied that Hon. Tran will be able to provide proper daily supervision to the applicant to ensure that he does not abscond.
    
28. However, that is not the end of the matter. I must say that the circumstances of this offence are of concern to me. The PI depositions appear to suggest that the assault on the victims were unprovoked and were committed while the applicant was under the influence of alcohol. My concern is that the depositions have indicated that the applicant is a person who has a violent disposition when under the influence of alcohol. That would be a big risk to the public and especially those with whom he might reside if given bail.
    
29. Thirdly, as appear from the depositions, the prima facie evidence against the applicant is overwhelming.
    

Application refused

30. For these reasons, the bail application is refused.
    

THE COURT

Justice James Apaniai
Puisne Judge

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^[1] Kwaiga v R, CRC No. 333 of 2004; Kelesiwasi v R, CRC No. 24 of 2004; R v Bolea, CRC No. 256 of 2011.
^[2] CRC No. 333 of 2004
^[3] CRC No. 117 of 1999