Office of the
Director of
Public
Prosecutions
E-Newsletter
Issue 32
January 2014
‘To No One Will We Sell, To
No One Deny or Delay Justice’
Chapter 40, Magna Carta 1215
January 2014 – Issue 32
IN THIS ISSUE:
Editorial
Pg 2
Private Prosecution
Pg 3
New Chief Justice and Senior Puisne Judge Appointed
Pg 4
Prosecutors Placement Programme, England
Pg 5
The Legal Status of Hawkers in the Informal Economy
Pgs 6-8
Asset Recovery Workshop
Pg 9
Sir Keir Starmer QC appointed as Knight Commander to
the Order of Bath
Pg 10
Summary of Supreme Court Judgments
Pgs 11-15
The New bar Chronicle available
Pg 15
EDITORIAL TEAM
Mrs Sukakhsna Beekarry-Sunassee, Principal State Counsel
Mrs Zaynah Essop, State Counsel
Mr Ashley Victor, Public Relations Officer
Mr Nitish Bissesssur, LRO
Mr Toshan Rai Bundhun, LRO
Mr Ajmal Toofany, LRO
Miss Nadiah Ramsamy, LRO
Mr Yashvind Kumar Rawoah, LRO
We look forward to hear about
your comments/suggestions on:
[email protected]
Page 1
January 2014 – Issue 32
EDITORIAL
Dear Readers,
2014 is finally here! We are glad that 2013 is behind the door. The Office of the Director of Public Prosecutions is
looking forward to this coming year as it already has plenty of activities in store. In the end of February, a special
workshop on cybercrime will be held at the Rajsoomer Lallah Lecture Hall and the lectures will be delivered by
three eminent barristers from 3 King’s Bench Walk Chambers from London. During the course of the year,
another workshop will take place on the issue of domestic violence. The second advocacy training course will take
place in August and we hope to be honoured by the distinguished presence of Mrs Moira McGowan, former
President of the Bar Council, UK.
In this first issue of the year, the Director of Public Prosecutions provides his views on private prosecutions. In our
new section on ‘Droit Pénal Spécial’, Mr Toofany and Miss Ramsamy have addressed the issue on the legal status
of hawkers in the informal economy. Our sincere congratulations go to the newly appointed Chief Justice and
Senior Puisne Judge of the Supreme Court. Details of the courtesy visit paid to them by the Senior Offices of the
ODPP can be read in this issue. Miss Mohanasundary Naidoo, Senior Assistant DPP and Mr Medaven
Armoogum, Senior State Counsel, share their experience with you of their training at the Prosecutors Placement
Programme held by the Commonwealth Secretariat in London. In December 2013, a one-week workshop was also
held at Rajsoomer Lallah Lecture Hall and an update has been provided to you. Mr Keir Starmer QC who visited
us last year has recently been awarded the title of Knight Commander of the Order of the Bath for his services to
law and criminal justice. Finally, the usual summary of the latest Supreme Court Judgments have been provided
to you.
We hope that this new year brings you joy, love, happiness and good health.
Zaynah Essop
State Counsel
Page 2
January 2014 – Issue 32
PRIVATE PROSECUTION
A private prosecution has traditionally been seen as a valuable safeguard against inertia or misbehavior by official
prosecuting authorities (Gouriet v U.P.W. [1978 AC 435]). I doubt whether this argument would hold today and this for
three reasons. First, the decision to prosecute or not in all cases is under the responsibility of a national prosecution office,
the Office of the DPP, whose powers are expressly laid down in the Constitution and various other enactments. Second,
decisions to prosecute or not are subject to an enhanced degree of public scrutiny and third, those decisions are fully
controlled by the courts.
Does it serve a purpose?
The power vested in a citizen to enter a private prosecution is to be found under various enactments, in particular the
Criminal procedure Act (ss 3, 4 & 5) and the District and Intermediate Courts (Criminal Jurisdiction) Act (ss118, 121 & 122).
However not every citizen can enter an “actio popularis”. He has to be an aggrieved person as held in Edath-Tally v Michael
Glover [1994 SCJ 409].
The Criminal Procedure Act imposes a duty on a private prosecutor to produce a certificate from the DPP endorsing the
information against a defendant before lodging it before the Supreme Court. There is no such requirement for District
courts. The practice is for the private prosecutor to inform the DPP “in good time prior to the case being heard so that he
may have an opportunity to exercise his constitutional powers” (Hurnam v Ah Foon Chui Yew Cheong & Ors [2003 MR 187]).
There is in addition a stringent requirement for a private prosecutor to ensure that the case entered before the court would
not offend the court’s “sense of justice and propriety” (R v Horseferry Road Magistrates’ Court [1994] 1 A.C 42 HL) or else he
runs the risk of his case being struck out as an abuse of process. Similarly the DPP has a duty to “hold the scales evenly
between the individual and the interests of the public as a whole” when exercising powers under section 72(3) of the
Constitution with a view to discontinuance.
In Edath-Tally the Supreme court, applying section 72(3) of the Constitution observed that “a person does not have an
unfettered right to enter a private prosecution on the criminal side and that his power to prosecute is subject to the power of
the DPP to take over or discontinue.”
There is a fundamental difference between the private and public prosecutor and this is a factor that must not be
overlooked. A private prosecutor will almost by definition have a personal interest in the outcome of the case. He is an
individual who seeks to use the criminal court as an extension of a personal dispute with other individuals. There is a risk if
the aggrieved citizen conducts his case, which he can, the notion of fairness, the requirement that he should not obtain a
conviction at all costs may be absent.
To the question whether it still serves a purpose, I would prefer be realistic and say it may well do. It is largely to the
perseverance of a private prosecutor by the name of Mr Mohit who took his case all the way to the Privy Council (see Mohit v
The Director of Public Prosecutions [2006] UKPC 20) that the law relating to the powers of the DPP is today better
understood.
Satyajit Boolell SC, Director of Public Prosecutions
Page 3
NEW CHIEF JUSTICE AND
SENIOR PUISNE JUDGE APPOINTED
The Senior officers of the ODPP paid a courtesy visit to
the new Chief Justice, Honourable Keshoe Parsad
Matadeen QC. In a brief statement, the DPP reassured
the Chief Justice of the entire collaboration of his Office
in the administration of justice, as has always been the
case. The Chief Justice thanked Mr Boolell SC, DPP for
the kind words and stressed that his door is always
open for constructive suggestions.
The new Chief Justice has on numerous occasions in
the past acted as Director of Public Prosecutions. He
joined the Public Service as a clerk at the age of 19
before reading Law in London. He was called to the
Bar at the Honourable Society of the Middle Temple in
1978. Upon his return to Mauritius, he practiced as a
Barrister for some time before joining the Crown Law
Office as Temporary Crown Counsel. His long career at
the AGO culminated in his appointment as Solicitor
General. He took silk in 1991 and was thereafter
appointed as a judge of the Supreme Court in 1994.
Chief Justice Matadeen QC is generally known to be a
sedulous and punctilious person who spends long
hours at work. He has a discreet personality and rarely
makes public statements outside the courtroom.
January 2014 – Issue 32
Mr Justice Eddy Balancy has been appointed Senior
Puisne Judge by the President of the Republic following
the advice of the new Chief Justice Hon. Keshoe Parsad
Matadeen. He was appointed judge of the Supreme Court
of Mauritius in January 1994 and acted as CJ and SPJ on
several occasions before his recent nomination. Hon
Balancy, SPJ has an impressive academic background and
it started at the primary school where he was ranked 1st at
the entrance examinations of the St. Esprit College. He
won the junior scholarship in 1964 and then joined the
Royal College of Port Louis where he was a laureate of the
British Scholarship (Arts side). The Senior Puisne Judge
(SPJ) obtained his LLB at King’s College, University of
London in 1976 and his M.A. Sociology and Law one year
later. He was then called to the Bar of England and Wales
(as a member of the Honourable Society of the Middle
Temple) in 1978 and joined the Mauritian Bar the same
year. In 1979 he joined the Attorney General’s Office and
in 1981was posted as magistrate for a year. Following his
return to the AGO in 1982, he quickly climbed the ladder
to become Parliamentary counsel in 1992. Hon. Balancy
SPJ is also the author of 3 books on Mauritian law namely;
The Information; The Law of Conspiracy in Mauritius and
Basic Criminal Procedure and Evidence for Prosecutors.
Prior to his tertiary education, he worked as a teacher and
a journalist. This could explain his inclination to
communicate with the press and educate teenagers as he
did in 2012 at St Esprit College. He believes that the basics
of law should be taught to youngsters for them to become
better citizens.
Page 4
January 2014 – Issue 32
Prosecutors Placement Programme,
England
Mr Medaven Armoogum and myself attended a three weeks Prosecutors Placement Programme organised by the
Commonwealth Secretariat on criminal related matters from the 11th to 29th November 2013. We were based at 21 College
Hill, EC4R 2 RP, London, Chambers of David Fisher QC and David Perry QC.
The Commonwealth Secretariat, under its Rule of Law Programme, has a continuing mandate to support and strengthen
the capacity of criminal justice officials to respond effectively to all forms of criminality. The Criminal Law Section of the
Commonwealth Secretariat has developed a series of holistic and focused criminal justice training programmes, which
recognise the inter-connection between the foundational knowledge and specialised areas of criminal justice practice in the
thematic areas of the Commonwealth Secretariat’s criminal law mandates. The three weeks programme was practice
oriented and aimed at enhancing prosecutorial capacity, promoting high standards and principles in the administration of
criminal justice and the professionalism of criminal justice officials. During such time, we visited various courts, namely,
the Supreme Court, the Judicial Committee of the Privy Council, the Crown Court (Old Bailey), the Magistrates’ Courts, the
Immigration Tribunal. We were pleasantly surprised by the high level of advocacy, the smooth interaction and mutual
respect between the bench and the bar as well as the high level of ethical standards and integrity of barristers. Much time is
devoted to case management in the U.K courts and cases are heard de die in diem before the Crown court. For example,
the recent murder case of a British soldier in Woolwich in May 2013 was being heard at the Old Bailey in December.
We otherwise noted certain matters which contributed to the smooth running of court business, namely:
a) Separate access to the building is provided to the public on the one hand and to witnesses and defendants on the other
hand.
b) Witnesses are never seen loitering in the lobbies or in front of the doors of courtrooms. When witnesses are needed,
the court clerk makes them available to the court.
c) Notices are affixed at the entrance of courtrooms, for example, that mobile phones should be switched off, that
recording of court proceedings is not permitted etc. Court clerks will ensure that mobile phones are indeed switched
off.
Before the start of a jury trial, all possible issues which may arise in the course of the trial are made known to the court and
to the adverse party. This avoids everyone from being taken by surprise in the course of the trial and prevents unnecessary
delays.
The Prosecutors Placement Programme also encourages the exchange of ideas in the administration of criminal justice,
sharing of challenges and best practice in prosecuting complex crime, investigation and prosecutorial skills amongst others.
At the end of our programme, we therefore, presented to the members of 21 College Hill Chambers an overview into the
Mauritian legal system and we were pleased to respond to their queries. Our participation in the Prosecutors Placement
Programme was highly beneficial to us and has provided us with fresh ideas and skills for implementation in our
jurisdiction. Recommendations have already been made to the Commonwealth Secretariat which we hope will be
successfully implemented in our jurisdiction with the collaboration of one and all, including other agencies such as the
judiciary.
Miss Mohanasundary Naidoo, Senior Assistant DPP
Page 5
January 2014 – Issue 32
The legal status of hawkers
in the informal economy
The International Labour Organisation defines the ‘informal economy’ as “all economic activities by workers and economic
units that are, in law or in practice, not covered or insufficiently covered by formal arrangements”. These workers operate
outside the formal reach of the law or are not covered in practice by legal warranties. Street vendors, also referred to as
hawkers, constitute a category of those workers who constantly oscillate between formal and informal situations. The Trade
and Industries Classification Act 1951 acknowledges the existence of this labour force by defining a hawker as “any person
who in any street or public place, other than in permanent premises, and who goes from place to place or to other person’s
houses to sell any goods, wares or merchandise, or sells his skill in handicraft.” Notwithstanding this legal recognition, the
enforcement of the legislative framework has not been smooth in practice as evidenced by press coverage.
1. The Legal Framework
Based on section 23(1) of the Universal Declaration of Human Rights, “everyone has the right to work, to free choice of
employment, to just and favourable conditions of work and to protection against unemployment”. This declaration ratified
through regulation No. 100 of 1949 under the United Nation Act 1968, legally binds the Mauritian State to set human rights
standards in numerous spheres. It would also be relevant to highlight that Mauritius has acceded to the International
Covenant on Economic, Social and Cultural Rights on the 12th of December 1973 whereby the fundamental right enshrined
in section 23(1) (supra) has been reaffirmed by article 6 of the Covenant. Although the Mauritian Constitution does not
explicitly provide for such freedom, the right to work is inherently upheld in our laws.
There is a balance to be struck between the freedom to work and the public interest which legitimates the existence of legal
instruments regulating hawking activities. In light of this, there are two main frameworks which govern the carrying out of
such activities, namely: The Trade and Industries Classification Act 1951 (TICA) and the Local Government Act 1989 (LGA).
The TICA is additionally supplemented by the Classified Trade Regulations 1954 which standardise health and safety
measures to be taken into consideration when granting a license. The key gist of the TICA provides that a license is essential
for a hawker to operate legally. Consequently, failure to comply with this requirement constitutes an offence under section
12(b) of the TICA and may be prosecuted under section 15(A) by an inspector of the Ministry of Health or an officer of a local
authority. Moreover, it is not strictly necessary to join the Director of Public Prosecutions as party (Municipality of Beau
Bassin-Rose Hill v. Sik Yuen Supermarket [2001 SCJ 173]).
2. Elements of definition
Pursuant to the definition of a ‘hawker’, the person must (1.) operate in any street or public place or (2.) go from place to
place or to other persons’ houses, (3.) and not be in permanent premises (4.) to sell any goods, wares or merchandise, or
sells his skill in handicraft. Historically, under section 54 of the regulations published under the Government Notice No. 332
Page 6
January 2014 – Issue 32
of 1891, it was held in Procureur Général v District Magistrate of Plaine Wilhems [1900 MR 50] that as long as the public has
a view of the goods, the public or private nature of the premises is immaterial. The case of Municipality of Vacoas-Phoenix v
The Queen [1992 SCJ 62] sheds light on the mobile aspect of hawking : it affirms that to be a hawker one need NOT travel
from place to place. Mobility is also demarcated by the perimeter within which the hawker can operate. For instance, prior
to 1992 a licensed hawker could operate all over Mauritius but the amendment of the TICA limited the freedom of
movement of hawkers to an administrative area of a given local authority. Thus a hawker cannot operate at an address
other than that mentioned in his license. While a hawker doesn’t have to move from place to place, he cannot operate from
a permanent premise. The phrase “permanent premises” is not intended to include the case of persons who sit or stand at
the same place but are meant to exclude from the definition of hawker those who in a public place exercise the trade in a
permanent building (Vacoas-Phoenix v The Queen (supra)). Further clarification provided by case law points out that
moving goods to and from a permanent premise does not make someone a hawker (Teeluckdharry S.D v The State [2002 SCJ
300]). To illustrate the strict application of the law, application for a license under the TICA was rejected due to the fact that
the hawker’s caravan was to remain static at a particular chosen spot (Hazareesingh v Municipality of Beau Bassin-Rose-Hill
[1992 SCJ 142]). Although the scope of hawker’s activity is restricted to the trade of goods, we do observe in practice that
there is a market for the trade of services in the informal economy. The question arises as to whether this reality calls for the
expansion of the definition hawkers.
3. Offences and Penalties
Failure to fulfil the requirements under the TICA constitutes an offence punished under section 16 by a fine not exceeding
Rs500 and imprisonment not exceeding 6 months and in the case of recidivism, by a fine not exceeding Rs1000 and
imprisonment for a term not exceeding one year. In addition, the court may order the closing of any premises where there
has been a contravention to the conditions of the license or where the business is conducted so as to be a danger to public
health, public order or public safety. To this effect, the Classified Trade Regulations 1954 emphasizes the aspect of public
health by requiring the hawker to maintain personal cleanliness, to be free from contagious or infectious skin diseases and
diligently ensure that the food is clean, pure and wholesome and be kept in a container which prevents contamination of
any sort. It is to be noted that the penalty provided under the regulation, which is a fine not exceeding Rs1000 and
imprisonment not exceeding one year, is more severe than the penalty under the TICA. Offences prosecuted under the LGA
regarding contravention to licenses give rise to a fine of not less than Rs500 and not exceeding Rs1000. These double
standards have been observed in the case of Teeluckdharry (supra) where the Judge was led to prompt the legislators to
address those issues.
Page 7
January 2014 – Issue 32
4. Law enforcement agencies
As per its definition, hawking is carried out in a public environment which inevitably involves the use of public
infrastructure such as roads. Under the Roads Act 1966, a highway authority is empowered and has a duty to ensure that
all urban roads, including pavements should not be encumbered or impeded with articles. Moreover, section 67 of the Road
Act confers the relevant power on the Highway authority to free the urban roads from any encroaching structures. In Joonas
Industries Ltd v Municipal Council of Port-Louis [2012 SCJ 355], it was held that this legislation had to be strictly applied and
consideration of policy do not have to be taken into account. Local government authorities also have a major role to play in
the monitoring of public infrastructure as they have a duty under the Local Government Regulations to seek compliance of
hawkers with any other law or court judgment (Market Traders Association v The Municipal Council of Port-Louis [2008 SCJ
324]). Police authorities are also involved in the process of enforcing the legislation and are even conferred powers of search
and seizure without warrant when trade premises are accessible to any member of the public (Teeluckdharry (supra)).
Article 6(2) of the International Covenant on Economic, Social and Cultural rights provides that a state party to the
covenant should take steps in order to achieve the full realization of the right to work under conditions safeguarding
fundamental and economic freedoms of the individual. After balancing the various interests at stake, we observe that our
legislative framework has adopted a more restrictive approach towards the activity of hawkers. Divergent opinions on the
matter in the judiciary still persist though as illustrated by case of Joonas Industries Ltd (supra). The statement whereby
“the hawkers fall outside the formal economy […] because not enough attention has been given to assisting them to enter
the formal economy. Their illegality lies not in their activity but in a status which is being denied to them. Earn a living is
not illegal; it is what they should do” is outweighed by the fact that the rule of law has to be upheld first and foremost before
any consideration of policy.
Nadiah Ramsamy & Ajmal Toofany
Legal Research Officers
Page 8
January 2014 – Issue 32
Asset Recovery Workshop
The office of the DPP in collaboration with the United Nations Office on Drugs and Crime organised a 5 day workshop for
prosecutors in Mauritius. The issue tackled during the workshop was “Proceeds of Crime and Money laundering”. The
event was held at the Rajsoomer Lallah Lecture Hall of the ODPP.
The workshop welcomed a wide range of professionals. In addition to prosecutors, there were officers from the ICAC, the
FIU as well as investigative officers of the Asset Recovery Unit of the ODPP. Mr Fitzroy Drayton was the guest speaker at
this workshop. He is currently an adviser at the UNODC and he has extensive international expertise in the area of asset
forfeiture​​ and proc​e​eds of crime including drafting legislation, training for judges, prosecutors and law enforcement
officials.
The participants had the chance to learn more about different areas of interest such as restraining orders, money
laundering prosecutions, confiscation and Civil Forfeiture Applications and Mutual Legal Assistance. The workshop
sessions also provided the opportunity for the participants to enhance their drafting skills in different areas such as
affidavits, restraining orders and various letters of request. The participants were able to discuss their opinions and after
the different drafting exercises, they received feedback.
Nadiah Ramsamy, Law Research Officer
Page 9
January 2014 – Issue 32
Sir Keir Starmer QC appointed as Knight
Commander of the Order of Bath
The Office of the Director of Public Prosecutions of
Mauritius’s special guest for the Rajsoomer Lallah
Annual Lecture last year was recently knighted.
Sir Keir Starmer QC, former DPP of England and
Wales, is now a Knight Commander of the Order
of the Bath (KCB) for services to law and criminal
justice. Back to private practice at Doughty Street
Chambers, he is now the advisor of the Labour
Party in the United Kingdom on renewing the
rights of victims in the criminal justice system.
Sir Keir was invited by our Office to give a lecture on the theme “Human rights, victims and the prosecution of
crimes in the 21st century” on the 28th November 2013 (see our December 2013 issue). His expertise in the law of
Human Rights is internationally known in the legal profession.
In a recent interview given to the BBC, Sir Keir expressed his opinion on the English legal system on “failing
victims”. He said that “the more vulnerable you are as a victim, the less able the criminal justice system is to
protect you”. While being DPP of England and Wales, Sir Keir worked to change the approach of prosecutors in
relation to victim support. He found that victims of sexual offenses, especially children, need special support
since they are “vulnerable and intimidated witnesses”. The Crown Prosecution Service (CPS) established some
guidelines so that witnesses are not afraid to come forward and give evidence in court.
Sir Keir was called to the bar in 1987 and was appointed Queen’s Counsel in 2002. He is also the author of several
textbooks like the Three Pillars of Liberty : Political Rights and Freedoms in the UK (1996), European Human
Rights Law (1999), Criminal Justice, Police Powers and Human Rights (2001) and the Human Rights Manual
and Sourcebook for Africa (2005).
Ashley Victor, Public Relations Officer
Page 10
January 2014 – Issue 32
SUMMARY OF SUPREME COURT
JUDGMENTS - DECEMBER 2013
KHAYTOO V v THE STATE [2013 SCJ 467]
By Hon. E. Balancy, Judge & A.A. Caunhye, Judge
Assault – Inconsistency of evidence
The accused, a police constable, was prosecuted before the
District Court of Rivière du Rempart for having, wilfully
and unlawfully committed an assault upon the person of
one Saveenta Choomun. He pleaded not guilty and was
not assisted by Counsel. After hearing evidence, the
learned Magistrate found him guilty as charged and
sentenced him to pay a fine of 2000 rupees.
There were initially six grounds of appeal but ground 1
was dropped at the hearing. Grounds 2 to 6 all challenge
the appreciation of the evidence by the learned
Magistrate. The Judges allowed the appeal and quashed
the judgment and sentence for the following reasons:
o
o
o
The learned Magistrate appears to have completely
overlooked the inconsistency between the evidence
of the complainant in Court and her version to the
police.
Records showed that the learned Magistrate
misdirected himself inasmuch as such repeated
statement by the witness that she forgot certain
details is nowhere to be found in her examination
in chief.
It was inappropriate that in a case of alleged blow,
the information should have been lodged as one
for a case of assault. In the present case, it was
clearly a blow and not an assault which had been
alleged.
SHAM P. v THE STATE OF MAURITIUS [2013 SCJ 483]
By Hon. S. Bhaukaurally, Judge & Hon. N. Devat, Judge
Review of sentence – Penal servitude
An application was made under Section 5(1) of the
Criminal Procedure (Amendment) Act 2007 for the review
of a sentence of penal servitude the applicant was serving.
He was sentenced to death in accordance with Section
38(4) of the Dangerous Drugs Act 1986 upon a conviction
for causing dangerous drugs to be imported qua
trafficker. His death sentence was converted into penal
servitude for life with the enactment of the Abolition of
Death Penalty Act.
The Court substituted the sentence of penal servitude for
life by a sentence of 22 years penal servitude. From that
period, the total time the applicant spent on remand on
was deducted. Before taking such decision, the Learned
Judges had taken into account several factors. Some of
them are mentioned below:
o
o
Although the appellant had a previous conviction
which was dated 29 July 1993, it was one for
wounds and blows and he was sentenced to a fine
of Rs 300 which obviously shows that the degree of
criminality of the offence was not high.
There is a favourable Welfare Officer’s Report on
the applicant. Apart from taking interest in the
educational and vocational opportunities in the
Prisons, he has been involved in religious and
spiritual as well as recreational activities.
Page 11
January 2014 – Issue 32
STATE v SHAIK I.A.M.A. [2013 SCJ 493]
By: Hon. P. Fekna Judge
RAMBURN M v THE STATE [2013 SCJ 472]
BY: Hon.S. Peeroo Judge & Hon.N. Devat Judge
Quantity of drugs – Inference
Imprudence - Sentence
The accused stood charged with the offence of wilfully,
The appellant was found guilty of involuntary homicide
by imprudence in breach of section 239(1) of the Criminal
Code. He was sentenced to undergo 6 months’
imprisonment. The cancellation and endorsement of his
unlawfully and knowingly being in possession of
dangerous drugs for the purpose of distribution in breach
of sections 30(1)(f) (ii), 47(2) and (5)(a) of the Dangerous
Drugs Act.
Case-law in Mauritius has shown that where an accused
has a relatively small amount of drugs in his possession
which he is likely to require for his consumption, then the
inference that can be drawn is that he is a consumer. But,
where the drug is of such a large amount that he cannot
reasonably need it for his own consumption, then the
irresistible inference is that he must have had it for the
purpose of distribution. In the present case, the accused
had about 152 grams of heroin with him. He could not
possibly have needed that amount of drugs for his
personal consumption.
Therefore the Court inferred that the accused had the
required knowledge that the item he had in his possession
was drugs and that his purpose was to, wilfully and
knowingly, distribute same. The accused was found guilty
as charged.
licence was ordered and he was, further, disqualified from
obtaining a driving licence for all types of vehicles for a
period of two years. He appealed against both the
conviction and sentence.
To prove the guilt of the appellant the prosecution relied
on the evidence of an eyewitness as to the circumstances
of the accident, and the real evidence in support thereof.
There was originally 5 grounds of appeal. With regard to
Grounds 2, 3 and 4, learned Counsel submitted that even
if the prosecution’s version was accepted, it fell short of
establishing any imprudent driving by the appellant but
instead established “une faute si grossière” by the
deceased “qu’elle fait disparaître en réalité toute faute de
la part de l’auteur matériel de l’homicide”.
The learned Magistrate, who had the benefit of assessing
the credibility and reliability of witness, found him to have
been a truthful witness, and rejected the unsworn version
of the appellant which he assessed as containing a
number of lies.
Page 12
January 2014 – Issue 32
The alternative submission of learned Counsel for the
appellant is that the prosecution had failed to prove any
imprudence on the part of the appellant and that the
accident happened solely through the “faute si grossière”
of the deceased in view of his state of sobriety as
confirmed by witness and the FSL report, “for running
after a moving bus and hitting on its flank”.
The Appellate Court considered that in all the
circumstances a non-custodial sentence was sufficient in
this case to meet the ends of justice. However, there was
no reason to interfere with the disqualification order or
the order cancelling the appellant’s licence. The custodial
sentence was accordingly substituted with a fine of Rs
25,000. The appeal was otherwise dismissed.
MUNGREE M. v THE STATE & ORS [2013 SCJ 468]
By: Hon. E. Balancy Judge, Hon. S. Peeroo Judge & Hon.
A.A. Caunhye Judge
wrong conclusion.
Because having regard to all the circumstances of the case,
and the evidence on record, the Learned Magistrate was
wrong to have found the charge levelled against the
Appellant, then Accused, proved beyond reasonable
doubt.
Because the Learned Magistrate failed to direct her mind
to the issue of mens rea
The Appellate Court found that the conduct of the
accused as per the version of the complainant, which the
Learned Magistrate accepted as true, could not have been
that of a person acting otherwise than wilfully, and that
any argument that such conduct could have been devoid
of “mens rea” would be absurd.
POCA – Traffic d’influence
The accused was prosecuted before the Intermediate
Court for “Trafic d’influence” in breach of section 10(5) of
the Prevention of Corruption Act (POCA). He pleaded not
guilty. After hearing evidence, the learned Magistrate
found him guilty and sentenced him to undergo three
months imprisonment. He appealed against his
conviction.
The Court also found that the Learned Magistrate was
wrong, having regard to the clear provisions of section
10(2)(b) of the Constitution, to have applied the principle
laid down in DPP v Coureur [1982 MR 72] to convict the
appellant.
The crucial question which arose was whether under
section 10(5) of the POCA, the words “for another person”
The grounds of appeal read as follows:
constitute an essential element of the offence which had to
be note merely asserted but also established.
Because the Learned Magistrate failed in her duty to carry
a proper balancing exercise and, therefore, came to the
The Learned Judges were of the considered view that the
decision in Coureur could not be invoked to support the
Page 13
January 2014 – Issue 32
present conviction and this could be explained by the fact
that the constitutional point (rights of accused to be
informed) was not raised and accordingly not considered
by the appellate Court in that case. They accordingly
allowed the appeal and quashed the conviction.
SULTAN M S v THE STATE [2013 SCJ 491]
By Hon. E. Balancy, Judge & Hon. D. Chan Kan Cheong,
Judge
Copyright – Averment in information
The accused was prosecuted before the District Court of
Lower Plaines Wilhems, under section 44(1)(a)(vi), (3) and
(4) of the Copyright Act, on an information which averred
that he did, on a specified date, “wilfully and unlawfully
offer for sale copies of a work to wit: 46 CD’s containing
Indian, French and English songs which constitutes an
infringement of the copyright of its owner.” He pleaded
not guilty to the charge. After hearing the evidence, the
learned Magistrate amended the particulars of the
information by deleting the reference to Indian and
French songs, and, after finding him guilty of the charge
in the amended information, sentenced him to pay a fine
of Rs 8,000.
The Appellant argued that the information did not aver
that the accused had offered for sale the abovementioned
articles “without the express authorisation of the
copyright owner,” as per the wording of section 44(1)(a(vi)
of the Copyright Act and as such it did not disclose an
Counsel for the respondent conceded that the words
“without the express authorization of the copyright
owner” had been missed in the information as drafted. He
however contended that the absence of those words in the
information was not fatal. He submitted that an
infringement of the copyright of its owner could only be
without the express authorisation of the copyright owner.
Hence, in his contention, the information sufficiently
conveyed to the accused that he was dealing with the CD’s
without the express authorisation of the copyright owner
and the accused knew what charge he had to answer.
After consideration, The Court was unable to agree with
that submission. The Supreme Court accordingly allowed
the appeal and quashed the conviction and sentence.
CHAMOO S v THE STATE [2013 SCJ 475]
By: Hon. N. Devat Judge & Hon. P. Fekna Judge
Drugs - Sentence
The appellant was charged before the Intermediate Court
under count I, for the offence of cultivating cannabis
plants and under count II, for the offence of smoking
cannabis in breach of the Dangerous Drugs Act.
He pleaded guilty to both counts and was represented by
counsel. The Learned Magistrate sentenced him to
undergo 18 months’ imprisonment under count I and to
pay a fine of Rs 5000 under count II.
offence.
Page 14
January 2014 – Issue 32
The present appeal is against the sentence on the ground
that it is manifestly harsh and excessive in the
circumstances of the case. Counsel for the appellant stated
that he was not challenging the sentence meted out under
count II but that his arguments were restricted to the
custodial sentence passed under count I.
THE NEW BAR CHRONICLE
IS NOW AVAILABLE!
Counsel relied himself on the case of Firmin v State [2003
SCJ 269] & State v Etienette [2008 SCJ 145]. The Supreme
Court however holds the view that the two cases referred to
by counsel for the appellant are distinguishable from the
present one. In both those cases the offence was one of
‘possession’. By comparison, the charge in the present case
was one of ‘cultivating’ cannabis, an offence of an altogether
different nature and seriousness. The court therefore
considered the case of Avinash Bhoyrub v The State [2004
SCJ 307] which considered to be more apt in the present
matter.
The Court therefore found that the learned Magistrate was
perfectly entitle to consider that, in those circumstances,
with the previous conviction of the appellant being
considered as one relevant factor, a custodial sentence of 18
months was warranted. We are, therefore, of the view that
the sentence was neither harsh nor excessive nor wrong in
principle.
Thought of the Month
Everyone has ideas. Not
everyone works on them.
The latest issue of The New Bar
Chronicle is now available for purchase.
You may request for a copy on:
[email protected]
Page 15