Jugement dans l’affaire Boskalis : le DPP demandera une révision judiciaire

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Police v Boskalis International bv and anor

2013 INT 288

Cause Number 766/2013

In The Intermediate Court of Mauritius

In the matter of: -

Police

V

1. Boskalis International bv2. Baggermaatschappij Boskalis BV

Sentence

The two foreign accused companies are charged on counts 1 to 6 of the information for

the offence of bribery of public official in breach of sections 5(1)(b)(2), 82 A of the

Prevention of Corruption Act 2002 coupled with Section 44(2)(a) of the Interpretation and

General Clauses Act.

On counts 7 and 8 the two Accused companies are further charged with the offence of

conspiracy in breach of Section 109(1) of the Criminal Code (Supplementary) Act 1870

coupled with Sections 5(1)(b)(2), 82 A of the Prevention of Corruption Act 2002 and

Section 44(2)(a) of the Interpretation and General Clauses Act.

The two companies were represented by Mr. Jan Cornelis Haak. Learned counsel Mr.

Collendavelloo SC together with Mr. Ghurburrun and Mr. Seebaruth appeared for both

companies.

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Mr. Ah-Sen together with Mr. Hurdowar appeared for the prosecution.

The representative of the two accused companies, Mr. Jan Cornelis Haak, pleaded guilty

to all 8 counts as per Section 44 (2) (a) of the Interpretation and General Clauses Act

which provides that where a company, socit or other corporate body is charged with

an offence, a representative may appear before the appropriate Court and enter a plea

of guilty or not guilty on behalf of the company, socit or other corporate body.

After the plea of guilty was recorded a hearing took place as per Section 72 of the

District and Intermediate Courts (Criminal Jurisdiction) Act which provides as follows:

(1) Where the accused is present at the hearing, the substance of the information

shall be stated to him and he shall be asked if he has any cause to show why he

should not be convicted.

(2) Where the accused admits the truth of the information and shows no sufficient

cause why he should not be convicted, then the Magistrate shall convict him, and

after hearing such evidence as may be necessary to show the facts and

circumstances of the case, shall pass such sentence as the nature of the offence

may require.

(3)

(4) After hearing what each party has to say and the evidence adduced the

Magistrate shall consider the whole matter and either dismiss the information, or

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convict the accused and pass such sentence (stating the law on which it is

grounded) as the nature of the offence and the law may require.

As per section 72 of the District and Intermediate Courts (Criminal Jurisdiction) Act the

two accused companies were found guilty as charged.

Now, the question is: what is the appropriate sentence to be passed in view of the fact

that the two accused companies have been convicted on 8 counts of the information.

As per Section 72 (4) of the District and Intermediate Courts (Criminal Jurisdiction) Act

the magistrate shall convict the accused and pass such sentence (stating the law on

which it is grounded) as the nature of the offence and the law may require.

In respect of counts 1 to 6 of the information Section 5 (1) of the Prevention of

Corruption Act 2002 (POCA) provides that any person who gives a gratification to a

public official for doing an act which is facilitated by his functions shall commit an offence

and shall, on conviction, be liable to penal servitude for a term not exceeding 10 years.

In respect of counts 7 and 8, in the years 2006/2007 Section 109(1) of the Criminal

Code (Supplementary) Act provided that any person who agrees with another person to

do an act which is unlawful shall commit an offence and shall, on conviction, be liable to

penal servitude for a term not exceeding 5 years and to a fine not exceeding Rs 10,000.

At the outset one can see that Section 5 of the POCA has provided that any person

guilty shall be liable to penal servitude. The law has not provided for a pecuniary

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sentence. Therefore the two accused companies convicted under section 5 of the POCA

cannot be fined on counts 1 to 6.

There is no doubt that a company which is a body corporate is a personand that a

company can be convicted for the offence provided by section 5 of the POCA. When a

statute makes it an offence for a personto door to omit to do something that offence is

capable of commission by a body corporate. Indeed, Section 2 of the Interpretation and

General Clauses Act provides that unless the context otherwise requires or unless

otherwise expressly provided, in this Act and in every other enactment and public

document person and words applied to a person or individual shall apply to and include

a group of persons, whether corporate or unincorporate.

Both prosecution and defence counsel agree that a company cannot be sentenced to

undergo penal servitude or to undergo imprisonment.

Learned counsel for the prosecution submitted that since a company cannot be

sentenced to undergo a term of imprisonment, an alternative sentence must be passed.

He was of the view that since Part X of the Criminal Procedure Act has not been

excluded by the Prevention of Corruption Act the Court may consider section 197 of the

Criminal Procedure Act when passing sentence. He submitted that the accused

companies can be granted absolute discharge or conditional discharge. He stated that

an absolute discharge seems to be more appropriate in the present case.

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Learned counsel for the defence submitted that no person whether an individual or a

company is immune from acts of corruption. It is interesting to quote the submissions of

Mr. Collendavelloo SC:

the requirement by all parties in the House was that: if we introduce the fine then the

corrupt will get away with paying money and the Prime Minister of the day-and if we

recall who he was and how he was, he would say no way that individuals would get

away; corrupt individuals would get away with payment of fines. Now if that was the

intention of the Legislator surely it was not the intention of the Legislature that corporate

bodies would get away with an absolute discharge and they have to make sure for our

international obligations and for our international respect that we are not seen to gift

away on corporate bodies especially foreign corporate bodies.This is why I

cannot subscribe to my Learned Friends view that the easy way out with the absolute

discharge is the legal one and then let us finish with it..

.

Absolute discharges normally are applied when the court is satisfied that it was a

technicality or that the person is innocent, but has made just a technical flaw in his

conduct. The absolute discharge is certainly not for the corrupt.The absolute

discharge would send the totally wrong signals, in my submission, that people can walk

away from this court scot-free on condition that they form a company just prior to giving

the bribe or taking the bribeThat is the most horrendous of situation which I can

envisage..I am sure that my Learned Friend and the DPPs office would spring up

from their chairs if they were told that the company has been given an absolute

discharge

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He further submitted that the accused companies can be conditionally discharged and

the representative of the company would merely undertake in the name of his company

that his company would furnish the surety within twenty one days. The company would

furnish the surety, but he would be criminally responsible for that furnishing. He would

be in contempt of court should he not do this.

He admitted that it is stretching the law, importing the law of agency in order to suit the

particular circumstances of the case.

Now, Section 197 of our Criminal Procedure Act provides as follows:

(1) Where a Court by or before which a person is charged with an offence (not being

an offence the sentence of which is fixed by law) thinks that having regard-

(a) to the character, antecedents, age, health or mental condition of the

person;

(b) to the trivial nature of the offence; or

(c) to the extenuating circumstances under which the offence was

committed;

it is inexpedient to inflict punishment and that a probation order is not appropriate, the

Court may make an order discharging him absolutely or conditionally on his entering into

a recognizance, with or without sureties, to be of good behaviour and to appear for sen-

tence when called on at any time during such period, not exceeding 3 years, as may be

specified in the order, and in either case order him to pay the costs.

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In Emmins on Sentencing Fourth Edition by Martin Wasik the following can be read on

absolute discharge and conditional discharge:

Absolute discharge (page 232)

Where a court grants an absolute discharge, the offender leaves the court with no

effective penalty at all. The absolute discharge must, of course, be distinguished from

an acquittal, since in the latter case no conviction has been recorded. An absolute

discharge is a sentence imposed upon conviction, and will be recorded in the offenders

list of previous convictions.

Conditional discharge (page 234)

When a discharge is conditional, the sole condition is that the offender should commit

no further offence during the period of the conditional discharge..If an offender is

convicted of an offence during that period, he will be in breach of the conditional

discharge and will be liable to be sentenced for the offence in respect of which he

received the discharge as well as being sentenced for the new offence.

Where an offender pleads guilty or is convicted of an offence and is dealt with by way of

discharge, he is deemed not to have been convicted of the offence unless and until he is

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subsequently sentenced for it, i.e. where the discharge is a conditional one and he is

later in breach of it (PCC(S) A 2000, s.14 and Moore [1995] QB 353). The rule in s. 14

has the effect, for example, that a person granted a discharge for a particular offence

would not be debarred from holding an office from which persons convicted of that

offence are normally barred. (Emphasis is mine)

Can a Court grant conditional discharge to an accused party in all circumstances?

In JHUGROOP J M S v THE STATE AND JHUGROOP J S v THE STATE

2008 SCJ 197 the following observations were made:

Conditional discharge, as suggested by Counsel for the respondent, does not

however appear to us to be an appropriate sentence in the circumstances. As

Christopher J. Emmins points out in A practical approach to sentencing (1985) at page

228 paragraph 15.1.1. :

It is not appropriate to conditionally discharge an offender who has

committed a serious or fairly serious offence. To do so would

appear to excuse criminal conduct which, whatever the mitigation,

cannot be excused. [.] The prime use of conditional discharges

is in respect of minor instances of real crime, especially where the

offender is of good or relatively good character. Examples of cases

where the court would carefully consider a conditional discharge

are offences of petty dishonesty; assaults where no weapon is used

and no significant injury caused; sexual peccadilloes (e.g. indecent

exposure or buggery between consenting adults in a cubicle of a

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public lavatory), and possession of small amounts of soft drugs for

personal consumption.

As in England, legislation in Mauritius provides that conditional discharge may be used

as a non-punitive sentence. (Emphasis is mine)

It is also apposite to reproduce the following extracts from DOOKEE S. v. THE STATE

2002 SCJ 158:

The appellant was prosecuted for having criminally and unlawfully endeavour to

bribe a police officer (CPL Rogbeer) with a view to the non-performance by that officer

of

an act in the execution of his function, to wit : not to establish any contravention against

the driver of bus no. CL 351 in breach of section 128(1)(a) of the Criminal Code. He

pleaded not guilty and was not assisted by counsel.

The learned magistrate of the Intermediate Court had no difficulty to find the

charge against the appellant proved beyond reasonable doubt

..

In passing the sentence, the learned magistrate considered the seriousness of

the offence despite the fact that the amount of the bribe was Rs100, the clean record of

the appellant and after referring to D. Samboo v The State [2000 SCJ 240]came to the

conclusion that a conditional discharge was inappropriate and he consequently passed

a

custodial sentence of six months imprisonment.

..

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http://www1.gov.mu/scourt/doc/showDoc.do?dk=2000%20SCJ%20240&dt=Jhttp://www1.gov.mu/scourt/doc/showDoc.do?dk=2000%20SCJ%20240&dt=J


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All the mitigating factors submitted before us were taken into consideration by the

learned magistrate. Learned counsel for the appellant does not dispute the fact that the

State is waging a war against corruption and that bribing a public officer is a very serious

offence. As rightly pointed out by the learned magistrate, it is not the small sum given

which is the real issue but the fact of corrupting a public officer in the execution of his

duty which had to be checked. If we follow the argument of learned counsel for the

appellant by showing leniency in passing a non-custodial sentence, we would be

sending the wrong signal to the public at large that giving a small amount is acceptable

and would be tolerated. We are of the view that the sentence passed was neither wrong

in principle nor was it harsh and excessive.

In the Indian case Standard Chartered Bank and Others vs- Directorate of

Enforcement and Others [2005] 2011 TPI 373 (SC) B.N Srikhrishna J. made

reference to the case ofAssistant Commissioner v. Velliappa Textiles Ltd. [2003] 11

SCC 405; [2003] 263 ITR 550; [2003] 1 RC 635.

Velliappa [2003] 263 ITR 550 was concerned with the prosecution for an offence under

sections 276C, 277 and 278 read with section 278B of the Income-tax Act, 1961. Each

of the punishing sections provides that a person found guilty shall be punishable with a

mandatory term of imprisonment and fine. The majority in Velliappa [2003] 263 ITR 550

took the view that since an artificial person like a company could not be physically

punished to a term of imprisonment, such a section, which makes it mandatory to

impose a minimum term of imprisonment, cannot apply to the case of an artificial person.

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The majority judgment in Velliappa [2003] 263 ITR 550 indicates that the situation is not

one of an interpretational exercise, but one that calls for rectification of an irretrievable

error in drafting of the concerned statute. It was also pointed out that the situation is

neither novel, nor unique. Such situation has been faced in several jurisdictions wherein

it was recognised that the only solution to such a problem is by legislative action.

One of the functions of the Court is to ascertain the true intention of Parliament in

enacting the statute and, as far as permissible on the language of the statute, to interpret

the statute to advance such legislative intent.

If on the words used by the Legislature it is impossible to effectuate the intention of the

Legislation, namely, to punish a company to imprisonment, it is not possible to read the

section in any other manner to impose any other punishment on the offender.

In Crawford v. Spooner [1846] 6 Moore PC 1 the Judicial Committee said:

We cannot aid the Legislatures defective phrasing of an Act, we cannot add and mend,

and, by construction, make up deficiencies which are left there.

We see nothing special in the Indian Context which requires us to take a different view.

In all these jurisdictions the view that prevailed was that, where a statute imposes

mandatory imprisonment plus fine, such a provision would not enable the punishment of

a corporate offender. If the Legislatures of these countries stepped in to resolve the

problem by appropriate legislative amendments giving option to the courts to impose fine

in lieu of imprisonment in the case of a corporate offender, we see nothing special in the

Indian context as to why such a course cannot be adopted.

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I have duly considered the law and the authorities referred to above. I find that the two

accused companies have been convicted for serious corruption offences on counts 1-6

under the POCA which call for severe penalties.

It is apposite to refer to Hansard and Travaux Preparatoires (Debate No 1 of

04.02.2002) and the address of the then Prime Minister at the Second Reading of the

Prevention of Corruption Bill No IV of 2002:

The object of the Prevention of Corruption Bill is to strengthen the laws on

corruption and fraud by-

(a) The introduction of new corruption offences which will be punished with severe

penalties to more effectively combat the scourge of corruption;

(b) The creation of a new institution to be known as the Independent Commission

Against Corruption;

(c) Restraint and forfeiture of the proceeds of corruption and money laundering;

(d) Co-operation with foreign States through mutual assistance in relation to

corruption and money laundering.

Now, had the accused been an individual who has confessed, who has pleaded guilty

and who has been convicted on 6 counts under Section 5 of the POCA for giving a bribe

of more than 3 million rupees, this court would have applied a severe penalty, that is, a

custodial sentence. There is no valid reason to be lenient with a company. A discharge

whether conditional or absolute is not appropriate since the offence of corruption is not a

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trivial offence. It was the intention of the Legislator in 2002 when the POCA was en-

acted that the country must combat the scourge of corruption and that severe penalties

must be applied. It could not have been the intention of the Legislator to allow the courts

in Mauritius to apply non-punitive sentences such as conditional discharge to corrupt ac-

cused parties. To do so would appear to excuse criminal conduct which, whatever the

mitigation, cannot be excused - vide - Christopher J. Emmins A practical approach to

sentencing (1985) at page 228 paragraph 15.1.1.

I also totally agree with the submissions of learned counsel for the defence that it was

not the intention of the Legislature that corporate bodies would get away with an

absolute dischargeand that this court would send a totally wrong signal should this

court grant absolute discharge as absolute discharge is certainly not for the corrupt.

Therefore, since Section 5 of the POCA 2002 creating the offence of bribery of public

official did not provide for any penalty that can be applied to corporate bodies, I find that

it would not be appropriate for me to substitute a non-punitive sentence which is wholly

inappropriate and against the spirit of the POCA. I fully agree that If on the words

used by the Legislature it is impossible to effectuate the intention of the Legislation,

namely, to punish a company to imprisonment, it is not possible to read the section in

any other manner to impose any other punishment on the offender.Such situation

has been faced in several jurisdictions wherein it was recognised that the only solution

to such a problem is by legislative action vide- Standard Chartered Bank and Others

vs. Directorate of Enforcement and Others [2005] 2011 TPI 373 (SC) referring to

Assistant Commissioner v. Veliappa Textiles Ltd. [2003] 11 SCC 405; [2003] 263 ITR

550; [2003] 1 RC 635.

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It is apposite to mention at this juncture that in the United Kingdom the Bribery Act 2010

provides for the following penalties for persons convicted of bribery of foreign public

officials: imprisonment for up to 10 years or to a fine or to both for individuals and to

companies: a fine, debarment from public contracts and confiscation orders.

In the Netherlands for the offence of bribing a public official the Dutch Criminal Code

provides for imprisonment and fine for natural persons and for companies a fine plus

disqualification from practicing the profession in which the person committed the crime

and deprivation of certain rights.

In France also the law was amended a few years ago to provide for la responsabilit

pnale des personnes morales and the legal entities face fines as well as additional

penalties e.g. exclusion from government contracts, closing of an establishment etc.

Had the accused parties been natural persons and in view of the guilty plea of the

accused, their clean record and the seriousness of the offence on counts 1 to 6, I would

have sentenced the accused to undergo 3 years penal servitude on each of these

counts.

However, in view of the authorities quoted above and the lacuna in our law in Mauritius,

no appropriate sentence can be passed in respect of counts 1 to 6. It is not possible to

apply custodial sentences to corporate bodies. Section 79 of the District and

Intermediate Court (Criminal Jurisdiction) Act which applies to individuals cannot apply

to companies. Companies cannot be deprived of their liberty and be sent to jail. A Court

cannot issue a warrant of commitment andorder, in the States name, the Commissioner

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of Police to take the convicted foreign companies and to convey and deliver them to the

Commissioner of Prisons as provided in Form J.

Indeed Section 79 of the District and Intermediate Court (Criminal Jurisdiction Act)

provides as follows:

Where the penalty awarded against a person convicted is imprisonment with or without

hard labour or penal servitude, the Magistrate may issue a warrant of commitment in

Form J of the Second Schedule directing the officer to whom it is addressed to take

such person and convey him to the prison therein named, and directing the keeper of

such prison to receive such person and to imprison him, with or without hard labour, or

to put him to penal servitude, as the case may be, for such time as has been awarded

and mentioned in the warrant.

In view of the impossibility to apply the sentence provided by section 5 of the POCA to

corporate bodies, the Legislator may consider taking legislative action so that there is no

more the perception that corrupt corporate bodies can get away scot-free in Mauritius.

On counts 7 and 8 since the law provides for a maximum fine of Rs 10,000, I accordingly

sentence the two accused companies to pay the maximum fine of Rs 10,000 on each of

counts 7 and 8.

Each accused company to pay Rs 500 as costs.

V. Kwok Yin Siong Yen

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President (Criminal Division)

26 September 2013

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Jugement dans l’affaire Boskalis : le DPP demandera une révision judiciaire

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