Wight v R [2022] TOSC 3; AM 1 of 2022 (14 January 2022)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU’ALOFA REGISTRY

AM 1 of 2022

BETWEEN: 1. VILIAMI WIGHT
2. SAMUELA MAHINA

- Applicants

AND : POLICE

- Respondent

BEFORE HON. JUSTICE NIU

Counsel : Mrs. S. Vaipulu Ebrahim for the applicants (accuseds)

Mr. J. Fifita for the respondent (Police).

Hearing : 14 January 2022.

Ruling : 14 January 2022.

RULING

Background

[1] The two applicants were arrested on 23 December 2021 as follows:

(a) first applicant for possessing methamphetamine weighing 6.8 grams, and for possessing utensils, namely, 2 test tubes, 5 straws, 2 scales and 21 empty packs;

(b) second applicant for possessing methamphetamine weighing 1.14 grams and for possessing utensils namely 1 straw;

contrary to S.4 (1) (a) (iv) and 5A of the Illicit Drugs Control Act respectively.

[2] No record and no information was given as to whether the two accused were taken before a Magistrate on either that day or the next day, but both applicants were kept in custody and were taken before Magistrate Mafi on 4 January 2022.

[3] The transcript of the proceedings that day which is provided is as follows (as translated):

“Ct: Yes Prosecution what is happening?

Pros: Chairman, these two accused were just arrested on 23.12.2021. They were arrested together with one Siaki Tongatu’a at Malupo’s home. Viliami was found possessing 13 packs of meth weighing 6.8 grams and Samuela was found possessing 8 packs of meth weighing 1.14 grams. Am asking Chairman for custody of both accused firstly because of the seriousness of their offences secondly because of the large quantity of the drugs found with them.

Ct: Yes, custody is ordered. Firstly because of the large quantity found with them, secondly because of the weight of the drugs found with them. Both of these indicate distribution of illicit drug.

Pros: Thank you Chairman

Decision: After this chamber hearing of today Magistrate Mafi ordered both accused be remanded in custody until 17.1.2022 for the reason firstly because of the weight of the illicit drug and secondly because of the quantity, namely Viliami Wight was found with 13 packs of meth weighing 6.8 grams and Samuela Mahina was found with 8 packs of meth weighing 1.14 grams. Both indicate distribution of this type of illicit drug.

- Seriousness of the offence.

- Indication of distribution of illicit drug.

- to gather and safeguard the evidence.

S. Mafi (Signed)

Magistrate Mafi

5/01

(Handwritten note)

Application from counsel Sisi has been received, but declined for the reasons shown above.

S. Mafi (Signed).”

[4] Counsel (Sisi) was engaged by the two accused after bail was refused that morning of 4 January 2022, and she prepared and filed their applications for bail with Magistrate Mafi at 1:59 pm that same day and Magistrate Mafi declined it on 5 January 2022 as he wrote at the bottom of the above transcript.

[5] On 12 January 2022, this application of the two accused to this Court was filed in the Magistrate’s Court. On the same day, the Magistrate Court forwarded the notice of appeal, the transcript, the application and affidavits and copies of the 4 summons against the two accused to this Court.

[6] Yesterday, 13 January 2022, I received the same and I notified both Mrs. Ebrahim and the Attorney General to attend in chambers this morning and for the Attorney General to indicate whether or not she opposed the application.

[7] In chambers this morning, Mr. Joe Fifita attended on behalf of the Attorney General and he informed me that he had sought instructions from the police as to whether they opposed the application and that up to now they have not instructed him to oppose it. He informed me that he therefore did not oppose the application and that bail be granted but that both accused report at the Central Police Station every Monday before 12:30 pm.

[8] Thereupon I upheld the application and quashed the order of Magistrate Mafi and granted bail to both accused.

[9] I now give my reasons.

Right to bail

[10] Every accused person, except one charged with murder or treason, is entitled to bail, unless the Court is satisfied that the accused

(a) will not come to Court when required;

(b) will commit an offence whilst on bail;

(c) will interfere with witnesses or obstruct the course of justice;

(d) should be kept in custody for his own protection;

(e) should be kept in custody whilst necessary inquiries are carried out;

(f) is already in custody by reason of a court sentence; or

(g) had already been granted bail in respect of the same charge and has failed to come to Court.

That is clearly provided for in section 4 (1) of the Bail Act which provides as follows:

“Bail may not be granted

4. (1) A person who is arrested or charged with an offence punishable with imprisonment shall be granted bail unless the Court, or a police officer (in the case of a person arrested) is satisfied that –

(i) there are substantial grounds for believing that, if released on bail (whether or not subject to conditions) he will

(a) fail to surrender to custody;

(b) commits an offence while on bail; or

(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person:

(ii) he should be kept in custody for his own protection or welfare;

(iii) the case has been adjourned for inquiries which it would be impracticable to make unless the defendant is kept in custody;

(iv) he is already in custody pursuant to a sentence of a court; or

(v) he has already been released on bail in connection with the present proceedings and has been arrested pursuant to section 9 of this Act.”

[11] To be satisfied that one or more of those grounds exist, the Court must require the Crown (or police) to provide admissible evidence to prove such ground beyond reasonable doubt, and most importantly, the accused person must be present and be allowed to cross-examine any person giving any evidence and be heard in opposition and to call any witness and produce any evidence in his favour.

No evidence at all

[12] In the present case, no evidence was given at all. The statement which the prosecution gave to the Magistrate was not sworn and was therefore not evidence, and no opportunity was afforded to either accused to cross-examine the officer. The transcript ought to have stated that such opportunity was given but it does not.

[13] Furthermore, the officer did not say how it was that he came by the information which he conveyed to the Magistrate. It could well be that as a prosecuting officer, he was not the investigating officer and that he had taken no part in the arrest of the 2 accused. So that what he related was entirely hearsay, and was inadmissible evidence.

No valid ground

[14] Furthermore, the grounds upon which the Magistrate refused bail to the two accused were (1) that the charges against them were serious and (2) that the quantity of methamphetamine found on them was large and it indicated that the 2 accused were involved in the distribution of the illicit drug.

[15] Those are not grounds upon which bail may be refused. Neither ground is included in the 8 grounds which are listed in S.4 of the Act as quoted above.

[16] It would appear that the Learned Magistrate may have misunderstood the application of subsection (2) (a) of section 4 of the Act which provides as follows:

“(2) In taking the decision required in subsection (1) the Court (or police officer) shall have regard to all the relevant circumstances and in particular –

(a) the nature or seriousness of the offence (and the probable method of dealing with the defendant for it).”

[17] The Learned Magistrate appears to have taken the seriousness of the offence as a ground to refuse bail which is not. The ground for refusing bail has to be one of the 8 grounds listed in subsection (1), if proved by admissible evidence which satisfies him of such ground beyond reasonable doubt.

Court of Appeal authority

[18] Mrs. Ebrahim helpfully attached a decision of the Lord Chief Justice Whitten, President of the Court of Appeal in Cox & Cox v Rex (2021) AC 25/2021 on 29 October 2021, in the application of the two accused, and I agree entirely with His Honour’s application of the provisions of S.4 (1) of the Act. I, of course, have to follow that decision, as I have done in this application, because that is the law as laid down in the Bail Act itself.

Orders

[19] Accordingly I have made the following orders:

1. The applications of the applicants are upheld.
2. The order of the Magistrate dated 4 January 2022 refusing bail to the applicants is quashed.
3. Bail is granted to each applicant on the following terms:
   • (a) Each applicant shall sign a recognizance for $2,000.
     • (b) Each applicant shall have one surety who shall sign a recognizance for $2,000.
   • (c) Each applicant shall comply with the following conditions:
     • (i) to attend this Court at each time his matter is called;
     • (ii) he shall not commit any offence punishable by imprisonment;
     • (iii) he shall not leave Tongatapu without the leave of this Court;
     • (iv) he shall surrender any passport which he holds to this Court forthwith and shall not apply for any passport without the leave of this Court;
     • (v) his name shall be added to the no-fly list;
     • (vi) he shall report to the Central Police Station at Nuku’alofa on every Monday before 12:30 pm.
       

NUKU’ALOFA: 14 January 2022.

Niu J
J U D G E