Privy Council: Latest Judgments 

By RV

The Judicial Committee of the Privy Council has delivered judgment yesterday (21 July 2010) in three appeals against the decisions of the Supreme Court. All three appeals were allowed. Two of the appeals raised issues dealing with the denial of a fair hearing in a criminal case as a result of unreasonable delays in the determination of the case by the judicial authorities and the principle of proportionality when inflicting sentence. The third appeal dealt with the issue of locus standi of four Mauritian citizens who had challenged the constitutionality of the law which provides for the imposition of the National Residential Property Tax (NRPT).

The NRPT, as we may recall, imposes on all owners of real property in residential areas whose incomes exceed 385,000 rupees (initially 215,000) whether or not there was residential accommodation on the land. The tax was a flat rate of 10 rupees per square metre of land in a residential area, and 30 rupees per square metre on flats or similar high rise buildings.

In the first of the two appeals relating to denial of a fair hearing, the appellant one G.A, was convicted by the Intermediate Court under the Dangerous Drugs Act 1986 for three offences of possession, selling and smoking cannabis. The offence had taken place as long back as 15 December 1998. The main contention before the Judicial Committee was in respect of count one which charged the appellant for having in his possession 2.9 grams of gandia wrapped in ten packets each in cellophane paper. The Magistrate found, following appellant’s own confession that he was “trace aine la vie” and had already sold one “pouliah”, that the appellant was a trafficker and sentenced him to three years imprisonment. The Magistrate had no choice as the law imposed a minimum mandatory sentence of three years imprisonment in such cases. The appellant then had a clean record.

In the meantime, following the conviction of appellant and whilst his case was on appeal, the Dangerous Drugs Act 1986 was repealed and replaced by the Dangerous Drugs Act 2000. The 2000 Act was clearly intended to provide for harsher penalties when dealing with drug traffickers but at the same time provided for an intermediary offence for persons like the appellant whose act, though reprehensible, may not necessarily be classified as trafficking.

In fact, under the 2000 Act, there was no minimum mandatory sentence in respect of gandia, which was classified under Part I of the First Schedule, although the sentence had been increased by providing for a fine of up to one million rupees and imprisonment for a period not exceeding 25 years. The Judicial Committee took into account the fact that if the appellant was prosecuted under the 2000 Act, no averment of trafficking would have been made against him. The charge would be one under section 30 of the 2000 Act where it would have been open to the Court to impose a fine if it is considered appropriate in the circumstances of the case.

It was in that context that the Judicial Committee considered the question of proportionality of the sentence and whether the sentence meted out, bearing in mind the facts of the case, was proportionate and not contrary to section 7 of our Constitution. The Committee relied on the pronouncements of the Supreme Court in a string of cases (Pandoo V The State 2006 MR 23, Gunputh V The State 2007 SCJ 128, Philbert V The State 207 SCJ 274, Madhub V Director of Public Prosecutions 2007 SCJ 282 and Noshib V The State 2009 SCJ 6) where the principle of proportionality has been applied. It concluded that a sentence of three years imprisonment would be wholly disproportionate to the offences committed by the appellant.

Next, the Judicial Committee was concerned with the question of delay and applied the principles enumerated in the case of Dyer V Watson 2002 UKPC D1 and Prakash Boolell V The State of Mauritius 2006 UKPC46. The Judicial Committee was of the view that there has been inordinate delay, amounting in its opinion, to an infringement of the appellant’s right to a fair hearing within a reasonable time. The case was referred to the Supreme Court for sentencing purposes. The Judicial Committee reached the same conclusion in respect of the second appeal.

The third appeal, i.e. the NRPT case, may not turn out to be a pyrrhic victory after all. But the case elucidates procedural issues on the question of pleadings and locus standi. The Judicial Committee makes it clear that it deprecates pleadings that are treated as a tactical game. The Committee, however, was not concerned with the merit of the case of the appellants as regards the constitutionality of the NRPT. Since the NRPT has already been implemented, the decision of government to abolish it should not hinder the appellants from pursuing their action. In fact they should be encouraged to carry on.

* Published in print edition on 23 July 2010