Ruling sur l'affaire des coffres-forts

POLICE v N. RAMGOOLAM

2018 INT 190

POLICE v N. RAMGOOLAM

CN: 977/2017

THE INTERMEDIATE COURT OF MAURITIUS (CRIMINAL DIVISION)

In the matter of:-

Police

v/s

Navinchandra RAMGOOLAM

RULING:

The accused stands charged with the offence of:Limitation of payment in cash , in breach of Sections 5, 7 & 8 of the Financial Intelligence and Anti-Money Laundering Act 2002 , under Counts 1 to 23.

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The accused has pleaded Not Guilty to the 23 Counts and he is assisted by a panel of counsel. The present case has not yet started and, at this stage, the Prosecution has moved to amend the information as follows: The proposed amendment is to amend Counts 1 to 23 by adding after each of the said Counts, the following averment: ‘Complainant further avers that for the purposes of Section 8 of the Financial Intelligence and Anti-money Laundering Act, the aforesaid sum is derived, in whole or in part, directly or indirectly, from a crime and therefore prays for forfeiture of same.’ 

The defence has objected to the above motion made by the Prosecution for the following reasons: (1) It is mere surplusage if the purpose is to bring in the provisions of Section 8 of FIAMLA, which is but a penalty section, which need not be set out in the body of the information, as it has already been set out in the heading of the information. (2) It would appear, however, that the Prosecution is, under the the guise of bringing in Section 8, in fact bringing in elements of a totally different offence as can be seen by perusing Section 3 of FIAMLA. This amendment would, therefore, create duplicity or/and uncertainty which will obviously prejudice the accused in his defence.

Submission by Mr. R. Ahmine, the Learned Deputy D.P.P:

In brief, Mr. R. Ahmine, submitted as follows: The Court has a wide discretion to allow an amendment in a criminal case and the power to amend the information can be made at any stage of the trial. But, if the amendment is likely to mislead, deceive or prejudice the accused, then, the amendment should not be allowed. The stage at which a proposed amendment is made is an important factor to be taken into account. The amendment in this case is being made to bring to the attention of the Court and the accused that the property, which is the subject matter of the charge, in fact, is derived in whole or in part from a crime and the Prosecution intends to adduce evidence on that matter. Moreover, the proposed amendment is not a surplusage, in as much as Section 6 (3)

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 As regards the issue of duplicity, duplicity, in fact, the Prosecution Prosecution wishes to bring clarity and certainty, and is being fair to the defence. There may be different categories of cases under Section 5 of FIAMLA , but in cases where the contention of the Prosecution is that the property is tainted, the Prosecution must disclose it right at the beginning. Witnesses will be called and, who possibly, will give evidence in relation to the proposed amendment. Furthermore, the proposed amendment will prevent the defence from raising the argument that it was not aware of the forfeiture order. It is not sufficient only to aver Section 8 of FIAMLA ; the proposed amendment should be made where the Prosecution actually wants to ask that the money be forfeited and, thereby, giving notice to all the parties. In the course of his submission, Mr. R. Ahmine referred to Sections 125 and 97 (2) of the District and Intermediate Courts (Criminal Jurisdiction) Act , as well as to the following authorities: Bungaroo v The Queen [1975 MR 1] , Venkiah v The Queen [1984 MR 62], Archbold Digital, Blackstone’s Criminal Practice 2018 , R v Johal; R v Ram [1972] 2 ALL ER 449, L. A. Abongo v The State [2009 SCJ 81]  and Beezadhur v The Independent Commission against Corruption and Anor [2013] PRV 83 .

Submission by Mr. G. Glover SC appearing for the defence:

On the other hand, Learned Senior Counsel, Mr. G. Glover contended that the objections by the defence is twofold: (i).To bring in the provisions of Section 8 of the FIAMLA   would be mere surplusage because it is an independent section, which is usually set out at the heading of the information and not in the body of the information. (ii).The second limb of the objections is that, in fact, under the guise of bringing in Section 8 (2) of the FIAMLA , the Prosecution is bringing in by the back-door elements of a totally different offence as can be seen when perusing Section 3 of the FIAMLA , so that the amendment would create uncertainty/duplicity. By adding in elements, which are to be found in Section 3 of the FIAMLA , the Prosecution is substituting a new offence, that is, a hybrid charge and a non-existent offence against the accused, thus, causing prejudice to the accused. The amendment sought do not merely add specifications or particulars, but, in fact, introduces new and material averments. In the information, there has been no averment of any material circumstances of the offence nor is there any in relation to the proposed amendment. The proposed

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By adding the words ‘in whole or in part, directly or indirectly’ , the accused does not know with certainty whether the money was derived ‘directly or indirectly’ . Thus, the proposed amendment is bringing in uncertainty. Only elements of the offence have to be averred in the information as the relevant penalty is a matter which will come to the fore after the Court finds the elements of the offence proved beyond reasonable doubt. The letter of the law has to be followed and if anything else is averred, one is creating a situation which might render the trial unfair. There is no necessity under Section 5 of the FIAMLA  to make any averment in relation to the purported tainted origin of the money, which is the subject matter of the 23 counts. Lastly, Section 97 of the District and Intermediate Courts (Criminal Jurisdiction) Act is not relevant, because it deals with appeals rather than with first instance trials.

The reply of Mr. R. Ahmine:

Mr. R. Ahmine’s stance on the issue is that Section 5 of the FIAMLA   has been left intact and the proposed amendment is in respect of Section 8 of the FIAMLA .

Reply of Mr. G. Glover SC:

Mr. G. Glover SC replied that there is absolutely no connection between the proposed amendment and Section 8 (2) of the FIAMLA . In order to buttress his argument, Mr. G. Glover SC resorted to the following pronouncements: Jean Louis v The State [2000 SCJ 153] , J. V. S. L’Etourdi v The State [2017 SCJ 127] , R v Sandhu (1997) Crim. L. R. 288 CA , R v O’Connor (1997) Crim. L. R. 516 , Ricaze v Court of Appeals, G. R. No.160451, February 9, 2007 , R v Barraclough (1906) 1 K. B 201, How Yuen v The State [2007 SCJ 24] , Lepion v The State [1997 SCJ 153]  and D.P.P v Ali Mohamed & Ors [2015 SCJ 452] .

ANALYSIS:

The Court has taken due consideration of the law, the submission of Mr. R. Ahmine and that of Mr. G. Glover SC. The law applicable:

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(1) No objection shall be allowed to the information, for any alleged defect in its substance or form, or for any variance which, in the opinion of the Magistrate, is not material to the merits of the case between such information and the evidence adduced in support of the charge. (2) Where any such variance or defect appears to the Magistrate to be such that the  party charged has been deceived or misled, the Magistrate may amend such information and adjourn the hearing of the case to such future day on such terms as he thinks fit.’ 

Therefore, if it appears to the Court either that an alleged defect in substance or in form in the information, or that any variance between the information and the evidence adduced in support of the charge, is likely to deceive or mislead the accused, the Court may amend the information and adjourn the hearing of the case to some future day. Mr. G. Glover SC has submitted that Section 97 (2) of the DIC(CJ) Act is not relevant for the purposes of the present  Argument . At this juncture, the Court finds it apposite to cite this provision of the law: ‘No conviction shall be quashed on the ground of any defect in substance or in form in the information, warrant or summons, or for any variance unless the Magistrate or Intermediate Court has refused to amend the information and to adjourn the hearing, and unless the court is satisfied that the appellant has thereby been misled  or deceived  and prejudiced   and prejudiced  in  in his defence.’ [Emphasis defence.’  [Emphasis added]

 Although Section 97 (2) of the DIC(CJ) Act   is in relation to appeals, Mr. R. Ahmine quite rightly submitted that it provides guidelines. Indeed, in deciding whether to allow an amendment to an information, a trial Court should bear in mind and ensure that, in so doing, the accused is prevented from being misled, deceived or prejudiced in his defence at the trial stage. The principle and guidelines applicable to a motion for amendment of the information are set out in the case of Bungaroo v The Queen [1975 MR 1]  as follows: “… the Courts have very wide powers of amendment   and that nothing short of  prejudice that may be caused to an accused party can prevent the amendment of a criminal information  information   either by substituting an offence akin to the one originally charged or by adding a new count to an information or by making good any other defect of substance or form. However, the Court must be very careful to see to it that given the nature of the offence originally charged , the gist of the amendment applied for and the time at which such application is made, made , no prejudice will be likely to ensue to the accused.” 

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It follows from what precedes that nothing short of prejudice would prevent an amendment to the information and the following factors must be taken into account when adjudicating upon the matter: (i).The nature of the offence charged; (ii).The gist of the amendment applied for; and (iii).The time at which the proposed amendment is made.

The case-in-hand:

The Court shall now apply the principle and guidelines outlined in the case of  Bungaroo v The Queen (supra) into the present matter: (1).The nature of the offence charged:

Turning to the first factor to be taken into consideration as mentioned earlier, the Court finds it appropriate, first of all, to cite Section 125 (1) of the DIC(CJ) Act , which provides that, ‘The description in the information of any offence in the words of the law creating such offence, with the material circumstances of the offence charged, shall be sufficient.’ 

It is trite law that the wording in an information in relation to the offence must follow faithfully the precise elements of the offence as laid down in the law (vide: D. Dawonauth v The State of Mauritius [2005 SCJ 285] ). Quite naturally, as regards the nature of the offence charged, the amendment applied for must not seek to change the nature of the offence originally charged (vide: M. I. A. A Rahiman v The State [209 SCJ 340], Veerasamy v The Queen [1968 MR 129] ).  A perusal of the present information information reveals that the elements of the offence of Limitation of payment in cash have been averred therein. The question which arises is whether the proposed amendment will have the effect of adding a new element to the existing elements of the offence as couched in the information. Now, it is expedient to put the proposed amendment into perspective; in other words, it is important to understand the purpose and nature of the proposed amendment. It is clear from a reading of the proposed amendment that it is being made solely for the purposes of Section 8 (2) of the FIAMLA . The penalty section, that is, Section 8 of the FIAMLA runs as follows: ‘ Penalty  Penalty 

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(b) disposes or otherwise deals with property subject to a forfeiture order under subsection (2), shall, on conviction, be liable to a fine not exceeding 2 million rupees and to  penal servitude for a term not exceeding 10 years. (2) Any property belonging to or in the possession or under the control of any person who is convicted of an offence under this Part shall be deemed, unless the contrary is  proved, to be derived from a crime and the Court may, in addition to any penalty imposed, order that the property be forfeited.  (3) Sections 150, 151 and Part X of the Criminal Procedure Act and the Probation of Offenders Act shall not apply to a conviction under this Part.’  Section 8 of the FIAMLA   consists of three subsections and the subsection of relevance is Section 8 (2), which, unfortunately, the Prosecution did not precise. This part of  Section  Section 8 of the FIAMLA  provides for the additional penalty of a forfeiture order to the main penalty under  Section 8 (1) of the FIAMLA , for the aggravating element of the tainted origin of the property. In this Section, there is no need for the Prosecution to prove this aggravating element of the substantive offence under Section 5 of the FIAMLA. It can be presumed since the provision of the law, that is, Section 8 (2) of the FIAMLA  says ‘shall be deemed’ , leaving on the defence the burden of disproving the presumption. Of relevance is the case of L.A Abongo v The State (supra) , where the Supreme Court had this to say: “As rightly observed by the learned Magistrate the legal burden lies on the prosecution to establish the guilt of the appellant in respect of the elements of an offence under section 5 of the Act. It is only following a conviction of the substantial charge that the burden shifts on the appellant to establish particular facts in respect of the lawful origins of her property before the Court decides whether the appropriate sentence may include a forfeiture order.” 

It is clear from the penalty section that the forfeiture order, which is embodied in

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namely an offence under   Section 5 of the FIAMLA . In addition, it does not alter the offence contemplated in the sense of bringing a new element that would suggest another offence, particularly an offence under Section 3 of the FIAMLA   as seems to suggest by Learned Senior Counsel for the defence in invoking duplicity. With regard to the rule against duplicity, in  D.P.P v Merriman (1973) AC 584 , Lord Morris of Borth Y-Gest said, “It is … a general rule that not more than one offence is to be charged in a count in an indictment.”  In A.R. Mahamudally v The State and Anor. [2011 SCJ 246] ,  the Supreme Court prescribed the test to ascertain whether an information is duplicitous as follows: “…, whether an information is bad for duplicity is to be decided by looking at the wording of the information itself, in the light of the enactment creating the offence, such as to see if more than one offence is being charged in the same count.” 

When applying this test to the content of the present information in conjunction with the proposed amendment, it is plain that only one offence would be charged and no prejudice will stem from the proposed amendment. Hence, the proposed amendment does not have a bearing on the nature of the offence charged.

(2). The gist of the amendment applied for:

In order to grasp the gist of the proposed amendment, one has to ascertain the purpose and the implications of the proposed amendment. Firstly, the Court is of the opinion that illumination can be sought by drawing parallels between the relevant Sections of the FIAMLA  with those under the Building Act 1915. Although the Building Act 1915  has been repealed by the Building Control Act 2012, the cases and provisions under the Building Act   provide an insight as regards the procedure. For instance, Section 7 of the Building Act  is an offence Section.

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offence, an averment, that is, a prayer of pulling down order (vide: Municipal Council of Port Louis v M.E Verte [2013 SCJ 7] ). In the same vein, a forfeiture order under the FIAMLA finds its relevance as a prayer in an information. The Court takes the view that the analogy can be drawn between the above-mentioned penalty section under the Building Act  and the penalty Section under Section 8 of the FIAMLA, in that a forfeiture order and a demolition order are both additional sanctions. These orders are conspicuously separate and distinct from the offence charged. That is why a prayer for forfeiture order cannot be considered on the same footing as the elements of the offence. One must not confuse the averment or prayer of a forfeiture order with the elements of the offence which are altogether different in nature. In the case of Municipal Council of Port Louis v M.E Verte (supra) , the Supreme Court highlighted that, “The objective of the Building Act would be defeated if, in appropriate cases, Courts failed to make pulling down orders of illegal constructions.”  Similarly, the Court cannot lose sight of the aim of the FIAMLA which was pointed out by the Supreme Court in L.A. Abongo v The State (supra) as follows: “The Financial Intelligence and Anti-Money Laundering Act was enacted essentially for the purpose of combating money laundering offences which had the potential of adversely affecting the social and economic set up, both at national and international level to such an extent that they may constitute serious threats not only to the financial system but also to national security, the rule of law and the democratic roots of society. By enacting sections 5, 6 and 8 of the Act, the policy of the legislator was clearly designed to achieve the compelling objective of safeguarding the national and international financial systems against any disruptive intrusion which may be caused by the perpetrators of certain criminal activities.” 

Thus, if a forfeiture order is not invoked following a conviction, this would defeat the main objective of the FIAMLA. Hence, that would amply justify the significance of the present proposed amendment.

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It is this legal reasoning in that case which is of the essence and pertinent to the present matter. The principle applied in a drug case is that there must be an averment of trafficking included in the information so that an accused is informed before the start of the case about the aggravating circumstance which would mean that at the time of arraignment the accused would be aware of the impending risk that a severer penalty may be inflicted upon him if he is found guilty of the offence. Similarly, as a meaningful comparison between the two Acts, the same rationale has to be applied in that, in the present case, a forfeiture order is a severe penalty and it is quite important that the accused be informed ab initio  of this order so that he is aware, right at the start, of the penalties he is likely to face if he is convicted. This early disclosure will not only prevent him from being misled or deceived from the beginning, but also forestall any prejudice which may be caused to him thereafter. Moreover, if the averment in relation to a forfeiture order is omitted, as a direct consequence of this lack of precision, an accused may be unable to avail himself of defences, which would have been open to him. Therefore, Section 8 (2) of the FIAMLA must be brought home to an accused at an early stage. Thirdly, another compelling reason which justifies the proposed amendment is the manner in which the heading of the present information has been set out. At this  juncture, the Court Court finds it apposite to reproduce reproduce the heading heading of of the present present information: information: ‘CHARGE OF: LIMITATION OF PAYMENT IN CASH (COUNTS 1 to 23) Breach of sections 5, 7 & 8 of the Financial Intelligence and Anti-Money Laundering Act 2002.’ 

 A perusal of the above reveals that Section 8 of the FIAMLA   has been mentioned. However, the Prosecution has not pinpointed which subsection of Section 8 of the FIAMLA it is aiming at. Bearing in mind the importance of the forfeiture order, which is contained in Section 8 (2) of the FIAMLA , and the far-reaching implications that will flow should it be triggered, the Court takes the view that there is lack of precision in the

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in the information is utterly misleading and the accused will be taken by surprise if Section 8 (2) of the FIAMLA is applied at a later stage, in case he is found guilty. Going even further, to gauge the importance of an averment in relation to the forfeiture order, one may imagine that in a scenario where an accused is not assisted by counsel, that defendant would be completely unaware of the fate that eventually is to befall him if he is found guilty. Hence, the Court is of the considered view that, in all fairness to an accused, the intention of the Prosecution in respect of a forfeiture order must not be shrouded in mystery, but it must rather be foreshadowed in the information. Therefore, the failure to specify Section 8 (2) of the FIAMLA  in the heading of the information and the absence of any averment in the body of the information in that respect is insufficient in a prosecution based on Section 8 (2) of the FIAMLA . In the circumstances, as correctly submitted by Mr. R. Ahmine, the proposed amendment will bring certainty. By averring the proposed amendment, the Prosecution is now declaring its wish to rely on Section 8 (2) of the FIAMLA , thus, giving advance notice to the accused that should the latter be convicted of the present offence, the forfeiture order will be invoked. Therefore, it is not likely that the Prosecution is inserting a new ingredient in terms of the element of the substantive offence as to result in duplicity and uncertainty as to the present charge the accused has to face; but, in fact has for effect to bring to the attention of the Court and to the accused that the Prosecution is contemplating the application of Section 8 (2) of the FIAMLA in sentencing. Thus, there are cogent reasons to include the proposed amendment into the present information. In the course of his submission, Mr. G. Glover SC sought reliance upon the case of J.V.S. L’Etourdi v The State [2017 SCJ 127] , where it was remarked that, “As per our law, it is sufficient that the information identifies the legislation which creates the offence and the elements of the offence need to be described in a concise and simple language. There is no requirement to specify the penalty or the alternative  penalties for the offence.” 

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information, in other cases it may be useful and crucial to specify the penalty, as in the case-in-hand. Mr. G. Glover SC also referred to Paragraph 14 of the judgment in the case of Beezadhur v The Independent Commission Against Corruption & Anor. [2013 PRV 83], which runs as follows: “In the intermediate court, the magistrate accepted that the money in question did not have a "tainted" origin, but was the fruit of his savings. However, he held that the Act did not require the prosecution to aver in the information that the money emanated from tainted origins. The appellant did not at that stage argue that the transactions were "exempt" under section 5(2). The magistrate found the appellant guilty as charged and sentenced him to pay a fine of Rs 10,000 under each of the five counts, and costs of Rs 500.” 

Mr. G. Glover SC submitted that “This was a statement of fact by Their Lordships which was accepted by all parties.”  Now, it is important to consider the said Paragraph 14  in its proper context. Firstly, Paragraph 14 is found under the heading “The facts” . Therefore, Paragraph 14 is an excerpt of the history of that case which has been related by the Judicial Committee of the Privy Council. Secondly, there is not even a hint that their Lordships approved the statement made by the Magistrate that “ the Act did not require the prosecution to aver in the information that the money emanated from tainted origins.”  Thirdly, this fact was not

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The “hybrid charge”  issue:  issue:

 Although the proposed amendment amendment contains words which mirror some of the elements of the offence under Section 3 of the FIAMLA , it does not mean that identical words cannot be used for the purpose of Section 8 (2) of the FIAMLA . True it is that the words ‘in whole or in part’ , ‘directly or indirectly’  consist  consist of elements of the offence under Section 3 of the FIAMLA , but for the purposes of Section 8 (2) of the FIAMLA , those words are far from constituting elements of the offence under   Section 5 of the FIAMLA. Interestingly, Section 6(3) of the FIAMLA, under the heading ‘Procedure’ , stipulates that, ‘In any proceedings against a person for an offence under this Part, it shall  be  be sufficient to aver in the information that the property is, in whole or in part, directly or indirectly the proceeds of a crime, crime , without specifying any particular crime, and the Court, having regard to all the evidence, may reasonably infer that the proceeds were, in whole or in  part, directly or indirectly, the proceeds of a crime.’ [Emphasis crime.’  [Emphasis added]

Therefore, those words in question can be used to formulate the averment with regard to the forfeiture order, if this wording is appropriate and fits into the present context.

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The Court, accordingly, overrules the objection put forward by Learned Senior Counsel appearing for the defence and grants the motion in respect of the proposed amendment.

Mr. P. SEWPAL

Ms. N. PARSURAMEN

Magistrate

Magistrate

Intermediate Court

Intermediate Court

Criminal Division

Criminal Division

Date: 20/07/18