Goinsamy Chinien and Others v The State

Goinsamy Chinien and Others

Appellants

v.

The State

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Templeman

Lord Jauncey of Tullichettle

Lord Lowry

Lord Mustill

Lord Slynn of Hadley

Judgment delivered on the 17 December 1992

by Lord Jauncey of Tullichettle

______________________________________________________________

(1) Criminal law - Conspiracy to export illegally foreign currency - Evidence - Corroboration - Evidence of an accomplice

(2) Criminal Procedure - Whether proceedings time-barred - Specificity in the charges

(3) Fundamental principles of criminal justice - Court cannot sentence for offence not charged - Sentence for conspiracy - Cannot be harder than maximum for substantive offence

(4) Privy Council - Jurisdiction to entertain argument as to criminal sentences passed by a court - Procedure before the Privy Council - Arguments only put forward in course of argument before the Board - Whether admissible

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Cases referred to in judgment

Regina v. Goswami [1969] 1 Q.B. 453

Regina v. Pipe (1966) 51 Cr.App.R. 17

Verrier v. Director of Public Prosecutions [1967] 2 A.C. 195

Legislations referred to in judgment

Criminal Code (Supplementary) Act, section 109

Customs Act 1988, section 158

Exchange Control Act 1947, sections 21, 22, 23, Schedule 5 (United Kingdom)

Exchange Control Act, sections 21, 22, Schedule 4

The following judgment was delivered by the Board:

By information dated 2nd November 1987, seven men were charged with a number of offences involving foreign currency which had been committed during 1985. This appeal is by three of those men and concerns two charges which are in the following terms:

"Counts 1. That in (or about) the month of March in the year 1985 at Bernardin de St. Pierre Street in the district of Port-Louis one Sattar Bacsoo, aged 32, fish merchant, residing at N° 1, Bernardin de St. Pierre, Port-Louis, (2) one Hassenally Moorbandoo also called Hassen, 29 years, fish merchant, residing at 7, Arab Lane, Cité Camp Yoloff, and one (3) Ahmad Yousouf Joghee also called Rashid, aged 30, lorry helper, residing at 4, Pont Rouge, together with an unknown person did wilfully and unlawfully agree with one another to commit an unlawful act, to wit: illegally exporting foreign currency."

"Count VI. Complainant further avers that in or about the month of May 1985 at Port-Louis in the said district the said Sattar Bacsoo, the said Ahmad Yousouf Joghee also called Rashid, one Goolam Ahmad Jaman also called Goolam Man, aged 35, taxi driver, residing at 9, Maharatta Street, Port-Louis, and one Goinsamy Chinien also called Amba, aged 35, barrister-at-law, residing at 42, Reverend Lebrun Street, Beau-Bassin, did wilfully and unlawfully agree with one another to commit an unlawful act, to wit: illegally exporting foreign currency."

It was stated at the top of the information that the conspiracy counts involved a breach of section 109 of the Criminal Code (Supplementary) Act, which section is the following terms:

"109. Conspiracy.

(1) Any person who agrees with one or more other persons to do an act which is unlawful, wrongful or harmful to another person, or to use unlawful means in the carrying out of an object not otherwise unlawful, shall commit an offence and shall, on conviction, be liable to penal servitude for a term not exceeding five years and to a fine not exceeding 1,000 rupees.

(2) Where the agreement is to commit murder or manslaughter, the person charged shall, on conviction, be liable to the same penalty as would have been applicable to an accomplice."

Until the enactment of this section there had been no general offence of conspiracy in the law of Mauritius. The appellants were convicted of the respective charges against them and were each sentenced to five years' penal servitude being the maximum penalty under the section. Their appeals against conviction were dismissed by the Supreme Court by a majority.

All three appellants raised a question of time-bar in their cases and at their Lordships' invitation, Sir Hamid Moollan who appeared for the first appellant dealt with this matter at the beginning of his speech. However, in order to understand his forceful and lucid submissions upon the matter it is necessary first to look at the statutory background against which these submissions were made. The Exchange Control Act which is an almost exact reproduction of the United Kingdom Exchange Control Act 1947 is divided into six parts namely Part I headed "Gold and Foreign Currency". Part II headed "Payments", Part III headed "Securities", Part IV headed "Import and Export", Part V headed "Miscellaneous" and Part VI headed "Supplemental". Part IV contains three sections dealing respectively with restrictions on import, restrictions on export and payments for export, of which section 22(1) provides, inter alia:

"The exportation from Mauritius of -

(a) any notes or coins of a class which are or have at any time been legal tender in Mauritius or any part of Mauritius or in any other territory;...

(c) any gold; ... is prohibited except with the permission of the Financial Secretary."

Section 21, which deals with importation, uses identical words of prohibition.

Schedule 4 to the Act contains three parts of which Part II is headed "General provisions as to offences" and Part III "Import and Export". Paragraphs 1 and 2(3) of Part II are in, inter alia, the following terms:

"1(1) Any person in or resident in Mauritius who contravenes any restriction or requirement imposed by or under this Act, and any such person who conspires or attempts, or aids, abets, counsels or procures any other person, to contravene any such restriction or requirement shall commit an offence punishable under this Part.

(2) An offence punishable by virtue of Part III shall not be punishable under this Part....

2(3) Any proceedings under a law establishing summary jurisdiction which may be taken against any person in respect of any offence punishable under this Part may, notwithstanding anything to the contrary in that law, be taken at any time within 12 months from the date of the commission of the offence or within three months from the date on which evidence sufficient in the opinion of the Financial Secretary to justify the proceedings comes to the knowledge of the Financial Secretary, whichever period expires last, or, where the person in question was outside Mauritius at the date last mentioned, within 12 months from the date on which he first arrives in Mauritius thereafter."

Paragraph 1(1) of Part III is in the following terms:

"1(1) The enactments relating to customs shall, subject to any modifications that may be prescribed to adapt them to this Act, apply in relation to anything prohibited to be imported or exported by Part IV of this Act except with the permission of the Financial Secretary as they apply in relation to goods prohibited to be imported or exported by or under any of those enactments, and any reference in them to goods shall be construed as including a reference to anything prohibited to be imported or exported by Part IV of this Act except with the permission of the Financial Secretary."

Finally section 158(1) of the Customs Act 1988 which, their Lordships were informed, was a consolidation Act, provides:

"158. Customs offences.

(1) Every person who -

(a) evades or attempts to evade payment of any duty, levy or taxes which are payable;

(b) obtains or attempts to obtain any drawback which is not payable; or

(c) smuggles out of Mauritius any goods or exports any prohibited or restricted goods, shall commit an offence."

Sir Hamid Moollan, whose argument on this matter was adopted by Mr. Ollivry, for the second and third appellants, argued that paragraph 2(3) of Part II of the Schedule 4 to the Exchange Control Act applied to the information with the result that the proceedings were time-barred, they having been initiated more than 12 months after the commission of the offences. Paragraph 1(1) was in quite general terms and the specific reference to conspiracy to contravene a restriction or requirement imposed by the Act applied to all contraventions of the Act and excluded the application of section 109 of the Criminal Code (Supplementary) Act to exchange control offences. In short the charges were bad from the outset since they should have been brought under paragraph 1(1) of Part II of Schedule 4 to the Exchange Control Act and not section 109 of the Criminal Code (Supplementary) Act. Their Lordships however consider that Mr. Guthrie for the Crown was correct in submitting that Part II of Schedule 4 to the Exchange Control Act relates solely to Parts I, II and III of the Act whereas Part III of the Schedule relates to Part IV of the Act.

In Regina v. Goswami [1969] 1 Q.B. 453 the Court of Appeal held that Part 3 of Schedule 5 to the Exchange Control Act 1947 contained a complete code for the enforcement of sections 21, 22 and 23 which comprised Part IV of that Act with the result that paragraph 1(1) of Part 2 of Schedule 5 did not cover a contravention of the provisions of Part IV of the Act. Schedule 5 to the Act of 1947 was for all practical purposes in terms identical to those of Schedule 4 to the Mauritius Exchange Control Act and section 21, 22 and 23 of the former Act corresponded similarly to the same sections in the latter Act. Their Lordships have no doubt that that case was correctly decided. Paragraph 1(1) of Part II of Schedule 4 to the Mauritius Exchange Control Act uses the words "any restriction or requirement imposed" whereas paragraph 1(1) of Part III of that Schedule uses the words "anything prohibited to be imported or exported by Part IV of this Act except with the permission of the Financial Secretary." The latter form of words is only to be found in Part IV whereas there are restrictions or requirements throughout Parts I, II and III of the Act. The use of different forms of words in the two paragraphs 1(1) suggests that they were each intended to apply to different contraventions of the Act. Had it been intended that paragraph 1(1) of Part II of Schedule 4 should be all embracing, it would have been simple so to provide. In their Lordships' view Part II of that Schedule was never intended to apply to Part IV of the Act, from which it follows that it would have been impossible to charge the appellants under paragraph 1(1) of Part II with conspiracy to export currency to section 22. The position at the time of enactment of the Act was that there came into existence an offence of conspiracy to contravene provisions in Parts II and III but that there was no such offence in relation to Part IV. Only when a general law of conspiracy was introduced by section 109 of the Criminal Code (Supplementary) Act did conspiracy to import or export currency become an offence. There are time-bar provisions neither in Part III of Schedule 4 of the Act of 1952, nor in relation to section 109 of the Criminal Code (Supplementary) Act, nor in the relevant part of the Customs Act 1988. It follows that the appellants' argument on time-bar fails.

Merits

One Peerbaccus was, on 12th June 1985, arrested at Plaisance Airport while attempting to smuggle to Bombay some U.S.$19,500 hidden in a sealed tin of Vita Ghee. He was later charged under the Customs Act and sentenced to a heavy fine in accordance with the relevant section. He was unable to pay this fine and was arrested for non-payment by obtained from time to time a respite from the Commission on the Prerogative of Mercy. Towards the end of 1986 he volunteered to give evidence before a commission of inquiry on the drug problem and for his own safety he removed from his house to live under police protection. The evidence which he gave to the commission implicated a number of persons, including the three appellants, in drug dealing and smuggling, which drug smuggling was the reason for his attempt to take to the United States dollars to Bombay. Peerbaccus had on a previous occasion in March 1985 successfully transported United States dollars to Bombay in a tin of Vita Ghee. Following upon Peerbaccus' disclosure the information was brought before the Intermediate Court. Count I related to Peerbaccus' trip to Bombay in March and the third appellant was an employee at the factory where the ghee tin was filled and sealed. Count VI related to the arbortive trip to Bombay in June. The second appellant was a taxi driver involved in taking the dollars to the factory for sealing in the tin, and the first appellant was a barrister and member of the Legislative Assembly who had advised Peerbaccus professionally and had become a friend of his.

At the trial the only evidence implicating the three appellants with the offences charged was that of Peerbaccus. The main grounds of appeal were advance before this Board namely (1) what may be conveniently described as inducement, (2) lack of corroboration and (3) lack of specificity in the charges.

(1) Inducement

Peerbaccus was still living under police protection at the time of the trial and it emerged in the course of the evidence of a senior police officer that he had from time to time received payments from the police informers' fund including a payment of 1,000 rupees which he had demanded a few days before he was due to give evidence. Receipt of this latter payment was denied by Peerbaccus. It was submitted that this payment was clearly an inducement to Peerbaccus to give evidence and that his evidence was thereby rendered inadmissible. It was argued that Peerbaccus was an accomplice who had not been fully dealt with in as much as he had not yet paid his fine and that in any event the ratio of Regina v. Pipe (1966) 51 Cr.App.R. 17 should be extended to cover this appeal. In Regina v. Pipe the prosecution called as a witness an accomplice against whom proceedings had been brought but had not been concluded and it was held that the conviction must be quashed. Lord Parker C.J. said, at page 21:

"In the judgment of this court, it is one thing to call for the prosecution an accomplice, a witness whose evidence is suspect, and about whom the jury must be warned in the recognised way. It is quite another to call a man who is not only an accomplice, but is an accomplice against whom proceedings have been brought which have not been concluded."

Their Lordships do not consider that the second sentence has any application to this case where a prosecution had been brought, a conviction obtained and sentence passed. Furthermore they see no justification for extending the ratio of that decision. The magistrates of the Intermediate Court gave careful consideration to the circumstances of the above payment and concluded that there was no inducement to Peerbaccus to give evidence. Peerbaccus' evidence was accordingly admissible and it was open to the Intermediate Court to accord to it such weight as they considered appropriate.

(2) Corroboration

It was submitted that if the evidence of Peerbaccus was admissible nevertheless having regard to the nature thereof it was unsafe to convict on that evidence alone. It is clear from the judgment of the Intermediate Court that very considerable criticism was levelled at the reliability of Peerbaccus' evidence by counsel for the defence. It is also clear that the court gave the most careful consideration to these criticisms and to the fact that there were no contradictions in his evidence. Nevertheless the Intermediate Court concluded that at the end of the day Peerbaccus was telling the truth. It is significant that none of the three appellants gave evidence to controvert that of Peerbaccus nor indeed they give any evidence at all. In all these circumstances their Lordships consider that the Intermediate Court were entitled to accept the evidence of Peerbaccus without corroboration thereof.

(3) Lack of specificity in the charges

At the beginning of the trial the defence sought particulars of the dates and places and amounts of currency involved in, inter alia, Counts I and IV. This request was refused although the prosecution deleted the words in square brackets. The appellants could point to no specific prejudice suffered by them as a result of the lack of particulars and although the Board considers that it would have been better if the prosecution had complied with the defence request it does not appear that at the end of the day the appellants have suffered prejudice thereby.

Sentence

In sentencing the three appellants the Intermediate Court stated "We are of the view that the charges before us, be it those of conspiracy or those of sequestration, revolve around drug trafficking". In rejecting the appeal against sentence by the first appellant Glover C.J. referred to the fact that the offence was connected to drug trafficking, referred to the ravages brought about by drugs to the health of citizens of all ages and to the nefarious influence of drugs on the crime rate, and concluded that there were compelling reasons for the trial court to impose the sentence under appeal. Ahnee J. who would have allowed the appeal on the ground of time-bar would in any event have held the sentence to be excessive on the ground, inter alia, that the maximum penalty for the substantive offence of export of foreign currency was merely a fine.

It is very unusual for this Board to intervene or even to entertain argument in relation to sentences passed by a court of competent jurisdiction. However in the present case it appears to their Lordships that two questions of principle are involved. In the first place it is axiomatic that a court can sentence only for the offence charged and not for what might have been charged. It would have been perfectly possible for the prosecution to have charged the appellants with the conspiracies to export currency and to import drugs. They chose, no doubt for good reasons, not to do so. It would in these circumstances be wrong in principle for the appellants to be sentenced in respect of such conspiracies when they had only been charged with conspiring to export currency. It may be that it is proper to take into account the purpose of the illegal export but it can be proper only to the extent of warranting a sentence which would be in the higher rather than the lower range of illegal export of currency. It appears that the Intermediate Court in sentencing the appellants to the maximum sentence available under section 109 of the Criminal Code (Supplementary) Act may have overlooked the necessity of concentrating upon the charges which were actually before them. In the second place:

"Normally it is not right to pass a higher sentence for conspiracy than could be passed for the substantive offence: it can be justified only in very exceptional cases": Verrier v. Director of Public Prosecutions [1967] 2 A.C. 195, 223F, per Lord Pearson".

In the absence of evidence that the first appellant had been involved in a series of illegal exports it does not appear to the Board that there here existed such exceptional circumstances as to warrant a departure from the normal rule, particularly where such departure involved so great a disparity between a fine, albeit substantial, and five years' penal servitude. The Board is therefore in general agreement with the views expressed upon this matter by Ahnee J.

Although the second and third appellants appealed against sentence neither to the Supreme Court nor in their cases to this Board, as questions of principle were involved it was clearly appropriate to consider the argument on sentence in relation to all three appellants. Their Lordships therefore gave them leave to appeal against their sentences. In the foregoing circumstances the Board considers that the proper course is to remit all three cases to the Supreme Court so that they may reconsider what would be appropriate sentences to impose in the light of the principles and observations referred to above.

For these reasons their Lordships dismiss these appeals against conviction but allow the appeals against sentence, quash the sentences of five years' penal servitude and remit the cases to the Supreme Court for sentence. There will be no order as to costs.

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Mastan E-Allam Bhewa v The Governement of Mauritius

(1) Mastan E-Allam Bhewa and

(2) Abdool Rahim Dowlutsing

Appellants

v.

The Government of Mauritius and

(2) The Director of Public Prosecutions

Respondents

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Keith of Kinkel

Lord Bridge of Harwich

Lord Goff of Chieveley

Lord Lowry

Lord Slynn of Hadley

Judgment delivered on the 20th July 1992

by Lord Keith of Kinkel

______________________________________________________________

Constitutional law - Code Napoléon - Civil Status - Religious marriage- Academic questions before the Privy Council - Jurisdiction

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Legislations referred to in judgment

Constitution of Mauritius, sections 11, 17

Civil Status Act 1981, sections 29, 30, 31, 32, 33

Civil Status (Amendment) Act 1987

Civil Status (Amendment N° 2) Act 1990

The following judgment was delivered by the Board:

This appeal is brought from a judgment of the Supreme Court of Mauritius dated 15th May 1990 delivered in an action whereby the plaintiffs, the appellants before their Lordships' Board, sought under section 17 of the Constitution of Mauritius a declaration that the Civil Status (Amendment) Act 1987 was in breach of section 11 of the Constitution and was invalid. By the judgment appealed from the Supreme Court dismissed the action.

Section 11 of the Constitution is the provision that guarantees freedom of religion. The appellants are followers of Islam. The Civil Status Act 1981 by sections 29 to 32 introduced provisions under which parties to a Muslim religious marriage might declare at the time of celebration that they wished the marriage to be governed by Muslim Personal Law, in which event the marriage would be governed by that law and such rules as might be promulgated by a Commission of Muslim Jurists, appointed by the Governor-General, and approved by the Assembly. Pending the promulgation of such rules the marriage was to be governed by specified provisions of the Code Napoléon.

The Governor-General duly appointed Commissioners, and they embarked upon their task, but difficulties were encountered and for reasons which it is unnecessary to go into the work ground to a halt.

In 1987 there was enacted the Civil Status (Amendment) Act 1987. This repealed sections 29 to 32 of the Act of 1981, and by an amendment to section 33 of that Act it prohibited all religious marriages unless the parties to it were already civilly married to each other, or the celebrant was either a person authorised under the Act or was assisted by a person designated by the Registrar-General.

The appellants found the provisions of the Act of 1987 objectionable because they had the effect of removing the prospect that in due course Muslim religious marriages would come to be governed by Muslim Personal Law. However the Supreme Court held that the Act was not unconstitutional.

It is unnecessary to enter upon an examination of the grounds upon which the Supreme Court reached its decision because the question as to the constitutionality of the Act of 987 has been rendered completely academic as a result of the enactment on 21st December 1990 of the Civil Status (Amendment N° 2) Act 1990. This excepted Muslim religious marriages from the prohibition contained in the amended section 33 of the Act of 1981, and it made provision for the celebration by authorised persons of religious marriages having civil effect and for the setting up a Muslim Family Council, the duties of which were to include the making of rules governing marriages celebrated in accordance with Muslim rites and the dissolution of such marriages. So in substance the position has reverted to that which prevailed before 1987, with the substitution of the Muslim Family Council for the Commission of Muslim Jurists. Their Lordships were informed that the new Council has given notice that it is in operation, but that it has not yet made any rules as provided for in the Act of 1990.

The Act of 1990 was not mentioned in the original written case for the appellants in this appeal, nor in that for the respondents. It was, however, appended to a supplementary case lodged for the appellants on the morning of the hearing before the Board. In the light of the Act Sir Hamid Moollan, Q.C., who appeared for the appellants, did not feel in a position to present any substantive argument in support of this appeal.

In these circumstances their Lordships consider that it would not be appropriate to make any order in the appeal either as to its disposal or as to costs.

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Ponsamy Poongavanam v The Queen

Ponsamy Poongavanam

Appellant

v.

The Queen

Respondent

Appeal from the Court of Criminal Appeal of Mauritius

Composition of the Board:

Lord Bridge of Harwich

Lord Templeman

Lord Ackner

Lord Goff of Chieveley

Lord Browne-Wilkinson

Judgment delivered on the 6th April 1992

by Lord Goff of Chieveley

______________________________________________________________

(1) Constitutional law - Discrimination - Sexual discrimination - Meaning of word 'discriminatory' within the Constitution - Constitutionality of a jury composed only of men - Objective justifications to discrimination - Right to the protection of the law - Independent and impartial court of law established by law - Whether impartiality implies not only that the court must be free from actual bias and but also that jury must be drawn from a list which constitutes a representative cross-section of the community

(2) Procedure - New point of law raised for the first time before the Privy Council

(3) Comparative law - European Convention on Human Rights - Constitution of the United States

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Cases referred to in judgment

Hauschildt judgment of 26 September 1988, E.C.H.R. Series A N° 154

Jaulim v. Director of Public Prosecutions [1976] M.R. 96

Peerbacus v. Regina (S.C.J. N° 212 of 1991 delivered on 25th June 1991)

Piersack judgment of 1 October 1982, E.C.H.R. Series A N° 53

Sramek judgment of 26 January 1984, E.C.H.R. Series A N° 84

Taylor v. State of Louisiana 419 U.S. 522 (1975)

Thiel v. Southern Pacific Co. 328 U.S. 217 (1946)

Legislations referred to in judgment

Constitution of Mauritius, sections 1, 2, 3, 10, 16

Constitution of the United States of America, VIth, XIVth Amendments

Courts Act, section 42

European Convention on Human Rights, article 6

Jury (Amendment) Act 1990

Jury Act, sections 2, 19, 20

The following judgment was delivered by the Board:

On 28th March 1987 the appellant, Ponsamy Poongavanam, was convicted of murder. He had been tried before Judge Pillay and a jury of nine men, and had been convicted by the unanimous verdict of the jury. The mandatory death sentence was then imposed. He appealed to the Court of Criminal Appeal of Mauritius, the grounds of his appeal relating to a number of alleged misdirections and other failures on the part of the trial judge. On 30th July 1987 the Court of Criminal Appeal dismissed his appeal rejecting all the submissions advanced on his behalf.

The appellant now appeals to Her Majesty in Council relying on only one point which was not taken in either of the courts below, which is that his conviction should be quashed because his trial was unconstitutional having regard to the constitution of the jury.

To consider this submission, it is necessary first to set out the material provisions of the Constitution of Mauritius. They are as follows:-

"CHAPTER I - THE STATE AND THE CONSTITUTION

1. The State

Mauritius shall be a sovereign democratic State.

2. Constitution is the supreme law

This Constitution is the supreme law of Mauritius and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.

CHAPTER II - PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL

3. Fundamental rights and freedoms of the individual

It is hereby recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms -

(a) the right of the individual to life, liberty, security of the person and the protection of the law;

(b) freedom of conscience, of expression, of assembly and association and freedom to establish schools; and

(c) the right of the individual to protection for the privacy of his home and other property and from deprivation of property without compensation,

and the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by any individuals does not prejudice the rights and freedoms of others or the public interest. ...

10. Provisions to secure protection of law

(1) Where any person is charge with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law...

16. Protection from discrimination

(1) Subject to subsections (4), (5) and (7), no law shall make any provision that is discriminatory either of itself or in its effect...

(3) In this section, 'discriminatory' means affording different treatment to different persons attributable wholly or mainly to their respective description by race, caste, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restriction to which persons of another such description are not made subject or are accorded privileges or advantages that are not accorded to persons of another such description. ..."

The trial of the appellant was conducted in accordance with section 42(2) of the Courts Act of Mauritius, which provides that "Criminal trials before the Court of Assizes shall be held by and before one or more Judges and for the trial of matters of fact there shall be a jury consisting of 9 men qualified as provided in the Jury Act". The jury panel was summoned for the particular Session of Assizes in accordance with section 19 and 20 of the Jury Act from among the names transcribed in the jury book for the year 1987-88, in accordance with section 19(2) of the Act which provides that "The Registrar shall, in summoning the first panel of jurors under this Act for the first juror in that panel, take the first name appearing in the list under letter A, for the next juror the first name appearing in the list under the letter B, and so on...". The particular jury which tried the appellant was selected form the jury panel by random selection, the officer of the court drawing in open court from a box containing separate pieces of paper bearing the names of jurors until the names of nine men were chosen who were not objected to or challenged. In point of fact, the appellant challenged peremptorily four jurors and the prosecution one juror, and the judge excused two other jurors on cause shown.

The qualification for jury service in Mauritius are set out in section 2 of the Jury Act, which at the material time provided as follows:-

"Every male citizen of Mauritius who has resided in Mauritius at any time at least one full year, and who is between the ages of 21 and 65, shall be qualified and liable to serve as juror where -

(a) he posses immovable property situated in Mauritius, of the value of at least 500 rupees per annum;

(b) he possesses a clear personal estate of the value of at least 5,000 rupees;

(c) he pays a yearly rent of at least 480 rupees; or

(d) he is in receipt of or entitled to a salary or income of 960 rupees per annum, whether the agreement of service is by the year or otherwise and has been in receipt of that salary for 6 months at least before making the declaration mentioned in section 6."

It follows that at that time women were excluded form jury service. This exclusion has more that once been defended by the Supreme Court of Mauritius on the ground of social conditions prevailing in Mauritius (see Jaulim v. Director of Public Prosecutions [1976] M.R. 96 and Peerbacus v. Regina (Supreme Court Judgment N° 212 of 1991 delivered on 25th June 1991)). However, the Jury (Amendment) Act 1990, women were rendered eligible for jury service, though their Lordships were informed that, following the coming into force of that Act, only a handful of women have come forward for jury service. By the same Act, the financial qualifications for jurors were also abolished, but it was accepted before their Lordships that economic changes in Mauritius had rendered these qualifications of negligible importance (see, e.g., the judgment of the Court of Criminal Appeal in Peerbacus v. Regina). It was further accepted by the respondent before their Lordships that no person from the Island of Rodrigues or the outer islands has ever made a declaration of qualification to serve as a juror, and that the clerk of the court of Rodrigues has never, since the setting up of the court, submitted a list of jurors; but their Lordships were informed that to summon jurors from those islands would create serious practical difficulties, having regard to problems relating to the service of the summons, travel and the provision of accommodation pending trial.

It is against this background that their Lordships turn to consider the submissions advanced on behalf of the appellant. These were to the effect that (1) the exclusion at that time of women from jury service was contrary to sections 3 and 16 of the Constitution, which outlaw discrimination by reason of sex; (2) there was a breach of section 10 of the Constitution in that, by reason of (a) the then financial qualifications in section 2 of the Jury Act, and/or (b) the fact that the jury list for 1987-88 contained only 4,000 names, although over 176,000 persons were then recorded as paying income tax in that year, and/or (c) the exclusion in practice of any jurors from the Island of Rodrigues and the outer island and/or (d) the exclusion of women from the jury, the appellant was not afforded a fair hearing by an impartial court established by law. On this basis, it was submitted that the constitution of the jury was unlawful and that the appeal of the appellant should be allowed and his conviction quashed.

Their Lordships turn first to the submission that the exclusion of women from juries in Mauritius was contrary to section 3 or section 16 of the Constitution. They consider first section 16. Section 16(1) provides that "Subject to subsections (4), (5) and (7), no law shall make any provisions that is discriminatory either of itself or in its effect". This prohibition however, depends on the meaning or the word 'discriminatory', which is defined in section 16(3) so as to exclude discrimination on the ground of sex. Since such discrimination is expressly referred to in section 3, it is evident that exclusion in section 16 is deliberate, from which it follows that it cannot be said that the provisions in the Jury Act for all male juries is contrary to section 16. It is true that section 3 provides that the human rights and fundamental freedoms there specified shall exist without discrimination by reason of a number of matters including sex; and among the human rights and the fundamental freedoms so specified is the right to protection of the law. Accordingly under section 3 the appellant was entitled to the fundamental right of protection of the law, as provided in section 10, without himself suffering any discrimination on the grounds of sex. Here however he has suffered no such discrimination, and it follows that he can have no complaint under section 3.

Their Lordships turn therefore to section 10(1) which requires that the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. It appears to their Lordships that the strongest way in which the point could be put in favour of the appellant is that, where the trial takes the form of a trial by jury, for the court to constitute an impartial court within the section it is not enough that the court should be free of actual bias or even an appearance of bias; it must also be a jury which is drawn from a list which provides the accused with a fair possibility of obtaining a jury which constitutes a representative cross-section of the community.

In considering this question, their Lordships turned first to the jurisprudence of the European Court of Human Rights, because section 10(1) appears to mirror the words of Article 6(1) of the European Convention. However, they have found nothing directly in point. The cases which they have considered (Eur. Court H. R., Piersack judgment of 1 October 1982, Series A N° 53, Eur. Court H. R., Sramek case, decision of 26 January 1984, Series A N° 84 and Eur. Court H. R., Hauschildt case, decision of 26 September 1988, Series A N° 154) appear to be directed towards allegations of bias, or apparent bias, in a judge who is a member of the court. This is perhaps not surprising, since juries appear to be the exception rather than the rule among those States which are parties to the Convention; moreover it may be the case that, in those States where there are juries, those juries are normally, if not always, drawn from lists which do provide a fair possibility of a representative jury, in which event the point could not arise before the European Court of Human Rights.

Their Lordships then turned to the relevant case law in the United States. Cases cited to their Lordships in the course of argument appear to show that a principle is well recognised in the United States that the jury must be drawn from a list which is representative of society. This was expressed in the opinion of the Supreme Court in Thiel v. Southern Pacific Co. 328 U.S. 217 (1946), in which it was said (at page 220):-

"The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community... This does not mean, of course, that every jury must contain representatives of all economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be elected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury."

Where there has been a breach of that principle, convictions have been quashed on the motion of appellants who have invoked the Sixth and Fourteenth Amendments to the Constitution of the United States. Furthermore, in the years since the 1939-45 war, it has become established that the exclusion of women from jury lists are not representative in this sense. This development appears to have culminated in the decision of the Supreme Court in Taylor v. State of Louisiana 419 U.S. 522 (1975).

Whether any such broad principle can be derived form section 10(1) of the Constitution of Mauritius depends upon the construction to be placed upon the word "impartial" in that section. On the natural meaning of the words of the section, the provision is directed towards the actual tribunal before which the case is heard, and the hearing before that tribunal; and the introduction of the word "impartial" is designed to ensure that the members of that tribunal are not only free from actual bias towards the accused but also, as the European jurisprudence shows, manifestly so in the eyes of the accused. The American principle however transcends such requirements. It is directed not to impartiality in the ordinary meaning of that word, but to the representative character of the list from which the jury is to be drawn. The effect is therefore that, however impartial the actual jury may in fact have been, the principle may nevertheless be offended against if those form whom the jury are selected are not representative of society.

Furthermore, the principle is not directed towards the constitution of the particular jury in question. It is recognised that it is impossible to achieve, by the process of random selection, a representative jury, indeed if the aim was to achieve a representative jury, this could only be done by interference with the process of random selection which itself would not only be open to abuse, but however fairly done could be suspected of abuse, and could never in fact achieve a jury truly representative of all sections of society. This is no doubt why the American principle looks rather to the lists from which individual juries are drawn, and requires that those lists shall be complied from a fair cross-section of society. This makes it all the more difficult to derive the principle from a provision such as section 10(1) of the Constitution of Mauritius, which is concerned rather with the actual tribunal by which the case is tried, and with the impartiality of that tribunal. Whether the jurisprudence on Article 6(1) of the European Convention of Human Rights is likely to develop in that direction, is very difficult to foresee; but any such development would require a substantial piece of creative interpretation which has the effect of expanding the meaning of the words of Article 6(1) beyond their ordinary meaning.

Their Lordships have however come to the conclusion that in the present case, it is unnecessary for them to answer that question of interpretation in relation to section 10(1) of the Constitution of Mauritius. Their Lordships take first the submissions of the appellant other than those which relate to the exclusion of women form jury service. These are concerned with, first, the financial qualifications in the Jury Act; second, the relatively small number of names on the jury lists, and third, the exclusion in practice of jurors from the Island of Rodrigues. Their Lordships do not consider that there is any substance in any of these points. As to the financial qualifications, as already recorded, their Lordships were informed that these had become of negligible importance. In these circumstances, it is difficult to imagine how these qualifications could be of any relevance. Certainly, before any point could sensibly be pursued with regard to these qualifications, it would have to be on the basis of full evidence, in proper form, substantiating the factual basis upon which it could be said that the then negligible financial qualifications had any relevant impact upon the constitution of juries in Mauritius. No such evidence was available to their Lordships in the present case. The same applies to the relatively small numbers of persons whose names, their Lordships were told, were on the jury list. Their Lordships have no means of ascertaining why this was so, or of evaluating the impact, if any, of this fact upon the constitution of juries. As far as persons from the Island of Rodrigues are concerned, there was no evidence before their Lordships suggesting that their absence would have any relevant impact upon the constitution of juries, and in any event the practical difficulties to which their Lordships referred could well provide an objective justification for this particular exception.

*

* *

Stephen Joseph Francis v The Queen

Stephen Joseph Francis

Appellant

v.

The Queen

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Keith of Kinkel

Lord Brandon of Oakbrook

Lord Oliver of Aylmerton

Lord Jauncey of Tullichettle

Lord Lowry

Judgment delivered on the 18th February 1992

by Lord Keith of Kinkel

______________________________________________________________

(1) Constitutional law - Seperation of powers

___________

Case referred to in judgment

Mukhtar Ali v. The Queen [1992] L.R.C. Const. 401

Legislation referred to in judgment

Dangerous Drugs Act 1986, section 38

The following judgment was delivered by the Board:

This appeal raises the same constitutional question regarding the validity of section 38(4) of the Dangerous Drugs Act 1986 as the Board has had occasion to consider in Mukhtar Ali v. The Queen and in Gulam Rassool v. The Queen. In those appeals their Lordships concluded that section 38(4) was invalid, that the sentences of death pronounced upon the appellants must be set aside, and that the cases should be remitted to the Supreme Court to substitute such sentences within the limits of section 38(4) as it considered appropriate.

Counsel for the appellant, in addition to presenting an argument on the constitutional point, submitted that his conviction under section 38(1) (c) of the Act with a finding of trafficking should be quashed on the ground that the evidence before the trial judge did not demonstrate beyond reasonable doubt that the 2.050 kilograms of substance imported by the appellant contained heroin to a greater extent than de minimis. The facilities available in Mauritius are not such as to allow of the quantity of heroin contained in a substance being ascertained with any degree of accuracy. An expert witness for the prosecution, Mr. Jarkaria, deponed that the substance in question contained roughly 50% of heroin. An expert for the defence, Mr. Ah Yu, deponed that the substance included a number of ingredients, including heroin, of which the heroin was the most minor quantitatively. He said that it did not contain a substantial amount of heroin. The trial judge expressed himself as preferring the evidence of Mr. Ah Yu to that of Mr. Jarkaria, and concluded that the substance contained some amount of heroin, however minor in comparison with the other ingredients in it. Plainly the judge did not consider that the amount of heroin in the substance was de minimis, nor indeed was Mr. Ah Yu's evidence, on a fair reading, to that effect. Heroin remains heroin notwithstanding that it is mixed with other substances, and their Lordships accordingly conclude that the appellant was rightly convicted of importing it.

Their Lordships will humbly advise Her Majesty that this appeal should be dealt with in the same manner as those of Mukhtar Ali and Gulam Rassool. The respondent must pay the appellant's costs of the hearing before the Board.

*

* *

Mohammed Mukhtar Ali v The Queen

Mohammed Mukhtar Ali

Appellant

v.

The Queen

Respondent

And

S. M. A. H. Gulam Rassool

Appellant

v.

The Queen

Respondent

Appeals from the Supreme Court of Mauritius

Composition of the Board:

Lord Keith of Kinkel

Lord Brandon of Oakbrook

Lord Oliver of Aylmerton

Lord Jauncey of Tullichettle

Lord Lowry

Judgment delivered on the 18th February 1992

by Lord Keith of Kinkel

______________________________________________________________

(1) Constitutional law - Seperation of powers - Statute confering on the Director of Public Prosecutions discretion to choose the tribunal - Whether violation of constitutional distribution of powers - Constitution on the Westminster model - Equality before the law - Courts' jurisdiction - District Court jurisdiction - Intermediate Court jurisdiction - Supreme Court jurisdiction

(2) Administrative law - Prosecuting authority - Director of Public Prosecutions - Status - Power - Discretion

(3) Procedure -Point of law raised for the first time before the Board - Case remitted by the Privy Council to the Supreme Court to have its views

(4) Criminal law - Death penalty - Drug trafficking - Fixed punishment - Mandatory sentence

(5) Criminal procedure - The practice of referring a serious criminal case to a magistrate court - Court cannot make a finding of trafficking if that has not been alleged in the averment

(6) Constitutional litigation - Control of proportionality of a sentence - Intention of the legislature - Invalidation of a provision of an Act of Parliament

___________

Cases referred to in judgment

Deaton v. Attorney-General and Revenue Commissioners [1963] I.R. 170

Heerah v. Regina [1988] M.R. 249

Hinds v. Regina [1976] 1 All E.R. 353, [1977] A.C. 195

Liyanage v. Regina [1966] 1 All E.R. 650, [1967] 1 A.C. 259

Teh Cheng Poh alias Char Meh v. Public Prosecutor, Malaysia [1980] A.C. 458

Legislations referred to in judgment

Arms Act 1960 (Malaysia)

Constitution of Jamaica

Constitution of Malaysia, section 8

Constitution of Mauritius, section 72

Constitution of the Republic of Ireland

Courts Act 1945, sections 114, 115

Criminal Procedure Act, section 150, 152

Customs Consolidation Act 1876 (Ireland)

Dangerous Drugs Act 1986, sections 28, 29, 30, 32, 33, 34, 37, 38, 41

Firearms (Increased Penalties) Act 1971 (Malaysia)

Gun Court Act, sections 8, 22 (Jamaica)

Internal Security Act 1960, section 57 (Malaysia)

The following judgment was delivered by the Board:

By a judgment delivered on 20th February 1991 to which reference should be made for the circumstances of these appeals, the Board remitted the two cases to the Supreme Court of Mauritius in order that it might have the benefit of the views of that court upon a point which had been raised for the first time in the course of the hearing before the Board. The question which the Board asked the Supreme Court to consider and adjudicate upon was as follows:

"Whether, by reason of the discretion conferred upon the Director of Public Prosecutions by section 28(8) of the Dangerous Drugs Act 1986 or by section 72(3) of the Constitution of Mauritius or otherwise, the provisions of section 38(4) of the Dangerous Drugs Act 1986 are repugnant to the Constitution of Mauritius inasmuch as the said subsection prescribes, in relation to a person charge with an offence triable before the Supreme Court, an Intermediate Court or a District Court and found to be a trafficker in drugs, a mandatory penalty on conviction only in the Supreme Court."

The Supreme Court (Glover C.J., Lallah, S.P.J., and Pillay J.) has now delivered a judgment dated 20th September 1991. The judgment does not find it necessary or appropriate to answer the question remitted to the court, because it reaches the conclusion that on a true construction of the relevant enactments the Director of Public Prosecutions has no discretion as to the court before which a person, who is accused of an offence under section 28(1)(c) of the Dangerous Drugs Act 1986 and who is alleged to be a trafficker, is to be tried. Such a person, so the judgment holds, can be tried only before a judgment sitting without a jury.

Their Lordships are unable to uphold this conclusion.

The relevant provisions of the 1986 Act are these. Section 28(1) and (8) provides:

"(1) Subject to section 38, every person who lawfully -

(a) (i) has in his possession, smokes, consumes or administers to himself or to any other person any drug specified in subsection (2);

(ii) has in his possession any pipe, syringe, utensil, apparatus or other article for use in connection with the smoking, sniffing, consumption or administration of any drug specified in subsection (2); shall commit an offence and shall on conviction be liable to a fine which shall not exceed 5,000 rupees and to imprisonment for a term which shall not exceed 8 years;

(b) sells, supplies, procures, distributes, transports or offers to buy, sell, supply, distribute or transport any drug specified in subsection (2) shall commit an offence and shall on conviction be liable to a fine which shall not exceed 50,000 rupees and to penal servitude for a term which shall not exceed 12 years;

(c) imports, causes to be imported, aids, abets counsels or procures the importation of any drug specified in subsection (2) shall commit an offence and shall on conviction be liable to a fine which shall not exceed 200,000 rupees and to penal servitude for a term which shall not exceed 20 years...

(8) Any person who is charge with an offence under subsection (1)(b) or (1)(c) shall be tried before a Judge without a jury, the Intermediate or the District Court at the discretion of the Director of Public Prosecutions."

Section 38 provides:

"(1) The court which tries a person for an offence under section 28, 29, 30, 32, 33, or 34 shall make a finding whether the accused person is a trafficker in drugs.

(2) A person shall be a trafficker where having regard to all the circumstances of the case against him it can be reasonably inferred that he was engaged in trafficking in drugs.

(3) Subject to subsection (4), any person who is found to be a trafficker in drugs under subsection (1) shall be liable in the case of -

(a) a first conviction, to a fine which shall not exceed 100,000 rupees together with penal servitude for a term which shall not exceed 20 years;

(b) a second or subsequent conviction to a fine which shall not be less that 100,000 rupees or more than 250,000 rupees together with penal servitude for a term of 30 years.

(4) Any person who is charged with an offence under section 28(1)(c) before a Judge without a jury and who is found to be a trafficker in drugs shall be sentenced to death."

Section 41 provides:

"Notwithstanding any other enactment, the Intermediate Court shall have -

(a) jurisdiction to inflict the penalties provided in this Act, other than section 38(4);

(b) power to order sentences imposed under this Act to be served consecutively, provided that the terms of such sentences shall not in the aggregate exceed 30 years."

The Supreme Court, at the beginning of its judgment, made reference to Heerah v. Regina [1988] M.R. 249. In that case the accused had been charge before the Intermediate Court with possession of heroin contrary to section 28(1)(a) of the 1986 Act. The court found the charge proved and proceeded to make a finding under section 38(1) that the accused was a trafficker and sentenced him to a higher penalty as provided for under section 38(3). The information had not contained any averment that the accused was a trafficker. The Supreme Court held on appeal that, in the absence of such an averment, it was not open to the Intermediate Court to make the finding it did about trafficking and to impose the higher penalty. The accused had been given no notice that he was at risk of such a finding. The Supreme Court accordingly quashed the sentence and substituted a sentence within the limit prescribed by section 29(1)(a). In its judgment in the present case the Supreme Court interpreted the decision in Heerah's case as being to the effect that "the correct approach was to treat section 38 as one which introduced an aggravating circumstance that had to form part of the charge and to be averred in the information". It followed that the instant appellants were charge with an offence committed, not against section 28 simpliciter, but against sections 28(1)(c) and 38, namely the offence of importing heroin while being a drug trafficker.

Their Lordships cannot accept this reasoning as being altogether correct. Section 38 does not create any separate offence. What it does is to prescribe more severe penalties, if a certain state of affairs is found to exist, for offences found proved under any of the enactments mentioned in subsection (1). It is true in a sense to say that the fact of the accused being a trafficker constitutes an aggravating circumstance, but the effect of the aggravation is that the accused is liable to a more severe penalty, not that he has committed a separate and different offence from that created by any of the enactments referred to in section 38(1). Heerah's case is, of course, undoubtedly correct in holding that it is not open to the court to make a finding of trafficking if that has not been alleged in the information.

The Supreme Court then went on to consider the question as to which court had jurisdiction to try what it described as "the offence of importing-cum-trafficking derived form the combined effect of sections 28(1)(c) and 38". After setting out the legislative provisions concerning the district court the judgment reads:

"If our reasoning regarding the charge with which the appellant were faced is correct, it follows that, even if section 28(8) of the Dangerous Drugs Act is interpreted literally, we fail to see how its meaning could be stretched to say that it also enables the Director of Public Prosecutions to direct that a person charged under section 28(1)(b) or (c) coupled with section 38 may, at his discretion, be charged before a District Court. We shall, however, go further and say there is an added reason for which section 28(8) should not be taken at its face value but considered, in relation to the Intermediate Court and the District Courts, to have been inserted through error."

The added reason appears to be that the Bill became the 1986 Act was prepared in haste and that certain provisions in it were much amended at the committee stage in the Assembly.

It is apparent that the principal, if not the only, purpose of section 28(8) was to make it possible for offences under section 28(1)(b) or (c) to be tried before a judge sitting without a jury. Under section 72(3) of the Constitution of Mauritius the Director of Public Prosecutions already had power to institute criminal proceedings before any court of law, other than a disciplinary court. So if section 28(8) had not been enacted he could have instituted proceedings for any offence under the 1986 Act for which a penalty was provided before the District Court, the Intermediate Court or a judge of the Supreme Court sitting with a jury. The effect of section 28(8) was to do away with the last option as regards section 28(1)(b) and (c) offences and substitute a judge sitting without a jury. In that situation it was reasonable and appropriate to mention the Intermediate and District Courts in the subsection as continuing to be courts available to the Director of Public Prosecutions in the exercise of his discretion. The legislature did not intend to make a judge without a jury the only forum before which charges under section 28(1)(b) and (c) might be tried. It could well be entirely appropriate that, say, a person who sold a small quantity of ganja to a friend or who imported a small quantity of it on returning from holiday should be tried before the District Court, which, as appears from section 114(2) of the Courts Act, would have power to award imprisonment with hard labour for up to two years and a fine not exceeding 2,000 rupees. The disapplication by section 37 of the 1986 Act of section 150 of the Criminal Procedure Act would seem to have the effect that, in respect of those offences under the 1986 Act for which imprisonment for hard labour is prescribed, the requirement that the sentence must be for at least three years is removed.

The Supreme Court concluded that the District Court had jurisdiction to try any offence under the 1986 Act provided that it was not excluded penalty-wise and that it had power only to inflict a fine not exceeding 2,000 rupees in those cases where the prescribed penalty is imprisonment with hard labour and to impose imprisonment up to two years in those cases where the prescribed penalty is imprisonment without hard labour, and no power to try offences under section 38(3) or (4). The Supreme Court thought that this followed from the disapplication of section 150 of the Criminal Procedure Act. The true result of that disapplication would seem, on the contrary, to be the bringing of all the offences under the 1986 Act for which penal servitude is prescribed within the jurisdiction of the District Court.

As regards the Intermediate Court, the Supreme Court relied on section 41 of the 1986 Act as requiring it to reach this conclusion, saying of it:

"There can be no clearer indication that Parliament's intention was that the Intermediate Court is competent to hear any case involving an offence under the Act, except one of importing-cum-trafficking, which alone carries a mandatory death penalty and which consequently can be tried only by a single judge sitting without a jury."

The Supreme Court has thus held that on a true construction of the relevant provisions of the 1986 Act the intention of Parliament is that a person charged under section 28(1)(c) upon an information containing an allegation that he is a trafficker in drugs must be tried before a judge without a jury and before no other court. Their Lordships cannot agree. The purpose of section 41 is clearly to increase the powers of the Intermediate Court so as to enable it to pass sentences up to the maximum provided for by section 38(3). If Parliament had intended that a person charged under section 28(1)(c) and alleged to be a trafficker should be tried only before a judge without a jury, it would have been very simple for it to have said so expressly, but it has not done so. Nor can such an intention be implied. The amplitude of section 38(3) is such that it must apply to any person convicted of any of the offences mentioned in subsection (1), including that under section 28(1)(c). That involves that the person in question may have been tried before the Intermediate Court, if not indeed before the District Court. Further, it is apparent that cases of importing dangerous drugs in the course of trafficking may vary widely in their seriousness. It is hardly likely that Parliament would have chosen to subject to the mandatory death penalty a person who imported into Mauritius a few grams of ganja or Indian hemp with a view to selling to his friends. The plain intention of Parliament, in their Lordships' opinion, is that the Director of Public Prosecutions should have a discretion to be exercised according to his view of the seriousness of the case, as to which of the three tribunals mentioned in section 28(8) was appropriate to try it, and that this discretion was to be available for section 28(1)(c) cases which involved trafficking no less that for other cases.

It now necessary to turn to the question upon which their Lordships sought the benefit of the views of the Supreme Court, which they have unfortunately not received, namely the question whether anything in section 38(4), having regard to the discretion available to the Director of Public Prosecutions, offends against the Constitution of Mauritius. The principle which is said to have been breached is that of the separation of powers of the legislature, the executive and the judicial branches of Government. The Director of Public Prosecutions is an officer of the executive branch. The argument for the appellants is that the discretion available to him to select the court before whom a person is to be tried for an offence under section 28(1)(c), that person being alleged to be a trafficker in drugs, in effect enables the Director to select the penalty to be inflicted on that particular person. If he chooses trial before a judge without a jury, and conviction follows plus a finding of trafficking the sentence must be that of death. In Hinds v. Regina [1976] 1 All E.R. 353, [1977] A.C. 195 the question arose as to the constitutionality of certain provisions of the Jamaican Gun Court Act 1974. One of these provisions was section 8, which prescribed a mandatory sentence of detention at hard labour for specified offences, determinable only by the Governor-General on the advice of the review board. The review board established by section 22 of the 1974 Act consisted of five members of whom only the chairman was a member of the judiciary. The Judicial Committee of the Privy Council advised Her Majesty that sections 8 and 22 were contrary to the Constitution and void. Lord Diplock, after referring to the doctrine of the separation of powers, said ([1976] 1 All E.R. 353 at 370, [1977] A.C. 195 at 226):

"In the exercise of its legislative power, Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted on all offenders found guilty of the defined offence, as, for example, capital punishment for the crime of murder. Or it may prescribe a range of punishments up to a maximum in severity, either with or, as is more common, without a minimum, leaving it to the court by which the individual is tried to determine what punishment falling within the range prescribed by Parliament is appropriate in the particular circumstances of his case. Thus Parliament, in the exercise of its legislative power, may make a law imposing limits on the discretion of the judges who preside over the courts by whom offences against that law are tried to inflict on an individual offender a custodial sentence the length of which reflects the judge's own assessment of the gravity of the offender's conduct in the particular circumstance of his case. What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members are not appointed under Chapter VII of the Constitution, a discretion to determine the severity of the punishment to be inflicted on an individual member of a class of offenders."

Lord Diplock later referred with approval to the case in the Supreme Court of Ireland of Deaton v. Attorney-General and Revenue Commissioners [1963] I.R. 170. The Customs Consolidation Act 1876, as applied to Ireland, prohibited the importation into that country of certain goods. One of the provisions of the Act provided that any person contravening "shall for each... offence forfeit either treble the value of the goods... or one hundred pounds, at the election of the (Revenue) Commissioners...". The plaintiff was prosecuted by the commissioners for importing butter without a licence, and they elected to proceed for treble the value of the goods. The Supreme Court held that the provision in question was repugnant to the Constitution and accordingly void. O'Dalaigh C.J. said (at 182-183):

"There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case... The Legislature does not prescribe the penalty to be imposed in an individual citizen's case; it states the general rule, and the application of that rule is for the Courts... the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive..."

Lord Diplock observed that this statement, uttered in relation to the Constitution of the Irish Republic, applied with even greater force to the Constitutions on the Westminster model, and he added, under reference to Liyanage v. Regina [1966] 1 All E.R. 650, [1967] 1 A.C. 259, that the legislature under such Constitutions not only does not, but it cannot prescribe the penalty to be imposed in an individual citizen's case.

The legislature here has not, by any provision of the 1986 Act, prescribed the penalty to be imposed in any individual citizen's case. What it has purported to do, however, is to authorise the Director of Public Prosecutions, an officer of the executive branch of Government, to select the punishment to be inflicted upon an individual accused convicted under section 28(1)(c) and found to be a trafficker. If the Director chooses to prosecute before a judge without a jury, the judge has no discretion as to punishment but must impose the death penalty. That means that it is the Director, by this decision about the court of trial, who has selected the death penalty. In the course of his argument to the Board, the Director sought to controvert this view of the matter by reference to Teh Cheng Poh alias Char Meh v. Public Prosecutor of Malaysia [1980] A.C. 458. One of the points in that case was whether the decision to prosecute the appellant for unlawful possession of a firearm under the Malaysian Internal Security Act 1960 contravened article 8(1) of the Malaysian Constitution which provided: "All persons are equal before the law and entitled to the equal protection of the law." The penalty under the Internal Security Act, which applied only to possession in a security area, was a mandatory death penalty, while that under the Arms Act 1960, which applied throughout Malaysia, was only a fine or imprisonment of both. The accused's possession of a firearm was in a security area. Lord Diplock, in rejecting the constitutional argument for the appellant on this point, said (at 475):

"There are many factors which a prosecuting authority may properly take into account in exercising its discretion as to whether to charge a person at all, or, where the information available to it discloses the ingredients of a greater as well lesser offence, as to whether to charge the accused with the greater or the lesser. The existence of those factors to which the prosecuting authority may properly have regard and the relative weight to be attached to each of them, may vary enormously between one case and another. All that equality before the law requires, is that the cases of all potential defendants to criminal charges shall be given unbiased consideration by the prosecuting authority and that decisions whether or not to prosecute in a particular case for a particular offence should not be dictated by some irrelevant consideration. If indeed the Attorney-General was possessed of a discretion to choose between prosecuting the defendant for an offence against section 57(1) of the Internal Security Act 1960 or for an offence under the Arms Act 1960 and the Firearms (Increased Penalties) Act 1971, there is no material on which to found an argument that in the instant case he exercised it unlawfully. But, in their Lordships' views, although he had a choice whether to charge the defendant with an offence of unlawful possession of a firearm and ammunition at all instead of proceeding with a charge of armed robbery (which was also brought against the defendant but not proceeded with), once he decided to charge the defendant with unlawful possession of a firearm and ammunition he had no option but to frame the charge under the Internal Security Act 1960."

That case does not, in their Lordships' opinion, assist the Director of Public Prosecutions. The discretion available to him under section 28(8) of the 1986 Act is not concerned with whether a person should be charged with one offence rather than with another. It is concerned with the court before which a person is to be tried. In general, there is no objection of a constitutional or other nature to a prosecuting authority having a discretion of that nature. Under most, if not all, systems of criminal procedure the prosecuting authority has a discretion whether to prosecute a wide range of offences either summarily or under solemn procedure, and the choice depends upon the view taken about the seriousness of the case. If the choice is for the prosecution before a court of summary jurisdiction, or other court having limited sentencing powers, that court can usually, if it considers that these powers do not match the seriousness of the offence, take steps to secure that the offence is dealt with by a court whose powers are not so limited. In Mauritius section 115 of the Courts Act deals with this situation as regards district magistrates. If prosecution is initiated before a higher court whose sentencing power is not limited otherwise than by the enactment creating the offence in question, the matter of the particular penalty to be imposed lies entirely within the discretion of that court. In Mauritius, even if the enactment creating an offence prescribes a minimum sentence of imprisonment, section 152 of the Criminal Procedure Act provides that the court may inflict imprisonment for a period less than the minimum term fixed by the enactments. In Teh Cheng Poh's case all persons convicted under the Internal Security Act 1960 of possession of a firearm in a security area were subject to the mandatory death penalty. That offence was a more serious one than mere possession of a firearm under the Arms Act 1960. As Lord Diplock observed, a discretion in the prosecuting authority to prosecute for a more serious offence rather than for a less serious one is not open to any constitutional objection. If in Mauritius importation of dangerous drugs by one found to be trafficking carried in all cases the mandatory death penalty and importation on its own a lesser penalty, the Director of Public Prosecutions' discretion to charge importation to charge importation either with or without an allegation of trafficking would be entirely valid. The vice of the present case is that the Director's discretion to prosecute importation with an allegation of trafficking either in a court which must impose the death penalty on conviction with the requisite finding or in a court which can only impose a fine and imprisonment enables him in substance to select the penalty to be imposed in a particular case.

As their Lordships have observed, a discretion vested in a prosecuting authority to choose the court before which to bring an individual charge with a particular offence is not objectionable if the selection of the punishment to be inflicted on conviction remains at the discretion of the sentencing court. Here one of the courts before which the Director might choose to prosecute the offence, namely a judge without a jury, was given no such discretion. It follows that the constitutional vice which their Lordships have found to exist stems from section 38(4) of the 1986 Act, which must accordingly be held to be invalid. The result is that the judge sitting without a jury, before whom the two appellants were tried and convicted with a finding of trafficking, had no power to impose a penalty other than that prescribed by section 38(3). The appeals are against conviction, but the convictions are not vulnerable to any attack on constitution or other grounds. The sentences of death, however, having been imposed under an invalid enactment, must be set aside, and the cases remitted to the Supreme Court to substitute such sentences, within the limits of section 38(3), as it considers appropriate. Their Lordships will humbly advise Her Majesty to that effect. The respondent must pay the appellants' costs before their Lordships' Board and of the proceedings in the Supreme Court which led to the judgment of 20th September 1991.

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