Marie Jean Nelson Mirbel and Others v The State of Mauritius & Others

[2010] UKPC 16

Privy Council Appeal No 0046 of 2009

JUDGMENT

Marie Jean Nelson Mirbel and Others v The State of Mauritius & Others

From the Supreme Court of Mauritius

before

Lord Phillips

Lord Rodger

Lord Walker

Lord Brown

Lord Clarke

JUDGMENT DELIVERED BY

Lord Phillips

on

21 July 2010

Heard on 27 April 2010

Appellant

Anil Gayan SC

Vijaya Sumpath

(Instructed by Lex Advoc

Chambers)

Respondent

Phillip Baker QC

Rajesh Ramloll

Imran Afzal

(Instructed by Royds LLP)

Judgment delivered by LORD PHILLIPS

Introduction

1. Section 18 of the Finance Act 2006 introduced into Mauritius a new tax called the national residential property tax (“NRPT”). The tax was introduced with effect from the year of income 2006 to 2007, so that the new tax would first be payable in the year of assessment 2007 to 2008. The appellants are four citizens in Mauritius, who own land on the Island. On 1 September 2006 the appellants issued a Plaint with Summons (“the Plaint”) before the Supreme Court. Although this did not expressly invoke the section, it is common ground that by so doing they were seeking constitutional redress under section 17(1) of the Constitution. The defendants, who are respondents to this appeal, were the State of Mauritius, the Ministry of Finance and Economic Development and the Mauritius Revenue Authority. The appellants alleged that the introduction of the NRPT infringed sections 3 and 8 of the Constitution. Before the NRPT took effect, its provisions were significantly amended by section 17 of the Finance Act 2007. This did not cause the appellants to make any amendment to the Plaint.

2. On 13 September 2007 the respondents filed a plea in limine litis. This sought the dismissal of the Plaint on three grounds:

a) The appellants had no locus standi.

b) The Plaint disclosed no cause of action.

c) The Plaint was in breach of the Constitutional Relief Rules.

The respondents’ plea in limine succeeded on the first ground. The Supreme Court, K P Matadeen, Acting Chief Justice, and A F Chui Yew Cheong, Judge, held that the appellants had no locus standi and dismissed their Plaint with costs on this ground. The Court did not deal with the other two grounds.

3. Thus the sole issue raised by this appeal, which is brought by permission of the Board, is whether the appellants have, by their Plaint, alleged facts which give them locus standi to bring their claim. It is rightly common ground that this issue falls to be resolved on the assumption that the averments of fact made in the Plaint are accurate.

The Constitution

4. The following provisions of the Constitution are of particular relevance:

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

. . .

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

. . .

8 Protection from deprivation of property (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 -

. . .

(4) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) -

(a) to the extent that the law in question makes provision for the taking of possession or acquisition of property -

(i) in satisfaction or any tax, rate or due;

. . .

17 Enforcement of protective provisions

(1) Where any person alleges that any of sections 3 to 16 has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person may apply to the Supreme Court for redress.

(2) The Supreme Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of subsection (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of sections 3 to 16 to the protection of which the person concerned is entitled. Provided that the Supreme Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.”

The NRPT in its original form.

5. In its original form the tax was imposed on all owners of real property in a residential area, whether or not there was residential accommodation on the land. The tax was imposed at a flat rate of 10 rupees per square metre of land in a residential area, and 30 rupees per square metre on flats or similar high rise buildings or where a building had been added above another under “droit de surélévation”. The tax was imposed at the same rate regardless of the location of the land and whether or not the land had development potential. There was an exemption from liability to pay the tax for those whose annual income did not exceed 215,000 rupees. There was also a right to deduct from the tax payable any sums paid by the landowner in the form of municipal rates.

The Plaint

6. Paragraph 1 of the Plaint alleged that the appellants were Mauritian citizens and set out particulars of the land that each was alleged to own. Paragraph 2 alleged, inter alia, that the appellants were taxpayers. Paragraph 3 alleged that the provisions of sections 3 and 8 of the Constitution of Mauritius “have been, are being and are likely to be contravened in relation to them” (emphasis added) by the enactment of the provisions of the Finance Act 2006 relating to the levying of NRPT.

Paragraph 10 alleged:

“Plaintiffs aver that they fall within the net and conditions provided for by the National Residential Property Tax (NRPT).”

7. Paragraph 11 alleged:

“Plaintiffs aver that they never have had to pay any such tax which affects and will continue to affect their rights as a property owner inasmuch as the tax is levied on them in their capacity as owners of land without the Defendants making available any corresponding benefits to them in the enjoyment of their property rights.”

8. The pleading set out the provisions of the 2006 Act that established liability to pay NRPT and then went on to allege that these violated the Constitution for the following reasons:

“23. Plaintiffs aver that there is no factual, legal, constitutional or any imperative reason for the introduction of the new NRPT and they maintain that the NRPT is not a valid and proper taxing statute inasmuch as it amounts to a colourable device to get around their fundamental right to own property, a right which is sacrosanct and guaranteed by the Constitution of Mauritius.

24. Plaintiffs further aver that the purported NRPT is not a tax proper inasmuch as it results to a forced loan without compensation.

25. Plaintiffs also aver that the NRPT further violates their constitutional rights in another respect and must be struck down as being harsh, cruel and punitive particularly as regards the heavy penalties provided in cases of non-compliance.

26. Plaintiffs aver, in the further alternative, that the NRPT which is assimilated in the Act to an Income Tax is unreasonable inasmuch as Income Tax is of a recurrent nature whereas mere ownership of immoveable residential property cannot amount to an income liable to be taxed as Income Tax.

27. Plaintiffs aver that, by proceeding in respect of the NRPT as Defendants Nos. 1 and 2 have done and as Defendant No.3 is gearing up to administer, they are in effect depriving the Plaintiffs of their properties, which are fixed assets not generating any income.

28. Plaintiffs further aver that the NRPT which is being applied indiscriminately to all residential property without taking into account inter-alia the location, market value, quality of residential land, neighbourhood, availability of services and amenities etc cannot continue to stay on the [Statute] Book as it is unfair, arbitrary, unreasonable and oppressive.

29. Plaintiffs aver that it is the duty of Defendants Nos. 1 and 2 to ensure that any taxing statute is fair, efficient, proportionate and complies with the requirements of the basic principles of taxation.

30. Plaintiffs aver that a comparison in the application of the NRPT will, as an indication, demonstrate its unfairness, unreasonableness and the inequity. ... ”

Examples were given of the manner in which the NRPT was alleged to operate unfairly and the pleading continued:

“32. Plaintiffs aver that, in the circumstances, the NRPT has unreasonably assumed that every person who is the owner of residential property and who is above the threshold of Rupees 215,000 per annum, is able to pay and such assumption defies reality and logic.

33. Plaintiffs aver that the NRPT has distortions and anomalies in its application which render it unequal and defeat the right in the Constitution to equality of treatment of all tax-payers.

34. Plaintiffs aver that any tax must satisfy the exigencies of equality, neutrality and fairness and they aver that the Defendants have failed to ensure that the NRPT meets these exigencies with the result that the NRPT is not a tax proper.

35. Plaintiffs aver that, while it is in order for the Defendants to impose taxes which are assessed on income-generating activities or on consumption in accordance with recognised and objective criteria, it is not open or lawful for the Defendants to act in violation of the fundamental rights of the Constitution or to impose and receive such a tax.

36. Plaintiffs aver additionally that the net result of the NRPT is to convert residential property ‘en toute propriete’ into State land and this is something which is an infringement of the Constitution.

37. Plaintiffs aver that the NRPT has the consequence of destroying the existing legal regime of ownership of property and it attempts to do so by circumventing the Provisions of the Constitution.

38. Plaintiffs aver that the imposition of the NRPT is a colourable device designed to get around fundamental Constitutional provisions as stated above and to deny them the protection of the law.

39. Plaintiffs aver that they are seeking redress from this Honourable Court for the purposes of protecting their legal and Constitutional rights as well as seeking orders or pronouncements that the Defendants are debarred from acting in a manner which is destructive of their acquired rights.”

9. The relief claimed included a Declaration that the provisions of the Finance Act 2006 that related to the NRPT were null and void and of no legal effect by virtue of section 2 of the Constitution.

10. Minor amendments were subsequently made to the Plaint which are of no relevance to this appeal.

11. On 26 January 2007 the respondents served a demand for particulars of the Plaint. The appellants’ response of 14 February 2007 dealt with many of these by the statement “this is a matter of evidence which will be adduced in Court”. The Board would make the following comments in relation to this form of response. First the requests to which it was given were not requests for evidence, but for particulars of the appellants’ case. Secondly, and more significantly, the appellants’ response exemplified an approach to pleadings which the Board deprecates. Pleadings are designed to identify the issues to be resolved by the Court, they should not be treated as a tactical game. At the same time it is fair to say that the demand for particulars suggests something of a scatter gun approach to the exercise of seeking particulars. Particulars should only be sought where they are really needed to elucidate the other party’s case, not as a matter of course.

12. The particulars sought included particulars of the plaintiffs’ tax account numbers. This was, perhaps, intended to assist the third respondent to check on the appellants’ tax status. The appellants unhelpfully responded by averring “this is privileged information”. When further and better particulars of this were sought on 29 June 2007 (not placed before the Board) the response provided on 12 July 2007 was: “This is a privileged document. Defendant is free to summons the MRA”. As the Mauritius Revenue Authority was a party to the litigation this response was bizarre. It may be that the Authority was having some difficulty in checking the appellants’ assertion that they were taxpayers, in which event it would have been helpful to provide the assistance sought.

Amendments to the NRPT

13. The Finance Act 2007 was passed by the National Assembly on 7 August and received the assent of the President on 21 August 2007. It made the following significant amendments to the NRPT:

i) The income threshold for liability to pay the tax was raised to 385,000 rupees.

ii) A cap of 5% of the total income of the taxpayer was placed on the NRPT payable.

iii) Residential land on which there was no residential building was excluded.

14. These amendments to the NRPT removed features of the tax which might have been thought to be harsh or inequitable. They also raised questions in relation to the appellants’ Plaint. If this was treated simply as an attack on the NRPT in its original form, the issues raised by the Plaint were of historical interest only and there was no good reason why the proceedings should be taken further. If, however, it was the appellants’ case that the amendments made to the NRPT did not affect the substance of their claim, amendments to the Plaint were desirable. Some of the averments made in the Plaint, such as that which alleged that the tax threshold was an income of 215,000 rupees and that which alleged that the tax applied to bare land, were no longer accurate. An amendment to bring these averments into accord with the tax as amended would have clarified the appellants’ case. Most of the pleading was, however, as capable of application to the tax in its new form as it had been to the tax in its original form.

15. The appellants had, in fact, made it plain before the Finance Act 2007 was enacted that the changes that were to be made to the NRPT would not affect the relief that they were claiming. In their response of 12 July 2007 to the further and better particulars sought on 29 June the appellants stated:

“The Plaintiffs are challenging the very basis and concept of the NRPT in as much as it is being imposed without any Judicial or reasonable foundation. The very fact that the Minister has altered the original basis in itself indicate of (sic) the lack of ‘reason and basis’ for such a tax which will, in the words of the Minister in his Budget 2007/2008, undergo further transitional arrangements. These arrangements are transitional until the valuation roll is ready.”

The plea in limine litis

16. The plea in limine litis was combined with a plea on the merits. The plea on the merits addressed the Plaint on the premise that it fell to be considered in the light of the amendments that had been made to the NRPT by the 2007 Act. Thus, where appropriate, the respondents pleaded the amendments that had been made to the tax in answer to the provisions of the original tax that the appellants had cited in their pleading.

17. The relevant part of the plea in limine litis simply alleged that the plaintiffs had no locus standi to enter the Plaint. The plea on the merits went on, however, to challenge the averments in the Plaint that underpinned the plaintiffs’ locus standi: “3. Defendants deny paragraph 3 of the amended plaint with summons and aver that plaintiffs have failed to disclose their annual income and to show that they are liable to pay the National Residential Property Tax.”

“8. Defendants deny paragraph 10 of the said affidavit (sic) in its form and tenor and reiterate the averments made at paragraph 3 above.”

18. The Board has been surprised that the respondents should have chosen to make this particular challenge to the appellants’ locus standi. Before the Board it has been common ground that the appellants had, at the least, to prove that they were liable to pay the NRPT if they were to be entitled to relief under section 17(1) of the Constitution. Liability to pay the tax fell on those who had an annual income of 215,000 rupees, raised by amendment to 385,000 rupees, but there was no reason to believe that the appellants did not enjoy this relatively modest income. They had pleaded that they were taxpayers. Liability also depended, by reason of the amendment of the tax, upon ownership of land carrying a residential building. The appellants had pleaded that they were owners of portions of land, giving particulars of those portions by reference to entries in the land register. In the case of at least three of the appellants the location of the land appears to tally with the address of the appellant in the pleadings. It is hard to believe that the respondents would have had any difficulty in checking whether the appellants owned residential buildings on their land. Had there been any doubt about this the matter could have been informally resolved between the parties. It would, after all, have been very odd if the appellants had chosen to attack a tax that did not apply to them. On the face of it a citizen is likely to be content that others should be liable to pay a tax from which the citizen is himself exempt. Thus the challenge to the appellants’ locus standi on the ground that the Plaint did not adequately claim that the appellants were liable to pay NRPT appears to have been no more than a pleading point. It may be, however, that there was more to the respondents’ challenge than readily meets the eye.

19. The plea in limine litis was heard by the Supreme Court on 4 June 2008. Mr Bhaukaurally, the Assistant Solicitor General, appeared for the respondents and Mr Gayan SC appeared for the appellants, as he did before the Board. The transcript suggests that, on the issue of locus standi, it was common ground, as it was before the Board, that the appellants had to establish that they were liable to pay the NRPT if they were to have locus standi to bring proceedings under section 17 of the Constitution. Mr Bhaukaurally submitted that the appellants’ Plaint did not adequately plead that they were so liable in that there was no averment in the pleading that the plots of land that the appellants claimed they owned were “constitutive of the tax base ... in respect of which they would be liable to tax”.

20. In making submissions in support of the part of the plea in limine litis that alleged that the appellants’ pleading did not disclose a cause of action, which Mr Bhaukaurally rightly observed was closely linked with the attack on locus standi, he submitted that there was no averment that the appellants fell within the tax threshold needed to give them standing for relief. He submitted that the Plaint as a whole tended to show that the appellants were trying to establish a case of public interest litigation, which was not acceptable in Mauritius.

21. That suggestion appeared to receive some support when Mr Gayan SC began his submissions for the appellants. He invoked the relaxed approach to locus standi that now prevails in judicial review proceedings in the United Kingdom and a similar approach that he submitted prevailed in relation to constitutional issues in India. He submitted that it would be a pity if a pressure group, or even a public spirited taxpayer, were prevented by “outdated technical rules” of locus standi from bringing the matter to the attention of the Court to vindicate the rule of law and to get the unlawful conduct stopped.

22. Mr Gayan went on, however, to submit that the appellants’ case was that they did have locus standi. Their claim was that they were going to be affected by the imposition of the NRPT and wished to test its constitutionality. Later, when dealing with the submission that the Plaint disclosed no cause of action, he submitted that the amendments to the tax did not destroy the basis upon which the case was being advanced.

23. The Court, in giving judgment, found for the respondents on the issue of locus standi. It drew attention to the fact that the pleading had not been amended to reflect the changes made by the Finance Act 2007 to the NRPT. Referring to paragraph 10 of the pleading, the Court commented that this could only mean, when interpreted in the light of the other averments, that each of the appellants had a total income that exceeded 215,000 rupees. The appellants had averred that they were owners of land, but they had not averred that they were owners of “residential property” as expressly defined in the Act, nor that each was in receipt of an annual income exceeding 385,000 rupees. The appellants had failed to show that they had a personal interest in the proceedings and the Constitution did not allow them to bring an action in the Court to litigate a matter of general public interest.

A misunderstanding resolved

24. When this appeal came before the Board it became apparent that there was a misunderstanding on the part of the respondents as to the position of the appellants. By this time payment of the NRPT had, in accordance with its provisions, become due by those liable to pay it. None of the appellants had paid the tax. The respondents appear to have assumed that this was because the appellants considered that they did not fall within the provisions of the tax but Mr Gayan indicated that this was not the position. At the request of counsel the Board granted a short adjournment so that counsel could resolve the matter. On the Board’s return, Mr Baker QC for the respondents said that Mr Gayan had explained that his clients accepted that, if the tax was lawful, they were liable to pay it, together with such penalty as might be due for non-payment. The reason why they had not paid the tax was that they contended that it was unlawful. In the light of this assurance Mr Baker, while submitting that the Supreme Court had correctly decided the issue of locus standi on the ground given by the Court, devoted most of his energies to seeking to support the decision on a different basis.

25. Mr Gayan for his part, while arguing that his clients’ locus standi was adequately averred on the pleadings, once again attacked reliance on locus standi on the ground that it hindered access to justice and was at odds with the more generous approach now adopted in judicial review proceedings in the United Kingdom. Locus standi under section 17(1) of the Constitution 26. Section 17(1) of the Constitution is designed to afford an additional or alternative remedy for someone who contends that one or more of the fundamental rights that he enjoys under Chapter II of the Constitution have been, or are likely to be, infringed. The section provides a personal remedy for personal prejudice. It is not an appropriate vehicle for a general challenge to a legislative provision or an administrative act, brought in the public interest. This is made clear by the phrase “in relation to him” in section 17(1). It has also been repeatedly emphasised by the Supreme Court. In this case the Supreme Court rightly cited Tengur v Ministry of Education and Scientific Research and Another [2002] SCJ 48, [2002] MR 166 as exemplifying, in a tax context, the distinction between a claim under section 17(1) and a claim for judicial review. Mr Gayan’s attempt to rely on principles of locus standi in relation to judicial review was misconceived. The reasoning of the Supreme Court 27. The reasoning of the Supreme Court in this case is as follows. The Plaint had addressed the NRPT in its original form. Paragraph 10, in averring that the appellants fell “within the net and conditions provided for” by the NRPT alleged that the conditions for liability to pay the tax, as laid down by the NRPT in its original form, applied to the plaintiffs. Those conditions had been amended, but the pleading had not. Ex hypothesi paragraph 10 did not aver that the conditions of liability to pay the tax laid down by the NRPT in its amended form were satisfied.

28. The Board appreciates the force of this reasoning, but has on reflection concluded that it is not sound. The Plaint has been treated by the parties as addressing the NRPT in its amended form. Paragraph 10 of the pleading avers that the appellants fall “within the net and conditions” provided for by that tax. While it is arguable that this should be read having regard to the conditions of the tax specified in the pleading, the Board considers that the better approach is to treat paragraph 10 as applying to the conditions provided for by the NRPT as they now are. Thus paragraph 10 should be read as asserting that the land that the appellants own carries residential buildings and that their annual incomes exceed 385,000 rupees. This approach accords with the approach to the appellants’ claim that the parties have adopted. It also avoids striking out the proceedings on a pleading point where there is, in reality, no lack of clarity as to the real issues that divide the parties. For this reason, the Board is not able to uphold the decision of the Supreme Court on the basis of the reason given by the Court.

The alternative argument on locus standi.

29. Mr Baker’s alternative argument appears from this extract from his written case:

“…in principle it may be possible for a taxpayer to show that a particular tax has imposed an excessive burden on him such as to impair his economic viability and to amount to expropriation of property rather than genuine taxation. However, to do so the taxpayer would need to bring details of: his financial situation, the burden of the tax, and its impact on him. Such information might be contained in averments in the original plaint, but such information would be necessary to show in what way the constitutional rights were contravened ‘in relation to him’”.

It was Mr Baker’s case that the appellants, as taxpayers, could not contend that they were personally prejudiced by reason of being required to pay an unlawful tax unless they could demonstrate that the features that made the tax unlawful impacted adversely on them as opposed to others who have to pay this tax.

30. The Board has concluded that this argument is unsound. If a plaintiff attacks one provision of a tax statute on the ground that that provision discriminates unfairly against some of those who have to pay the tax, then it is arguable that the plaintiff must show that he is one of those unfairly prejudiced by the provision in question in order to establish locus standi to bring a claim under section 17(1) of the Constitution. That is not, however, this case. The appellants are making a frontal attack on the whole of the NRPT on a variety of grounds, alleging that it is contrary to the Constitution and consequently null and void. It should not be inferred that the Board has concluded that there is any merit in this attack. That is not a matter with which the Board has been concerned. There is, however, no doubt that if the attack is sound, the appellants are personally prejudiced by being required to pay a tax that is, ex hypothesi, unlawful, even if they are in the same boat as all the others who are being required to pay this tax.

Disposal

31. For these reasons the Board has concluded that the attack on the appellants’ locus standi has not been made out and that this appeal must be allowed. The Board imposes, however, the following conditions that are designed to ensure that the pleadings clearly and unequivocally identify the issues: The appellants shall, within 28 days:

i) amend the Plaint with Summons to plead the provisions of the NRPT in its current form;

ii) provide particulars of the incomes that they contend render them liable to pay NRPT;

iii) provide particulars of the residential buildings, ownership of which they contend renders them liable to pay NRPT.

Subject to compliance with these conditions, this appeal is allowed.

Costs

32. For the reasons that the Board has given, this interlocutory skirmish has not reflected well on either of the parties. The Board has reached the provisional conclusion that a special order for costs is appropriate. Unless either party makes written submissions to the contrary within 28 days, the Board awards the appellants their costs in the cause. This means that if these proceedings are ultimately successful the appellants will get their costs in relation to the plea in limine litis, here and below, but there will be no order for these costs if the appellants’ claim does not ultimately succeed.

Razcoomar Moodoosoodun v The State of Mauritius

[2010] UKPC 17

Privy Council Appeal No 0001 of 2010

JUDGMENT

Razcoomar Moodoosoodun v The State of Mauritius

From the Supreme Court of Mauritius

before

Lord Phillips

Lord Rodger

Lord Walker

Lord Brown

Lord Clarke

JUDGMENT DELIVERED BY

Lord Clarke

on

21 July 2010

Heard on 28 April 2010

Appellant

Gavin Glover

Yanilla Moonshiram

(Instructed by MA Law

(Solicitors) LLP)

Respondent

Satyajit Boolell

Mrs G Green-Jokhoo

(Instructed by Royds LLP)

Judgment delivered by LORD CLARKE

Introduction

1. The application for special leave to appeal to the Judicial Committee of the Privy Council was considered by the Board immediately after the hearing of the appeal in the case of Gangasing Aubeeluck v The State of Mauritius. Although the Petition seeks to advance a number of grounds of appeal, both against conviction and sentence, only one ground was advanced at the hearing. It was essentially the same ground as was advanced in the case of Aubeeluck, in which judgment is given today. The Board therefore refuses leave to appeal on all the other grounds.

Convictions and sentence

2. On 8 January 1999 the appellant was arrested and charged with two offences, which became counts 1 and 2 on the indictment preferred against him. Count 1 alleged that he did criminally, wilfully and knowingly cultivate 125 gandia plants ranging from 25 cms to 1.5 metres in height and 6 gandia seedlings, contrary to section 33 of the Dangerous Drugs Act 1986 (‘the DDA 1986’). It was further alleged that, having regard to the quantity of gandia cultivated, it could reasonably be inferred that he was trafficking in drugs within the meaning of section 38 of the DDA 1986. Count 2 alleged that he was unlawfully and knowingly in possession of 2.1 grams of gandia. Gandia is otherwise known as Cannabis Sativa L.

3. There was considerable delay before the appellant came to trial. He was convicted on both counts, including trafficking on count 1, on 28 December 2006. For the same reasons as in the case of Aubeeluck, under the DDA 1986 and section 11(1) of the Criminal Code, the minimum sentence on count 1 was a fine not exceeding Rs 100,000 and penal servitude of not less than 3 years. The Magistrate sentenced the appellant to a fine of Rs 10,000 and to the minimum term of three years’ penal servitude on count 1. On count 2 the appellant was fined Rs 5,000. Execution of the judgment was stayed pending an appeal.

Appeal to the Supreme Court

4. On 2 October 2009 the appellant’s appeal to the Supreme Court against conviction was dismissed by SB Domah and S Bhaukaurally. So far as the Board can understand it, there was no appeal to the Supreme Court against sentence. On 26 November 2009 the Supreme Court refused leave to appeal to the Privy Council. The matter was subsequently considered by the Judicial Committee, which directed that the matter be dealt with at the same time as or immediately after the appeal in Aubeeluck if there was time.

Appeal to the Privy Council

5. In the event the Board heard argument on the application for leave to appeal against sentence immediately after hearing the appeal against sentence in Aubeeluck. The argument was sufficiently substantial to enable the Board to determine both the application for leave to appeal and the appeal itself.

6. The basis of the appellant’s argument is almost identical to that on behalf of the appellant in Aubeeluck. The Board accordingly adopts both its reasoning and conclusions in Aubeeluck in this case. The issues are the same, as are the relevant provisions of the Constitution of Mauritius and of the DDA 1986 and the Dangerous Drugs Act 2000 (‘the DDA 2000’). Moreover, the Board does not wish to add anything to its discussion in that case of the principles of proportionality, delay and la peine la plus douce.

7. The facts of this case are of course different from those in Aubeeluck. However, for similar reasons to those in that case, the Board concludes that, if proper consideration is given to the fact that the minimum sentence of 3 years has no regard (a) to any mitigating circumstances available to the appellant, (b) to the inordinate delay of some 11 years since the offences were committed and (c) to the fact that the position under the DDA 2000 now would be very different from the position under the DDA 1986, a sentence of 3 years would now be wholly disproportionate both to the offence committed and to the circumstances of the case, at any rate as viewed now.

8. It was submitted on behalf of the appellant that the board should quash the sentence of penal servitude and substitute it with an increased fine. However, essentially for the same reasons as in Aubeeluck, the Board has concluded that the Supreme Court is in a better position than the Board to assess the just sentence. That is in particular so because the Board knows little or nothing about the mitigation which may (or may not) be available to the appellant.

CONCLUSION

9. For these reasons the Board quashes the sentence of 3 years penal servitude and remits the issue to the Supreme Court for decision. Subject to written submissions, which are to be remitted to the Board within 21 days, the respondent is to pay the appellant’s costs of this appeal.

Gangasing Aubeeluck v The State of Mauritius

[2010] UKPC 13

Privy Council Appeal No 0075 of 2009

JUDGMENT

Gangasing Aubeeluck v The State of Mauritius 

From the Supreme Court of Mauritius

before 

Lord Phillips

Lord Rodger

Lord Walker

Lord Brown

Lord Clarke

JUDGMENT DELIVERED BY

Lord Clarke

 ON

21 July 2010

Heard on 28 April 2010

Appellant

Siddhartha Hawoldar

Yanilla Moonshiram

(Instructed by MA Law LLP)

Respondent

Satyajit Boolell DPP

Mrs Sulakshna Beekarry

(Instructed by Royds LLP)

 

LORD CLARKE:

Introduction

1. The principal question raised by this appeal is whether, and in what circumstances, a court is entitled to pass a lesser sentence than the minimum sentence provided by law for the commission of a criminal offence.

The convictions

2.                 On 5 October 2004 the appellant, Gangasing Aubeeluck, was convicted by the Intermediate Court of three offences, all of which were committed as long ago as 15 December 1998. On count one, he was convicted of unlawfully and knowingly having in his possession 2.9 grams of gandia wrapped in ten packets, each in cellophane paper. The Magistrate, B Marie Joseph, in a conspicuously clear judgment, inferred that he was engaged in trafficking in drugs on the basis of these considerations: that he had in his possession ten small packets of gandia; that the gandia was wrapped in a manner which readily lent itself to retail sale; that he was standing at a conspicuous spot at the corner of two streets with no plausible reason to account for his presence there; that when cautioned he readily stated that he ‘pe trace ene la vie’ (which means ‘I am trying to make a living’) and that the money was the proceeds of sale of gandia; and that he also readily confessed to having sold one packet of gandia before he was caught.

3.                 The sale of the one packet of gandia for Rs 100 was the subject of count two. Count three simply alleged that he was smoking gandia. The Magistrate observed that those counts depended upon admissions made by the appellant in the first statement he had made to the police. There had been an issue as to whether the admissions were voluntary and admissible in evidence but the Magistrate had held a voir dire at which she had concluded that they were both voluntary and admissible. She also inferred that he was trafficking in drugs when he sold the packet the subject of count two, essentially for the reasons given above.  

4.                 In short, the Magistrate held that the appellant was guilty of possession of drugs as a trafficker, of selling the single packet of gandia as a trafficker and of smoking gandia and that it followed that all three counts were proved.                            

The sentences

5. On 12 October 2004 the Magistrate sentenced the appellant to a minimum term of penal servitude for three years on counts 1 and 2. She also fined him Rs 15,000 on each of those counts.  She fined him Rs 2,000 on count 3. In addition she ordered him to pay costs of Rs 400 and made some further consequential orders in relation to his assets.    

The appeal to the Supreme Court 

6.                 The appellant appealed against his conviction to the Supreme Court. He advanced a number of discrete points. It was said, among other things, that the Magistrate should have upheld a submission of abuse of process and that she should have ruled the admissions to be involuntary and inadmissible.  In a judgment given on 29 January 2007 the Supreme Court (P Balgobin and AA Caunhye JJ) rejected all the appellant’s grounds of appeal and dismissed his appeal against conviction. The appellant applied to the Supreme Court for leave to appeal to the Privy Council on a number of grounds. At the hearing of the application only two grounds were argued, both of which related to conviction. In a judgment given on 3 March 2009 the Supreme Court (YKJ Yeung Sik Yuen, Chief Justice, and R Mungly Gulbul, Judge) rejected them both.

7.                 Although the original grounds of appeal to the Supreme Court stated that the appellant was appealing against sentence as well as conviction, the only ground upon which he did so was that the sentence ‘is manifestly harsh and excessive’. None of the points which have been advanced before the Board was put before the Supreme Court. The appellant has been on bail throughout.

The grounds of appeal to the Judicial Committee

8.                  In his statement of case before the Board the appellant advanced four grounds, only one of which related to conviction. It was a ground which had failed in the Supreme Court and was abandoned at the hearing of the appeal before the Board. The three grounds which were argued before the Board all related to sentence. None of them had been advanced, either before the Magistrate, or in the Supreme Court. However, the Board granted permission to appeal on 16 July 2009 and it was not contended by the Director of Public Prosecutions (‘the DPP’) that any of the points now relied upon should not be considered by the Board.   

9.                  The issues now raised are these:

i)              whether the delay of 11 years since the commission of the offences infringes the appellant’s right to a fair hearing within a reasonable time under section 10 of the Constitution, such that the court should not now require him to serve a sentence of imprisonment;

ii)           whether, having regard to the provisions of the Dangerous Drugs Act 2000, the application of the principle of ‘la peine la plus douce’ requires that he should not be required to serve such a sentence; and

iii)         whether the sentence of three years imposed by the Magistrate and in effect upheld by the Supreme Court on appeal breaches the principle of proportionality enshrined in section 7 of the Constitution.

10.             It is convenient to consider the proportionality point first but, before doing so, it is appropriate to identify the relevant provisions both of the Constitution and of the Dangerous Drugs Acts 1986 and 2000 (‘the DDA 1986’ and ‘the DDA 2000’)

The Constitution

11. Sections 2, 7 and 10 provide, so far as relevant, as follows:

“2       Constitution is supreme law

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

7      Protection from inhuman treatment

(1)  No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.

 10      Provisions to secure protection of law

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

The DDA 1986 and the DDA 2000

11. The appellant was charged and convicted under the DDA 1986, as amended by Acts 1/92 and 29/94.  On counts one and two, which of course alleged possession and selling, he was convicted of a breach of section 28(1)(a) and (b) of the DDA 1986, as amended, respectively.  Section 28 provided, so far as relevant, as follows:

“28     Unlawful dealing with dangerous drugs

(1)      Subject to section 38, every person who

unlawfully - 

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

…

shall commit an offence and shall on conviction be liable to a fine which shall not exceed 5,000 rupees and to imprisonment for a term which shall not exceed 8 years;

(b)              sells … any drug specified in subsection (2) shall commit an offence and shall on conviction be liable to a fine which shall not exceed 50,000 rupees and to penal servitude for a term which shall not exceed 12 years.

(2)      This section shall apply to

                        …

(b)    … gandia …”

12.             Section 38 provided for trafficking in drugs and by subsection (3) provided, so far as relevant here, that any person tried under section 28 and found to be a trafficker was liable in the case of a first conviction to a fine not exceeding Rs 100,000 “together with penal servitude for a term which shall not exceed 20 years”.

13.             Section 47 of the Interpretation and General Clauses Act provides that where several penalties are provided for an offence, 

“the use of –

(a)              ‘or’ means that the penalties are to be

inflicted alternatively;

(b)              ‘and’ means that the penalties may be inflicted alternatively or cumulatively;

(c)              ‘together with’ means that the penalties are to be inflicted cumulatively.”

Section 11(1) of the Criminal Code provides that the punishment of penal servitude is imposed for life or for a minimum term of 3 years.

14.             It is common ground that the effect of those, somewhat unusual, provisions is that the Magistrate had no alternative but to sentence the appellant to penal servitude for a minimum of three years. The Board was told that, whereas penal servitude was at one time a particularly harsh form of imprisonment, it is now no different from what could be called ordinary imprisonment.

15.             The appellant was charged, convicted and sentenced under the DDA 1986, which had been passed when there was very serious concern about drugs in Mauritius. Although that concern remains, the DDA 1986 was replaced by the DDA 2000, which came into force in September 2001. Section 28(1)(a) of the DDA 1986 was replaced by section 34 of the DDA 2000 which, for possession, provided for a fine not exceeding Rs 50,000 and, in the case of a second or subsequent conviction, for imprisonment for a term not exceeding two years.  

16.             Section 30 provided for a number of drug dealing offences, including selling gandia. The prescribed penalties for selling gandia were originally a fine not exceeding Rs 1 million and a term of penal servitude not exceeding 25 years. The period of 25 years was reduced to 20 years in 2008. Until early 2009 the effect of section 48 was that, where a court convicted a person of an offence under section 30 (among other sections) it was bound to inflict a fine of not less than Rs 10,000 ‘together with’ imprisonment for a term of not less than 12 months. It follows that, if the DDA 2000 had applied to the appellant and he had committed an offence under section 30 while section 48 applied to section 30, the court would have been bound to impose a term of imprisonment of not less than 12 months. The present position is that section 48 does not apply to convictions under section 30, with the result that there is now no minimum sentence in such a case.

17.             The structure of the DDA 2000 is significantly different from that of the DDA 1986. In particular, section 41 is entitled ‘Aggravating circumstances’ and identifies a large number of such circumstances. They include cases where the offender belongs to a criminal organisation or ring, where he participates in other unlawful activities facilitated by commission of the offence, where he uses violence or a weapon in its commission, where another person under the age of 18 years is concerned in the offence; where the drugs delivered cause death or serious injury to health, where the offence was committed in a penal institution or a school or the like, where the offender mixes additional substances with the drugs which aggravate danger to health and where he has previous drug convictions. By section 41(2), in all those cases the offender is liable to double the maximum penalties for the offence.   

18.             By section 41(3), notwithstanding those provisions, any person convicted of an offence under section 30 shall be sentenced to a fine not exceeding 2 million rupees ‘together with’ penal servitude for a term not exceeding 60 years where it is averred and proved that, having regard to all the circumstances of the case, the person was a drug trafficker.  The minimum of three years described above would apply in such a case.  Finally, by section 41(4), without prejudice to the generality of subsection (3), a person shall be deemed to be a drug trafficker where the street value of the drugs, the subject-matter of the offence, exceeds one million rupees or such other value as may be prescribed.

19.             It can be seen that the effect of sections 30 and 41 of the DDA 2000 is to provide a system which is in some ways more draconian and in some ways less draconian than the system in force under the DDA 1986. The Board was informed by the DPP that the approach is now different and that a person like the appellant, who commits a first offence of selling a small amount of gandia would not be accused of drug trafficking under the DDA 2000. It follows that, whatever the position could in theory be under section 41(3) of the DDA 2000, if the appellant had committed the offences of which he was convicted after the DDA 2000 came into force, it would not have been averred that he was a trafficker and he would not therefore have been convicted or sentenced as a trafficker. It follows that he would not have been exposed to a minimum sentence of three years penal servitude. He would have been exposed to a minimum of 12 months imprisonment if the offences had occurred before section 48 ceased to apply to convictions under section 30 in 2009. Now he would not be exposed to any minimum sentence of either imprisonment or penal servitude.        

Proportionality

20.             The appellant’s case is that the effect of section 7 of the Constitution is that a statute which has the effect that the application of a minimum sentence would be wholly disproportionate and, as such, contrary to section 7 of the Constitution, in a particular case, must be disapplied. It is further said that the effect of the statutory provisions which required the Magistrate to sentence the appellant to a minimum period of three years penal servitude is wholly disproportionate, that they should be disapplied and that the sentence of three years penal servitude should be set aside.

21.             A literal reading of section 7 of the Constitution does not immediately suggest that that is the correct approach to it.  The prohibition against subjection “to torture or to inhuman or degrading punishment or other such treatment” might be read to refer to something much more severe than the three years penal servitude in the present case. However, the DPP accepts, in their Lordships’ opinion correctly, that the effect of section 7 is to outlaw wholly disproportionate penalties. Moreover, the Board has been referred to a number of cases, both in Mauritius and elsewhere, which support that approach.

22.             The most recent such case is the decision of the Supreme Court of Mauritius in Bhinkah v The State 2009 SCJ 102, where the appellant pleaded guilty to two counts of larceny, on one of which, because he was one of two offenders and was wearing a mask, the minimum sentence was five years penal servitude under section 301A of the Criminal Code.  He was sentenced by the Magistrate to that minimum sentence.  The issue before the Supreme Court was whether such a sentence would be disproportionate to the seriousness of the offence, so as to be excessive and inhuman contrary to section 7 of the Constitution.  

23.             The Supreme Court directed itself by reference to a number of cases in the Supreme Court, namely: Pandoo v The State 2006 MR 323, Gunputh v The State 2007 SCJ 128, Philibert v The State 2007 SCJ 274, Madhub v Director of Public Prosecutions 2007 SCJ 282 and Noshib v The State 2009 SCJ 6.  The cases show that the principle of proportionality has been applied in a wide range of cases, from the very serious to the much less serious.                

24.             In Pandoo the Supreme Court held that section 7 of the Constitution incorporates the principle that the sentence must be proportionate to the seriousness of the offence. Pandoo was itself a case in which the defendant had pleaded guilty to a charge of wilfully and unlawfully failing to pay tax. The minimum fine was Rs 200,000, whereas the tax was said to be Rs 35,600. It was accepted on behalf of the defendant that a provision that provided for a sentence of treble the amount of the tax was unexceptionable. The Supreme Court held that a minimum fine of Rs 200,000 for wilfully failing to pay what might be a few cents tax on the sale of a matchbox was disproportionate. The Court declared the minimum sentence of Rs 200,000 to be unconstitutional, at any rate as applied to the facts of the case before it, and substituted a sentence of treble the tax, namely Rs 106,800.

25.             In Gunputh the Supreme Court applied the same principles but held that minimum sentences for driving with excess alcohol were not disproportionate or unconstitutional.   

26.             In Noshib the defendant had pleaded guilty to one count of possession of 0.51 gram of cannabis in a cellophane packet and to one count of unlawfully and knowingly making a false statement in connection with a drugs offence, namely that he gave a statement to the police that he had purchased cannabis from a named person on two occasions but subsequently gave a further statement exculpating the named person and stating that he had bought the drugs from an unknown man.  He was fined Rs 10,000 on the first count but was sentenced to a fine of Rs 10,000 and to 2 years imprisonment on the second count.  The sentence of 2 years was the minimum period under section 42(1)(a) and (4) of the DDA 2000. The Supreme Court applied the principles in Pandoo and Madhub but rejected the submission that such a minimum sentence was disproportionate.  In doing so, it drew attention to the seriousness of drug offences in Mauritius.        

27.             In Philibert, where the principles were discussed in some detail, the Supreme Court said that, while it would not be prepared to say that a mandatory sentence would necessarily infringe the principle of the separation of powers between the judiciary and the legislature, a particular mandatory sentence might be held to be disproportionate. It held that section 221 of the Criminal Code and section 41(3) of the DDA 2000, as enacted prior to amendment by Act 6/07, provided for a mandatory sentence which was disproportionate and contrary to section 7 of the Constitution. The minimum sentence was 45 years penal servitude in all cases. The Court held that the provisions were unconstitutional only to that extent and that they should be read down so as to provide for a maximum sentence of 45 years. 

28.             The Board notes in passing that in Joosub v The State 2008 SCJ 318 the Supreme Court applied a similar approach to the mandatory sentence of 30 years penal servitude imposed upon a person convicted of unlawful possession of heroin as a trafficker under sections 28(1)(a) and 38 of the DDA 1986. The offence was committed shortly before the DDA 1986 was repealed in 2001. The Court held that section 38(3)(b) of the DDA 1986 should be read down to mean that the 30 years penal servitude should be the maximum sentence for the offence. The case was remitted to the Intermediate Court for a hearing on sentence. 

29.             In Madhub the Supreme Court considered the minimum mandatory penalty of 12 months imprisonment for possession of a firearm without a licence under section 24(1)(a) of the Firearms Act and held that, in so far as it provided for a minimum penalty, it fell foul of the requirement of proportionality imposed by section 7 of the Constitution.  The Court held that, having regard to the fact that the appellant had a clean record and that no shot was fired, the minimum mandatory sentence of 12 months should be read down and should be replaced in that case by one of 6 months imprisonment.                          

30.             In Bhinkah the Supreme Court also referred to the decision of the Board in Reyes v The Queen [2002] UKPC 11; [2002] 2 AC 235 and to that of the Eastern Caribbean Court of Appeal in Spence v The Queen; Hughes v The Queen, unreported, 2 April 2001. Reyes was concerned with the mandatory death penalty and so was a case of a quite different order from this.  Similar principles were, however, applied. The judgment of the Board in Reyes was given by Lord Bingham of Cornhill. In considering section 7 of the Constitution of Belize (which is in very similar terms to section 7 of the Constitution of Mauritius), Lord Bingham observed at para 29 et seq that similar expressions are also used in many other human rights’ instruments, as for example ‘cruel and unusual treatment or punishment’ in the Canadian Charter and the Constitution of Trinidad and Tobago and ‘cruel and unusual punishments’ in the eighth amendment to the United States Constitution.

31.             Lord Bingham noted at para 30 that, despite the semantic differences between the various expressions, it seemed clear that the essential thrust of them was the same.  In that regard he quoted a passage from the judgment of Lamer J in R v Smith (Edward Dewey) [1987] 1 SCR 1045 at 1072, which concluded in this way:

“In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.”

32.             At para 37 Lord Bingham said that the need for proportionality and individual sentencing is not confined to capital cases. He again referred to Smith (Edward Dewey), which concerned the compatibility with section 12 of the Canadian Charter of a statute imposing a minimum sentence of 7 years imprisonment on conviction for importing any narcotic into Canada.  The Supreme Court of Canada recognised that in some cases seven years for such an offence would be appropriate but held the provision to be incompatible with section 12 because it would in some cases be grossly disproportionate to the gravity of the offence.  Lord Bingham then quoted this ‘pithily put’ sentence from Lamer J’s judgment at page 1073:

“This does not mean that the judge or the legislator can no longer consider general deterrence or other penological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not be grossly disproportionate to what the offender deserves.”

As the Board sees it, that is the principle which the Supreme Court has correctly applied in the cases referred to in Bhinkah. 

33.             The Supreme Court in Bhinkah also referred to the decision of the High Court of Namibia in State v Vries [1997] 4 LRC 1, which contains a detailed analysis of the problem of mandatory sentences.  The accused was convicted of the theft of a goat.  He had a previous conviction for theft of a sheep in 1969.  In the Magistrates’ Court he was sentenced to a wholly suspended period of 18 months imprisonment.  On review attention was drawn to section 14(1)(b) of the Stock Theft Act 1990, which provided for a minimum mandatory sentence of 3 years imprisonment for a second or subsequent offence of stock theft.  Attention was also drawn to section 14(2), which provided that such a sentence could not be suspended, either in whole or in part.  The Court applied very similar principles.  It concluded that a sentence of 3 years would be grossly disproportionate, that section 14(1)(b) (but not section 14(2)) should be read down and that a sentence of six months would be appropriate on the facts of the case.  

34.             After referring to Philibert, the Supreme Court in Bhinkah summarised the position thus:

“The minimum penalty would be considered disproportionate in cases wherein ‘the imposition of a mandatory minimum sentence would be startlingly or disturbingly inappropriate with respect to hypothetical cases which could be foreseen as likely to arise commonly’ (Miller and Cockriell v R [1977] 2 SCR 680 per Laskin CJ) and ‘where the minimum sentence would be disproportionate in relation to the degree of seriousness of the offence, with no exceptional circumstances available to the court to weigh down the scale (Madhub).

Applying these principles to the present case, we find that the minimum 5 year penalty under section 301A of the Criminal code is not disproportionate in itself but would be so, if indiscriminately applied without taking into account factors which would mitigate the seriousness of the offence for which the legislature regarded it important to impose a minimum ceiling.  It would not be appropriate in all the foreseeable hypothetical cases likely to arise, where the minimum 5 year mandatory sentence would prove to be ‘so excessive as to outrage standards of decency’; (Miller and Cockriell v R per Laskin CJ).

35.             The Court substituted a sentence of three years penal servitude.  In doing so it noted that in the Judicial Provisions Act 2008 the legislature, in what the Court called its “enhanced wisdom”, had removed the 5 year minimum but had increased the maximum sentence to 30 years imprisonment.

36.             In the instant case the DPP submitted that the Board should not strike down the statutory provisions which provided for a minimum period of penal servitude of three years.  He accepted that, as explained in Vries, there may be cases in which it would be appropriate for the Supreme Court or the Board to declare that a provision was of no force or effect for all purposes or to declare it to be of force and effect in particular classes of case and to read it down accordingly.  However, he submitted that neither approach would be appropriate here.  He submitted that, if the Board concluded that the minimum sentence was grossly disproportionate on the facts of this case, the appropriate course would simply be to hold that such a sentence was not (or would not now be) compatible with section 7 of the Constitution, to quash the sentence and to remit it to the Supreme Court for consideration of an appropriate sentence in all the circumstances of the case.

37.             The Board accepts those submissions. The first course would plainly be inappropriate.  There is a case for taking the second course. However, the Board has concluded that much the best course is the third. It notes in passing that, if the point had been taken before the Intermediate Court at the time of sentence, the proper course would have been for the Magistrate to remit the question to the Supreme Court under section 84 of the Constitution. The question for remission would have been whether the minimum sentence provisions should be disapplied on the ground that they were wholly disproportionate because not to disapply them would be to deprive the appellant of his rights under section 7 of the Constitution.

38.             The Board has concluded that a sentence of three years imprisonment would be wholly disproportionate to the offences committed by the appellant.  Although convicted as a drug trafficker, he was dealing in a small way in small quantities of gandia (ie cannabis).  He was a person of good character and it is noteworthy that he would not now be charged as a trafficker under the DDA 2000.  Having full regard to the fact that the legislature regarded trafficking in drugs, including gandia, as a serious matter, the Board has nevertheless concluded that to disregard all mitigation, including the fact that these were first offences by the appellant, and to impose a minimum sentence of 3 years penal servitude would be grossly disproportionate.

39.             Subject to its comments on delay below, the Board expresses no view upon what an appropriate sentence would be. The sentencing court will no doubt wish to have regard to the present position. That of course includes a consideration both of the current approach to sentencing for drug offences and of up to date information about the appellant, none of which is available to the Board. It will of course be a matter for the Supreme Court whether it sentences the appellant itself or remits it to the Intermediate Court, assuming that it has power to do so.

Delay

40.             It was submitted on behalf of the appellant that the delay in this case infringes his right under section 10 of the Constitution to a fair hearing within a reasonable time.  There have indeed been very considerable delays in this case.  He was arrested in December 1998 and tried and sentenced in 2004. Since then it has taken an inordinate time for his appeal, first to the Supreme Court and then to the Judicial Committee to be concluded.  It is true that a good deal of that delay was caused by his own lawyers.  However that may be, the fact remains that, given the conclusion of the Board that the minimum sentence of 3 years imposed on the appellant must be set aside, he only now finally falls to be sentenced for events which took place over 11 years ago.

41.             The correct approach to delay has been considered by the Board in a number of cases in recent years, since regrettably delay seems all too common in the system.  The relevant principles were considered in Dyer v Watson [2002] UKPC D1, [2004] 1 AC 379, 403-3, Prakash Boolell v The State of Mauritius [2006] UKPC 46 and Haroon Rashid Elaheebocus v The State of Mauritius [2009] UKPC 7.  

42.             There is no necessity to repeat the principles here. It is sufficient to refer to two passages in the judgment of the Board given by Lord Brown in Elaheebocus at paras 18 and 20:

“18. If one asks the fundamental question, does the period which elapsed here between the appellant’s arrest in April 1997 and the dismissal of his appeal to the Supreme Court on 20 January 2006 give ground for real concern as to whether this case has been heard and completed within a reasonable time,

there can surely be only one answer: yes.  Thus it is necessary for the respondent state to explain and justify what appears overall to be an excessive lapse of time.  As Boolell makes clear, the Board is concerned particularly with, first, the complexity of the case, secondly, the conduct of the defendant, and thirdly, the manner in which the case has been dealt with by the state’s administrative and judicial authorities.  As already stated, this case involved absolutely no complexity; it was about as straightforward as any serious conspiracy can be.  As for the conduct of the defendant, whilst it is plain that the appellant was entirely content for those proceedings to take their own leisurely course from beginning to end, there was no question of his engaging in the sort of reprehensible conduct which the Board found had contributed so largely to the even longer lapses of time in Boolell’s case. There, as the Board observed at para 37, “the appellant was bent on dislocating the course of the trial and prolonging the proceedings by every means within his power”.

20. Overall their Lordships feel driven to conclude that the judicial authorities here cannot sensibly be regarded as having honoured the reasonable time guarantee provided for by section 10 of the Constitution. True, the appellant was wholly complaisant in every successive delay which occurred: never once does he appear to have sought to hasten matters, for example by enquiring when he might finally expect to hear the result of his appeal.  He was, of course, on bail at all times since 17 June 1998 and he seems to have been entirely content to postpone the final day of judgment, about which he can hardly have been optimistic.  That, however, can provide no answer to the constitutional challenge. If it was no answer in Boolell (where the Board found “the conduct of the defendant was altogether reprehensible and contributed very largely to the lapse of time”), it certainly provides none here. It is to be acknowledged that the delay in Boolell was significantly longer even than in the present case – 12 years elapsed between Boolell’s statements to

the police under caution and his conviction by the Intermediate Court (his subsequent appeal to the Supreme Court being dismissed just 14 months later). It was, indeed, that quite extraordinary delay which impelled the finding there of a constitutional breach notwithstanding earlier authority that the defendant cannot ordinarily complain of delay of which he himself was the author.  Again, however, the yet longer delay in Boolell’s case obviously cannot serve to justify the passage of nearly nine years between this appellant’s arrest and the dismissal of his appeal against conviction.”

43.             Those comments apply to this case in much the same way. Without analysing each period of delay, it can readily be seen that there has been inordinate delay amounting, in the opinion of the Board, to an infringement of the appellant’s rights under section 10 of the Constitution.

44.             It was submitted on behalf of the appellant that, by way of redress for that infringement, the court should not now require him to serve a sentence of imprisonment.  In Boolell, as Lord Brown noted at para 21 of Elaheebocus, the Board thought it 

“[un]acceptable that the prison sentence imposed by the Intermediate Court should be put into operation some 15 years after the commission of the offence unless the public interest affirmatively required a custodial sentence, even at this stage.”

The Board in Boolell set aside the sentence of six months imprisonment and substituted for it a fine of Rs 10,000.  By contrast, in Elaheebocus the Board took the view that the appellant’s criminality was very much greater than in Boolell and reduced the original sentence of 4 years by 6 months.

45.             All therefore depends upon the circumstances. Having concluded that the correct approach on the proportionality issue is to quash the sentence of three years penal servitude and remit the matter of sentence to the Supreme Court, the Board thinks that the appropriate course is to remit this question too to the Supreme Court, which, when deciding what is the proper sentence must take account of the inordinate delay in the case.  It may well conclude that it is not necessary that the appellant should now serve a custodial sentence, but it is in a better position than the Board to decide what is the just course.

La peine la plus douce

46.             It was submitted on behalf of the appellant that, having regard to the provisions of the DDA 2000, the application of the principle of ‘la peine la plus douce’ requires that he should not now be required to serve a sentence of imprisonment because he would not be required to do so under that Act.  

47.             As stated above, the Board was told that the appellant would not now be charged with trafficking. It follows that he would not in practice be faced with the draconian sentences for trafficking under the DDA 2000. As indicated earlier, if he were now charged with an offence under section 30 of the DDA 2000, there would be no minimum sentence. However, the Board is not well placed to decide whether the appellant would be sentenced to a period of imprisonment if he were now convicted under section 30. It did not find the statistics with which it was provided entirely easy to follow. Given that the matter is to be remitted to the Supreme Court as explained above, the Board again thinks that this is a matter which is best decided by the sentencing court. Just as that court must have regard to the delay point, so it must have regard to the present approach to sentencing in Mauritius. 

CONCLUSION

48. The appeal is allowed to the extent that the sentence of 3 years penal servitude is quashed. The question of sentence is remitted to the Supreme Court. Subject to written submissions, which are to be delivered within 21 days, the respondent is to pay the appellant’s costs of this appeal.