Noel Wang Nan v Uganda (Miscellaneous Criminal Application 6 of 2020)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

The single Justice refused the applicant's bail pending determination of his appeal against a murder conviction. Applying Arvind Patel v Uganda, the court treated the relevant considerations (first offender, admitted appeal, expected delay, non-frivolous appeal with reasonable prospects) as non-exhaustive and case-specific. The court found the sureties superficial and unconvincing in demeanour, doubted the fixed place of abode where the LC1 chairman did not know the current occupant of the rented premises, and noted the offence involved personal violence in a family scuffle resulting in death. Crucially, the previously untraceable Court of Appeal record had since been traced and was before the court, so the appeal could be fixed and expedited, removing the delay justification.

Facts

The applicant was arrested in October 2004, charged with murder, convicted by the High Court in 2005 and sentenced to the then-mandatory death penalty. His appeal to the Court of Appeal against conviction and sentence was dismissed, and a further appeal to the Supreme Court (Criminal Appeal No. 11 of 2008) followed. After Attorney General v Susan Kigula and 416 Others, his case was referred back to the High Court for mitigation; he was re-sentenced on 28 November 2013 to 37 years from the date of conviction, later substituted by the Court of Appeal with 35 years. With a further appeal pending in the Supreme Court (Criminal Appeal No. 31 of 2016), he applied for bail, asserting risk of a miscarriage of justice from substantial delay caused by an untraceable Court of Appeal record, chronic ill-health, first-offender status, a fixed abode and substantial sureties. By the time of hearing, the record had been traced and was before the Supreme Court.

Issues

1. Whether the applicant established exceptional circumstances justifying the grant of bail pending determination of his criminal appeal under section 40(2) of the Criminal Procedure Act.
2. Whether the delay caused by the untraceable Court of Appeal record warranted the grant of bail.
3. Whether the applicant produced substantial sureties and established a fixed place of abode.

Orders

• Application for bail pending determination of the appeal denied.
• The Registrar is directed to fix the appeal in the next convenient session as the Record of Appeal is available.
• The Registrar to avail the applicant with the Record upon written request by him or his lawyer.
• The applicant to continue serving his sentence pending hearing of the appeal or until further orders of the Court.

Key headnotes

Legislation cited (3)

• Criminal Procedure Act Cap 116 s.40(2)
• Supreme Court Rules r.42(1)
• Constitution of Uganda Article 28(1)

Cases cited (3)

• Arvind Patel v Uganda (Criminal Appeal No. 1 of 2003)
• Alenyo Mark v Uganda (Criminal Application No. 5 of 2015)
• Attorney General v Susan Kigula and 416 Others (Constitutional Petition No. 3 of 2006)