Balzan brothel owner's case to be re-heard over technicality

The case against a Chinese woman accused of running a brothel in Balzan has been sent back to the Court of Magistrates after her lawyers highlighted a technical flaw in the proceedings.

Lin Han, a Hamrun resident, used to manage the Honey Girl Beauty Spa in Balzan, which would offer massage services as well as added sexual favours at an additional premium.

The premises were raided on 3 February 2013, where police found three Chinese women, contraceptives and sex toys. Inside a BMW X3 belonging to Han, police had also found 92 condoms.

Han was subsequently arrested and claimed to only be the receptionist, but further investigations had found that she was a shareholder together with Tony Vassallo in the operating company, TMC. Vassallo had been described in court as “mafia” by one of the trafficked women.

Han had been found guilty of offences relating to human trafficking and benefiting from prostitution in 2020 and sentenced to five years behind bars, as well as having €24,000 in cash found at the brothel confiscated.

Han had filed an appeal, arguing that the punishment was too severe.

Earlier today, Mr. Justice Aaron Bugeja handed down his decision, partially upholding the appeal.

He observed that at a later stage in proceedings, Han’s lawyer Franco Debono had raised the argument that the minutes of the sitting dated 1 April 2016 showed how the Court of Magistrates, following the remittance of the acts of the proceedings by the Attorney General in terms of the Criminal Code, had simply proceeded by adjourning the case to a later date without asking the accused whether she was objecting to her case being dealt with summarily before the Court of Magistrates as a Court of Criminal Judicature.

Countering this, the Attorney General had submitted that this plea had not been raised at any previous stage of proceedings and had not even been mentioned in the appeal application. Furthermore, the appellant had “always behaved in such a way as to suggest that she was submitting herself to the judgment of the Court of Magistrates as a court of criminal judicature and was not objecting to be tried summarily by the same.”

The AG also argued that the Criminal Code did not contemplate the nullity of proceedings as a consequence of a defect in the required formalities. Instead, the Criminal Court was to quash the judgment and determine the case on its merits, she said.

In his decision, Mr. Justice Bugeja noted that his court was legally empowered to raise the issue of procedural defects ex officio and without the input of any of the parties. The judge cited case law which had held that cumulative procedural shortcomings in criminal proceedings “are a form of lex processualis error which hits directly at one of the cardinal and basic rights of the accused in criminal proceedings. As such this would qualify as a matter of public order as it affects the basic principles on which the conduct of criminal proceedings and the rights of defence of an accused person are based.”

The court also pointed out that the formality of asking whether the accused objected to summary judgment or not were aimed at ensuring that the conversion of the Court of Magistrate as a Court of Criminal Inquiry into a Court of Criminal Judicature took place “only if the accused categorically declares that he finds no objection for his case to be decided summarily by that Court and his declaration is minuted by the Court in the records of the proceedings.”

Such a conversion had to take place at the written request of the Attorney General, after the charges are read out and the person charged states whether there are objections to the case being dealt with summarily, said the judge. Only then does the court become competent to pass its sentence on the accused. “Clearly these are sine qua non requirements,” reads the judgment.

The judge disagreed with the AG’s argument that the appellant had tacitly accepted the court’s jurisdiction by participating in the proceedings. The law did not allow the silence of a person accused to be taken as tantamount to positive consent, said Mr. Justice Bugeja, ruling that in the absence of this declaration the Court of Magistrates “cannot be considered to have acquired jurisdiction over the case.”

The lack of adherence to the procedure laid out in the Criminal Code was not “merely a breach or omission of any formality but hits at the very heart of the correct administration of justice,” ruled the judge, declaring the proceedings undertaken before the Court of Magistrates as from 1 April 2016 onwards, including the judgment delivered by the Court of Magistrates on the 24th September 2020 to be null and void.

Revoking the judgment, the court ordered that the records of the proceedings be transmitted back before the Court of Magistrates in order for the proceedings against the appellant to continue from the date of filing of the formal accusatory document by the Attorney General in accordance with the law.