20090911 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 78 OF 2009 DIRECTOR OF PUBLIC PROSECUTIONS ...... APPELLANT . VERSUS HSU CHIN TAI AND 36 OTHERS ............. . RESPONDENT Date of Last Order 4/9/2009 Date of Judgment 11/9/2009 JUDGMENT MWAIKUGILE, J. ) This is a Consolidation of an Appeal and a Cross - Appeal involving the Director of Public Prosecutions as an Appellant and thirty seven (37) Respondents in the DPP's Appeal as Appellants in the Cross - Appeal. They have been filed in this court against the ruling of the Resident Magistrate's Court at Kisutu in Preliminary 2 _Inquiry No. 4 of 2009 delivered on the 21st day of July, 2009 granting bail to the respondents. It will be convenient at this point to set out very briefly the background giving rise to this matter. The respondents through their learned counsel Mr Bendera applied to the Resident Magistrate's Court for bail pending trial. They made the application at a time when proceedings of a Preliminary Inquiry into a charge for contravening Section 18 (1) of the Deep Sea Fishing Authority Act, 1998 [ Cap 388 of the Revised Edition of 2002] as amended by Act No. 4 of 2007 read together with regulation 67 of The Deep Sea Fishing Authority (Regulations) of 2009 vide Government Notice No. 48 of 2009 and Section 10 (1) (a) and (3) of The Territorial Sea and Exclusive Economic Zone Act, 1989 [ Cap 238 of the Revised Edition of 2002] for fishing without a valid Licence and exploiting resources within the Exclusive Economic Zone of the United Republic of Tanzania without there being an agreement with the Government of the United Republic of Tanzania, were pending in that court. After hearing the parties' learned counsels and having carefully considered their submissions, the learned magistrate granted the application for bail on the 18th of June, 2009 and on the 21st of July, 2009 she imposed bail conditions to the effect that:- (i) The value I fish impounded by the Government, be held as security for the vessel and crew as 3 (ii) The crew should deposit U. S $ 250, 000/ = with the court and (iii) Each accused I crew to execute/ sign bond of U.S.D 25, 000/ = with two reliable sureties in like sum from their respective embassies here in Tanzania. The learned magistrate pointed out that the purpose of imposing such conditions was to make sure that the crew attend court during their trial. The Director of Public Prosecution was aggrieved by the ruling delivered on the 21 st of July, 2009 and preferred an appeal to this court listing four grounds of appeal in his memorandum of appeal which for ease of reference I reproduce them in full as hereunder:- ]. That the committal magistrate erred both in law and fact in holding that the. value I fish ( impounded by the government ) be held as security for the vessel and crew. 2. That the committal Magistrate erred in law to order diplomatic missions to stand sureties for the accused persons. 3. That, the committal Magistrate erred both in law and fact in holding that each accused I crew has to execute I sign bond of USD 25,000/= with two reliable sureties in the like sum from their respective Embassies here in Tanzania and 4. That, the Committal Magistrate erred in law by her failure to impose mandatory conditions provided by the Criminal Procedure Act, [ Cap 20 of Revised Edition 2002}. 4 The ruling was not only challenged by the Appellant Director of Public Prosecutions but also the thirty seven respondents were dissatisfied with same and lodged a cross - appeal to this court containing three grounds of appeal namely: 1. That the Magistrate erred in law by giving the 7th and 9th accused bail conditions as if they are part of the crew of the MFV Tawariq 1. 2. That the Magistrate erred in law and fact in holding that the fish impounded from the MFV Tawariq 1 be held as security for bail while neither the vessel nor the fish are lawfully held by the Republic. 3. That the Magistrate erred in law in issuing unreasonable bond condition of United states Dollars 250,000/= to be deposited in court contrary to Article 73 (2) of the United Nations Law of the Sea as incorporated vide Cap. 238 R. E. 2002. During hearing of the consolidated appeal Mr. Mganga learned State Attorney appeared for the Director of Public Prosecutions as appellant assisted by Mr. Nangela and Ms Chilongozi learned State Attorneys. Whereas the 7 th and 9 th Respondents were represented by Mr. Bubelwa learned counsel assisted by Mr. Samwel Shadrack learned counsel, the rest of the 35 respondents were represented by Mr. Bendera learned counsel assisted by Mr. Elias Nawela learned counsel. Mr. Nangela learned State Attorney addressed the court on grounds No. 1, 2 and 3 and Mr. Mganga learned State Attorney 5 . dealt with the fourth ground of appeal for the Director of Public Prosecutions hereinafter referred to as the DPP. On the first ground of appeal the gist of Mr. Nangela's submission is that the learned committal Magistrate was wrong in holding that the value of the fish impounded by the Government be used as security for the vessel and crew. According to the learned State ·Attorney fish impounded by the Government was categorized er"'-, as proceeds of crime, it was a gross error for the learned magistrate to use it as security to bail out the respondents in this case. In response to that, Mr._ Bubelwa for the 7 th and 9 th Respondent maintained that the learned committal magistrate was right in holding as she did so long as the alleged fish had value and did not belong to the government, the same could be held as security to bail out the respondents. Mr. Bendera learned counsel for the 35 respondents argued on his part that when the committal magistrate ordered that fish impounded be deposited as security that was quite in order and that was the common practice in maritime area to impose such condition. Both Mr. Bubelwa and Mr. Bendera maintained that there was nothing wrong with the holding by the committal Magistrate that the fish be held as security. Much as I greatly appreciate the submissions of the learned counsels for the respondents, I must confess right from the start that I am unable to share their view and am far from convinced. 6 _The respondents in this case have been charged on the first count with deep sea fishing without a valid Licence. It is alleged that using a marine Fish Vessel No. 68 Bu Young@ Tawariq I they fished 296.32 tons of fish yalued at Shs. 2,074,240,000/=. The fishing according to the charge sheet was done within the Economic Exclusive Zone without a valid Licence as well as without there being an agreement with the Government of the United Republic of Tanzania. That is a criminal offence both under Cap. 388 as well as Cap. 238. Fish being suggested by the Committal Magistrate to be held as security is a proceed of crime, leave alone that it is not their property. It is still in dispute; it has not yet been determined by the court that it is their property hence cannot be used as security by them. For the foregoing reasons, I find the 1 st ground of appeal has merit and I allow it. On the 2 nd and 3 rd grounds which were argued together, Mr. N angela learned State Attorney contended that associating bail conditions with members of the Diplomatic Missions or executing a bond of Usd. 25,000/= on behalf of the respondents, was considered to be wrong in law particularly when we consider the issue of immunity of the displomatic premises as well as its staff. Both Mr. Buberwa and Mr. Bendera argued on their part that the condition imposed did not say diplomatic staff to stand surety but simply said will execute or sign abond of USD 25,000/= with two reliable sureties in like sum from respective embassies. . 7 Looking at the aspect of the practicle implementation of the bail condition imposed, I find doubly difficult to carry it out. For example in a case where the accused has jumped bail, it is not easy to secure the presence of the surety in court from the Diplomatic mission, to show cause why bail bond should not be forfeited. There is no free entry on to diplomatic mission premises. Leave alone that, the Diplomatic mission has immunity to the jurisdiction of the court hence cannot be held accountable to any offence. That said and for the foregoing reasons I find grounds No. 2 and 3 have merit and I do allow the same. On the 4 th ground of appeal, Mr. Mganga learned State Attorney contended that failure to impose mandatory bail condition as provided for under Section 148 (5) (e) and (6) of the Criminal Procedure Act, 1985 [ Cap 20 of R. E. 2002] was gross misdirection on the part of the learned Committal Magistrate. The law is very clear and imposes a mandatory obligation when dealing with admitting an accused person to bail. Section 148 (6) of the Criminal Procedure Act [ Cap. 20 R.E. 2002] provides quite clearly that: " 148 - (1) (2) (3) (4) (5) 8 (6) Where a court decides to admit an accused person to bail, it shall impose the following condition on the bail namely: (a) Surrender by accused person to the Police of his passport or any other travel document and (b) restriction of the movement of the accused to the area of the town village or other area of his residence." When imposing bail conditions, the learned magistrate ignored and disregarded the mandatory bail conditions provided for under the Criminal Procedure Act, Cap. 20 R. E. 2002. That was wrong in law. Mr. Bubelwa in his reply submission to the 4 th ground strongly argued that Section 148 of the Criminal Procedure Act was not the controlling section on bail. He said Article 73 (2) of Cap. 238 was the relevant provision relating to bail in this particular case. He maintained that the learned magistrate rightly considered bail under Article 73 (2) of Cap. 238 of 2002. With due respect to the learned counsel, the correct provision under which bail was supposed to be considered in this case was Section 148 of Cap. 20 as rightly submitted by the learned state counsel for the Appellant. The Criminal Procedure Act, Cap. 20 of the Revised Edition of 2002 was the relevant and applicable law in the circumstance of the case. 9 · The committal magistrate erred 1n law in failing to impose mandatory bail conditions clearly provided under Section 148 of the Criminal Procedure Act, Cap. 20 in general and sub-sections 5 (e) and (6) in particular. Section 148 (5) (e) of the preceding statute applies to the circumstance of this case in that the value of the property involved exceeds ten million shillings. It is a mandatory bail condition under the preceding section that the respondent deposits cash or other property equivalent to half the amount or value of actual money or property involved and the rest is secured by execution of a bond. The learned committal magistrate was in my humble considered view clearly in error in failing to direct her mind to this mandatory provision of the law on the issue relating to admission of accused persons to baiL Section 148 (6) of Cap. 20 sets out the mandatory bail conditions which after the learned committal magistrate had decided to admit the accused persons to bail, the conditions indicated in the said section were supposed to be imposed on them as a matter of law. That is not discretionary, it is mandatory. Failure on the part of the learned committal magistrate to strictly comply with the mandatory requirement of the law was a clear violation of the law. I am satisfied and do find that the learned magistrate erred in law in failing to impose mandatory bail conditions provided by law. I find the fourth ground of appeal has merit and I allow it. 10 With regard to the first ground of the cross - appeal, Mr. Bubelwa forcefully argued on his part that the 7th and 9th Appellants deserved different treatment from the rest of the appellants on the issue of bail conditions imposed on them on the ground that at the time the fishing vessel was arrested at sea, the aforesaid two appellants were not part of the crew on board the alleged vessel. They were not arrested together with the rest of the crew because they travelled to Dar es Salaam from Nairobi using different means of transport. They traveled by air. That said and for the foregoing reasons, the learned counsel submitted that the first ground of appeal has merit and prayed to this court that the same be allowed. Mr. Mganga learned state counsel for the respondent in his reply submission responded with equal force and submitted that the issue to be considered and determined by this court is not whether the two appellants were arrested together with the crew on board the fishing vessel but rather, whether the said appellants were a party to the offence charged with. He argued, rightly so in my view, that the issue of whether the said two appellants were arrested together with the rest of the crew was irrelevant at this stage because that is a matter of evidence to be adduced by prosecution witnesses in the course of the trial of the main case. It is not in dispute that the 7 th and 9 th appellants were jointly charged with the rest of the crew. They, being a party to the offence charged with, I for one am unable to share the view expressed by the learned . 11 _ counsel for the said appellants that they deserve to have been given different bail conditifns from the rest of the appellants. I find that there is no basis for so doing because they are a party to the offence charged with. I find that both of them deserve equal treatment and the committal magistrate was quite right and perfectly in order to impose the same· bail conditions on all the (37) thirty seven appellants. In the result and on the basis of the reasons given hereinabove I find the first ground of the cross - appeal has no merit and I dismiss the same. Submitting on the fourth ground of the appeal Mr. Bendera learned counsel for the rest of thirty five (35) respondents contended that the Criminal Procedure Act, 1985 Cap. 20 of the Revised Edition of 2002 was not applicable for grant of bail. He went on further and contended that the relevant and applicable provision was Article 73 (2) of Cap. 238. This court was referred to the MV "SAIGA" CASE as an authority for application of Article 73 (2) of the preceding statute for grant of bail in cases of this nature. I have had occasion to carefully study the aforesaid cited case and found that it was distinguishable to the case at hand. It is not on all fours with the present case. In the MV "SAIGA" CASE between SAINT VICENT AND THE GRENADINES and GUINEA, Case No. 1 of 1997: The Agent of Saint Vicent and the GRENADINES filed in the registry of the Tribunal by facsimile an Application under Article 292 of the United Nations Convention on the Law of the Sea ( herein after "the .convention" )instituting proceedings against Guinea in respect of a dispute concerning the prompt release of 12 the MV "SAIGA" and the crew. In the case at hand, the issue involved revolves round an appeal against bail conditions imposed by the committal court. In the present case there was nothing like a dispute involving the prompt release of the fishing vessel No. 68 BU Young@ Tawariq 1 or its crew. There was no application made in this case by or on behalf of the flag state of the vessel. The fact of these two cases do differ and they are not one and the same. It is for that reason that I said MV "SAIGA" Case was distinguishable to our case and the grant of bail is in my considered view governed by the mandatory bail condition provision under the Criminal Procedure Act, 1985 Cap. 20 R.E. 2002. That said and for the foregoing reasons I find the fourth ground of appeal has merit and do allow the same. On the first ground of the cross - appeal, the learned counsel gave submission which are quite similar in material particular to that of Mr. Bubelwa learned counsel for the 7 th and 9 th Appellants and for avoidance of tautology I refrain from recapitulating it here. There learned state counsel, Mr. Mganga also argued and maintained similar position when responding to the submissions of Mr. Bubelwa for the 7 th and 9 th Appellants. It is for the same reasons that since both the 7 th and 9 th appellants were jointly charged with the rest of the appellants, the learned committal ' magistrate was perfectly right to impose uniform bail conditions on all the thirty seven appellants. The said two appellants deserve the 13 . same bail conditions as those imposed on the rest of the 35 appellants. That said and for the foregoing reasons, I find the first ground of the cross - appeal to have no ·merit and I dismiss the same. Coming to the 2 nd ground of the cross - appeal, Mr. Bendera contended on his part that the vessel was not lawfully apprehended. He submitted that there was no seizure notice filed at committal proceedings stage hence prayed that the second ground be allowed. Mr. Mganga strongly argued that the issue of legality of arrest of the fishing vessel was not an issue at this stage. He argued quite rightly so, that the same will be dealt with and considered during trial of the case when witnesses will testify to establish the issue of legality of the arrest of the vessel. Indeed it is premature to advance such ' argument at this point and for that reason I dismiss the second ground of the cross - appeal. Finally, on the third ground of the cross appeal none of the two learned counsels contested. They all conceded that the learned committal magistrate erred in law as there was no basis upon which she derived the figure of U.S. Dollar 25,000/=. It has not been established as to how she arrived at the aforesaid figure and for that reason alone I allow the third ground of the cross - appeal. 14 Be that as it may, having carefully gone through the entire parties', submissions and having considered the same, I have reached a settled view that the appeal has merit and do allow it. However, with regard to the cross - appeal, for reasons given herein above the same partly succeeds on the third ground otherwise dismissed on the rest of the grounds. N. waikugile JUDGE 11/9/2009 Delivered 1n open court this 11 th day of September, 2009 in the presence of Mr. Mganga assisted by Mr. Nangela and M/S Chilongozi learned State Attorneys, for the Appellant Director of Public Prosecutions, Mr. Bubelwa assisted by Mr. Samwel Shadrack learned counsels for the 7 th and 9 th respondents and Mr. Bendera assisted by Mr. Elias Nawela learned counsels for the rest of the respondents. '-, '-c:Q_ i,t--------1-'J../ JUDGE 11/9/2009 ,f 15 if. ORDER: Bail granted to all respondents on the following conditions : 1. All the 37 respondents should surrender their passport to the Police (RCO - flala Zone). 2. They should not leave outside Dar es Salaam without written permission of the District Registrar, High Court, Dsm Zone. 3. Each respondent should deposit cash half the value of the fish which is shs. 1,037,120,000/= and secure the remainder by executing a bond with two reliable sureties in like sum. Sureties to be approved by the,District Registrar, High Court, DSM Zone.