TEELUCKDHARRY K v LAM SHANG LEEN P & ORS

2022 SCJ 165

SCR No. 117435 (5A/303/18)

THE SUPREME COURT OF MAURITIUS

In the matter of:-

Kalidass Teeluckdharry
Applicant

v.

1. Mr Paul Lam Shang Leen

2. Mr Samioullah Lauthan
3. Dr Ravin Kumar Domun
Respondents

And in the presence of:-

1. The State of Mauritius

2. The Honourable Attorney General
3. Mr Koosiram Conhye
Co-respondents

JUDGMENT

The applicant has been granted leave to apply for judicial review of proceedings held
by the respondents in the course of the Commission of Inquiry on Drug Trafficking in
Mauritius.

The applicant is now praying for an order:

(a) declaring that the findings of the Commission of Inquiry on Drug Trafficking in
Mauritius, appointed by Her Excellency the then President of Mauritius on the
14 July 2015 and chaired by the respondent No. 1 with the respondents Nos.
2 and 3 as members, against the applicant are perverse, ultra vires the terms
of reference of the Commission, biased, in breach of the law of evidence, in
breach of natural justice and unfair, unreasonable, irrational and unwarranted;
and
 2

(b) expunging the comments and alleged findings on the applicant from the
report of the Commission.

On 14 July 2015, the President of the Republic appointed a Commission of Inquiry

(the “Commission”) pursuant to the Commission of Inquiry Act (the “Act”), “to inquire into and
report on all aspects of drug trafficking in Mauritius, including –

(I) the scale and extent of the illicit drug trade and consumption in Mauritius and
their economic and social consequences;

(II) sources/points of origin/routes of illicit drugs;

(III) the channels of entry and distribution of drugs in Mauritius;

(IV) the channels of entry and distribution of drugs in prisons;

(V) the availability of new types of drugs, including synthetic and designer drugs,
in Mauritius;

(VI) linkages between drug trafficking, money laundering, terrorist financing and
other crimes;

(VII) the adequacy of existing legislation;

(VIII) the operational effectiveness of the various agencies involved in the fight
against drug trafficking;

(IX) the adequacy of the existing resources including human expertise, technology
and equipment, to detect and counter any attempt to introduce drugs,
including designer and synthetic drugs in Mauritius;

(X) the need for fostering linkages and coordination among the various agencies
and other local, regional and international entities dealing with drug related
matters for better strategic direction;

(XI) the effectiveness of drug treatment and rehabilitation programmes as well as

harm reduction strategies, national prevention, education and drug repression
strategies, with emphasis on youth;

(XII) the tracking of funds in order to identify illicit activities;

(XIII) whether there is any evidence of political influence in the drug trafficking
trade; and
 3

(XIV) any other matter connected with, or relevant or incidental to paragraph(sic)(I)

to (XIII) above, and make recommendations as appropriate, including:

A. such action as is deemed necessary to fight the problem of

importation, distribution and consumption of illicit drugs in the Republic
of Mauritius; and

B. any statutory amendments as may be necessary to better safeguard

the interests of the public at large.”

On 26 July 2018, the Commission submitted its report to the President of the
Republic.

The factual background as gathered from the applicant’s affidavit dated 05 November
2020 is set out below:

a) The applicant is a barrister in private practice in Mauritius. He was elected as

member of the National Assembly on 10 December 2014. He served as Deputy
Speaker of the National Assembly in May 2017 and resigned from the said post
on 27 July 2018 in the wake of the publication of the impugned findings made
against him by the respondents in their Report.

b) The applicant was served with a summons dated 27 June 2017 to appear before
the Commission on 06 July 2017 to give evidence and explanation regarding his
alleged “conduct, dealing, association with prisoners convicted for drug offences
and/or those on remand.”

c) On 30 June 2017, the applicant wrote to the Commission and expressed serious
reservation about the terms used in the summons, namely, the following words
“conduct, dealing, association with prisoners convicted for drug offences and/or
those on remand” and requested that the Commission communicate to him (1)
the names of the prisoners, (2) the relevant period and (3) any other document
which the Commission intended to enquire from him.

d) On 4 July 2017, the applicant was informed that he would be heard by the
Commission to explain his dealings in drug trafficking cases in his capacity as a
barrister.
 4

e) On 05 July 2017, the applicant made an application by way of motion paper and
affidavit before the Supreme Court for an (a) order directing the Commission and
the respondents to make a full and frank disclosure of all documents, records,
statements and any other material in their possession which they intended to use
against him. The then Chief Justice declined to grant the interim relief.
Subsequently, the application was withdrawn.

f) On 06 July 2017, the applicant appeared before the Commission assisted by a

panel of legal advisers. The respondent No. 1 queried him on alleged phone
calls between his mobile number and two mobile phones secured from prisoners
and his visits to prisoners.

g) On 8 August 2017, the applicant forwarded written answers to the Commission

rebutting the allegations of unsolicited visits to the prisons. The applicant has
averred that he never called on the prisoners on his own volition and that visits to
prisoners were made at their requests through letters and phone calls through
welfare officers. He also averred that he met some prisoners in a group following
a letter that he sent to the then Commissioner of Prisons. The group meeting was
held following the decision of the Privy Council in the case of Dookee v State
[2012 UKPC 21] as the prisoners wanted to seek legal advice from him in relation
to the review of their sentences.

The relevant extracts of the Report concerning the applicant (“the impugned parts of
the Report”) are found at paragraph 19.5.4 under sub-heading Specific Case No. 2 at pages
227 - 228, and they read as follows:

“2. MR KALIDASS TEELUCKDHARRY

The Commission needs to point out that amongst all lawyers who deposed
before it, Mr Teeluckdharry, accompanied by a panel of lawyers, tried to be very
difficult. He was all the time on the defensive. His attitude towards the Commission
almost verged on contempt accusing the Commission of mudslinging. He should
know that there is freedom of expression in this country, a free press who has to bear
any consequence of any defamatory article and the Commission has no power over
the freedom of the press to publish articles which are not to the liking of Counsel.
When he was taken to task, he apologised.
 5

Counsel had been in communication with a mobile number which was

secured in prison from a prisoner Rudolphe Derek Jean-Jacques also Gros Derek
who was charged with an offence of drug trafficking. At one time, there were some 8
calls and on many occasions exchanges of text messages. When he was queried by
the Commission, Counsel could not recall the tenor of the conversation nor the
person with whom he had those exchanges.

According to prison’s records, Mr Teeluckdharry also held grouped meetings

with several prisoners involved in drug related cases on certain occasions.
Furthermore, information was brought to the attention of the Commission,
unfortunately after his deposition before the Commission, so that the commission
could not seek his views, in relation to a case of possession/selling of gandia where
the Commissioner of Police considered that Counsel Teeluckdharry had acted in a
most unprofessional and unlawful manner and had referred the case to the Director
of Public Prosecutions. Mr Teeluckdharry represented Mr Mooneeram who was
identified by co-accused Mr Wassil, but thereafter he interviewed Mr Wassil although
his services were not retained. As per information, Counsel instructed co-accused to
make a false declaration against ADSU officers which accused did. Thereafter Mr
Wassil came back to his original statement.

Mr Teeluckdharry produced to the Commission a huge number of briefs

apparently to justify that his visits were not unsolicited. The Commission perused the
briefs and noted that the briefs produced were mostly irrelevant as they were not
those accused mentioned by the Commission. However, he could not refute the
unlawful calls made. Communication with prisons not through the proper authorised
channel is an offence.

The prisoners he saw were notorious drug traffickers many of whom were not
his clients and the Commission has pointed out already of the dangers of seeing a
prisoner in the circumstances.

The Commission therefore recommends that further enquiry be undertaken

and leaves it to the relevant authorities to take any action they may deem fit.”

The applicant is challenging the Report of the Commission on the grounds that the
respondents have:
 6

(1) acted ultra vires their expressed mandate in the Terms of Reference (the
“TOR”);
(2) flouted the rules of natural justice and the laws of evidence applicable
pursuant to section 13 of the Act; and

(3) openly displayed their overt bias against him, particularly the respondent No.
1 who clearly had ulterior motives.

The co-respondents are abiding by the decision of this Court.

(a) Ultra vires the Terms of Reference and the Power of the Commission

In respect of the first ground, The applicant’s contention is that the respondents could
only investigate on him if they have suspected him of (a) having any links with drug
trafficking, money laundering, terrorist financing and other crimes (under TOR “vi”) or (b)
being involved in funds related to illicit activities (under TOR “xii”). The applicant has also
contended that the Commission has travelled outside its mandate by inquiring into the lawful
exercise of his profession as barrister and into the privilege relationship between him as
Counsel and his clients.

The Commission was set up under section 2(2) of the Act to “inquire into any matter
of public interest or concern, or into any matter in which an inquiry would be for the public
welfare.”

The duties of the Commissioners are spelled out in section 7 of the Act, namely to
“make a full, faithful and impartial inquiry into the matter the Commission …”

From a reading of the TOR, it can be culled that the Commission was given wide
powers: it was mandated to enquire and report in all aspects of drug trafficking in Mauritius
including matters specified at paragraphs (i) to (xiv) and any “linkages between drug
trafficking, money laundering … and other crime”. The TOR also allows the Commission to
probe into any suspected money-laundering activities of law practitioners that may be
associated with drug-trafficking activities of their clients. We have no doubt that the
Commission was fully empowered to inquire into the conduct and association of applicant
with prisoners convicted and those on remand for drug offences by holding group meetings
which we consider relevant and incidental to the TOR of the respondents. We agree with the
submission of learned Counsel for the respondents that the Commission has acted within
 7

the parameters of the TOR by inquiring into the conduct, dealing and association of the
applicant with the convicted prisoners and those on remand for drug offences. We,
therefore, find that the Commission has not acted ultra vires the TOR.

(b) Breach of natural justice and the laws of evidence

The applicant’s contention is that when he appeared before the Commission on 6

July 2017, the respondent No. 1 queried him about an alleged phone call with prisoner
Rudolphe Jean-Jacques (alias Gros Derek) and he could not recollect having spoken to the
latter as the respondents had refused to provide him in advance with the particulars of any
telephone billings and thus he was not in a position to give precise information to the
Commission and in so doing the Commission has disregarded the rules of natural justice.

In J. Valayden & Anor v K. P. Matadeen & Ors [2002 SCJ 82], the Supreme Court
approved Lord Slyn of Hardley in Rees & Others v Crane [1994 1 LRC 97] who stated that:
“There are in my view no words which are of universal application to every kind of inquiry
and every kind of domestic tribunal. The requirements of natural justice must depend on the
circumstances of the case, the nature of the inquiry, the rules under which the tribunal is
acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive
much assistance from the definitions of natural justice which have been from time to time
used, but, whatever standard is adopted, one essential is that the person concerned should
have a reasonable opportunity of presenting his case. The Supreme Court further stated
that “it is an essential precept of fair hearing that a full and faithful account of the allegations
made be revealed to the persons implicated so that they may know precisely the case they
have to meet.” (Underlining is ours)

In Jadoo-Jaunbacus v Paul Lam Shang Leen & Ors [2021 SCJ 84], the Supreme
Court quoted with approval the case of R v Secretary of State for the Home Secretary, Ex
p Doody [1994] 1 AC 531, wherein the Court of Appeal held that: “….. the procedure of a
Commission of Inquiry such as this one is primarily a question for the Commission itself.
Various considerations will affect that in addition to fairness including the requirement of
effectiveness, speed, economy and practicality. There is no general rule that all persons
likely to be affected by the findings of a Commission of Inquiry are entitled to give evidence.
It was sufficient if they are notified of matters of concern which affect them and given a
chance to respond.” On the issue of fairness, the Supreme Court went on to quote R v
Secretary of State for the Home Secretary, Ex p Doody (supra) whereby it was held that
 8

“fairness will very often require that a person who may be adversely affected by the decision
will have an opportunity to make representation on his own behalf either before the decision
is taken with a view to producing a favourable result; or after it is taken, with a view to
procuring its modification or both.” (Underlining is ours)

In the case at hand, the Commission chose to call the applicant to give evidence on:

(a) his communication with a mobile number which was secured in prison
from prisoner Rudolph Derek Jean-Jacques also known as Gros Derek; and

(b) his group meetings with several prisoners convicted and on remand
involved in drug related cases on certain occasions.

As pointed out earlier, the salient feature of the Commission’s Report in respect of
the group meeting held by the applicant with several prisoners involved in drug related cases
on certain occasions was considered a serious matter by the respondents. It is significant to
note that the applicant did not deny having met the prisoners in group following the decision
of the Privy Council in Dookee v State [2012] UKPC 21 in which he was leading Counsel and
the Privy Council held that the time spent on remand should be deducted from the sentence.
He had written to the then Commissioner of Prisons as the prisoners wanted to lodge a class
action.

The applicant has conceded in his first affidavit that when he was called before the
Commission, the respondent No. 1 gave him two numbers of mobile phones and it was
agreed between his Counsel and the respondent No. 1 that the applicant would submit
written explanations to the Commission on the phone calls to prisoner Rudolphe Derek
Jean-Jacques and the visits he made to the prisoners .

The impugned extract of the Report mentioned that:

“Mr Teeluckdharry produced to the Commission a huge number of briefs

apparently to justify that his visits were not unsolicited. The Commission perused the
briefs and noted that the briefs produced were mostly irrelevant as they were not
those accused mentioned by the Commission. However, he could not refute the
unlawful calls made. Communication with prisons not through the proper authorised
channel is an offence.”
 9

It is clear from the above extract that the applicant was given an opportunity to
submit written explanations to the Commission in respect of his group meeting with prisoners
involved in drug cases and his communication with prisoner Rudolph Derek Jean-Jacques
also known as Gros Derek. We, therefore, find that on the two issues, there was no breach
of the rules of natural justice.

Under the same ground, learned Senior Counsel for the applicant has submitted that
the respondents have disregarded the basic rules of natural justice and the rules of evidence
by failing to call the then Commissioner of Police, Mr Mooneeram and Mr Wassil and by
failing to allow the applicant to cross examine them. According to the applicant, the
Commission has fallen foul of the rules of natural justice and fairness as he was neither
informed of the allegations against him nor given the opportunity to make representations
and such adverse findings have caused tremendous prejudice inasmuch as he was deprived
of presenting his version of the story.

We note that the Supreme Court has intervened by way of judicial review with regard
to comments or observations made by a Commission in particular where it has been found
to be “comments which may be construed as being more lethal than findings of facts, vide
Jugnauth v Balgobin & Ors [2007 MR 156] or where the impugned observation or
comment was found to be in fact an adverse finding on the applicant, vide Rummun O K v
J. B. G. M. Joseph & Ors [2002 SCJ 291].

Having warily gone through the line of authorities on the issue of reviewability of the
decision of the Commission, we agree with the Supreme Court in Jadoo-Jaunbocus v Lam
Shang Leen & Ors (supra) that any decision including comments or observations made by
the Commission which may have considerable adverse consequences on the reputation of
the applicant would be reviewable, subject to all the other conditions for judicial review being
fulfilled.

In the present case, we note that the Commission has referred to the evidence of the
then Commissioner of Police in relation to a case of possession/selling of gandia involving
Mr Mooneeram, Mr Wassil and the applicant without giving the applicant an opportunity to
rebut the said allegations.

The applicant has sought an order to expunge the comment in his respect from the
Report. We are of the view that the ends of justice would be served by making a declaration
 10

that the extract which reads as follows: “in relation to a case of possession/selling of gandia
where the Commissioner of Police considered that Counsel Teeluckdharry had acted in a
most unprofessional and unlawful manner and had referred the case to the Director of Public
Prosecutions. Mr Teeluckdharry represented Mr Mooneeram who was identified by co-
accused Mr Wassil, but thereafter he interviewed Mr Wassil although his services were not
retained. As per information, Counsel instructed co-accused to make a false declaration
against ADSU officers which accused did. Thereafter Mr Wassil came back to his original
statement.”, should be disregarded inasmuch as the applicant was not confronted with the
evidence of the Commissioner of Police and that he did not have the opportunity of rebutting
that evidence.

(c) Bias against the applicant

On the issue of apparent bias, the applicant has averred that:

(a) in the introductory part of chapter 19 of the Report entitled “The Honourable
Profession-Barrister”, the respondents have used the words “black sheep” and “belligerent
attitude” and although no specific reference was made to the applicant in the said extract of
the Report, any objective observer would conclude that he falls within that category;

(b) the respondent No. 1 has failed to disclose during the proceedings of the
Commission that he was actively involved in private practice at LawSure Chambers and one
of main associates in the said Chambers is a practicing barrister and is active in the Labour
Party and himself, a member of the Mouvement Socialist Mauricien (MSM), there are
political rivalry between them;

(c) he was Counsel for Fashion Style Limited and its main director, Mr D.
Gooljaury and according to a video clip dated 10 June 2016, the respondent No. 1 was seen
on the premises of said company requesting Messrs Bonieux and Basgeet duly appointed
Receiver/Manager to vacate the premises and he was also seen talking to another Counsel,
a Labour party’s member of the National Assembly and in so doing, the respondent No. 1
was poaching his client and was in direct competition with him;

(d) the fact that he had entered an injunction application against the Commission
prior to deposing before the Commission, the respondents have developed a sense of
hostility towards him and they were not impartial; and
 11

(e) two research assistants working for the Commission were from the LawSure
Chambers.

The respondents have averred in their respective affidavit dated 08 January 2021
that they inquired into the matter faithfully, fairly, impartially and without fear, favour or ill-will
despite threats. The applicant’s political affiliation was never taken into consideration by the
respondents when deciding whether to call him to depose before the Commission and the
decisions were made solely on the basis of information before the Commission. The
respondent No. 1 has also averred in his affidavit that two research assistants were retained
after a public call for candidature well before he rented an office at the premises of LawSure
Chambers.

In Belize Bank Ltd v Attorney General of Belize [2011] UKPC36, the Privy Council
endorsed the test for apparent bias as set down in Magill v Porter [2002] AC 357 which is
whether the fair-minded and informed observer, having considered the facts would conclude
that there was a real possibility that the tribunal was biased.”

In Mitchell v Georges [2014] UKPC 43, the Board accepted that in applying the test
in Magill v Porter (supra), the Court must have regard to the context and the Board quoted
Rix LJ in R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746 at
para 93, who explained that the test falls to be:

“applied to the whole spectrum of decision-making, as long as it is borne fully in mind

that such a test has to be applied in very different circumstances and that those
circumstances must have an important and possibly decisive bearing on the
outcome.”

In The Honourable Chief Justice of Trinidad and Tobago Mr Justice Ivor Archie
O. R. T. T v The Law Association [2018] UKPC 23, the following was stated:

“The Board agrees that this investigation by the LATT cannot be equated with
a judicial determination of legal rights and liabilities to which the conventional rules of
natural justice apply. Nor is it necessary for the Board to consider the more difficult
question of the extent to which public bodies are required to be imparted in carrying
out their statutory functions. This is because there are concurrent findings in the
courts below that the matters relied upon by the Chief Justice are not such as to give
rise to an appearance of bias on the part of the LATT, applying the test laid down in
 12

Porter v Magill [2001] UKHL 67; [2002]2 AC 357: would a fair-minded and informed
observer, having considered the facts, conclude that there was a real possibility that
the LATT was bias? As Lord Hope explained in Gillies v Secretary State for Work
and Pensions [2006] UKHL 2; [2006] 1 WLR 781, para 17:

“The fair-minded and informed observer can be assumed to have assess to

all the facts that are capable of being known by members of the public generally,
bearing in mind that it is the appearance that these facts give rise to that matters, not
what is in the mind of the particular judge or tribunal member who is under scrutiny. It
is to be assumed, as Kirby J put it in Johnson v Johnson [2000] 201 CIR 488, 509,
para 53, that the observer is neither complacent nor unduly sensitive or suspicious
when he examines the facts that he can look at. It is to be assumed too that he is
able to distinguish between what is relevant and what is irrelevant, and he is able
when exercising his judgment to decide what weight should be given to the facts that
are relevant.”

The issue we are called upon to determine is whether a fair-minded and informed
observer having regard to the context of the present inquiry on drug trafficking in Mauritius
and having considered the facts giving rise to calling the applicant before the Commission
would conclude that there was a real possibility that the respondents were biased.

After perusing the Report of the Commission in its entirety, we are of the considered
view that a fair-minded and informed observer having taken cognizance of the context of the
inquiry and being aware of the material facts and circumstances before the Commission
surrounding the reasons why the respondents chose to call the applicant to give his
explanation and considering the tenor of the recommendations will not conclude that the
respondents were biased towards the applicant for the reasons that:

(a) the respondents have taken oath to inquire into the matters specified in the
Commission faithfully, fully, impartially and to the best of their ability, discharge the
trust and perform the duties devolving upon them;

(b) The Commission held 318 sittings and heard 306 persons. The Commissioners
pointed out in chapter 19 of the Report that the Commission scrutinised the visitors’
book for barristers kept by the Prison Authority as well as sim cards and mobile
phones secured from prisoners and compiled a list of barristers who were in contact
 13

with prisoners through unlawful means and it failed to understand how some
barristers were able on a single visit to confer with several convicted drug traffickers
and some on remand. The Commission did not deem fit to call every single barrister
as it would have protracted its work and it would not add any new element to the
inquiry;

(c) there cannot be an alleged professional rivalry between the respondent No. 1 and
the applicant as it is the client’s prerogative to choose any legal adviser to instruct
him and needless to point out that the respondent No. 1 has much more experience
than the applicant;

(d) The applicant deposed before the Commission on 6 July 2017 and the article in
L’Express was dated 10 June 2016, the applicant who was assisted by a panel of
legal advisers did not consider to raise the matter of alleged conflict of interest before
the Commission prior to his deposition;

(e) Paragraph 1.4 of the Report makes it clear that the duty of the research assistants
were principally to look into numerous international reports and drug policies in a
number of countries and as such they had no role in the decision of the Commission;
and

(f) The words “Black Sheep” and “Belligerent Attitude” mentioned in chapter 19 of the
Report are mere qualifications regarding the conduct of some barristers who
appeared before the respondents. The respondents have not specifically mentioned
any barrister.

For all the reasons given above, we dismissed the application save and except that
the following extract-

“in relation to a case of possession/selling of gandia where the Commissioner of

Police considered that Counsel Teeluckdharry had acted in a most unprofessional
and unlawful manner and had referred the case to the Director of Public
Prosecutions. Mr Teeluckdharry represented Mr Mooneeram who was identified by
co-accused Mr Wassil, but thereafter he interviewed Mr Wassil although his services
were not retained. As per information, Counsel instructed co-accused to make a
false declaration against ADSU officers which accused did. Thereafter Mr Wassil
came back to his original statement.”
 14

found at page 228 of the Report, be disregarded.

Since the applicant has been partly successful, we order him to pay only half of the
costs of the respondents and co-respondents.

G. Jugessur-Manna
Judge

S. B. A. Hamuth-Laulloo
Judge

06 May 2022

Judgment delivered by Hon G Jugessur-Manna, Judge

For Applicant: Mr Attorney Y Balgobin –

Mr A Domingue, SC together with
Mr D Basset, SC & Mr N Patten, of Counsel

For Respondents: Ms V Nirsimooloo, Chief State Atorney –

Ms K D Domah, Senior State Counsel

For Co-respondents: Mr D K Manikaran, Principal State Attorney –

Mrs A Pillay-Nababsing, Senior State Counsel