Wong v The Queen

Pierre Simon André Sip Heng Wong Ng (alias Wong) and Another

Appellants

v.

The Queen

Respondent

Appeals from the Supreme Court of Mauritius

Composition of the Board:

Lord Keith of Kinkel

Lord Brandon of Oakbrook

Lord Griffiths

Sir Robert Megarry

Sir Duncan McMullin

Counsels

For the Appellant

Clive Nicholls Q.C.

Guy Ollivry

Kuldip Singh

For the Respondent

Doorgesh Ramsewak (Solicitor General)

Solicitors

For the Appellant: Bernard Sheridan & Co.

For the Respondent: Charles Russell & Co.

Judgment delivered on the 20th July 1987

by Lord Griffiths

Cur. adv. vult.

______________________________________________________________

(1) Constitutional law - Fundamental principle of justice - Right to a fair trial- Replacement of magistrates during hearing - Magistrate convicting defendants without hearing evidence and submissions - Whether infringement of defendants' right to fair hearing - Procedure - Justice must be seen to be done - Fundemental function of a judge

(2) Constitutional litigation - Conformity of an Act of Parliament with the Constitution subject to the construction of the Act by the Board - Indirect control of legislation

___________

Cases referred to in judgment

Fulker v. Fulker [1936] 3 All E.R. 636

Joseph v. Joseph [1948] L.J.R. 513

Lewis v. Lewis (1928) 92 J.P. 88

Re Guerin (1888) 58 L.J.M.C. 42

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

Regina v. Manchester Justices, Ex parte Burke (1961) 125 J.P. 387

Samuels v. Smithson (1939) 3 J.L.R. 151

Syea v. The Queen [1968] M.R. 100

Legislations referred to in judgment

Constitution of Mauritius, section 10

Courts Act 1945, sections 85, 124

The following judgment was delivered by the Board:

The defendants appeal with the leave of the Supreme Court of Mauritius from the judgment of the Supreme Court (Appellate Division) dated 24th June 1985 dismissing their appeals against their convictions by the magistrates in the Intermediate Court on 15th October 1984. At the conclusion of the hearing their Lordships indicated that they would humbly advise Her Majesty that the appeals ought to be allowed and the convictions quashed, and that they would give their reasons later. This they now do.

The defendant were tried with two co-defendants. The first defendant was charged with stealing a large quantity of clothing from his employers. The second defendant and the co-defendants were charged with being in possession of this stolen property. The prosecution case was that the first defendant arranged for the clothing to be stolen from the custody of his employers who were holding the clothing to the order of the owner. An accomplice called by the prosecution (Quirin) transported the goods and stored them in his garage. The defendants and one of the co-defendants there counted and sorted the clothing. They then took a sample of the stolen clothing to the second of the co-defendants who was a shopkeeper. He agreed to buy all the goods. All the defendants were convicted. The first defendant was sentenced to two years' imprisonment with hard labour and the second defendant and the two co-defendants to one year's imprisonment with hard labour.

The case was first referred to the Intermediate Court on 18th December 1981 but it was not until a year later that the court began to hear the evidence of the prosecution on 8th December 1982. On that date the two magistrates were S. Moosun and A. Prasad. The same two magistrates continued to hear the prosecution evidence on 26th April, 17th June, 4th August and 27th September 1983, when the prosecution closed their case.

On 12th and 17th October 1983 the same magistrates heard submissions of no case to answer made on behalf of the defendants and the two co-defendants. The magistrates reserved judgment on the submissions.

On 13th March 1984, a short interlocutory judgment rejecting the submissions of no case to answer was delivered by a differently constituted court consisting of Mrs. V. Narayen and A. Prasad. Mrs. V. Narayen had of course heard none of the evidence.

The next effective hearing was on 17th April 1984. On this occasion the magistrates were again Mrs. V. Narayen and A. Prasad. Evidence was called on behalf of one of the co-defendants, and closing speeches were made on behalf of the defendants and the co-defendants.

On 15th October 1984 the magistrates gave judgment and convicted the defendants and their co-defendants. The magistrates sitting on this occasion were Mrs. P. Balgobin and A. Prasad. The judgment was read by Mrs. P. Balgobin. Thus it will be seen that of the two magistrates who convicted the defendants one had heard none of the evidence and none of the submissions. Furthermore, one of the magistrates who was party to the interlocutory judgment holding that there was a case to answer had likewise heard none of the evidence nor any of the submissions on that issue.

The defendants, having convicted by a magistrate who had heard none of the evidence in the case nor any of the submissions made on their behalf, complained that they had been denied the fair hearing of their cases guaranteed to them by section 10(1) of the Mauritius Constitution. This provides:

"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."

Their Lordships consider the defendant's complaint to be unanswerable. It should be said at once that the Solicitor-General very properly did not seek to uphold their convictions. The Courts Act 1945, as amended, provides that proceedings before the Intermediate Court shall be heard and determined by not less that two nor more than three magistrates and that where the court is composed of two magistrates the decision must be unanimous: see section 85. In a criminal trial, whether before a jury or before magistrates, it is a fundamental requirement of justice that those called upon to deliver the verdict must have heard all the evidence. The evaluation of oral evidence depends not only upon what is said but how it is said. Evidence that may ultimately read well in a transcript may have carried no conviction at all when it was being given. Those charged with returning a verdict in a criminal case have the duty cast upon them to assess and determine the reliability and veracity of the witnesses who give oral evidence, and it is upon this assessment that their verdict will ultimately depend. If they have not had the opportunity to carry out this vital part of their function as judges of the facts, they are disqualified from returning a verdict, and any verdict they purport to return must be quashed. There are many authorities to this effect: see Lewis v. Lewis (1928) 92 J.P. 88; Samuels v. Smithson (1939) 3 J.L.R. 151; Fulker v. Fulker [1936] 3 All E.R. 636; Joseph v. Joseph [1948] L.J.R. 513 (which, said Lord Merriman P., at p. 514, was "a case for plain speaking"); and see Regina v. Manchester Justices, Ex parte Burke (1961) 125 J.P. 387, a case of mere suspicion, and justice not being seen to be done. As was said by Sir John T. Coleridge in delivering the judgment of this Board in Regina v. Bertrand (1867) L.R. 1 P.C. 520, 535, (a jury case), a note of this evidence is, or may be, "the dead body of the evidence, without its spirit; which is supplied, when given openly and orally, by the ear and eye of those who receive it;" and this was subsequently applied to a magistrate's case by Wills J. In re Guerin (1888) 58 L.J.M.C. 42, 45.

The Court of Appeal dealt with the defendants' submissions shortly. They said:

"This case started in February 1982 and ended over two years later in October 1984, during which time certain changes took place in the composition of the Intermediate Court. Although it is a matter of regret that the two magistrates who heard most of the evidence could not deliver the final judgment, yet at least one was present throughout. Mrs. Balgobin who stepped in at the last minute was in presence of the whole of the evidence and of counsel's submissions and could properly pass judgment, taking into account and making necessary allowances for the fact that she had not seen or heard the witnesses."

Their Lordships understand that the reference to Mrs. Balgobin being "in presence of the whole of the evidence and of counsel's submissions" to be a reference to the fact that she would have access to another magistrate's note of evidence and submissions.

Although the Court of Appeal did not refer to it in their judgment, their Lordships assume that they were following the previous decision of the Supreme Court of Mauritius in Syea v. The Queen [1968] M.R. 100. In that case the appellants were prosecuted, some for making use of forged commercial writings, and one for unlawful possession of articles obtained by means of crime. Of the three magistrates who finally gave judgment in the case, only one had actually heard and seen the witnesses. The court nevertheless held that the power of magistrates enabled those magistrates who had actually heard and seen the witnesses to return a verdict. In the Intermediate Court this power is contained in section 124 of the Courts Act 1945 which provides:

"(1) Where any magistrate is by reason of illness or challenge or for any other reason incapable of acting, the Chief Justice may direct another magistrate to replace him.

(2) Any magistrate so directed may take, follow up and determine any case, cause or proceeding begun before the Intermediate Court."

This section cannot bear the construction placed upon it by the Court of Appeal, for to do so would conflict with the right to a fair trial provided by section 10(1) of the Constitution. If, after part of the evidence has been heard in a trial in which the accused pleads not guilty, it becomes necessary to replace a magistrate, there is no alternative but to recommence the trial and recall the evidence so that all the magistrates hear all the evidence and the submissions made on behalf of the accused. Syea v. The Queen [1968] M.R. 100 was wrongly decided and should not be followed.

Whether or not justice was done in the present case it was certainly not seen to be done.

Both defendants are entitled to their costs of their appeal before their Lordships' Board.

*

* *

Jaswant Vithaldas v The Queen

Jaswant Vithaldas

Appellant

v.

The Queen

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Bridge of Harwich

Lord Elwyn-Jones

Lord Templeman

Lord Oliver of Aylmerton

Lord Goff of Chieveley

Counsels

For the Appellant

A. Suckling Q.C.

Madun Gujadhur Q.C.

For the Respondent

Mark Stratchan

Solicitors

For the Appellant: B. M. Birnberg & Co.

For the Respondent: Charles Russell & Co.

Judgment delivered on the 23rd April 1987

by Lord Goff of Chieveley

Cur. adv. vult.

______________________________________________________________

Criminal law - Intention to endanger life - No substance in the appeal to the Privy Council

___________

Legislation referred to in judgment

Firearms Act 1940, section 19

The following judgment was delivered by the Board:

There is before their Lordships an appeal by the appellant, Jaswant Vithaldas against a decision of the Supreme Court of Mauritius, who dismissed an appeal from his conviction by the Intermediate Court of Mauritius on a charge of being in possession of a firearm with intent to endanger life, contrary to section 19 of the Firearms Act 1940.

The appellant worked as a jeweller in his father's jewellery business at Port-Louis, Mauritius. The complainant, Dhanraj Gangadin, was an employee of that business. On 9th May 1983, an altercation arose between the complainant, on the one hand, and the appellant and his father, on the other. Evidence was given by the complainant to the Magistrates of the Intermediate Court as to what occurred, as follows. He was working in the workshop, when the appellant's father questioned him about some gold filings which had been found in the drawer of his work table. The complainant said that he did not know how they came to be in the drawer. The appellant and his father then beat the complainant with wooden bars. A struggle ensued, and the complainant them left; and as he was leaving, he was shot from behind. He was injured in the legs, and fell down. The appellant then went up to him, and pointed a gun at him; but when he saw that the complainant was injured, he went back into the house. The complainant had been injured in both legs. The bullet had passed through the calf of his left leg and had fractured the tibia of his right leg.

Neither the appellant nor his father gave evidence before the Intermediate Court. In a statement made to the police on the day of the incident, the appellant stated that, when the complainant was asked to explain the presence of the gold filings in the drawer, he attacked the appellant and his father with a "grattoir". The appellant then struck the complainant on the hand with a wooden bar to make him drop the grattoir; but the wooden bar them fell to the ground, and the complainant then continued to assault the appellant and his father. So the appellant, in order to defend himself and his father, went into the house and found his revolver and loaded it. He came out into the yard. The complainant was coming towards him; and, in order to scare him, the appellant fired one bullet at the complainant's feet.

However, as their Lordships have already recorded, the appellant gave no evidence before the Court. The Magistrates in the Intermediate Court accepted the evidence of the complainant, and rejected the account given by the appellant in his statement to the police. They convicted the appellant of the offence of being in possession of a firearm to endanger life. With regard to the requisite intention, the Magistrates stated:-

"We consider that in the present case [the appellant] who, following a dispute whereby he accused the declarant of stealing gold filings, had hit the declarant with a wooden bar and gone inside the house to load his gun and come back and fired at him, injuring him, had the requisite intention".

They added:-

"To go further, (the appellant) cannot be said not to have intended the natural consequences of his act and not to have foreseen it when he fired the gun in the direction of declarant who was leaving with his back turned to (the appellant) injuring him".

The appellant then appealed to the Supreme Court against his conviction. On the appeal, it was submitted on his behalf that the Magistrates ought to have found that he acted in self-defence or at least under provocation, and it was further submitted that the evidence did not establish the offence of being in possession of a firearm with intent to endanger life. The Supreme Court dismissed the appeal. With regard to the latter submission, they said:-

"We ought to observe that the offence charged against the appellant was of a kind which is committed where the element of intention is present, though that intention has not been implemented. Additionally, however, this was a case of actual shooting and the Magistrates were quite justified in considering the deliberate implementation of the intention as further evidence of the intention. We are unable in the circumstances to say that the element of intention was lacking. As far as endangering life is concerned, the concept is clearly much wider than mere intention to kill. Pointing a revolver in the direction of a person, irrespective of the part of the anatomy aimed at, and firing it cannot be said not to amount to an intention to endanger life, account being taken, as in this case, of the distance from which the revolver was fired and the movements of the person shooting and of his target."

The appellant now appeals against that decision, with the leave of the Supreme Court.

Before their Lordships, it was submitted on behalf of the appellant that the Magistrates misdirected themselves on the question of intent, in that they adopted an objective as opposed to a subjective test; and that the Supreme Court erred in not allowing the appeal before them on that ground. Their Lordships are unable to accept this submission. As they read the judgment of the Intermediate Court, it was to the effect that the appellant had the requisite intention; in other words they in fact applied a subjective test. Of course, as the appellant elected not to give evidence, they had no direct evidence from him as to his actual intention during the period when he was in possession of the revolver after taking it from his house, or in particular when he fired it in the direction of the complainant. Accordingly, their finding as to his intention could only have been made as matter of inference from the evidence before them. From that they inferred that he had in fact the requisite intention, i.e. the intention to endanger life. That finding was certainly open to them on the evidence before them. What they added thereafter did not, in their Lordships' opinion, in any way detract from that conclusion.

In these circumstances, the Supreme Court was, in the opinion of their Lordships, fully justified in dismissing the appellant's appeal. It is plain from what they said that, in their opinion, it was an irresistible inference from the facts of the case that, having regard to the distance from which the revolver was fired, the movements of the appellant and the movements of the complainant, the appellant had indeed the intention to endanger life. Their Lordships do not consider that, in so holding, the Supreme Court were applying an objective test: on the contrary, they were considering, as a matter of inference from the evidence before the Magistrates, the appellant having given no evidence, what his intention must in fact have been.

For these reasons, their Lordships consider that there is not substance in the appeal. They will therefore humbly advise Her Majesty that the appeal should be dismissed.

*

* *