Sanjiv Teeluckdharry Autorisé autorisé à contesté le rapport Lam Shang Leen…

by | Oct 27, 2020 | Actualités, Faits Divers

TEELUCKDHARRY K. v LAM SHANG LEEN P. & 2 ORS
2020 SCJ 269
Serial No.: 117435
IN THE SUPREME COURT OF MAURITIUS
In the matter of:-
Kalidass Teeluckdharry
Applicant
v
1. Mr Paul Lam Shang Leen
2. Mr Samioullah Lauthan
3. Dr Ravin Kumar Domun
Respondents
In the presence of:-
1. The State of Mauritius
2. The Honourable Attorney General
3. Mr Koosiram Conhye
Co-Respondents
JUDGMENT
1. In an amended Motion Paper dated the 6
th July 2020, the applicant moves for leave to
apply for judicial review for:-
“(A) An Order
(a) declaring that the findings of the Commission of Inquiry on Drug Trafficking in
Mauritius, appointed by Her Excellency the then President of Mauritius on the
14th July 2015 and chaired by the Respondent No. 1 with the Respondents No. 2
and No. 3 as members, against the Applicant are perverse, ultra vires the terms
of reference of the Commission, biased, in breach of the law of evidence, in
breach of natural justice and unfair, unreasonable, irrational and unwarranted;
and
(b) expunging the comments and alleged findings on the Applicant from the Report
of the Commission
2
and/or
(B) For such other Order or Orders the Supreme Court may deem fit and proper to make
in the circumstances of the case including a direction for the Respondents
themselves or through the Co-Respondent No. 3 and/or for the Co-Respondents No.
1 and No. 2 to bring up before the Supreme Court the Official Report and all the
proceedings and/or documents and/or files and/or records, including digital
recordings of the Commission of Inquiry on Drug Trafficking in Mauritius, appointed
by Her Excellency the then President of Mauritius on the 14th July 2015 and chaired
by the Respondent No. 1 with the Respondents No. 2 and No. 3 as members, for the
Order prayed for by the Applicant at (A) above.”
2. On the 27th July 2020, the following grounds of objection were filed by the then Assistant
Solicitor General:
(a) ex facie the said affidavit and the Report of the Commission of Inquiry on Drug
Trafficking (pages 227 and 228 of DOCUMENT J annexed to the said affidavit), the
alleged findings that Applicant states at pages 12 to 16 of the said affidavit were
allegedly made by the Respondents are in fact “observations”, “facts”, “an
assessment of evidence” and “a recital of evidence”, against which no judicial review
lies;
(b) the Commission of Inquiry on Drug Trafficking has acted within the scope of the
terms of reference as set out at pages 23 and 24 of the Report of the Commission of
Inquiry on Drug Trafficking [DOCUMENT J to the affidavit] and it was fully entitled to
make such recommendations as appropriate on any matter connected with or
relevant to inter alia drug trafficking and money laundering by drug traffickers,
including such action as is deemed necessary to fight the problem of importation,
distribution and consumption of illicit drugs in the Republic of Mauritius;
(c) in the light of the above, the application discloses no arguable case; and
(d) in any event, the application has not been made promptly.
3. On the day on which arguments were heard, Ms K. Domah, who now appears for the
respondents, did not insist on ground (d). The co-respondents are abiding by the
decision of the Court.
4. It is therefore the respondents’ contention that the application discloses no arguable
case because (1) ex facie the applicant’s affidavit and the respondents’ report, no
“findings” as such were made by the Commission of Inquiry, and (2) the Commission
acted within the scope of its Terms of Reference and was fully entitled to make
3
appropriate recommendations on any matter connected to drug trafficking and money
laundering by drug traffickers.
5. At paragraph 57 of his affidavit, the applicant contends that the respondents (a) have
acted ultra vires the terms of their express mandate, having regard to the Commission’s
explicit Terms of Reference (b) they have flouted the rules of natural justice, and (c) they
have also fallen foul of the provisions of section 13 of the Commission of Inquiry Act
which provide that the law of evidence shall apply to proceedings before the
Commission.
A. THE “FINDINGS”
6. For ease of reference, we reproduce verbatim the “alleged findings” contested by the
applicant, as averred (and as underlined) in his affidavit:
The First Alleged Finding (paragraph 79)
79. … [DOCUMENT J, at p.227]:
“The Commission needs to point out that amongst all lawyers who deposed before it, Mr.
Teeluckdharry, accompanied by a panel of lawyers, tried to be difficult. He was at all time
on the defensive. His attitude towards the Commission almost verged on contempt
accusing the Commission of mudslinging. He should know that there is freedom of
expression in this country, a free press who has (sic) to bear any consequence of any
defamatory article and the Commission has no power over the freedom of the press to
publish articles which are not to the liking of counsel. When he was taken to task, he
apologised.
The Second Alleged finding (paragraph 86)
86. … [DOCUMENT J, pp. 227-228] …
“Counsel had been in communication with a mobile number which was secured in prison
from a prisoner Rudolphe Derek Jean-Jacques also Gros Derek who was charged with
an offence of drug trafficking. At one time, there were some 8 calls and on many
4
occasions exchanges of text messages. When he was queried by the Commission,
Counsel could not recall the tenor of the conversation nor the person with whom he had
those exchanges.
According to prisons records, Mr. Teeluckdharry also held grouped meetings with several
prisoners involved in drug related cases on certain occasions….
Mr. Teeluckdharry produced to the Commission a huge number of briefs apparently to
justify that his visits were not unsolicited. The Commission perused the briefs and noted
that the briefs produced were mostly irrelevant as they were not those accused
mentioned by the Commission. However, he could not refute the unlawful call made.
Communication with prisoners not through the proper authorised channel is an offence.
The prisoners he saw were notorious drug traffickers many of whom were not his clients
and the Commission has pointed out already of the dangers of seeing a prisoner in the
circumstances….”
The Third Alleged Adverse Finding (paragraph 91)
91. … [DOCUMENT J, p. 228] …:
“Furthermore, information was brought to the attention of the Commission, unfortunately
after his deposition before the Commission, so that the Commission could not seek his
views, in relation to a case of possession/selling of gandia where the Commissioner of
Police considered that Counsel Teeluckdharry had acted in a most unprofessional and
unlawful manner and had referred the case to the Director of Public Prosecutions. Mr.
Teeluckdharry represented Mr. Mooneeram who was identified by co-accused Mr.
Wassil, but thereafter he interviewed Mr. Wassil although his services were not retained.
As per information, counsel instructed co-accused to make a false declaration against
ADSU officers which accuced (sic) did. Thereafter Mr. Wassil came back to his original
statement.”
7. The applicant avers in relation to these “alleged findings” that they were unjustified, that
if the Commission was not satisfied with his explanations it was duty-bound to request
for clarification instead of making “vague and unsubstantiated findings”, and he strongly
objects to the alleged finding that he could not refute the unlawful calls made.
5
8. He further avers that the respondents have made certain findings outside their remit, in
total disregard of the basic rules of natural justice and rules of evidence, and out of
ulterior motive, i.e., to discredit him as a barrister and as a public figure.
9. We note that although the respondents submit that the contested parts of the report do
not contain any findings amenable to judicial review, Ms Domah concedes that similar
issues have been considered during the second leg of judicial review applications and
that there is no “hard and fast rule to the effect that points, such as that taken … can
only be exclusively taken at the second leg of an application for judicial review.”
1
10. She then correctly points out that, “At leave stage, the general principle applicable is that
the Court will grant permission if it is satisfied that there is an arguable ground for judicial
review having a realistic prospect of success”
2
.
11. In the case of R v Inland Revenue Commissioners, ex p National Federation of SelfEmployed and Small Businesses Ltd [1982 AC 617], Lord Diplock thus explained that
“If, on a quick perusal of the material then available, the court thinks that it discloses
what might on further consideration turn out to be an arguable case in favour of granting
to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give
him leave to apply for that relief. The discretion that the court is exercising at this stage
is not the same as that which it is called on to exercise when all the evidence is in and
the matter has been fully argued at the hearing of the application.”
12. In order to determine whether or not this application discloses an arguable case, we
must therefore consider whether the applicant has shown, ex facie his own affidavit
1 Paragraph 8 of Ms Domah’s written submissions
2 Nathoo N v The Tourism Authority [2014 SCJ 385]
6
evidence, that the respondents have made what could amount to “findings” which would
be amenable to judicial review.
13. Learned counsel for the respondents refers to the case of Ramful R. P. v Sir Victor
Glover KT. G.O.S.K. & Others [2003 MR 131], which reaffirmed that judicial review lies
against findings of Commissions of Inquiry, and also to Stroud’s Judicial Dictionary and
Black’s Law Dictionary regarding the meaning of the word ‘findings”. She thus argues
that a “finding” must be distinguished from “comments”, “observations”, “remarks” or
“recital of evidence”.
14. In a nutshell, her submissions regarding the alleged findings are that (i) only “findings”
made by Commissions of Inquiry are amenable to judicial review (ii) the respondents
made no “findings” in the impugned paragraphs, so that (iii) the application does not
disclose an arguable case. 3
15. For purposes of the present exercise, it will be helpful to refer to what was said in
Valayden J. & Others v Matadeen K. P. & Others [2002 SCJ 82], namely:
“… (3) we are fully alive to the fact that applicant no. 1 apart from being the leader of the
MR is also a seasoned barrister-at-law of many years standing. It may well be that faced
with the “gist” of the allegations one could have expected him not only to refute the
allegations but also to ask for the source and exact nature and contents of the allegations
to be made known to him so that these could be submitted to cross examination and
tested. There is no reason to doubt that had he asked for particulars of the allegations the
Commission would have obliged by providing same. There also is no reason to doubt that
had detailed information about the specific allegations been provided to the applicants
the latter would have asked that the makers of the allegations be submitted to crossexamination. As it is we have to live with a situation of missed opportunities which must
however bear logical consequences.
(4) we are also alive to the fact that apart from the matter mentioned in paragraph 27(e)
of the affidavit of applicant no. 1 in which the Commission made a specific finding, all the
other matters set out in paragraph 27(a) to (f) merely state what certain witnesses would
have said in relation to the applicants without the Commission committing itself to make
3 Paragraph 47 of Ms Domah’s written submissions
7
any finding or pronouncement. That may well be, but the fact remains that with or
without making a value judgment on what witnesses had said about the applicants,
the very fact of reporting what those witnesses had said without giving a real
opportunity to the applicants to take full cognizance of those allegations and
deciding on the measures they should adopt to rebut those allegations, should
they be so minded, has created a situation seriously prejudicial to the applicants.
…”
[The underlining and emphasis is ours].
16. Similarly, in the case of Rummun O.K. v J.B.G.M. Joseph & Others [2002 SCJ 291],
counsel for the respondents had submitted that the allegation was only a recital of the
evidence and that it was never accepted as true by the respondents who did not draw
any inference from it. K.P. Matadeen and P. Balgobin JJ rejected the argument and
declared that the impugned “observation which in fact is an adverse finding on the
applicant is not borne out by the evidence before the Commission”.
17. In the light of these decisions, we are of the view that the term “finding” cannot, at this
stage of the application at least, be given the strict and literal meaning suggested by
learned counsel for the respondents. It is only after further arguments have been heard
that this Court will be in a position to adequately consider the impugned parts of the
report which concern the applicant in order to determine whether or not they should be
judicially reviewed and whether the remedies sought should be granted. The applicant
has therefore disclosed an arguable case regarding the “alleged findings” made by the
Commission.
18. Ms Domah further argues that a similar caveat as the one adopted by the Court in the
case of Valayden was inserted by the respondents when they expressly stated that the
applicant’s views could not be sought4
, so that any alleged prejudice which might have
been caused would have been vindicated by such a rider. Again, we find that this issue
can only be properly considered at the merits stage when the Court will determine
whether the statement made in that regard by the respondents in their report is
consistent with the principles of a fair hearing.
4 Paragraph 41.3. of Miss Domah’s written submissions
8
19. We must also observe that, contrary to the contention of learned Senior State Counsel
for the respondents to the effect that the application is not directed against the process
used by the respondents to lead them to their decision, the application is clearly founded
on the complaint that their findings were made in breach of the rules of natural justice
and of the law of evidence, thereby clearly questioning the process through which the
respondents arrived at their alleged findings.
20. In that context, we find it relevant to reproduce the views of Lord Slyn of Hadley in Rees
v. Others v Crane [1994 1 LRC 97], as cited in Valayden J. & Others v Matadeen K.
P. & Others:
“There are in my view no words which are of universal application to every kind of inquiry
and every kind of domestic tribunal. The requirements of natural justice must depend on
the circumstances of the case, the nature of the inquiry, the rules under which the tribunal
is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not
derive much assistance from the definitions of natural justice which have been from time
to time used, but, whatever standard is adopted, one essential is that the person
concerned should have a reasonable opportunity of presenting his case.”
21. The Court in Valayden went on to say:
“(2) it is an essential precept of fair hearing that a full and faithful account of the
allegations made be revealed to the persons implicated so that they may know precisely
the case they have to meet. In an appropriate case fair hearing may require that not only
the contents of the allegations but also the identity of those who made them be revealed.
Whilst we would not go so far as saying that there is any procedural requirement, in
ensuring fairness, that the full verbatim record of the evidence of any witness before a
Commission of Inquiry be communicated as a rule to the party implicated, we feel that
generally it is good practice to communicate such record. It would then be open to the
person implicated to ask questions, if he so wishes, in full “connaissance de cause”.
We say so because the alternative which was adopted by the Commission viz. by itself
putting the allegations made by the witnesses “in a gist” may prove to be an inadequate
process. Deciding what is the “gist” of the allegations which ought to be put, albeit done in
good faith, is a subjective appreciation which may not rejoin the view of the person
implicated. Furthermore, deciding what is the “gist” may not meet the test of objective
fairness. Elements which at first glance may appear innocuous or of no practical
relevance and which may therefore have been omitted from the “gist” which is put to the
person implicated may turn out to be capital to the latter. We may, as an example, advert
to the complaint vis-à-vis the evidence of Mr Bérenger contained in paragraph 27(c) and
(d) of the affidavit of applicant no. 1 which we have reproduced above. Whether the
allegations made are matters which have been perceived personally and are therefore
first hand evidence and admissible, or whether they are merely reflections or perceptions
of reports made by other persons and therefore hearsay and inadmissible, were matters
which do not appear to have been canvassed by the Commission. Furthermore the
identity of the author of an allegation is also important and ought to be revealed. Whether
9
that person is unquestionably a neutral onlooker or is, on the other hand, a political foe
who may have an axe to grind would be factors eminently relevant to an implicated
person’s defence. The applicants may very well have a cause for grievance when they
claim that they have not had a fair hearing if sufficient recognition and attention is not
given by the commission to features which ought to have been distinguished and
considered;”
22. We may also refer to the following passage from the Privy Council decision in R (on the
application of Hoffman) v Commissioner of Inquiry and Governor of Turks & Caicos [2012]
UKPC 17, cited by learned counsel for the respondents herself, and where Lord Phillips at
paragraph 36 of his Judgment, made reference to the following relevant principles, as laid down
in R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531 560:
“36. …
My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited
authorities in which the courts have explained what is essentially an intuitive judgment.
They are far too well known. From them, I derive that (1) where an Act of Parliament
confers an administrative power there is a presumption that it will be exercised in a
manner which is fair in all the circumstances. (2) The standards of fairness are not
immutable. They may change with the passage of time, both in the general and in their
application to decisions of a particular type. (3) The principles of fairness are not to be
applied by rote identically in every situation. What fairness demands is dependent on the
context of the decision, and this is to be taken into account in all its aspects. (4) An
essential feature of the context is the statute which creates the discretion, as regards both
its language and the shape of the legal and administrative system within which the
decision is taken. (5) Fairness will very often require that a person who may be adversely
affected by the decision will have an opportunity to make representations on his own
behalf either before the decision is taken with a view to producing a favourable result; or
after it is taken, with a view to procuring its modification; or both. (6) Since the person
affected usually cannot make worthwhile representations without knowing what factors
may weigh against his interests fairness will very often require that he is informed of the
gist of the case which he has to answer.”
37. The Court of Appeal added this at para 31:
“…the procedure of a Commission of Inquiry such as this one is primarily a question for
the Commission itself. Various considerations will affect that in addition to fairness,
including the requirement of effectiveness, speed, economy and practicality. There is no
general rule that all persons likely to be adversely affected by the findings of a
Commission of Inquiry are entitled to give oral evidence. It is sufficient if they are notified
of matters of concern which affect them and given a chance to respond.”
38. The Board is broadly in agreement with the approach of the Court of Appeal. The
Salmon principles cannot be inflexibly applied and the requirements of fairness must
be tailored in a manner that has regard to all the circumstances of the particular
10
Inquiry. The Court of Appeal was, however, itself overly specific if it intended to suggest
that it will always be sufficient to notify a person likely to be affected by the findings of a
Commission of Inquiry of matters of concern to the Inquiry and to give that person the
chance to respond in writting. Fairness will sometimes require that such a person be
given the opportunity to give oral evidence, and it is necessary to decide whether Mr
Hoffmann was such a person.”
[Emphasis added].
23. In the light of the above pronouncements, and since the applicant avers that the respondents
acted in breach of section 13 of the Commission of Inquiry Act and in breach of the rules of
natural justice, we find that the applicant has disclosed an arguable case which will require a
closer analysis of the standards and principles of fairness adopted by the respondents in the
particular context of the applicant’s grievances.
THE TERMS OF REFERENCE
24. The second main objection to this application for leave is based on the contention that
the Commission of Inquiry acted within the scope of its Terms of Reference, so that it
was fully entitled to make appropriate recommendations on “any matter connected with
or relevant to inter alia drug trafficking and money laundering by drug traffickers,
including such action as is deemed necessary to fight the problem of importation,
distribution and consumption of illicit drugs in the Republic of Mauritius;”
25. The Terms of Reference are reproduced hereunder: 5
(I) the scale and extent of the illicit drug trade and consumption in Mauritius and their economic
and social consequences;
(II) sources/points of origin/routes of illicit drugs;
(III) the channels of entry and distribution of drugs in Mauritius;
5 Pages 23 and 24 of the Report – pp. 64 and 65 of the brief
11
(IV) the channels of entry and distribution of drugs in prisons;
(V) the availability of new types of drugs, including synthetic and designer drugs, in Mauritius;
(VI) linkages between drug trafficking, money laundering, terrorist financing and other crimes;
(VII) the adequacy of existing legislation;
(VIII) the operational effectiveness of the various agencies involved in the fight against drug
trafficking;
(IX) the adequacy of the existing resources including human expertise technology and equipment,
to detect and counter any attempt to introduce drug including designer and synthetic drugs in
Mauritius;
(X) the need for fostering linkages and coordination among the various agencies and other local,
regional and international entities dealing with drug related matters for better strategic
direction;
(XI) the effectiveness of drug treatment and rehabilitation programmes as well as harm reduction
strategies, national prevention, education and drug repression strategies, with emphasis on
youth;
(XII) the tracking of funds in order to identify illicit activities;
(XIII) whether there is any evidence of political influence in the drug trafficking trade; and
(XIV) any other matter connected with, or relevant or incidental to paragraphs (I) to (XIII) above,
and make recommendations as appropriate, including –
A. such action as is deemed necessary to fight the problem of importation, distribution and
consumption of illicit drugs in the Republic of Mauritius; and
B. any statutory amendments as may be necessary to better safeguard the interests of the
public at large.
26. In its own words therefore, and as can be seen from its Terms of Reference, the
Commission did have an “extensive mandate”. Be that as it may, the applicant’s
complaint before us is that the respondents made findings which were outside their remit
and in total disregard of basic rules of natural justice and of evidence.
27. The applicant makes the following averments in that context:
“59. I state that, by the remarks made by the Respondent No. 1 that he had gone through
my bank statements and information he had from the MRA, the Commission did not find
12
that I had any “dealings” with the proceeds of crime, including proceeds from drug
trafficking.
60. I also state that by the own reckoning of the Respondent No. 1 during the
proceedings and in the Report, the Commission did not find that I had accumulated any
“unexplained wealth”.
61. I state that the Commission could only have investigated on me if they had suspected
me of (a) having any links with drug trafficking, money laundering, terrorist financing and
other crimes [under ToR (vi)], or (b) being involved in funds related to illicit activities
[under ToR (xii)].
62. The Commission did not make any findings against me concerning any “dealings with
the proceeds of crime, nor did it find that I had accumulated any “unexplained wealth”.
63. I state that the Commission had no evidence and did not make any findings
whatsoever of any links with drug trafficking, money laundering and other crimes as well
as the identification of illicit activities. The Commission travelled outside its mandate
inasmuch as the ToR of the Commission did not provide for any inquiry into the lawful
exercise of their profession by barristers and into the privileged relationship between
Counsel and client. In so doing, the Respondents acted ultra vires their terms of
reference.”
28. Ms Domah’s submissions in that respect are that the applicant’s case is not arguable
because of the wide ambit of paragraph XIV of the Terms of Reference, and that, as
long as the matter enquired into was connected with, or incidental to, the Terms of
Reference, the respondents could make the recommendations that they did.
29. Mr Domingue SC for the applicant refers to the disparaging remarks made against the
applicant although there is nothing in the Terms of Reference to indicate that the
Commission was mandated to investigate the communications between a convicted
prisoner and counsel, especially since the report does not indicate under which part of
the Terms of Reference the Commission made the alleged findings in relation to legal
advisers. He submits that the Terms of Reference will therefore require interpretation
and that such an exercise is better left for merits.
30. We have taken note of Mr Domingue’s reference to the decision in Bethel v Douglas &
Others (1995) 1 LRC 248, where the Privy Council cited the decision in R. Ratnagopal
v Attorney-General (1970) AC 974, which held that it should not be left to the
13
Commission to determine what the matters to be inquired into are to be. These decisions
were also referred to in Dayal J.R. v His Excellency The President of the Republic of
Mauritius & Others [1998 SCJ 23], where Pillay C.J. and Narayen J. held that the terms
of reference were limited in time and scope and that the President had not left it to the
Commissioners’ absolute discretion to determine what were the matters to be enquired
into and that they had, on the contrary, been spelt out.
31. Being given the nature of the objections raised by the respondents, and having regard to
the above pronouncements and the relevant extracts of the report, we are of the view
that the determination regarding the scope of the Terms of Reference is a question
which should eminently be left to the merits of the application in the light of the
averments contained in the applicant’s affidavit.
32. Whether the matters enquired into by the Commission were connected to or incidental to
the Terms of Reference, and whether these Terms were wide enough to allow the
respondents to make the inquiries and recommendations that they did, are issues which,
at this stage, we consider to be arguable points and which must be determined during
the second stage of this application.
33. We therefore find that the applicant has disclosed an arguable case and therefore set
aside the respondents’ objections.
34. For all these reasons, leave to apply for judicial review is granted.
N. F. Oh San-Bellepeau
Judge
14
M. J. Lau Yuk Poon
Judge
This 27th October 2020
Judgment delivered by Hon. N. F. Oh San-Bellepeau
For Applicant : Mr Y Balgobin, Attorney-at-Law
Mr D Basset, Senior Counsel, Mr A Domingue, Senior
Counsel, & Mr N Patten, of Counsel
For Respondents : Ms V Nirsimloo, Chief State Attorney
Ms K Domah, Ag Senior State Counsel, & Ms G Daby,
State Counsel
For Co-Respondents : Mr D K Manikaran, Senior State Attorney
Mrs A Pillay Nababsing, Senior State Counsel & Mrs D
Sewpal, Senior State Counsel

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