Police v Pravind Kumar Jugnauth CN: - 9063/11

Ruling delivered on 19 December 2011

The Accused stands provisionally charged with the offence of Conflict of Interests in breach of section 13 (2) & (3) of the Prevention of Corruption Act 2002.

The Accused, through his Counsel, moved that the present Information be dismissed on the following grounds: -

1.The ICAC officers who interrogated and interviewed the Accused as from 11.36 hours to 14.15 hours without interruption acted in breach of the Constitutional Rights of the Accused and in breach of the Judges Rules;

 2.The ICAC officers and or Police Officers who charged the Accused at about 14 20 hours: -

(a) did not participate at all in the interrogation and interview of the Accused;

(b) never read or took cognizance of the Accused statement at as 14 20 hours on the 22nd of September 2011 before charging him; and

(c) never took down the defence of the Accused as regards the particulars of the alleged offence constituting the alleged offence, subject matter of the charge against the Accused.

In so doing the charging officers acted:

(a) without lawful authority

(b) ultra vires; and

(c) in breach of the constitutional rights of the Accused

3.The act of charging the Accused by separate ICAC Officers and or Police Officers unconnected with the interrogation of the Accused in the circumstances is unlawful and invalid.

4.Prior to the act of charging the Accused by different ICAC Officers and or Police Officers estranged from the interrogation of the Accused, the ICAC officers interrogating and interviewing the Accused never intimated to the Accused that he had allegedly acted in conflict of interest under the Prevention of Corruption Act. Those same officers never put to the Accused that documents shown to the Accused, his version in his statement so far on the 22nd of September 2011 and/or the version of any other person revealed at that stage that he had allegedly committed an offence of acting in conflict of interest. Therefore the act of putting a charge against the Accused in the circumstances is invalid.

5.The bicephalous procedure whereby on the 22nd of September 2011 officers estranged from the interrogation of the Accused put a charge to the Accused which entails arrest and answering a provisional charge before a Criminal Court is unconstitutional and unlawful.

The motion was objected to by the Prosecution and the matter was argued and submissions offered.

For the purpose of the Argument, the Prosecution called CI Aleaer, the main enquiring officer of the ICAC and also the Police Officer who arrested the Accused, ASP Coret. 

CI Aleear deposed to the effect that after having gathered evidence against the Accused from various departments and ministries, the ICAC convened the Accused to give a statement and same was to be produced in court. Prior to the recording of the statement, the Accused was informed of his constitutional rights and the facts and circumstances of the case. The Accused who was a barrister by profession wrote his own statement and signed on all pages of his statement. During the recording exercise, the whole legal team who accompanied the Accused was present. CI Aleear explained that questions were put to the Accused during the recording of the statement and latter was confronted with several documents. The Accused was interviewed under Rule II of the Judges Rule. When the recording of the statement was stopped, CI Aleear, together with the Director of Investigation, who was present during the recording of the statement, left the interview room and informed ASP Coret that the evidence available against the Accused has remained unshaken. CI Aleear further explained that there was a closing certificate at the end of each page of the statement.

ASP Coret was called by the Prosecution and he gave evidence to the effect that on the day before the arrest of the Accused in the present matter, the Director of Investigations of the ICAC handed a report to him addressed to the Commissioner of Police requesting police assistance for the arrest of the Accused and the lodging of a provisional information. He took cognisance of the report and a draft of the provisional information. He perused the report and discussed with the Director of Investigation and was satisfied that there was a prima facie case against the Accused. He there met with the Commissioner and briefed him accordingly. The report was then referred to an ACP and latter gave his consent for the arrest of the Accused on the following day at about 9.00 hours. During a break in the recording of the statement of the Accused, CI Aleear together with the Director of Investigation came out of the interview room and informed ASP Coret that the evidence against the Accused has remained unshaken. ASP Coret then proceeded to the arrest of the Accused after informing latter that there were grounds to believe that he committed the offence of conflict of interest and that he will be arrested and a provisional information be lodged against him. ASP Coret informed him of the particulars of the charge and cautioned the Accused. A reply was made by the Accused and same was inserted in the diary book. ASP Coret confirmed that there was already a request from the Commissioner of Police for the arrest of the Accused prior to the recording of his defence statement.

The Accused gave evidence to the effect that he was never explained the facts and circumstances of the case. He was administered caution under Rule II of the Judges Rule. He averred that he did not voluntarily stop his statement. He stated that the recording of his statement was continuous and that he never asked for a break. According to the Accused, ASP Coret was not aware of the content of his statement.

The Court considered that the grounds for setting aside the provisional information as furnished by the defence could be considered under two distinct headings: -

1. The procedure adopted by the ICAC to lodge the provisional information against the Accused (Grounds 2,3,4 and 5): - (a)The nature of the arrest of the Accused (Grounds 2, 3 and 5); and (b)The charge against the Accused (Ground 4);
2. The rights of the Accused under the Judges Rules (Ground 1).

In relation to grounds 2,3 and 5, the Court referred to the decision of the Supreme Court in the case of Ha Yeung v ICAC and held that ASP Coret, even when posted at the ICAC, retained the rights conferred upon him by the Police Act as a Police Officer and he was fully entitled to arrest the Accused. The Court went on to hold: -

“I therefore find that there has been no pre-judgment against the Applicant and the ICAC officers acted diligently. The ICAC officers convened the Applicant for an interview based on a reasonable suspicion and they caused him to be arrested upon reasonable ground of him having committed an offence. Although there was a draft provisional charge on the eve of the Applicant’s arrest and the ICAC considered that there was a prima facie case against the Applicant, it is to be noted that the ICAC officers did not act on same blindly but duly convened the Applicant for an interview before establishing whether there was a reasonable ground upon which to arrest the Applicant. The purpose of recording a statement from the Applicant finds its raison d’etre since it is this statement which confirmed the evidence of the ICAC and led them to having a reasonable ground for believing that the Applicant committed an offence.

I find that the ICAC cannot be blamed for having deemed it fit to confirm their reasonable suspicion by convening the Applicant to give a statement, the moreso that the ICAC duly complied with our adversarial system of justice. In fact, the Applicant was given an opportunity to shake or confirm the evidence gathered by the ICAC which raised a reasonable  suspicion against the Applicant. It was only after this reasonable suspicion was confirmed that the ICAC officers caused ASP Coret to arrest the Applicant since the latter was duly informed that there was reasonable ground to arrest the Applicant.

Consequently, the act of charging the Applicant by separate ICAC officers and or police officers unconnected with the interrogation of the Applicant in the circumstances is not unlawful and invalid since ASP Coret acted within his powers as a police officer whereas other officers posted at ICAC were involved in the interview of the Applicant. In light of the evidence ushered, I find that ASP Coret was fully aware of the facts and circumstances of the case against the Applicant and he was duly mandated to arrest the Applicant. I find that the intervention of ASP Coret leading to the arrest of the Applicant to be valid and lawful and does not warrant that the provisional charge against the Applicant be struck out.”

In relation to Ground 4, the Court held that even if no charge had been put to the Accused at enquiry stage, or at the time of arrest, this is no reason for the provisional information to be set aside since the evidence ushered revealed that the applicant was, at all material time aware of the nature of the charge against him. The Court therefore held, under Ground 4: -

“I therefore find that the Judges Rules were fully adhered to in relation to the enquiry  against the Applicant, warranting no reason for the provisional charge against the Applicant to be struck out.”

In relation to Ground 1, the Court held: -

“I do not propose to dwell on these points raised by Learned Defence Counsel since any breach of the Applicant’s rights with regards to the interview or whilst the Applicant was giving his statement would affect the admissibility of his statement.”

The Court went on to hold that this cannot affect the purpose behind a provisional information.

The motion of the defence was therefore set aside.

ICAC v Mohammad Shaik Ibraham CN: - 618/11
Sentence delivered on 04 November 2011

The Accused was charged under 28 counts in the Information with the offence of Money Laundering in breach of section 3(1)(a), 6(3) and 8 of the Financial Intelligence and Anti-Money Laundering Act 2002. He pleaded guilty to all counts and was assisted by Counsel.

Under all counts of the Information, it was averred that the Accused dealt with the proceeds of a crime, that is, larceny by person in wages. The total amount involved was Rs 231662/-.

At the Hearing, the defence statement of the Accused was produced whereby he stated one of his relative worked at the DBM. The latter fraudulently caused cheques to be issued on the name of the Accused or friends of the Accused. The Accused and his friends would deposit the cheques into their respective bank accounts and withdraw the money which was remitted back to his relative who works at the DBM. In return, the Accused obtained the sum of Rs 500/- for each transaction. 

The Court sentenced the Accused to pay a fine of Rs 30,000/- under each count of the Information and to pay Rs 500/- costs. The Court however converted the fine into 100 days imprisonment under each count of the Information and one day for costs.

ICAC v Nizam Udeen Peerboccus & Anor CN: - 1299/09
Judgment delivered on 15 November 2011

Accused No 1 stood charged under count 1 of the Information with the offence of Limitation of Payment in Cash in breach of section 5 of Financial Intelligence and Anti-Money Laundering Act 2002 (FIAMLA). He pleaded not guilty and was assisted by Counsel.

Accused No 2 stood charged with the similar offence under count 2 of the Information. He pleaded guilty and was assisted by Counsel.

It was averred under Count 1 of the Information that the Accused No 1 made a payment of Rs 500,000/- in cash to Accused No 2 for the purchase of a portion of land from the latter. Under Count 2 of the Information, it was averred that Accused No 2 accepted a payment in cash from Accused No 1 for the sale of a portion of land from latter.

The Prosecution produced the defence statement of both Accused in which, the transaction was admitted. The Prosecution further adduced evidence to establish that there was a sale of property from Accused No 2 to Accused No 1.

The defence submitted that the offence of Limitation of Payment in Cash was not a strict liability offence and that criminal liability did not arise where the money in question was not derived from any crime.

The Court held that section 5 of the FIAMLA 2002did not expressly create any exception for transactions which are not of tainted origin. In the circumstances, the Court must give the statutory words their plain meaning. The Court further held that liability arises where anu accused party knew he was making a payment.

The Court therefore found Accused No 1 guilty under Count 1 and Accused No 2 guilty under Count 2.

The Court held that, since the money was not from a tainted origin, a custodial sentence was not warranted. However, as per the evidence on record, Accused No 1, being a businessman, perfectly knew what he was doing. The amount was a significant one. The Court sentenced Accused No 1 to pay a fine of Rs 40,000/- under Count 1 and to pay Rs 500/- costs. In relation to Accused No 2, the Court found that latter was not used to these types of transactions and therefore sentenced him to pay a fine of Rs 15,000/- and to pay Rs 500/- costs.

ICAC v Govindranath Gunness & Anor CN: - 1379/07
Ruling delivered on 29 November 2011

The Accused stand charged with the offence of Public Official making use of office for gratification in breach of section 7 of the Prevention of Corruption Act 2002 (PoCA). The date of the commission of the offence as averred in the information is March 2005.

Counsel for Accused No 1 has moved that the proceedings against his client be permanently stayed on the ground that the Information does not disclose an offence known to the law at the time of the alleged commission of the offence, that is March 2005 and that therefore, continuing the process will cause serious breach of Accused fundamental rights.

The motion was resisted by the Prosecution

Counsel for the Accused submitted that section 3 of the PoCA 2002 at the material time read as follows: -

3. Application of Act
A person shall commit an offence under this Act where -
(a) the act or omission constituting the offence occurs elsewhere than in Mauritius; or

(b) the act constituting the offence is done by that person, or for him, by another person.

The Defence submitted that this section is clear, precise and explicit and the court can only give effect to it. The PoCA did not apply to offences committed in Mauritius. An ordinary reading of section 3 is that the offence is constituted by acts committed elsewhere than in Mauritius.

He further submitted that the fact that the PoCA 2002 was not applicable to offences committed in Mauritius lead the Parliament to legislate anew in 2006 to correct this fundamental breach by deleting the words “elsewhere than in Mauritius” and replacing them by “in Mauritius and outside Mauritius”. He submitted that the deeming provision at section 16 of the Prevention of Corruption Amendment Act 2006 was unconstitutional as it is in breach of section 10(4) of the Constitution.

Counsel for the Prosecution submitted that, to fully understand the issue in the present matter, one must refer to the functions of the parliament and referred to section 45(1) of the Constitution, section 4(1) of the Interpretation and General Clauses Act and to the word “or” in section 3 of the PoCA 2002. He submitted that section 3(a) and section 3(b) should be read disjunctively. When section 3(b) is read separately, it is clear that the Act is not restricted to acts which are committed in Mauritius.

It was also submitted that the PoCA repealed all section of the Criminal Code dealing with corruption offences given that the Parliament viewed these provisions of the Criminal Code as ineffective and unclear. If the court was to adopt the view of the defence, this would mean that all acts proscribed by the Criminal Code were rendered legal and this cannot be the case. To ascertain the intention of the Parliament, one should not look at few sections of the statute but to the whole of the statute, the Constitution and the Interpretation and General Clauses Act.

The Court held that it had no difficulty going along the line of argument of the Prosecution. If the interpretation given by the Defence was to be adopted, it would have the most absurd effect which is far from the rational of the PoCA 2002 and would render nugatory all investigations, prosecutions and convictions that were obtained between 2002 and 2006. Many offenders will walk away with impunity. This obviously could not have been the legislative intention.

The Court further held: -

“Hence the defence interpretation would lead to the most unwanted and illogical result. Considering that the old corruption offences under the Criminal Code were repealed, it would mean that a general license was given to indulge in corrupt practices and fraud as from 01.04.02. Mauritian public officers particularly could give free rein to their greed and fraudulent tendencies between 2002 and 2006. On the contrary, it was clear that the PoCA sought to bring about a more effective framework to deal with corruption. In the words of the Act itself, “it is to provide for the prevention and punishment of corruption and fraud and for the establishment of an Independent Commission Against Corruption”.”

The Court took into account the explanatory memoranda accompanying the original Bill and applied the appropriate purposive approach to its interpretation and held that it was clear that the bill targeted corruption in Mauritius. Section 3 could not have aimed only at offences occurring outside Mauritius.

The Court further held that, in light of its observations on the legislative intention, it was of the view that the constitutional aspect of the submissions of the defence became redundant.

The motion of the Defence was therefore set aside.

ICAC v M.Y.Meeajun CN 1588/11
Sentence delivered on 29 November 2011

The Accused stood charged with the offence of Limitation of Payment in Cash in breach of section 5 of the Financial Intelligence and Anti-Money Laundering Act 2002.
 
It was averred in the Information that the Accused unlawfully, wilfully and criminally made 3 payments in cash in foreign currency which was in excess of Rs 350,000/- during the month of July 2004. Under count 1 of the Information, it was averred that the Accused made a payment £ 60,000/- to Shibani Finance Co Ltd and that it was equivalent to Rs 3,103,800/-. Under Count 2 of the Information it was averred that the Accused made a payment £ 35,000/- to Shibani Finance Co Ltd and that it was equivalent to Rs 1,811,250/-. Under Count 3 of the Information, it was averred that the Accused made a payment £ 15,000/- to Shibani Finance Co Ltd and that it was equivalent to Rs 780,000/-.

He pleaded guilty and was assisted by Counsel.

At the Hearing, the defence statement of the Accused was produced, in which, the Accused averred that he has the British Nationality. He resides in the United Kingdom and regularly visits Mauritius. He averred that he owned a care home in the UK. He averred that the money he exchanged at Shibani Finance Co Ltd was proceeds of his business in the UK. He further averred that he was not aware of the offence of limitation of payment in cash under the FIAMLA and was not informed of same by Shibani Finance Co Ltd.
 
The Court sentenced the Accused to pay a fine of Rs 20,000/- under each of the 3 counts and to pay Rs 500/- costs.

 ICAC v Marie Katie Ramgoolam & Anor CN:- 619/11
Sentence delivered on 30 November 2011

Both Accused stood charged with the offence of Money Laundering in breach of section 3(1)(a), 6(3) and 8 of the Financial Intelligence and Anti-Money Laundering Act 2002.

Under counts 1 to 13, it was averred that Accused No 1, Mrs Marie Katie Ramgoolam, deposited into either her bank account, her sons bank account or her partner’s bank account certain sums which she had reasonable grounds to suspect that same were in part directly derived from the offence of swindling and unauthorized access to computer data.

Under counts 14 to 17, it was averred that Accused No 2, Mrs Bibi Parveen Rymanbee deposited a certain sum of money into her bank account, which sum she had reasonable grounds to suspect that same were derived from the offence of swindling and unauthorised access to computer data.

Both Accused pleaded guilty to the offence they were charged with.

At the hearing, the defence statements of both accused were produced. In her defence statement, Accused No 1 averred that her partner, Mr Sajit Rymanbee, is a habitual criminal. She acknowledged that the deposited made into bank accounts as per count 1 to 13 were given by Sajit Rymanbee. She averred that she had serious doubts as to the source of the money. When she questioned her partner, latter told her that same were from his gains at the casinos. She averred that she found the sum very suspicious. She nevertheless deposited the money into the bank accounts.

Accused No 2 averred in her defence statement that her brother is a habitual criminal and a swindler. Latter has been jailed on several occasions. She averred that her brother remitted to her the sums averred in counts 13 to 17 of the Information. She deposited the money into her bank accounts and later, her brother would withdraw the money using her debit card. He admitted that the money given to her by her brother looked very suspicious and doubtful as letter did not work and was a swindler.

The Court sentenced Accused No 1 to pay a fine of Rs 10,000/- under each of count 1 to 13 and to pay Rs 500/- costs. The Court sentenced Accused No 2 to pay a fine of Rs 10,000/- under each of count 14 to 17 and to pay Rs 500/-.

ICAC v Radhashyam Ramtohul CN: - 1107/10
Sentence delivered on 15 December 2011

The Accused stood charged under 4 counts in the Information of the offence of Public Official Using Office for Gratification.

It was averred in the Information that the Accused did, on four occasions, made use of his position as Senior Social Security Officer to recommend the payment of mileage claim allowance to one Mrs Boodhram although the latter did not make use her personal vehicle. The total sum under these four counts which had unlawfully been paid to the said Mrs Boodhram amounted to Rs 11,513.10.

Accused pleaded guilty to all counts of the Information and was represented by Counsel.

At the Hearing, the defence statement of the Accused was produced. He stated that he knew that Mrs Boodhram did not make use of her personal vehicle to perform the trips for which mileage allowance was claimed but he recommended payment of same so as Mrs Boodhram will be paid the amount claimed.

In court, the Accused gave evidence to the effect that he did not receive any money from the transaction and that he has to look after his wife and one of his children. He begged for leniency of the court.

The Court ordered that the Accused be conditionally discharged on all counts upon his furnishing a surety of Rs 30,000/- in cash and entering into a recognisance in his own name in the sum of Rs 50,000/- within 21 days and to be of good behaviour for a period of 3 years failing which he will have to undergo 2 months imprisonment under each count and pay costs of Rs 500/-.   

ICAC v Mahesh Gopaul CN: - 559/09
Judgment delivered on 15 December 2011

The Accused stood charged under two counts of the Information with the offence of bribery by public official in breach of section 4(1)(a), 4(2) and 83 of the Prevention of Corruption Act 2002. Accused pleaded not guilty.

The Prosecution adduced evidence as to an identification exercise carried out where the Accused was identified by the main prosecution witness, one Mr Poorun. Mr Poorun was also called as a witness. He gave evidence to the effect that he was asked to give a Rs 100/- of money whilst making an application for the issue of two birth certificates and that he was also asked to give another Rs 200/- when he was handed the birth certificates.

The Court held that it was not satisfied with the evidence of the main prosecution witness and that the said witness failed to incriminate the Accused in court. The Court also found that the evidence of identification during investigation was done two years after the alleged commission of the offence and as such was unreliable. The Court therefore held that, in view of the unsatisfactory evidence, both counts were dismissed against the Accused.

ICAC v Marie Gilberte Bazerque CN: - 782/11
Sentence delivered on 19 December 2011

The Accused stood charged with the offence of Limitation of Payment in Cash in breach of the Financial Intelligence and Anti-Money Laundering Act 2002.

It was averred in the Information that, on or about the 22nd of September 2007, at Champs des Mars, the Accused made a payment of Rs 1,300,000/- to one Mr Beekhy as refund to Biosphere Trading Ltd, which amount was in excess of Rs 500,000/-.

The Accused pleaded guilty to the Information.

At the Hearing, the Defence statement of the Accused was produced, in which, she acknowledged having made the cash payment as a refund to Biosphere Trading Ltd. She averred that the said company made advance payment for consultancy so as to obtain an export permit. However, the permit was not granted and hence the company claimed its payment back.

The Court sentenced the Accused to pay a fine of Rs 10,000/- and costs of Rs 500/-