Sattar Buxoo v The Queen

Sattar Buxoo and Another

Appellants

v.

The Queen

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Keith of Kinkel

Lord Brandon of Oakbrook

Lord Griffiths

Judgment delivered on the 19th May 1988

by Lord Keith of Kinkel

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(1) Constitutional law - Power of Mauritius Parliament to legislate on Privy Council jurisdiction

(2) Criminal law - Privy Council jurisdiction in criminal matters - Not a court of fact - Important point of law has to be raised in appeal

(3) Mauritian law - Interpretation of Act of Parliament - French tradition - Travaux préparatoires

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Cases referred to in judgment

Attorney-General of Hong Kong v. Sham Chuen [1986] A.C. 887

Attorney-General of Hong Kong v. Tse Hung Lit [1986] A.C. 876

Attorney-General of Hong Kong v. Wong Muk Ping [1987] A.C. 501

Badry v. Director of Public Prosecutions [1983] 2 A.C. 297

Ex parte Deeming [1892] A.C. 422

Holder v. The Queen [1980] A.C. 115

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

Oteri v. The Queen [1976] 1 W.L.R. 1272

Re Dillet (1887) 12 App.Cas. 459

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

Reil v. The Queen (1885) 10 App.Cas. 675

Legislations referred to in judgment

Constitution of Mauritius, section 81

Courts (Amendment) Act 1980, section 7

Courts Act 1945, section 70A

Criminal Code, section 228

Other authorities referred to in judgment

Fourth Legislative Assembly Debates, Fourth Session, 26 June 1980, Col. 3298

Privy Council Practice Direction by Viscount Dunedin [1932] 48 T.L.R. 300

The following judgment was delivered by the Board:

On the 5th December 1985 the appellants were convicted by the Intermediate Court of Mauritius on a charge of having wilfully and criminally inflicted wounds and blows upon one Fockeena which incapacitated him from personal labour for more than 20 days, contrary to section 228(1) of the Criminal Code. They were each sentenced to 18 months imprisonment with hard labour. An appeal to the Supreme Court of Mauritius was dismissed on 18th August 1986. The appellants now appeal to Her Majesty in Council under section 70A of the Courts Act. That section, which was added to the Act by section 7 of the Courts (Amendment) Act 1980, provides :-

"(1) Notwithstanding any other enactment an appeal shall lie from decisions of the Supreme Court or the Court of Criminal Appeal to Her Majesty in Council as of right in all criminal cases."

It is to be observed that section 81(1) of the Constitution of Mauritius, dealing with appeals as of right to Her Majesty in Council from decisions of the Court of Appeal or the Supreme Court, specifies in paragraphs (a), (b) and(c) certain categories of cases in which such appeal is to lie. The final paragraph, (d), adds "in such other cases as may be prescribed by Parliament".

At the outset of his argument counsel for the appellants raised a question as to the scope of the appeal to Her Majesty in Council in criminal cases now available as of right by virtue of section 70A of the Courts Act. Until that enactment no appeal from any court in any jurisdiction lay to Her Majesty in Council as of right in criminal cases. Such an appeal might be presented only with special leave granted by Her Majesty on the advice of the Board, and that is still the position in respect of all the other courts appeals from which Her Majesty in Council has jurisdiction to entertain. (See Oteri v. The Queen [1976] 1 W.L.R. 1272 and Holder v. The Queen [1980] A.C. 115). Special leave is traditionally granted only in exceptional circumstances, where the Board find room for the view that a really serious miscarriage of justice may have occurred. The question which arises is whether a similar principle is to be applied in the disposal of appeals as of right under section 70A of the Mauritius Courts Act, or whether the Board is to consider on a broad basis whether the conviction appealed against is bad by reason of misdirection or wrongful admission or rejection of evidence, or is unsafe or unsatisfactory in the light of the evidence led.

In the first appeal coming before the Board under section 70A, Badry v. Director of Public Prosecutions [1983] 2 A.C. 297, the traditional principle was held to apply. Lord Hailsham of St. Marylebone L.C. said at p. 302-303:-

"... since this appeal may be the first to be heard under the legislation (Courts (Amendment) Act 1980, section 7) extending the right of appeal to the Judicial Committee in appeals from Mauritius, their Lordships feel it right to reiterate the general principles on which they will continue to feel bound to tender their advice in criminal matters.

The locus classicus in which these principles are stated are the passages in the opinion of the Board given by Lord Sumner in Ibrahim v. The King [1914] A.C. 599, 614-615, where he said:

"Their Lordships' practice has been repeatedly defined. Leave to appeal is not granted 'except where some clear departure from the requirements of justice' exists: Reil v. The Queen (1885) 10 App.Cas. 675, 677: nor unless 'by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done': In re Dillet (1887) 12 App.Cas. 459, 467. It is true that these are cases of applications for special leave to appeal, but the Board has repeatedly treated applications for leave to appeal and the hearing of criminal appeals as being upon the same footing: Reil's case, (1885) 10 App.Cas. 675; Ex parte Deeming [1892] A.C. 422. The Board cannot give leave to appeal where the grounds suggested could not sustain the appeal itself; and, conversely, it cannot allow an appeal on grounds that would not have sufficed for the grant of permission to bring it. Misdirection, as such, event irregularity as such, will not suffice: Ex parte Macrea [1893] A.C. 346. There must be something which, in the particular case, deprives the accused of the substance of fair trial and the protection of the law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future: Regina v. Bertrand (1867) L.R. 1 P.C. 520."

By these words their Lordships, notwithstanding any new legislation in the territories of the Commonwealth from which appeals may be brought in criminal matters, continue to feel themselves bound and, in the instant appeals, their Lordships consider that they have been guided by them. Their Lordships also desire to repeat the practice direction, issued by Viscount Dunedin [1932] 48 T.L.R. 300:

"'Their Lordships have repeated ad nauseam the statement that they do not sit as a Court of Criminal Appeal. For them to interfere with a criminal sentence there must be something so irregular or so outrageous as to shake the very basis of justice. Such an instance was found in In re Dillet (1887) 12 App.Cas. 459 which has all long along been held to be the leading authority in such matters. In the present case" - an Indian petition for special leave to appeal against a conviction and sentence of death for murder - "the only real point is a point for argument on a section of a statute, and all that the petitioner can say is that it was wrongly decided. That is to ask the Board to sit as a Court of Criminal Appeal and nothing else.'

In all that their Lordships say hereafter in discussing the merits of the instant consolidated appeals, their Lordships believe that they remain bound by, and have stayed within, the confines of these precepts."

Counsel for the appellants pointed out that, in so far as appears from the report of the case, no argument had been directed in Badry v. Director of Public Prosecutions to the scope of the appeal or the principles to be applied in the disposal of it, and he submitted that the matter should be reconsidered. He drew attention to the terms in which the Attorney-General and Minister of Justice had presented the proposed enactment of section 70A to the Mauritian Parliament as indicative of an intention that the scope of the appeal should be as wide as was the case in civil appeals which lay as of right. (Fourth Legislative Assembly Debates, Fourth Session, 26 June 1980 col. 3298). It appears that in Mauritius, where a large part of the law is derived from that of France, travaux préparatoires are readily resorted to as an aid to the true construction of legislation. That is not a practice which their Lordships would readily say anything to discourage. The reference does not, however, indicate any intention on the part of the legislature to dictate to the Board the principles which are to be applied in the disposal of appeals under the enactment. If the enactment had specifically purported to do this, for example by specifying the grounds upon which an appeal might be allowed, then a serious question would have arisen as to whether the Board were bound to give effect to the enactment, in so far as it purported to bring about a departure from the traditional principles. Section 70A of the Courts Act does not purport to do that, and the statement of the Attorney-General and Minister of Justice cannot reasonably be construed as capable of importing such an intention into the section by implication. In the circumstances the question does not arise for decision, but the Board would not easily be persuaded that their function of tendering advice to Her Majesty was capable of being fettered by the legislature of any of the countries where the jurisdiction of Her Majesty in Council is accepted.

The Board will accordingly continue to hold themselves bound, in relation to criminal appeals from Mauritius, by the principles set out in Badry v. Director of Public Prosecutions. It is to be remarked, however, that these principles are not necessarily to be applied with the most extreme rigidity. Where an important point of law of general application is raised by an appeal, and the decision in question is capable, if not reversed, of constituting a precedent not conducive to the public interest in the proper administration of justice, the appeal may be capable of being accommodated within the intendment of the principles. Thus the Board have on occasion granted special leave to an appeal to a prosecutor. Recent instances are Attorney-General of Hong Kong v. Tse Hung Lit [1986] A.C. 876, Attorney-General of Hong Kong v. Sham Chuen [1986] A.C. 887 and Attorney-General of Hong Kong v. Wong Muk Ping [1987] A.C. 501.

In the present case, however, it is plain that the circumstances of the appeal take it far outside any possible application of the principles in question. No point of law is involved. The only issue before the Intermediate Court and the Supreme Court was whether on the evidence led the appellants had been identified as being among the persons who carried out the serious assault which undoubtedly perpetrated on the victim Fockeena. The Intermediate Court found that they had been and the finding was upheld by the Supreme Court. The Board could never consider it right to interfere with a concurrent finding of fact of that nature.

Their Lordships will therefore humbly advise Her Majesty that the appeal should be dismissed.

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Norton v Public Service Commission

Micheal Robert Eddy Norton

Appellant

v.

Public Service Commission

Respondent

Appeal from the Supreme Court of Mauritius

Composition of the Board:

Lord Bridge of Harwich

Lord Roskill

Lord Griffiths

Lord Ackner

Sir John Stephenson

Counsels

For the Appellant

Clive Nicholls Q.C.

Guy Ollivry Q.C.

Claire Montgomery

For the Respondent

Doorgesh Ramsewak Q.C. (Solicitor-General)

Solicitors

For the Appellant: Bernard Sheridan & Co.

For the Respondent: Charles Russell & Co.

Judgment delivered on the 15 December 1987

by Lord Ackner

Cur. adv. vult.

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(1) Constitutional law - Fundamental rights - Protection of property - Fine - Disciplinary powers of the Public Service Commission - Principle of legality - Rule of law - French labour law

(2) Constitution source of all powers - Historical evolution of Mauritius - Powers of the Governor before independence

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Legislations referred to in judgment

Constitution of Mauritius, sections 8, 89, 118

Labour Act 1975

Public Service Commission Regulations 1967, regulations 30, 38, 41

Truck Act 1896 (United Kingdom), section 1

Trucks Act 1464 (United Kingdom)

Wages Act 1986 (United Kingdom)

The following judgment was delivered by the Board:

On the 19th February 1980 the Secretary to the Cabinet informed the appellant, a Principal Assistant Secretary at the Ministry of Works of Mauritius, that disciplinary proceedings were being initiated against him under regulation 38 of the Public Service Commission Regulations 1967 on certain charges, to which the appellant subsequently submitted his replies. In due course the presiding magistrate of the Industrial Court was appointed to inquire into the charges and he heard evidence, including that of the appellant.

On the 10th April 1981 a letter was written by the Secretary to the Cabinet informing the appellant that the Commission had considered the report of the magistrate. The letter then stated:

"... the Commission has considered the punishment to be inflicted upon you and has decided in exercise of the power vested in it by Section 89 of the Constitution and in accordance with the provisions of sub-paragraph 1(h) of regulation 41 of the Public Service Commission Regulations, 1967, that you be fined a sum representing seven days' pay..."

On 27th May 1981, when the appellant called at the Finance Branch of the Ministry of Works to draw his salary for the month of May, he noticed that the sum shown on the pay sheet was short of about Rs1,500. He refused to sign the pay sheet. A second pay sheet was accordingly prepared reinstating the deduction and the full amount of the appellant's pay normally due to him was remitted. On 2nd June 1981 the Permanent Secretary to the Ministry of Works wrote to the appellant, informing him that the fine had been imposed and requiring him to pay the amount of 21 days of the date of the letter. On 19th June 1981 the appellant applied to the Supreme Court of Mauritius for an order of certiorari to quash the decision, namely, the infliction of the fine, as being contrary to the Constitution.

The Public Service Commission then took a preliminary procedural objection, but this was overruled by the Supreme Court of Mauritius (Moolan, C.J., Glover, S.P.J., Ahnee J. dissenting) dismissed the application.

The issue

It is common ground in Mauritius no private employer may impose a fine upon his employee. This is in no way surprising. In England, the Truck Acts dating from about 1464 were designed to ensure that workmen received the entire amount of their wages in the actual current coin of the realm, and section 1 of the Truck Act 1896 made illegal a contract which made payment to the employer by the workman of any "fine" except in very special circumstances. The imposition of the "fine" was restricted, inter alia, to some act or omission which caused or was likely to cause damage or loss to the employer. Since 1st January 1987 the Truck Acts have ceased to be in effect, having been repealed by the Wages Act 1986, which makes more detailed provision with regard to permissible deductions.

Their Lordships understand that since July 1978 French law prohibits any form of "amende". Indeed, it appears from the majority judgment that the Mauritian Labour Act 1975 banned fines on labourers employed by the Government thereby, to that limited extent, equating the position with that in the private sector.

Thus the short issue in this appeal is whether the Commission had power to inflict a fine upon the appellant, a senior official in one of its Ministries.

The Constitution

Section 89 of the Constitution, which provides for the appointment of public officers, reads as follows:

"89(1) Subject to this Constitution, power to appoint persons to hold or act in any offices in the public service (including power to confirm appointments), to exercise disciplinary control over persons holding or acting in such offices and to remove such persons from office shall vest in the Public Service Commission."

Thus the power of the Public Service Commission "to exercise disciplinary control" over public officers is derived from and subject to the terms of the Constitution.

Section 8 of the Constitution is entitled "Protection from deprivation of property". It appears in Chapter 2 of the Constitution, which is headed "Protection of fundamental rights and freedoms of the individual". It provides in sub-section (1) that "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 as provided in the sub-section.

Section 8(4), in so far as it is material in this appeal, is in the following terms:

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

(1) -

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

(ii) by way of penalty for breach of the law or forfeiture in consequence of a breach of the law...

(iv) in the execution of judgments or orders of courts..."

Section 118 of the Constitution is entitled "Performance of functions of Commissions and tribunals". Sub-section (1) provides:

"(1) Any Commission established by this Constitution may by regulations make provisions for regulating and facilitating the performance by the Commission of its functions under this Constitution."

The Regulations

Pursuant to this power, regulations, entitled Public Service Commission Regulations, were made on 12th August 1967. Part IV of the Regulations is headed "Discipline". Regulation 30, the first of the regulations appearing under this heading, provides that the Commission shall not exercise its powers in connection with, inter alia, the disciplinary punishment of any officer in the public service except in accordance with the regulations or such regulations as may be made by the Commission. Regulation 41 needs to be set out in full:

"41(1) The following punishments may be inflicted on any public officer as a result of proceedings under this Part -

(a) dismissal;

(b) reduction in rank or seniority;

(c) stoppage of increment;

(d) deferment of increment;

(e) suspension from work without pay for a period not less than one day and not more that 14 days;

(f) severe reprimand;

(g) reprimand;

(h) fine;

(i) payment of the cost or part of the cost of any loss or breakage or damage of any kind caused by default or negligence.

(2) Nothing in this regulation shall limit the powers conferred by these regulations to require a public officer to retire from the service on the grounds of public interest.

(3) No punishment shall be inflicted on any public officer which would be contrary to any enactment."

The appellant's submissions are simple and, in their Lordships' opinion, correct. The powers of the Commission are derived, not from the regulations, but from the Constitution itself. The Public Service Commission has no more power than that conferred upon it by the Constitution. As was pointed out by Ahnee J., in his dissenting judgment, whatever in the past, when Mauritius was a British Colony, may have been the powers of the then Governor over Her Majesty's civil servants, cannot be of any assistance in defining the powers conferred upon the Public Service Commission by the Constitution. Section 8(1) and (4) of the Constitution make it clear that there is no power to fine, unless there exists a law which gives power to impose a fine for a breach of that law. Before such a fine can be enforced, the breach of that law has to be established in the courts. Accordingly, it must follow that the power given to the Public Service Commission to "exercise disciplinary control" does not include the power to inflict a fine. In the result, regulation 41(1), in so far as it provides for punishment by the infliction of a "fine", is ultra vires the Public Service Commission.

Accordingly, their Lordships will humbly advise Her Majesty that the appeal ought to be allowed and that the order of certiorari should issue. The appellant is entitled to his costs both before the Supreme Court and before their Lordships' Board.

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