Radhakrishnan Kunnath v The State

Radhakrishnan Kunnath

Appellant

v.

The State

Respondent

Appeal from the Court of Criminal Appeal of Mauritius

Composition of the Board:

Lord Goff of Chieveley

Lord Jauncey of Tullichettle

Lord Lowry

Lord Slynn of Hadley

Mr. Justice Gault

Judgment delivered on the 27th July 1993

by Lord Jauncey of Tullichettle

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(1) Constitutional law - Criminal procedure - Essential principle of criminal law - Constitutional right to have an interpreter - Duty of the presiding judge to ensure that the defendant has a fair trial - Presence of the accused during trial - Corpoeal presence - Ability to understand the proceedings - Natural justice - Substantial miscarriage of justice

(2) Constitutional litigation - Mode of interpretation of the Constitution - Constitution intended effect

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Cases referred to in judgment

Ibrahim v. The King [1914] A.C. 599

Lawrence v. The King [1933] A.C. 699

Mohammed Mukhtar Ali v. The Queen [1992] 2 A.C. 93

Regina v. Bertrand (1867) L.R. 1 P.C. 520

Rex v. Kwok Leung [1909] 4 H.K.L.R. 161

Rex v. Lee Kun [1916] 1 K.B. 337

The State v. Gwonto [1985] L.R.C. (Const.) 890

Legislations referred to in judgment

Constitution of Mauritius, section 10

Dangerous Drugs Act 1986, section 38

The following judgment was delivered by the Board:

The defendant is an uneducated peasant from Kerala in southern India whose native language is Malayalam. In April 1988, while working as a cleaner in a Bombay guesthouse, he was prevailed upon by his employer and a friend of the latter to travel to and deliver in Mauritius a bag to an individual whose identity was to be disclosed to him on his arrival in the island. For performing this service he was to receive a paltry reward on returning to India. The defendant was provided with air tickets and flew to Mauritius on 15th April 1988. His nervous conduct attracted the attention of customs officers at the airport who then searched the bag and found in a false bottom thereof some 790 grammes of heroin. The defendant maintained that he was unaware that the bag contained heroin.

When the defendant was asked questions in English at the airport he was unable to understand but when the questions were repeated in Hindustani he was able to reply in that language. Hindustani is a mixture of Hindi and Urdu words. On 16th April a statement was taken from him after caution by a chief inspector of the Anti Drug and Smuggling Unit with the assistance of a Supreme Court interpreter in Hindi. The defendant spoke in what the interpreter described as broken Hindustani, being Hindustani which was not very grammatical, interspersed with English and Malayalam words. The interpreter translated the defendants's account into English which was then transcribed in English by the chief inspector. No translation of the Malayam words took place. On occasion the interpreter was required to put a question to the defendant several times because he did not understand it. On other occasions the interpreter had difficulty in understanding the defendant's answers. The interpreter then translated the English transcription into Hindustani and the defendant was asked whether he wanted to correct, add or alter anything. He replied in the negative and thereafter signed the English transcription of his statement, which contained a detailed account of the circumstances in which he came to be in Mauritius. On 19th July 1988 the defendant gave a further statement identifying photographs of his employer in Bombay and the latter's friend above referred to.

The defendant was thereafter charged with certain contraventions of the Dangerous Drugs Act 1986 including being a drug trafficker within the meaning of section 38(2) thereof. He was tried in the Supreme Court before Boolell J. on three days in July 1989 during which the proceedings were conducted in English. The defendant was represented by very experienced counsel and an interpreter who had solemnly affirmed was present throughout the trial. This interpreter translated (i) to the defendant the charge at the beginning of the trial and a minor amendment thereto on the third day, and (ii) to the court the defendant's statement from the dock. The interpreter translated not a word of the evidence, he translated only on instruction of the presiding judge, and was under the impression that he could only do so when given such instructions. It does not appear that either the defendant or his counsel at any time indicated their assent to the evidence not being translated. Indeed the first two sentences of the defendant's statement from the dock were in the following terms: "Two or three gentlemen deponed in court. I have not understood what they said." The remaining 12 short sentences of the statement dealt only with events in India and did not at all address the evidence which had been given by the Mauritian witnesses.

On 11th August 1989 Boolell J. gave judgment finding the defendant guilty of the charges laid against him and sentencing him to death in accordance with the provisions of section 38(4) of the Act of 1986. It was accepted that this sentence was incompetent in view of the decision of this Board in Mohammed Mukhtar Ali v. The Queen [1992] 2 A.C. 93. The defendant's appeal to the court was translated by the interpreter.

The defendant appealed to the Court of Criminal Appeal on a number of grounds of which the only one relevant to this appeal was "the failure to ensure that the [defendant] understood the evidence adduced at his trial and was in a position to rebut the evidence resulted in the miscarriage of justice". The Court of Criminal Appeal rejected this ground and concluded that there had been no such miscarriage of justice as would warrant a quashing of the conviction. In reaching this conclusion the Court of Criminal Appeal referred to section 10(2)(f) of the Constitution of Mauritius which provides:

"Every person who is charged with a criminal offence...

(f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence, and, except with his own consent, the trial shall not take place in his absence unless he so conducts himself..."

and continued:

"In our opinion, although the principle of a fair trial underlies all systems of law, we should, in such a matter, allow ourselves to be guided not so much by principles of the English common law, as exemplified in, for example, Rex v. Lee Kun [1916] 1 K.B. 337, as by judicial interpretation given to provisions in the Constitutions of other countries which are similar to ours. We are in entire agreement with the position adopted by the full bench of the Nigerian Supreme Court in The State v. Gwonto [1985] L.R.C. (Const.) 890."

The Court of Criminal Appeal referred to the following paragraph in the leading judgment of Nnamani J.S.C. in The State v. Gwonto [1985] L.R.C. (Const.) 890, 904, as justifying their conclusion:

"I think, with all respect, that the point which was missed here is that the importance of the issue of representation lies in the fact that if an accused person is represented by counsel such counsel ought to demand his client's right to interpretation or object to any irregularity such as lack of interpretation. If neither he nor the accused objects, the right is lost for all time and certainly cannot be invoked in a court of appeal."

The Court of Criminal Appeal also rejected the other grounds of appeal and upheld the conviction. Before the Board two main submissions were advanced on behalf of the defendant namely: (1) the lack of translation of the evidence to the defendant amounted to the breach of a constitutional right which vitiated the trial, and (2) in any event apart from the Constitution the Court of Criminal Appeal had failed to consider whether there had been such a departure from proper practice as to amount to breach of natural justice.

There may well be derived from these two constitutional rights a further requirement that, unless the defendant himself consents otherwise, evidence given in a language other than his own shall be interpreted to him. It is however unnecessary for the purposes of the present appeal to decide whether such a requirement exists under the Constitution, and if so what is its precise ambit. It is convenient to deal first with the second of these two submissions because their Lordships consider it plain that, by virtue of the judge's duty to ensure that the defendant has a fair trial, the judge is in any event bound to ensure that, in accordance with established practice, effective use is made of the interpreter provided for the assistance of the defendant. The important facts in the present appeal are that Boolell J. was aware that an interpreter was present and instructed him to translate the charge and its subsequent amendment to the defendant. Furthermore it must have been obvious to him, as presiding judge, that the interpreter was not translating the evidence to the defendant. Finally in his statement from the dock the defendant said that he had not understood what the witnesses had said. His lack of comprehension must therefore have been fairly and squarely before the court.

In following the reasoning in the Nigerian case of The State v. Gwonto [1985] L.R.C. (Const.) 890 rather than that in Rex v. Lee Kun [1916] 1 K.B. 337 the Court of Criminal Appeal were, in their Lordships' view, in error. The circumstances in The State v. Gwonto [1985] L.R.C. (Const.) 890 were fundamentally different from those in the present case in as much as no request for a interpreter had been made by or on behalf of the defendant and the trial judge was aware that they could not properly understand the proceedings. The State v. Gwonto is therefore of no assistance in a case where the trial judge is aware from the beginning of a defendant's language difficulty.

It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the defendant: Lawrence v. The King [1933] A.C. 699, 708, per Lord Atkin. As their Lordships have already recorded, the basis of this principle is not simply that there should be corporeal presence but that the defendant, by reason of his presence, should be able to understand the proceedings and decide what witness he wishes to call, whether or not to give evidence and, if so, upon what matters relevant to the case against him: Rex v. Kwok Leung [1909] 4 H.K.L.R. 161, 173-174, per Gompertz J., and Rex v. Lee Kun [1916] 1 K.B. 337, 341, per Lord Reading C.J. A defendant who has not understood the conduct of proceedings against him cannot, in the absence of express consent, be said to have had a fair trial.

In Rex v. Lee Kun the Court of Criminal Appeal considered a case in which a foreigner with no knowledge of English was convicted of murder at a trial in which his counsel had made no application to have the evidence translated to him. However the evidence before the magistrate which did not differ from that of the trial had all been translated. Lord Reading C.J., after referring to divergent practices of judges in relation to translation of evidence, said, at p. 343:

"We have come to the conclusion that the safer, and therefore the wiser course, when the foreigner accused is defended by counsel, is that the evidence should be interpreted to him except when he or counsel on his behalf expresses a wish to dispense with the translation and the judge thinks fit to permit the omission; the judge should not permit it unless he is of opinion that because of what has passed before the trial the accused substantially understands the evidence to be given and the case to be made against him at the trial. To follow this practice may be inconvenient in some cases and may cause some further expenditure of time; but such a procedure is more in consonance with that scrupulous care of the interests of the accused which has distinguished the administration of justice in our criminal courts, and therefore it is better to adopt it. No injustice will be caused by permitting the exception above mentioned. Speaking generally, police court proceedings will have taken place and the evidence will there have been translated to the accused before he has to stand his trial on the indictment, so that at the trial he knows the case to be made against him. He can instruct his counsel upon it and he may leave his defence in counsel's hands without having the evidence again translated to explain to him that which he already knows, and there seems no reasonable objection to such a course. If there should be a substantial departure from the evidence recorded in the depositions the judge would take care, even if counsel omitted to ask it, that the variation or addition should be translated to the accused, so that he might throw any further light upon the case. The importance of the translation of any new or additional evidence cannot be doubted;..."

Lord Reading C.J. later referred with approval to the reasoning of the judges in Rex v. Kwok Leung [1909] 4 H.K.L.R. 161.

Their Lordships have no doubt that the course advocated by Lord Reading C.J. in Rex v. Lee Kun [1916] 1 K.B. 337, 343, is a highly desirable one and should be followed wherever a foreign defendant, not fully conversant with the language of the proceedings, is represented by counsel. If it is not followed, the risk will be great of a substantial miscarriage of justice occuring. In the present case there was no preliminary hearing, as in Rex v. Lee Kun, and the defendant had therefore no prior knowledge of the evidence to be given by the prosecution. He did not understand the evidence when it was given with the result that the trial was for all practical purposes conducted outwith his presence. The defendant was accordingly deprived of the opportunity of a fair trial and a substantial miscarriage of justice had occurred. The miscarriage would have been avoided if the trial judge has ensured that the evidence was translated to the defendant. Even if he had failed to take this step he should on any view have ordered a retrial as soon as the defendant made clear his lack of understanding in his statement from the dock.

Although the conclusions as to the defendant's second submission are sufficient to dispose of the appeal their Lordships consider that it is appropriate to comment briefly upon the observations of the Court of Criminal Appeal in relation to the constitutional position. Section 10(2)(f) of the Constitution requires that an interpreter shall be made available free of charge when a defendant cannot understand the language used at the trial. That section further provides that, except with the defendant's own consent, and subject to one other immaterial exception, the trial shall not take place in the absence of the defendant. The primary purpose of the requirement that the defendant shall be present at his trial is to enable him to hear the evidence against him and so be equipped to decide what course should be taken at the trial in the light of the evidence so given. Reading together these provisions, it appears that the Constitution must have been intended to produce a result no less favourable to a defendant than that resulting from the existing common law principles. Indeed it would be surprising if a Constitution intended to protect the rights of the individual should be construed to have the opposite effect.

It was argued for the State that there had been no substantial miscarriage of justice in as much as the circumstances were such that a conviction would have been almost inevitable unless the defendant had succeeded in evidence in persuading the judge as to his state of mind at the time. There is no doubt that there was a formidable body of evidence against him, including his statement of 16th April 1988. Nevertheless the circumstances in which the statement was taken by an interpreter not conversant with the defendant's native tongue, and the doubt as to how accurately the English translation recorded what he said, particularly having regard to the failure to translate words spoken by him in Malayalam, lead to the conclusion that it would not be safe to apply the provisio*.

Their Lordships were informed that there is no procedure for ordering a retrial in Mauritius. The circumstances of the case fall fairly and squarely within the following dictum of Lord Sumner, when commenting on the circumstances in which the Board will allow criminal appeals, in Ibrahim v. The King [1914] A.C. 599, 615:

"There must be something which, in the particular case, deprives the accused of the substance of fair trial and the protection of the law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future: Regina v. Bertrand (1867) L.R. 1 P.C. 520."

For these reasons their Lordships allowed at the conclusion of the hearing and quashed the conviction. Their Lordships will make no order as to costs.

*

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* Reporters' note. In virtue of section 6(1)(b) of the Criminal Appeal Act "The Court (of a Criminal Appeal) may, notwithstanding that it thinks that the point raised in the appeal might have been decided in favour of the appeallant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occured".

Government of Mauritius v Union Flacq Sugar Estates Co. Ltd

Government of Mauritius

Appellant

v.

Union Flacq Sugar Estates Co. Ltd

Respondent

And

Government of Mauritius

Appellant

v.

Médine Shares Holding Co. Ltd

Respondent

Appeals from the Supreme Court of Mauritius

Composition of the Board:

Lord Templeman

Lord Ackner

Lord Goff of Chieveley

Lord Jauncey of Tullichettle

Lord Lowry

Judgment delivered on the 23rd July 1993

by Lord Templeman

______________________________________________________________

(1) Constitutional law - Company law - Property rights - Definition of property - Property owned by a shareholder - Right to vote - Right of a shareholder to vote at general meetings is not a property right - Right to vote is an incident of the ownership of a share - Lost of an advantage - Whether deprivation of property

(2) Constitutional litigation - Implied intention of the legislature - Public interest - Fairness of legislation cannot be controlled by court - Powers of the legislature

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Legislations referred to in judgment

Companies Act 1984, sections 2, 13, 347

Constitution of Mauritius, sections 3, 8

The following judgment was delivered by the Board:

The question in this case is whether certain provisions of the Companies Act 1984 of Mauritius which prevent the control of a company by a minority infringed the Constitution of Mauritius in so far as those provisions affect companies in existence at the date when the Act of 1984 came into force.

Section 13(2) of the Companies Act 1984 provides:

"(a) Subject to paragraph (b) a subsidiary which is, at the commencement of this Act, a member of its holding company, may continue to be a member.

(b) The subsidiary shall after one year from the commencement of this Act have no right to vote at meetings of the holding company or any class of members thereof."

Immediately before the Act of 1984 the plaintiff, United Flacq Sugar Estates Co. Ltd. ("U.F."), was the subsidiary of Flacq United Estates Co. Ltd. ("F.U.E.L.") and held voting shares in F.U.E.L. Accordingly one year after the coming into force of the Act of 1984 U.F. ceased to be able to vote at general meetings of F.U.E.L.

It is said in these proceedings that section 13(2) of the Act of 1984 infringes either or both sections 3 and 8 of the Constitution of Mauritius.

Section 347(13)(a) of the Act of 1984 provides:

"Where at the commencement of this Act a participating preference share of a public company or subsidiary or holding company of a public company carries no voting rights or carries voting rights which are more restricted than those carried by the ordinary shares of the company, the holder of such share shall... within two months of the commencement of this Act give notice of the election to the company -

(i) to have his share converted into an ordinary share of the company carrying the same right to vote as an ordinary share; or

(ii) to retain his participating preference share with such restricted right to vote or absence of vote as such share carried immediately prior to the commencement of this Act."

Immediately before the Act of 1984 U.F. held 50 per cent of the ordinary shares of F.U.E.L. and by the articles of F.U.E.L. was entitled to nominate five directors of F.U.E.L. so long as U.F. held more than 40 per cent of the ordinary shares. As a result of the Act and the conversion of participating preference shares into ordinary shares the shareholding of U.F. was reduced from 50 per cent to 28.436 per cent so that U.F. ceased to be entitled to nominate directors of F.U.E.L.

It is said that section 347(13)(a) of the Act of 1984 likewise infringes section 3 or 8 of the Constitution of Mauritius.

Section 3 of the Constitution of Mauritius provides, inter alia, that:

"in Mauritius there have existed and shall continue to exist... each and all of the following human rights and fundamental freedoms...

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

Section 8 provides, inter alia:

"(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where...

(c) provision is made by a law applicable to that taking of possession or acquisition

(i) for the payment of adequate compensation;..."

It is said that the effect of the Act of 1984 was to deprive U.F. of property or compulsorily to take possession of property or compulsorily to acquire an interest in or right over property without compensation.

In order to understand the grievances of U.F. eloquently urged by Sir Marc David on its behalf, it is necessary to understand the ramifications of a circle of companies whose history was clearly explained by Sir Marc. Beginning in 1946 and ending about 1948 agreements were made by members of the Gujadhur family ("the Gujadhur group") to join with other groups in order to vest extensive sugar estates and refineries and businesses and other assets in a circle of companies. The interests of each group in its own assets were converted into shares and interests in the circle of companies. In this magic circle the Gujadhur group held a minority interest in the equity of certain companies, that is to say in the income available for distribution as dividends and in the capital available for distribution on a winding up. But voting rights attaching to shares in the circle of companies were so organised that immediately before the Act of 1984 came into force, the control and management of the companies were exercisable by the Gujadhur group, albeit that the group only held minority interests in the equity.

The key company F.U.E.L. held 60 per cent of the voting shares in West East Ltd. ("W.E.A.L."). The company W.E.A.L. held 99.94 per cent of the voting shares in F. & R. Leclézio Co. Ltd. ("F.R.L."). The company F.R.L. held 51.22 per cent of the shares in Unity Ltd. The company Unity held 51 per cent of the shares in U.F. The remainder of the shares in U.F. were held almost entirely by members of the Gujadhur group. U.F. held 50 per cent of the voting shares in F.U.E.L. and was able to exercise control of F.U.E.L. by reason of articles 90 to 97 and article 122 of the articles of association of F.U.E.L. Those articles provide that the number of directors entitled to vote at board meetings shall be not less than 10, but five of those directors shall be nominated by U.F. "if, and as long, it shall hold at least 40 per cent of the total nominal value of the shares of the company carrying the right to vote at the general meetings thereof". The articles provide that the chairman of the board shall be nominated by U.F. during the time it has power to nominate five of the directors of the company and as long as the company Unity Ltd. holds more than 50 per cent of the total nominal value of the shares of U.F. carrying the right to vote at the general meetings of U.F. and so long as Mr. Fernand Leclézio was the manager of the company F.R.L. or co-manager or a member of its board of directors. The articles provide that the chairman of F.U.E.L. nominated by U.F. shall have a second or casting vote in case of equality of votes at any meetings of the directors. Sir Marc David stated that Mr. Fernand Leclézio died before the Act of 1984 by that U.F., whether or not remaining entitled to do so, continued to nominate the chairman of F.U.E.L. and that the chairman had continued to exercise a second or casting vote. For present purposes and in order to test the constitutional validity of the impugned sections of the Act of 1984 their Lordships will assume that control of the management of F.U.E.L. was exercised by U.F. through the five directors and chairman with a casting vote nominated by U.F. So U.F. controlled F.U.E.L. which controlled W.E.A.L. which controlled F.R.L. which controlled Unity which controlled U.F.

One of the objects and effects of the Act of 1984 was to break a chain or circle whereby a subsidiary company held shares in and voted at general meetings of its parent company. The holding by a subsidiary company of shares which carry the right to vote at meetings of the parent company of shares which carry the right to vote at meetings of the parent company enables the directors and a minority of shareholders in the parent company to exercise control over both the parent and the subsidiary. Directors of the parent company can maintain themselves in office by voting the shares of a subsidiary company in the shares of its parent company. The dealings of a subsidiary company in the shares of its parent company at a price dictated by the directors of the parent company can reduce the capital of the parent company available for creditors or could increase or decrease the value of other shares in the parent company including shares held by the directors. The legislature of Mauritius must have considered that these practices were undesirable and that in the public interest a subsidiary should cease to be entitled to vote at meetings of the parent company; hence section 13(2) of the Act of 1984.

By section 2(5) of the Act a corporation shall be deemed to be a subsidiary of another corporation where:-

"(i) that other corporation

(A) controls the composition of the board of directors of the first-mentioned corporation; or

(B) controls more than half of the voting power at the general meeting of the first-mentioned corporation; or

(C) holds more than half of the issued share capital of the first-mentioned corporation which does not consist of preference shares; or

(ii) the first-mentioned corporation is a subsidiary of any corporation which is that other corporation's subsidiary;..."

When the Act of 1984 came into force U.F. was, within the meaning of the Act, a subsidiary of F.U.E.L. Section 13(2)(b) enabled the subsidiary to vote at meetings of its holding company for the period of one year. During that period U.F. could have voted at meetings of F.U.E.L. and vice versa. Those voting powers could have been exercised in a variety of ways so that U.F. ceased to be either the subsidiary or the parent of F.U.E.L. For example, the circle could have been broken by a transfer of the shares in W.E.A.L. from F.U.E.L. to members or the Gujadhur group and other groups. But no steps were taken, probably because agreement could be reached, to ensure that the shares of a parent company ceased to be held by a subsidiary of that parent company and consequently U.F. can no longer vote at meetings of F.U.E.L. The control of F.U.E.L. by U.F. therefore came to an end. In addition U.F. by the operation of section 347(13)(a) no longer held 40 per cent or more of the voting shares of F.U.E.L. and therefore ceased to be able to control F.U.E.L. by appointing five directors including a chairman with a casting vote.

By the memorandum of association of F.U.E.L., the share capital or F.U.E.L. is divided into preference "A", preference "B" and ordinary shares. There was also one founder's share but for present purposes that share can be ignored. The preference "A" shareholders are entitled to a fixed cumulative preference dividend of five per cent per annum and to a return of their capital on a winding up but have no other rights. The preference "A" shares were not affected by the Act of 1984. Subject to the rights of the preference "A" shareholders, the preference "B" shareholders are entitled to receive out of the profits of each year available for dividend, and which the board decide to distribute as dividend, a non-cumulative preferential dividend for such year at the rate of six per cent per annum. Subject to the rights of the preference "B" shareholders, a dividend not exceeding six per cent per annum may be paid to the ordinary shareholders. Any balance left over out of the profits available for dividend which the board decide to distribute by way of dividend accrues pari passu to the holders of both the preference "B" and the ordinary shares. On a winding up the preference "B" shares and the ordinary shares rank pari passu. It follows that the interests of the preference "B" shareholders and the ordinary shareholders in the income and capital of F.U.E.L. are exactly the same except for the slight preference afforded to the preference "B" shareholders for payment of an initial dividend of six per cent. But the memorandum of association of F.U.E.L. provides that the preference "B" shares shall not confer upon their holders the right to vote at general meetings of the company. This right is reserved to the ordinary shareholders.

The issue of a non-voting shares which carry a substantial interest in the income and capital of the company has been frowned upon in some quarters in recent years on the grounds that the management and control of a company should be in the hands of the persons interested in the equity of the company. The Act of 1984 includes several provisions which are designed to ensure that shareholders interested in the income and capital of the company shall have equal rights save for those preference shareholders who are only entitled to a fixed cumulative dividend and to a return of capital. So far as F.U.E.L. is concerned section 347(13)(a) of the Act enabled the preference "B" shareholders, if they so wished, to abandon their slight dividend preference and to convert their shares into ordinary shares carrying the same rights to vote as ordinary shares.

The effect of section 347(13)(a) on the former voting shareholders of any company will depend firstly on the number of voting and non-voting shares issued respectively, secondly the distribution of voting shares and non-voting shares at the date of the coming into force of the Act and thirdly on the number of non-voting shares which are converted into ordinary shares after the Act. No doubt there was a good deal of discussion about the policy and effect of the elimination of non-voting share before and during the passage of the Bill which became the Act of 1984 and there was nothing to stop shareholders of a company exercising their rights and powers before the Act came into force, for example, by the issue of additional ordinary shares or otherwise so as to ensure that de facto control of the company would not be altered by the operation of the Act. But of course the success of any such operation depended on the willingness and ability of the existing ordinary shareholders to accept or acquire ordinary shares of convertible preference shares sufficient in number to preserve the control which they had hitherto enforced by denying votes to the convertible preference shareholders interested in the equity of the company.

The preference "B" shareholders are interested in the equity of F.U.E.L., that is to say, in the profits available for dividend and in the capital available on winding up after satisfying the creditors of F.U.E.L. and the preference "A" shareholders who are entitled only to a fixed dividend and to a return of their capital. The interest of the holder of a preference "B" share in the equity of F.U.E.L. are marginally superior to the interests of the holder of an ordinary share because the preference "B" shareholders are entitled to priority in the payment of a dividend of six per cent and, subject to payment of a balancing dividend to the ordinary shareholders, are entitled pari passu with the ordinary shareholders to the profits and capital of F.U.E.L. F.U.E.L. issued 3,060,000 ordinary shares of Rs10 and 12,470,100 preference "B" shares of Rs10 amounting in the aggregate to 15,530,100 shares entitling the holders to interests in the equity of F.U.E.L. So long as U.F. held at least 1,224,000 ordinary shares, representing 40 per cent of the ordinary shares by only eight per cent of the aggregate of the ordinary and preference "B" shares entitled to the equity of F.U.E.L., the control of F.U.E.L. lay with U.F.

The Act of 1984 authorised the preference "B" shareholders to convert their shares into ordinary shares, thus surrendering the preference "B" six per cent dividend priority but acquiring voting rights. The Act of 1984 deprived U.F. of the power to prevent up to 92 per cent of the equity shareholders of F.U.E.L. from participating in the choice of the directors to manage F.U.E.L. The legislature of Mauritius must have considered that the power of a minority to control a company was contrary to the public interest.

The complaint of U.F. is that they have lost an advantage. That advantage was negotiated by the Gujadhur group, was a lawful advantage at the time of negotiation and was an advantage which was known to or could easily have been discovered by any shareholder who at any time took any share in any of the relevant companies. But the legislature of Mauritius considered that such an advantage was unfair and against the public interest and that the persons who owned the equity of a company should have an equal voice in the conduct of the company. The advantage negotiated by the Gujadhur group was the advantage of being able to maintain a minority interest in the equity of F.U.E.L. through U.F. and of being able to control F.U.E.L. as though they were majority owners. That advantage was secured by attaching to ordinary shares the right to vote at the general meetings and by denying the right to vote at general meetings to the preference "B" shareholders.

The property owned by a shareholder is his share. The right of a shareholder to vote his share in general meetings of the company is not an interest in or right over the property of the company and is not property in its own right. The right to vote a share is an incident of the ownership of a share which, prior to the Act of 1984 came into force the right to vote a share is attached by law to every share which confers on the holder an interest in the equity of the company. Thus section 67 of the Act of 1984 conferred on every share which carried a proportionate right to an interest in the equity of the company, an equal proportionate right to be voted at general meetings of the company. Section 68 prohibited a company from issuing a share which carried disproportionate voting rights. Section 347 provided that a company must within one year brings its voting rights into conformity with section 67 and conferred on the holders of every existing share, carrying an interest in the equity of the company, the right to convert his share into an ordinary share to which proportionate voting rights were attached, unless the shareholder elected not to convert.

The Act of 1984 did not deprive the Gujadhur group or U.F. of any property or right or interest in property nor did it deprive any share of the voting rights attached to that share. The Act of 1984 attached a right to vote to every share which conferred an interest in the equity of the company. This development is not particularly surprising because the Act of 1984 thereby ensured that a company is managed in accordance with the views of the majority. Directors owe a duty to a company and its shareholders to manage the company in the interests of the company and for no other purpose. But directors appointed by minority shareholders have a conflict between the duty which they owe to the company and the duty or gratitude which they owe to the minority by whom they were appointed. In the present proceedings, for example, the Gujadhur group would like to retain their power to appoint directors of F.U.E.L. because they intend that F.U.E.L. shall be managed in the interests of the Gujadhur group as well as the interest of F.U.E.L. The Gujadhur group would not acknowledge or accept that there was any conflict between the interests of the Gujadhur group and the interest of F.U.E.L. There is or may be such a conflict which, prior to the Act of 1984, applied to the directors appointed by the Gujadhur group. On behalf of the Gujadhur group, Sir Marc David submitted that, having regard to the history of the group of companies involved directly or indirectly in the consequences of this litigation, the legislature was unfair when by the Act of 1984 it removed the power of a minority to control a company. But the question of fairness of legislation is a matter for Parliament. The courts can only intervene if the Act of 1984 deprived a shareholder of property or a share in or right over property contrary to the Constitution.

Before the Act of 1984 came into force F.U.E.L. had issued 3,060,000 ordinary shares and U.F. held 1,530,000. F.U.E.L. had issued 12,470,100 preference "B" shares and U.F. owned 2,295,012. The preference "B" shares and the ordinary shares were alike in that every share carried a proportionate interest in the equity of F.U.E.L. Out of the aggregate of ordinary shares and preference "B" shares, U.F. owned roughly 25 per cent of the equity of F.U.E.L. but U.F. exercised 50 per cent of the voting rights and U.F. controlled the management of F.U.E.L. This was a case of management by a minority. The result of the management of F.U.E.L. by U.F. may have been wholly beneficial to the majority and may not have caused any harm to anybody. The holders of 1,981,690 of the preference "B" shares elected to retain their dividend priority and to remain non-voting instead of allowing their shares to be converted into ordinary shares with voting rights. In the result U.F., which before the Act of 1984 held 25 per cent of the equity by 50 per cent of the voting rights, still own 25 per cent of the equity but are now entitled to 28.8 per cent of the voting rights. As a minority U.F. can no longer control the management of F.U.E.L. The object of the Act of 1984 was to put an end to management by a minority.

The Act of 1984 and section 347(13)(a) in particular must have been intended to put an end to the control of the management of a company by a minority exercised as a result of the creation of voting and non-voting shares. The Act did not deprive the company or any ordinary shareholder of property or any interests in or right over property. The company and its property are unaffected by the Act. Each ordinary shareholder remains entitled to his property namely his share and the dividends and capital to which he was entitled by virtue of his shareholding before the Act came into force. The only relevant effect of the Act was to prevent the holder of a minority interest in the equity of the company from exercising a power to control the management of the company. This power conferred by the constitution of the company and annexed to specified shares or a specified number and type and shares is incidental to the ownership of specified property but is not in itself property and confers no interest in or right over property. A company is a creature of statute and the rules applicable to a company can be altered by statute. The legislature of Mauritius has decided that the power to control the management of a company must be vested in the holders of the majority interests in the equity of the company. The Constitution does not confer on a minority any fundamental right or freedom to prevail or to continue to prevail over a majority. The power of a minority to prevail over a majority may be conferred by agreement but can be removed by the legislature where the public interest, in the opinion of the legislature, so demands.

The Supreme Court took the view that the right to vote and the right to appoint directors conferred on U.F. by the memorandum and articles of F.U.E.L. were property or rights or interests in property. They also took the view that the Act of 1984, which prevent a subsidiary from voting at meetings of its holding company, deprived F.U.E.L. or U.F. or both of property or rights and interests in property. But the law now insists that voting rights of shares in a company shall not be vested in the directors of the company but shall be attached proportionately to the shares which confer on the shareholders interests in the equity of the company. The minority shareholders of U.F. were not deprived of property when control ceased to be exercisable by them.

Their Lordships were referred to a number of authorities which stipulate that a Constitution in the form accepted by Mauritius must be given a purposive construction and that the expression "property" in a Constitution includes property of every description. Nevertheless the expression "property" cannot be extended to the powers of some shareholders to exercise a disproportionate influence over the management and control of the company.

For these reasons their Lordships allow this appeal and dismiss the summons by U.F. for a declaration that the Act of 1984 involves a deprivation of property in violation of section 3 and 8 of the Constitution.

In similar proceedings the plaintiffs, Médine Shares Holding Co. Ltd. and Black River Investment Co. Ltd. and F.U.E.L., also claimed that the Act of 1984 involved a deprivation of their property in violation of sections 3 and 8 of the Constitution to the extent that they were deprived of control of the Médine Sugar Estates Co. Ltd. and to the extent that a subsidiary company was debarred from voting shares in its parent. This claim must also be rejected and the summons dismissed. In each case the plaintiffs other that F.U.E.L. must pay the costs of the Government before the Board and in the court below.

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Police v Rajandah Coomar Kristnamah

Police

Appellant

v.

Rajandah Coomar Kristnamah

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Jauncey of Tullichettle

Lord Bridge of Harwich

Lord Lowry

Lord Slynn of Hadley

Mr. Justice Gault

Judgment delivered on the 12th July 1993

by Lord Slynn of Hadley

______________________________________________________________

Criminal law - Evidence - Involuntary statement - Inadmissibility - Common-sense - Inquisitorial and experimental power of the trial court

___________

Cases referred to in judgment

Kessowji Issar v. The Great Indian Peninsula Railway Company (1907) 23 T.L.R. 530

Paparo v. Joint Venture Cogefar-Spie Batignolles [1985] M.R. 236

Legislation referred to in judgment

Dangerous Drugs Act 1986, sections 28, 38

The following judgment was delivered by the Board:

On 29th November 1990 the respondent was convicted by the Intermediate Court of Mauritius of knowingly selling 14.93 grams of gandia to Imran Noordally in breach of section 28(1)(b) and (2)(b) of the Dangerous Drugs Act 1986. It was further found that he was a drug trafficker within the meaning of section 38 of that Act.

At the trial Noordally, called for the prosecution, whilst admitting that he had bought gandia for Rs2700 denied that he had bought it form the respondent; the respondent denied selling it to him. Evidence was, however, given by one police officer that the respondent had admitted orally that Rs2700 found at his house were the proceeds of selling the gandia and by another police officer that the respondent had made two written statements after caution. In the first statement, signed by the respondent, it was said to be admitted that the respondent had sold 47 packets of gandia to Noordally and that the proceeds of sale had been found at the respondent's house. The first statement of 180 lines was said to have been recorded between 6.50 a.m. and 7.40 a.m., a period of fifty minutes. In the second statement the respondent was said to have admitted showing the police the place where the gandia had been hidden and the place where the transaction had occurred.

At his trial the respondent denied having made the statements. He had signed them, though they were not read over to him, because he had been beaten and because threats were made to his family.

On his appeal to the Supreme Court the written statements were challenged and it was said that they were not voluntary. He was forced to sign the statements which had already been prepared. They were not corroborated by other evidence.

When counsel for the prosecution began to reply, the Court at once asked whether counsel believed that the statement of 180 lines was recorded in only fifty minutes, particularly when it took eight minutes to read the statement. Counsel conceded that it was impossible. He is recorded as saying "This goes to the root of the conviction because without the confession there is not case. It is obvious that the statement cannot be that of the accused because it is physically impossible".

Counsel was then asked by the Court to write one page of the statement and he was given a stop watch in order to record the time he took. Counsel took ten minutes to write one page. He conceded that the recording officer would have taken at least twice that time since the appellant would have had to be told of the facts alleged against him and would have had to dictate his answer.

Counsel accepted that since the prosecution case rested mainly on the first confession statement, which could not have been recorded in the time alleged, it was totally unsafe to rely on the confession.

The Court in its judgment quashing the conviction said:-

"We fully agree with learned Counsel for the Crown whose courageous and honest stand deserves the congratulations we are pleased to place on record."

The Police, represented by the Director of Public Prosecutions, appealed with leave of he Supreme Court. At the conclusion of the hearing, their Lordships dismissed the appeal, for reasons to be given later, and ordered the appellant to pay the respondent's costs before the Board. Their Lordships' reasons for their decision now follow.

The appellant relied on a number of different grounds but essentially they turn on two matters:-

(a) Could the Court presume or take judicial notice of the length of time needed to write a statement of this length ?;

(b) Was the Court entitled to "cause an experiment to be performed by Counsel for the Crown", when he was not sworn, was not an expert and could not be cross-examined ?

A main issue both at the trial and on the appeal was whether the two statements (and in particular the long one) really were the statements of the accused. The credibility of the witness who said that he had recorded that statement in fifty minutes was thus in issue.

It is abundantly plain from the record of the proceedings and from the judgment that the Court simply could not believe that the statement of this length could be taken down "in a painstaking handwriting" from an accused who was giving the information and who no doubt had to be questioned, and that the statement could also be read over to him, all in fifty minutes. This is not a matter of legal presumption or judicial notice in a formal sense. It was a matter of common-sense which the court was not required to abandon when deciding on credibility. It was obvious that the statement could not have been recorded in fifty minutes. That cast doubt on the validity of the whole statement as a voluntary statement of the respondent. When the Court asked counsel to time the writing of a page they were merely driving the point home. The time took only underlined what was clear from the beginning.

The appellant has relied on the advice of their Lordships' Board in Kessowji Issar v. The Great Indian Peninsula Railway Company (1907) 23 T.L.R. 530 where the Board expressed its strongest disapproval of the fact that the appellate Court had gone to a railway station to inspect a train in order to see whether a passenger of ordinary carefulness would have had difficulty in alighting safely from the train. He also relied on Paparo v. Joint Venture Cogefar-Spie Batignolles [1985] M.R. 236 where the Court of Civil Appeal of Mauritius criticised a judge who, in his judgment, referred to an experiment which he had conducted in the absence of the parties with an exhibit, using four pieces of string, a ring and a pair of scissors.

Without in any way departing from what was said by the Board in Kessowji Issar, their Lordships consider that this is an entirely different case. There the Court was relying on its own impression of the site rather than deciding the case exclusively, as it should have done, on the evidence adduced. In this case there was no experiment of the type criticised in Paparo. The Court merely tested in the presence of both parties the clear conclusion as to credibility dictated by common-sense. Counsel, in saying how long it had taken him, was not giving evidence as an expert witness and there was no need to tender him for cross-examination, if indeed there is any conceivable reason why, on what happened, the respondent's counsel should have wished to cross-examine him. Members of the Court could perfectly well have tested the time needed to write a page by doing it themselves. To get counsel to do it was no more objectionable.

The appellant contends next that the concession of counsel should have been disregarded and that the Court should have looked to see whether the oral confession or other evidence was enough to justify a conviction. Their Lordships do not agree. Once it was obvious that the statement (which the appellant consistently said had not been made by him but was prepared ready for him to sign) could not have been written in the time alleged, then it was right to disregard it. It was undoubtedly the bedrock of the prosecution case. Counsel was right to concede that without the statement the conviction could not stand, indeed he had no proper alternative.

In the circumstances their Lordships agree with the conclusion of the Supreme Court that the conviction had to be set aside. In those circumstances it is unnecessary to consider the objection raised by the respondent as to the Locus standi of the Police and as to the existence or otherwise of a right of appeal to their Lordships' Board.

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