MRI-2003-D-002

2003 SCJ 26

06/02/2003

précis

HURNAM D. v. Ww AH FOON CHUI YEW CHEONG & ORS

2003 SCJ 26

RECORD NO. 75451

IN THE SUPREME COURT OF MAURITIUS

In the matter of:

D. Hurnam

Applicant

v/s

1.     Ww Ah Foon Chui Yew Cheong

2.     Hayman Dass Ghoora

3.     CPL 2121 Ramasawmy

4.     DPS 4574 Goolaup

5.     Kailashing Bholah

6.     Soobhasing Bholah

Respondents

........

JUDGMENT

An information was lodged by the applicant, a barrister-at-law, against the first respondent, the then D.P.P. before the District Court of Port Louis.  The information contains two counts of conspiracy, breach of section 109 of the Criminal Code (Supplementary) Act.  In the first count the first respondent is prosecuted along with 5 other persons (three of them are police officers) for having willfully and unlawfully agreed ”with one another amongst themselves and with persons unknown to commit an unlawful act to wit: to concoct and manipulate incriminating evidence against the aforesaid Devendranath Hurnam.”  In the second count the first respondent is prosecuted for having on the 6th July 2001, willfully and unlawfully agreed “with persons unknown to commit an unlawful act to wit: to institute a false and malicious prosecution against the aforesaid Devendranath Hurnam (vide C.N. 1269/2001 P. Louis (S)).”

On the day of the hearing Mr Hurnam moved that the first respondent be ordered to enter the dock.

Learned Counsel for the first respondent objected to the motion on the following grounds:-

(1)     In law, a fortiori in the lawful discharge of her duties, the DPP cannot be constituted an accused party, given the provisions of sections 3, 5, 10 and 72 of the Constitution;

(2)     Section 72 of the Constitution being in the forefront of the consideration of the present matter, it is essential that the section be interpreted by the Supreme Court as regards its ambit and scope.

The learned Magistrate was of the opinion that, “being given the provisions of sections 3, 5, 10 and specially 72 of the Constitution, there is a question of great Constitutional importance as to whether the D.P.P. could be constituted an accused party (albeit in a private prosecution)” and pursuant to section 84 of the Constitution he referred the matter to the Supreme Court “as to the interpretation of section 72 and also sections 3, 5, and 10 in relation to the question as to whether the D.P.P can be constituted an accused party.”

Mr Hurnam submitted that the wording of section 72 is clear and unambiguous and does not call for any interpretation.  Learned Counsel was of the view that unlike section 30(A) of the constitution, which provides that no civil or criminal proceedings shall lie against the President or the Vice-President in respect of the performance by him of the functions of his office, section 72 does not confer any immunity on the D.P.P, be it in the discharge of his duties or in his private capacity.  According to learned Counsel, in the absence of an ouster clause conferring immunity on the DPP in the performance of his duties, the DPP and Judges of this Court for that matter are not above the law.  Learned Counsel further submitted that if the DPP may be sued in damages for a civil wrong and that his decision may be reviewed by this Court by way of judicial review, he saw no reason why the DPP cannot be prosecuted for a criminal offence.  He found support from the following cases: (1) Lincoln & Ors v. Governor General [1974 MR 112], (2) Lagesse v. Director of Public Prosecutions [1990 MR 194].

The submissions of learned Counsel for respondent no. 1 were confined to the provisions of section 72 of the constitution.  According to learned Counsel since under section 72(3), “the DPP shall decide to prosecute where he considers it desirable to do so”, there cannot be a private prosecution against the DPP in the discharge of his duties  Otherwise, said learned Counsel, there would be “havoc” in this country. 

The provisions in respect of private prosecution are to be found in section 72 of the constitution, the District and Intermediate Courts (Criminal Jurisdiction) Act, sections 118 to 122 and the Criminal Procedure Act sections 3, 4 and 5.  For the purposes of the present case, we are concerned only with section 72 of the constitution.

72     Director of Public Prosecutions

(1)     There shall be a Director of Public Prosecutions whose office shall be a public office and who shall be appointed by the Judicial and Legal Service Commission.

(2)     No person shall be qualified to hold or act in the office of the Director of Public Prosecutions unless he is qualified for appointment as a Judge of the Supreme Court.

(3)     The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do –

(a)     to institute and undertake criminal proceedings before any Court of law (not being a Court established by a disciplinary law);

(b)     to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and

(c)     to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.

(4)     The powers of the Director of Public Prosecutions under subsection (3) may be exercised by him in person or through other persons acting in accordance with his general or specific instructions.

(5)     The powers conferred upon the Director of Public Prosecutions by section (3)(b) and (c) shall be vested in him to the exclusion of any other person or authority.

Provided that, where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority at any stage before the person against whom the proceedings have been instituted has been charged before the Court.

(6)     In the exercise of the powers conferred upon him by this section, the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority.

(7)     For the purposes of this section, any appeal from any determination in any criminal proceedings before any Court, or any case stated or question of law reserved for the purposes of any such proceedings to any other Court, shall be deemed to be part of those proceedings.

Although an aggrieved party may initiate a private prosecution, his power is subject to the power of the DPP to take over or discontinue the proceedings.  In Edath-Tally v. Michael J.K. Glover [1994 MR 200], the full bench of this Court was of the view that, “a person whether aggrieved or not does not have an unfettered right to enter a private prosecution on the criminal side and that his power to prosecute is subject to the power of the DPP to take over or discontinue.”  In the exercise of his powers the D.P.P must indeed hold the scales evenly between the individual and the interests of the public as a whole.

Whilst we agree with learned counsel for the applicant that the Constitution does not confer immunity, of the kind conferred on the President or the Vice-President, on Judges of this Court, the D.P.P or Magistrates from criminal prosecution, we wish to point out that any civilized society depends on the maintenance of law and order and that the prime object of the penal law is the protection of the public by the maintenance of law and order.  It is for that very purpose that in countries like Mauritius, where the rule of law prevails, and in order to avoid a state of anarchy that we have institutions, with well defined powers e.g. such as the powers conferred on the D.P.P. and the protection afforded to him in the discharge of his duties. We hasten to add that the Constitution also provides for safeguards against any abuse of powers.

Indeed by virtue of section 10 of the Constitution, the right of an accused party to a fair trial is guaranteed, and it is the duty of the Court to see to it that such right be protected.  In this regard we may quote what was stated in Lagesse v. D.P.P. (Supra): This is something which the Courts will always strive to protect by all the means at their disposal, by dismissing the charge or even, in an appropriate case by preventing the trial from getting underway where it is patent that the trial cannot be a fair one because, for example, the information is lodged in specific circumstances twenty years after the event where the defence of the accused have been adversely affected or the Prosecutor is actuated by malice and nothing else.  And this is as it should be, the more so, as contrary to what is said in relation to other protected creatures of the Constitution.  Section 72 provides that a D.P.P. shall decide to prosecute where he considers it desirable to do so.”

Furthermore, in an appropriate case, the decision of the D.P.P. may be subject to a judicial review.

In our view, having regard to the constitutional powers of the D.P.P to institute and discontinue criminal proceedings and the protection afforded to him in that connection, it was in the contemplation of the framers of our Constitution that a D.P.P. would not be amenable to prosecution in respect of a decision taken in the lawful discharge of his duties.  All the more, such a person could not be subjected to private prosecution in respect of such a decision either whilst being in office or at a later stage, after leaving such office.

We are, therefore, of the considered opinion that no prosecution lies against a D.P.P. or an ex-D.P.P. in respect of an act in the lawful discharge of his duties

We, accordingly, refer the case back to the learned Magistrate to be dealt with in the light of our opinion.

We wish to observe that in the case of private prosecution in the Supreme Court, such prosecution cannot be proceeded with unless the aggrieved party or his representative has produced before the Judge an information containing, by way of endorsement, a certificate from the D.P.P. specifying that he has seen such information and declined to prosecute at the expense of the State the party charged for the offence named in the information: (see section 5(1) of the Criminal Procedure Act).  The philosophy behind such a provision is to ensure that the D.P.P. has been made aware of the information lodged before the Court such that he may have an opportunity of exercising his powers under section 72 of the Constitution.  It appears to us that, despite the absence of an express corresponding provision in the legislation dealing with the District Courts, the D.P.P. should, as a matter of practice, be informed in good time prior to the case being heard, of any private prosecution which has been entered before the District Court so that he may similarly have an opportunity to exercise his constitutional powers.  Such information should, in our view, be conveyed to the D.P.P. by the private prosecutor himself, and the District Magistrate should ensure that this has been done.  This practice is in our view, commanded by the actual existence of the provision in the Constitution conferring on the D.P.P. the power to take over or discontinue a private prosecution.  This was indeed the reasoning in Bhatoo v. Nellayah & Anor [1982 MR 97] (See also Kistnen v. Fokkan [1994 SCJ 196] and Municipality of Beau Bassin-Rose Hill v. Sik Yuen Supermarket and Anor [2001 MR 179]).  The Appellate Court held that: “Where a private prosecution results in a conviction, the appellant must join the Director of Public Prosecutions as respondent.  But where a private prosecution results in an acquittal and the prosecutor appeals, the Director of Public Prosecutions ought not to be joined. It is, however, quite proper to give notice of the action taken to the Director of Public Prosecutions.” 

We consider that the above practice is a necessary prerequisite with regard to any private prosecution, failing which the D.P.P.’s powers referred to above would be rendered nugatory.  Such practice would, moreover, bring the procedure before the District Court in line with that before this Court in respect of a matter where a difference in procedure is not called for but when in fact uniformity of procedure is highly desirable.

R.N. Narayen

Judge

P. Balgobin

Judge

6 February 2003

Judgment delivered by Hon. R.N. Narayen, Judge

For Applicant:

Mr D. Hurnam, of Counsel instructed by Mr Senior Attorney G. Ramdewar

For Respondent No. 1:

Mr R. Montocchio, Q.C., together with Mr R. Chetty, of Counsel instructed by

State Attorney