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Agyemang v State [2012] FJMC 114; Case 625.2012 (4 June 2012)

IN THE MAGISTRATE COURT OF FIJI ISLANDS
AT SUVA

Case No: 625/12

BETWEEN:

MARVIN OPOKU AGYEMANG
BOAKYE VINCENT KWAME
ISAAC VELLISON
APPLICANTS

AND:

THE STATE
RESPONDENT

Applicant : - Mr. Tawake P (LAC)
Respondent : - Ms Leweni T (for DPP).

BAIL RULING

1. This is an application for bail pending trial in the case bearing No 625/2012 before Magistrate's Court in Suva.
   
2. The three accused-applicants, (hereinafter referred as the Applicants), stand charged on a count for having committed the offence of 'Dishonestly Dealing in personal Financial Information' punishable under Sections 349(a)(b) of the Crimes Decree No 44 of 2009.
   
3. The alleged offence was committed between 30.11.2011 and 08.01.2012.
   
4. The matter was first called before me on 04.05.2012. The Respondent sought time to disclose the evidence they have against the applicants. Full phase disclosers were served on the applicants on 18.05.2012. At that point the Legal Aid counsel made an application for time to peruse the same before taking their plea.
   
5. In the interim the counsel for the applicants submitted an application for bail pending trial. The respondent objected for the application. Both parties made extensive submissions in support of their applications.
   
6. The three applicants were Ghana nationals. They are in the age of 25 and 28. All three are free from any previous criminal history. They have arrived in Fiji 29.11.2011 on student visas. The visa was obtained to undertake a research on eco-tourism in Fiji and for internship program at the Bay of Plenty Resort in Yasawa Island.
   
7. The affidavit filed by the investigating officer of this case reveals the background and the circumstances of the offence that the applicants charged with.
   
8. On 27.01.2012 Samabula police station received information from 'Courts Fiji Limited' concerning the appropriation of goods by Ghanaian nationals by using forged American documents. The first accused was arrested at the scene and the third accused was arrested outside the Samabula police station. It was discovered that the second accused too involved in fraudulent activities of other two accused.
   
9. It appears that the investigators have discovered number of credit cards of others with respective pin numbers. The credit card companies have confirmed that these cards were used without the permission of the actual owners.
   
10. The three applicants were taken in to custody. Passports were uplifted as a part of the investigation. On 14.05.2012 their student visas expired.
    
11. The affidavit confirms that there are pending investigations on other unlawful activities of the applicants. The investigators anticipate filing charges in near future.
    
12. The applicants apply for bail pursuant to an application where the subjective considerations are in the form of inconvenience resulted from their detention in remand. Further the second accused had urged that he has a lump on his right breast which is painful at times. On 23.05.2012 the first accused informed Court that he was assaulted by another inmate in the prison. Although there were no serious injuries I ordered the officer in charge of the prison to provide special protection to all three accused to avoid any type of harassment from other inmates.
    
13. This application is governed by the provisions of the Bail Act No 26 of 2002, which provides a heavy presumption in favour of granting bail pending trial to the accused.
    
14. The party opposing bail has to rebut this presumption on the balance of probabilities. Bail should be granted unless the Court is satisfied of any one or more of the considerations set out in section 19(1); where it says,
    

(a) The accused is unlikely to surrender to custody and appear in Court;

(b) The interest of the accused will not be served through granting bail;

(c) Granting bail would endanger the public interest or create a situation where the protection of the community will be more difficult.

All 3 grounds need not exist to justify refusal of bail. Existence of any one ground is sufficient to refuse bail. { Wakaniyasi v State [ 2010 FJHC 20]}

15. The Respondent addressed the Court on all three limbs abovementioned. At the outset I note that this is not an offence with higher punishment. The maximum punishment is five years imprisonment.
    
16. In order to determine whether the applicants are unlikely to surrender in to custody and appear in Court, their personal backgrounds and community ties should be quarried. All three applicants have applied their visas by pretending they are members of the organisation called 'World Heritage Social Club'. The affidavit filed in support of respondent states that it is a non-existing entity. It appears that the applicant had obtained the entry visa to Fiji by using false documents. Further they are silent on the purpose of the visit, to research on eco-tourism in Fiji and for internship program at the Bay of Plenty Resort in Yasawa Island.
    
17. When the offence was committed all three applicants were in the Central division and not in Yasawa Island.
    
18. The applicants have promised to reside in lot 23 Kaisau St. Nakasi where they lived since 03.01.2012. However there is no mention on the owner of the said property and on what basis they reside in that property. A tenant will only have ties with the landlord until the payment of his rent. Applicants have admitted that they do not have any relatives here. They say their friends will stand as sureties for them.
    
19. It is difficult to believe that a friend who knows the applicants for six months will have any influential authority to direct them against 'Flight Risk'.
    
20. The respondent submits that the case against the applicants is strong. The offence carries a maximum penalty of five years imprisonment. This cannot be categorized as a grave crime compared to other offences which have severe punishments.
    
21. In my view a person virtually who has no ties in the society will try to evade even a diminutive punishment if convicted.
    
22. The applicants state that their visas are now expired. They have not submitted any information on the intention for an extension or a renewal of visa. It is difficult to expect that the immigration authority will facilitate their applications as they are now accused of an offence. Section 9(6) (b) of the Immigration Act 2003 states that a person who is in lawful custody is not entitled to be issued with a permit to stay. This creates the applicants in to persons with 'No legal Status' in Fiji.
    
23. If this Court grants bail to these applicants despite the fact that they do not possess a valid visa, it will indirectly guide to another breach of law. This time it will be Immigration Act.
    
24. The applicants therefore will have no means of supporting them legally if the Court grants bail to them. This will lead them to find even the unlawful ways to provide necessities. Thus it will endanger public interest and the protection of the community.
    
25. Section 3 of the Bail Act 2002 states that 'an accused person has a right to be released on bail...' and that 'there is a presumption in favour of the granting of bail'. Although the favour of these words is more towards applicants, in my view, it does not invest an absolute right on them to be released on bail.
    
26. Section 3 of the Bail Act contains provisions whereby 'interests of justice' have been declared as a necessary factor to be considered by court when it is giving 'the right to be released on bail' to an accused person or persons under the Act.
    
27. The presumption in favour of the accused could be rebutted by a person opposing bail by the criteria laid down in Section 18 (1) of the Act.
    
28. Although the person who opposes for bail can rebut the presumption, I am of the view that the court is also vested with power independent of such opposition to consider issues relating to "interests of justice under Section 3(1) of the Act.
    
29. Having considered the foregoing facts, I conclude that the circumstances of this offence are such that "interests of justice" make ineffective the 'right of the applicants to be released on bail'.
    
30. I do not see any difficulty for the accused persons to instruct their Legal Aid counsel whilst being in remand custody, as they took prompt action in pursuing this application.
    
31. In conclusion, I hold that the applicants of this case are not entitled to be released on bail pending trial. The matter will be reviewed in any change of circumstances that were considered during this ruling.
    
32. Application is dismissed accordingly.
    

YOHAN LIYANAGE
Resident Magistrate

04th June 2012