ICAC v Lowtun & anor

2017 INT 147

Cause Number: 1161/2015

In the Intermediate Court of Mauritius

(Criminal Division)

In the matter of:

Independent Commission Against Corruption (ICAC)

1. Ramesh Lowtun
2. Dooshyant Kumar Sawuck

Judgment
Both Accused stand charged with ‘Public official using his office for gratification’ in
breach of sections 7(1) and 83 of the Prevention of Corruption Act (“the Act”) to
which both Accused pleaded Not Guilty and were assisted by their respective
Counsel.

The Prosecution case was also conducted by Counsel.

The offence with which they stand charged reads as follows under section 7(1) of
the Act:
(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.

The Supreme Court has had the opportunity to outline the constitutive elements of
the present offence under section 7(1) of the Act in Joomeer v the State 2013 SCJ
413 as well as in Jhurry v ICAC & anor 2015 SCJ 258. In Joomeer (supra), the
Supreme Court held:

What the prosecution needs to prove under section 7(2) of the Act is that
the defendant:
(a) was a public official;
(b) made use of his office or position;
(c) so acted for a gratification for himself or another.

In Jhurry (supra), the Supreme Court held the following:

Section 7(1) creates an offence which contains the following constitutive elements
of
an offence which it is incumbent upon the prosecution to prove beyond reasonable
doubt:
(1) The person charged is a public official;
(2) he made use of his office or position as a public official;
(3) in order to obtain a gratification either for himself or for another person.

Thus there cannot be any doubt that the above extracts spell out clearly the
constitutive elements of the present offence which therefore must be averred and
proved by the Prosecution beyond reasonable doubt, in addition to the mens rea of
the offence.

However, when the present information against both Accused is considered, I find
that it has been averred, ‘That on…[Accused no.1] and [Accused no.2] did whilst
being public officials, willfully, unlawfully and criminally make use of their position
for a gratification’ without also averring for ‘himself or for another person’ as
provided for by the legal provision creating the offence. There is no doubt, in the
light of section 7(1) of the Act as well as both Supreme Court cases cited above, that
it is most essential to also aver whether the gratification is for himself or for another
person so as to constitute an offence under the said section of the Act.

In Teeluck v R 1990 SCJ 34, the Supreme Court allowed the appeal and quashed the
conviction against the Appellant who had been convicted on an information which
charged him with criminally and knowingly having in his possession certain
counterfeited bank notes, in breach of section 38 of the Bank of Mauritius Act since
the information, as worded disclosed no offence in law as it did not contain an
essential averment that the counterfeited notes found undoubtedly in the
appellant’s possession purported to have been issued by the Bank of Mauritius. The
Supreme Court held:
It is plain beyond argument from a reading of the Bank of Mauritius Act, including
sections 29 and 33, and on the specific wording of section 38 of the Act which
essentially states that “any person who, without lawful authority or excuse has in
his possession, knowing the same to be …..counterfeited ….. counterfeited currency
note purporting to be issued by the Bank, shall commit an offence …”, that one of the
essential ingredients of the offence of unlawful possession of counterfeit currency
notes is that the currency notes which are targeted are not notes from any bank but
only those which purport to be issued by the Bank of Mauritius. Since this essential
ingredient which had to be proved by the prosecution had not been averred in the
information, the latter discloses no offence. Consequently, we have no other option
than to allow the appeal and quash the conviction of the appellant.”

Similarly in the present matter, it is clear that the offence is committed only when
the public official obtains a gratification for himself or for another person as per the
wordings of the law creating the offence and it is therefore incumbent on the
Prosecution to aver and prove beyond reasonable that the gratification was
obtained for himself or for another person.

In Sahadeo v The Queen 1976 MR 264, the Supreme Court quashed a conviction
against the Appellant who pleaded guilty to criminally and willfully have in his
possession certain excisable goods as per the information whereas the relevant legal
provision provides the following:
“any person who, without lawful authority or reasonable excuse…. has in his….
possession…. any…. excisable goods…. obtained in contravention of this Act…. shall
commit an offence.”

The Supreme Court held:

Counsel for the respondent has conceded that the information discloses no offence
because it does not aver that the accused's possession was without lawful authority
or reasonable excuse and is ambiguous because section 6(3) (a) and (b)
contemplate a number of ways in which the Act can be contravened.

We have no doubt that it was wrong to charge the appellant with having had in his
possession five and a half litres of rum, which was “excisable goods”, without
averring that the possession was unauthorized and without specifying further in
which way that possession was in contravention of the Excise Act, 1974.
It is found that section 7(1) of the Act also provides various ways in which the
offence may be committed, namely that the gratification was obtained for himself or
for another person. Thus, it becomes even more crucial for the Prosecution to
clearly aver whether the gratification was for the Accused parties themselves or for
another person. There might yet be another possibility that the gratification was for
both themselves and for another person.

In the light of the above authorities, it is clear that the present information does not
disclose an offence in law since it has not averred whether the gratification was for
one of them or for themselves or for another person or for both themselves and
another person as well.

The information is therefore thoroughly bad because it discloses no offence at all as

opposed to being merely defective. If the information would have been only
defective, then surely there would have been several options open as held in Ponen
v the Queen 1985 SCJ 89. In Venkiah v R 1984 MR 63, the Supreme Court held the
following principles consistent with Ponen (supra):

“The basic principles involved, which may bear repetition, are that (a)
an information may be defective, as distinct from being thoroughly bad
(e.g. because it discloses no offence at all or is tainted with duplicity)…

Thus, an information is bad when it discloses no offence at all. The present

information cannot therefore be considered as being merely defective for which
there are several cures available including amendment by the Court itself as was
done in Venkiah (supra) and directed by the Appellate Court in Director of Public
Prosecutions v A.A Mohamed 2015 SCJ 452. In the latter case, the Supreme Court
found that the omission of ‘private ends’ from the information was merely defective
and not thoroughly bad. In fact, the Supreme Court clearly held that, ‘the defect was
not such as to render the information so bad that the proceedings were a nullity’.

In the present case, the information is not only bad since it does not disclose an
offence in law in the light of Sahadeo (supra), Teeluck (supra), Lobogun v the State
2006 SCJ 63 and section 125(1) of the District and Intermediate Courts (criminal
jurisdiction) Act. There is also real serious prejudice and unfairness should the
Court on its own motion at this very late stage amend the information.
The particulars provided under the present information does not either clarify the
material circumstances of the case so that it could be said that the Accused parties
knew throughout the case they had to meet. The said particulars reads as follows:
‘on or about..[Accused no.1] and [ Accused no.2] whilst being Police Constables at
Rose Hill Police Station, obtained sum of Rs. 2,000 from [the complainant], so as not
to book the latter for an alleged offence of Rogue and Vagabond’.

Thus, the particulars provided does not clarify with such certainty whether they
obtained the said sum for themselves or for another person or for both themselves
and another person.

The latter possibility is a live one when the version which was put to both Accused
parties in their respective statements are considered. In fact, it is found from their
statements (Document C and D refer) that the following allegation by complainant
was confronted to them, ‘100 roupies ki pou faire et nous a trois et troisieme la li
dans van’. Thus, the Accused parties were confronted with a version in their
respective statements that the said gratification being solicited was not only for
themselves but also for a third person in the van.

It cannot therefore be said that they would have known the precise nature of the
case against them and the non averment of a crucial element of the offence further
throws more confusion and uncertainty as to what is the case against them.

The cross examination conducted by the Prosecuting Counsel does not either
enlighten the Court as to what exactly is their case so that had this Court
contemplated to amend the information, it could have done so.

In fact, the case for the Prosecution was put to Accused no.1 in the following way at
the end of the cross examination exercise:
Q: ‘ou fine gagne Rs. 2,000 avec ene Monsieur Appou ki fine deposer dans la cour
pou ki zot pas prend li contravention. Zot mo pe dire ou avec ou collegue
Sawock…ki ou fine obtenir sa Rs. 2,000 la avec sa denommé Appou la pou pas prend
li contravention pou sa offense rogue and vagabond… ?

The above question only imputes that Accused no.1 obtained the said sum as
gratification for himself and nothing else, thus allowing another possibility as to
who was the beneficiary of the said gratification.
The case which was put to Accused no.2 at the end of his cross examination is as
follows:
Q: Zot tine recevoir Rs. 2,000 avec ene dénommé Louis Clarence Steeve Appou …et
sa zot ine recevoir pou ki zot pas prend li… en contravention… ?

The case which was put to Accused no.2 is to the effect that the said gratification
was obtained for ‘zot’ i.e., for both of them.

Thus, at the end of the day, it is found that the Prosecution case at the investigation
stage was that the gratification was for themselves as well as a third person in the
van and during trial, the case which was confronted to Accused no.1 was that the
latter had obtained the said sum for himself whereas the case put to Accused no.2 is
that they obtained the gratification for themselves. The least that can be said is that
there is utter confusion in their case from the beginning and this confusion might
explain why the information was so drafted without averring whether the
gratification was for themselves, for one of them, for another person or for
themselves and another person.

The end result of the confusion in the Prosecution case is that the Court is in
presence of an information which is bad since it discloses no offence at law and for
which there cannot be any cure in the light of the nature of the Prosecution case
both at enquiry stage and during trial.

Now, even when the evidence relied upon by the Prosecution to prove its case is
considered, I find that such evidence has no weight whatsoever and cannot be relied
safely upon.

In the light of Joomeer and Jhurry (supra), there is no doubt that gratification is an
essential element of the offence which has to be proved beyond reasonable doubt.
In the present matter, it has been averred that the said gratification is a sum of
2,000 rupees. Now, in order to be able to give a sum of 2,000 rupees, the
complainant must surely have such sum of money in his possession and he should
be found to be credible on such a crucial fact.

In the present matter, whilst he was being examined in chief, he stated that he had
1000 rupees with him whilst his girlfriend had another 1000 rupees so that he gave
them 2,000 rupees. He was however found to be inconsistent by the Prosecution
who then confronted him with his statement dated 20.04.13 in which he had stated,
‘mo fine retire 2 billets de Rs. 1,000 depuis dans mo porte feuille ki ti dans mo poche
pantalon coté droite et mo fine donne sa sa premier policier la Rs. 2,000 la dans so la
main droit ek mo fine dire li guetter ki li kapave faire’ upon which he admitted
having said so in his statement and that it was true. Thus, it would appear that the
money that he allegedly gave to Accused no.1 was his or at least withdrawn from his
own pocket. Yet, when he was immediately cross examined he admitted that his
girlfriend had given him 1,000 rupees when they were having dinner. He then
explained that he had some 1,500 to 1,600 rupees with him when he left his house
and had spent some 400 rupees at the restaurant for dinner. He added that he
would have used the said money to buy vegetable on the following day and would
have also paid some 700-800 rupees to Courts. But when he was confronted with
his statement he conceded he had stated to the Police in his statement that he had
2,000 rupees with him so as to pay Courts. When he was again cross examined as to
the amount of money he had with him when he left his place, he stated he had about
2,000 rupees but could not remember whether it was 2,100 rupees. Then despite
having stated earlier that his version in his statement to the Police to the effect that
he removed 2,000 rupees from his purse was correct, he again admitted that he took
1,000 rupees from his girlfriend. There is definitely volte face upon volte face in his
version as to whether the said sum of 2,000 rupees was his as stated in his
statement or whether he took 1,000 rupees from his girlfriend to then give the
Police officer 2,000 rupees.

He was not also straightforward in his version when he was asked from where did
his girlfriend removed the said sum of 1,000 rupees. He originally stated that she
removed it from her purse inside her handbag. He was then confronted with his
statement in which he had stated that his girlfriend had left her handbag at her place
of work upon which he stated she must have surely removed the money from her
purse. When it was suggested that she did not have her purse with her, he then
replied she removed the said money from her pocket. Thus, he is never sure of the
answer he gives.

He admitted that she gave the sum of 1,000 to him at Plaza but also conceded that he
had earlier stated that she gave him the said money at the restaurant so that there is
clearly another contradiction in his versions.
He was then again confronted with his statement to Police to the effect that he had
stated that he removed the sum of 2,000 rupees from the purse in his pocket and
was invited to explain the disparity in his versions. He however conceded he could
not explain such disparity so that it has remained unexplained.

It has also been found that he gave different versions in his statement as to what he
would have done with the said sum of 2,000 rupees; whether he would buy
vegetables or whether he would pay Courts.

He was further found to be in contradiction as to the alleged purpose his girlfriend

gave him the sum of 1,000 rupees; whether to give the Police officer or whether as
payment for some work he did for his girlfriend’s friends. He moreover conceded
that he gave several versions.

Thus, there are clearly material and serious inconsistency as well as contradiction as
regards whether he paid the Police officer the said sum of 2,000 rupees from his
own pocket or whether his girlfriend contributed 1,000 rupees towards the said
alleged gratification of 2,000 rupees.

The contradiction and inconsistency are not in respect of any minute or minor
details; it is in respect of whether he had the capacity at that material time to offer
2,000 rupees to the Accused parties. If he has not been found to be credible as to
whether he had 2,000 rupees, then there are definitely reasonable doubts as to
whether he gave such a sum to the Police officers. This is therefore not an
inconsistency on an issue which can be lightly brushed aside but it is one which is
central and crucial to the heart of the Prosecution case itself.

He has therefore not shown himself worthy of any belief as to whether he had the
said sum in his possession or whether he and his girlfriend could contribute
together so as to give the Accused parties the alleged sum of 2,000 rupees. Thus, in
the face of such unreliable evidence, the Prosecution has failed to prove the crucial
element of gratification beyond reasonable doubt.

The said witness has also been found to be in contradiction on other issues such as
whether he left his girlfriend at the clinic or at the petrol station; whether they were
embracing each other at the time the Accused parties approached them or
otherwise; whether they had gone to dinner before coming to Plaza or whether they
had come to Plaza first and then went to have dinner to again return at the backyard
of Plaza.

He also stated that the Police officers left the spot after they received the said money
and went towards the main road to then turn towards Port Louis. However, it is on
record from PC Hunea that the Accused parties arrived at Rose Hill Police Station.
PC Hunea also produced a Diary Book entry extract (Document E refers) to the
effect that Accused no.1 arrived at Rose Hill Police Station at 22.17 hrs. He also
confirmed that in order to reach Rose Hill Police Station one cannot go towards Port
Louis but rather in the opposite direction. EX PS Romaldawoo also conceded that
since Accused no.1 reached Rose Hill Police Station at 22.17 hrs, then he could not
have gone towards Beau Bassin.

Mr. Appou had to even concede that the discrepancies in his versions is due to the
fact that his mind could not remember the events properly. But I have to highlight
the fact that despite his previous statement dated 20.04.13 was confronted to him
on several occasions both during examination in chief as well as cross examination,
his version still remained riddled with confusion, uncertainties and contradictions.

Both Accused parties also deposed under oath and whilst there might be some
issues as how Mrs. Heroseau arrived at Rose Hill Police Station, I cannot disregard
the fact that both Accused parties have been proved to be consistent with the said
Prosecution witness as regards whether two Police officers had approached her and
offered her assistance to be conveyed to hospital in view of her state of health. It is
also confirmed by Mrs.Heroseau that she went to Rose Hill Police Station and not to
the hospital despite the fact that she was in very distressed condition and real risk
of miscarriage.

The basic rule is for the Prosecution to prove its case beyond reasonable doubt but
in the present matter, in view of the evidence from Mr. Appou, their main witness, it
cannot be said that the Prosecution has been able to prove its case against the
Accused parties beyond reasonable doubt.

Thus, in addition to the information being bad since it discloses no offence, the
Prosecution has not also been able to prove its case against both Accused parties
beyond reasonable doubt. Thus, even if the Court would have contemplated to
amend the information, it would not have been able to do so in the light of such
unreliable evidence on record.

I therefore dismiss the charge under present information against both Accused.

Neerooa M.I.A
Magistrate, Intermediate Court.
This 27 April 2017.