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E-newsletter - Issue 96
September 2019
Office of the Director
of Public Prosecutions
‘To No One Will We Sell, To No One Deny or Delay Right or Justice’
Chapter 40,Magna Carta 1215
E-newsletter - Issue 96 September 2019
Page 2
Editorial Team
In this Issue
Ms Anusha Rawoah, Senior State Counsel
Mrs Shaaheen Inshiraah Dawreeawoo, State Counsel
Ms Veda Dawoonauth, Temporary State Counsel
Ms Neelam Nemchand, Legal Research Officer
Mrs Pooja Domun, Legal Research Officer
Ms Genisha Raudhay, Communication/Liaison Officer
The views expressed in the articles are those of the particular authors and should under no
account be considered as binding on the Office.
Editorial 3
ODPP VIDEO
• Deepti Thakoor, State Counsel 5
ARTICLE
• Social Media- Express or Arrest? 7
WORKSHOPS/CONFERENCES REVIEW
• Judicial Training of Trainers on Cybercrime and Electronic Evidence 12
Quick Facts 14
Case Summary 17
E-newsletter - Issue 96 September 2019 Page 3
Editorial “The duty of a lawyer is always to place before the judges, and to
help them to arrive at, the truth, never to prove the guilty as
innocent.”
- Mahatma Gandhi
Dear Readers,
We start the 96th issue of our monthly e-newsletter, by paying
tribute to a lawyer, an apostle of truth and non-violence, Mahatma
Gandhi, on the occasion of his 150th birth anniversary. The life of
Mohandas Karamchand Gandhi is indeed a story of heroic effort to
establish values, whether as a lawyer, politician, social activist, or
writer. His contribution to human development is far too great to
ever be overlooked. The United Nations has also declared October
2 as the ‘International Day of Nonviolence’ to honour Gandhi's
message. One cannot forget Gandhi’s interesting take on the ideal
purpose of law in a civilized society - “It is not legislation that will
cure a popular evil. It is enlightened public opinion that can do it.”
Years after his departure, his life and soul continue to animate
humanity, transcending national and international boundaries.
Gandhi inspired the thinking of many world leaders, including
Martin Luther King Jr., Nelson Mandela and former President
Barack Obama for his peaceful methods of protest.
In this issue, in the ODPP Video section, our law officer addresses
the offence of ‘arson’ which has recently been discussed in a
Supreme Court judgment. Furthermore, you will read on the notion
of freedom of expression and the social media. Moreover, recently,
with a view to enhancing the capacities of Prosecutors and Judges
on cybercrime and electronic evidence, the Council of Europe
(CoE), under the Global Action on Cybercrime Extended (GLACY
+), in collaboration with the European Union and the Attorney
General’s Office/Office of Director of Public Prosecutions, and the
Institute of Judicial and Legal Studies organised a Judicial
Training of Trainers course. An overview of the training is
provided.
In our ‘Quick Facts’ section for the month, we bring to you the
various offences under the Fair Trading Act, which concern
everybody, as consumers or traders. Finally, our usual rubric,
summary of Supreme Court judgments, is found at page 17.
We wish you a pleasant read and always welcome your comments
Anusha Rawoah
Senior State Counsel
E-newsletter - Issue 96
September 2019
ODPP VIDEO
E-newsletter - Issue 96 September 2019 Page 5
ODPP VIDEO – ‘Arson’
Click on the ‘Play’ icon below to view the video or
view video on https://youtu.be/Sm9spzC758M
Deepti Thakoor
State Counsel
E-newsletter - Issue 96
September 2019
ARTICLES
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Page 7
“Threats to freedom of speech, writing and action, though often trivial in
isolation, are cumulative in their effect and, unless checked, lead to a general
disrespect for the rights of the citizen.”
(George Orwell)
Freedom of expression and the right to information are keystones of vibrant
and burgeoning societies in which public participation contributes to securing
equitable and inclusive development. Article 19 of the Universal Declaration
of Human Rights that is the freedom to speak and express opinions, and to
have access to government-held information – is a universal human right
legally protected in state constitutions across the globe. In fact, Article 12 of
the Mauritian Constitution guarantees the right to freedom of expression and
this is a fundamental right enjoyed by all Mauritians. This right “does not
extend to propaganda for war; incitement of imminent violence; or advocacy of
hatred that is based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm.“
Constant breach of regulations related to social media networking can result in
civil and criminal cases. With repeated cases of fake news and trolling, the
laws governing social media need to be understood. With the passing of the
Judicial and Legal Provisions Act last year, the highly debatable provision
that amends Section 46 of our Information & Communication
Technologies Act 2001 (“ICTA”) was evaluated extensively. The amended
law reads as follows:
46. Offences
Any person who –
……
(ga) uses telecommunication equipment to send, deliver or show a message
which is obscene, indecent, abusive, threatening, false or misleading, which is
likely to cause or causes annoyance, humiliation, inconvenience, distress or
anxiety to any person;
…..
(ha) uses an information and communication service, including
telecommunication service, to impersonate, or by any other means
impersonates, another person which is likely to cause or causes annoyance,
humiliation, inconvenience, distress or anxiety to that person;
Section 46 of the ICTA Act makes it an offence to post in the form of speech
or other sound, data, text, writings, images, signs, signals or code, or in any
other form or combination of forms that is likely to cause or causes annoyance,
humiliation, inconvenience, distress or anxiety to any person.
Social Media- Express or Arrest?
Shruti Lallbeeharry
Legal Research Officer
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Where a person is found guilty to the offence, he will be liable to a fine not
exceeding 1,000,000 rupees and to penal servitude for a term not exceeding
10 years pursuant to section 47 of the ICTA. Although police can initiate
prosecutions in the case of racial and religious incitements, in other cases it
falls upon the individual or group to file a complaint. For those not well-versed
in the intricacies of freedom of expression, this may be difficult. It is essential
that such cases be evaluated on their individual merits, as time-consuming and
complicated as it can be, in order to respect and uphold the right of people.
Prosecutors already have a duty to ensure that any prosecution is in the public
interest and to protect free expression. It is also important for prosecutors to
ensure that when a particular victim is targeted, and they have clear evidence
of intention to bring about distress or anxiety, they must carefully weigh the
effect on the victim.
We can allude to the famous English case of DPP v Woods (Matthew)
Unreported October 2012, where Matthew Woods, 20, became one of the
most hated people in the U.K. after posting an offensive status update on
Facebook about an abducted 5-year-old girl. Woods "offensive" comments
included sexually aggressive and suggestive references, which attracted a
number of supportive and equally derogatory replies. Woods was charged by
British police under section 127 of the U.K.
Communications Act 2003, which found that his message was "grossly
offensive" or "of an indecent, obscene or menacing character." Woods pleaded
guilty to sending by means of a public electronic communications network a
message or other matter that is grossly offensive and he was sentenced to 12
weeks imprisonment. This case stirred up debates in the legal arena, among
free speech activists, and internet users whereby people have been critical of
the prosecution. Although some expressed a hope that it would serve as a
warning to other users of social media, and make them think twice about
posting similar messages.
Having said that, we also have the landmark case of Shreya Singhal v Union
of India W.P. (Crim.) No 167 of 2012, which gives us another perspective on
this matter where the Indian Supreme Court has quashed Section 66(A) of the
Information Technology Act in India which criminalized the sending of
offensive messages through a computer or other communication devices. The
court termed that section as “vague" and "unconstitutional". The case was
brought before the Supreme Court by two young ladies arrested by the police
for posting critical comments on a social networking site about a city shutdown.
Actually, one of these two young women just reinforced the original comment
by "liking" it. The controversial section had long been decried by activists,
freedom of speech and internet freedom campaigners as being aimed solely at
muzzling dissent and differences of opinion on the internet.
Social Media-
Express or Arrest?
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Page 9
When using social media platforms it is important to remember that everyone
who has contributed to the dissemination of defamatory content may also
potentially be held liable. It is important to note that there is a fine line between
freedom of expression without consequence and how it can affect other areas
of your life. It is a question that legal professionals are constantly examining.
Reference can also be made to another well-known criminal case namely,
Chambers v DPP [2012] EWHC 2157, whereby Paul Chambers had been
convicted for sending a tweet that jokingly threatened to blow up an airport. In
overturning the decision on appeal the High Court concluded that the tweet
was clearly just a joke and was intended and perceived as such and it was not
‘menacing’ in character and thus was not a criminal offence. While we will
reckon that joke like this one failed the “laugh out loud”, it is an important
lesson that prosecutors must be cautious before launching such prosecution
case and prosecutors should ensure that they prosecute cases which causes
or threatens to cause serious social harm and to consider the message’s
precise terms, including any inferences, and the context in as well as the
means by which the message was sent.
In fact, in December 2013, the United Nations General Assembly adopted
resolution 68/167, which expressed deep concern at the negative impact that
surveillance and interception of communications may have on human rights.
The General Assembly affirmed that the rights held by people offline must also
be protected online, and it called upon all States to respect and protect the
right to privacy in digital communication. However, as we exercise our freedom
of expression, we should be mindful of our obligation to counter the spread of
fake news and propaganda on the internet.
Digital technology has democratized the public sphere, but the new
technologies also imply problems as to the limits of freedom of expression.
Today’s web and the new media nurture the prowess to create instant
communication hue and cry. From Facebook, YouTube, Twitter, Snapchat, Tik
Tok, Instagram and a collection of blogs, a news statement can advance from
zero to 20 million viewers overnight. On the one hand the spread of social
media platforms provides an opportunity for enhanced access to information
and a diversification of sources and opinions. On the other hand, the
“unfiltered” spread of information and opinions through social media also
comes with a number of risks and downsides. Particularly problematic is the
relationship between freedom of expression and personal privacy. Developing
citizens’ media and information literacy is vital to protecting and promoting
freedom of expression – in extension, our democracy. These tasks require a
coordinated national policy.
In an article “How Fiction Becomes Fact on Social Media” published in the
New York Times, it was rightly mentioned that social media acts as a fertile
host for falsehoods by simultaneously engaging two predigital social-science
standbys: the urban myth as “meme,” or viral idea; and individual biases, the
automatic, subconscious presumptions that color belief.
Social Media-
Express or Arrest?
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The question we should ask when manifesting our opinions or statements on
social media is whether our freedom of expression preclude us from
consequences? This freedom of expression should not be weaponised to
spread hate, hurt and vility. An example where the social media was in fact
used as a tool of bigotry and terror is the March 15 massacre in Christchurch,
New Zealand, in which 50 worshippers were killed at two mosques which was
carried out by a suspected white supremacist who live streamed the killings on
Facebook. This tragedy raised criticism on the role of social media in society.
This incident forced countries like, Australia and New Zealand to review their
anti-terror legislation to prevent people from "weaponising social media
platforms" and "live streaming violent crimes".
Therefore, it is essential to remember that social media users do not have carte
blanche to post what they wish and they should act/post responsibly. Online
conduct is governed by the same laws as offline conduct. Hate speech,
incitement to commit violence and defamation are examples of speech that are
not protected but prosecuted. The right to freedom of expression therefore
appears as a double edged sword. There is a thin grey line between the need
to have effective and robust mechanism to govern the content over social
media while it is also important that the laws and regulations do not curb the
constitutional fundamental rights and prevent people from expressing their
views over the issues concerning the country. Internet regulation needs a calm,
evidence-based approach that safeguards freedom of expression and also
laws that guarantee the use of the service, which offer security as a result of a
teamwork between civil society, legal experts and government. Regulations
should not stifle the debate needed to strengthen democracy.
“Modern problems require modern solutions.”
Social Media-
Express or Arrest?
E-newsletter - Issue 96
September 2019
WORKSHOPS/
CONFERENCES
REVIEW
E-newsletter - Issue 96 September 2019
Page 12
Judicial Training of Trainers on
Cybercrime and Electronic Evidence
As the use of and reliance on information technology becomes more and more
pervasive in society, the targeting and exploitation of computer systems has
also become increasingly common. Offences involving computers have grown
rapidly both in number and in sophistication, but there has been a time lag in
developing effective countermeasures and in having all judicial actors applying
the law in a consistent and harmonized manner. Lack of adequate training can
be a major obstacle in having judges, prosecutors and other judicial officials
responding to the threat of cybercrime and handling electronic evidence in an
effective and efficient way.
With a view to enhancing the capacities of Prosecutors and Judges regarding
cybercrime and electronic evidence, the Council of Europe (CoE), under the
Global Action on Cybercrime Extended (GLACY +), in collaboration with the
European Union and the Attorney General’s Office/Office of Director of Public
Prosecutions, and the Institute of Judicial and Legal Studies organised a
Judicial Training of Trainers (ToT) course from the 19th to 23 of August 2019,
at the Institute of Judicial and Legal Studies (IJLS). The training was delivered
by two CoE experts and a local trainer from Mauritius, namely Mr Pravin
Harrah, Principal State Counsel. The ToT was attended by Judges,
Magistrates, Prosecutors from the Office of DPP, Police Prosecutors and
investigators.
In his opening address, Mr Michal Golabek, Counsellor, from the Delegation of
the European Union in Mauritius, welcomed the participants and emphasised
on the importance of the capacity building programme and cooperation in the
fight against cybercrime. The training started with an Introduction to
Cybercrime threats, trends and challenges and introduction to technology.
Subsequently, discussions took place surrounding the Budapest Convention on
Cybercrime whereby the substantive and procedural provisions of the
Convention were elaborated. Mr Harrah also gave a presentation on the
national legislations governing Cybercime offences in Mauritius. The aim of the
training was to enable participants to have basic judicial knowledge on
cybercrime and electronic evidence as well as to introduce them to
pedagogical techniques to enable them become trainers and disseminate the
skills acquired among their national peers.
Pravin Harrah
Principal State Counsel
E-newsletter - Issue 96
September 2019
QUICK FACTS
E-newsletter - Issue 96 September 2019
Page 14
Quick Facts
Source: www.forthcapital.com
Source: www.shutterstock.com
Source: www.123rf.com
Source: livelaw.in
Source: www.churchofscotland.org.uk
www.mediate.com
Examples of prohibited consumer trade practices for
which the penalty is provided under Section 13 of the
Act
Misleading consumers as to, or withholding from them
adequate information as to their rights and obligations
under any consumer transaction.
www.sokolovelawfirm.com
The Fair Trading Act
1979
Penalty under Section 13 of
the Act
Fine of not more than Rs
200,000 and imprisonment
for a term not exceeding 2
years;
Section 14 of the Act
provides for second and
subsequent conviction: Fine
of not more than Rs 500,000
and imprisonment for a term
not exceeding 5 years
E-newsletter - Issue 96 September 2019 Page 15
Source: www.newstimes.co.rw
www.theactuary.com
Misleading or confusing consumers
with respect to any matter in
connection with any consumer
transaction
Subjecting consumers to undue
pressure to enter into any consumer
transaction
Source: www.babettetenhaken.com
Source: www.teneolegal.com
Causing the terms or conditions on
which consumers enter into any
consumer transaction, to be so
adverse to them as to be detrimental
to their interests.
E-newsletter - Issue 96
September 2019
SUPREME COURT
JUDGMENTS
SUMMARY
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Page 17
SUMMARY OF SUPREME COURT JUDGMENTS: September 2019
LUCHMUN Y. v THE STATE 2019 SCJ 242
By Hon. Chief Justice Mr. E. Balancy, Hon. Senior
Puisne Judge Mr. A. A. Caunhye and Hon. Judge
Mrs. G. Jugessur-Manna
Information disclosing no offence – Moussa v Queen
– Directions to jury – Statements admitted by the
Judge – Issues raised for the first time on appeal
The Appellant (“the accused”) was prosecuted before the
Supreme Court, composed of a Judge and a Jury, for the
offence of manslaughter under sections 215 and 223 (3)
of the Criminal Code Act. He was found guilty by the jury
and sentenced by the Judge to undergo 35 years penal
servitude. There were initially nine grounds of appeal and
some of the grounds were dropped.
Ground 1 was to the effect that in law, section 215 and
223 (3) cannot amount to a charge at all for which the
Appellant was prosecuted, hence the information was
wrong in law and in principle.
The Appellate Court quoted section 215 of the Criminal
Code:
“215. Interpretation of “manslaughter
Homicide committed wilfully is manslaughter.”
Section 223 (1) provides for the sentence for any person
“guilty of manslaughter preceding, accompanying or
following another crime” and section 223 (2) the sentence
for attempt at manslaughter. Section 223 (3) then provides
as follows:
“In every other case, a person guilty of manslaughter shall
be liable to penal servitude for a term not exceeding 45
years”.
Counsel for the Appellant contended that section 215
defines manslaughter and section 223 (3) merely
provides for the sentence such that neither of those two
enactments actually creates the offence of manslaughter.
He conceded though, that the issue was not raised at trial
but submitted that this Court can consider it under its wide
powers.
The Court highlighted the settled principle in Moussa v
The Queen [1972 MR 100] to the effect that the Supreme
Court sitting on appeal against the judgment of the District
or Intermediate Court has the power to raise proprio motu
the issue of an information disclosing no offence known to
the law, notwithstanding the prohibition, in section 97 of
the District and Intermediate Courts (Criminal
Jurisdiction) Act of objections to the information not
raised at trial and raised for the first time on appeal.
Therefore, this Court sitting on appeal against a
conviction by the Supreme Court sitting at first instance
could not be said not to have the same power.
However, the Court pointed out that it cannot be said that
the information laid against the accused in the present
case did not disclose an offence known to the law. The
contention that sections 215 and 223 (3) of the Criminal
Code do not create the offence of manslaughter cannot
stand ground since such a contention would imply that all
the convictions of accused parties for manslaughter
throughout Mauritian legal history on the basis of these
enactments were wrong and this cannot be so.
The words “a person guilty of manslaughter shall be liable
to penal servitude for a term not exceeding 45 years” in
section 223 (3) of the criminal Code clearly convey that
manslaughter, as defined in section 215, is an offence
under our law.
All the more so since –
(i) Section 2 of the Criminal Code provides that
offences which the law punishes are crimes,
misdemeanours or contraventions.
(ii) By virtue of section 4 of the Criminal Code, the
offence of manslaughter which is punishable under
section 223 by penal servitude, would fall under the
category of crimes”.
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(ii) By virtue of section 4 of the Criminal Code, the offence
of manslaughter which is punishable under section 223 by
penal servitude, would fall under the category of crimes”.
The Court held that the information, which has been drafted
in the words of the law creating that offence, clearly
discloses that offence. Hence, Ground 1 failed.
Ground 2 purports that “The Learned Judge failed to give
adequate and proper direction on the elements of the offence
of manslaughter and whatever direction was given was unfair
and prejudicial to the defence case.”
The Appellate Court noted that the learned Judge, on more
than one occasion in the course of the summing up, directed
the jury in law as to the elements which constitute the
offence of manslaughter with which the accused was
charged. The learned Judge did give an explicit direction with
regard to the elements of the offence of ‘manslaughter’ in the
following terms:
“The three elements, which in law constitute the charge of
manslaughter are as follows:
I. there must be a wilful and unlawful act of violence inflicted
by the accused on a living person which causes injury to that
person;
II. the injury must be the cause of the death of the person,
that is, the person must have died as a result of the injury
received from that wilful and unlawful act; and
III. there must be an intention to kill at the time when the
violence and injuries were inflicted, as opposed to an
intention to simply injure or cause injury”.
The learned Judge also went on to provide a detailed
explanation of all the above elements which constitute the
offence of manslaughter. In the circumstances, the Court of
Criminal Appeal found no merit in any of the arguments in
support of the Appellant’s contention that the learned Judge
“failed to give adequate and proper direction on the elements
of the offence of manslaughter” or that “whatever direction
was given was unfair and prejudicial to the defence case”.
Ground 2 thus failed.
In relation to Ground 3, the Appellant submitted that the
direction on confession was one of admissibility rather
than truth and reliability and that the jury was not properly
directed on how it should deal with the issue of
confession.
The Court found it apposite to refer to R v Murray [1951]
1 K.B.391 where the Court of Criminal Appeal stated
that “when a statement is admitted by the Judge, he
should direct the Jury to apply to their consideration of it
the principle as stated by Lord Sumner (viz, in Ibrahim v
R [1914] A.C. 599) and he should further tell them that if
they are not satisfied that it was made voluntarily, they
should give it no weight at all and disregard it.”
The Court of Appeal referred to some relevant parts of the
summing up where the learned trial Judge had directed
the Jury in relation to the confession of the accused
contained in the statement dated 14 December 2010 to
conclude that this ground of appeal was devoid of merit.
As for Ground 8, it read as follows “The defence was
denied the right to cross-examine properly and
adequately about the inquiry due to the fact that there was
no main inquiry officer in a murder inquiry.”
However, the Court concluded that this ground had no
substance for the following reasons:
i) The issue raised therein was not canvassed before the
learned Judge.
(ii) As rightly pointed out by Counsel for the respondent,
the several officers involved in the enquiry all deposed at
the trial and were subjected to lengthy cross-examination
for several days.
(iii) Counsel for the Appellant has been unable to show
that any real prejudice has resulted to the accused from
the absence of a main enquiry officer.
All grounds of appeal having failed, the Court dismissed
the appeal.
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THE DIRECTOR OF PUBLIC PROSECUTIONS v
BHOLAH A. S. 2019 SCJ 248
By Hon. Judge Mr. D. Chan Kan Cheong and Hon.
Judge Mrs. K. D. Gunesh-Balaghee
Sentence unduly lenient and wrong in principle –
Community Service Order inappropriate for all cases
– Custodial sentence warranted for serious offences
This is an appeal by the Director of Public Prosecutions on
the ground that the sentence meted out to the accused “is
unduly lenient and wrong in principle”. In fact, the
Respondent was convicted, upon his own plea of guilty, for
the offence of attempt upon chastity upon a child of female
sex under the age of 12 in breach of section 249(3) of the
Criminal Code before the Intermediate Court. The Court
sentenced him to undergo 4 months’ imprisonment which
was eventually suspended and converted to 100 hours’
community service by the learned Magistrate.
The Appellant submitted that in view of the facts and
circumstances of the present case, a custodial sentence was
warranted as it would be proportionate to the seriousness of
the offence committed by the Respondent and this despite
the Respondent’s guilty plea and clean record. The
circumstances of the offence as per the defence statements
of the Respondent were that he knew the child victim and her
family well; they were his neighbours staying at a distance of
100 metres away. The child used to come to his place and at
times, he was entrusted with the care of the child and would
drop her at her primary school. On the material day, he
kissed the child on her cheek, he then removed her pants
and knickers and kissed her private parts.
The Appellate Court was in agreement with the approach
and reasoning adopted by the learned Magistrate who duly
took into account the mitigating factors in favour of the
Respondent and found that a custodial sentence was
warranted and appropriate in view of the seriousness of the
present offence. However, her eventual decision, pursuant to
section 3(1)(b) of the Community Service Order Act, to
suspend the sentence of imprisonment pending a community
service report and thereafter suspending the sentence of 4
months’ imprisonment and ordering the Respondent to
perform unpaid work in the open for 100 hours was clearly
inappropriate.
The Appellate Court then quoted the case of Joomun v
The State [2005 SCJ 152] where the Court stated that
“while it may be desirable that this new concept of a more
humane treatment of offenders have a wide application, it
is obvious that it would not be an appropriate measure in
all situations”. In fact, it is well settled that there is no
obligation on a Court to invariably consider suspending a
term of imprisonment of 2 years or less and converting it
to a community service order. Each case has to be
considered on its own merits and there are cases where
such a course of action would not be appropriate (vide
Thomas v The State [2006 SCJ 52] and Jhugursing v
The State [2019 SCJ 146]).
The Court opined that the present case is one of those
cases where a community service order was wholly
inappropriate. The Respondent has indeed committed a
very serious offence as per the circumstances set out and
it is noteworthy that at the time of the commission of the
offence, the Respondent was 39 years old while the child
was of the tender age of 6.
The Respondent has indeed committed a very serious
offence as per the circumstances set out and it is
noteworthy that at the time of the commission of the
offence, the Respondent was 39 years old while the child
was of the tender age of 6. The medico-legal report
revealed that the child had a love bite at her neck and the
Respondent did not hesitate to remove the child’s pants
and knickers and to kiss her private parts. In order to
satisfy his own perverse sexual gratification, he betrayed
the trust of a very young child and of her parents whom
he knew well.
In support of the Appellant’s case, sentences passed in
other similar cases for the same type of offence, i.e.
attempt upon chastity upon a child under the age of 12
were referred to as follows:
In Neehull v The State [2010 SCJ 55], the appellant was
sentenced by the Intermediate Court to 12 months’
imprisonment for the same type of offence on a boy aged
7.
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Page 20
The appellate Court held that the learned Magistrate could
not be faulted for taking a serious view of the offence
before deciding to impose a custodial sentence since “the
legislator takes an aggravated view of an offence of
‘attentat à la pudeur’ where the victim is under the age of
12 with the clear purpose of providing added protection to
that category of young children because of their increased
vulnerability”.
Moreover, in Sobha v The State [2011 SCJ 396], the
victim was a girl aged 9 and the appellant was sentenced to
12 months’ imprisonment. On appeal, the Court held as
follows: “We agree with the reasoning of the learned
Magistrate that close relatives who abused their position of
trust to commit their misdeed on children of tender age do
not deserve any leniency from the Court. The custodial
sentence was richly deserved and is neither harsh nor
excessive.”
In Rama v The State of Mauritius [2010 SCJ 249], the
appellant was prosecuted under 5 counts of an information
before the Intermediate Court but he was found guilty under
one count only and sentenced to 4 years’ penal servitude.
The appellate Court maintained the sentence holding that it
found no reason to intervene given that the trial Court had,
in passing sentence, taken into account the young age of
the child, the position of trust held by the appellant and his
acts “of a gross sexual nature”.
The Appellate Court distinguished the case of Thomas
(supra) with the present one where the appellate Court
suspended the sentence of 12 months’ imprisonment
imposed on the appellant under each of 3 counts of an
information for the same type of offence and remitted the
case to the learned Magistrate for her to consider making a
community service order. Therein, the appellate Court held
that there were compelling circumstances for a community
service order to be considered inasmuch as (a) the
appellant was being sentenced some 14 years after the
commission of the; offences, which was in breach of his
constitutional right to a fair hearing within a reasonable
time; and (b) he had voluntarily submitted himself to
therapy and treatment and had adopted a sound and
spotless behaviour during the 14 years following the
commission of the offences.
The Appellate Court held that in the present case, only a
custodial sentence would meet the ends of justice and be
proportionate to the seriousness of the offence. Hence,
the appeal was allowed, the community service order
quashed and Respondent was ordered to serve the
sentence of four months’ imprisonment passed on him.
ICAC v DISTRIPC LTD 2019 SCJ 250
By Hon. Judge Mr. O.B. Madhub and Hon. Judge
Mrs. A.D. Narain
Stay of proceedings – High threshold – Section 5 of
FIAMLA – Who is liable to prosecution? Beezadhur
v ICAC – Immunity from prosecution
This is an appeal from a ruling of the lower Court staying
proceedings against the Respondent on the ground of
abuse of process.
The Respondent, as represented by one Mohammad
Imteaz Buckus, Accounts Manager, had been charged
before the Intermediate Court with wilfully, unlawfully and
criminally accepting payment in cash in excess of Rs
500,000 from one Fidy Olivier Etienne Rasoanaivo for the
sale of Microsoft computer software, in breach of
sections 5(1) and 8 of the Financial Intelligence and
Anti-Money Laundering Act (“FIAMLA”) coupled with
section 44(2) of the Interpretation and General Clauses
Act. After the accused company represented by Mr
Buckus pleaded not guilty to the charge, learned Senior
Counsel moved to enter a “plea in bar” which was
recorded by a learned Magistrate in the following terms –
“Def moves that the present pros be stayed on the ground
that the charge laid v/s Acc company amounts to an
abuse of the process of the Court in as much as the
Accused Co is the one who brought to the attention of the
authorities the impugned transaction by filing an STR w/o
which the authorities could not have been warned of the
facts disclosed by the Accused Co which led to 1st info
bearing CN 790/14 ICM wherein one Fidy Rasoanaivo
was prosecuted & found guilty by this Ct”.
After analysis of the evidence before the Court, the
Learned Magistrate went on to state that section 16(2)(a)
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of FIAMLA “clearly provides a guarantee for whistle
blowers and encourages the reporting of suspicious
transactions. It provides a sort of immunity to those who
report suspicious transactions”. He found that the accused,
having raised the STR, collaborated with ICAC and
remitted documents which led to the prosecution and
conviction of another person, was entitled to “the protection
of the law as provided in section 16(2)(a)”. He rejected the
submission of ICAC that only exempt transactions are not
subject to prosecution and found that the accused’s acts in
this case show the good faith of the accused for the
purposes of section 16(2)(a). Thus, he exercised his
discretion to order a stay of proceedings on the ground of
abuse of process and ordered accordingly.
The Appellant appealed on the following four grounds –
1. Because the Learned Magistrate erred when he found
that accused company was a whistle blower who had
reported his suspicion in good faith.
2. Because the Learned Magistrate failed to consider that
accused company was in fact a particeps criminis in the
said transaction.
3. Because the Learned Magistrate failed to appreciate that
Imteaz Buckus had given his first statement in his capacity
as accounts manager whereas the second statement was
given as representative of the company.
4. Because the Learned Magistrate erred when he applied
section 16(2) of FIAMLA 2002 to the present set of
circumstances.”
The Appellate Court dealt with the four grounds altogether
and after having carefully considered the evidence before
the lower Court, the submissions of learned Counsel and
the ruling of the learned Magistrate, held that the learned
Magistrate clearly erred both when considering the
recording of the statements by ICAC officers and the effect
of section 16(2)(a) of FIAMLA for the following reasons:
(i) Recording of statements
The Appellate Court elaborated upon the well-established
power of the Court to stay proceedings where the
prosecution amounts to an abuse of the process of the
Court and is oppressive and vexatious. Such cases may
generally fall in two categories –
a) where the defendant would not receive a fair trial;
and
b) where it would be unfair for the defendant to be tried.
(see R v Beckford [1996 1 Cr. App. R 94] at 100G).
The second category is the one that is invoked when
allegations of misconduct during the enquiry, generally by
the police, are made. The threshold to be met however is
a very high one and the discretion to stay proceedings is
to be exercised sparingly, as such misconduct can usually
be dealt with during the trial itself; there should also be
evidence of prejudice to the accused (see DPP v
Hussain, The Times, June 1, 1994). It has been said in
that regard that a stay would only be justified in
exceptional cases, where to proceed with the prosecution
would be “an affront to the public conscience” or would
“undermine public confidence in the criminal justice
system and bring it into disrepute” (see, for example, R v
Latif, R v Shahzad [1996 1 W.L.R. 104]). In the recent
case of DPP v Beeharry & Ors [2018 SCJ 242], the
Supreme Court, on appeal, thus endorsed the decision of
the Intermediate Court to stay proceedings on the ground
of abuse of process where the police had deliberately
failed to submit all documents when referring the police
file to the DPP for him to decide whether or not to
prosecute in that case.
The Court concluded that there is no evidence of high-
handed, unconscionable conduct on the part of ICAC at
enquiry stage in the present case that would warrant a
stay of proceedings on ground of abuse of process in the
light of the above principles. Moreover, the Court added
that the situation might well have been different if the
Appellant had led the Respondent to make the STR or to
give the first statement by giving a clear and unequivocal
undertaking not to prosecute the Respondent and later
reneging on the undertaking, but there is no evidence of
any such representation having been made by the
Appellant.
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“Whatever the mind can conceive and believe,
it can achieve.”
– Napoleon Hill
Furthermore, section 5(1) of FIAMLA makes it an offence
for a person to make or accept payment in cash in excess of
500,000 rupees The Appellate Court highlighted that, in of
Beezadhur v ICAC & Anor [2014] UKPC 27, the Judicial
Committee commented on the fact that the person making
the payment under section 5(1) was alone prosecuted for
the offence which on the face of it was also committed by the
bank accepting the payment, finding it curious that the bank
in that case had not also been prosecuted. Thus, there was
nothing sinister in the Appellant’s decision to record a
statement under warning from the Respondent after securing
documents which seemed to establish that the Respondent
had accepted cash payment of Rs 700,000 in breach of
sections 5(1) and 8 of FIAMLA as averred in the information
to establish that the Respondent had accepted cash
payment of Rs 700,000 in breach of sections 5(1) and 8 of
FIAMLA as averred in the information.
(ii) Section 16(2)(a) of FIAMLA
In relation to Section 16(2)(a) of FIAMLA which reads as
follows “No proceedings shall lie against any person for
having – (a) reported in good faith under this Part any
suspicion he may have had, whether or not the suspicion
proves to be well-founded following investigation or
prosecution or any other judicial action”, the Appellate Court
held that while the learned Magistrate was right to consider
that this provision is meant to encourage the reporting of
suspicious transactions. Section 16(2)(a) can hardly be
interpreted as bestowing a “sort of” immunity on any person
reporting a suspicious transaction from being prosecuted for
any offence, including an offence under section 5 of
FIAMLA.
Additionally, all that this provision does is to provide that a
person who has reported in good faith any suspicious
transaction is not to be prosecuted, nor sued, with respect to
the reporting of the suspicion; he cannot therefore be
prosecuted for effecting public mischief, if the suspicion
proves to be ill-founded, nor for breaching statutory
confidentiality provisions, whether or not the suspicion is
well-founded, nor can he be sued for defamation in relation
to the report he has made.
In short, a person should not be victimised for having
reported a suspicion in good faith under the Act.
It is worthy to note that were it to be otherwise, any
person having committed an offence under section 5 of
FIAMLA would only need to make an STR to evade
liability for that offence. It is interesting to note that, in the
Prevention of Corruption Act, a sister Act to FIAMLA,
this “limited immunity” is made even clearer in section
49(1)(2) by the use of the words “as a result of such
disclosure” or “by reason only of such disclosure” [hence
no civil or criminal liability arises against a person
pertaining to such disclosure only].
However, the Appellate Court added that it is open to the
DPP to consider on a case-by-case basis whether to
offer, pursuant to section 72 of the Constitution and in
the public interest, immunity from prosecution under
section 5 of FIAMLA to a person making an STR under
that Act, but he is certainly not debarred, under section
16(2)(a) of FIAMLA or otherwise, from prosecuting for
breach of section 5 (as in this case) a person making an
STR.
Therefore, upholding the grounds of appeal, the Court
quashed the order of stay of the proceedings and referred
the case back to the Intermediate Court for the case to be
heard and determined promptly.
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