Tuesday, 24 February 2004

Gunnesingh Ashok Kailaysur v The State

Gunnesingh Ashok Kailaysur



The State








OF THE 22nd April 2004, Delivered the 24th May 2004


Present at the hearing:-

Lord Steyn

Lord Hope of Craighead

Dame Sian Elias

[Judgment delivered by Lord Steyn]


1. On 22 April 2004 the Judicial Committee of the Privy Council had before it a petition for special leave to appeal from an order of the Supreme Court of Mauritius dated 21 July 2003 which increased a sentence of imprisonment passed by an Intermediate Court on 2 May 2002 from a total term of 18 months’ to a total term of three years’ imprisonment. Having heard counsel for the appellant and counsel for the respondent the Judicial Committee resolved to treat the hearing of the petition as the hearing of the appeal. At the same time the Judicial Committee ordered that the judgment of the Court of Appeal dated 21 July 2003 be set aside and that the sentence passed by the Intermediate Court on 2 May 2002 be reinstated.

2. The course adopted is not expressly provided for in the rules. But the Judicial Committee is the master of its own procedure. In appropriate cases the adoption of such a course advances the attainment of a correct and just disposal of the case without the need for a hearing on another date by a full Board. In the present case the parties through counsel consented to this course being taken. This procedure can be adopted even where there is no consent. On the other hand, it is a power that is best reserved for obvious and clear-cut cases.

3. On 2 May 2002, being the first day of a trial, the accused pleaded guilty in an Intermediate Court to nine counts of aggravated embezzlement. The accused was employed to collect money from customers of his employer. On nine occasions between November 1993 and May 1994 he embezzled some of the money. The total sum involved was 46,000 rupees (then worth about £1,700).

4. The accused was a married man. He had three children. He was the sole breadwinner of the family. He had responsibilities to a mother, who suffered from heart problems, and a handicapped sister.

5. The magistrate’s sentencing observations were as follows:

“I have taken into consideration all the circumstances of the case including the Accused’s plea of guilty, the amount of money embezzled, Rupees 46,000, the fact that none of it has, as yet, been refunded, the Accused’s previous convictions for offences involving dishonesty as well as his family commitments.

I find that a custodial sentence is warranted and I accordingly sentence Accused to undergo 18 months imprisonment with hard labour under each count.

Accused to pay Rupees 350 costs.”

It is common ground that the sentences were concurrent. The accused appealed against the total sentence.

6. The Supreme Court decided to increase the total sentence. Giving the judgment of the court Judge P. Lam Shang Leen (with whom Judge S.B. Domah agreed) observed:

“The record shows that the appellant did not make an outright confession when he gave his statement on January 9, 1998. On June 4, 2001, when the case was called before Court he prayed for time to retain counsel and on June 18, 2001, he pleaded not guilty to all the counts. It was only on the day of trial on May 2, 2002 that he changed his plea to one of guilty under the nine counts.

We have not been persuaded, having regard to the state of the evidence on record, that the learned magistrate did not consider all the relevant matters when considering the sentence to be passed. We are of the view that the learned magistrate in fact erred in not considering the fact that the appellant was already under a conditional discharge order when he committed the nine offences which had spread over a period of six months.

We consider the appellant in those circumstances should not benefit from the provisions of the Community Service Order Act 2002. If the learned magistrate had erred, it was on the leniency side the more so as can be gathered from the appellant’s statement to the police that the said Mr S. K. Mohur was sued by the appellant’s company before the Supreme Court for the said debt. We also note that the appellant even claimed that the figures on the receipts had been forged by somebody despite his admission that the handwritings on those receipts were his. The facts show a scheming mind which must be deterred.

In the light of the above, we are of the view that it is a fit case to increase the sentence passed by the trial court and we shall substitute the one passed by the trial court to three years penal servitude under each of the nine counts bearing in mind that the maximum sentence under section 332(2) of the Criminal Code is 10 years penal servitude.”

This judgment is now under appeal to the Privy Council.

7. Originally there were wide ranging grounds of appeal invoking, amongst other things, provisions of the Constitution. There was also a radical submission that the magistrate ought to have imposed a Community Service Order. The Board was unimpressed with these arguments. In any event, at the oral hearing of the petition counsel narrowed the focus to the ground that the Supreme Court ought not to have increased the sentence on appeal.

8. The Board is content to assume that under section 96(2) of the Intermediate and District Court (Criminal Jurisdiction Act) the Supreme Court has the power to increase a sentence on appeal, and that in principle as a matter of jurisdiction the power was available in the present case.

9. It is, however, a power which must be relatively sparingly exercised and then only in cases where the sentence imposed by the trial court was manifestly inadequate. And in all cases the reasons for exercising this drastic power must be explained.

10. The reasons given by the Supreme Court are less than compelling. It is true, as the Supreme Court observed, that the accused only pleaded guilty immediately before the trial was due to start. But the accused was still entitled to some not insubstantial credit for a plea which made a trial unnecessary. The Supreme Court did not make clear that it was allowing some credit. Secondly, the Supreme Court observed that “If the learned magistrate erred, it was on the leniency side”. This remark reveals a potential error in reasoning. It is not every sentence “on the leniency side” which requires to be increased. Thirdly, although the accused acted in a thoroughly dishonest way and was under a conditional discharge order when he committed the offences, the case was hardly at the top end of the spectrum and did not cry out for correction.

11. The Board approaches an appeal involving the severity of an increased sentence with great deference for the views of the Supreme Court. On the other hand, under section 3 of the Judicial Committee Act 1833, read with the Mauritius Appeals to Judicial Committee Order 1992, the Board has jurisdiction to entertain the appeal. Having concluded that the Supreme Court erred in a fundamental way in the exercise of its discretion, which resulted in an unjust doubling of the total sentence, the Board felt compelled to make the order set out above.