Technical error lets alleged people traffickers off the hook

A mistake made in the charges issued by the Attorney General’s Office against four men accused of trafficking Chinese nationals has resulted in a drastically lower jail term than they would otherwise have faced.

Anthony Muscat, 46, of Birkirkara and his two brothers, Simon, 42, and Lawrence, 41, both of Mosta, and Timothy Gauci, 34 of Attard were jailed for a number of months each and fined after Magistrate Saviour Demicoli could only find them guilty of assisting the Chinese to leave Malta on March 11, 2005.

They would each have faced a maximum of 12 years in jail had they been found guilty of trafficking in people.

The mistake originated in 2007, when the Attorney General issued the bill of indictment and incorrectly charged them with trafficking people with the intent to involve them in prostitution instead of trafficking only. They were also charged with aiding and abetting the Chinese nationals.

Once the AG realised the mistake, an effort was made to insert the correct charge in the bill of indictment. However, in another slip, the incorrect charge was not removed.

Defence lawyer Franco Debono had objected arguing the law did not allow such a mistake to be corrected. His submission was upheld by both the Criminal Court and the Court of Criminal Appeal. Both courts declared that the bill of indictment as corrected was null and void and ordered that the original one as presented before the correction was made should be taken into consideration by the Magistrates’ Court.

Thus, the Magistrates’ Court could only find them guilty of aiding and abetting the Chinese nationals to leave, an offence that carries a maximum of two years’ imprisonment.

Magistrate Demicoli found Anthony Muscat guilty of this crime. He was jailed for 18 months and fined €3,000. The other men were jailed for 22 months and fined €5,000 each as they were also found guilty of failing to present the necessary travel documents to immigration officers.

During the compilation of evidence, Police Inspector Mario Haber told the court that when court expert Martin Bajada examined a handheld GPS found on Simon Muscat, he discovered that the device had recorded a continuous trip from Marsascala to Marzamemi, Sicily, and back.

The Chinese migrants were arrested in Marzamemi on the same night in which Mr Muscat and the three men were held by the Malta police. The officer said that, on the night in question, he had received information about a suspicious power boat spotted close to St Thomas Bay in Marsascala at 7.40 p.m. An hour later he was informed that a van and a trailer were seen near Marsascala church and, at about midnight, Anthony Muscat was arrested when the police saw him approach the van.

Shortly afterwards, the power boat was noticed about 100 metres offshore and the authorities signalled to the people on the boat to berth. Once they reached shore, Simon and Lawrence Muscat and Mr Gauci were arrested and taken to police headquarters for questioning. Simon Muscat was in possession of a handheld GPS and a satellite mobile phone.

One the Chinese nationals who were brought back to Malta testified that he had arrived in Malta on February 5, 2005 after having been told the island offered the opportunity to work and study. Realising on arrival that Malta was not as it had been described to him and having heard that some of his fellow countrymen were moving to Sicily, he decided to go there too.

One day, while near the sea, he said a man had approached him and said that if he wanted to go to Sicily he should phone him to book a place and this would cost him $2,000. This man also told him not to renew his visa. The witness said he thought about the proposal and then booked a place but only called the man who had approached him once it was close to the date for him to renew the visa. On the night in question he was taken to a boat and on the way to Sicily he was sea sick.

Defence lawyers Dr Debono and Josè Herrera will appeal the judgment.