Sprints Ltd. v Comptroller of Customs

Sprints Ltd. Appellant

v.

(1) Comptroller of Customs and

(2) Chipie Design and Signoles S.A. Respondents

FROM

THE SUPREME COURT OF MAURITIUS

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 16th December 1999

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Present at the hearing:-

Lord Slynn of Hadley

Lord Mackay of Clashfern

Lord Jauncey of Tullichettle

Lord Hope of Craighead

Lord Clyde

[Delivered by Lord Clyde]

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The appellant, which is a member of the companies known as the Bourgeon group, applied to the first respondent, who is the Comptroller of Customs in Mauritius, to have the name “Chipie” registered as a trade mark in Mauritius. The application was made before the Act No. 15 of 1993 came into operation and the relevant authority for registration of trade marks was still the Comptroller. The application was opposed by the second respondent, who is the registered owner of the trade mark “Chipie” in a considerable number of countries throughout the world, but not in Mauritius. The first respondent refused registration and the appellant appealed to the Supreme Court. That court refused the appeal and the matter has now come before their Lordships’ Board.

The argument has concerned two particular provisions of the relevant law, sections 4(1) and 10 of the Trade Marks Act. Section 4 provides that an application for registration may be made by any person who has a right to use a trade mark. The phrase “trade mark” is defined and there is no doubt that the name “Chipie” falls within the definition. Section 10 prohibits the registration of a mark upon the ground among others, that the use of it “would by reason of its being calculated to deceive or otherwise” be disentitled to protection in a court. So it follows that a person may have a right to a trade mark, but not be able to achieve the registration of it. On the other hand if he has no right to the mark in question, then he is not entitled to apply for registration and any application which he seeks to make must fail. One situation where it may be found that the applicant does not have a right is where someone else has the right and the property in the trade mark and the applicant has no right derived from him, as by way of licence.

The Comptroller of Customs’ decision in the present case was embodied in a letter dated 22nd September 1992. In that letter he stated his reasons for his decision in these terms:-

“(a) The opponents have proved by documentary evidence that the trade mark ‘chipie’ has been registered in many countries specially in France since 1967 and in UK since 1979,

(b) Copies of catalogues submitted to this office substantiate that the trade mark has been widely advertised since 1987,

(c) Your client has no right to use the said trade mark,

(d) He is not the owner of the trade mark,

(e) Registration of the trade mark in his favour would be inappropriate inasmuch as the trade mark is calculated to deceive.

(f) The trade mark, by reason of its being calculated to deceive, is disentitled to protection in a court.”

It may be noticed that in an affidavit dated 5th February 1993 the Principal Customs and Excise Officer, a Mr. Macdoombe, stated that prior to 22nd September 1992 the second respondent furnished evidence which established that:-

“(a) the second respondent had been using the mark ‘CHIPIE’ extensively well before the applicant,

(b) that the second respondent has secured registration of the mark CHIPIE across the world including the United States, France Britain, Spain, Sweden, Bangkok and Korea,

(c) that the registration of the mark CHIPIE has been secured in relation to the same articles as those sought by the applicant,

(d) that on several occasions, the second respondent has contracted with local enterprises for the manufacture of articles bearing the name ‘CHIPIE’.”

He then set out the same conclusions as were contained in the letter in paragraphs (c) to (f).

The conclusion that the appellant had no right to or property in the mark relates to section 4. The conclusion appears to have followed from the finding that the second respondent had the right and property in the trade mark. The first question in the appeal is accordingly whether that finding was sound.

It should be borne in mind at the outset that what is in issue here is the right to use the mark in Mauritius. The application was for registration in Mauritius and it is in relation to that country that the problem of the right to use the mark has to be addressed. The reference to a right in a trade mark in section 4 is a reference to a common law right. So far as the law in that respect is concerned Lord Morris of Borth-y-Gest observed in BALI Trade Mark [1969] R.P.C. 472 at p. 489:-

“Before 1875, when registration of trade marks began, there could be property in a trade mark: the right of property in a distinctive mark was acquired by a trader merely by using it upon or in connection with his goods irrespective of the length of such user and without proof of recognition by the public as a mark distinctive of the user’s goods: that right of property would be protected by an injunction restraining any other person from using the mark.”

Their Lordships adopt that as an accurate statement of the position at common law. Accordingly what is required in the present case is evidence of user of the mark by the second respondents in Mauritius. Moreover while, as was indicated in the passage quoted, the length of the user may be immaterial this is particularly the case where the mark is already in use as a trade mark by a trader elsewhere in the world. Proprietorship of the mark can then be proved by a minimal user in the country where the mark is proposed to be registered. A limited user in the UK, even without any public user, has been sufficient to stop the registration in the UK of a mark owned by a foreign firm (In the Matter of a Trade Mark of the New Atlas Rubber Co. Ltd. (1918) 35 R.P.C. 269). The general proposition is vouched by a number of cases in other jurisdictions, such as The Seven Up Company v. O.T. Ltd. (1947) 75 C.L.R. 203, 211, Thunderbird Products Corporation v. Thunderbird Marine Products Pty. Ltd. [1974] 131 C.L.R. 592, Pioneer Hi-Bred Corn Co. v. Hy-Line Chicks Pty. Ltd. [1979] R.P.C. 410, Karu Pty. Ltd. v. Jose (1994) 30 I.P.R. 407, and Hong Kong Caterers Ltd. v. Maxim’s Ltd. [1983] H.K.L.R. 287, 296.

It is evident from the material produced before the Comptroller that the second respondent had been using the trade mark “Chipie” in many countries throughout the world before the appellant began to use it in Mauritius. Indeed the second respondent produced a lengthy list of the registrations it had made of the mark in a wide range of countries. Of particular significance is the fact that these countries included several with which Mauritius has particularly close connections, such as the United Kingdom, France, South Africa and countries in the Far East. That user and those registrations related to the same kind of goods as those in respect of which the appellant was seeking to register the mark. The Comptroller of Customs was unquestionably entitled to hold as he did that the second respondent had been using the mark extensively well before the appellant.

The next question accordingly is whether there is evidence to prove at least a minimal user of the second respondent’s mark in Mauritius. From the material which was placed before the Comptroller it is clear that labels displaying the name “Chipie” were sent to Mauritius by the second respondent and applied to garments manufactured in Mauritius by a firm called Cogimex (Mtius) Ltd. This was clearly done on a significant scale. Furthermore there was a number of invoices produced relating to sales transactions passing between the second respondent and Cogimex in the course of which the former used the name “Chipie”. Mr. Rivalland stated on affidavit that Cogimex supplied the second respondent with “Chipie” trousers, jeans and jackets from 1987 to 1991. A question was raised by counsel for the appellants regarding the propriety of taking account of manufacturing work where such work was carried out within an exclusive export zone, that is to say a zone set apart for the purposes of fiscal provisions in which goods manufactured exclusively for the export market could be carried on. But that has not been presented as a live question in the present case and there is no finding that in fact the manufacture on which the second respondents found was conducted in such a zone. A broader issue was raised whether manufacture for export would qualify as a user for the relevant purpose. In that connection it was pointed out that there was no equivalent to section 31 of the Trade Marks Act 1938 in Mauritius. But in In re Evans Sons, Lescher and Webb Ltd. (1934) 51 R.P.C. 423 it was held that an intention to apply a mark to goods which were to be exported was sufficient to make the mark one which was used or proposed to be used for the purposes of registration in the UK, so that the fact that the goods in question were for export was recognised as not being of consequence even before the introduction of section 31. It appears that section 31 was rather to affirm the existing law than to innovate upon it Carnival Cruise Lines Inc. v. Sitmar Cruises Ltd. (1994) 120 A.L.R. 495, Gummow J. at p. 511.

Their Lordships are satisfied that the foregoing activities amounted to a user of the second respondent’s mark in Mauritius since 1987, that is before the appellant began to use it, and that that user was quite sufficient to give the second appellant the right to the mark in Mauritius so as to make it impossible for the appellant to claim a right for the purposes of section 4(1). That the appellant has developed an association with the “Chipie” mark for itself since 1990 provides no counter to the second respondent’s position. The rights of the legal owner of the mark cannot be ousted by the efforts of his rival to appropriate the mark. It has not been suggested that the appellant was an honest concurrent user of the mark.

There was moreover some evidence which would support the conclusion that sales had been made in Mauritius of garments bearing the second respondent’s mark. In the evidence on affidavit by Mr. Rivalland, the agent and attorney for the second respondent, it was claimed that Cogimex used to supply garments under the name “Chipie” to two shops owned by a Miss Merven in Mauritius, the “Chipie” boutique at Grand Bay and another shop at Curepipe, where they were sold to members of the public. On the other hand it appears that the sales may have been of articles, which also bore the name “Chipie”, made by Bourgeon Garments Ltd., a company associated with the appellant. Records prepared in connection with the receivership of Cogimex appear to support the proposition that Cogimex were selling articles manufactured under the second respondent’s mark, but no sufficient explanation of the documents has been given to enable a confident conclusion to be drawn. In the absence of clear findings in fact on the point their Lordships are not prepared to hold that it was established that sales were made in Mauritius under the second respondent’s mark. But the other evidence is in any event sufficient to establish their right for the purposes of section 4(1).

It was submitted by the appellant that the acceptance of the application by the Comptroller of Customs gave some support to the appellant’s case. The point may have greater relevance to the argument under section 10 than the argument under section 4(1), but their Lordships consider that in whichever context it is used the point cannot carry any significant weight. The Act makes no provision for the making of any particular inquiries or investigations before the acceptance of an application. It enables the Comptroller to reject at the outset any application which he can immediately see will be inappropriate for registration, but does not envisage that he will form any considered view at that stage on such matters as whether the applicant truly does have a right to the mark or whether its use will lead to confusion. The process for remedy in the event of refusal at this initial stage involves the applicant and the Comptroller, but no third parties. The Comptroller may make a conditional acceptance but it does not seem that that is what he did in the present case. In Mr. Macdoombe’s affidavit of 5th February 1993 he admits that the application was initially accepted but adds that the applicant was requested to give notice of the application in the Gazette and in two daily newspapers. That was however in accordance with the statutory requirement in section 4B(1), as introduced by the Trade Marks (Amendment) Act 1970. Their Lordships do not consider that any such significance can be put upon the acceptance of the application by the Comptroller as to outweigh the evidence of user by the second respondent.

In the judgment of the Supreme Court of 8th March 1996 it is narrated that the main thrust of the appellant’s argument was that the second respondent had not registered the name in Mauritius and that its use of the name worldwide would still debar it from protection in Mauritius. The Court then discusses the “Crazy Horse” case (Alain Bernardin et Compagnie v. Pavilion Properties Ltd. [1967] R.P.C. 581, Maxim’s Ltd. v. Dye [1978] 2 All E.R. 55 and a passage from the United Kingdom Trade Mark Handbook. The Court then concludes with the following paragraph:-

“The evidence before us shows that the second respondent has not only secured extensive registration of the mark ‘Chipie’ worldwide but has also had extensive use of the mark throughout the world. We are satisfied from the evidence and the principles referred to above that the second respondent has acquired a proprietary interest in the trade mark ‘Chipie’.”

The Court thereafter turned to the question whether the use of the mark was likely to deceive. That was plainly related to section 10.

There is some room for argument upon the precise analysis of the judgment, and in particular of the passage just quoted. The problem is aggravated by the absence of any clear findings in fact, and it is matter for regret that the procedure has been such that there is no clear record of the findings in fact which the Comptroller of Customs must have made, nor of the view which the Supreme Court precisely took of the facts either as found by the Comptroller or as assessed by themselves. It appears that the second respondent moved for leave to put in further evidence before the Supreme Court, being affidavits which had been produced in other proceedings where an injunction had been sought. The motion to bring forward this further material was refused by the Supreme Court and that court proceeded upon the material which was before the Comptroller of Customs. A quantity of documentation has been put before their Lordships’ Board, but this seems for the most part to have emanated from the second respondent. It appears from the letter of 22nd September 1992 from the Comptroller that four batches of daily sales records were returned by the Comptroller to the appellants. This was presumably material which was before the Comptroller as evidence to support the appellant’s case. But whatever the substance of it may have been it was not now founded upon and the extent to which it did support the appellants remains obscure. A clear statement of the facts would have significantly assisted in the resolution of the appeal.

Their Lordships understand from the critical passage in the judgment that the Supreme Court were considering the application of section 4(1). What they held was that the second respondents had a proprietary interest in the trade mark in Mauritius. Thus it would follow that the appellants did not have a right to use it and were disentitled to make an application under section 4(1). When the court refers to the evidence they were presumably referring to the evidence of the use of the mark in Mauritius and the reputation which the second respondents enjoyed in respect of it there. It may well be that in referring to the extensive use of the mark by the second respondents throughout the world they intended within that to include the element of user within Mauritius. Their Lordships are in any event entirely satisfied that a conclusion that the second respondents had a prior claim to the mark in Mauritius and that the appellants did not have any right to it was a conclusion which they were amply justified in reaching.

As an alternative to that approach their Lordships consider that the appeal would also fail in respect of the provision in section 10 that the use of the mark by the appellants was calculated to deceive. That last phrase is to be understood as meaning that it would be likely to deceive. Section 10 requires the Comptroller to refuse registration on a variety of grounds. These grounds generally are designed for the protection of the public or in the interest of the public. They are not primarily designed in the interest of those who may be using or wishing to use a trade mark. Thus the consideration behind the provision is the avoidance of anything which might be offensive or prejudicial from the public point of view. The only head which is relevant to the present case is that of the risk of public confusion, that members of the public may mistakenly believe that particular goods are the product of a particular business enterprise because they bear a trade mark which they associate with that enterprise, whereas in fact the mark is that of another enterprise. The standard to be achieved in order to meet the requirement of the section is that by reason of the likelihood of confusion the use of the mark would be disentitled to protection in a court of justice. As was recognised in BALI Trade Mark, all that is required to be proved for the purposes of the rejection of a registration is the probability of deception or confusion, which is more readily established than what would be required for a case of passing off. In BALI Trade Mark [1969] R.P.C. 472 Lord Upjohn observed at page 496:-

“It is sufficient if the result of the registration of the mark will be that a number of persons will be caused to wonder whether it might not be the case that the two products come from the same source.”

In many cases the problem in this context is one of comparing two marks which are not identical but have a degree of similarity such as may, or may not, give rise to confusion. In the present case no such question arises because the names are identical. In that respect the risk of confusion is immediate and obvious. But the argument here is to the effect that the second respondent has not used his mark in Mauritius and so is not entitled to protection in Mauritius.

If the matter depended upon user there was, as their Lordships have already held, evidence of user by the second respondent in Mauritius. But even if the matter is approached under section 10 on the assumption that that evidence was inadequate their Lordships are still persuaded that registration would require to be refused under section 10. In order to create the risk of confusion there must essentially be a knowledge on the part of the public of the mark with which the confusion may occur. In many cases user may well be the means of establishing the reputation of the mark in a particular country and at a period when international travel and intercommunication was less intensive than it has now come to be user in the locality would be the ordinary or even the only way of establishing the local reputation. But it is essentially the reputation of the mark which will give rise to possible confusion and in light of the growth in international commerce and communication it may now be possible in the case of an internationally established trade mark to proceed upon evidence of its notoriety in a country even without any actual user of the mark there. In Keraion Trade Mark [1977] R.P.C. 588, 593 Mr. Moorby looked for use or reputation in the mark as bases for an attack under section 11 of the Trade Marks Act 1938 and quoted from the 10th edition of Kerly that before section 11 can be applied “it must be established that the opponents’ mark is known to a substantial number of persons of persons in the United Kingdom …”. The point has been developed in a number of Australian decisions. In The Kendall Co. v. Mulsyn Paint and Chemicals (1963) 109 C.L.R. 300 it was recognised that the requisite knowledge of the mark as distinguishing a particular trader’s goods did not necessarily have to be “knowledge obtained from experience in or in relation to the Australian market, the manner in which, or the source from which, knowledge has been acquired is, in my opinion, immaterial” (per Kitto J. at p. 305). That observation was followed by Richardson J. in Pioneer Hi-Bred Corn Co. v. Hy-Line Chicks Pty. Ltd. [1979] R.P.C. 410, at p. 432. The point has also been taken in a case in Singapore, Tiffany & Co. v. Fabriques de Tabac Reunies SA [1999] 3 S.L.R. 147, where registration of a trade mark was refused under section 15 of the Trade Marks Act, which is in terms comparable with that of section 10 of the Mauritian Act. It was held that there was no need to show use of the mark in Singapore since members of the public would be aware of foreign marks even if they had not been previously used in Singapore. Yong Pung How C.J. observed at p. 159:-

“… the fact is that confusion or deception have no borders and can arise as easily from knowledge, cognisance or awareness of an international reputation.”

The attention of their Lordships was drawn to a passage in the speech of Lord Upjohn in BALI (at p. 495) where under reference to section 11 of the Trade Marks Act 1938 his Lordship stated that in relation to the words “disentitled to protection in a court of justice” there must be proved not merely a likelihood of deception or confusion but also a user at the relevant time by the owner of the mark which the court would protect. Indeed he stated that an objector to an application for registration can only prove the practical likelihood of confusion to the public by proving the existing user by another which is likely to cause confusion. He then referred to a passage in the judgment of Evershed J. in Smith Hayden & Co.’s Application (1945) 63 R.P.C. 97 where the judge had had regard to the reputation acquired by the name “Hovis”. Lord Upjohn said that the words should have been “the user of” and not “the reputation acquired by”. But Lord Upjohn immediately pointed out that in the case in question there was no difference between the two expressions because “the household word of Hovis was involved”. In MACY’S Trade Mark [1989] R.P.C. 546 at p. 551 Mr. Egan quoted at length the passage in Lord Upjohn’s speech where this point occurs and concluded that Lord Upjohn explicitly distinguishes between reputation and use. The present appellant sought to create a distinction between the case of a household word in regard to which no evidence of use might be needed and other cases where the reputation required to be proved by user. But the point is not one to be usefully resolved by introducing a category of “household words”. In some cases the necessary knowledge and reputation will require to depend upon actual user in the country in question. But there can be other cases where the international character of the business enjoys a sufficient notoriety within the country as to make user unnecessary. Those cases will require to be supported by evidence of the international reputation within the country in question and the mark in issue in such cases may or may not be usefully identified as qualifying as a household word. Lord Upjohn’s emphasis on user was criticised in Pioneer Hi-Bred Corn Co. and in Tiffany & Co., the view being expressed in the latter case that the proposition that proof of an existing user in the relevant country is a prerequisite for a practical likelihood of confusion can no longer hold true in light of the changes in technology and communication which have occurred over the years since the BALI case. But in light of Lord Upjohn’s recognition that at least in relation to a household word there was no difference between reputation and user their Lordships do not understand that user was seen even at the time of BALI as a universal prerequisite for the establishment of a likelihood of confusion. Furthermore there seems to their Lordships to be force in the point developed in Pioneer Hi-Bred Corn Co. that the purpose of the reference to disentitlement in a court of justice was to secure the position of an honest concurrent user and does not necessarily entail all the ingredients necessary for the protection of a mark at common law. Certainly in the context of the present case it would not be correct to require user as an essential element to be proved by an objector to registration under section 10. A sufficiency of reputation of the second respondent’s mark in Mauritius would suffice. It should be added that in the course of the argument mention was made of the “Crazy Horse” case, but that case was concerned with the distinct issue of passing-off and does not require to be explored

in the present context.

The question then comes to be one of fact, and here again the absence of clear findings is matter for regret. Certainly there was evidence contained in the affidavit by Mr. Rivalland that the trade name “Chipie” was popularised in Mauritius, although he states that as something of which he has been informed and does not speak from his own knowledge. But there was a substantial quantity of documentary evidence in the shape of journals evidently available in Mauritius in which the second respondent’s mark was advertised in connection with a variety of clothing. From all that appears the denial on behalf of the appellant of Mr. Rivalland’s statement of the popularisation of the mark was unsupported by any detail. It may also be noted that the name “Chipie” was used in connection with each of the two shops operated by Miss Merven. Their Lordships would if necessary be prepared to accept that the second respondent had established the reputation of its trade mark in Mauritius before the appellant started to use the same name. Indeed one may well wonder why the appellant chose to use the particular name unless that name already had a commercial value and a public notoriety in Mauritius. On this approach the appellant would also fail under section 10.

For the foregoing reasons their Lordships dismiss the appeal with costs.

Damarajen Sabapathee v The State

Dharmarajen Sabapathee

Appellant

v.

The State

Respondent

FROM

THE SUPREME COURT OF MAURITIUS

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL OF THE

Delivered the 21st July 1999

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Jauncey of Tullichettle

Lord Cooke of Thorndon

Lord Hope of Craighead

Lord Hobhouse of Woodborough

[Delivered by Lord Hope of Craighead]

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The appellant was convicted in the Supreme Court on 22nd September 1995 by Lam Shang Leen J. sitting without a jury of two offences under the Dangerous Drugs Act 1986. He was sentenced to eighteen years penal servitude together with a fine of Rs100,000 on each count. His appeal to the Court of Criminal Appeal of Mauritius (Yeung Sik Yuen Senior Puisne Judge, Balgobin and Peeroo JJ.) was dismissed on 10th October 1997. He was granted final leave to appeal to their Lordships’ Board by the Supreme Court of Mauritius on 18th January 1999.

The offences of which the appellant was convicted were those mentioned in count V, which was that on 26th December 1994 at 393 Royal Road, Rose Hill he unlawfully and knowingly had in his possession 395 grams of heroin contained in 35 small plastic sachets, in breach of sections 28(1)(a)(i) and (2)(b), 38(1) and (2) and 40(a) of the Act; and in count VIII, which was that on or about the month of July 1994 at Royal Road, Rose Hill he unlawfully, knowingly and wilfully offered to buy heroin, in breach of sections 28(1)(b) and 2(b), 38(1), (2) and (3) and 40(a) of the Act. It was averred in respect of both counts that it could reasonably be inferred that the appellant was engaged in the trafficking of drugs. The judge made a finding in these terms in respect of each of the two offences which he held to have been proved against him.

The grounds on which the appellant was granted leave to appeal all relate to the judge’s findings that it could reasonably be inferred that the appellant was engaged in trafficking in drugs when he committed the offences. These findings were made under section 38 of the Dangerous Drugs Act 1986, which provides as follows:-

“(1) The court which tries a person for an offence under section 28, 29, 30, 32 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 than 100,000 rupees or more than 250,000 rupees together with penal servitude for a term of 30 years.

(4) Any person who is convicted of 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 penal servitude.”

The first two of the four grounds on which leave to appeal was granted relate to the provisions of section 38(2) of the Act. The appellant submits that the provision that trafficking can reasonably be inferred from all the circumstances of the case has had the effect of lowering the burden of proof in a criminal case. He submits that for this reason it offends against section 10(2) of the Constitution of Mauritius. He also submits that it offends against that section of the Constitution because it has failed to define the expression “trafficking”.

The other two grounds depend upon the proposition that the correct approach to the provisions of section 38 is to regard a finding of trafficking not as an ingredient of the offence but as relating only to penalty. The first of these two grounds raises a further constitutional point. The appellant submits that the view which the Court of Appeal has taken of section 38, which is that a finding of trafficking may lawfully be made before conviction, shows that the section offends against the right to silence which is enshrined in section 10(7) of the Constitution. The second raises the same point as one of procedure. It is submitted that the trial judge ought not to have made his finding that the appellant was engaged in trafficking at the same time as he made his finding that he was guilty of the offences alleged against him in counts V and VIII. What he should have done was decide this point after he had convicted the appellant of the offences. This would have enabled the appellant to dispute the averment of trafficking without being compelled to give evidence in the course of his trial for those offences.

As these grounds relate only to the averment of trafficking, and as their Lordships were not persuaded that the appellant should be granted special leave to argue several other grounds relating to his conviction on the substantive offences, it is necessary to mention only briefly the evidence which was led at the trial in support of the two counts of which he was convicted.

The case against him on count V was that on 26th December 1994 police officers conducted a search at the appellant’s house following the arrest on 19th December 1994 of the appellant’s co-accused Ramla Juna Khamis, who pled guilty at the trial to two offences of importing heroin into Mauritius, at the airport. When he was asked to open the door by a police officer who had climbed up to an open window, the appellant picked up a green packet from the living room and ran out of the room. Other police officers were then ordered to break down the door and a search was carried out. The green packet which the appellant had had in his possession earlier was found concealed in the utility room. When it was opened it was found to contain 35 sealed plastic sachets, each of which held a quantity of powder which a forensic officer later confirmed to contain heroin. There were 11 larger sachets and 24 smaller ones, and inside another sachet were 50 open and empty plastic bags. The appellant refused to give a statement to the police after he had been arrested.

The case against him on count VIII related to a conversation which the appellant had in July 1994 with a man named Karima, recently arrived in Mauritius, who had been brought to him from his hotel to a car parked in a nearby street. He asked Karima whether he had something for him, to which he replied that he had not. He then took Karima to his house, where Karima told him that a man in Dubai named Leonidas had not succeeded in obtaining the stuff which he was supposed to be sending. The appellant asked Karima what had happened to the heroin which Leonidas was to send him, to which the man replied that he did not know. The appellant then told Karima that the heroin was not strong and that when people consumed it they did not get high. He asked Leonidas to send him a strong heroin. The judge inferred from this evidence that the appellant was guilty of the offences alleged against him and that he was engaged on both occasions in trafficking in drugs.

Standard of proof and the meaning of trafficking

Section 10 of the Constitution contains various provisions to secure the protection of the law for a person charged with a criminal offence. They are similar to those which are to be found in Articles 5, 6 and 7 of the European Convention on Human Rights. Among those which are set out in subsection (2) of this section are the following:-

“(2) Every person who is charged with a criminal offence –

(a) shall be presumed to be innocent until he is proved or has pleaded guilty;

(b) shall be informed as soon as reasonably practicable, in a language that he understands and, in detail, of the nature of the offence.”

Section 10(4) provides:-

“(4) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.”

The effect of section 10(2)(a) is to enshrine in the Constitution the basic right of every person charged with a criminal offence to the presumption of innocence. The common law requires that this presumption can only be overcome by evidence which is relevant to the crime with which he has been charged. It also requires that the burden of proof lies with the prosecutor, and that the standard of proof which must be discharged by that evidence is proof beyond reasonable doubt. Although these common law rules are not mentioned expressly in section 10(2), they are fundamentally bound up with the presumption of innocence. They are, by necessary implication, part of what paragraph (a) of that subsection means when it uses the word “proved”.

Mr. Ollivry Q.C. for the appellant submitted that the effect of section 38(2) of the Dangerous Drugs Act 1986 was to reduce the standard of proof from that of proof beyond reasonable doubt. He drew their Lordships’ attention to a passage in the judgment of the Court of Appeal where the Court observed that the law of Mauritius gives to those responsible for the exercise of judicial power “a wide discretion in finding whether a particular accused person is, or is not, a trafficker”. He accepted that section 38(2) should be read, so far as possible, in a way which was consistent with the Constitution as the presumption was that Parliament did not intend to enact laws which were in conflict with it. But he maintained that the words used in section 38(2) were only capable of one meaning, which was that a person could be found to have engaged in trafficking by means simply of a reasonable inference. This meant that something less than proof beyond reasonable doubt was permissible in order to establish trafficking.

Their Lordships can find no substance in this argument. The rule which is laid down in section 38(2) amounts to nothing more than a restatement of the ordinary common law rule that, where direct evidence is not available to prove any fact which requires to be proved, the court may find that fact established by inference from other facts which have been proved. The inference must, of course, be a reasonable one having regard to all the circumstances. But the standard of proof remains, as in the case of proof by means of direct evidence, that of proof beyond reasonable doubt. In order to satisfy that standard the court must be sure that the inference is the right one to draw in all the circumstances. There is nothing in the language of section 38(2) which indicates an intention on the part of Parliament to depart from these fundamental rules.

In Amasimbi v. The State (1992) S.C.J. 178 the Court of Criminal Appeal rejected the suggestion that section 38(2) might be interpreted as having placed a lesser burden on the State than that of proof beyond reasonable doubt on the ground that this would offend section 10 of the Constitution, adding that was clearly not how the trial judge had dealt with the matter. In the present case the trial judge said, in regard to his decision on count V, that he found it “established beyond doubt” that the appellant was a drug trafficker. In regard to his decision on count VIII, he found it “established” that it could reasonably be inferred that the appellant was a drug trafficker. It appears that he also was applying the usual standard of proof beyond reasonable doubt in regard to the appellant’s position on both counts. There is nothing in his judgment which indicates that he was under the impression that a lower standard of proof was permissible. The Court of Criminal Appeal said in its judgment that, having regard to the fact that the “circumstances” must first be proved beyond reasonable doubt, it was confident that the mode of proof of trafficking did not transgress any constitutional protection under section 10 of the Constitution.

It is clear, both from the observations of the trial judge and those of the Court of Appeal, that section 38(2) has been applied by them throughout on the correct basis, namely that the standard of proof which must be satisfied is that of proof beyond reasonable doubt that the accused was engaged in trafficking.

Mr. Ollivry’s next point was that the expression “trafficking” was too vague. The fact that it was not defined in the Act, when taken with the provision that trafficking could be established by the drawing of reasonable inferences, was likely to lead to decisions which were arbitrary and unfair. No yardstick had been given in regard to matters such as the quantity of the drugs which would justify the inference of trafficking, or whether the expression was intended to cover the supply of the drugs to a friend in circumstances which lacked any commercial element. He referred in support of his argument to the principle of legality which is embodied in section 10(4) of the Constitution. He said that section 38(2) was in breach of that principle, because it did not define with sufficient precision the conduct which was liable to attract the severe penalties which that section prescribes for drug trafficking.

There is no difficulty in understanding what is meant by the word “trafficking”. It is a familiar expression in the context of transactions which are tainted by immorality or illegality. It has the same meaning as “dealing” or “trading”, except that it has a pejorative element. The essence of the complaint is that the statute has failed to define with sufficient clarity the transactions which fall within, and those that fall outside, the ordinary meaning of the expression which the section has used to describe the nature of the activity.

The principle of legality requires that an offence against the criminal law must be defined with sufficient clarity to enable a person to judge whether his acts or omissions will fall within it and render him liable to prosecution on the ground that they are criminal. But the jurisprudence of the European Court of Human Rights shows that the requirement for clarity must be seen in the light of what is practicable, and that it is permissible to take into account the way in which a statutory provision is being applied and interpreted in deciding whether or not the principle has been breached.

In The Sunday Times v. United Kingdom (1979) 2 E.H.R.R. 245 the Court had occasion to consider the meaning of the expression "prescribed by law” in Article 10(2) of the European Convention, which provides that the exercise of the right to freedom of expression in Article 10(1) may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and necessary in a democratic society. At paragraph 49 of the judgment the Court said:-

“In the court’s opinion, the following are two of the requirements that flow from the expression ‘prescribed by law’. First, the law must be adequately accessible: the citizen must be able to have an indication that it is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows that this may be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.”

A similar approach has been taken by the Court to Article 7(1) of the European Convention, which contains provisions which are similar to those in section 10(4) of the Constitution of Mauritius. In Kokkinakis v. Greece (1993) 17 E.H.H.R. 397 the Court recognised in paragraph 40 of its judgment that the wording of many statutes is not absolutely precise and that the need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which are, to a greater or lesser extent, vague. In paragraph 52 of the judgment the Court said:-

“Article 7(1) of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy; it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him liable.”

As the Board held in Ahnee v. Director of Public Prosecutions [1999] 2 W.L.R. 1305 there is to be implied in section 10(4) the requirement that in criminal matters any law must be formulated with sufficient precision to enable the citizen to regulate his conduct. So the principle of legality applies, and legislation which is hopelessly vague must be struck down as unconstitutional. But the precision which is needed to avoid that result will necessarily vary according to the subject matter. The fact that a law is expressed in broad terms does not mean that it must be held to have failed to reach the required standard. In an ideal world it ought to be possible to define a crime in terms which identified the precise dividing line between conduct which was, and that which was not, criminal. But some conduct which the law may quite properly wish to prescribe as criminal may best be described by reference to the nature of the activity rather than to particular methods of committing it. It may be impossible to predict all these methods with absolute certainty, or there may be good grounds for thinking that attempts to do so would lead to undesirable rigidity. In such situations a description of the nature of the activity which is to be penalised will provide sufficient notice to the individual that any conduct falling within that description is to be regarded as criminal. The application of that description to the various situations as they arise will then be a matter for the courts to decide in the light of experience. In this way the law as explained by its operation in practice through case law will offer the citizen the guidance which he requires to avoid engaging in conduct which is likely to be held to be criminal.

Against this background their Lordships are not persuaded that the wording of section 38(2) offends against the principle of legality. Experience has shown that trafficking in drugs takes many forms, which vary according to the nature and quality of the drug and the market in which the trafficker seeks to operate. Attempts to penalise the activity by reference to such yardsticks as value or quantity may be counterproductive, or at least ineffective, as individual transactions can be so easily adjusted to avoid the penalty. In any event, it is artificial to set limits on an activity which is infinitely variable. The policy of Parliament in enacting section 38 was to strike at the heart of the problem by penalising the act of dealing in dangerous drugs, whatever form this might take and whatever the quantities. This is a legitimate approach, as there is a clear distinction between the handling of drugs for personal use and trading in drugs by buying and selling them, which is the essence of trafficking. In the Board’s view the Court of Appeal put the matter correctly in its judgment in the present case when it said:-

“As we have already adverted to, the term ‘trafficking’ cannot be defined with any degree of precision. The multifarious forms which trafficking can take, can be measured only by the degree of human ingenuity which, as yet, is unfathomable. No exhaustive list of instances of trafficking can be enumerated, or defined, so that the legislator has left it to the good sense of the Courts to decide what amounts to trafficking in a given set of facts.”

The only point on which their Lordships would wish to take issue with the Court of Appeal before leaving this chapter is in regard to its observation in a later passage of the judgment that the law gives to those responsible “a wide discretion” in finding whether a person is, or is not, a trafficker. It is not clear whether this observation was intended to relate to the standard of proof or to the circumstances from which an inference could properly be drawn that the accused was engaged in trafficking. On either view however it would not be right to use the word “discretion” to describe the nature of the task which a judge must face when applying his mind to the evidence. His task is to decide what facts have been proved to the required standard and, having done so, to decide what inferences, if any, can reasonably be drawn from those proved facts. The exercise is one of judgment, and the question whether trafficking has been proved beyond reasonable doubt is to be answered in the light of all the circumstances. No limit is set by the statute as to the circumstances which may be taken into account. But the decision which the judge takes must be reached upon a consideration of the facts which have been established beyond reasonable doubt by the evidence.

As for the facts of the present case, there can be no doubt that the judge was entitled to draw the inference that the appellant was engaged in trafficking. The quantity of the heroin which was found in his house, the numbers of packages into which it was divided and the presence of bags to enable it to be divided up into smaller quantities indicate that he was involved in the business of supplying drugs to others as a dealer, and that his activities fell well within the ordinary meaning of trafficking. The words used by him in his conversation with Karima were plainly capable of bearing the inference that he had received complaints from customers about the strength of the heroin which had been supplied to them, and that by his use of the words “send stronger heroin” he was not only offering to buy heroin but intending to supply it to others as a dealer in a strength which they would find acceptable. Here again the inference that the appellant was engaged in trafficking within the ordinary meaning of the word was plainly justified. The appellant cannot have been in any doubt on either occasion that his conduct was of that character.

The right to silence – whether finding of trafficking relevant only to penalty

Section 10(7) of the Constitution, which includes the right to silence among the provisions which are designed to secure the protection of the law to those accused of criminal offences, provides:-

“(7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.”

Mr. Ollivry submitted that the appellant had been deprived of his right to silence because section 38, as it had been interpreted by the Courts in Mauritius and applied in the procedure which had been adopted by the trial judge, made it necessary for him to give evidence at the trial if he wished to dispute the averment that he was engaged in trafficking. He had elected to remain silent at his trial. The trial judge found him guilty on counts V and VIII and then made findings, as part of his verdict, that on each occasion the appellant was engaged in trafficking in drugs. He did so before giving the appellant’s counsel an opportunity to make submissions and lead evidence in mitigation of penalty. In the result the appellant had been deprived of the opportunity of giving evidence to challenge the averment that he was engaged in trafficking. That question had already been decided against him by the trial judge on the evidence which had been led on the question whether he was guilty of the offences alleged against him in these two counts.

Their Lordships had occasion to consider the effect of section 38, although in a different context, in Mohammed Mukhtar Ali v. The Queen [1992] 2 A.C. 93. In the course of the Board’s judgment mention was made of a passage in the judgment of the Supreme Court in that case, in which the Supreme Court interpreted the decision in Heerah v. The Queen (1988) M.R. 249 as being to the effect that the correct approach to section 38 was to treat it as having introduced an aggravating circumstance which had to form part of the charge and to be averred in the information. The Board then went on to make this comment at page 99:-

“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 subsection (1) of section 38. Heerah 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.”

Mr. Ollivry sought to find support in this passage for his proposition that the averment that the appellant had been engaged in trafficking was not part of the offence to which it related but was concerned only with penalty. He also drew their Lordships’ attention to Kingswell v. Reg. [1986] L.R.C. (Crim) 165, where Gibbs C.J., Wilson and Dawson JJ., giving the judgment of the majority in the High Court of Australia, said at p. 178:-

“There is a close analogy between those cases in which the existence of the circumstances of aggravation converts the offence from a lesser to a greater one and those in which the existence of the circumstances of aggravation renders the accused liable to a penalty greater than that which could have been imposed if the circumstances did not exist. In cases of the first-mentioned kind, the circumstances of aggravation become elements of a distinct offence and, therefore, must be specifically alleged in the indictment. Where the circumstances of aggravation do no more than increase the maximum penalty, they do not alter the nature of the charge although they do affect, sometimes very materially, the legal consequences that may flow from a conviction. The rule of practice in R. v. Bright is consistent with the fundamental principle that questions of fact affecting the liability of the accused to punishment should be decided by the jury when the trial is on indictment. The position is different when the circumstances said to aggravate the offence are relevant only to the exercise of the sentencing discretion of the judge.”

The rule of practice to which reference was made in that passage is to be found in The King v. Bright [1916] 2 K.B. 441. The appellant in that case pleaded guilty to two counts of contravening regulations made under the Defence of the Realm Consolidation Act 1914. He was sentenced by the trial judge to penal servitude for life on the basis that he had committed these offences with the intention of assisting the enemy. He appealed against his sentence on the ground that no mention had been made in the charges to which he had pleaded guilty that it was to be alleged against him that this was his intention when he committed the offences. In the course of his judgment in the Court of Appeal at p. 444 Darling J. said:-

“A judge has a perfect right to consider whether the prisoner’s motive is good or bad, so that he may decide whether to pass a severe or a lenient sentence, but if the case be such that the prisoner’s motive in committing the offence is one of the questions which the jury have to decide the judge must not attribute to the prisoner a motive which has been negatived by the verdict of the jury, and he must not attribute to the prisoner that he is guilty of an offence with which he has not been charged – nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation.”

Their Lordships consider that the correct view of section 38 of the Dangerous Drugs Act is that it lays down what Darling J. described in that passage as a statutory aggravation of the offences mentioned in subsection (1). As the Board observed in Mukhtar Ali v. The Queen, the Supreme Court in Heerah were right to insist that it was not open to the court to make a finding of trafficking if that had not been alleged in the information. That was in accordance with the rule in Bright’s case. But the point goes further than that. The reason why the aggravation requires to be alleged in the information is that the question whether the accused was engaged in trafficking in drugs is a question of fact which must be established at the trial. It is a question which, if the case is being tried by a jury, must be decided by the jury before the judge proceeds to deal with the question of sentence. The position is the same where, as in the present case, the offence is one which under section 10 of the Criminal Procedure Act is triable before a judge without a jury in the Supreme Court and the Director of Public Prosecutions decides to prosecute the offence in that Court. The burden of proving the allegation beyond reasonable doubt lies with the prosecutor.

In Kingswell v. Reg. the circumstances of aggravation were that the applicant had previously been convicted of an offence of a kind which, in terms of the relevant statute, rendered him liable to a sentence of life imprisonment. The majority view at pp. 178-179 was that, although this was not an ingredient of the offences charged but was relevant only to the sentencing discretion of the judge, the previous conviction should nevertheless have been specified in the indictment. Although it would not have been proper to bring the fact of the previous conviction to the notice of the jury until the guilt of the accused had been established, the jury should, if the accused was convicted and did not admit the previous conviction, have been asked to find whether he was previously convicted of the earlier offence charged. Mason J. dissented on this point at p. 181, on the ground that the determining of facts relating to previous convictions was part of the routine function of a judge in the course of the sentencing exercise and that there was no reason why the jury rather than the judge should determine these issues. Their Lordships prefer the view of Mason J. on this issue. It should be noted that the majority view, as was recognised at p.178, goes beyond what is required by a strict application of the rule in Bright’s case. It is not in accordance with the practice which is still followed in the English courts, by which questions as to the accused’s previous convictions are left to the decision of the trial judge.

But the more important point is that the distinction which the majority in Kingswell v. Reg. drew between those aggravations which convert the offence from a lesser offence to a greater one and those which render the accused liable to a greater penalty must be seen in the light of the facts which were before the court in that case. A relevant previous conviction is a good example of an aggravation which may render the accused liable to a greater penalty under the statute but does not convert the offence from a lesser offence to a greater one. But the distinction which the court drew between these two types of aggravation is not well suited to solving the problem presented by the present case where, as the Board held in Mukhtar Ali v. The Queen, the effect of section 38 is not to create a separate and distinct offence but is an aggravation rendering the accused liable to a more severe penalty.

Their Lordships consider that the distinction which is relevant to the present case is between those kinds of aggravation which form part of the facts which constitute the offence charged and those which are independent of those facts. Where the aggravation forms part of the offence charged the aggravation must be alleged in the information. It must then be proved as part of the case made against the accused by the prosecutor relating to his guilt of the offence charged. Where it is independent of those facts the evidence to establish it cannot form part of the evidence against the accused relating to his guilt of the offence charged. It must be laid before the judge after conviction, if necessary by the leading of oral evidence, at the stage when he is considering sentence. An aggravation which relates to the circumstances in which the offence was committed, to the nature or degree of the violence used or to the accused’s purpose or motive in committing it will normally form part of the facts relating to the offence charged. That kind of aggravation will need to be established at the same time as the question whether the accused is guilty of the offence. It is an aggravation of a different kind from that which depends upon the proof or admission of facts which do not relate in any way to the circumstances of the offence charged, of which an allegation of previous convictions is the typical example.

As for the situation in the present case, it is plain that the question whether the accused was engaged in the trafficking of drugs within the meaning of section 38(2) must be answered by examining the facts relating to the offence which the accused is alleged to have been committing at the time when he is alleged to have been engaged in trafficking. The answer to the question must be found in the facts which have been led to establish guilt by the prosecutor. Section 38(1) has recognised that this is so, because it provides that the court “which tries” the person for the offences listed there must make a finding whether the accused is a trafficker in drugs. Subsections (3) and (4), which set out the increased penalties, provide for their imposition on a person “who is found to be a trafficker”. The language of the section envisages that a finding to that effect will be made at the stage of the accused’s conviction by the trial court. It would obviously be unsatisfactory for the question whether the accused was engaged in trafficking in drugs at the time when he committed the offence charged against him to have to be considered as a separate question after the accused had been convicted of that offence. That would require the prosecutor, on whom the burden of proof lies, to lead all over again much of the evidence relating to the offence of which the accused has just been found guilty. The facts of the present case demonstrate how closely, in a typical case of trafficking, the facts relating to the offence are bound up with the question whether the accused is a trafficker in drugs.

The argument that the appellant was deprived of his right to silence by the procedure which was adopted by the trial judge must be held therefore to have been based upon an unsound view of the nature of the aggravation which is provided for by section 38. If the accused wishes to challenge the allegation that he is a trafficker in drugs he must do so during the course of the trial. The purpose of including the allegation in the information is to put him on notice that he must do so before the trial court proceeds to consider its verdict. He is not deprived by that allegation of his right to remain silent. But if he decides to remain silent he takes the risk that the trial court will make the finding against him that he was engaged in trafficking if it holds that he is guilty of the offence with which he has been charged.

Conclusion

For these reasons their Lordships consider that the grounds on which this appeal has been taken must be rejected. They accordingly dismiss the appeal.