Republic v Kilindo (CO 36 of 2022) [2023] SCSC 117 (7 February 2023)

ESPARON J

1. Counsel for the prosecution moved for leave of this Court to amend the charge against the accused person by way of substituting of the second count from one of agreeing with another person to commit an offence of importation of a controlled drug contrary to section 16 (a) and section 5 of the Misuse of Drugs Act to a charge of trafficking in a controlled drugs contrary to section 7(1) of the Misuse of Drugs Act and by adding a third count to the indictment that is, a charge of aiding and abetting in the trafficking of a controlled drug.

SUBMISSIONS OF COUNSELS

2. Counsel for the accused person objected to the said amendment of the charge on the ground that the amended charge does not provide sufficient particulars so that the accused can understand the nature of the charge and as a result, such amended charge being filed are not in accordance with the constitution.
3. Counsel for the accused submitted to the Court that count 1 of the amended charge filed, does not give sufficient particulars in the sense that it does not say in what way the accused caused the said drugs to be imported into Seychelles.
4. As regards to Count 2, counsel for the accused submitted to the Court that the said count does not give sufficient particulars as regards to what is the act preparatory which the accused did for the purpose of transporting or delivering the said controlled drugs and further, what is the act of transporting or delivering that the accused did.
5. As regards to Count 3, counsel for the accused submitted that, the amended charge filed does not say with certainty as to whom is the person of which the accused person aided and abetted.
6. Counsel for the Republic submitted to the Court that the said amended charge filed, contains sufficient particulars and there is no violation of the constitution of which the prosecution has no obligation to go further than that in drafting of the amended charge.
7. This Court hereby reproduced the amended charge filed, dated 06th February 2023;

COUNT 1

Statement of offence:

Importation of a controlled drug contrary to section 5 of the Misuse of Drugs Act, 2016 and punishable under the second schedule as read with section 48(1) (a) of the Misuse of Drugs Act.

Particulars of offence:

Alvin Kilindo, 28 years old, driver of FedEx and resident of Anse Royale, Mahe, on the 11th August 2022, imported into Seychelles a controlled drugs namely cannabis (herbal materials) with a total net weight of 3968.27grams by causing the said controlled drug to be imported into Seychelles through the airport cargo, pointe Larue, Mahe, in a FedEx parcel addressed to one Gabriella Solovski C/o of Petit Amour Villa Colibri Apt Sorento, Glacis and bearing tracking number  77758102285, by way of using the facility of FedEx courier service in contravention of the Misuse of Drugs Act.

COUNT 2

Statement of offence

Trafficking in a controlled drug by doing an act preparatory to or for the purposes of transport and/ or deliver the same contrary to section 7 (1) as read with section 7(4) and the second schedule of the Misuse of Drugs Act, 2016.

Particulars of Offence

Alvin Steven Kilindo, 28 years old, driver with FedEx and resident of Anse Royale, Mahe, on the 11th August 2022, at the Airport Cargo, Pointe Larue, Mahe, committed an act preparatory or for the purposes to transport and/ or deliver a controlled drug namely cannabis (herbal materials) having a total net weight of 3968.27 grams, contained in a FedEx parcel addressed to one Gabriella Solovski C/o Petit Amour Villa Colibri Apt Sorento, Glacis and bearing trafficking number 777588102285

COUNT 3 IN THE ALTERNATIVE TO COUNT 2

Statement of offence

Aiding and abetting another person to commit an offence of trafficking in a controlled drug contrary to section 15 (1) (a) and (c) of the Misuse of Drugs Act, 2016 and punishable under section 7 (1) as read with section 7 (4) and the second schedule of the Misuse of Drugs Act, 2016.

Particulars of offence

Alvin Steven Kilindo, 28 year old, driver of Anse Royale, Mahe, on 11th August 2022 at the Airport Cargo Pointe Larue, Mahe, was aiding and abetting another person unknown to the republic to traffic a controlled drug namely cannabis (herbal materials) having a net weight of 3968.27 grams, contained in a Fedex parcel addressed to one Gabriella Solovski, C/o of Petit Amour Villa Colibri Apt Sorento, Glacis and bearing tracking number 7775810285 by doing a preparatory Acts for transporting and delivering the said controlled drug.

THE LAW

8. Article 19 (2) (a) of the Constitution provides that, “every person charged with an offence shall be informed at the time the person is charged or as soon as is reasonably practicable in as far as practicable in a language that the person understands and in detail of the nature of the offence.”
9. Section 111 of the Criminal Procedure Code provides that, ‘every information shall contain and shall be sufficient if it contains a statement of the specific offence or offences which the accused person stands charged together with such particulars as may be necessary as to the nature of the offence charged.’
10. The effects of Article 19 (2) (a) of the Constitution and Section 111 of the Criminal Procedure Code is that the charge should contain sufficient particulars for the accused to understand the nature of the offence that lies against him.

DETERMINATION

11. The relevant provision of the law as regard to Count 1 of the amended charge is Section 5 of the Misuse of Drugs Act which is read as follows:

“A person who imports or exports a controlled drugs in contravention of this act, commits an offence and is liable on conviction to a penalty specified in the second schedule.”

12. A cursory look at the above provision of the law will show that the word ‘importation’ is not defined under any provision of the law but rather such a word has been interpreted by case law.
13. In the case of R v Dubignon [1988]  SLR 52, the Court held that, “Import” must be taken in a broader sense of “bring” or caused to be brought” by sea or by air. The court further held that “if the prosecution succeeds in proving a preparatory act was done by the accused or through an agent, the offence of importation can be maintained.’
14. As a result of the above interpretation of the law, this Court finds that by the prosecution not averring in the amended charge sheet in what way the drugs were caused to be imported in Seychelles does not violate Article 19 (2) of the Constitution nor the provision of Section 111 of the Criminal Procedure Code in not giving sufficient particulars since such an averment would be just a surplussage and it has to be proved by evidence in court and would not embarrass nor cause prejudice to the accused in his defence. In view of the obligation of disclosure of the full docket by the prosecution, this Court further holds that in any case, the charge is not fundamentally defective and is curable. In fact, when one reads count 1, I find that the said surplussage as described above, as it is averred in Count 1 that the accused caused to imported, was done using the facilities of FedEx.
15. As regards to Count 2 of the amended charge, the relevant provision of the law is section 7 (1) as read with section 2 of the Misuse of Drugs Act, 2016.
16. Section 7(1) of the Misuse of Drugs Act, 2016 provides that a person who traffics in any quantity of a controlled drug whether on his or her own, behalf or on behalf of another person whether the person is in Seychelles or not, in contravention of this Act, commits an offence of trafficking of a controlled drug.
17. Trafficking is define under section 2 of the Misuse of Drugs Act and reads as follows:

“Traffic” means,

1. to sell, broker, supply, transport, send, deliver or distribute.
2. to offer to do anything mention in paragraph (a); or
3. to do or offer to do any act preparatory to or for the purposes mentioned in paragraph (a) and

“trafficking” has a corresponding meaning.

18. In view that it has been averred in Count 2 of the amended charge that he accused committed an act preparatory to trafficking or for the purpose of transport and/or deliver a controlled drug as defined in section 2 of the Misuse of Drugs Act, this Court finds that the prosecution has not violated the provisions of Article 19 (2) of the Constitution and Section 111 of the Criminal Procedure Code in not averring sufficient particulars for the accused to understand the nature of the offence.  In the event that the prosecution would have done so, it would have been simply a surplussage in order to say in what way this has been delivered or transported.  Hence, it would not make the charge fundamentally defective and is curable in any event. 
19. As regards to the 3rd objection raised by counsel for the accused that the prosecution has averred in the charge sheet that the accused aiding and abetting another person unknown to the republic, this Court is of the view that this is permissible in law and does not make the charge sheet fundamentally defective whereby if such a person is unknown to the Republic but the prosecution can adduce evidence of the existence of such person but it is unknown as to the exact identity of the person. This is permissible in law.
20. The averment in the amended charge as to Gabriella Solovski is only to the fact that the parcel was addressed to such a person and the prosecution does not need to elaborate on it in the charge sheet since it is of no relevance to the person which is unknown to the Republic.
21. Since this Court finds that the charges in the amended charge are not fundamentally defective and that the prosecution have disclosed sufficient particulars to enable the accused to understand the nature of the offence that lies against him, this Court hereby grants leave to the prosecution to amend the charge by substituting Count 2 with a count of trafficking in a controlled drugs as per the amended charge sheet and by way of addition, by adding a 3rd count to the charge sheet namely, aiding and abetting in the trafficking of controlled drugs as per the amended charge filed.

Signed, dated and delivered at Ile du Port on 07th February 2023.

D Esparon J