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SUMMARY OF JUDGMENTS AND RULINGS
INTERMEDIATE COURT
All four 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. They pleaded not guilty and were represented by Counsel.
It was averred in the Information that all four Accused did wilfully, unlawfully and criminally accept a payment in cash in excess of Rs 500,000/- , to wit, they accepted a payment of Rs 750,---/- from one Anwarhussein Ranjaun following the sale of an apartment situated at Wolmar, Flic en Flac.
Evidence on record was to the effect that all four Accused were co-owners of a property at Wolmar, Flic en Flac, which property they sold to Mr Anwarhussein Ranjaun for Rs 750,000/-. The statements of all four Accused were also produced in Court.
The Court found that Accused No 1 and 3 accepted the payment on behalf of their respective wife, Accused No 2 and 4, and that the latter, that is, Accused No 2 and 4 were not directly involved in the remittance of the money. The Information against Accused No 2 and 4 was accordingly dismissed.
As for Accused No 1 and 3, the Court found that there were clear admissions that they accepted the payment of Rs 750,000/- and sentenced each of them to pay a fine of Rs 15,000/- and costs of Rs 500/-.
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 made a payment of GBP 15,000/- to Shibani Finance Money Changer in exchange of Rs 712,000/-.
The Accused pleaded guilty to the charge.
At the Hearing, the statement of the Accused was produced, in which she confessed having done the transaction as averred in the Information. She further averred that the GBP 15,000/- represented her earnings from her Rest Home Business in the United Kingdom.
The Accused was sentenced to pay a fine of Rs 25,000/- and to pay costs of Rs 500/-.
The Accused stands 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. He pleaded not guilty and was assisted by Counsel.
Counsel for the Defence moved that the present proceedings be stayed as same constitutes an abuse of process inasmuch as the date of the alleged offence is the 21 August 2002 and the Information was lodged on 24 February 2011. He added that in the circumstances, the result of such delay will be that the Accused will not benefit from a fair trial. The Motion was resisted by the Prosecution.
The Prosecution submitted that the time for computation of delay should start as from day of arrest, which, according to the record, was in February 2011. As such, there was no unreasonable or undue delay which would warrant a stay of proceedings in the present matter.
Counsel for the Defence submitted even though the Accused was arrested and formal Information lodged only in 2011, the investigation started in February 2003 and that there was no reason on record to explain the delay.
The Court considered the submissions of both parties and concluded that the general rule is that delay should start as from time of arrest. However, it was of the view that the present matter was a fit case to consider the period from the start of the investigation. The Court found that true it is that there has been some unexplained delay but that there has been no prejudice caused to the Accused since latter was only arrested in 2011 and his first statement recorded in 2010 and that the suspicion of him having committed an offence was not known to him prior to the recording of his statement. The Court found that it cannot be said that the Accused suffered any anxiety or uncertainty from 2003 to 2011.
The Court overruled the motion of the defence and held that the Accused will still benefit from a fair trial at this stage.
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.
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.
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.
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/-
The Accused stood charged under Counts 1 to 17 and Counts 19 to 23 of the Information with the offence of Money Laundering in breach of section 3(1)(a) of the Financial Intelligence and Anti-Money Laundering Act 2002.
It was averred under each of Counts 1 to 17 and 19 to 23 of the Information that the Accused deposited a certain sum of money into bank accounts and that the Accused had reasonable grounds for suspecting that the money was derived directly from crimes, that is, Swindling and Unauthorised Access to Computer Data. The total of the sum involved under Counts 1 to 17 and Counts 19 to 23 was Rs 1,177,200/-.
The Accused stood charged under count 18 of the Information with the offence of Bribery of Public Official in breach of section 5(1)(b) & (2) of the Prevention of Corruption Act 2002.
It was averred under Count 18 that in the month of March 2009 in Port Louis, the Accused gave a gratification of Rs 10,000/- to a Clerical/Higher Officer at the National Identity Card Unit for the issue of a fake National Identity Card.
Accused pleaded guilty to all counts in the Information.
The defence statement was produced in court in which Accused confessed having, on the dates averred in the Information, having withdrawn various sums of money from different persons’ bank accounts using these persons ATM debit card at different casinos. He further confessed having given the sum of Rs 10,000/- to one of his friends who works at the National Identity Card Unit for the issue of a fake National Identity Card, which he used to withdraw money from a bank account.
The list of previous conviction was produced in court as well as the fact that the Accused cooperated with the investigating officers. Furthermore, Accused tendered his apologies from the dock.
The Court took into account the long list of previous convictions which, the Court held, shed light on his bad character and that Accused had been persisting on the wrong track. The Court further found that the Accused failed to mend his ways over the years. The Court also took into account the substantial amount involved for the offence of money laundering. The Court also took into account, as mitigating factors, the guilty plea of Accused and the fact that latter cooperated during the investigation.
The Court held that, in the circumstances, a custodial sentence was fully warranted. The Accused was therefore sentenced to undergo 8 years penal servitude under all counts of the Information and to pay Rs 500/- as costs.
The Accusd stood charged under seven counts of the Information with the offence of Limitation of Payment in Cash in breach of section 5(1) of the Financial Intelligence and Anti-Money Laundering Act (FIAMLA) 2002.
Section 5(1) of the FIAMLA 2002, as it stood at the time of the commission of the offence, read as follows: -
5. Limitation of payment in cash
(1) Notwithstanding sections 30 and 31 of the Bank of Mauritius Act, but subject to subsection (2), any person who makes or accepts any payment in cash in excess of 350,000 rupees or an equivalent amount in foreign currency, or such amount as may be prescribed, shall commit an offence.
Under Count 1 of the Information, it was averred that, on 25 June 2002, the Accused made a payment in cash in excess of Rs 350,000/-, to wit: Rs 664,200/-, into her bank account.
Under Count 2 of the Information, it was averred that, on 12 July 2002, the Accused made a payment in cash in excess of Rs 350,000/-, to wit: Rs 456,500/-, into her bank account.
Under Count 3 of the Information, it was averred that, on 29 January 2003, the Accused made a payment in cash in excess of Rs 350,000/-, to wit: Rs 456,500/-, into her bank account.
Under Count 4 of the Information, it was averred that, on 6 June 2003, the Accused made a payment in cash in excess of Rs 350,000/-, to wit: Rs 446,000/-, into her bank account.
Under Count 5 of the Information, it was averred that, on 4 July 2003, the Accused made a payment in cash in excess of Rs 350,000/-, to wit: Rs 475,200/-, into her bank account.
Under Count 6 of the Information, it was averred that, on 16 January 2002, the Accused made a payment in cash in excess of Rs 350,000/-, to wit: Rs 462,000/-, into her bank account.
Under Count 7 of the Information, it was averred that, on 27 April 2002, the Accused made a payment in cash in excess of Rs 350,000/-, to wit: Rs 714,900/-, into her bank account.
The Accused pleaded guilty and was assisted by Counsel.
At the hearing, the statement of the Accused was produced wherein she explained that, after her marriage, she settled in the United Kingdom with her husband. They were carrying out a renting business of housing units. They were deriving an average annual income of £ 50,000/-. She further explained that they sold some of the housing units they owned. The Accused explained that the money she credited into her bank account was derived from the rent she received and the sale of their housing units.
The Learned Magistrate sentenced the Accused to pay a fine of Rs 10,000/- under each of the 7 counts and to pay costs of Rs 500/-.
The Accused stood charged with the offence of “Traffic D’Influence” in breach of section 10(4) of the Prevention of Corruption Act 2002. He pleaded not guilty and was assisted by Counsel.
It was averred in the Information that, on 01.03.06 under Count I and on 23.03.06 under Count II, the Accused wilfully, unlawfully and criminally solicited a gratification from another person, for any other person in order to make use of his influence, real or fictitious, to obtain a benefit from a public body.
Learned Counsel for the Defence moved that both counts be dismissed because they do not disclose any offence known to the law on the abovementioned dates, more particularly, the offences of “Traffic D’Influence” committed within Mauritius which were not known to the law at the relevant time. The motion was resisted by the Prosecution.
Section 3 of the Prevention of Corruption Act 2002, as it stood prior to the 2006 amendment, reads as follows: -
“3. Application of Act
A person shall commit an offence under this Act where -
- the act or omission constituting the offence occurs elsewhere than in Mauritius; or
- the act constituting the offence is done by that person, or for him, by another person.”
In 2006, section 3 of the Prevention of Corruption Act was amended by the Prevention of Corruption (Amendment) Act 2006 to 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 in Mauritius or outside Mauritius; or
(b) the act constituting the offence is done by that person, or for him, by another person.”
Section 16 of the Prevention of Corruption (Amendment) Act 2006 reads as follows: -
“16. Commencement
(1) Subject to subsections (2) and (3), this Act shall come into operation on a date to be fixed by Proclamation.
(2) Different dates may be fixed for the coming into operation of different sections.
(3) Section 3 shall be deemed to have come into operation on 1 April 2002.”
Learned Counsel for the Defence submitted that the amendment of 2006 to replace “elsewhere than in Mauritius” by “in Mauritius or outside Mauritius” was passed by the National Assembly on 25 April 2006 and purported to give retrospective effect to the amendment to section 3 of the Prevention of Corruption Act 2002 was contrary to section 10 (4) of the Constitution.
Learned Counsel for the Prosecution submitted that section 16(3) was only a deeming clause and that it did not give retrospective effect to section 3. He submitted that no offence was created in 2006 and that the offence of “Traffic D’Influence” existed by virtue of section 3(b) of the PoCA 2002.
The Intermediate Court referred to its ruling delivered on 18 November 2010 where it already ruled that since no mention in made as to offences committed in Mauritius in section 3 at the time of the commission of the offence, the offence was unknown to the law. It was also of the opinion that the amendment in 2006 purported to cure that defect. The court also ruled that, since there was no provision for corruption offences in Mauritius prior to the amendment in April 2006, it should send the matter to the Supreme Court for interpretation as to whether the amendment in 2006 could apply retrospectively.
In its judgment, the Supreme Court held that no criminal law should apply retrospectively since section 10(4) of the Constitution prohibits retrospective legislation in the context of criminal offences.
The Intermediate Court therefore ruled that the offence of “Traffic D’Influence” within Mauritius did not exist in the Prevention of Corruption Act 2002 and that section 16(3) of the Prevention of Corruption (Amendment) Act 2006 purported to cure this shortcoming. However, retrospective effect to this amendment could not be given.
Consequently, the Intermediate Court upheld the motion of Learned Counsel for the Defence to the effect that both counts of the Information cannot stand inasmuch as they do not disclose an offence known to the law at the relevant dates. The Information was accordingly quashed and case dismissed.
The ICAC is appealing against the decision of the Intermediate Court.
ICAC v LE GRAND CASINO DU DOMAINE LIMITEE CN: - 1582/10
Sentence delivered on 28 July 2011
The Accused Company stood charged with the offence of Limitation of Payment in Cash under 7 counts in the Information in breach of section 5 (1) of the Financial Intelligence and Anti-Money Laundering Act 2002 (FIAMLA 2002).
Section 5 (1) of FIAMAL 2002 reads as follows: -
“Notwithstanding section 37 of the Bank of Mauritius Act 2004, but subject to subsection (2), any person who makes or accepts any payment in cash in excess of 350,000 rupees or an equivalent amount in foreign currency, or such amount as may be prescribed, shall commit an offence.”
It is averred under count 1 to 7 of the Information that, during the period of 05 September 2005 to 07 November 2005, the Accused Company willfully, unlawfully and criminally made a payment in cash in excess of Rs 390,000/-, Rs 380,000/-, Rs 400,000/-, Rs 370,000/-, Rs 800,000/-, Rs 540,000/- and Rs 785,000/- respectively.
The Accused Company, through its representative, pleaded guilty to all 7 counts.
The Court sentenced the Accused Company to pay a fine of Rs 25,000/- on each count and to pay Rs 500/- costs.
ICAC v Yoshika AUDIT CN:- 314/10
Ruling delivered on 28 July 2011
The Accused stands charged under five counts in the Information with the offence of Money Laundering in breach of section 3(1)(b), 6 and 8 of the Financial Intelligence and Anti-Money Laundering Act (FIAMLA) 2002. She pleaded not guilty to all counts and is represented by Counsel.
Before the start of the trial, Counsel for the Accused moved that the present proceedings be stayed on two grounds: -
- There has been unconstitutional delay that has lapsed between the alleged date of the commission of the offences and the date the present Information was lodged, which would deprive the Accused of a fair trial as guaranteed by the Constitution;
- The particulars offered by the Prosecution are inadequate for the Accused to benefit from a fair trial as per the Constitution
Counsel for the Prosecution resisted the above motion and Arguments were heard.
The Prosecution called one witness who gave evidence as to the facts and circumstances of the investigation. Thereafter, submissions were offered by both the Prosecution and the Defence.
Under the first ground for stay of proceedings, the Court referred to decisions of the Privy Council setting out the guiding principle when delay is a ground for stay of proceedings, which is as follows: -
- If a criminal case is not heard and completed within a reasonable time, that will of itself constitute a breach of section 10(1) of the Constitution, whether or not the defendant has been prejudiced by delay;
- An appropriate remedy should be afforded for such breach, but the hearing should not be stayed or a conviction quashed on account of delay alone, unless (a) the hearing was unfair or (b) it was unfair to try the Defendant at all.
The Court held that, in the present matter, the very high threshold set by the superior court before finding such a breach of right to being tried within reasonable time has not been crossed. The Court further held that the facts and circumstances of the case do not reveal anything which could raise the eyebrows towards an area of grave concern as regards the time elapsed. The Court found that there was nothing on record which would make it unfair if proceedings against the Accused would continue.
Under the second ground for stay of proceedings, the Court held that true it is that section 6(3) of the FIAMLA 2002 provides that there is no need for the prosecution to specify particular crime from which the property derives and that a similar provision in the Economic Crime and Anti-Money Laundering Act had been held unconstitutional, but the Prosecution had voluntarily and despite this provision of the FIAMLA 2002, particularised the precise crime as being aggravated larceny. The Court further held that it is bound to apply section 6(3) of the FIAMLA 2002 until the superior courts rule that same is unconstitutional.
The motion made by the Defence was therefore set aside by the Court.
ICAC v Johnson ROUSSETY CN:- 1915/10
Ruling delivered on 03 June 2011
The Accused stands charged with the offence of Influencing Public Official in breach of section 9 of the Prevention of Corruption Act 2002. He pleaded not guilty and was assisted by Counsel.
During the examination in chief of a prosecution witness, namely, the main enquiring officer, the Defence objected to the production of certain documents produced to the ICAC by Mr Jean Claude Pierre Louis, the then Island Chief Executive (ICE).
The matter was then fixed for Argument.
At the hearing of the Argument, the Prosecution adduced evidence to show that the documents subject matter of the objection of the Defence are correspondence between the Ministry of Local Government and the Island Chief Executive, emails exchanged between the ICE and the Accused, copy of correspondence between the ICE and the Head of Civil Service and Secretary to the Cabinet.
The submission of Counsel for the Accused is to the effect that the above mentioned documents have been illegally obtained by the Prosecution in asmuch as the ICE had no right to divulge such documents to the ICAC without sanction of the Head of Civil Service given that he is presumed to have signed a DECLARATION containing reference to the Official Secrets Act and an undertaking not to divulge information gained by him by result of his employment to any authorised person. As such, the ICAC having received the documents unlawfully could not proceed in adducing same in Court.
The submissions of Counsel for the Prosecution are that the Official Secrets Act 1972 imposes a duty on any person not to dispose of any material which is prejudicial to the safety or interests of Mauritius. Counsel for the Prosecution therefore submitted that, as per the evidence on record, the documents obtained by the ICAC concern the duties of the Island Secretary in relation to the appointment of workers, the discharge of his functions and the grievances he had against the Accused and as such do not include documents which are of such a nature that will prejudice in any way the safety and interests of Mauritius. He further submitted that it is presumed that the ICE signed only a DECLARATION not an Oath of Secrecy as those provided for under the Prevention of Corruption Act 2002 and the Financial Services Act 2007. He further submitted that if ever the Court is to find that the documents should not have disclosed to the ICAC, then the Court would have to perform a balancing exercise to determine whether the prejudicial effect outweighs the probative value of adducing such documents.
The Court held that there was no evidence on record to show whether the ICE had signed the DECLARATION or not. The Court further found that the DECLARATION is not similar to an OATH OF SECRECY which could be found in the Prevention of Corruption Act 2002 and the Financial Services Act 2007 and that there is no evidence on record to rebut the evidence of the witness for the prosecution to the effect that the documents sought to be produced do not include documents which are of such a nature that will prejudice in any way the safety and interests of Mauritius. The Court further held that it did not find that the ICE committed any illegal act by obtaining and producing certain documents to the ICAC in support of his complaint of alleged acts of corruption.
The Court therefore overruled the objection of the Defence to produce the documents.
ICAC v Gerard Phillippe RAYEPA CN 1238/2009
Judgment delivered on 27 June 2011
The Accused stood charged with the offence of Traffic D’influence in breach of section 10 (4) of the Prevention of Corruption Act 2002 (PoCA 2002).
Section 10(4) of the PoCA 2002 reads as follows: -
Any person who solicits, accepts or obtains a gratification from any other person for himself or for any other person in order to make use of his influence, real or fictitious, to obtain any work, employment, contract or other benefit from a public body, shall commit an offence and shall, on conviction, be liable to penal servitude for a term not exceeding 10 years.
It was averred in the Information that the obtained the sum of Rs 4,700/- from one Mr Nabab for him to make use of his fictitious influence for the latter to obtain a driving licence for motor bus from Traffic Branch, Police Department, without undergoing any test.
Evidence adduced by the Prosecution
The Prosecution called an officer posted at the Traffic Branch of the Mauritian Police Force who gave evidence as to the procedures to follow to obtain a driving licence. He further stated that these procedures are compulsory and that no derogation is accepted.
The Prosecution also called the Complainant, Mr Nabab, who testified as to what happened in the present matter: - He stated that he knew the Accused. During a conversation about driving licences, the Accused proposed to help him to obtain a driving licence for a 14 seater. He stated that he was not interested but Accused latter phoned him on several occasions stating that he had a relative, referred to as “Boss”, working at the Traffic Branch and that the Complainant will not have to undergo the normal test in exchange of Rs 2,500/-. He asked the Complainant to come with a bus for the Driving Test. Complainant told him that he could not come with a bus. Accused then asked him for Rs 4,700/- in which case, he will not have to undergo any test. The Complainant remitted the money to Accused but lost contact with him. He tried to obtain back him money but to no avail. Thus, he lodged a complaint against the Accused.
Evidence adduced by the Defence
The Accused testified under oath and confirmed the truth of his statements. He stated that he obtained Rs 4,700/- as a loan from the Complainant.
Decision of the Court
The Court found that the remittance of the Rs 4,700/- was not in dispute as well as the fact that the Accused had no real influence to obtain a driving licence without going through the normal procedure as evidenced by the testimony of the Police Officer posted at the Traffic Brance. It was also admitted that the Accused was a Police Officer. The only issue which remained to be determined was the purpose of the remittance of the money.
The Court considered that the main witness for the Prosecution was a witness of truth having deposed in a convincing manner. On the other hand, the Court observed that what the Accused stated under oath in Court and he stated in his statement at ICAC contained contradictions.
Subsequently, the Court concluded that the Prosecution had proved its case and convicted the Accused. The latter was sentenced to six months imprisonment and to pay costs of Rs 500.
ICAC v Shibani Finance Co. Ltd CN 148/2011
Judgment delivered on 23 June 2011
The Accused stood charged with the offence of Limitation of Payment in Cash in breach of section 5(1) and 8 of the Financial Intelligence and Anti-Money Laundering Act 2002 (FIAMLA 2002) coupled with section 44 (2) of the Interpretation and General Act.
Section 5(1) of the FIAMLA 2002, as it stood in 2003, reads as follows: -
(1) Notwithstanding sections 30 and 31 of the Bank of Mauritius Act, but subject to subsection (2), any person who makes or accepts any payment in cash in excess of 350,000 rupees or an equivalent amount in foreign currency, or such amount as may be prescribed, shall commit an offence.
(2) Subsection (1) shall not apply to an exempt transaction.
It was averred in the Information that the Accused Company, on 05 July 2003, accepted a payment of GBP 15,000 which was in excess of the prescribed limit of Rs 350,000/-.
It was not disputed that the Accused party did accept such payment. However, it was the contention of the Defence was that the person who was representing the Accused in Court was not involved in the transaction and that it was an exempt transaction.
The Court concluded that this was immaterial given that the Accused party was Shibani Co. Ltd and not the person representing it in Court as the evidence on record showed that the Teller did seek approval of her superior officers before accepting the payment. Thus the Accused Company had the necessary mens rea in the commission of the offence.
Furthermore, the Court considered the relevant definition of exempt transaction as per the FIAMLA 2002 and concluded that the Accused Company was not a Financial Institution so that the transaction could be considered as an exempt transaction.
The Court therefore found the Accused Company guilty as charged and sentenced it to pay a fine of Rs. 125, 000.
ICAC v R. Ramtohul CN: -1107/10
Ruling delivered on 26 May 2011
Accused is a Senior Social Security Officer charged under 4 counts of information for making use of his position for gratification for another person in breach of section 7(1) of the Prevention of Corruption Act.
The defence challenged the admissibility of the statement of the accused given on 26 August 2009 on the grounds of:
- Oppression, in that being a civil servant he had to get a special permission to get to ICAC to give his statement and was under much pressure to get back to office to return some urgent files and that the statements recorded by ICAC was never read over to him before he signed same;
- Use or threat of violence, in that Accused deposed for about 2 hours and was not offered any refreshments so that he was feeling dizzy and hungry as he had not eaten since morning;
- Unreliability, in that he wrote 4 lines in his own handwriting at the end of his statement but he did not scrutinise what he was writing as he was being dictated by ICAC officers and that his statement has not been accurately recorded and that he blindly trusted by the ICAC officer for having properly recorded same.
The defence emphasized that ‘oppression’ according to the definition in R v Fulling [1987] QB 426 is the “exercise of authority in a burdensome, harsh or wrongful manner”, and according to R v Mushtaq [2005] UKHL 25 at [64] it is “questioning so as to excite hopes or fears so as to affect the mind of the subject so that his mind crumbles and he speaks when he could have remained silent”, has been present.
After considering all evidence adduced by the prosecution during the Voire-Dire the court took note that accused is a high-ranking civil servant who has been given ample notice to attend ICAC for a statement. He chose to come without counsel on the appointment day and at no time he requested change of the appointment because his pressing works at office. The court found that the ICAC officers who deponed were constantly clear that accused had read his own statement. The prosecution has proved that the atmosphere was not oppressive and no threat was exercised upon the accused.
The court also found that the Accused spent 1hr & 25 minutes of the morning at ICAC which cannot be said to be such excessive amount of time that failure of the ICAC to offer refreshment would be akin to violence. ICAC cannot be reasonably held responsible if Accused had not eaten anything in the morning and feeling dizzy and hungry at the time of recording of the statement.
The court observed that there is nothing untoward in accused being requested to insert a certificate in his own handwriting and it emphasized that in respect of ‘statement not accurately recorded’ the court is satisfied that Accused had read same before signing and/or initialled at over-writings.
The court held that the Prosecution has proved beyond reasonable doubt that the Accused gave and signed his statement voluntarily and did not give same as a result of oppressive manoeuvres, threats or inducement exercised upon him by ICAC officers.
ICAC v M. Boodhram CN: - 1108/10
Ruling delivered on 04 May 2011
Defence moved that the information as styled be dismissed as it constitutes an abuse and is oppressive or alternatively to have all 17 counts in the information reduced into one single count as they formed a continuous offence.
The court observed that this is not a case where the General Deficiency rule would apply and that this is a case where the principles elaborated in Cossigny v R [1988] SCJ 12 finds its direct application. The court found that the Prosecution in choosing to aver 17 counts under the information has acted within the legal parameters and permissibility. The motion made by the Defence was accordingly set aside.
However, Defence also submitted that there are three other information against Accused each containing 18 counts. Thus, the court went on to observe that for the sake of practicability in matters of drafting, it would be proper for the Prosecution to consider their stand following what was said in R v Taylor [1924] 18 Cr. App.R.25 and which the court in Cossigny (supra) held was “authority for the proposition that the Court of Appeal in England disapproves of the multiplication of indictments (there were indeed three indictments for house breaking), not of counts when, as Avory J rightly observed at p.26, in the Indictments Act there is express authority to put into one indictment all charges of the same character.”
The Court also quote section 67A(1) of the District and Intermediate Courts Act (Criminal Jurisdiction) which provides that an information before the Intermediate Court may contain any number of counts.
ICAC v S.Peerthum & A.S.Jaumally CN: - 602/09
Ruling delivered on 04 May 2011
Both Accused stand charged with the offence of public official using his office for gratification in breach of section 7(1) of the Prevention of Corruption Act.
The Defence objected for a certified true copy of an original document be produced on the ground that it has been established by case law that the document which prosecution intends to produce must be an original one. Prosecution contended that the original document had faded out but was not lost or destroyed.
Investigator of ICAC who secured the original document produced same to the Court. The officer who made the certified true copy of the original document and who produced same to the ICAC in the course of the enquiry positively identified same. He confirmed his handwritings on the document and maintained that he made a copy of the said original document and certified as to its truthfulness. He also explained that the original document has faded away.
Defence referred to Archbold at Par9-98 on “primary and secondary Evidence” relating to private documents which read as follows: “The old rule that only the ‘best’ evidence is admissible now survives only if the rule that secondary evidence of the contents of a private document cannot be given without accounting for the non-production of the original....When a deed or other document or writing is to be given in evidence, the document itself must be produced at trial, except in the following cases:
- Where the document is in the hands of the opposite party;
- Where the document is in the possession of a person who cannot be compelled to produce it;
- Where the writing is physically impossible to produce, and;
- Where it has been lost by time or accident, or by any other casualty.
In such cases its contents may be proved by a copy or other secondary evidence.”
The Prosecution submitted that the original having faded out this brought the document within the ambit of the exceptions where it has been lost by time.
The Court, not being prepared to endorse the submissions of the Defence, relied on the case of The State v Sir Binod Bacha (1996) SCJ 218 which observed the following: “My opinion is that where secondary evidence is sought to be adduced, a satisfactory account of the non-availability of the primary evidence must be given first. What amounts to a satisfactory account is a matter for the appreciation of the Judge taking into account all the circumstances placed before him” and found that the true certified copy of the original produced by the person who duly certified same is admissible and it is for the Court to assess what weight to attach to the said document.
ICAC v P.R Aucharaz & Ors CN : - 964/10
Ruling delivered on 02 May 2011
Accused No.4, a NTA Vehicle Examiner, stands charged for having made use of his position for a gratification in breach of sections 7(1) & 84 of the Prevention of Corruption Act. His Counsel moved to be communicated with particulars as to the averment of gratification under the Counts of the Information, and to which the Prosecution objected.
It is the Defence’s contention that any behaviour falling within the definition of gratification as defined under section 2 of the Prevention of Corruption Act will amount to gratification and the failure of the Prosecution to give particulars of same is in breach of the principle enunciated in section 10(2) Constitution whereby a person must be informed of the nature of the offence charged so that he may accordingly prepare his defence.
The Prosecution argued that the Defence is asking it to qualify the element of gratification and that same would be a matter of law. There was no requirement on the Prosecution to furnish such particulars and that such failure will not deny the accused of a fair hearing as per section 10 Constitution. Sufficient particulars have already been given and it would be for the Court to assess whether ‘filing the Report without examination’ would amount to gratification.
The Court was not convinced with Prosecution’s arguments and it ordered that the particulars of gratification be furnished to the Defence. The Court’s reasoning was that furnishing of such particulars at this stage of the proceedings would minimize delays, permit the Defence to prepare its cross-examination and call defence witnesses.
Further, the Court observed that the issue in the present case is not one of ‘brevity’ but rather one of ‘specifying the type and nature of gratification the Prosecution would be relying upon’ as opposed to keeping the matter conveniently vague and leaving it to the Court to determine whether the Accused’s complained-of behaviour amounts to ‘gratification’.
Finally, the Court relied on the case of Police v Kuderbux [1994] SCJ 424 to add that furnishing to the Defence concise particulars about gratification is far from being and/or adducing matters of evidence.
ICAC v Marie Chantale Dumont & Louis Laval Pietro ANSELINE CN : - 1738/10
Judgment delivered on 24 April 2011
Both Accused were charged with the offence of Money Laundering in breach of Section 3 of the Financial Intelligence and Anti Money Laundering Act 2002 (FIAMLA).
Under count I, both Accused were jointly charged with ‘Money Laundering’ in breach of sections 3(1)(b), 6(3) and 8 of the Financial Intelligence and Anti Money Laundering Act 2002 (FIAMLA). It was averred under this Count that both Accused were in possession of Rs 80,000/- in their bank account, which amount both Accused had reasonable grounds for suspecting that same was derived from a crime, to wit, drug dealing.
Under each of Count II to V, Accused No 1 was charged with ‘Money Laundering’ for having deposited a sum of money in a bank account, where the total sum under these counts amounted to Rs 210,000/- and where Accused No 1 had reasonable grounds to suspect that the said sum was derived from a crime, to wit, drug dealing.
Under each of Count VI to IX, Accused No 2 was charged with ‘Money Laundering’ for being in possession of a sum of money in his bank account, where the total sum under these counts amounted to Rs 210,000/- and where Accused No 2 had reasonable grounds to suspect that the said sum was derived from a crime, to wit, drug dealing.
Accused No 1 pleaded Not Guilty to Count I to V and Accused No 2 pleaded Not Guilty to Counts I and Counts VI to IX.
The Prosecution’s case
Officers of the ICAC were called to produce statements of both Accused recorded under warning. They also gave evidence to the effect that fingerprints were taken from both Accused and that, pursuant to a Judge’s Order, an extract of Accused No 1’s bank statement had been produced to the ICAC, which document was produced in Court.
The Prosecution also adduced evidence to the effect that the fingerprints of both Accused were examined and compared to those on the deposit vouchers and that these fingerprints were from the same person.
The Prosecution called an officer of the Civil Status Office to produce documents to prove that Accused No 1 was the mother of Accused No 2. An officer of the Social Security Office was called to show that Accused No 1 was beneficiary of Basic Retirement Pension whereas Accused No 2 was benefitting from Invalidity Pension, Child Allowance and an additional Basic Invalidity Pension. He then produced several documents showing sums received by both Accused from the Social Security.
The Prosecution also called a representative of the Bank who confirmed that he produced five savings vouchers under the name of Accused No 1 to ICAC. He also produced an account agreement in the name of Accused No 1. He further produced an application for joint account after Accused No 1 made a request to make her bank account a joint one with Accused No 2. He also added that this last document contained two thumbprints and that both the holder and the person intending to hold the joint accounts should be present to sign the agreement. The said agreement is dated 14.06.06.
Finally the Prosecution produced a certified copy of an Information before the Intermediate Court showing that Accused No 2 was charged of Drug Dealing-Possession of Cannabis for the purpose of selling.
The Defence’s case
Accused No 1 made a statement from the dock to the effect that the money she deposited in the bank was hers. She also produced several receipts from Western Union showing money received from various persons from abroad.
Accused No 2 stated from the dock that the money in question were not proceeds of
sale of drugs.
Judgment
The Court held that there was ample evidence on record to prove that Accused No 2 knew of the existence of the money in his bank account and that Accused No 1 herself admitted that she made the deposits as averred under Counts I to V.
The Court then went on to determine whether the evidence on record proved that both Accused had reasonable grounds to suspect that the sum averred under each count in the Information was derived from a crime, to wit, drug dealing.
The Court took into account the fact that the various deposits effected by Accused No 1 in the joint accounts held by both Accused were as follows: - Rs 80,000/- on 10.11.06, Rs 40,000/- on 15.02.07, Rs 20,000/- on 27.02.07, Rs 50,000/- on 19.03.07 and Rs 100,000/- on 27.04.07 whereas the ‘clean’ income derived by Accused No 1, which she herself estimated, ranges from Rs 4,000/- to Rs 5,000/- monthly.
The Court held that it was so clear from these two mentioned facts that the total monthly incomes of these two Accused cannot and indeed have not explained logically and satisfactorily the origins of the sums of money which have been deposited at the specified dates under counts II, III, IV and V.
The Court took into account the abovementioned facts and also the fact that, as per the Information produced, Accused No 2 was involved in drug dealing activities, and held that: -
“Thus, when the above facts are collectively analysed it leaves no reasonable doubt that the proceeds were in fact at least partly as averred by the information under all counts directly proceeds of the crime. Such inference can only be reasonable and there is no other facts which might either destroy or rebut such a reasonable inference as to the tainted origin of the money involved.”
The Court also held that based on the above facts, it can only be safely stated that the facts of this case point unequivocally to the fact that both Accused indeed had reasonable grounds for suspecting that the different sums in lite were derived in part directly from the said crime to wit drug dealing.
The Court therefore found both Accused guilty as charged.
"Accused No 1 was sentenced to pay a fine Rs 100,000/- under each of Count I to V and to pay costs of Rs 500/- and Accused No 2 to pay a fine of Rs 100,000/- under Count I and VI to IX and to pay costs of Rs 500/-."
ICAC v Georges FERDINAND CN: - 111/11
Sentence delivered on 18 April 2011
The Accused was charged with the offence of Traffic D’Influence in breach of section 10(4) of the Prevention of Corruption Act 2002.
It was averred under counts I to VI of the Information that the Accused obtained various sums of money to make use of his fictitious influence to obtain a benefit from a public body for another person, to wit, to obtain a driving license for another person from the Mauritius Police Force.
Under Count VII of the Information, it was averred that the Accused solicited Rs 7,000/- from another person to use his fictitious influence to obtain a benefit from a public body for that person, to wit, the discontinuance of an enquiry by the Police.
The Accused pleaded guilty to all counts in the Information.
The Court sentenced the Accused to undergo a term of 18 months imprisonment under each count in the Information and to pay costs of Rs 500/-
ICAC v Imtiaz Khan DOWLUT CN: - 778/08
Judgment delivered on 13 April 2011
The accused was charged with Bribery by Public official in breach of section 4 of the Prevention of Corruption Act 2002.
It was averred in the Information that on 06.09.04 along Nicolay Road, Port Louis, the Accused did, whilst being a public official, willfully, unlawfully and criminally, solicit for himself from one Mr Sameer Ahmed Baurhoo a gratification for abstaining from doing an act in the execution of his duties.
He pleaded Not Guilty and was assisted by Counsel.
Among other witnesses, the Prosecution called the Complainant who stated that upon being stopped by the Accused for a road traffic contravention, Accused asked him what could he do for the Accused. The Complainant further stated that by these words he understood that the Accused was asking for a gratification.
After taking into account all the evidence on record, the Court held that it cannot be conclusively determined whether the Accused ‘was looking for money’ or had even asked or solicited for money, which is even less likely.
The Court found that the Prosecution has failed to prove the essential elements of the offence beyond reasonable doubt. The information against the accused was accordingly dismissed.
ICAC v Marie Natasha RUNGASAMY & Luciano Curtis BOWANEE CN: - 400/09
Ruling delivered on 13 April 2011
Both Accused stand charged with the offence of Money Laundering in breach of section 3 of the Financial Intelligence and Anti-Money Laundering Act (FIAMLA) 2002.
At the trial, Counsel for Accused No 1 has raised two objections which are as follows: -
- Evidence of an previous arrest in a matter where the Accused No 2 was prosecuted before the Intermediate Court but a nolle prosequi was filed by the Director of Public Prosecutions (DPP) should not be admitted in the present matter as same would be tantamount to a review of the decision of the DPP; and
- Records of convictions subsequent to the alleged offences of Money Laundering should not be admitted as only previous conviction prior to the commission of the Money Laundering offence in the present Information is relevant to enable the Court to make the necessary inference under section 6 of the FIAMLA 2002.
After hearing submissions on both sides, the Court held that by adducing evidence of an arrest in relation to which the DPP has exercised his powers under the Constitution, the Prosecution is not embarking on a request to the Court for a review of the decision of the DPP. The prosecution of both Accused in the present matter has been consented to and referred to the Court by the DPP after he had been communicated with all the material in the present matter.
In relation to the second objection, the Court held that it was appropriate for previous convictions and subsequent convictions to be adduced to enable the Court to infer that the money in lite was proceeds of crime and evidence of later drug dealing is evidence probative of the allegation that the Accused were laundering drugs money over an extended period of time.
The objections of learned Counsel for Accused No 1 was therefore set aside
ICAC v Jennifer MOOKEN CN: - 830/08
Ruling delivered on 29 March 2011
The Accused stands charged under 21 counts in the Information with the offence of Money Laundering in breach of section 3 of the Financial Intelligence and Anti-Money Laundering Act 2002 (FIAMLA 2002). It is averred in the Information that the offences for which the Accused is presently charged were allegedly committed from 3rd January 2003 to 23 January 2003. The Accused pleaded not guilty and is assisted by Counsel.
During the course of the trial, the Prosecution sought evidence from a witness, a police officer, as to the outcome of the arrest of the Accused effected on 26 September 2004.
The Defence objected to this question on the ground that it would be unfair to the defence to allow prosecution to adduce evidence pertaining to facts which occurred in 2004, outside the period in relation to which the Accused stands trial in the present matter.
The Court considered the relevant caselaw and held that it agreed with the proposition of the Privy Council that the evidence of later drug dealing is evidence probative of the allegation that the Accused was laundering drugs money but that it would ultimately be for the Court to decide what weight to be attached to this evidence.
The objection of the Defence was set aside and the question of the Prosecution to the Police Officer, in relation to the arrest of the Accused on 26 September 2004, was allowed.
ICAC v Ravindranath JHUGROO CN: - 1343/08
Ruling delivered on 28 March 2011
The Accused stands charged with the offence of making a false disclosure to the ICAC in breach of Section 49(6) of the Prevention of Corruption Act 2002. The Accused pleaded not guilty and is assisted by Counsel.
During the trial, Counsel for the Prosecution moved to amend the Information to add the word “false” so that the wording of the Information would read “false disclosure”. Defence Counsel resisted the motion and submissions were offered.
The Learned Magistrate, in deciding whether to allow the amendment or not, took into consideration the actual wording of the Information which included the following: -
“..... did willfully, unlawfully and criminally make a disclosure to an officer, that a public official has been involved in an act of corruption, knowing it to be false.”
The Learned Magistrate also took into account several caselaw and provisions of the law and held that: -
“In the present matter as well, i find that the situation is very much the same as in Agathe and in fact the Information is merely defective in that it described an offence known to the law however incompletely. The amendment sought will only comply with the actual wording of the relevant sections.”
The Court also found that the Accused could not suffer any prejudice or embarrassed or misled.
The motion of the Prosecution was granted and amendment allowed.
ICAC v Meckraj DOOLUB CN: - 709/10
Sentence delivered on 23 March 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. The Accused pleaded guilty to the charge and was represented by Counsel.
It was averred in the Information that, on or about 17 September 2003, the Accused did wilfully, unlawfully and criminally make a payment in cash in excess of Rs 350,000/-, that is, a payment of Rs 1,175,000/- in cash to Mr Indursing Cheekhooree.
The Court sentenced the Accused to pay a fine of Rs 10,000/- and costs of Rs 500/-.
ICAC v Alain Dominique PYDIAH CN: - 979/10
Sentence delivered on 21 March 2011
The Accused was charged under 16 counts in an Information with the offence of Money Laundering in breach of section 3 of the Financial Intelligence and Anti-Money Laundering Act 2002 (FIAMLA).
It was averred under each count in the Information that the Accused was in possession of a sum of money in his bank account, which sum was derived from a crime.
The total sum of money under all 16 counts amounted to Rs 394,300/-.
The Accused pleaded Guilty to all counts in the Information and was assisted by Counsel.
At the hearing, the statement of the Accused was produced. In his statement, the Accused agreed that he was working at the Mauritius Commercial Bank (MCB) of Rivière des Anguilles.
The particulars of the offence before the Court were that the crime committed was larceny by person in wages, in that he forged signatures of clients of the MCB of Rivière des Anguilles to transfer sums of money electronically and by way of cheques from clients holding money at the MCB into his personal account.
The Court took into account the fact that the Accused had a clean record and the timely guilty plea and sentenced the Accused to a term of 3 months imprisonment which was suspended. Instead, Accused was sentenced to perform 90 hours Community Service.
ICAC v Fazal Jamalsah CN: - 1185/09
Judgment delivered on 18 March 2011
The Accused was charged with the offence of Bribery of Public Official in breach of section 5(1)(a)(2) of the Prevention of Corruption Act 2002. He pleaded not guilty and was assisted by Counsel.
It was averred in the Information that, on or about 4 June 2009, at Royal Road, Pointe Aux Sables, the Accused wilfully, unlawfully and criminally gave to a public official, CPL Toussaint, a gratification of Rs 100/- so as not to contravene him for a Road Traffic Offence.
Evidence adduced by the Prosecution
The Prosecution called, among other witnesses, CPL Toussaint who deponed to the effect that on 4 June 2009, he was detailed to help children cross the road opposite Pointe Aux Sable Government School. While he was performing his duty, he saw a white van coming from the direction of La Pointe overtook another vehicle on an uninterrupted white line. He signalled the driver to stop, which latter did. He informed the driver, that is, the Accused, that he had committed an offence and that he will have to report him. The Accused asked for a chance. CPL Toussaint asked for the driving license, which Accused handed over to him. While he was noting down the particulars of the license, the Accused asked him anew for a chance and extended his right hand trying to remit something to CPL Toussaint. He asked Accused what was in his hand to which Accused replied “prend sa dité la, laisse moi aller”. He asked Accused what he meant and Accused told him that it was a Rs 100/- note and to take it and let him go. CPL Toussaint took the note and informed the Accused that he was trying to bribe him. He took the Accused to the Police Station where the Rs 100/- note was sealed in an envelope and an entry was made in the Diary Book.
The Prosecution produced the Rs 100/- note as exhibit as well as the Diary Book Entry.
Evidence adduced by the Defence
The Accused deponed under solemn affirmation and denied the charge. The Accused agreed that he was stopped by CPL Toussaint for a Road Traffic Contravention and that he asked for a chance. He averred that he handed over his license to CPL Toussaint but did not know how a Rs 100/- came out together with his license from his pocket and fell in front of CPL Toussaint. Latter then picked up the Rs 100/- note and said to him that he was trying to bribe him.
Decision of the Court
The Court found that it could believe the version of CPL Toussaint who deponed simply with no attempt at embellishment and this despite attempts by the Defence to attack his credibility. The Court also found that most of the material part of CPL Toussaint’s evidence has not been rebutted.
The Court further held that it was unimpressed by the testimony of the Accused and that latter’s version as to the sudden appearance of the Rs 100/- note was far-fetched, if not illogical.
The Court therefore found that the Prosecution had proved its case beyond reasonable doubt and found the Accused guilty as charged.
Sentence delivered on 29 March 2011
The Court took into account the seriousness of the offence and also the fact that the Accused had a clean record and sentenced the Accused to 3 months imprisonment. However, the Court ordered that the sentence be suspended pending the filing of the Suitability Report.
On 09 May 2011, the Suitability Report was filed and the Accused was ordered to perform Community Service for a period of 90 hours.
ICAC v Ismael GOOLAMALEE CN: - 1737/10
Sentence delivered on 11 March 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. The Accused pleaded guilty to the charge.
It was averred in the Information that, on or about 12 June 2008, the Accused did wilfully, unlawfully and criminally accept a payment in cash in excess of Rs 500,000/-, that is, he accepted sum of Rs 1,150,000/- in cash as withdrawal.
At the hearing of the present matter, the Prosecution produced the statement of the Accused in which the Accused agreed that the Cashier at the Bank refused to give him Rs 1,150,000/- in cash but proposed to give him the said amount on an Office Cheque, which Accused refused and insisted vehemently to be paid in cash. It was only then that he was remitted the amount in cash.
On 11 March 2011, the Learned Magistrate, after taking into account the circumstances of the case, sentenced him to pay a fine of Rs 100,000/- and to pay costs of Rs 500/-.
ICAC v G.Guness & Anor CN: - 1379/07
Ruling delivered on 10 February 2011
The Court was called upon by Learned Counsel for the Defence to rule that the statement given by the Accused No 2 on 14 November 2006 was inadmissible in view of the fact that it was obtained following promises made by a person in authority, namely by Senior Investigator Audit as well as through oppression and duress by the same officer.
The motion regarding the admissibility of the said statement of Accused No 2 revolves around the issue of immunity.
The Court held that a person of the calibre of the Accused No 2, who was the General Manager of the DWC, could not be under the impression that he could benefit from immunity. There was nothing in the evidence that suggests that the Accused could have mistakenly taken it that he could be granted immunity or that immunity was applicable to him. The suggestion that Accused No 2 was hoping to have such an advantage is untenable.
In relation to the issue of oppression, the Court went on to hold that it had the opportunity to watch the Accused for a considerable length of time and found that he was not somebody who can easily be impressed. The Court therefore held that, in the circumstances, there was no oppression exercised or hope of advantage meted out to Accused No 2 by the ICAC.
The Court therefore held that the prosecution had proved beyond reasonable doubt that the impugned statement was not made following promises made by a person in authority, that there was no oppression and no duress exercised by SI Audit. The Court accordingly held that Accused No 2 voluntarily wrote his statement on 14 November 2006 when he was assisted by Counsel. His statement was therefore admissible. The Motion of the Defence was accordingly set aside.
ICAC v N.U.Peerboccus & Anor CN:- 1299/09
Ruling delivered on 09 February 2011
The Accused parties stand 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 (FIAMLA 2002). The offences alleged to have been committed by the Accused took place on 09 November 2004.
Section 5 of the FIAMLA 2002 as it stood at 2004 reads as follows: -
5. Limitation of payment in cash
(1) Notwithstanding sections 30 and 31 of the Bank of Mauritius Act, but subject to subsection (2), any person who makes or accepts any payment in cash in excess of 350,000 rupees or an equivalent amount in foreign currency, or such amount as may be prescribed, shall commit an offence.
(2) Subsection (1) shall not apply to an exempt transaction.
The above section was amended by section 11 of the Finance Act 2006 by increasing the limit for effecting payments in cash from Rs 350,000 to Rs 500,000.
The present Information was lodged in 2009 and averred that the Accused made and received payments of Rs 500,000/- on 09 November 2009 in excess of Rs 350,000.
First Motion
Counsel for the Defence moved that the Information be dismissed since the limit for cash transaction is now Rs 500,000/-. Therefore, the Information does not disclose an offence.
The Court held that this reasoning cannot stand because, firstly, the criminal liability arises when the offence is committed, not when the Information is lodged and secondly only the limit for payments in case was changed by the Finance Act 2006, not the offence. At the time of the commission of the offence the law existed as reproduced above. The offence had not been repealed. Furthermore, the Interpretation and General Clauses Act expressly stated that an amendment shall not affect any liability already accrued. The first motion was accordingly set aside.
Second Motion
The second motion of Defence Counsel is to the effect that since the law stated that the cash payment must be in excess of Rs 500,000 and that the payment effected by the Accused amounted to Rs 500,000/-, the transaction cannot attract liability. The Court held that the Accused had been properly prosecuted for payments in excess of Rs 350,000/-. The second motion was therefore set aside.
ICAC v Jaipraygassen SEENEEVASSEN CN: - 634/08
Judgment delivered on 31 January 2011
The Accused stands charged, under Count I of the Information, with the offence of Public Official Using Office for Gratification in breach of section 7(1) of the Prevention of Corruption Act 2002 (POCA). It is averred under this Count of the Information that the Accused, whilst being a Police Constable, obtained Rs 2,600/- from the Complainant in relation to a Warrant of Commitment against the Complainant’s daughter.
Under Count II and II of the Information, the Accused is charged with the offence of Bribery by Public Official in breach of Section 4(1)(b) and (2) of the POCA. It is averred under these counts of the Information that the Accused solicited € 500/- and Rs 4,000/- from the Complainant under Counts II and III respectively in relation to a Warrant of Commitment against the Complainant’s daughter.
Under Count IV of the Information, the Accused is charged with the offence of Bribery by Public Official in breach of section 4(1)(a) and 2 of POCA. It is averred under this count of the Information that the Accused solicited Rs 4000/- from the Complainant in relation to a Warrant of Commitment against the Complainant’s daughter.
The Prosecution adduced evidence to the effect that the Accused was posted to the Warrant Squad of Abercombie Police Station. Two Warrants of Commitment against the Complainant’s daughter had been referred to the said Police Station. The first warrant was referred to in 2004 and the second one in 2005.
The first Warrant was in relation to a debt of Rs 3,000/-. The Accused went to the place of Complainant in search of her daughter. Thereat, he was informed by the Complainant that her daughter was now living abroad. The complainant queried as to the purpose of the visit of the Accused. Latter then informed her that there was a Warrant of Commitment against her daughter and that this will cost Rs 3,000/- for the Warrant. Accused came back to Complainant’s place in the afternoon on the same day and told her that the necessary had been done and that she had to give him Rs 3,000/-. Later, Complainant gave Rs 2,600/- to the Accused to pay for the Warrant against her daughter.
In 2005, the Accused came again to the Complainant’s place in relation to the second Warrant of Commitment. He solicited € 500/- from the Complainant and further solicited Rs 400/- which was still owed to him in relation to the first Warrant of Commitment. The Accused came later and inquired whether the Complainant was agreeable to pay the amount solicited. He then informed the Complainant that he will come back the next day, but never did so.
The Defence adduced no evidence.
Both Counsel for the Prosecution and Counsel for the Defence offered submissions. Learned Counsel for the Prosecution, from the outset, conceded that no evidence had been adduced to sustain Count III of the Information, and the Court accordingly dismissed the third count of the Information.
In respect of the remaining counts, the Court was of the opinion that the evidence adduced by the Prosecution is to the effect that the money remitted and the amount solicited from the Complainant was for a specific purpose; that is, for the Accused to pay the debt owed by the Complainant’s daughter. The Court further held that the corrupt intent was lacking in the present case and that the money remitted and solicited cannot qualify as gratification.
The Court therefore dismissed the Information against the Accused.
The Prosecution has appealed against dismissal of the Information.
ICAC v Tirat MOOSSUN CN: - 1153/07
Judgment delivered on 19 January 2011
Accused was charged with the offence of Conflict of Interest in breach of section 13(2) and (3) of the Prevention of Corruption Act 2002.
13. Conflict of interests
(2) Where a public official or a relative or associate of his has a personal interest in a decision which a public body is to take, that public official shall not vote or take part in any proceedings of that public body relating to such decision.
- (3) Any public official who contravenes subsection (1) or (2) shall commit an offence and shall, on conviction, be liable to penal servitude for a term not exceeding 10 years.
The Information averred that on 03 November 2004, the Accused, who was then the Lord Mayor of the Municipal Council of Port Louis, took part in the proceedings of the Public Health Committee during which a decision to allocate to his sister a stall at the new market in Port Louis was taken.
The evidence adduced by the Prosecution is to the effect that the Accused, who was then the Lord Mayor of the city of Port Louis from November 2003 to November 2004, sat on various committees and sub-committees together with other councillors and staff of the Municipal Council. As Lord Mayor, the Accused enjoyed the same rights as other councillors during the sittings of the various committees and sub-committees, including the Public Health Committee.
The Public Health Committee (PHC) sitting was to be held on 03 November 2004. The proposed agenda was circulated amongst the members of the said committee before the Meeting of the PHC. The PHC had to allocate vacant stalls at the market of Port Louis and a list of applicants for the vacant stalls was also circulated among the members. The name of Mrs Vimla Callichurn was present on the list. The Prosecution produced the minute of the meeting of the PHC held on 03 November 2004, in which the Accused was present. The minute bears no record of any declaration from the Accused to the effect that he had a personal interest in the matter in as view of the fact that his sister had applied for a stall at the market.
The Prosecution also adduced evidence to the effect that before the PHC sits, a ‘small’ meeting of Councillors took place and it was then that the Accused recommended that a stall be allocated to his sister. The recommendation was then approved by the PHC.
The Defence called one witness, Mr Veerabadrun, to give evidence on behalf of the defence. Mr Veerabadrun was the chairman of the PHC at its sitting of 03 November 2004. He stated that all members present at the meeting voted for the allocation of a stall to Mrs Vimla Callichurn and that if ever there was any objection, reservation or declaration from any member, this should have been recorded. He conceded that as per the rules laid down in the Local Government Act, whenever a member has a Conflict of Interest, he must declare it both in orally and in writing and if that person makes such disclosure during a committee sitting, this has to be recorded in the minutes. Furthermore, if any person makes such a disclosure, he must inform the committee. Mr Veerabadrun did not remember whether the Accused disclosed his interest that his sister had applied for a stall at the market in Port Louis.
In his statement, the Accused admitted that he knew that his sister had applied for a stall at the market in Port Louis. He however denied the charge and averred that he had disclosed his interest and had left the committee meeting. He stated that he did not disclose his interest in writing as this was not the current practice at the Municipal Council of Port Louis.
Defence Counsel submitted that the evidence only showed that the Accused was present at the said meeting of the PHC on the 03 November 2004 but no evidence of Accused taking part in the proceedings has been adduced.
The Court held that “taking part in the proceedings” must be given a wide meaning. The Legislator’s aim was to eliminate any bias or likelihood of bias. Hence, “taking part” would include a lesser participation in circumstances which would give rise to a perception of bias or favouritism. The Court held that the mere presence in such circumstances would, in its view, be caught by section 13 of POCA, the more so given that the Accused was the Lord Mayor and that his mere presence gave rise to a perception of bias and had an effect on the decision in question.
The Court further held that even the evidence adduced by the Defence tended to bolster the prosecution case.
The Court therefore found the Accused guilty as charged.
Sentence delivered on 31 January 2011
The Court took into account all mitigating factors in favour of the Accused but however held: -
“Apart from the gravity of the acts committed, the Accused’s status at the material time constitutes an aggravating factor which in my view calls for a punitive and deterrent sentence.”
The Court went further to hold: -
“... a strong signal needs to be sent by the Court to potential offenders that they will not be dealt with lightly if caught.”
The Court therefore sentenced the Accused to 6 months imprisonment and to pay Rs 500/- costs.
The Accused has appealed against conviction and sentence.
ICAC v Sheilendra PEERTHUM and Anor CN: 713/09
Ruling delivered on 30 November 2010
Accused No 1 stands charged under Count I of the Information with the offence of “Public Official Using Office for Gratification” in breach of section 7 (1) of the Prevention of Corruption Act 2002 (PoCA 2002). Accused No 2 stands charged under Count II with the same offence.
Section 7 (1) of the PoCA 2002 reads as follows: -
Public official using his office for gratification
(1) Subject to subsection (3), any public official who makes use of his office or position for a gratification for himself or another person shall commit an offence and shall, on conviction, be liable to penal servitude for a term not exceeding 10 years.
Both Accused pleaded not guilty and were represented by Counsel.
Counsel for Accused No 1 moved that the Information against Accused No 1 be struck out in as much as the particulars in the Information under Count I do not bear out the elements of the offence under section 7(1) of the PoCA 2002 and/or it does not disclose any offence known to the law.
Counsel for Accused No 2 concurred with the motion of Counsel for Accused No 1 and moved accordingly in respect of Accused No 2.
The motion was resisted by Counsel of the Prosecution and submissions were heard.
The motion for Accused No 1 was grounded on the following points in law: -
- The Information contains the words “wilfully, unlawfully and criminally”, which words are not found in section 7(1) of the PoCA 2002;
- There has not been any act of corruption given that, as averred in the Information, the gratification was for another person and that the Accused No 1 did not receive any gratification; and
- The present particulars do not reveal any offence in law.
On the first point raised, the Court relied on judgments of the Supreme Court and held: -
“... it should be clear to all that the offence under Section 7 (1) of the Act would not be committed if the making use of the office by the public official for a gratification for another person was not committed wilfully, unlawfully and criminally so that these words should be implied in the language used by the legislator. On the contrary, should the Information fail to recite these words, then it would have been fatal... “
On the second point raised by Counsel for Accused No 1, the Court relied on the case of Suneechara v The State 2007 SCJ 131 and held that an act of corruption may be committed when the gratification is for another person and it matters not if the public official does not receive anything in return.
On the third point raised by Counsel for Accused No 1, the Court held that should Counsel feel that the particulars are insufficient, then he is perfectly entitled to move for these particulars.
The Court therefore found no merit on the motion by Counsel for Accused No 1 and set aside the motion.
ICAC V Somanum SEEGOOLAM CN: 694/10 & 978/10
Sentence delivered on 30 November 2010
The Accused stands charged in two Information with the offence of “Conflict of Interests” in breach of section 13(1) of the Prevention of Corruption Act 2002 (PoCA 2002).
Section 13 (1) of PoCA 2002 reads as follows: -
13. Conflict of interests
(1) Where-
(a) a public body in which a public official is a member, director or employee proposes to deal with a company, partnership or other undertaking in which that public official or a relative or associate of his has a direct or indirect interest; and
(b) that public official and/or his relative or associate hold more than 10 per cent of the total issued share capital or of the total equity participation in such company, partnership or other undertaking,
that public official shall forthwith disclose, in writing, to that public body the nature of such interest.
In both Information, it is averred that the Accused was at all material time the Director of the Human Resource Development Council (HRDC), which is a public body. His son, Mr Harvesh Seegoolam, was the Director of Visheel Group in which he held more than 10 % equity participation.
The facts averred in the first Information by the Prosecution are to the effect that the HRDC was proposing to deal with Visheel Group for the re-designing and re-development of its website. The Accused failed to disclose in writing to the HRDC the interest his son had in the said Visheel Group.
The facts averred in the second Information by the Prosecution are to the effect that the HRDC was proposing to enter into an agreement with Visheel Group for the placement/Training and Re-Skilling of Unemployed Persons under the Government Empowerment Programme. The Accused failed to disclose in writing to the HRDC the interest his son had in the said Visheel Group.
The Accused pleaded guilty to the counts in each Information.
The Court sentenced the Accused to perform 90 hours Community Service.
ICAC V Toolsy BEEZADHUR CN: 453/10
Judgment delivered on 25 November 2010
The Accused stands charged on five counts in the Information for the offence of “Limitation of Payment in Cash” in breach of section 5 (1) of the Financial Intelligence and Anti-Money Laundering Act 2002 (FIAMLA 2002).
Section 5 (1) of the FIAMLA 2002 reads as follows: -
5. Limitation of payment in cash
(1) Notwithstanding section 37 of the Bank of Mauritius Act 2004, but subject to subsection (2), any person who makes or accepts any payment in cash in excess of 350,000 rupees or an equivalent amount in foreign currency, or such amount as may be prescribed, shall commit an offence.
(The prescribed amount of Rs 350,000/- in Section 5 (1) of the FIAMLA 2002 was amended in 2006 and now reads Rs 500,000/-)
It is averred in the Information under Count I, that on 14 June 2002, Accused made a deposit of Rs 600,000/- , under Count II, that on 12 January 2003, Accused accepted a payment of € 90,000/- (which equivalent in Mauritian rupees was in excess of the prescribed amount), under Count III, Accused made a cash deposit of Rs 500,000/- on 11 January 2006, that under Count IV, Accused made a cash deposit of Rs 500,000/- on 17 January 2006 and under Count V, that Accused made a cash deposit of Rs 820,000/- on 10 January 2007.
He pleaded not guilty and was assisted by Counsel.
The evidence adduced by the Prosecution is the defence statement of the Accused which contained admissions of the above mentioned transactions.
The Accused gave evidence in Court admitting that he effected the transaction as averred in the Information. He further explained that the money was the fruit of his savings.
Counsel for the Accused submitted that the Information was defective inasmuch as one of the material elements of the offence, namely that the property was the proceeds of crime, has not been proved. Counsel submitted that the offence of “Limitation of Payment in Cash” is found in Part II of the FIAMLA 2002 which deals with money laundering offences. He submitted that the prosecution has to aver that the money targeted in the Information is from tainted origin.
Counsel for the Prosecution submitted that the Information is in the wording of the law and therefore not defective. Whether the money is from tainted origin is not an element of the offence.
The Court held that the present Information is in the express words of section 5 (1) of the FIAMLA 2002 and that there is no reason to read words into section 5 (1) which the legislator has deliberately omitted. The Court further held that it is not for this forum to delve into the realm of the Legislature by questioning whether criminal liability should arise from a mere cash transaction as opposed to a cash transaction related to a crime.
Counsel for the Accused further submitted that the Accused has suffered prejudice in conducting his defence on account of delay in prosecuting this case. The prejudice averred by the Accused is that he had difficulty in obtaining documentary evidence in relation to transactions which took place in 2002 and 2003.
Counsel for the Prosecution submitted that as the issue of delay has only been raised at submission stage, the witness for the Prosecution had not had the opportunity to address the issue of delay. She further submitted that the Defence’s version has fully been placed on record in Court.
The Court held that given that the Accused has deponed and that his version is fully on record, the issue of delay has little bearing in the present case.
Finally, it was submitted by Counsel for the Accused that the offence of “Limitation in Payment in Cash” is not a strict liability offence.
The Court held that the Prosecution had shown from the surrounding circumstances that the Accused intentionally made the cash transactions in question. The fact that the Accused did not know that he could not make a cash payment of over a certain limit is not relevant to the issue of guilty.
The Court therefore found the Accused guilty as charged and sentenced him to a fine of Rs 50,000/- on each count.
The Accused is appealing against the decision of the Court. The Appeal is resisted by the ICAC.
ICAC V Satcamsing BUMMA CN: 133/08
Judgment delivered on 19 November 2010
The Accused stands charged with the offence of “Traffic D’Influence” in breach of section 10(4) of the Prevention of Corruption Act 2002.
He pleaded not guilty and was assisted by Counsel.
The evidence adduced by the prosecution is to the effect that the Accused solicited Rs 20,000/- from the Complainant to use his influence on officers of the Public Service Commission to facilitate the Complainant’s wife to secure the job of Primary School Trainee Hindi Teacher.
Evidence was adduced from the Complainant to the effect that money remitted to the Accused was from a loan and that he complained to the ICAC because the Accused did not refund him all the money he gave.
The Complainant’s wife was also called to give evidence by the Prosecution. She however gave a version different from that of her husband.
The Defence adduced no evidence.
The Court considered the evidence on record and held that not only there were contradictions between the Complainant’s version and his wife’s version but also there were major contradictions between the version given by the Complainant in court and the allegations he made against the Accused.
The Court held that for the above reasons, it was most unsafe to rely on the versions of the witnesses called by the Prosecution. The Information was accordingly dismissed.
ICAC V Kiran Kumar BURHOO CN: 273/07
Judgment delivered on 03 November 2010
The Accused stands charged with the offence of “Public Official Using His Position for Gratification” in breach of section 7 (a) of the Prevention of Corruption Act 2002.
The Accused pleaded not guilty and was represented by Counsel.
The facts averred by the Prosecution are to the effect that the Accused used his position as police constable to obtain Rs 200/- for himself from the Complainant for not reporting two road traffic offences against the latter.
The Prosecution called several witnesses including the Complainant to depone in Court. The Complainant explained that he was driving his van conveying school children. The Accused stopped him and, after verification of the Complainant’s vehicle and having taken down all details about the Complainant, Accused informed him that he had committed two road traffic offences, that is, failing to wear seat-belt whilst driving and carrying passengers in excess of what is permissible. The Complainant begged the Accused for a let-off. Thereupon, the Accused asked the Complainant what the latter can do for him. Complainant removed a Rs 100/- note from his pocket and handed same to the Accused. The Accused refused to take the money and told the Complainant that there were two bookable offences and that the Complainant should give him Rs 200/-. The Complainant then informed the Accused that he did not have the Rs 200/- asked for by the Accused. Latter told the Complainant to go to the bank after his trip and to meet him at Abercombie Police Station after his trip to give him Rs 200/-. Accused also told the Complainant that should he not remit the Rs 200/- before noon, then Accused will insert the contravention in the “Books” at the Police Station.
The Complainant further explained to the Court that, after his trip, he went to the bank in Port Louis and withdrew some money. He then went to lodge a complaint to the ICAC.
ICAC officer also gave evidence in Court. They explained that, upon being informed about the whole incident, they decided to carry out a sting operation. They accompanied the Complainant to witness the remittance of the money, after which, they would arrest the Accused.
They proceeded to Abercombie Police Station where they were informed that the Accused was at the Intermediate Court. Through a telephone conversation, the Accused informed the Complainant that he would be standing opposite the New Court House near the ”Dholl Puri” merchant.
ICAC officers and the Complainant proceeded to Port Louis. ICAC Officers reached the spot before the Complainant and noticed that the Accused was at the convened place. The Complainant then came over and remitted the money to the Accused. Once the note has been remitted to the Accused, they approached him and informed him of their identity. The Accused immediately put the bank note in his mouth and swallowed it. The Accused was arrested on the spot.
Other prosecution witnesses were heard and the Prosecution produced the memo pad on which the Accused recorded all the details about the Complainant.
The Defence did not adduce any evidence and submissions were offered in Court.
The Court held that the Complainant was a genuine and honest witness on whose evidence the Court can rely. The Court held that the Accused was minded to unlawfully use his position as a police officer for a gratification for himself. The Court went on to say that the memo pad produced speaks for itself: The Accused would have booked the Complainant had he, the Accused, not intended to seize the opportunity to use his position as a police officer for gratification.
On the issue of entrapment raised in submissions by Learned Counsel for the Accused, the Court held that the completion of the offence would have occurred with or without the involvement of the ICAC officers.
The Court therefore found the Accused guilty as charged.
Sentence was delivered on 08 November 2010.
The Court held that the gravity of the act committed calls for a punitive and deterrent sentence. Despite being caught red-handed, the Accused denied the charge on being arrested.
The Court went on to hold: -
“...it must be borne in mind that the Accused here is a police officer, a figure of authority who is meant to maintain law and order. As the public expects a high standard of conduct from the Police, he should be an example to others....
Regarding his act as minor and showing leniency to this Accused would send the wrong signal to potential offenders who might be minded to indulge into similar acts of bribery.”
The Court sentenced the Accused to undergo a term of 6 months imprisonment and to pay Rs 500/- costs.
The Accused is appealing against the decision of the Court. The ICAC is resisting the Appeal.
ICAC V SURESH MAHADEO CN 271/09
JUDGMENT DELIVERED ON 26 OCTOBER 2010
The Accused stands charged with the offence of Bribery by Public Official under two counts in breach of section 4(1)(b) of the Prevention of Corruption Act 2002.
It is averred in the Information that under the first count on 18 July 2005 and under the second count in September 2005, the Accused, whilst being a public official, willfully, unlawfully and criminally solicited a gratification from another for himself for doing an act which is facilitated by his functions.
The evidence adduced by the Prosecution is to the effect that the Accused was at the material time the General Manager of the Rose Belle Sugar Estate (RBSE). He was also responsible for the approval of purchase orders of the RBSE given that during that period there was no financial controller at the RBSE.
The main prosecution witness was Mr Desai, the Director of Kripcen Agro Chemicals LTD (Kripcen), a herbicide supplier to the RBSE. He deposed to the effect that, on 18th July 2005, an appointment was fixed with the Accused in the parking of Eurolux at Eau Coulée. Prior to this meeting, he did not know the Accused. During that meeting, Accused told him that he was “le seul maître à bord” and that other suppliers to the RBSE were offering him 11 % commission and solicited 10 % commission from Desai. To impress Desai, the Accused phoned at the RBSE and asked to “activate” a payment to Kripcen which was pending at the RBSE.
Following the meeting with the Accused, Desai went to report the matter to the Minister of Fisheries and Agro-Chemical to the effect that the Accused was asking for 10 % commission on supplies to the RBSE. Straightaway, the Minister reported the matter through phone to another person not known to Desai.
After the report to the Minister, Mr Desai noticed that the purchasing orders from RBSE were not arriving in time. After having enquired from the officers of the sugar estate, he asked for a meeting with the Accused. An appointment was fixed again at Eau Coulée. There, the Accused asked Desai to enter a room on the first floor of the Eurolux Building. There, Accused told Desai “tone baise moi are ministre, cette fois to donne moi 20 % commission lors supply produits herbicide sinon pena négotiations ’’. To this, Desai replied “Be fer ène compagnie ou travail ou meme”. He then left the room.
The witness also gave evidence that following these acts of solicitations which were turned down, he encountered problems in receiving orders from the RBSE and also his payments by the sugar estate were being withheld. He was not awarded the contract for supply of chemicals to the RBSE for the following year. At as result of same, he went bankrupt.
The prosecution adduced evidence to the effect that the Accused formally asked tests to be performed only on herbicides supplied by Kripcen. At some point in time, the Accused informed the Board of the RBSE that the herbicides supplied by Kripcen were not of required quality. He also informed the Board that he has reports as to the quality of the herbicides but at no instance the reports were tendered to the Board. The prosecution also called the agronomist of RBSE who gave evidence to the effect that the damage to planters’ fields were not due to quality of the herbicides supplied by Kripcen but was due to the application of these herbicides.
The Purchasing Officer of RBSE was also called by the prosecution. In court, he explained the procedures for the purchase of herbicides at the sugar estate. He stated that prior to December 2005, Accused approved all purchases of the sugar estate. It is only in December 2005, that the Accused instructed him not to buy from Kripcen.
Mrs Seeburn from the Registrar of Companies was called by the defence. She gave evidence to the effect that Kripcen Agro Chemicals LTD was a registered company at the Registrar of Companies and that in 2004 and 2005, the company was making profits and that it started running at a loss as from 2006.
The Accused exercised his right to silence in Court.
The Defence submitted firstly in law to the effect that the Court had no jurisdiction to hear the present matter because as at the material time, the law as it stood was to the effect that the offence had to be committed outside Mauritius.
The Court held that it would be nonsensical to say that the Act did not apply to Mauritius. Further, considering the purpose and rationale of the legislation, it would be nonsensical to rule that the law did not apply to acts of corruption committed within Mauritius. Looking at the whole Act, it can only be construed that his section aimed at offences occurring in and outside Mauritius. The original Bill targeted corruption in Mauritius.
The Court accepted the testimony of witness Desai. It ruled out all possibility of lie or concoction and held that the evidence of Mr Desai was corroborated in material particulars by unrebutted evidence on record.
Based on all the evidence on record, the Court found that the prosecution had proved its case beyond reasonable doubt under both counts of the Information and accordingly found the Accused guilty as charged.
The sentence was delivered on 28th October 2010. The Learned Magistrate considered the relevant caselaw and all factors which must be considered as mitigating or aggravating. The Court viewed with much concern that the Accused used his important position of power and control to make money for him to the detriment of this public-funded statutory body (RBSE).
The Learned Magistrate sentenced the Accused to undergo one year imprisonment under each count of the Information.
The Accused is appealing against conviction and sentence.
ICAC V CHETANAND PURSUN AND ORS CN 126/08
RULING DELIVERED ON 06 OCTOBER 2010
All Accused are charged under different counts in the same Information for the offence of Conflict of Interests in breach of section 13 (2) of the Prevention of Corruption Act 2002.
Counsel for Accused No 4 moved for separate trial on the following grounds:
- Ex facie the Information, there is no nexus between count 7 under which Accused No 4 stands charged and the rest of the Information charging the two other Accused parties under different counts but with the same offence of Conflict of Interest;
- Out of 15 witnesses for the prosecution, only some 3-4 of them would be relevant for Accused No 4. If a separate trial is not granted Accused No 4 will have to attend court to hear evidence not relevant to him. This will cause inconvenience and prejudice to Accused who is of poor health; and
- Accused No 4 has made an application to the Supreme Court by way of motion and affidavit against a previous ruling delivered by this bench. This is a compelling reason for joint trial not to take place.
The motion was resisted by the Prosecution and Learned Counsel for Accused No 2 also disagreed with the motion of Counsel for Accused No 4.
It is averred in the Information that all the Accused took part in the proceedings of a public body on 31st July 2007 whilst their relative had a personal interest in the decision reached by that public body.
Learned Counsel for Accused No 2 submitted that all counts in the Information relate to one committee meeting in which all Accused took part. Furthermore, if the motion was to be acceded to, Accused No 2 would suffer prejudice as the witnesses would know the case they have to meet in advance in case they had already deposed in a separate trial for any other Accused.
Learned Counsel for the Prosecution also submitted that if the motion is to be granted, this will affect the Prosecution as it will need to produce same documents and exhibits in separate cases. The Court held that the submissions of Counsel for Accused No 4 to the effect that there was no nexus between the different charges in the Information was unfounded.
Furthermore, the Court held that the alleged poor health of Accused No 4 is not a ground for separate trial.
The Court went on to hold that the decision of Accused No 4 to have a previous ruling by the present Bench reviewed by the Supreme Court is not in itself a valid ground for ordering a separate trial.
The Court held that there is also the desirability that the same verdict and same treatment be returned against all those charged with same offence. The Court took into account the principle for separate trial which would be granted only in exceptional circumstances.
The Court set aside the motion for separate trial and ordered the trial to proceed.
ICAC V naushad maudarbaccus AND ORS CN: 101/09
Judgment delivered on 17 September 2010
The Accused parties were charged before the Intermediate Court with the offence of Conflict of Interest in breach of section 13(2) of the Prevention of Corruption Act 2002 for having, whilst being public officials, taken part in the proceedings of a public body whilst their relatives had a personal interest in a decision of the public body.
The case for the Prosecution was to the effect that one of the Accused parties was the chairman of the Tobacco Board whilst the two others were members thereof. They took part in a meeting of the Board, on 29 January 2008, when the decision was taken in connection with the allocation of permit for the production of ‘Virginia Flue Cured Tobacco’ wherein the relatives of the Accused parties were among the applicants.
During the course of the trial, the Court was apprised of the procedures adopted by the Tobacco Board for the taking of decisions. The Prosecution also produced a certified copy of the minutes of proceedings of 29th January 2008.
Based on all the evidence adduced by the Prosecution, the Court held that there were deliberations with regard to the allocation of the said permits and that the decision taken was a unanimous one. Furthermore, the Court held that it was clearly established that none of the Accused parties left the meeting during the deliberations. As such, the Accused parties did participate in the decision making process, the more so as their mere presence during the meeting would amount to them taking part in the proceedings of the Tobacco Board.
The Court therefore found the Accused guilty as charged in the Information.
On 21 September 2010, the Court sentenced each of the Accused to a sentence of 3 months imprisonment and to pay Rs 500/- costs. The imprisonment sentence was however converted to a Community Service Order of 90 hours for each of the 3 Accused.
The Accused are appealing against conviction and sentence.
ICAC V Rajen Velvindron & ORs CN: 626/07
RULING DELIVERED ON 01 SEPTEMBER 2010
The Accused parties are being charged with the offence of Money Laundering, in breach of Section 17 of the Economic Crime and Anti Money Laundering Act (ECAMLA), involving property which represented the proceeds of a crime.
Before the start of the trial, Defence Counsel moved for particulars of the crime averred in the information. It is worth noting that section 17(7) of ECAMLA provides that:
“In any proceedings against a person for an offence under this section, it shall be sufficient to aver in the information that the property is, in whole or in part, directly or indirectly the proceeds of a crime, without specifying any particular crime, and the Court, having regard to all the evidence, may reasonably infer that the proceeds were, in whole or in part, directly or indirectly, the proceeds of a crime.”
However this provision of the law has been declared unconstitutional by the Supreme Court in the case of Bholah A. Z. & Anor v The State of Mauritius [2009] SCJ 432 and therefore no longer applicable.
In the light of the Supreme Court judgment, the Prosecution furnished some particulars by stating that the crime was ‘Drug Dealing’. However, feeling dissatisfied with such particulars, the Defence moved for further particulars to which the Prosecution objected.
The Court was therefore called upon to decide whether further particulars ought to be furnished. In so doing, the Court considered whether the Defence must be provided with further particulars for the Accused to benefit from a fair trial under section 10 of the Constitution. The Court reached the conclusion that no further particulars need to be provided given the nature of the offence and given that all material which the prosecution intended to use during the course of the Trial, had been communicated to the Defence. The motion for further particulars was therefore set aside.
ICAC V DHARMANAND GROODOYAL CN: 1342/07
RULING DELIVERED ON 27 AUGUST 2010
The Accused stands charged with the offence of Bribery by a Public Official in breach of section 4(1)(a)(2) of the Prevention of Corruption Act 2002. He was represented by counsel.
Before the start of the Trial, counsel for the Accused moved that the proceedings against the Accused be stayed on the following grounds: -
- In the particular circumstances of the case, it would be unfair to try the Accused as there has been a breach of Section 3(a) and 10 (1) of the Constitution;
- In the particular circumstances, the Accused has been prejudiced by the delay in the trial;
- It offends the Court’s sense of Justice and propriety to try the Accused in the particular circumstances of the case.
At the start of the hearing, the Prosecution called one witness who produced an affidavit setting out the sequence of all the events in the present matter.
The evidence of the prosecution is to the effect that the investigation was started on 30 December 2002 and it was completed in October 2003. The Accused was arrested on 22 October 2003 and bailed out on the same day. The case was lodged before the Intermediate Court and came several time pro forma and then on various occasions for merits. It is worthy to note that the affidavit clearly set out the fact that the case was postponed for a rather long period as Counsel for the Accused was not free to ensure the defence of the Accused the moreso that save and except that postponement was asked for by the Prosecution on only one occasion, all postponements were asked for by the Defence.
The Defence did not adduce evidence in court.
The Court considered the caselaw on the issues raised by the Defence and held that the power to stay a proceedings will be exercised only in exceptional circumstances. In the present matter, the Accused rights were safeguarded at every stage of the proceedings. Furthermore, the delay in the trial cannot be attributed to the Prosecution.
The Court went on to hold that: -
“Therefore, there is no unfairness or injustice or infringement of the right of the Accused. Nor is there any form of oppression or prejudice which is in the nature to prevent the Accused from benefiting from a fair trial by this Court.”
The Court reviewed the circumstances in the present matter and held that there is nothing in the way the prosecution had been conducted so far, which would amount to an abuse of process.
The Motions was therefore dismissed.
ICAC V RAKESH RAMMESSUR CN: 1105/10
SENTENCE DELIVERED ON 13 AUGUST 2010
The Accused was charged with the offence of Bribery of Public Official in breach of Section 5(a)(b)(2) of the Prevention of Corruption Act 2002.
The Information averred that on 14 May 2009 at SSR International Airport, the Accused willfully, unlawfully and criminally gave a gratification of 50 EURO to a Custom Officer so as not to be charged any duty or tax in connection with a laptop which the Accused brought from abroad.
On 29 July 2010, the day of the trial, the Accused pleaded guilty.
The Prosecution produced the defence statement of the Accused in which the latter admitted having given 50 EURO to the Custom Officer so as not to pay tax on a laptop which he brought into Mauritius.
The Court sentenced the Accused to 6 months imprisonment and to pay Costs of Rs 500/-. The sentence was however suspended and the Learned Magistrate ordered that a Probation Report be produced.
On 13 August 2010, the Probation Report was produced and the Accused was ordered to perform Community Service in lieu of imprisonment. The Accused was ordered to perform 120 days community service at the Gandhi Breed Ashram of Petit Raffray starting on 14 August 2010.
ICAC V Bidianand JHURRY CN: 1186/2008
Judgment delivered on 19.07.10
The Accused was charged with five counts in an Information with the offence of Public Official Using Office for Gratification in breach of section 7 of the Prevention of Corruption Act 2002. He pleaded not guilty and was represented by Counsel.
The averment in the Information is that the Accused used his office as Chairman of the Sugar Industrial Labour Welfare Fund Committee (The Committee) to cause five of his relatives to be offered employment at various Community Centres as community welfare assistants.
The Prosecution adduced evidence to the effect that 3 of the sons of the Accused, namely Devand Kumar Jhurry, Chandan Kumar Jhurry and Khatick Kumar Jhurry, and his nephew, Outam Jhurry and his daughter-in-law, Jankee Jhurry had all been appointed Community Welfare Assistant.
The evidence adduced by the Prosecution show that the procedure is that, as a matter of good practice, the vacancies for the post of Community Welfare Assistants have to be advertised. Names of candidates retained by the Staff sub-committee were then sent to the main Committee and then to the Ministry for approval. However in the present case, the procedure was not followed. The Accused informed the Committee that since Community Welfare Centres had already been built, it was urgent that Community Welfare Assistants be appointed to avoid acts of vandalism etc. The Accused prepared a list of proposed Community Welfare Assistant and instructed the secretary of the Committee to write to the Ministry so as to obtain approval for the appointment of the persons whose names have been included in the list. The list was neither circulated nor shown to the Committee.
Upon receiving the list, the Ministry approved the appointment of the persons whose name was on the list except the 5 relatives of the Accused as all of them bear the same name and, by way of letter, the Ministry sought for clarifications.
The evidence of the Prosecution further shows that the Accused was informed of the content of the letter from the Ministry. He instructed the Secretary of the Committee to inform the Ministry that the fact that Mr Katick Kumar Jhurry and Mr Outam Jhurry and Mr Chandan Kumar Jhurry bore the same family name is mere coincidence.In relation to Devand Kumar Jhurry, Accused caused 2 letters to be sent to the Ministry stating that the former and the Accused do not live in the same area and are not closely related. The purpose of this letter is to dispel any potential objections of the Ministry for the appointment of Devand Kumar Jhurry.
On 19th July, 2010, judgment was delivered and the Court held that the acts of the Accused and the letters amply show that the intention of the Accused, which was to cause the Ministry to approve the appointment of his sons and nephew as Community Welfare Assistants by deliberately misstating the facts to conceal his family ties so as to obtain the Ministry’s approval for the appointment of his relatives.
The Court held: -
“For the reasons given above, the Accused was instrumental in securing employing for his relatives under each of the 5 counts by using his office as Chairman to circumvent the normal procedure for recruitment and by misstating the facts. The Accused clearly acted intentionally.... The Accused is therefore found guilty as charged under all five counts.”
On the same day, the Court sentenced the Accused to undergo 12 months imprisonment under each of the 5 counts in the Information. The Court held that: -
“A custodial sentence is warranted because of the nature of the offence. The Court also notes that the unlawful acts of the Accused have resulted in the expenditure of public money and denial to other persons of the opportunity to obtain employment.”
The Accused is appealing against the conviction and sentence.
ICAC V Mohit MUNGREE CN: 1004/2008
Judgment and sentence delivered on 15.07.2010
The Accused, who was working at the Moka-Flacq District Council (MFDC), was charged with the offence of Traffic D’Influence in breach of section 10(5) of the Prevention of Corruption Act 2002. He pleaded not guilty and was assisted by Counsel.
Evidence adduced by the Prosecution
Mrs Busjeet, one of the Prosecution witness, is the acting Head Planner of the MFDC. She enlightened the Court as to the procedure for the approval of a Development Permit by the MFDC. An applicant must submit his application form together with all relevant documents at the Reception Desk of the Planning Department. After verification of the documents, the applicant is issued with an Acknowledgment of Receipt of the application form. An application file is then prepared. The file is processed by the Inspectors and handed to her for recommendation for approval by the Permit and Business Monitoring Committee (PBMC). The PBMC issue the Permit and the file is sent back to Mrs Busjeet for her to instruct the relevant inspector to inform the Applicant of the grant of the permit and to call to the MFDC to sign a declaration form. The Accused was responsible for the follow up and monitoring of Application.
Mrs Busjeet also gave evidence that, in the present matter, once the PBMC had approved the application, she instructed Mr Mootooveeren, an Inspector of the MFDC, to inform the Applicant that his application ahd been approved and to call at the MFDC to sign the Declaration form. She inserted a minute to that effect in the file. Later, the Applicant came to meet her and queried about his application. She asked Mr Mootooveeren about the file and she was informed that the file was missing. Later, when the file was retrieved from a drawer at the MFDC, Applicant was informed that his application was approved. Latter came to meet her and informed her that the Accused had asked for Rs 5000/- for the application to be approved. She took the Applicant to Mr Seechurn, the Chief Executive Officer (CEO) of the MFDC.
Mr Mootooveren gave evidence in Court that the Applicant came to meet him and that Mrs Busjeet queried about the file. The Application File could not be retrieved and went missing at the MFDC. Later, he found the file in a drawer at the MFDC. There was an entry inserted by the Accused in the file.
Mr Seechurn, the CEO, explained in Court that Mrs Busjeet brought the Applicant to meet him. The latter told him that the Accused asked him Rs 5000/- for his application for development permit to be approved. He asked the Applicant to make a complaint to the ICAC. He also stated that the Accused does not form part of the PBMC but is only responsible for the follow up and monitoring of Applications.
The Complainant, Mr Gungaram, is the Applicant in the present matter. He explained that following the death of his parents, he submitted an application for Development Permit together with all relevant documents at the MFDC. After some time, since he did not hear anything about his application from the MFDC, he went to the District Council to query about his application. There, he was directed to the Accused, who was responsible of follow up of Applications. The Accused retrieved his application file and asked him to go home as Accused will call him later.
He then received a phone call from the Accused on his mobile phone asking him to come at the Accused house. Over there, he met the Accused who asked him to come inside. The Accused showed to him his Application File and told him that 75% was in order and 25% was not. Accused asked him for Rs 5000/- for the other 25% to be settled. He told the Accused that he did not have that sum with him and returned back home.
A couple of days later, another officer of the MFDC called him and informed him that his Permit was approved and that he will have to come to collect same. He went to collect his Permit and then met Mrs Busjeet and informed her that the Accused had asked for Rs 5000/- for his permit to be approved. Mrs Busjeet brought him to the office of the CEO where he related the matter. He was then requested to give a declaration to the ICAC.
Evidence adduced by the Defence
The version of the Accused is that he never asked the Applicant to meet him. It is the Applicant who came to meet him. He only explained to the Applicant that he will have to sign a Declaration Form and explained the procedure to him. He denied having handled the Application File but that the file came to him when the Applicant came to the MFDC to enquire about his application. He said that he received instructions from Mrs Busjeet to inform the Applicant that he will have to sign a declaration form.
Judgment
The Court considered all the evidence on record and held that the Accused was never instructed by Mrs Busjeet to inform the Applicant about the Declaration Form. In fact, evidence shows that she instructed only Mr Mootooveeren to inform the Applicant about the Decalration Form. And that when the file went missing at the MFDC, same was in possession of the Accused and it was the same file that the Accused showed to the Applicant when he met the Accused at the latter’s place. He Court held that it could safely act on the evidence of the witnesses for the prosecution to find the Accused guilty.
The Court also considered the facts averred in the Information are to the effect that the gratification was for another person. The Court held that this was immaterial. The Trial Court referred to the case of DPP v Coureur 1982 MR 72, and held that the mention of the recipient in the Information is mere surplusage and immaterial.
The Court rejected the version of the Accused and qualified it as a tissue of lies and found the Accused guilty.
The Court took into account the seriousness of the offence and found that a non-custodial sentence will not meet the ends of justice. The Court held that a short term of imprisonment was fully warranted in the circumstances of the present case and sentenced the Accused to undergo 3 months imprisonment and to pay Rs 500/- as costs.
ICAC v Mrs Sahera JANNOO CN:1048/09
Sentence delivered on 14th of July, 2010
The Accused was 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 (FIAMLA).
In an Information lodged against her before the Intermediate Court, Mrs Jannoo was charged for having made a payment of Rs 400,000/- to the ABC Finance and Leasing, which payment was in excess of the prescribed limit of Rs 350,000/-.
In the statement she gave to the ICAC and produced in Court, the Accused explained that she derives her income from her shop, as a Freelance Marketing, from monthly alimony from her ex-husband and from gains at casinos. She further explained that merely repaid the loan she contracted with ABC Finance and Leasing with her income.
Mrs Jannoo pleaded guilty to the charge before the Court. The Learned Magistrate sentenced her to pay a fine of Rs 10,000/- and to pay Rs 500/- costs.
Police v Mohammad Jeelany Meeajun CN: - 357/10
Judgment delivered on 07.07.10
The Accused was charged under four counts of an Information for the offence of Limitation of Payment in Cash in breach of section 5(1) and 8 of the Financial Intelligence and Anti-Money Laundering Act 2002(FIAMLA). He pleaded not guilty and was represented by Counsel.
Section 5(1) of the FIAMLA is as follows: -
5. Limitation of payment in cash
(1) Notwithstanding section 37 of the Bank of Mauritius Act 2004, but subject to subsection (2), any person who makes or accepts any payment in cash in excess of 500,000 rupees or an equivalent amount in foreign currency, or such amount as may be prescribed, shall commit an offence.
The Information averred that on four different occasions, the Accused made payment of Great Britain Pounds in exchange of Mauritian Rupees. Under Count 1, it is averred that the Accused made a payment of GBP 15,000 in exchange of Rs 712,000/-. Under Count 2, it is averred that the Accused made a payment of GBP 50,000 in exchange of Rs 2,287,500/-. Under Count 3, it is averred that the Accused made a payment of GBP 45,000 in exchange of Rs 2,058,750/-. Under Count 4, it is averred that the Accused made a payment of GBP 200,000 in exchange of Rs 10,480,000/-.
The evidence of the Prosecution as to the fact that the GB Pounds were given in exchange of Mauritian Rupees was not challenged. However, the Defence questioned whether the Accused made a payment in cash under the counts of the Information and whether the transactions were exempt transactions within the meaning of section 2 of the FIAMLA.
The Prosecution called a representative of a money changer. He explained that the Money Changer purchased foreign currency from the Accused and a receipt was issued.
The Court held: -
“In accordance with the evidence led by the prosecution and as rightly submitted by Counsel for the ICAC, the Accused had to buy Mauritian Rupees and thus maid in foreign currencies to obtain Mauritian Rupees. Thus, this Court is of the view that the Accused has been correctly charged with making a payment in foreign currency in exchange of Mauritian Rupees under all four counts in the Information...”
On the second limb of the submission of the Defence, the Court considered the definition of exempt transaction and financial institution under section 2 of the FIAMLA, which reads as follows: -
"exempt transaction" means a transaction -
(a)between the Bank of Mauritius and any other person;
(b)between a bank and another bank;
(c)between a bank and a financial institution;
(d)between a bank or a financial institution and a customer where -
(i)the customer is, at the time the transaction takes place, an established customer of the bank or financial institution; and
(ii)the transaction consists of a deposit into, or withdrawal from, an account maintained by the Customer with the bank or financial institution,
where the transaction does not exceed an amount that is commensurate with the lawful business activities of the customer; or
(e)between such other persons as may be prescribed;
“financial institution” means -
(a) an institution or a person licensed or required to be licensed under the Insurance Act 2005 or the Securities Act 2005; and
(b) a management company or registered agent licensed or required to be licensed under the Financial Services Act 2007.
The Court held that the Money Changers from which the Accused purchased the Mauritian Rupees were duly licensed and thus fell within the definition of “Financial Institutions” and that there was no evidence on record to show that the Accused was either an established customer of, or had an account maintained as a customer with the money changers. Thus, the transactions performed by the accused do not fall within the definition of “exempt transaction”.
Judgment was delivered on the 7th of July, 2010 wherein the Learned Magistrate of the Intermediate Court found the Accused guilty as charged.
On the same day, the Learned Magistrate sentenced the Accused to pay a fine of Rs 100,000/- under each of counts 1, 2, 3 and 4 of the Information and to pay Rs 500/- as cost.
The Accused is appealing against the judgment of the Trial Court.
ICAC v Indursingh CHEEKHOOREE CN:709/10
Sentence delivered on 4th June, 2010
The Accused was 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 (FIAMLA).
An Information was lodged before the Intermediate Court against Accused for having wilfully, unlawfully and criminally made in cash a payment in excess of Rs 350,000/-.The Accused pleaded guilty to the charge.
The 5 section of FIAMLA states that any person who makes or accepts any payment in cash in excess of Rs 350,000/- or an equivalent amount in foreign currency, or such amount as may be prescribed, shall commit an offence.
The evidence adduced by the Prosecution in Court is to the effect that in the year 2002-2003, the Accused, a Managing Director, lent a sum of Rs 10M to his brother-in-law, Dr M.Doolub. The money was to finance the studies of the latter’s sons abroad. Mr Cheekhooree stated that the money was to be reimbursed to him with interests.
In September, 2003, Dr Doolub reimbursed the Accused the sum of Rs 1,175,000/- in cash, which sum was deposited by the Accused into the bank account.
On 4th of Jun, 2010, the Accused was sentenced to pay a fine of Rs 10,000/- and to pay costs of Rs 500/-.
Police v Kiran Kumar BURHOO CN: 273/07
Ruling delivered on 09.04.10
The Accused stands charged with the offence of Public Official Using his Office for Gratification in breach of section 7(1) and 83 of the Prevention of Corruption Act 2002.
Defence counsel is objecting to an answer to be given to a question put to a prosecution witness on the ground that it would be inadmissible hearsay evidence.
The argument of the Defence Counsel is to the effect that the answer to be given would be inadmissible hearsay evidence as the purport of the answer was to show that the accused was involved in the commission of the offence charged.
The argument of the Prosecuting Counsel is that what was sought to be established through this question is not the truth of what is contained in the answer but to show that it was stated as a fact by the Complainant to this witness.
The Court cited the rule against hearsay, that is, evidence is inadmissible if:
- it consists of any statement made by a person other than while giving evidence in the instant proceedings; and
- it is tendered for the purpose of providing any fact contained in the statement.
The Court held that since the witness is about to give evidence as to what has been told to her by the complainant who has already given evidence in Court, this cannot amount to hearsay evidence. The Defence’s objection was disallowed.
ICAC V Bibi Rassoolbi NAZEERALLY CN: - 58/2009
The Accused was charged with the offence of Limitation of Payment Cash, in breach of section 5(1) and 8 of the Financial Intelligence and Anti Money Laundering Act (FIAMLA) and pleaded not guilty.
This section of FIAMLA states that any person who makes or accepts any payment in cash in excess of Rs 350,000/- or an equivalent amount in foreign currency, or such amount as may be prescribed, shall commit an offence. However, this provision of the law shall not apply to an exempt transaction.
In the month of March 2005, the Accused purchased a plot of land together with an existing concrete building on it from Mr Farook Hossany for the sum of Rs 700,000/-. The payment was effected in cash. The Accused explained that the sum of Rs 700,000/- was remitted to her by her husband.
The submissions of the defence were to the fact that the information disclosed no offence inasmuch as it did not aver that the Rs 700,000/- was proceeds of a crime.
It is not disputed that the money was not proceeds of a crime. The Accused explained that the sum was earnings from her husband’s jewellery business and vegetable and sugar cane plantations.
The prosecution (ICAC) submitted that the information was not defective as whether the sum was proceeds of a crime or not was not an element of the offence, unlike other offences in the FIAMLA which target proceeds of crimes. The offence for which the Accused is charged concerns only the fact that transaction involves a certain sum of money which was paid in cash and that amount exceeds what is permissible to be paid in cash under the law (FIAMLA).
Judgement was delivered on the 25th of May, 2010. The Court held that the law (Section 5(1) of the FIAMLA) does require that the sum should be proceeds of crime unlike money laundering offences and as such it would not be entitled under the principle of separation of powers to read into the section 5 that proceeds of a crime as an element of the offence.
As such, whether the sum is proceeds of a crime is not an element of the offence under section 5(1) of the FIAMLA.
The Accused was therefore found guilty as charged.
On the 24th of May, 2010, the Accused was sentenced to pay a fine of Rs 5,000/- and costs of Rs 500/-.
ICAC V Jean Ricardo BRIGITTE CN: 1174/09
The Accused was charged with the offence of Money Laundering in breach of section 3(1)(b), 6(3) and 8 of the Financial Intelligence and Anti-Money Laundering Act (FIAMLA).
On the 29th of June, 2007, the Accused together with another kept watch while their accomplices were committing the offence of larceny at the Post Office of Case Noyal. A sum of Rs 92,776.05, Post Office Stamps amounting to Rs 102,215/-, phone cards amounting to Rs 7,470.05 were stolen from the said Post Office.
After committing the abovementioned larceny, the booty was shared among all of them. Accused J.R.Brigitte obtained Rs 22,000/-.
They were all prosecuted before the Intermediate Court for the abovementioned larceny in case bearing cause number 916/2008. They pleaded guilty and were sentenced to six months imprisonment on the 18th of December, 2008.
In 2009, the ICAC lodged an information, bearing cause number 1174/09, against the Accused Brigitte for the offence of Money Laundering of the proceeds of crime, that is, the larceny committed at the Post Office of Case Noyal. In his statement given to the ICAC, Accused Brigitte confessed having deposited the sum of Rs 10,000/- on his bank account, which sum was part of the Rs 22,000/- he received as part of the booty of the larceny committed at the Post Office of Case Noyal. He pleaded guilty to the charge of Money Laundering in court.
On the 26th of May, 2010, the Learned Magistrate sentenced Accused Brigitte to pay a fine of Rs 30,000 and costs of Rs 500/-.
ICAC V Van Hin Tit Fong Yow Chok Nee CN: 1372/09
The Accused was charged with the offence of Limitation of Payment Cash, in breach of section 5(1) and 8 of the Financial Intelligence and Anti Money Laundering Act (FIAMLA).
Section 5(1) of FIAMLA states that any person who makes or accepts any payment in cash in excess of Rs 350,000/- or an equivalent amount in foreign currency, or such amount as may be prescribed, shall commit an offence.
In March, 2003, Mr Benson Chai Pong Chen together with his brother-in-law were the major shareholders of Diamond Plastic Ltd. They decided to sell the company as their two main clients, namely Summit Textiles and Novel Garments had seized their operations in Mauritius. The Accused, who was in the same line of business, decided to take over the company and a deal was sealed for Rs 1,500,000/-. The Accused drew 3 cheques for the payment of the purchase price. One of the cheques was for the sum of Rs 1,344,000/-.
The Accused requested Mr Chai Pong Chen to withhold the cheque for the sum of Rs 1,344,000/- as he intended to settle that amount in cash. Subsequently, the Accused transferred a sum of USD 15,000, equivalent to MUR 416,349 to the Hong Kong bank accounts of Mr Benson Chai Pong Chen. On the 11th of March, 2003, the Accused paid the remaining sum of Rs 927,651/- in cash to Mr Benson Chai Pong Chen.
Later, on the same day, Mr Benson Chai Pong Chen made a cash deposit of Rs 927,651/- in his bank account and made a telegraphic transfer to an overseas account in Hong Kong for USD 33,270/-. Upon being questioned by officers of the bank as to the source of the money, Mr Benson Chai Pong Chen stated that the amount represented the sale of the shareholding of his brother in Diamond Plastic Ltd. Thus the Bank sent a Suspicious Transaction Report to the FIU. An investigation was then initiated.
An Information was lodged before the Intermediate Court against Accused Van Hin Tit Fong Yow Chok Nee on the 15th of December, 2009, for having wilfully, unlawfully and criminally made in cash a payment in excess of Rs 350,000/-.The Accused pleaded guilty to the charge.
On the 17th of May, 2010, the Intermediate Court sentenced the Accused to pay a fine of Rs 50,000/- and costs of Rs 500/-.
ICAC v Aboo Bakar Sidick Noormamode CN: 556/09(Judgment delivered on the 23rd of April, 2010)
The Accused, Mr Aboo Bakar Sidick Noormamode, was charged under the fifth count of the Information with the offence of Public Official Using Office for Gratification in breach of section 7(1) and 83 of the Prevention and Corruption Act.
Count 1 to 4 relate to the offence of Forgery on the Marriage Entry Register and Publication of Proposed Marriage Register.
Under Count 5 of the Information, it is averred that, in or about the month of December 2005, whilst being a Civil Status Officer, obtained the sum of Rs 1,500/- for the publication and registration of a civil marriage.
At the time of the commission of the offence, the Accused, who is a Civil Status Officer, was posted at the Civil Status Office of Petite Rivière where he worked on Mondays, Wednesdays and Fridays, and at the Civil Status Office of Port Louis where he worked on Tuesdays and Thursdays.
Mrs P.Vulcain, a prosecution witness, had a daughter, Mrs M.R.Poorun who was born on 03.01.1990. At the trial, Mrs Vulcain stated that her daughter was aged only 15 and she wanted her daughter to get married to Mr Kounal Poorun, her lover. She went to the Civil Status office of Petite Rivière with the birth certificate of her daughter and that of her future son-in-law for seek information. There, she met with the Accused who asked new extracts of the birth certificates and asked her to go to the Civil Status Office of Port Louis to obtain same. Mrs Vulcain also stated in court that she told the Accused that her daughter was only 15 years old. Accused told her “Madame mo pou fer mariaz la moi mais seulement éna prison ladan”. He also asked for “ene dité” to go ahead with the celebration of the marriage as her daughter was not of marriable age. The Accused gave her a date for the celebration of the marriage which was the 30th of November, 2005 at 9.00hr.
On that date, when they met the Accused before the celebration of the marriage, he asked for Rs 2,000/-. Mrs Vulcain pleaded the Accused not to take so much money and the latter agreed for Rs 1,500/-.
The birth certificates of both Mr and Mrs Poorun, which were handed over to Mr K.Poorun, were to be used for the celebration and registration of the marriage. On the birth certificates, Mrs Poorun’s year of birth was written as 1989 instead of 1990 and the age of Mr Poorun was inserted as 18 instead of 20.
After hearing all evidence in court, the Learned Magistrate found the Accused guilty under all counts of the Information.
The sentence was delivered on the 27th of April, 2010. The Learned Magistrate sentenced the Accused to pay a fine of Rs 5,000/- on each of Count 1 to 4 and, under Count 5, taking into account the seriousness of the offence and particularly the fact that the law provides for penal servitude for a term not exceeding than 10 years, sentenced the Accused to undergo a term of six months’ imprisonment.
Police v C.Pursun and Ors CN: 126/08 (Ruling delivered on the 16th of April, 2010)
All three Accused stand charged with the offence of “Conflict of Interests” in breach of section 13(2)(3) of the Prevention of Corruption Act 2002(POCA). Before the start of the trial, Counsel for Accused No 2 moved that the proceedings be stayed inasmuch as there has been a breach of the Separation of Powers between the Judiciary and the Executive as the DPP has dictated to the Court the sentence to be imposed by choosing to prosecute under Section 13 of the POCA instead of section 41(1)(a) of the Local Government Act 2003 (LGA) as both sections deal with the same issue. Counsel for Accused No 4 also moved that, since the Preliminary Investigation Report (PIR) has not been communicated to the defence, the court should order that the current proceedings be stayed as this would amount to an abuse of process of the court.
The Court considered both motions separately. On the first motion, the Court held that section 13 of the POCA and section 99 of the LGA are distinct as the former is in relation to voting or taking part on procedure whereas the latter concerns disclosure of interest and that both provides for custodial sentences. On the second motion, the Court held that, since the Preliminary Investigation Report does not fall in the category of evidence contained in statements and documents which the prosecution will intend to produce in the proceedings, the Prosecution is under no obligation to disclose and to communicate the PIR to the defence.
Police v Kiran Kumar Burhoo CN: 273/07 (Ruling delivered on the 9th of April, 2010)
The Accused is charged with the offence of Public Official Using his position for Gratification in breach of section 7(1) and 83 of the Prevention of Corruption Act. The Defence Counsel objected to an answer about to be given to a question put to a prosecution witness on the ground that it would be inadmissible hearsay evidence. His argument was to the effect that if the purport of the answer was to show that the Accused was involved in the commission of the offence, then it will amount to inadmissible hearsay evidence.
Prosecution counsel submitted that what was sought to be established through this witness was not the truth of what is contained in the answer. The prosecution was only seeking to establish through the question the purpose of the sting operation and how it was carried out.
The Learned Magistrate held that the evidence to be ushered by the witness was what has been told to her by the complainant, a prosecution witness, who has already gigiven evidence in court. As such, this could not be regarded as an assertion made to her by another person who is not called to give evidence in the current proceedings and therefore it is not inadmissible hearsay evidence. The Court further went on to hold that it will still be able, at the end of the proceedings to properly and judiciously figure out what to make with an answer when all evidence has been ushered in at the close of the case.
ICAC v Sahera Jannoo CN: 1048/09 (Ruling delivered on the 2nd of April, 2010)
The Accused is being prosecuted for the offence of ‘Limitation in Cash Payment’ in breach of sections 5(1) and 8 of the Financial Intelligence and Anti-Money Laundering Act. She pleaded guilty to the charge and the case was fixed for hearing. Before hearing day, the Accused changed counsel who moved that the Accused be allowed to change plea, which motion was resisted and a voire dire was held. The Accused stated that she understood creole as well as what the charge meant but that she was ‘abruti’ as she was asked three or four times whether she was guilty. The Court refused to exercise its discretion to allow the change of plea and referred to the case of Vyraven v The State 1995 MR 128, in which the Supreme Court held that “… in the presence of an unambiguous and unequivocal plea of guilty and it would have been unreasonable to allow a change of plea …”.
ICAC v Satyawan Kutwaroo & Iswaraj Gallu – C/N 1377/06 (Ruling)
The two accused are being prosecuted before the Intermediate Court for the offence of ‘traffic d’influence’ and ‘public official taking gratification’ in breach of sections 10(4) and 11(a) of the Prevention of Corruption Act 2002 (POCA). Counsel for the defence had made a motion to the effect that the Court could not proceed with the matter for lack of jurisdiction in that section 3(a) of the POCA creates offences committed outside Mauritius. It was found that in various provisions of the POCA, there is the word ‘Mauritius’ which makes it clear that the Act applied to offences committed in Mauritius. The Court further held that “As the legislator does not legislate in vain, it can be safely said that it is not only in those sections of POCA when the word ‘Mauritius’ appears that applies to Mauritius, but the POCA in its entirety applies to Mauritius.” In addition, according to section 5(5) of the Interpretation and General Clauses Act 1974, the word ‘or’ in section 3(a) should be read disjunctively and not implying similarity unless the word ‘similar’ or other word of the like meaning is added. The Court also held that “The amendment in 2006 goes to clarify any doubt which might have subsisted regarding the now obvious fact that the courts in Mauritius have jurisdiction to entertain any matter pertaining to a breach of the POCA 2002.” Therefore on 18 March 2010 it was held that section 3(a) of POCA did not oust the jurisdiction of the court. The case is now coming for continuation on 20 July 2010.
ICAC v Bibi Sareefa Emambux – C/N 132/10
The accused was prosecuted before the Intermediate Court for the offence of ‘limitation of payment in cash’ in breach of section 5(1) and 8 of the Financial Intelligence and Anti-Money Laundering Act 2002. On 8 January 2003 the accused had accepted a sum of Rs 700,000 in cash for the sale of cloth. On 10 March 2010 the accused was sentenced to pay a fine of Rs 75,000.
Police v Ambar Kumar Joymungul – C/N 1159/04
Judgment:
The accused was prosecuted before the Intermediate Court for the offence of bribery by a public official in breach of sections 4 (1) & (2) of the Prevention of Corruption Act 2002. He had solicited from Mrs Engutsamy, the Director of Divali Productions Ltd, a sum of Rs. 200, 000 for Mr. Belle Etoile, Assistant Comptroller of Customs, for abstaining to establish a Customs Offence Report against the company. The Court found that Mrs Engutsamy was an impressive witness as she clearly testified as to the gist of the conversation she had with the accused although the event occurred nearly seven years ago and that she proved to be a reliable witness since she deponed without contradiction under the scrutiny of cross-examination. Moreover the two statements of the Accused clearly confirmed that on 17th February 2003 he had telephoned Mrs Engutsamy and asked for the bribe on behalf of Mr Belle Etoile. The Court held that “...the words used by the Accused over the telephone left no room for doubt in the mind of Mrs Engutsamy that the Accused was asking for a bribe on behalf of someone else”. On 4 February 2010, the Intermediate Court found the accused guilty and sentenced him to 12 months imprisonment.
Ruling:
The accused is being prosecuted under section 4 (1) & (2) of the Prevention of Corruption Act 2002 (PoCA) for having solicited from Mrs Engutsamy, the Director of Divali Productions Ltd, a sum of Rs. 200, 000 for Mr. Belle Etoile, Assistant Comptroller of Customs, for abstaining to establish a Customs Offence Report against the company. Counsel for the accused challenged the admissibility of a statement recorded from the accused which was supposedly recorded under section 50 of the PoCA. Given that during the recording of the statement, the accused was duly cautioned in terms of the Judges’ Rules, the court ruled, on 24 July 2009, that the statement was admissible.
Police v Marie Natacha Rangasamy and Luciano Tony Curtis Bowanee - C/N 400/09
(Ruling)
Accused No 1 is being prosecuted before the Intermediate Court under 11 counts for the offence of money laundering and under 2 other counts he stand jointly charged with Accused No 2 with conspiracy to commit the offence of money laundering in breach of sections 3(1), (b), 4, 6(3) and 8 of the Financial Intelligence and Anti-Money Laundering Act 2002 (FIAMLA). Counsel for Accused No 1 had objected to the production of the bank statements of Accused No 1 which date (1) prior to the coming into force of the FIAMLA in 2002, i.e. from 07.05.99 to 10.06.02 and (2) after the dates mentioned in the information i.e. from 11.10.04 to 31.08.06. The Court held that: “...the FIAMLA cannot be applied with retroactive effect. Thus it is the considered view of this court that it would be precluded from looking into circumstances which could have occurred prior to the coming into force of the FIAMLA.” Therefore on 28 January 2008, the objection to the production of bank statement of Accused No 1 from 07.05.99 to 10.06.02 was upheld whereas the prosecution was allowed to produce bank statements dating 11.10.04 to 31.08.06 since money laundering is a continuous offence.
ICAC v Benson Chai Pong Chen – C/N 1373/09
The accused was prosecuted before the Intermediate Court for the offence of limitation of payment in cash in breach of section 5(1) and 8 of the Financial Intelligence and Anti-Money Laundering Act 2002. The accused had accepted a sum of Rs 927,651 in cash for the sale of his shares in Diamond Plastic Ltd on 11 March 2003. On 22 January 2010 the accused was sentenced to pay a fine of Rs 100,000.
ICAC v Mohit Mungree – C/N 1004/08
(Ruling)
The accused is being prosecuted before the Intermediate Court for the offence of traffic d’influence in breach of section 10(5) of the Prevention of Corruption Act 2002. Counsel for defence had made a submission of no case to answer as he was of the view that the essential elements of the offence were not before the court. The Court found that the prosecution has established the elements of the offence at that stage and held that “...it would be for the court to appreciate from the evidence on record whether the accused could exercise any influence on the Permit and Licences Monitoring Committee...and whether his influence was a fictitious one or not.” On 20 January 2010 the submission of no case to answer for the defence was set aside. Consequently the case is to proceed.
ICAC v Anwarhussein Ramjaun – C/N 1326/09
The accused was prosecuted before the Intermediate Court for the offence of limitation of payment in cash in breach of sections 5(1) and 8 of the Financial Intelligence and Anti Money Laundering Act 2002. He had made payment of Rs 750,000 in cash for the purchase of an apartment situated at Wolmar. On 11 December 2009 the accused was sentenced to pay a fine of Rs100,000.
ICAC v (1) Yudistir Dookhit, (2) Oograssen Seetul – C/N 1053/07
Judgment:
The two accused were prosecuted before the Intermediate Court for the offence in breach of sections 4(1) (a) and 2 of the Prevention of Corruption Act 2002. Accused No 1, whilst being the Head Tractor Operator of Sugar Planters Mechanical Pool Corporation (SPMPC), had solicited a sum of Rs 400 from a planter to plough a portion of land. Accused No 2, a tractor operator of SPMPC, had obtained the sum of Rs 400 from the planter to plough a portion of land. In a judgment delivered on 15 July 2009, the Court found both accused guilty and sentenced each of them to undergo 9 months imprisonment which was suspended pending a report from the probation officer. On 06/08/09, the Court ordered both accused to effect community service for 150 hours.
Ruling:
Both accused are being prosecuted before the Intermediate Court for the charge of ‘Bribery by public official’ in breach of section 4(1)(a) of the Prevention against Corruption Act 2002. Counsel for the defence had objected to a motion by the Prosecution to amend count 2 of the information. On 28/01/09, the Court found that the accused would not be prejudiced by the amendment and hence granted the motion.
ICAC v Georges Ferdinand – C/N 1081/08
The accused was prosecuted before the Intermediate Court for the offence of traffic d’influence in breach of sections 10(4) and 83 of the Prevention of Corruption Act 2002. He had obtained a sum of Rs 3,000 from a person by making latter believe that since he was working at Line Barracks he could obtain a driving licence for motor bus for him from the traffic branch without him having to undergo any test. In a judgment delivered on 18 November 2009, the Intermediate Court found the accused guilty and sentenced him to 12 months imprisonment.
ICAC v Pregalarden Murugan – C/N 668/09
The accused was prosecuted before the Intermediate Court, under 2 counts, for the offence of limitation of payment in cash in breach of section 5(1) and 8 of the Financial Intelligence and Anti-Money Laundering Act 2002. The accused, an astrologer, had made a payment of Rs 513,000 in cash on 31 May 2004 and had made a deposit of Rs 725,000 in cash in his bank account on 18 July 2006. On 13 November 2009 the accused was sentenced to pay a fine of 5,000 under count 1 and Rs 10,000 under count 2.
ICAC v Jean Eric Gerard Bonne – C/N 878/09
The accused was prosecuted before the Intermediate Court, under 4 counts, for the offence of money laundering in breach of sections 3(1)(b), 3(1)(a) and 8 of the Financial Intelligence and Anti-Money Laundering Act 2002. The accused, whilst being a cashier at MCB at Lallmatie branch, withdrew money from a client’s account and deposited it in his bank account. He was charged of being in possession of Rs 20,000 (count 1) and Rs 14,000 (count 2) in his bank account, sums which he suspected to have been derived in part directly from a crime. In addition he had deposited Rs 29,000 (count 3) and Rs 5,000 (count 4) in a bank account, sums which he suspected to have been derived in part directly from a crime. In a judgment delivered on 12 November 2009 the Court found the accused guilty on all 4 counts and sentenced him to pay a fine of Rs 30,000 under count 1, Rs 25,000 under count 2, Rs 40,000 under count 3 and Rs Rs 35,000 under count 4.
Police v/s Bibi Rassoolbi Nazeerally – C/N 58/2009
(Ruling)
The accused is being charged before the Intermediate Court for the offence of money laundering in breach of section 5(1) and 8 of the Financial Intelligence and Anti-Money Laundering Act 2002 for having made a payment in excess of Rs 350,000 in cash. At the close of the prosecution case, the defence counsel had submitted that there is no case to answer and that the information was wrong in law. On 16 September 2009, the Court held that “The information is in the words of the law and in view of the decision of the Supreme Court in the case of Abongo v State [2009] SCJ 81, this Court would not be the appropriate forum to question the constitutionality of section 5 Financial Intelligence and Anti Money Laundering Act.” Consequently the case is to proceed.
Police v Anoussa Chuttoo & Krishnen Veerasamy - CN 885/ 08
The two accused were prosecuted before the Intermediate Court, under 5 counts, for the offence of traffic d’influence, in breach of section 10 (4) of the Prevention of Corruption Act 2002, for having obtained gratifications from other persons in order to make use of their fictitious influence to obtain employment for these persons from the Ministry of Health. Accused No. 2 pleaded guilty to two of the counts and was sentenced, on 30 July 2009, to 6 months imprisonment. Accused No. 1 was found guilty by the court under one count and was also sentenced to 6 months imprisonment.
ICAC v Bidianand Jhurry - CN 1186/08
(Ruling)
The accused is being prosecuted, under five counts, for having made use of his office for a gratification, in breach of section 7 (1) of the Prevention of Corruption Act 2002 (PoCA). The Defence challenged the legality of the prosecution on the ground that it is time-barred. The Defence relied on section 4 (1) of the Public Officers Protection Act (POPA). On 24 July 2009 the court noted that according to section 82 PoCA, no prosecution for an offence under the POCA shall be instituted by, or with the consent of, the Director of Public Prosecutions (DPP). The court further noted that under section 46(c) PoCA ‘the Commission makes suggestions as to the appropriate course of action but the final decision on prosecution is taken, as a matter of law, by the DPP.’ The Court therefore concluded that the prosecution was on behalf of the State and as such the time limitation as provided for under POPA is not applicable.
ICAC v Christian Allain Azor - CN 388/08
The accused was prosecuted before the Intermediate Court, under 3 counts, for the offence of money laundering. The accused, whilst being a Manager working at the Mauritius Commercial Bank, withdrew a total sum of 3.4 million rupees from the accounts of various clients of the said bank and for having deposited same in the accounts of his relatives. The accused pleaded guilty to all 3 counts and was sentenced, on 17 July 2009, to pay a fine of Rs. 150, 000 under each count.
Police v Gowtum Jootun and Lucy Gumede - CN 1342/08 (Ruling)
Both accused are being prosecuted before the Intermediate Court for the offence of Money Laundering in breach of Section 3 (1) (b) & 8 of the Financial Intelligence and Anti Money Laundering Act 2002 (FIAMLA) for having allegedly converted a certain amount of Mauritian rupees into 65,000 US Dollars, which Mauritian rupees were in whole, directly representing the proceeds of a crime. The Defence moved for particulars of the alleged crime which formed the basis of the said offence, and further moved that the matter be referred to the Supreme Court as section 6 (3) FIAMLA allegedly infringes the Constitution of Mauritius. On 25 June 2009 the Court ruled that the information, as drafted, was sufficiently clear to both accused such that no further particulars of what amounted to the ‘crime’ needed to be provided and that there was no constitutional issue to be referred to the Supreme Court.
ICAC v Nimrajsingh Jugmohun – C/N 506/07
The accused was prosecuted before the Intermediate Court for the offence of ‘Bribery by public official’ in breach of section 4(1)(a), (2) of the Prevention of Corruption Act 2002. On or about 14 January 2006, the accused whilst being a Chief Inspector of Police obtained a bottle of whisky from the complainant for providing police assistance to the latter concerning a family problem. The Court found accused guilty as charged and, on 25 February 2009, sentenced him to 3 months imprisonment which was suspended pending a report from the probation officer. However, the accused passed away before the report could be submitted to court.
ICAC v Marie Ange Seblin – C/N 633/0
The accused was prosecuted before the Intermediate Court for the offence of Money Laundering in breach of section 3(1), 6(3) and 8 of the Financial Intelligence and Anti Money Laundering Act 2002 under 16 counts. The accused was charged of having been in possession of property which was, in part, directly representing the proceeds of a crime, where she had reasonable grounds for suspecting that the property was derived, in part, directly from a crime. From May 2004 to June 2005, on 16 occasions, money deriving from proceeds of crime was credited to her bank account by her husband. In 2000, accused had Rs 4.33 in her bank account and credited sums Rs 458,000 in 2004 and Rs 310,000 in 2005. On 31 March 2009 the court held that: “ I am satisfied from the circumstantial evidence available that accused did not only suspect or have reasonable ground to suspect but she was fully aware of the illicit drug activities of her husband and the inference that can be drawn was that her accounts were being used to accommodate the proceeds of the said drug trafficking activities”. The accused was hence found guilty as charged under all the counts and was sentenced to pay a fine of Rs 50,000 under each count and Rs 500 as costs .
ICAC v Kishore Juggessur C/N 635/08
The accused was prosecuted before the Intermediate Court for the offence of ‘Corruption of agent’ in breach of section 16(1) of the Prevention of Corruption Act 2002. The accused, a vehicle attendant at Sugar Planters Mechanical Pool Corporation, had, without having the consent of his principal, obtained a sum of Rs 6,000 from another person for himself in order to plough a portion of land occupied by latter. He was found guilty and, on 22 January 2009, was sentenced to 12 months imprisonment which was suspended pending a report from the probation officer.On 18 February 2009, the Court ordered him to effect community service for 135 hours.
ICAC v/s Komardath Singh Sicharam C/N 271/07
The accused was prosecuted before the Intermediate Court for the offence of ‘Influencing public official’ in breach of section 9 of the Prevention of Corruption Act 2002. The prosecution case was that the accused had exercised pressure by means of threat upon a Planning Officer at the Black River District Council so that the latter
made a favourable recommendation to the Planning Committee in respect of an application for a development permit. The Court was satisfied that the prosecution had proved its case beyond reasonable doubt and found the accused guilty as charged. On 14 November 2008 the accused was sentenced to 3 months imprisonment and was ordered to pay Rs 500 as costs.
ICAC v/s Suresh Mahadeo – C/N 501/08 (Ruling)
The accused is being prosecuted before the Intermediate Court for two charges of bribery by public official and one charge of public official using his office for gratification in breach of the Prevention of Corruption Act 2002. Counsel for the accused had moved for a variation of the prohibition order issued against the latter. On 19 September 2008 the Court refused to vary the prohibition order and held that: “ This Court cannot be oblivious to the fact that the application was originally made for medical reasons and pressed on. This reason was dropped when ICAC successfully proved that it was not a genuine and or valid reason. After having heard the Defendant deposing, this Court entertains some serious doubts as to the genuineness and veracity of the present application to vary the prohibition order. ”
ICAC v/s (1) Ramesh Koomar Parayag, (2) Bhardawaz Heerah – C/N 1775/04
Accused No 1 was prosecuted before the Intermediate Court under count 1 for the offence of ‘Bribery by public official’ in breach of sections 4(1) (e) and (2) of the Prevention of Corruption Act 2002 (POCA). Accused No 2 was prosecuted under count 2 for the offence of ‘Aiding and abetting the author of a crime’ in breach of section 38 of the Criminal Code and sections 4(1) (e) and (2) of the POCA. Accused No 1, whilst being an Assistant Secretary at the Ministry of Land and Shipping sitting as a member of the Licensing Committee of the National Transport Authority, had solicited a sum of Rs15, 000 from Mr Veera-Pillay, for other persons, in order to help the said Mr Veera-Pillay to obtain 3 psvl contract cars NYP licences. A ‘sting operation’ conducted by ICAC officers led to the arrest of Accused No 1 and No 2 when Accused No 1 was remitting the said money to Mr Veera-Pillay. On 15 September 2008 the Court, being satisfied that all the elements of the offence had been proved beyond reasonable doubt, found Accused No 1 guilty as charged and dismissed the charge against Accused No 2. Accused No1 was sentenced to 6 months imprisonment and ordered to pay Rs 1,000 as costs.
ICAC v/s Jean Arnulphy – C/N 473/08
The accused pleaded guilty of having obtained from another person, for himself, the sums of Rs 30,000 and 4,000 Euros as gratification for doing an act in relation to his principal’s business, under counts 1 and 2 respectively, and of having solicited from another person, for himself, the sum of Rs 68,536 as gratification for having done an act in relation to his principal’s business, under count 3, in breach of sections 16(1) and 83 of the Prevention of Corruption Act 2002. The Intermediate Court sentenced the accused to 12 months’ imprisonment on 4 August 2008. The sentence was converted to 12 weeks of Community Service on 28 August 2008.
ICAC v/s Visnoo Parsad Matadeen – C/N 1055/07
The accused was prosecuted before the Intermediate Court for the offence of ‘Traffic d’influence’ in breach of sections 10(4) and 83 of the Prevention of Corruption Act 2002. The accused had obtained Rs 10,000 as gratification from a person, for himself, in order to make use of his fictitious influence, to enable the latter’s son to secure an employment from a public body, namely the Moka Flacq District Council. He was found guilty and was sentenced to undergo six weeks imprisonment and to pay Rs 500 as costs on 27 August 2008.
ICAC v/s 1. Rambans Salick, 2. Sobid Bissessur C/N 1466/04
Accused No 1 and accused No 2, police officers, were prosecuted before the Intermediate court under counts 1 and 2 of the information respectively for the offence of bribery by a public official in breach of section 4(1)(b) of the Prevention of Corruption Act 2002. Accused No 1 solicited Rs 300 from the complainant for cancelling a contravention which the latter had obtained for failing to wear his seat belt. The complainant presented Rs 200 and accused No 2 took same. Both accused were found guilty and sentenced to three months imprisonment on 10 July 2008. In the reaching the sentence the court held that “The amount involved in the present case is only Rs 200 but by showing leniency in passing a non-custodial sentence, this court would be sending the wrong signal to other public officers that taking a small amount is acceptable and would be tolerated.”
Police v Louis Michael Jose C/N 98/08
The accused was prosecuted before the Intermediate Court for the offence of making a false disclosure under section 49 (6) of the Prevention of Corruption Act 2002. The accused had made a false disclosure to an officer of the ICAC to the effect that a public official had been involved in an act of corruption, knowing it to be false. He was found guilty and was sentenced to pay a fine of Rs 10,000 and Rs 200 costs on 13 June 2008.
ICAC v/s Balakrishna Hamtohul – C/N 1054/07
The accused, a Police Sergeant was prosecuted before the Intermediate Court, under 3 counts for breaching Sections 11(a) and 83 of the Prevention and Corruption Act (POCA) 2002. The accused received a gratification of about Rs 11,000/ from the complainant. He made the complainant believe that he could secure a provisional as well as a competent driving licence for him, when in truth and in fact he was not empowered to do so. He was found guilty and sentenced to nine months imprisonment on 20 February 2008.
ICAC v/s Tatayah- C/N 898/07
The accused pleaded guilty for having offered a gratification to a public official for having done an act in breach of Sections 5(1) (b) (2) of the Prevention and Corruption Act 2002. The accused remitted sums of Rs 2,000/ to a public official employed at the National Transport Authority for having issued B Carriers’ Licence in breach of established procedures. The Intermediate Court sentenced the accused to six months’ imprisonment on 17 Jan 2008. The sentence was converted to 250 hrs of Community Service on 31 January 2008.
ICAC v/s Shivanand Soobrun – C/N 711/05
The accused, a Police Officer was prosecuted before the Intermediate Court for obtaining a gratification of Rs 1,000/ to cause a contravention to be filed, in breach of Sections 4(1) (a) of the Prevention and Corruption Act (POCA) 2002. Following an appeal by ICAC of the judgment of the Learned Magistrate to acquit the accused, the Supreme Court of Mauritius allowed the appeal on 27 November 2007 and remitted the case back to the Intermediate Court for sentencing. On 14 December 2007, the Intermediate Court condemned accused to undergo six weeks imprisonment.
Yogeshwar Bhottoa – C/N 1407/06
The accused was prosecuted before the Intermediate Court for Money Laundering in breach of Sections 3(1)(b), 6(3) and 8(1)(a)(2)(3) of the Financial Intelligence and Anti Money Laundering Act (FIAMLA)2002. The accused converted sums of Rs 300,135/ and Rs 298, 920/ into US dollars, which he had reasonable grounds to suspect emanated from proceeds of drug dealing. He was found guilty and fined Rs 300,000/ on each count on 10 May 2007.
ICAC v/s Rajen Hanumunthadu – C/N 1221/04
The accused was prosecuted before the Intermediate Court for soliciting a gratification of Rs 50,000/ for certifying and processing a claim for payment to the complainant in respect of works that the latter carried out at the Municipality of Quatre Bornes. He was found guilty on 9 March 2007 and was sentenced to six months imprisonment.
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ICAC v Mohess Ramrattan CN: - 558/09
Judgment delivered on 25 January 2011
The Accused was charged under two counts of the Information with the offence of Public Official Using Position for Gratification in breach of section 7 (1) of the Prevention of Corruption Act 2002.
It was averred under the first and second count of the Information that, on 04 July 2007 and 10 July 2007 respectively, the Accused, who was an Inspector of Work at the Road Development Authority (RDA) posted at the Roche Bois Sub-Office, made use of his position to cause materials belonging to the RDA to be delivered at his place of residence by means of transport allotted to the aforesaid sub-office.
The Court took into account all the evidence adduced and held that there were contradictions in the versions given by the witnesses. The Court also considered the version of the Accused that Mr Budhoo, the Complainant, was levelling false allegations against him because of the bad blood between them, which ample evidence had been adduced to support this version. The Court held that this was a fit case to give the Accused the benefit of the doubt. The Court therefore dismissed the Information against the Accused.
ICAC V Rama Krishna MUDALIAR CN: - 1182/09
Ruling delivered on 19 January 2011
The Accused stands charged under Count I of the Information, with the offence of Public Official Using Office for Gratification in breach of section 7(1) of the Prevention of Corruption Act 2002 (POCA) and under Count II of the Information, with the offence of Bribery by Public Official in breach of section 4(1)(b) of POCA.
Defence Counsel moved for a stay of proceedings as the provisions of the POCA, more specifically, section 19(4), are unconstitutional in as much as the Director General of the ICAC is appointed by the Executive, that is, the Head of the Government after consultation with the Leader of the Opposition. The Officers of the ICAC are not public officers, but private officers whose terms of employment are approved by the Parliamentary Committee and who investigate into alleged acts of corruption by public officials. He also highlighted that the termination of appointment of the Director General is effected by the Parliamentary Committee composed of partisan members of Parliament; people who have declared interest in political parties. As such, the effect of section 19(4) is tantamount to a denial of the right to a fair trial from an independent body as guaranteed by the Constitution. Defence Counsel submitted that all the proceedings at the ICAC, including all investigations, which are under the supervision of the Director General, are therefore tainted with unconstitutionality. Defence Counsel further submitted that there is concern about the independence of the ICAC in view of the fact that the independence of the ICAC is not provided for under the Constitution and this body has been set up under a mere Act of Parliament. Defence Counsel therefore submitted that the matter has to be referred to the Supreme Court for its interpretation on the constitutionality of investigations by the ICAC.
The Motion was resisted by the Prosecution and Counsel for the ICAC submitted that there was no issue for interpretation by the Supreme Court. He submitted that the Accused stands charged under 2 counts under the POCA. The Information is referred to the Court by the DPP. The POCA imposes the duty on the ICAC to submit all evidence gathered together with its recommendation to the DPP once the enquiry is completed. The DPP will then review and assess all the evidence gathered and upon being satisfied that there is enough evidence to substantiate a criminal case, he refers the matter to the appropriate Court. Counsel for ICAC therefore submitted that safeguards exists within the legislation setting up the ICAC, namely the DPP and the Supreme Court. He further submitted that the Director General, who is selected from a pool of highly qualified pool of professional, is not under the control of any person or authority and the provisions of the POCA imposes restrictions and limits to what the Parliamentary Committee can do.
Counsel from the DPP’s office also offered submissions against the motion of Defence Counsel and stated in clear terms that there is nothing sinister in having officers of a corporate body to investigate into specific offences. He referred to investigations and prosecutions by local authorities into breaches of Public Health Act. The conduct of investigation is therefore not the exclusive realm of the police. Furthermore, by virtue of the delegated powers of the DPP, it would be within the parameters of the Constitution for other investigating bodies to investigate into offences. Counsel from the DPP’s office further submitted that the mere fact that the Director General of the ICAC is appointed by the Head of Government after consultation with the Leader of the Opposition does not mean that the investigations by the ICAC should be held unconstitutional. Similarly, the mere fact that the Chief Justice is appointed by the Executive does not fetter the independence of the Judiciary.
The Court endorsed the view of Prosecuting Counsel and held that the present issue is not one which gives rise to a prima facie constitutional point and does not raise any question of interpretation.
The Court held that the POCA has been enacted according to the rules and procedures pertaining to the passing of any legislation. The Court referred to judgments of the Supreme Court and to the Select Committee Report to hold: -
“... it is obvious that the ICAC can investigate into specific criminal offence relating to corruption and officers appointed or deputed to act can act legally under an Act of Parliament without any derogation provided by law.”
The Court accordingly set aside the motion of Defence Counsel.
ICAC v Harishchandra Lutchmeenaraidoo – C/N 1151/07
The accused was prosecuted before the Intermediate Court for having made use of his position for gratification for himself whilst being a public official in breach of sections 7(1) and 83 of the Prevention of Corruption Act 2002. The accused, who was a Detective Police Sergeant, was enquiring into a case involving the complainant. He had allegedly received from the complainant a sum of Rs 3,000 so as not to object to latter’s bail and that of another suspect. The Court found that the prosecution witnesses showed too many contradictions while deponing and their demeanour led the court to favour the accused’s version. On 12 November 2009 the information against the accused was accordingly dismissed.
ICAC v Leckram Seeruttun - CN 1079/08
The accused was prosecuted before the Intermediate Court, under section 7 (1) of the Prevention of Corruption Act 2002 for having, whilst being a public official, made use of his position for a gratification for himself, that is, he led one Mr Louise to enter into an obligation for the payment of a sum of money by using his position as a public officer. On 24 July 2009 the Court held that, having regard to the facts of the case, the accused did not make use of his position and that the entering into an agreement did not constitute a gratification. The charge was accordingly dismissed against the accused. An appeal has been lodged against the judgment on 13 August 2009.
Police v Asokumar Veeriah - CN 41/07
Following an enquiry carried out by ICAC, the accused was prosecuted before the Intermediate Court under section 4 (1) (a) & (2) of the Prevention of Corruption Act 2002 for having, whilst being the acting Chief Employment Officer at the Ministry of Training, Skills development and Productivity, solicited money, from another person, for himself to make a favourable report which would be taken into consideration for renewing the work permit of a foreign national. On 14 July 2009 the Court observed that there were certain contradictions in the evidence adduced by the prosecution and gave the accused the benefit of doubt.
ICAC v Kunal Beegoo - CN 586/08
The accused was prosecuted before the Intermediate Court under section 13 of the Prevention of Corruption Act 2002 to the effect that he did, whilst being a public official, take part in proceedings of the MSPCA during which the renewal of the working contract of Mr Premchand Beegoo, father of the accused, was discussed. The Court considered that for there to be an offence, the accused need to take an active part in the decision that was being taken. In this case, it was clear before the Court that the decision taken was not a unanimous one and that the accused did not participate at all in the proceedings when the renewal of the contract was being discussed. Consequently, the Court, on 10 July 2009, gave the accused the benefit of doubt.
ICAC v Anoop Kumarsingh Balluck – C/N 557/07
The accused was prosecuted before the Intermediate Court under count 1 for the offence of ‘Forgery by public official’ in breach of section 106(d) and 121 of the Criminal Code and under count 2 for the offence ‘Public official using his position for gratification’ in breach of sections 7(1) and 83 of the Prevention of Corruption Act 2002. The accused, who was enquiring into an offence of parking on footpath against the complainant, had allegedly obtained a sum of Rs 350 from the latter for not enquiring into the two further offences. The complainant, who did not wish to proceed with the matter, refused to give evidence in court and was eventually fined accordingly. In the absence of any evidence from the complainant, who was the main witness, the court was unable to conclude that the accused had made use of his position to obtain a gratification. Consequently both counts were dismissed on 14 May 2009.
Police v Rengasananda Venkatakistnen – C/N 1152/07
The accused was prosecuted before the Intermediate Court for the offence of ‘bribery by public official’ in breach of section 4(1) (a) and 2 of the Prevention of Corruption Act 2002. The accused had allegedly solicited from the complainant money for doing an act which was facilitated by his duties . The Court held that: “However, despite the condemnable attitude of the accused for having been rude to the complainant, the evidence falls short of establishing the offence of bribery…This court cannot rely on the word of the complainant as it contains contradictions which cast doubt on the case for the prosecution.” Consequently the charge against the accused was dismissed on 17 April 2009.
ICAC v Mamode Andoo – C/N 827/08
The accused was prosecuted before the Intermediate Court under counts 1 and 2 for the offence of ‘bribery by public official’ in breach of section 4(1) (a) and 2 of the Prevention of Corruption Act 2002. For count 1, the accused, being an inspector of works at the Ministry of Public Infrastructure, had allegedly solicited the sum of Rs 5000 to process a building permit when this had been already approved. For count 2 he had allegedly solicited the sum of Rs 5,000 to deliver a building permit. On 31 March 2009 the Court held that: “Their (the complainants’) version is not plausible and I am convinced that they concocted the allegations of bribery against Accused following their prosecution and non obtaining the building permit.” Both counts against the accused were accordingly dismissed.
ICAC v Vishwajee Bachoo – C/N 651/08
The accused was prosecuted before the Intermediate Court for the offence of 'Corruption of agent' in breach of section 16(1) of the Prevention of Corruption Act 2002. The accused, a tractor operator at the Sugar Planters Mechanical Pool Corporation had allegedly, without the consent of his principal, solicited a sum of Rs 2,000 from a person for himself, to plough latter’s land. On 26 February 2009, the information was dismissed for lack of evidence.
ICAC v Giandev Meetoo – C/N 507/07
Judgment:
The accused was prosecuted before the Intermediate Court for the offence of ‘Public Official using his position for gratification’ in breach of section 7(1) of the Prevention of Corruption Act 2002. In or about the month of August 2002, the accused, a police sergeant on duty at Mahebourg fair, was alleged to have obtained the sum of Rs 200 from the complainant to allow him to expose his articles for sale. On 29/01/09 the Court found that the prosecution witness was “cunning, witty and manipulative” and dismissed the case against the accused.
Ruling:
The accused is being prosecuted before the Intermediate Court for the offence of ‘Public Official using his position for gratification’ in breach of section 7(1) of the Prevention of Corruption Act 2002. Counsel for the accused had moved that (i) Count 1 of the information be dismissed against the accused as it is too vague and contains insufficient facts thus causing prejudice to the accused in his defence and (ii) the investigating officer in the case be put on the list of witness to allow the accused to benefit from a fair trial. On 17 July 2008 the Court found that prosecution was not bound to provide the time as it neither forms part of the offence nor a material circumstance of the offence and held that the accused will not have an unfair trial if the time is not disclosed and the prosecution does not add the name of a witness as sought by the defence. Consequently the motion was not granted and case is to proceed.
ICAC v/s (1) Nimrajsingh Jugmohun, (2) Geereesh Kumar Puryag – C/N 42/07
Accused No 1 and accused No 2, police officers, were prosecuted before the Intermediate Court under counts 1, 2 and 3 for the offence of ‘Public official using his position for gratification’ in breach of sections 7(1) and 83 of the Prevention of Corruption Act 2002. Accused No 1 had allegedly obtained, for himself, the sums of Rs 1,000 and Rs 4,000 from a suspect in a case under investigation while accused No 2 had allegedly obtained, for himself, the sum of Rs 400 from the suspect. On 7 August 2008 the Court found that the two accused should be granted the benefit of the doubt and the three counts were accordingly dismissed.
ICAC v/s (1) Govindranath Gunness, (2) Dhaneswar Soobrah – C/N 1379/07 (Interlocutory Judgment)
Ruling:
The Intermediate Court was called upon to rule on whether a motion for a stay of proceedings on the ground of abuse of process may be considered before the plea of one of the accused parties be recorded. On 30 July 2009 the Court considered that such a motion can be entertained at any stage of the proceedings, even before the trial starts, and the Court ruled accordingly.
Ruling:
The two accused are charged under separate counts in the same information. Counsel for accused No 1 had moved for a separate trial on the ground that accused No 1 who had already pleaded not guilty under count 1 is entitled under s 10 of the Constitution to a fair trial within a reasonable time. On 28 May 2009 the Court held that: “We are of the view that the submissions of Counsel for ICAC are pertinent and that it would not be in the public interest to have a separate trial for accused no 1. There is a desirability that the same verdict and the same treatment be returned against all those concerned with the same offence. This far outweighs any risk of prejudice that one of the accused parties might suffer.” The motion was therefore set aside.
Ruling:
Accused No. 1 is charged with the offence of ‘Public official using his position for gratification’, in breach of section 7(1) of the Prevention of Corruption Act 2002. His Counsel had moved for further particulars regarding the date and the person to whom the alleged instructions were given and Counsel for Prosecution had objected on the ground that the information had clearly set out all the material elements of the offence.
On 24 July 2008, the Court held that “… the prosecution has not revealed the date and identity of the person to whom the instructions were given, not because these details cannot be ascertained, but because in law they are not required to do so”. “….the particulars seem to be sufficient on the face of the information. However, given the respective statements made by senior counsel for Accused No 1 and learned Counsel for ICAC, the Court considers that the balance should tilt in favour of the accused and that further particulars should be provided regarding the name of the person to whom accused no.1 allegedly gave instructions so as to enable the defence to prepare their case.”
ICAC v/s Mohammad Iqbal Dauhoo – C/N 227/08 (Ruling)
The accused was charged with the offence of ‘Traffic d’influence’ in breach of section 10(4) of the Prevention of Corruption Act 2002 (PoCA). The Court found that the information did not disclose an offence under PoCA since the definition of a ‘Public body’ does not include the Master and Registrar. The information was therefore struck out on 23 July 2008. |
