Read judgment (Soopramanien v R)
The first of the two judgments illustrating the sinister trend of using people as ‘drug guarantees’ emerges in the case of Samson v R in which Vincent Samson appealed against his conviction on two counts, aggravating trafficking and trafficking.
The sad story behind the appeal judgment was that Samson had ‘recruited, transported or transferred’ Marlon Bertin from Seychelles to Iran or Pakistan where Bertin’s function was to be a ‘drug guarantee’. Decoded, this means that he became a physical hostage for the payment of money for drugs provided to dealers in Seychelles by exporters in Iran or Pakistan. During the legal process it became clear that Bertin’s family fears for his safety and that he may no longer even be alive.
Considering the appeal, the apex court made a significant finding: while Samson had been found guilty of ‘aggravated trafficking’ (as well as of the separate crime of ‘trafficking’), there was in fact no such separate crime as ‘aggravated trafficking’ in Seychelles. Instead, the law states that an offence of trafficking a person is ‘deemed to be aggravated’ in the circumstances set out in a particular section of the law, and where this happens, there is provision for an ‘enhanced sentence’.
Though the conviction and sentence in relation to the offence of ‘aggravated trafficking’ was therefore set aside, the court found that Samson’s conviction for trafficking should stand.
The court further found that Samson had lied in much of his evidence about what happened to Bertin, and that Samson had organised for Bertin to get a passport and a plane ticket and had even taken him to the airport when he left Seychelles to carry out his function as ‘drug guarantee’. In addition, even if, as Samson’s legal team argued, Bertin had ‘consented to go’ as a guarantor of drugs, this would not be a defence under the Prohibition of Trafficking in Persons Act.
Further, the ‘use’ made by Samson of Bertin’s vulnerability – he was a drug addict – also meant his actions fell under the trafficking legislation. The court president, Anthony Fernando, wrote, ‘I am of the view that deception and making use of another person’s vulnerability can be inferred from facts and the circumstances of the case, especially where the victim of trafficking is dead and not available to testify in court.’ The court also noted that it was not necessary for the victim of trafficking to have to testify in such a case, but that a conviction could be based on other evidence.
As to the 10-year sentence for trafficking, there had been no appeal against it but the court still had something to say. Fernando agreed with the sentencing judge who wrote that, ‘human trafficking is a crime where the victim is sapped of all human dignity; where he/she is treated as a mere object, just as happened in this case. There was no respect for the life of Marlon Bertin. As a society we cannot condone such acts and the court has to impose a sentence that sends a clear message to those who have been involved or are contemplating such acts that the law will show no mercy on them.’
Had there been an appeal against sentence, he would have been inclined to increase it, said Fernando.
The second case heard by the court of appeal dealt with three Seychellois men convicted and sentenced under anti-drug laws as well as anti-trafficking legislation.
The drugs over which they were prosecuted were heroin and cannabis, imported from Iran on a dhow, in quantities not seen in Seychelles before. The accused were also involved in recruiting fellow Seychellois, Andy Bistoquet, for the purpose of being ‘transferred to Iran as a drug guarantee’.
What this meant is that, as in the Samson case, the three accused did not have the money to pay for the drugs they imported. They thus offered up Bistoquet as a kind of hostage for their subsequent payment. A first attempt to get the drugs and deliver Bistoquet failed. On the second attempt, Bistoquet was transferred to the dhow and one of those involved went on board and collected the packets of drugs before re-boarding the gang’s escape vessel.
The operation was being watched and filmed by law enforcement officials, however, and they saw the traffickers throw packages and a satellite phone into the sea. An alert was put out for Bistoquet, who had been transferred to the foreign dhow, and he was rescued with international assistance, and brought back to Seychelles.
Commenting on the case, the appeal court said courts in Seychelles had to be very concerned where drugs were brought into Seychelles and were handed over ‘in mid ocean between foreign vessels and local boats.’
‘If our courts do not adopt a very strict stance as regards this type of offences, Seychelles will doon be inundated with dangerous drugs that will affect the social and economic stability and well-being of this country.’
The appeal court also agreed with comments of the sentencing judge who said there was a worrying trend in Seychelles whereby offenders ‘recruit, transport and then transfer young Seychellois men to foreign lands where they are held as drug guarantees. This amount to exploitation and [is] one of the worst forms of human trafficking.’ The appeal judges added, ‘If this trend is not nipped in the bud the consequences will be disastrous and soon we will be slipping into a modern form of slavery.’
One of the most significant comments from the court, however, was a request that the legislature should amend the Prohibition of Trafficking in Persons Act (PTPA) to include provisions for the assets of an accused to be forfeit on conviction and used to pay compensation to victims of trafficking. ‘In that respect, provision will have to be made for an order of seizure of the assets of the accused on being charged and pending conviction,’ the court said.