JUGNAUTH P.K. V INDEPENDENT COMMISSION AGAINST CORRUPTION & ORS 2016 SCJ 187 - EXTRACTS

EXTRACTS OF THE JUDGMENT

ON THE INTERPRETATION OF “PERSONAL INTEREST” AND THE SEPRATE INTERESTS OF A COMPANY AS OPPOSED TO ITS SHAREHOLDERS’ INTERESTS

We have to admit that this is where we begin to struggle with the reasoning of the learned Magistrates. The first difficulty we have is their inference that the appellant’s sister had a “direct personal interest” in “whatever decision affecting Medpoint Ltd” from the mere fact of her being a shareholder “with no less than 23% of the total shares” and a director in Medpoint Ltd. As rightly submitted by learned Queen’s Counsel for the appellant, the learned Magistrates appear to have failed to recognise that Medpoint Ltd was a separate and distinct legal entity and appear to have conflated Medpoint Ltd’s interests with those of the appellant’s sister.

 

What then is the nature of the interest which the legislator seeks to criminalise under section 13?

One of the conditions for an offence to exist under section 13(2) is that the decision must relate to a decision in which the relative has a personal interest. The use of the term “personal” is purposive and crucial in several respects. By adopting such a wording, it is clear that any interest would not suffice to create criminal liability for an offence under section 13(2). Quite significantly, section 13(2), as opposed to section 13(1), limits interest to “personal interest”. Had it been the intention of the legislator to encompass any other interest, direct or indirect, such words would have been expressly included and spelt out in section 13(2) as was done by the legislator when it was its intention to do so for an offence under section 13(1) of the Act.

Thus, we are of the opinion that:

(a) the wording of section 13(2) is not concerned with any remote interest and it clearly relates to such personal interest of a relative which may, accordingly, give rise to a conflictual situation confronting the public official at the time of his participation in the decision-making process;

(b) although a relative may have an interest as shareholder, he would have no “personal” interest in a decision of Government to allocate funds to a company which is, in law, a different entity.

ON THE REQUIREMENT OF MENS REA AS AN INGREDIENT OF THE OFFENCE UNDER SECTIONS 13(2) AND 13(3) OF THE POCA

the more serious the offence, the greater is the weight to be effected to the presumption that mens rea is required.

“One should be slow to attribute to the legislator the intention of inflicting severe punishment and stigmatizing a person as a serious criminal unless he is proved to have acted with a guilty mind”, vide Hin Lin Yee And Another v HKSR [2010] HKCHA 11.

More recently, the Supreme Court of England and Wales reaffirmed the importance of the presumption of mens rea in R v Brown [2013] UKSC 43, [2013] 4 All ER 860, holding that the presumption should not be displaced in the absence of clear statutory language or unmistakably necessary implication. The Court emphasised that the presumption is enhanced in cases, such as this one, where the offence is “truly criminal” and carries a heavy penalty:

“The constitutional principle that mens rea is presumed to be required in order to establish criminal liability is a strong one. It is not to be displaced in the absence of clear statutory language or unmistakably necessary implication. And true it is, as the appellant has argued, that the legislative history of an enactment may not always provide the framework for deciding whether the clearly identifiable conditions in which an implication must be made are present. It is also undeniable that where the statutory offence is grave or “truly criminal” and carries a heavy penalty or a substantial social stigma, the case is enhanced against implying that mens rea of any ingredient of the offence is not needed.”

As a result, it is well settled in English law that, even where the provision which creates the offence is silent or ambiguous as to the required state of mind, the starting point for ascertaining the mental requirements for any statutory offence is to presume that it is incumbent upon the prosecution to prove the requisite mens rea in relation to each element of the offence: Sherras v De Rutzen [1895] 1 QB 918 D.C.; Brend v Wood [1946] 175 LT 306, 307; Sweet v Parsley (supra); B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428 at 460. Further, in R v K [2002] 1 AC 462 at 477, Lord Steyn pointed out that although the presumption applies in cases of ambiguity, “the applicability of the presumption is not dependent on finding an ambiguity in the text. It operates to supplement the text”.

 Section 162 of the Courts Act in Mauritius provides that in the absence of any special laws in force in Mauritius, the English law of evidence shall be applicable. Indeed in Rayapoulle v R [1990 MR 286], the Supreme Court of Mauritius applied the same guiding principles laid down by Lord Scarman in Gammon (supra) which have already been reproduced earlier in this judgment. The Court went on to hold that mens rea is an essential ingredient of an offence of possession of a firearm under section 36 of the Public Order Act, even though the statutory provisions creating the offence are silent as to the requirement of mens rea.

Applying the above principles to the offence created under section 13(2) and (3) of the Prevention of Corruption Act, it is plain that there is a presumption that mens rea is an ingredient of the offence and that mens rea is required before the appellant can be convicted of such a criminal offence. The presumption is reinforced by the fact that it is an offence which is “truly criminal” in character and is categorised as a “corruption offence” (under Part II of the Act) as defined by section 2 of the Act. The seriousness of the offence is enhanced by a severe penalty of up to ten years’ penal servitude which adds to the weight to be attached to the presumption that mens rea is required for such an offence. We, therefore, hold that the presumption of law that mens rea is required before a person can be convicted of an offence under section 13(2) has neither been rebutted by any express provision in the Act nor by necessary implication.


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