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A CHINESE national who was arrested in 2019 for allegedly trying to leave the country with US$213,500 (TT$1.45 million) has been granted $1 million bail by the Court of Appeal because of the uncertainty over getting his case started in the magistrates’ court.
At a status-progression virtual hearing on Tuesday, Justices of Appeal Mark Mohammed, Gillian Lucky and Mira Dean-Armorer agreed to grant Xiaofu Hu bail because of the “slow pace (at which) the case is proceeding” in the lower court.
Mohammed said this represented a material change in circumstance to allow the court to consider the grant of bail.
In September last year, the Appeal Court had upheld a Master’s ruling to deny bail to the Chinese/ Surinamese national, who holds a Surinamese passport, because he had insufficient ties to TT, and was considered a flight risk. Hu had been charged with money laundering and attempting to export a prohibited item. The money was allegedly found in the lining of his suitcase.
On Tuesday, the judges, in an oral decision, said under “anxious consideration,” they were of the unanimous view that while the failure to advance the matter in the magistrates’ court cannot be laid at the feet of the prosecution, it represented a material change.
To be eligible for a bail review, the prisoner must be able to prove that there was a material change in circumstance or that an error of law was made at the original bail hearing.
Mohammed explained that after first denying Hu bail, the court had decided to hold periodic reviews to ascertain the progression of the matter in the lower court.
In their ruling, Mohammed said the changes which warranted the review included the length of time the matter has been under appellate scrutiny, especially for an offence laid in 2019; that the allegation did not seem unusually complicated; and because of the uncertainty in starting the matter.
He said because of the “overriding interest of fairness,” the time had come for the court to revisit its decision on bail.
As part of their conditions, Cunupia vet Dr Anil Ramnanan will stand as surety for Hu and will also provide him with a place to stay, after another person who had first promised to house him backed out for “moral and ethical” reasons and because he had had a heart attack last year and could not “go through with all of this.”
Hu is also expected to report to the Cunupia police station three times a week.
Ramnanan was told of his duties as a bailor, and warned that his property, equivalent to the sum of the bail, can be forfeited if Hu fails to adhere to the bail conditions.
Hu’s Surinamese passport is already in the police’s custody and the money is with the Treasury as part of a forfeiture application. Hu’s attorney said he only had a Surinamese passport, having had to give up his Chinese one.
At the start of the hearing, Hu’s attorney Henry Chase said between last year and now, the matter had been called once in January, but adjourned because the accused was in quarantine because of a chicken-pox outbreak at the prison. It was adjourned to later this month. He also said objections were made to the Mandarin interpreter being used at the trial and no directions had been given by the magistrate.
“The delay has been inordinate. This case calls for justice and fairness,” he submitted.
Senior state attorney Nigel Pilgrim disagreed that the matter was not progressing, saying the State had already filed and served all statements; witnesses for cross-examination were listed and evidential objections filed. He said it was far more realistic now to get a trial date, and said the magistrate's failure to give directions in January was because Hu was in quarantine. He said that should not be used as an argument for bail.
He said he could not see how the court could set timelines when the prisoner was in quarantine and there was uncertainty surrounding that while the issue of the interpreter was one for the court. But, he said, there was someone else who interprets Mandarin, but she will have to be approved by the magistrate.
Pilgrim explained that the issue with qualified interpreters was that they are owed payment for their services, “so people with that rare skill are hesitant to come forward unless those bread-and-butter issues are dealt with.”
Hu is expected to return to the magistrates’ court on March 23.
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