Republic vs Kilindo (CO 36 of 2022) [2022] SCSC 742 (1 September 2022)

D. Esparon, J

1. This is an application made by the Republic seeking an order from this Court under Section 179 of the Criminal Procedure Code read with Section 18 (7) of the Constitution. The Respondent has been charged with the offence of Importation of a Controlled drug contrary to Section 5 of the Misuse of Drugs Act and the offence of conspiracy to import a controlled drug contrary to Section 16 (a) of the Misuse of Drugs Act read with Section 5 of the same Act both relating to 3968.27 gram Cannabis Herbal materials.
2. The Application is supported by the Affidavit Sargent Michel Bristol who alleges in paragraph 2 of his affidavit that on the 11^th of August 2022, Police Officers on duty at the Airport Cargo at Pointe Larue, at around 0915 hours where informed by Officer that there is one FedEx carton bearing the name of Gabriella Solovski c/o Petit Amour Villa, Collibri Appartment, Sorento, Glacis with tracking number 777581802285 originating from United States that needs to be scanned.
3. The deponent further avers in paragraph 2 of the said affidavit that whilst sorting out FedEx courier at Airport Cargo on the same day in the presence of Clearing Agent and Driver of FedEx Alvin Kilindo of Anse Royale, Mont Plaisir, it was noticed that one carton box that is listed on the manifest bearing tracking number 777581802285 was missing.
4. The deponent further deponed in his Affidavit that the Custom Officer proceeded to FedEX office for clarification and the same carton box with tracking number 777581802285 was found inside the FedEX Office of which the Custom Officer took the said carton box in the presence of AVESEC Security Officer, Custom Officer and Police Officer scanned the said carton box and it was found on the screening machine to be showing organic color and hence the said carton box was handed over to the Police Officer.
5. That the deponent avers in paragraph 5 of his affidavit that the said box was opened by the Police Officer. The Police found amongst other things three clear packets of clear plastic each containing herbal materials suspected to be controlled drugs, another packet containing herbal materials suspected to be controlled drugs, 2 clear plastic each containing herbal materials suspected to be controlled drugs, one pink plastic bag containing one clear plastic containing herbal materials suspected to be controlled drug of which there were a total of 7 packets containing herbal materials suspected to be controlled drugs of which the police seized all as exhibits.
6. The deponent has averred in paragraph 6 of his affidavit that the footage was viewed at the custom office by Custom Officer and Police Officer and while viewing the said footage herein saw that the Respondent Alvin Kilindo removed (1) carton box in a FedEx plastic bag and it was placed on the ground and he did not submit or present it to Custom Officer as per procedure to be followed. Then the Respondent Alvin Kilindo placed the said carton box back into a FedEx bag intentionally and clear the way so that the FedEx plastic bag would be his first getaway priority.
7. That the deponent further averred in his affidavit that the Respondent was met at the FedEx Office and after a search was conducted  at the Residence of the Respondent, several electronic devices were seized at the residence of the Respondent for the purpose of investigation.
8. The deponent has averred in paragraph 9 of his affidavit that the Respondent was invited to the Bois de Rose Station whereby he was shown the said carton box and the 7 packets containing herbal materials of which the Respondent was then arrested.
9. The deponent has averred in paragraph 10 of his affidavit that the seized Exhibits were analysed by the Forensic Analyst and they were confirmed to be controlled drugs namely Cannabis Herbal materials with a total net weight of 3968.27 grams.
10. The grounds upon which the Republic is relying upon for the remand of the Respondent  is as follows;

1.  The offences charged against the Respondent no 1 is importation in a controlled drug which is a serious offence that carries a sentence of life imprisonment and a fine of SCR 1 million with indicative minimum sentence of 15 years imprisonment on conviction.
2. The importing into the a country of a controlled drug using the facility of a courier service, hiding the said controlled drug addressed to a fictitious name and having an inside man at the courier service shows highly organised and commercial element indicating an organised criminal operation internationally with local involvement is an aggravated offence under Section 48 if the Misuse of Drugs Act, 2016.
3. The large quantity/weight of the controlled drug seized indicates the presence and degree of commercial element in the offending, particularly when the controlled drug is imported into the country which is an aggravating factor as per Section 48 (MODA)
4. There are reasonable grounds to believe that the commission of such offence involves a number of persons in Seychelles and elsewhere, if the Respondent is released on bail, there is high likelihood of interference with the ongoing investigation in relation to those other than the Respondent herein suspected of involvement in the offence which may lead to further arrest.
5. That there are reasonable grounds to believe that the Respondent will fail to appear for the trial and/or do other activity thus obstruct the course of justice if released on bail considering the seriousness of the offence, severity or punishment for such offence and considering the conduct of the Respondent, modus operandi employed by the Respondent in hiding and taking away the said FedEx carton without following through the process and procedure in order to avoid detection of the controlled drug inside the carton box.
6. That the drug offences are on steady rise and the related consequences are a menace on the health and wellbeing of a small island state with serious impact on the younger generation and its potential negative impact on tourism and image of the nation in the international platform.

11. Submission of counsel

Counsel for the Republic submitted to Court as to the facts and circumstances as averred by the deponent in the affidavit that the Republic has proven a prima-facie case and relying on the grounds as averred in the paragraph 12 (a) to (e) of the affidavit of the deponent laying emphasis on the seriousness of the offences charged  and the fact that there are reasonable grounds to believe that if the accused is released on bail there are reasonable ground to believe that the accused will interfere with the investigation and obstruct the course of justice and will fail to appear for his trial in view of the seriousness of the offence.

12. On the other hand counsel for the accused strongly objected to the application and submitted to the Court that the prosecution should have disclosed to the accused the CCTV footage in accordance with Article 19 of the Constitution and that an order should be made that the prosecution give CCTV footage of all the angles of which there is CCTV footage coverage.
13. Counsel for the Respondent submitted to the that fact that the said box was not screened before it was handed over to the Respondent raised a doubt as to the case of the prosecution as the procedure is that all parcels should be screened before it is released.
14. He also submitted to the Court that his client is only a driver with no link to the pick-up of the parcel or delivery and that the Police is protecting some person who has links to the parcel.
15. Counsel for the Respondent submitted that his client had been released by the Magistrates Court as a result of the prosecution serving the wrong application to the accused person, and that there is no reasonable possibility of the Respondent absconding since after being released by the Magistrates Court the Respondent voluntarily came to the Court after being served with the charge and the remand application.

Determination

16. This Court has meticulously considered the submissions of both counsel for the prosecution and counsel for the Respondent in the matter as well as the pleadings in the form of an affidavit filed by the prosecution in the matter and will address certain points raised by the counsel for the Respondent first.
17. As to the issue of why the CCTV footage was not disclosed to the Respondent. This Court finds that the Court is to decide on a remand application based on affidavit evidence and that there is no necessity to disclose the evidence  namely exhibits in the case such as the CCTV footage of which such disclosure will be done posterior to such an application in line with Article 19 of the Constitution and the Court would have a chance to view the exhibit at the trial stage so that the Courts mind would not be prejudiced at the stage of a remand application as to the determination of the case of which the right to fair trial is part of the Seychelles Charter of Fundamental Human Rights and Freedom as provided for under 19 (1) of the Constitution.
18. As to the issues raised by counsel for the Respondent that the parcel should have been screened before and that the Respondent is a mere driver with no link to the pickup and delivery of the parcel and that the Police is protecting someone of which are matters of evidence which is for the determination of the Court at the trial stage after hearing the evidence in the matter. Furthermore, counsel for the Respondent raised issues of exhibits found during an alleged illegal search and as to the chain of exhibit seized namely the drugs which are matters to be determined by the Court at trial stage.
19. As regards to the issue of the Respondent being released by the Magistrates Court after being served with the wrong application, this Court reminds itself that it is not sitting on appeal from the decision of the Magistrates releasing the accused on bail but however, in passing this Court takes judicial notice that there is a return of service of the application of which is the same as the one in the Court’s file.
20. This Court hence finds, that this is a fresh application for remand filed by the Republic after the accused has been charged with offences of importation of a controlled drug and conspiracy to import a controlled drug and hence this Court is competent to decide on such an application in its own right by virtue of Section 179 of the Criminal Procedure Code.
21. This Court highlights the fact that before this Court considers the ground upon which the Prosecution is relying upon in seeking to remand the accused person, this Court has to make a finding that the prosecution has proven that there is a prima-facie case against the Respondent in an application for remand.
22. In the case of Beharry V/S  Republic SCA 11 2009, the Court indicated that when considering an application of this nature made pursuant to section 179 of the Criminal Procedure Code, it is incumbent on  the prosecution to demonstrate a prima-facie case. In the case of the Republic V/S Hilda Anena and Kevin Gerard Quatre CM 261 2022 Adeline Judge held that’’ thus the prosecution carrying the burden of proof has to only present evidence to create a rebuttable presumption that the allegation asserted  is true. As such the standard of proof that the prosecution must satisfy the Court at a prima-facie case stage is lower than for the proof that the accused is guilty. Having said that in my considered opinion, if the prosecution cannot establish a prima-facie case that most certainly means that the police did not have probable cause to support the arrest of the accused in the first place.
23. This Court has meticulously considered the Affidavit filed in support of the Application namely the averments contained in paragraphs 1 to 10 of the Affidavit in support of the Application, the submissions of Counsel for the Republic and Counsel for the Respondent in the matter, this Court finds that Ex-Facie the Affidavit, the prosecution has established a prima-facie case against the Respondent as regards to the remand Application.
24. Before this Court decides on the grounds of which the prosecution is relying upon to seek the remand of the Respondent, this Court reminds itself of the provisions of Article 19(2) of the Constitution which provides that’ every person charged with an offence is innocent until the person is proved or pleaded guilty and hence in this Jurisdiction a person is innocent until proven guilty.
25. Article 18 (7) of the Constitution provides that ‘a person who is produced before a Court shall be released either unconditionally or upon reasonable conditions for appearance at a later date for trial or for proceeding preliminary to a trial except where the Court having regard to the following Circumstances;

1. Where the Court is a magistrates Court, the offence is one of treason or murder;
2. the seriousness of the offence;
3. there are substantial grounds  for believing that the suspect will fail to appear for trial or will interfere with witnesses  or will obstruct the course of justice  or will commit an offence whilst on release;
4. there is a necessity to keep the suspect in custody for the suspect’s protection or where the suspect is a minor, for the minor’s own welfare;
5. the suspect is serving a custodial sentence;
6. the suspect has been arrested pursuant to previous breach of conditions of release for the same.

26. It is trite law from the above Article of the Constitution that an accused person has a right to bail Subject to the permissible derogations as provided for in Article 18(7) (a) to (e) of the Constitution. It is also the rationale of the law on bail that bail is the rule and remand is the exception.  That the Accused person should only be denied bail if the imposition of stringent conditions on the Accused person would not make such risk negligible such as risk of absconding of the accused person or risk to the administration of Justice.

27. In this case the prosecution has relied on the ground of the seriousness of the offence since the offence of importation of a controlled drug of which the Respondent stands charged carries a Sentence of life imprisonment with a minimum indicative sentence of 15 years imprisonment in the event of Conviction, the fact that a fictitious name was used  and having an inside man shows     that  it was an organized criminal operation with a commercial element involved because of the weight of the controlled drug allegedly imported into Seychelles namely 3968.27 grams of cannabis showing aggravating factors.
28. The other grounds of which the Republic is relying upon in seeking the remand of the Respondent is that in the event the Respondent is released on bail, there is a high likelihood of interference with witnesses and ongoing investigation since the commission of the offence involves a number of persons in Seychelles and elsewhere. Furthermore that there are reasonable grounds to believe that the said Respondent will fail to appear for trial or do other activity thus obstructing the course of justice if released in view of the seriousness of the offence and severity of the punishment for such offences and considering the Conduct of the Respondent in hiding and taking away the said FedEx carton without following through the process and procedure in order to avoid detection of the controlled drug inside the said carton.
29. I have meticulously considered the reasons given in paragraph 12 of the Affidavit in support of the Application relating to the grounds of which the prosecution is seeking for remand of the Accused Person and the submissions of both counsel for the Republic and Counsel for the Respondent. I have also taken into consideration the case of Beharry V/S Republic SCA 11 of 2009 which held that seriousness of the offence is not a ground standing on its own in order to remand the accused person. However this court notes that in distinguishing the case of Beharry (supra) the prosecution is relying on 3 grounds in seeking for the remand of the accused person.  This court finds that the prosecution has established to the satisfaction of the Court that the offences of which the Respondent stands charged is of a seriousness in nature in view of the severity of the sentence in the event of conviction since the said offence carries a maximum sentence of life imprisonment and a minimum indicative sentence of 15 years imprisonment in the event of conviction, the modus operandi in the commission of the offence showing an organized criminal operation with a commercial element  involved namely the alleged  importation of 3968.27 grams of cannabis herbal materials being aggravating factors in the case.
30. Although Counsel for the Respondent submitted to the Court that the accused voluntarily appeared in Court after being served with the summons, charge sheet and Application for remand after he was released by the magistrates Court, this Court finds that the prosecution has established to the satisfaction of the Court that as a result of the severity of the sentence of which the accused is facing in the event of conviction namely a maximum sentence of life imprisonment and an indicative minimum sentence of 15 years imprisonment in the event of conviction in view of the fact that 3968.27  grams of cannabis was allegedly imported into Seychelles, this Court finds  that the prosecution has established to the satisfaction of the Court that there are substantial grounds for believing that the Respondent will fail to appear for his trial and may abscond.
31. Furthermore in view that this case involves a number of persons in Seychelles or elsewhere and as a result of the alleged conduct of the Respondent in hiding and taking away the said carton box without following the process and the procedure, this Court finds that the prosecution has established to the satisfaction of the Court that there are substantial grounds for believing that the Respondent will otherwise obstruct the course of justice in the event that he is released on bail.
32. Hence as a result of the Court’s finding that all three grounds relied by the prosecution seeking for the remand of the Respondent being adequately substantiated, this Court finds that since the imposition of stringent conditions on the Respondent will not make such risk as risk of absconding or risk to the administration of justice negligible, this Court finds that the accused should be remanded into custody instead of being released on bail.
33. As a result of the above, this Court shall make the following orders;

1. I accordingly grant the Application and hence remand the Respondent into Custody.

Signed, dated and delivered at Ile du Port on 1^st September 2022.

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D. Esparon, J