Ruling Sur L'affaire Des Coffres-Forts
Ruling Sur L'affaire Des Coffres-Forts
RAMGOOLAM
POLICE v N. RAMGOOLAM
CN: 977/2017
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.
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 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.
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:
The powers conferred upon the Court to amend an information is contained in Section
73 of the DIC(CJ) Act which reads as follows:
‘73. No objection allowed to information
(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 in his 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 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, no prejudice will be likely to ensue to the accused.”
[Emphasis added]
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 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
(1) Any person who –
(a) commits an offence under this Part; or
(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 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
Section 8 (2) of the FIAMLA, is rather an additional penalty to the existing one under
Section 8 (1) of the FIAMLA and no more; it has nothing to do with the substantive
offence and it cannot conceivably be construed as an element of the offence. As aptly
put by the Supreme Court in the case of S. Khodabux v The Queen [1987 SCJ 364],
“the forfeiture order is severable from the conviction and sentence.” Neither an
averment of forfeiture order constitutes an element of the offence, nor can the averment
of the forfeiture order and the elements of the offence be conflated. Moreover, a
conviction under Section 5 of the FIAMLA does not require proof by the Prosecution of
the element of tainted origin of the money. Viewed from this angle, it cannot be said that
the proposed amendment is being brought as an additional element of the offence.
Consequently, the proposed amendment does not affect the body of the information as
it stands now, in any respect, in so far as the offence contemplated is concerned,
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.
“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
made an issue, which the Judicial Committee of the Privy Council had to thrash out.
Lastly, the statement made by the Magistrate in that case is not binding.
CONCLUSION:
In light of the foregoing observations, the Court is of the considered view that the
substantive charge as regards the offence will remain intact and no prejudice will flow
from the proposed amendment. In addition, this proposed amendment will have the
effect of averting any prejudice which may be caused to the accused as far as the
forfeiture order is concerned. Obviously, the two grounds of objection raised by Learned
Senior Counsel appearing for the accused fade into irrelevance. As a result, the court
cannot subscribe to his submission.
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.