20160314 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM REGISTRY MISC CRIMINAL APPLICATION 16 OF 2016

BUI VIET HOA vs

REPUBLIC

RULING Bui Viet Hoa, the applicant is applying for bail pending trial of Economic Crime Case No. 6 of 2016 before the Court of Resident Magistrate of Dar es Salaam at Kisutu. The application is filed by way of chamber summons pursuant to section 148(3) of the Criminal Procedure Act, Cap 20 R.E 2002 and Section 24 of the Written Laws (Miscellaneous Amendments) Act, No. 3 of 2011 together with Section 36(1) of the Economic and Organized Crime Control Act, Cap 200 R.E 2002. The application is supported by an affidavit deposed by Bui Viet Hoa, the applicant and it seeks the following prayers: 1. That the Court be pleased to admit the Applicant to bail pending trial of Economic ,_-, \ 6 Crime Case No. 6 of 2016 2. Any orders this Honourable Court may deem fit and just to grant and Costs to follow events At the hearing of the application, the applicant was represented by Mr. Jamal and assisted by Ms Aisha Sa1ehe learned Advocates and the Respondent Republic was represented by Mr. Wankyo learned State Attorney. 1 In Economic Crime Case No. 6 of 2016, now pending at the Court of Resident Magistrate of Dar es Salaam at Kisutu, the applicant herein is charged with Unlawful Possession of Government Trophies contrary to section 86(1)(2) (c)(ii) and (3)(b) of the Wildlife Conservation Act No. 5 of 2009 read together with Paragraph 14(d) of the First Schedule to, and Section 57(1) of the

Economic and Organized Crime Control Act, Cap 200 R.E 2002. Particulars being that the applicant was found in possession of Government Trophies, to wit, 5 lion claws, 4 lion teeth valued at US Dollars 4900.0 equivalent to Tshs. 10,647,700/- the property of the United Republic of Tanzania without the permit from the Director of Wildlife Division. Pursuant to the oral submissions by the Counsel for the applicant and the contents of the affidavit, the main thrust of the application is what is stated in paragraphs 4, 5 and 6 of the affidavit, that is, that on 29th of January 2016 to the date of the application, that the applicant has been sick, suffering from Malaria and diarrhea and was still on treatment. The applicant contended that his health condition was deteriorating while in remand prison. The applicant provided a copy of medical shit for an outpatient showing that he had fever, diarrhea and was vomiting and that the patient seemed to be a bit dehydrated, the said medical shit is dated 30th January 2016. The applicant also expounded that the offence is bailable and he is ready to comply with the conditions for bail and that he has reliable sureties to guarantee his appearance in Court during the trial. The applicants counsel submitted that because his health condition was deteriorating therefore prayed to the Court to admit his client to bail relying on the case of Amin

Mohamed vs. R, Criminal Appeal No. 170 of 2004, where the Court allowed the applicant to bail pending appeal for reason of sickness. On the issue of the offence for which the applicant is charged being bailable the counsel for the applicant in amplification of what is averred· in the applicants affidavit, stated that, the offence not being barred under the relevant 2 section, the applicant should be granted bail, citing a number of decisions such as Misc, Criminal Application No. 34 of 2008, Brown Joseph Undule and 5 Others vs. Republic, where Hon. Mihayo J (as he then was) stated that "Bail in bailable offences should be a matter of principle be available to a suspect as soon as amicable, if that suspect can meet the conditions thereof'. The other Case cited was Criminal Application No. 19 of 2008, MT 80186 PTE Henry Mwisongo vs. R, where Hon. Rugazia J. granted bail. The applicant Counsel further asserted that so long as the applicant has a place of abode in Dar es Salaam and has reliable sureties, the Court has a duty to grant bail pending trial. On the part of the Respondent Republic, in their rival submissions, they prayed that the counter affidavit filed should be adopted to be part of their submissions. Taking the contents of the Counter affidavit filed and the oral submissions, the respondents argument was for the Court not to grant bail to the applicant because the

offence charged is serious and upon conviction with a stiff penalty of a possible sentence of 20 to 30 years in jail and payment of ten times the value of the trophy an accused person is found in possession and therefore asserted it is a serious offence which can lead to an accused to abscond and fail to appear during the trial which was yet to start. The respondents submitted that the averment that the applicant is sick has not been substantiated by any documentary evidence, and the issue of whether the applicant had a fixed abode in Dar es Salaam was contentious. That the applicant was arrested at the airport while departing to his home country, Vietnam. The case of Edward Kambuga vs Republic (1990) TLR 84 was cited which held that "while we agree that foreigners should not be treated differently in our courts merely because they are foreigners , we think the High Court was entitled to take into account past experience when deciding finally whether or not to grant bail." The other case cited was that of HSu Chin TAi and Others vs. Republic, where the Court denied bail taking 3 into consideration the seriousness of the offence and the fact that the applicants were foreigners and without fixed abode. The Learned State Attorney argued that the present situation is similar, whereas the applicant is a foreigner without a fixed abode. That the averment by the applicant that he

lives at Plot no. 20 Mikocheni, without showing which activities the applicant is engaged in the Country to enable the Court assess whether the resident if any is permanent or not leaves a lot to be desired. The cited case by the applicants on granting bail where the applicant is sick, the Respondent Republic argued is distinguishable because in that case the reasons for sickness were clearly shown which is not the case presently. That the other case cited, involved a certificate of the DPP to deny bail which was later withdrawn. The applicants rejoinder was reiterating what they had submitted before and that the assertion of the sickness of the applicant has not been disputed by the respondents. That the ground of the seriousness of offence is not a ground to deny bail and in any case an offence of this nature is not a serious offence recognized by the law since it is not one of the prohibited offence under section 148(5) of the Criminal Procedure Code, Cap 20 R.E 2002. The applicants counsel submitted the case of Edward Kabuga cited by the Republic is bad law because it treated the accused like a convicted person nor is there any law prohibiting foreigners from being granted bail and section 36(4) of the EOCC is clear on conditions which one can be barred from being granted bail and being a foreigner is not one of the conditions. That in fact section 36(5) of the EOCC sets

surrender of passport as one of the condition for the grantee of bail to fulfill, that this envisaged a foreigner being granted bail. The counsel for the applicant submitted that the applicant has a fixed abode at Mikocheni and he has stated he can get reliable sureties to guarantee his appearance for trial submitting the application has merit and the applicant should be granted bail, 4 Bail is a procedure by which the Court sets at liberty one who has been arrested or imprisoned, upon receipt of security to ensure the released prisoner's later appearance in Court for further proceedings .. The principal use of bail in modern legal systems is to secure the freedom, pending trial, of one arrested and charged with a criminal offense, although it may also be used in some cases to secure release pending an appeal of a conviction. In general, the threshold for bail pending trial tends to be lower because of Article 13 (6) (b) of the Constitution of the United Republic of Tanzania which underscores the presumption of innocence and therefore every person who is charged with a criminal offence is presumed innocent, until he is proved or has pleaded guilty. The Provisions of Article 15 (2) (a) and (b) which guarantees personal freedom, subject of course to the provisions of the laws of the land. In deciding whether or not to grant bail pending trial, the primary concern for the Court is

to satisfy itself that if an accused is granted bail is he or is she likely to attend Court at the resumed hearing. The institution of bail, therefore, falls on the positive side of the principle of presumption of innocence which we all cherish (see Criminal Appeal No. 168 of 2012, The DPP vs Bashir Waziri, Mugesi Antony CAT at Mwanza). In the case before us, the fact that the applicant faces at Resident Magistrates Court of Dar es Salaam at Kisutu an economic offence of unlawful possession of Government Trophies is not in dispute. Having reviewed the application, this Court is satisfied that it has been properly moved and therefore can proceed with consideration and determination of the application. The value of the subject matter of the charge is Tshs. 10,647,700/- beyond the jurisdiction of the Resident Magistrates Court by virtue of Section 29 (4)(d) of the Economic and Organized Crimes Control Act, Cap 200 R.E 2002 is bounded by jurisdiction to determine this bail application. It is trite law that, in determining a bail application before it, a Court must satisfy itself of there being cogent reasons for granting or refusing bail 5 since in any case the main purpose of remanding a suspect or accused is to ensure his appearance in court on each and every day that the case is called in Court. The main factor being that refusal to grant bail should not be punitive (See Prof.

Costa Ricky Mahalu and Grace Alfred Martin vs. The Attorney General, Misc Civil Cause No. 35 of2007- HC Dar es Salaam unreported). The purposes of bail pending trial in criminal cases are to avoid inflicting punishment upon an innocent person (who may be acquitted at trial) and to encourage the unhampered preparation of his defense. The amount of bail is generally set in relation to the gravity of the offense charged and the likelihood of flight, although some Courts take into account other factors, such as the strength of the evidence, the character of the accused, and the ability of the accused to secure bail. In this application the applicants have stamped on reasons why they feel bail is warranted in this case while the Respondent Republic has also presented serious facts on why the Court should not deny bail. This Court taking into consideration the averments by the applicant, that he is ·of ill health and has been since being put under custody, this Court on further consideration of this fact, feels it does not hold water because the medical shit was at the end of January and one cannot say that the bout of Malaria and diarrhea will continue up to now. On being asked this question by the Court, whether the applicant was still sick at the time when they presented oral submissions, the applicants response was vague. Therefore, it suffice to say, this Court feels that reason

has been overtaken by events. Even if for the sake of argument the Court was to consider any ill health of the applicant, it is obvious that, such illness must be of such an extent to warrant need for medical attention or care outside the premises of prison. The malaria and diarrhea is something treatable within the prisons premises. The case cited by the applicant to substantiate this 6 ground Amin Mohamed vs. Republic, Criminal Appeal No. 170 of 2004. In that case the Court was satisfied that the illness of the applicant was sufficient cause to grant bail pending appeal, and at the same time the case is distinguishable being one of bail pending appeal which as we know requires different considerations. The Court also found the type of illness is one which cannot be controlled when one lives in prison conditions. The next ground to warrant this application was the averment that the applicant has fixed abode, Unfortunately, the affidavit of the applicant does not expound on this, what it avers is that the applicant has reliable sureties. It is during oral submissions that the applicants counsels submitted that the applicant lives at plot no. 20 Mikocheni area. It is important to remember that what is contained in the affidavit is the evidence and n_ot what is submitted during oral submissions. Even what was submitted during oral submission is not clear, where is this plot no.

20 Mikocheni? it is still vague. Where does the applicant work? Does the applicant have a resident/working permit? All these facts were not alluded to in Court.There is no dispute that the applicant is Vietnamese and not Tanzanian, and being guided by the findings in the case of Edward Kambuga and another vs. Republic (1990) TLRB4 that while foreigners should not be treated differently in our courts merely because they are foreigners but that a Court should take into account past experience when deciding finally whether or not to grant bail. Also in consideration of the fact that grant of bail pending trial is geared at ensuring that the suspect or accused appears for trial hearing. Taking consideration of all the matters surrounding this application, the fact that the applicant has failed to establish as a foreigner whether he has a fixed abode or has known employment station, and bearing in mind the serious offence the applicants faces in view of the possible penalty, there is nothing to rule out the 7 possibility of the applicant absconding and avoiding the due course of justice. In the event, having considered all these factors, this Court finds that there are no plausible reasons to grant bail to the applicant in view of what has been stated aj)ove. Therefore the application .., is hereby dismissed. Order Accordingly. //~·\) V. 0~,:'1-~ . ~ , (., ,:,fiii;," ,t:s, . t.~M!>' ,. ,',c.,.'\ ,)i A, . -"' ,~·;; t .~;-{~~<i :-~½ - f'~''iii,,"'' ., .~z\ . Winfrida B. Korosso ,-s- 1. ~ii . .- ;: ' Judge ~.. '~ .· / ·J 14th March 2016 ~~/ 8