Office of the Director of Public Prosecutionsdpp.govmu.org/English/Documents/Issue96.pdf · Training of Trainers course. An overview of the training is ... that such cases be evaluated

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

on [email protected].

Anusha Rawoah

Senior State Counsel

mailto:[email protected]




September 2019

ODPP VIDEO


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

https://youtu.be/Sm9spzC758M





September 2019

ARTICLES


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


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?


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?


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?


September 2019

WORKSHOPS/

CONFERENCES

REVIEW


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


September 2019

QUICK FACTS


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


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.


September 2019

SUPREME COURT

JUDGMENTS

SUMMARY


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”.


Page 18

(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.


Page 19

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.


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)


Page 21

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.


Page 22

“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.
