Police v Lagesse & ors

2016 INT 358

IN THE INTERMEDIATE COURT OF MAURITIUS
C N 880-2014
Police
v.
(1) Thierry Pierre Joseph Marie Lagesse
(2) Ashis Kumar Seeburrun
(3) Dhanishwar Toolsee
Judgment

All three Accused parties are charged under count 1 with the offence of Conspiracy in
breach of section 109(1) of the Criminal Code (Supplementary) Act coupled with sections
158(1)(a) and 160 (1)(b) of the Customs Act. The averment provided by the Prosecution
is as follows: they did wilfully and unlawfully agree with each other to do an act
which is unlawful, to wit: evading payment of excise duty and taxes which are payable on
an imported car make Mercedes Benz SLS 63 AMG the said car benefitted from a
concession in respect of duty and taxes under the Returning Resident provision when
imported.
Accused no.1 is further charged under count 2 with Possession of goods on which excise
duty have not been paid in breach of section 156(1)(c)(1)(2)(a)(ii)(b) of the Customs Act,
the particulars of the goods in lite has been provided to be a car make Mercedes Benz
SLS 63 AMG, and the payable amount of duty and taxes being Rs. 7, 966, 850.
Accused no.3 is charged under count 3 with Forgery in breach of section 108(b), 111
and 121 of the Criminal Code, the particulars of the private writing being an invoice
number 12259 dated 31/10/2010 with letterhead Bramley whilst the particulars of the

forgery being by fabricating an obligation to the effect that the car make Mercedes Benz
SLS 63 AMG costed 70,000.
Accused no.3 is further charged under count 4 with Making use of the forged private
writing in breach of section 108(b), 111, 121 of the Criminal Code, the particulars of the
private writing being the same as under count 3.
Accused no.2 is also charged with Swearing false affidavit in breach of section 195(1)
of the Courts Act under count 5. The particulars of the offence has been averred as
follows, [he] did before Mr. Deoraz Beedassy, the Principal Court Officer at the
Supreme Court, solemnly affirm an affidavit, to be used in a Judge in Chambers
application bearing SCR No. 193/2013, in the said affidavit dated 11/02/13 [the
Accused] falsely stated to have taken delivery and possession, and further falsely stated
that he allowed one Thierry Lagesse to drive the vehicle for recreational and personal
purposes.
All three Accused parties pleaded Not Guilty to the counts under which they respectively
stand charged and were duly assisted by Counsel.

The Prosecution case was also

conducted by Counsel.
THE EVIDENCE ADDUCED BEFORE THIS COURT.
The evidence adduced by the Prosecution can be safely categorised into four groups,
namely:
1. The evidence showing Accused no.1 was in possession of the car make Mercedes

Benz SLS 63 AMG;

2. The Police enquiry;
3. The Mauritius Revenue Authority (MRA) enquiry;
4. Other evidence.

1. THE EVIDENCE SHOWING ACCUSED NO.1 BEING IN POSSESSION

OF THE CAR
Mr. Gungabissoon stated that together with Mr. Boodhun and Mr. Fokeer, he carried out
an investigation as to whether the imported car was still in Accused no.2s possession.
He proceeded to Camp Thorel and to Providence but did not find the car there. He
enquired from Iframac and was told that the car was brought for servicing by a
representative of Kaloa Management ltd, whose director is Accused no.1. He then went
to Caudan at the address of Kaloa Management ltd but did not find the said car there
either. Subsequently, he went to Cap Malheureux at Accused no.1s place and found the
car in his garage on four different occasions; on the 5 th, 11th, 14th and 29th of June 2012.
He added that pictures were also taken. He explained that the surveillance exercise was
carried out in April 2012 at Accused no.2s address on several occasions during and
sometimes after working hours. He even enquired from neighbours who stated they had
not seen any such car.
Mr. Boodhun stated that he spotted the car at Cap Malheureux at Accused no.1s place
on four occasions in June 2012.
Mr. Fokeer also confirmed that following surveillance exercise carried out at Camp
Thorel, Providence and Cap Malheureux, the car was found on eight occasions at
Accused no.1s place between May and September 2012. He added that the photos were
taken save and except when Accused no.1 drove it.
Mr. Rambaruth stated that on 21.09.12, he went to Accused no.1s place with a search
warrant to secure car bearing registration number 1177 FB 11, imported by Accused no.2

under the Returning Resident Schemes . He explained that the car was parked in Accused
no.1s garage, was secured and driven by Accused no.1s driver to Customs warehouse
for safe custody.
2. THE POLICE ENQUIRY

PC Burumdoyal produced a plan he drew up following spots shown by Accused no.2 at

Camp Thorel and Providence under the instructions of PS Bundhoo (Document A refers).
WPC Pauhaloo produced a booklet of nine photographs taken under the instructions of
PC Thakoor (Documents B, B1 to B9 refer) whereas PC Mannaram produced a booklet
of five photographs (Documents C, C1 to C5 refer) taken under instructions of PS
Bundhoo at Camp Thorel and Providence in presence of Accused no.2.
PC Thakoor confirmed that he instructed WPC Pauhaloo to take nine photographs which
he duly identified in Court (Documents B, B1 to B9 refer). He then produced a statement
explaining the photographs (Document D refers).
PC Dominique then read and produced Accused no.3s statement dated 07.08.13
(Document E refers).
PC Kassor confirmed that a speeding contravention was established on 14.04.12 at
Camp Chapelon in respect of car bearing registration number 1177 FB 11 and a
photographic enforcement device notice was addressed to the owner of the said car,
Accused no.2 (Document F refers).
PS Bundhoo then read and produced three statements from Accused no.1 dated 26.08.13,
27.08.13 and 20.11.13 respectively (Documents G, G1 and G2 refer), four statements
from Accused no.2 dated 05.08.13, 09.08.13, 10.08.13 and 30.04.14 respectively

(Documents H, H1, H2, H3 refer) and three statements from Accused no.3 dated
06.08.13, 13.08.13 and 04.09.13 respectively (Documents J, J1, J2 refer).
He also produced a series of documents remitted to him by Accused no.1 during enquiry
(Document K refers) as well as affidavits affirmed by Accused no.2 (Documents L, L1
refer) and other documents secured during the enquiry (Documents M to AE refer),
including a statement by himself explaining photographs taken under his instructions
(Document AB refers). The car shown on photographs (Documents B, B1 to B9 refer)
bearing number 1177 FB 11 make Mercedes Benz and lying at VIPSU as per PS
Bundhoo was then produced as exhibit (Exhibit 1 refers). He explained that the enquiry
started following complaint by MRA for breach of Customs Tariffs Act and Customs Act.
He confirmed that Accused no.2 benefitted from concession and imported the car but the
Customs believed that Accused committed an offence since he allowed another person to
use the car he imported.

He admitted that in his statement (Document AB refers), he

explained that the photo no. 5 (Document C5 refers) showed a closer view where
Accused no.2 kept the Mercedes car outside the garage. He conceded that the Police did
not conduct any independent enquiry as to whether Accused no.2 was in possession of the
car. He also conceded that the three charges against Accused no.3 were not put to him
and that a copy of the original invoice from Bramley was not secured so that he could not
say what was written in the original document. He conceded that Bramley was not
contacted.
3. THE MRA ENQUIRY

Mr. Vythilingum, of the Customs department, explained that the bundle of documents
produced (Document AA refers) was a customs declaration lodged by Customs broker
Mr. Veeramootoo, for the import of a car from United Kingdom, the importer being
Accused no.2 as a returning citizen who was entitled for excise duty concession X03.
The bundle also contained the invoice of the car, declaration by Accused no.2 as returning

citizen, his passport amongst others. He explained that in order to satisfy X03 excise
duty concession, the person should be of Mauritian nationality, should not have
renounced his nationality or acquired another one, must have lived abroad at least five
years preceding his return to Mauritius, should have worked there and purchased the car
before his return to Mauritius; he should also have shipped the car to Mauritius within a
period of 6 months since purchase; he does not have the right to sell, pledge or otherwise
dispose of the car. In the present matter, the Post Control Unit found that the value
submitted was not correct and following surveillance exercise, they found that the car
was not with the importer, Accused no.2 but with Accused no.1, parked at his residential
address. The car was subsequently detained and transferred to the Customs warehouse
and letters requesting explanations in respect of the misuse in breach of section 5(1) of
Customs Tariff Act were sent to the registered owner of the car, Accused no.2 as well as
to Accused no.1.

He explained that the real value of the car as per mail secured from

Accused no.3 was 143,500. He then produced a table of calculation of the short payment
(Document AF refers).
During cross-examination, he conceded that whatever he has been deponing is based on a
file no. 33/2012 compiled by other MRA officers and which was handed over to him on
25.09.12. He also agreed that a matter is referred to his investigative unit after the Post
Clearance Control Unit finds that there is need for further investigation following their
own investigation. He admitted that the matter was referred to his unit since there was a
problem in respect of the value of the car. He was then confronted with part of his
statement to Police 11.07.13 to the effect that Mr. Bhagwant of Post Clearance Control
Unit (PCCU) referred the matter to him on 25.09.12 since PCCU found that the car was
being used by another person than the beneficiary of the concession, following which he
agreed that it was for this reason alone that the matter was referred to him. He also
conceded he is not in possession of the mail in which the real value of the car is stated
and could not say the date of the rate of pound sterling he used. He conceded that
Accused no.2 is the importer of the car and benefitted from X03 exemption so that the

conditions of X03 applied to Accused no.2. He further had to concede that Accused no.1
did not import any goods and that X03 applies to an imported good. He admitted that
Accused no.2 imported the good in question and had certain conditions to comply with
which, according to his enquiry, he did not comply with but the MRA did not compound
the offence for Accused no.2.
During his cross-examination by Counsel for Accused no.2, he stated that his Unit
believed that Accused no.2 had committed a breach of Customs Act since the car was
being used for a purpose other than that stipulated by the Act and that it was being driven
and kept at the Accused no.1s place. However, since both Accused no.1 and 2 have
committed the breach, he wrote to Accused no.1 to have the case compounded. The case
was referred to DPP for his permission for compounding of offences but the latter rather
referred the matter to Police for criminal enquiry. He conceded he did not get permission
from DPP for compounding. He clarified that he sent a letter to Accused no.1 making
him an offer to compound. He also conceded that he admitted in his affidavit the
averment made by Accused in his affidavit to the effect that the latter took delivery and
possession of the said car.

He admitted that Accused no.2 had taken delivery and

possession of the car. He also agreed having taken note in his affidavit in response to
Accused no.2s averment in his affidavit that he had allowed Accused no.1 to drive the
car for recreational and personal purposes. He also stated that he had averred in his
affidavit that Accused no.2 contravened the Customs laws since Accused no.2 allowed
Accused no.2 full possession, use and enjoyment of the car as lessee of the car.
Mr. Persand, of MRA, explained that the vehicle was imported by Accused no.2 under
the Returning resident scheme and was under investigation by PCCU since there was
information from the field that the car imported by Accused no.2 was not found in his
possession but rather found in the premises of Accused no.1. The car was subsequently
secured at Accused no.1s place. He also stated that documents were secured from
Accused no.3s place. He explained that there was suspicion that the car which benefitted

from concessionary rates of duties and taxes under the Returning Resident Scheme,
claimed by Accused no.2 was not being used by the latter. He explained that customs
wrote to both Accused nos.1 and 2 offering them the possibility of compounding in
breach of X03 and in breach of section 5 of the Customs Tariff Act. He then clarified that
he did not offer compounding to Accused no.2 and that the user of the car committed the
breach.
Mr. Faknat stated that usually for new cars, the transaction value are accepted unless
there is any doubt or suspicion.
Mr. Seebah, of MRA, stated that he was responsible for the verification of documents in
respect of the car in lite, following which the vehicle was released .
4. OTHER EVIDENCE

Mr. Veeramootoo, Customs broker, stated that in January 2011, he was contacted by SS
Point for the custom clearance of the car and that his employee, one Sanjeev Lutchmun, a
customs clerk, processed the documents. He agreed that the value of the car as per the
invoice (Document Y refers) was 70, 582 and that the process was done electronically.
Mr. Barbot of the City Brokers admitted that the car 1177 FB 11 was insured by City
Brokers from February 2011 to July 2013. He explained he was contacted by Accused
no.3 for the insurance of the car but after he was confronted with his own previous
statement dated 13.08.13, he conceded Accused no.1 contacted him for an insurance
quotation for a new car, following which he received a request from Accused no.3. He
admitted he sent a quotation to Accused no.1 as well and that the car was finally insured
for 18 m rupees. He added that the insurance was paid by cheque by Accused no.1 on
two occasions and once by Kalua Management. He finally identified the documents in
respect of the insurance of the said car (Documents AC, AD, AE refer).

Mr. Beedassy, Principal Court Officer, admitted that the affidavit dated 11.02.13
(Document L1 refers) was solemnly affirmed by Accused no.2 before him but was not
aware whether this document was used in a Court case.
Mr. Sookia, Attorney at law, admitted that the affidavit dated 11.02.13 (Document L1
refers) was drafted by him upon facts obtained from Accused no.2. He also admitted that
the said affidavit was used in Court case in the Supreme Court before Judge in Chambers
SCR No. 193/2013. He explained that the Accused no.2 communicated the facts to him
in creole. He further agreed that the other affidavit (Document L refers) was also drafted
by him under Accused no.2s instructions and was produced in the same Court case.
Mr. Luckhun, of National Transport Authority (NTA), produced a certified copy of
entry from the Registrar of motor vehicles in respect of car bearing no. 1177 FB 11,
whose registered owner is Ashis Kumar Seeburrun of Royal Road, Camp Thorel and the
date of possession was 24.02.11 and date of transfer 25.02.11 (Document AG refers). He
admitted he gave a statement to Police dated 13.08.13 in which he stated that Ashis
Kumar Seeburrun took possession of the car on 24.02.11 and transfer on his name
effected on 25.02.11.
Mr. Perrine, Senior Court officer, produced a copy of the provisional charge lodged
against Accused no.3 (Document AH refers).
Mrs. Beeharry, of NTA produced a removal permit issued to Accused no.2 for an
unlicensed vehicle with TEM 220 for three days from 21 st to 23rd of February 2011 from
06.00 hrs to 18.00 hrs against payment of 300 rupees per day to travel from Port Louis to
Cap Maleureux and back (Document AJ refers). She also produced the application form
thereof (Document AJ1 refers).

Mr. Chuckowey, customs clerk, confirmed he filled in the form 6 concerning the
exemption to returning citizens which Accused no.2 signed in his presence.
The Prosecution case was then closed and so was the Defence case.
SUBMISSION ON BEHALF OF PROSECUTION
Mr. Baungally for the Prosecution submitted under count 1, the car was bought for the
sole enjoyment of Accused no.1, with Accused no.1 being only a prete nom as owner of
vehicle and this is the conspiracy between the three Accused parties. He submitted that
the unlawful act was that Accused no.1 used the concession he benefitted under the
Returning Resident scheme to which he was entitled for somebody else benefit.
He added that Accused no.1 admitted that the car was financed by Accused no.1 who also
met all the other expenses such as car insurance, customs duties payment. He referred to
the promissory note between Accused nos. 1 and 2 and the coincidence that it would
come to term when the concession on the duty would also be terminated.

He further

highlighted the fact that Accused no.1 also admitted in his statement that he was allowed
to have the use of the car which was lent to him and he added that the car was not leased
to him.

He then referred to Accused no.1s statement (Document K, TL06 refers)

wherein, the said Accused swore in the affidavit at para. 4 that I admit paragraph 8 of A1
and avers that the car was let to me by the applicant so that if the ordinary dictionary
meaning is given to the word let, then it would mean that allowing someone to use
something in return for regular payments. He then referred to GN 125/2007 and to the
clause under paragraph 3(b) to the effect that he will be liable to the full amount of excise
duty and value added tax representing the concession granted plus penalty if he sells,
pledges or otherwise disposes and Accused no.2 never took possession of the vehicle as it
was driven straight to Cap Malheureux so that he disposed of the good. In any event,
Accused no.2 cannot afford such a car in view of his financial capacity. He also referred
to the lease agreement which Accused no.2 signed and to which he also referred in his
affidavit (Document L refers) and irrespective of the fact that the lease agreement was

never put into effect, it nevertheless showed Accused no.2s intention to dispose of the
car and wash his hands of the car. He then referred to Accused no.3s statement and how
he also knew that the returning resident scheme was being used and how he accepted the
deal for his own benefit and publicity.
Under count 2, he submitted that since Accused no.1 was in possession of the said car on
which custom duties and taxes have not been fully paid, there was a breach of section 156
of the Customs Act.
Under counts 3 and 4 respectively, he submitted that Accused no.3 confessed to both of
these charges in his statement.
Under count 5, he submitted that all the evidence showed that the car was destined to
Accused no.1 and referred to the lease agreement (Document N refers) so that Accused
no.2 had no control whatsoever over the car.
SUBMISSION ON BEHALF OF DEFENCE
Mr. Glover S.C for Accused no.1 questioned the Prosecution case which was based on
the fact that the car was in Accused no.1s possession which according to Prosecution
constituted a breach of the Returning Resident Provisions. He submitted that for the
Prosecution, Accused no.2 did not have the right to give the car to the person who
financed it. He however submitted it was not unlawful for Accused no.1 to finance the
purchase of the car and it was not unlawful for Accused no.2 to import the car and benefit
from the concessionary duty rate since Accused no.2 satisfied the Returning Resident
scheme. He further submitted that under GN 125/07 and GN 107/2008, there was no
conditions in respect of possession of the vehicle; it was only under GN 2/2013 that the
beneficiary of the concession on duties should also show possession of the car. He added
that there was also no fraudulent intention by Accused no.1 since the latter even verified
the law so that there cannot be conspiracy. The offence under count 1 would have been

constituted had Accused no.1 been the importer of the car but since this is not the case,
both counts 1 and 2 should be dismissed. He also stressed on the fact that there is no
evidence of any unlawful act.
Mr. Duval Jr. for Accused no.2 submitted that the lease agreement was never put into
effect. He conceded that Accused no.1 had the use and enjoyment of the said car but as at
date of offence under count 1, there is no evidence that it was unlawful for a returning
citizen to allow a third party to have possession of vehicle imported by him under the
returning resident scheme since it was never a condition of such a scheme that the
beneficiary should have exclusive possession of the imported car. The MRA however
concluded on the basis of surveillance exercise carried out sporadically over a period of 5
months that Accused no.1 had full possession.
Under count 5, he submitted that Accused no.1 was still the owner of the car and that he
allowed Accused no.1 possession of the car so that the Prosecution has to prove that the
impugned averment was made by Accused no.2 when Accused knew it was false or did
not believe it was true.
Ms. Moonshiram for Accused no.3 submitted that Accused no.3s participation under
count 1 was that he ordered the car but questioned the presence of any evidence of
meeting of minds of all three Accused parties to do an unlawful act. She also submitted
that the original invoice had not been secured, hence no other evidence against Accused
no.3 except his statement. But she submitted that his statement cannot be considered as
confession since the charges were never put to him.
UNSWORN VERSIONS OF ACCUSED PARTIES
I have also considered the statements from each Accused and their versions therein.

Accused no.1 denied having conspired with the other two Accused so as to defraud the
State of Mauritius by evading customs duty, charges and other payments. He also denied
he was the beneficial owner of the car and he further denied he caused the car to be
undervalued at a price of 70,000 when the real value is estimated at 143,500. In fact,
the charge of conspiracy was based on the allegation that the despite the fact that the car
was imported by Accused no.3 from UK in the name of Accused no.2 who was a
returning resident from UK, investigation by customs revealed that the car was always in
Accused no.1s possession so that Accused no.1 was the beneficial owner of the car
despite not being a returning resident from UK to benefit the duty concessions normally
provided for returning residents.
He explained that he made a total payment of 143,500 for the car. He also swore two
affidavits in which he averred that the car is the property of Accused no.2 who allowed
him the use of the car which was lent to him and that the car was not leased to him as he
did not enter into any lease agreement with Accused no.2. He denied he asked Accused
no.3 to undervalue the car and stated he had nothing to do with the importation of the car
as well as with the formalities with MRA, declaration of the value of the car or payment
of Customs duty and clearance of the car from the Customs. He denied he was the
beneficial owner of the car. He then elected to exercise his right to silence to all other
questions put to him by Police. He nevertheless referred to a number of press articles to
allege that it was the modus operandi of Accused no.3 to undervalue cars. He also
referred to bank transfers totalling 143,500 in respect of purchase of the car and
submitted those documents as well as press cuttings to the Police.
Accused no.2 exercised his right to silence during Police enquiry and chose not to answer
questions put to him in his statements.
Accused no.3 stated that he is the director of SS Motor Point which deals with the
importation of cars and that Accused no.2 retained services of his company in November-

December 2010 to search for a car, following which Accused no.2 imported car Mercedes
Benz 1177 FB 11. He stated that Accused no.2 chose the Mercedes SLS63 AMG and that
Accused no.1 transferred 90,000 to his company account to buy the said car which was
valued at 70,000. He enquired from Accused no.2 as to why Accused no.1 paid him the
said sum and he was told by Accused no.2 that he took a loan from Accused no.1 to buy
two cars. He then got acquainted with Accused no.1 who contacted him for price
quotations of cars on several occasions.
However, in the same statement (Document J refers), he gave a different version, this
time stating that he met with Accused no.1 in 2010 and proposed his services to him to
import a car for him. Accused no.1 told him he was interested in a Mercedes SLS 63
AMG. Accused no.3 then searched the net and found one model on sale and told
Accused no.1 about same. He then contacted the sales agent Bramley and was told that
the showroom price of the car was 145,500. He then bargained with Bramley and got a
better price of 140,000. He informed Accused no.1 who asked him the price could be
changed but Accused no.3 told him it was not possible due to bank transfers. Accused
no.1 then enquired about Returning resident schemes and after Accused no.3 explained
him the scheme Accused no.1 seemed impressed and some days later, he told Accused
no.3 he would deal under the returning resident scheme and knows one such returning
resident. By coincidence the returning resident he chose was Accused no.2 whom he
knew from his visit to England in 2008. He told Accused no.2 about the risks involved
but Accused no.2 told him he knew Accused no.1. Accused no.1 decided to go ahead and
buy the car under the returning resident scheme and made effected the payments for
same. He also admitted he fabricated an invoice showing sum of 70,000 (Document Y,
invoice dated 31.10.10 refers). He even took the car to Cap Malheureux and to Camp
Thorel where Accused no.2 took pictures with the car.
He then gave another statement in which he gave a further different version. In this
statement (Document J1 refers), he stated in November 2010 he was at the car wash at

Super U Grand Bay and was approached by a white man complimenting him about his
car. Then the white man made him talk with another person by phone who presented
himself as Accused no.1 and who gave him his email address so that he could give him
quotation of cars. He sent him a quotation of one Porsche but which he turned down. He
also sent him a quotation on a Mercedes AMG. Accused no.1 had also enquired from
him about the returning resident scheme and after he explained to him the scheme,
Accused no.1 asked him to henceforth send him quotation prices in duty paid as well as
under returning resident scheme. At the same period of time, Accused no.2 had returned
from UK and told him to look for a job for him. He sent Accused no.2s CV to Accused
no.1 since the latter owned several companies. Accused no.1 asked him who was Accused
no.2 and told him that he was a friend who had just returned from UK after 6 years. He
then asked Accused no.1 of his full names so as to import the car and it was then that
Accused no.1 told him that the car would be imported in the name of Accused no.2 and
he understood there was something between Accused nos.1 and 2. He did not care who
was buying and who was paying as long as he obtained his fees. He nevertheless
informed Accused no.1 of the risk involved. Accused no.3 stated he had to accept the
deal since it was big one and a good publicity for him.
In another statement (Document J2 refers), he explained that the total fees he received
from Accused no.1 for his work as agent in respect of searching and placing the order for
the car was 744, 250 rupees.
He gave another statement (Document E refers) in which he again admitted having
changed the price of the car in the invoice from 90,000 to 70,000 and left it at the
reception of Mr. Veeramootoo, Customs Broker in Port Louis. He also stated that it was
Accused no.2 who contacted Mr. Veeramootoo but agreed that having paid the latter his
fees.
THE CASE AGAINST ACCUSED NO.3

When all his statements are considered, it is found that there are several versions as to
how he placed the order of the car. His first version was that it was Accused no.2 who
contacted him and chose the car to be ordered. He stated that Accused no.2 got a loan
from Accused no.1 who paid for the car. The second version he gave was that he went to
meet Accused no.1 and offered his services to him to find a car for him and then after
having chosen the car, Accused no.1 told him to proceed under the Returning resident
scheme and that he knew one such returning resident who happened to be Accused no.2
whom he knew from his visit to UK in 2008. The last version he gave was that he got
into contact with Accused no.1 through another white man and following which Accused
no.1 told him to look for a car for him. When he got the Mercedes and bargained a good
price from Bramley, Accused no.1 was interested to proceed by the Returning resident
scheme and about the same time, Accused no.2 who returned from UK asked him to find
a job for him. He then sent a CV of Accused no.2 to Accused no.1 who then told him that
the car would be imported in the name of Accused no.2.
Thus, there are three versions from Accused no.3 as to how he got involved in this matter,
but the only one thing which is consistent in all his versions is that he searched for the
car, acted as middleman with Bramley and placed the order for the car.
Now, Counsel for the Prosecution has submitted that Accused no.3 made a full confession
to all three charges against him.
As regards his statements, it is clear that he admitted that he changed the price on the
invoice from 90,000 to 70,000 and that he left it at the reception of the Customs Broker
at Port Louis to be used by the latter.
Does it therefore mean that as submitted by the Prosecution there is confession by
Accused no.3 in respect of the charges against him, particularly under counts 3 and 4
respectively?

It is important here to note what is meant by a confession. In The Queen v Boyjoo 1991
SCJ 379, the Supreme Court held that:
Our law does not define what a confession is though everybody is familiar with the
meaning to be attached to it. In Stephens Digest on the Criminal Law the following
definition appears: an admission made by a person charged with a crime stating or
suggesting the inference that he committed the crime.
Thus, a confession is an admission made by a person charged with a crime, stating or
suggesting the inference that he committed a crime. It is precisely because of such a
definition that the Judges Rules have stated with precision under Rule II that:
As soon as the police officer has evidence which would afford reasonable
grounds for suspecting that a person has committed an offence, he shall
caution that person or cause him to be cautioned before putting to him any
questions, or further questions, relating to that offence.
Once there is reasonable ground for suspecting that a person committed an offence, any
further statement should be taken under caution. In the present matter, I find that the
statements from Accused no.3 (Document E, J, J1 and J2 refer) were recorded under
warning so that it is only reasonable to infer that at that stage, the Police had evidence
from which they could reasonably suspect the Accused of having committed an offence.
But, when all his statements are considered, I find it was never put to the said Accused
that there are evidence from which it could reasonably be inferred that he committed an
offence or several offences. In fact, his statements are in the narrative, allowing the
Accused to give his version at leisure, so much leisure that he gave several versions and

from which several offences including those under the present information might be
inferred to have been committed.
It is here most pertinent to note that whilst statements were recorded from Accused no.3
under caution, a situation reserved usually when there is evidence against an Accused
party as per Judges Rules, in the present matter, the Police officer himself conceded no
charge was ever put to the Accused. In fact, it is conceded by PS Bundhoo that no charge
in relation to three offences were ever put to the Accused no.3 when recording his
statements.
I find it most relevant to refer here to the following observations by the Supreme Court in
The State v Ruhumatally 2015 SCJ 384:
But there is one important aspect that cannot and should not be overlooked. The
caution is not given generally in a void; rather, it is given in relation to an identifiable
offence that the accused is suspected of having committed. The further questioning by the
police officer relates to the offence which the person is suspected to have committed.
The person not being obliged to say anything once again relates to the offence which he
is suspected to have committed. If he has anything else to say which is of a general
nature and which can be helpful to the police, he can still do so under his civic duty to
help the police in solving crimes.
The above situation begs the question: How does a person exercise the rights and
privileges afforded to him by the caution if he does not know what offence he is being
suspected of having committed? An effective interpretation of Rule II would require that
we read into it the obvious proposition that a person has to be informed of the nature of
the offence he is suspected of having committed so that he may exercise his rights and
privileges under the caution in an informed way. This does not mean that he has to be

informed of one or more offences in legal language, or of the section/s of the law which
have been breached, or of the elements of the offence. But the person must be given an
idea
which is elaborate enough concerning what is reproached of him and which constitutes a
breach of the penal laws of Mauritius and to which he is being asked to answer.
Thus, it is clear that the Police cannot and should not find their duty fulfilled by merely
administering the caution and recording a statement under caution. Such a duty is void if
the Accused party is not also given an idea which is elaborate enough to inform him what
is being reproached of him and which constitutes a breach of our criminal laws and for
which he is now required to give an explanation under caution. It is only then that a
statement under caution becomes an effective one since he would then be able to
effectively take a decision, after having been informed of the version available to the
Police in respect of a particular offence(s), as to whether he would elect to exercise his
rights to silence and/or be assisted by Counsel. Otherwise, such a statement is of no
value whatsoever, even though he might have admitted stealing the moon and the sun.
This is the situation in the present matter; the Accused made a narrative of several things
and admitted several facts which might constitute an offence or several offences. But he
was never informed by the Police what is being reproached of him which might constitute
an offence under our criminal laws, despite the statements were recorded under warning.
The Supreme Court in Ruhumatally (supra) further explained the importance of
informing the Accused of what is being reproached of him as follows:
A distinction must be made between two types of cases. We may have, on the one
hand, a case involving only one offence which is obvious to one and all. Even in such a
case, there is a duty on the police to inform the person of the nature of the offence he is
suspected of having committed because we cannot assume that the person knows what is

being reproached of him. The fact that he is being assisted by counsel at that stage does
not absolve the police of its duty because counsel must himself know what is being
reproached of his client so that he can meaningfully advise the latter. We can, on the
other hand, have cases, the facts of which may reveal the commission of several possible
offences. The person may have in mind one possible offence but the police may be
considering or enquiring into another offence based on more or less the same set of facts.
This is where informing the person of the nature of the offence he is suspected of having
committed assumes all its importance.
I find it even more startling that Police did not choose to put the charges to Accused no.3.
I say choose since I find from the statements of the other two Accused parties involved
that they were duly informed of the charges against them. Thus, for reasons best known
to the Police, Accused no.3 was never informed of what is being reproached of him and
for what types of offences he was now being requested to give a statement under
warning. The effect of such a Police enquiry is that Accused no. 3 has been dealt with
unfairly to the extent that all his statements, even though admitted as evidence, cannot be
relied at all. In all fairness, he should have been informed of the nature of offences he is
suspected to have been committed.
When I turn to the definition of confession highlighted above from Stephen and cited by
Boolell J in Boyjoo (supra), it is clear that a confession is an admission made by a
person charged with a crime. In the present matter, based on the above, I cannot say that
this Court is faced with a confession by Accused no.3 since when he gave the statements
and made certain admissions, he was not then informed of any charge or nature of
offences he was suspected of having committed.
There are also other decisions from the Supreme Court such as Easton v The State 2012
SCJ 55, Jhootoo v The State 2013 SCJ 373, which have consistently held the

importance of the charge being put to the Accused at enquiry stage. In Jhootoo (Supra),
the Supreme Court held the following principles:
There is no defence statement for, and indeed, a complaint of giving false
statements in relation to the drug dealing offence, in breach of sections 42(1)(a)(4) of the
Act was never put to him.

[16] For the reasons given above, the convictions under counts 2 and 3 cannot stand on
the ground that the appellant had not been given an opportunity to exercise his
constitutional rights. The appellant had a right to know in the first place the details of the
case regarding the false statement. Nothing shows that it was ever put to him that he
would be charged for an offence of giving a false statement in connection with a drug
offence. Section 10 (2) provides that every person who is charged with a criminal offence
... shall be informed as soon as reasonably practicable, in a language that he
understands, and, in detail, of the nature of the offence. That constitutional imperative
has been breached in this case and a conviction cannot be based on that core irreducible
minimum of fairness.
In Seetahul v the State 2015 SCJ 328, the Supreme Court further clarified the principles
in Jhootoo as follows:
There is no provision in our law which imposes a duty on the police to actually put the
charge to the accused at the enquiry stage. Section 5 of the Constitution relates to the
rights of the person who is arrested or detained to be informed of the reasons for his
arrest or detention, to be afforded reasonable facilities to consult a legal representative
of his own choice and to be brought without undue delay before a Court. Section 10 (2)
of the Constitution provides that every person who is charged with a criminal offence
shall be informed as soon as reasonably practicable, in a language that he understands,
and, in detail, of the nature of the offence. In the information before the trial court, the

appellant is charged for unlawfully being found on private premises not belonging to him
without giving a satisfactory explanation for his presence there. In the course of the
enquiry, the version of witness L. Seewoolal was put to the appellant then accused as
follows:

In the case of Jhootoo v The State [2013 SCJ 373], the appellant was charged under
three counts. Under count one for drug dealing and under counts 2 and 3 for giving false
statements in relation to the drug dealing offence under section 42(1) (a) (4) of the
Dangerous Drug Act. It is noted that the charges under counts 2 and 3 were never put to
the appellant at the enquiry stage so that he could not rebut the allegation. There was no
defence statement for the Complaint of giving false statements in relation to the drug
dealing offence. The Court held that the convictions under counts 2 and 3 cannot stand
on the ground that the appellant has not been given an opportunity to exercise his
constitutional rights. The appellant had a right to know in the first place the details of the
case regarding the false statement. Nothing shows that it was ever put to him that he
would be charged for an offence of giving a false statement in connection with drug
offence. The convictions under counts 2 and 3 were quashed.
In the present case, the version of the prosecution witness was put to the appellant and he
had denied being in the yard of Mr Purmessur. It was not incumbant at the stage of the
enquiry to put each and every element of the offence to the appellant. It suffices that
the version of the complainant was put to him so that he was made aware of the case
against him and the evidence on which it is based so as to enable him to prepare his
defence.
The last paragraph of the above extract from Seetahul (supra), which is consistent with
Ruhumatally (supra) explains as to what should happen at enquiry stage so that the right
of an Accused to a fair trial is not jeopardized; the version of the complainant should be

put to the Accused so that he is made aware of the case against him as well as the
evidence on which such a case is based to enable him to prepare his defence.
When the above principles are applied to the facts of the present case, it is found that all
the statements of Accused no.3 are in the narrative. He was oblivious of the charge or
nature of offence the Police had or did not have in mind at that stage against him.
In the light of above, I find that it is most unfair for this Court to rely on such statements
from Accused no.3 in respect of the charges against him today. I cannot therefore rely on
any of his statements (Documents E, J, J1 and J2 refer) as evidence against him.
Now, there is no other evidence as well from which the elements of the offences under
counts 3 and 4 respectively can be established. PS Bundhoo has admitted he does not
have a copy of the original invoice dated 31.10.10; he did not either contact anyone from
Bramley so that it is not known as a fact what was the value of the car in the original
invoice.
Mr. Vythilingum mentioned a mail from Accused no.3 from which the real value of the
car was assessed. But he also conceded he does not have any copy of the said mail.
Moreover, whilst Mr. Vythilingum stated that the real value of the car was 143,500 as
per the mail, the admission which Accused no.3 allegedly made, and which is not
retained by this Court, was to the effect that he changed the value of the car from 90,000
to 70,000, so that there is no certainty as to the real value of the car. In the face of such
uncertainty, it cannot be said that there has been forgery, or at the very least any evidence
of alteration of the truth as to the real value of the car.
Thus, at the end of the day, there is no evidence whatsoever from which the elements
of the offences under counts 3 and 4 respectively could be proved beyond reasonable

doubt so that I dismiss the charges against Accused no.3 under counts 3 and 4
respectively.
He is now left with the charge under count 1 under which he is charged together with
Accused nos. 1 and 2 with conspiracy.
THE CHARGE OF CONSPIRACY AGAINST ALL THREE ACCUSED UNDER
COUNT 1
I have to say that there might be an answer as to why Accused no.3s statements were in
the narrative and no charge put to him. In fact, it could be because the Police were
presumably considering him to be a witness in this matter but subsequently decided for
reasons known best to them not to give him such a status. Otherwise, how can it be
explained that whilst the MRA officers stated that their enquiry led only to the conclusion
that there was a breach of customs laws, the Police then decided to enquire on conspiracy
charges, the more so PS Bundhoo confirmed that there was no independent Police
enquiry conducted.
In fact, this conspiracy charge may have been based on the multiple versions of Accused
no.3 which the Police used as evidence to question Accused nos.1 and 2; their statements
are based on versions from Accused no.3 put to them by Police starting each time by, if
Toolsee says or Si Dhaneshwar Toolsee dire.
Be that as it may, it is now decided that none of Accused no.3s statements can be relied
upon an iota as evidence against him and it is also settled rule of evidence that statements
of an Accused party is in any event not evidence against other co-Accused parties.

But, it is nevertheless an undisputed fact that the role played by Accused no.3 in this case
is that he searched the car, placed the order for the car and acted as middleman in the
negotiation with Bramley.
Accused no.1 admitted in his statements that he financed the purchase of the car for a
total amount of 143,500 and there is also evidence from Mr. Barbot of City Brokers that
Accused no.1 paid for the insurance of the said car. Accused no.1 also admitted in his
affidavit dated 08.03.13 (Document K, TL06 refers) that the car is the property of
Accused no.2 who allowed him to use the car. He even admitted that the car was lent to
him by Accused no.2 (Document K refers, TL07 refers, para. 5). He was simply allowed
to have the use of the car by Accused no.2 which was never leased to him. He also
admitted having provided a loan to Accused no.2.
Accused no.2 elected to exercise his rights to silence in his statements but there is
undisputed evidence from the MRA officers that he was the importer of the car who
benefitted from concessionary rates under returning resident scheme as a result of being a
returning resident.

In any event, his name appears in the Customs single goods

declaration (Document AA refers) that he is the importer of the said car. The bill of
lading from Mediterranean Shipping Company (Document AA refers) also mentions
Accused no.2 as the consignee of the car, shipped from Felixstowe to Port Louis. The
invoice is on his name (Document Y refers). Moreover, Accused no.2 duly signed Form
6 of the declaration form claiming duty concession on a motor vehicle under item 3(2)(a)
of Part 1A of the first schedule to Excise Act (Document AA refers) as a returning citizen
of Mauritius. Mr. Chuckowey confirmed that it was Accused no.2 who signed the said
form 6 in his presence. Thus, there is no doubt that Accused no.2 was the importer of the
said car and claimed duty concession as returning citizen. In any event, Accused no.2
confirmed these facts in his affidavit (Document L1 refers) as well as confirmed that
MRA acceded to his claim for duty concession. He also averred the fact he allowed
Accused no.1 to drive the car for recreational and personal purposes. In another affidavit

(Document L refers), he denied he gave Accused no.1 full possession of the car and
denied having leased the car to any person and averred that the lease agreement was
never put into effect. He nevertheless admitted having borrowed money from Accused
no.1 for the purchase of the car and that he allowed Accused no.1 to use the car.

Now, the offence of conspiracy is provided as follows under section 109(1) of the
Criminal Code (Supplementary) Act:
109. Conspiracy
(1) Any person who agrees with one or more other persons to do an act which is
unlawful, wrongful or harmful to another person, or to use unlawful means in the
carrying out of an object not otherwise unlawful, shall commit an offence and shall,
on conviction, be liable to penal servitude for a term not exceeding 10 years and to
a fine not exceeding 100,000 rupees.
Thus, there are several ways to commit an offence of conspiracy as per section 109(1) of
the Criminal Code (Supp) Act and the Supreme Court in Kessoownath & ors v R 1986
SCJ 383 explained the various ways in which the offence of conspiracy may be
committed as follows:
We find, in that Memorandum, that it was intended to create the offence of conspiracy in
Mauritius by applying the law to persons who conspire to do
(1) unlawful acts;
(2) lawful acts by unlawful means.
It is obvious that the intention was to go further than the English common law which only
knew the offence of conspiracy to do something unlawful. We can now split the operative
part of section 109, as it appears in the 1965 text, into two parts, as follows (i) to do an act which is unlawful, or wrongful or harmful to another person,

(ii) to use unlawful means in the carrying out of an object not otherwise unlawful.

In the present matter, the Prosecution has charged that the three Accused parties under
count 1 did wilfully and unlawfully agree with each other to do an act which is unlawful,
thus choosing to aver to do an act which is unlawful as one of the possible means to
commit the offence of conspiracy. By unlawful act, it is clear that one refers to acts
which are prohibited by law as explained in Kessoownath (Supra) so that there must be
a basis in law for the prohibited act. But I am also alive of the orbiter in D.P.P v
Noordally 1989 SCJ 87 to the effect that the words "prohibited by law" do not limit the
issue to criminal law alone. Yet, despite making this observation, the Supreme Court
proceeded to determine the appeal by assuming that it had to be established that the
respondents had agreed to commit an offence.
Be that as it may, the Prosecution has also averred section 158(1)(a) of the Customs Act
as the prohibited act by law.
Now, in Mohit v the State 2012 SCJ 130, the Supreme Court affirmed that Deedaran v
the Queen 1981 MR 61 established the three elements of the offence of conspiracy as
follows:
It has clearly been spelt out in Deedaran v. The Queen [ 1981 MR 169 ] that for the
offence of conspiracy, the three elements to be proved are
(1) an agreement
(2) by two or more persons
(3) to carry out an unlawful act.
1. THE AGREEMENT

The Supreme Court referred to Archbold in Deedaran (supra) to further explain what is
meant by agreement and the relevant extract reads as follows:

Our law has been mainly inspired by the English Common Law of Conspiracy about
which we find as follows in Archbold, Criminal Pleading, Evidence and Practice, 39th
Edition at paragraphs 4051 & 4051 (c) 4051. (i) The agreement Conspiracy is an indictable offence, consisting in the agreement
of two or more persons to do an unlawful act, or to do a lawful act by unlawful means (1
Hawk. c. 72, s. 8). Unless two or more persons are found to have combined there can be
no conviction: R. v. Plummer [1902] 2 K.B. 339, and see post, 4081. So long as such a
design rests in intention only, it is not indictable. When two agree to carry it into effect
the very plot is an act itself, and the act of each of the parties, promise against promise,
actus contra actum, capable of being enforced if lawful, is punishable if for a criminal
object or the use of criminal means: see Mulcahy v. R., L.R. 3 H.L. 306, 317; R. v.
Warburton, L.R. 1 C.C.R. 274; R. v. Tibbits and Windust [1902] 1 K.B. 77, 89; R. v.
Meyrick and Ribuffi, 21 Cr. App. R. 94. The offence cannot exist without the consent of
two or more persons (not being husband and wife, 1 Hawk. c. 72, s. 8) Mawji and
another v. R., 41 Cr. App. R. 69, P.C. (a), and their agreement is an advancement of the
intention which each has conceived in his mind, which then passes from a secret intention
to the overt act of mutual consultation and agreement: see Mulcahy v. R., L.R. 3 H.L. at
p. 328. Thus an engagement by two or more is conspiracy, even if the conspirators do
nothing in pursuance of the engagement: OConnell v. R., 5 St. Tr. (N.S.) 1.
In the present matter, in the light of the facts admitted by all three Accused parties and
other evidence highlighted above, it can reasonably be inferred that there was an
agreement between the three Accused parties for Accused no.2 to import a car from UK,
to be ordered by Accused no.3, by using the Returning resident status and therefore
benefitting from concessionary rates on duties on the imported car under the Returning
Resident provisions of Customs Act, the purchase of which car would be financed by
Accused no.1 who would then be allowed by Accused no.2 to use and have possession of
the said car in return.

In fact, the Prosecution agreed that their case was to the effect that there has been
allegedly an agreement between Accused no.1 who would be using the car and benefit
from the concession which Accused no.2 is eligible to as a returning resident so as to
evade payment of an excise duty which Accused no.1 would have been liable to had he
been the importer.
2. BY TWO OR MORE PERSONS

There is no dispute to the fact that there were three persons involved in the alleged
agreement to do an unlawful act, at least as per the averments under count 1.
3. TO CARRY OUT AN UNLAWFUL ACT

The Prosecution should still prove beyond reasonable doubt that the agreement is to do an
act which is unlawful as averred by the Prosecution. The act prohibited by law which has
been averred by the Prosecution is under section 158(1)(a) of the Customs Act and which
reads as follows:
158. Customs offences
(1) Every person who (a)evades or attempts to evade payment of any duty, excise duty or taxes which are
payable;
shall commit an offence.
The particulars of the said unlawful act has been provided under count 1 as being,
evading payment of excise duty and taxes which are payable on an imported car make
Mercedes Benz SLS 63 AMG the said car benefitted from a concession in respect of duty
and taxes under the Returning Resident provision when imported
Had the agreement been that Accused no.1 import the car and claim concession on duty
and taxes under Returning Resident provisions when in fact he was not eligible, then
surely there would have been an agreement to evade payment of duty and taxes payable
when importing such a car.

But the situation is different here despite the fact that Accused no.1 is allowed to use and
enjoy the said car. This is so since the importer is Accused no.2 who is undisputedly a
Returning resident and who is eligible to such concessions on duty and taxes when
importing a car as per the provisions of Excise Act as per item 3 of the first schedule as
amended by Excise (Amendment of Schedule) (no.2) Regulations 2008 GN no.
107/2008. He had to satisfy conditions under Part C paragraphs 2 and 7 of the Schedule
under item 3 and there is no dispute that he did satisfy them to be eligible to such
concessionary rates. It is to be noted here as rightly submitted by Counsel for Accused
no.1 that the concession is attached to the person and not to the car so that one may
question the particulars provided since it is averred that the car benefitted from the
concession.
Further, there are no conditions as to how the motor vehicle had to be financed or how the
motor vehicle would be acquired financially, for instance, whether the importer returning
resident had to buy the car from his own personal savings or was not allowed to take a
loan. Thus, it was perfectly entitled for Accused no.1 to finance the purchase of the car
imported by Accused no.2 under the Returning resident provisions.
He then had to comply with conditions under paragraph 9 of item 3 once he was granted
concession and which are the following:
(a) For a period of 4 years, submit to the Director General, not later than one month

immediately following a period of 12 months from the date of importation of the

motor vehicle or motorcycle, evidence that he is still residing in Mauritius;
(b) Be liable to pay the full amount of the excise duty and value added tax

representing the concession granted, plus a penalty of 10 per cent thereon where(i)

he sells, pledges or otherwise disposes of the motor vehicle or motorcycle

within 4 years of the date of its importation;

(ii)

he fails to submit the evidence referred to in paragraph (a).

It is to be noted that there is no condition as to how the car should be used, whether it
should be used for the sole enjoyment of the returning citizen, whether it should be driven
solely by the returning citizen, whether he cannot allow anyone else the use and
enjoyment of the said car. The only conditions attached to his use of the car was that he
had to give evidence that he was still in Mauritius every year during a period of 4 years
and that he had not sold, pledged or otherwise disposed of the car.
There is no evidence whatsoever that Accused no.2 failed to comply with the conditions
once he was granted the concessions. He is still the rightful owner of the said car so that
he did not sell the car or at least there is no such evidence. Now, pledge has not been
defined by the Act so that its ordinary dictionary meaning should be given to it which is
as per Oxford concise dictionary, seventh edition, thing handed over to person as
security for fulfilment of contract, payment of debt, etc and liable to forfeiture in case of
failure, deposit as security. There is a reconnaissance de dette signed by Accused no.2
in favour of Accused no.1 which incidentally is of the same value as the car and which
again incidentally would come to term at the same time when the car would have reached
four years following its importation (Document K, TL01 refers). However, it is also
obvious that the car was not put as security for the debt, so that there is no pledge
involving the car. As regards otherwise dispose which again is not defined by the Act so
that one has to resort to dictionary meaning of dispose.

According to the same

dictionary, dispose means get rid of, sell. It is already found that Accused no.2 did not
sell the car and there is also no evidence that he got rid of the car.
Prosecution submitted that Accused no.2 got rid of the car once it was cleared by customs
by entering into a lease agreement which was produced (Document N refers) and which
existence was never hidden by Accused no.2 since he disclosed same in his affidavit
(Document L refers). But the fact remains that the said lease agreement was never put

into effect and had no legal effect whatsoever since it lacked one of the conditions to be
an effective legal contract, namely signature of one of the parties to the agreement.
This said, I am also conscious of the principle that once there is an agreement to do an
unlawful act, the offence of conspiracy is complete even though the unlawful act is not
put into effect. This was made clear by the Supreme Court in Deedaran (Supra) which
referred to the following extract from Archbold already cited above, Thus an
engagement by two or more is conspiracy, even if the conspirators do nothing in
pursuance of the engagement: OConnell v. R., 5 St. Tr. (N.S.) 1..
The question which arises here is whether by merely agreeing to enter into a lease
agreement, the Accused parties have agreed to do an unlawful act in the light of an
offence under section 5(1)(4) of the Customs Tariff Act.
However, when the evidence on record is carefully perused, it is found that in fact, the
evidence of such intention to enter into lease agreement is only in respect of Accused
no.2 in the light of his affidavit (Document L, para. 7 refers). There is no evidence that
Accused no.1 had also agreed to enter into any lease agreement with Accused no.2; the
former made it very clear in his affidavit dated 21.06.13 (Document K, TL07, para. 5
refers) that he had never entered into any lease agreement with Accused no.2 and that the
car was never leased to him. He maintained this version in his statements as well
(Documents G, G1, G2 refer).
Prosecution also stressed on the fact that Accused no.1 himself averred in his affidavit
that the car was let to him by Accused no.2 so that it was evidence that the former had
full possession of the car. Prosecution submitted that by letting the car to Accused no.1,
there is evidence of an agreement to do an unlawful act. However, I find it most essential
to also refer to the other affidavit by Accused no.1 dated 21.06.13 (Document K refers,
TL07 refers) wherein at para. 5, Accused no.1 explained that in fact the car was lent to
him as opposed to let to him and that there was a typographical error in his first affidavit.

He added that he did not enter into any lease agreement with Accused no.2 in respect of
the car and that the car was not leased to him.
True, it is when lease agreement is considered, it is found that the name of Accused no.1
appears as a director of Kalua Management ltd and as representing the said company but
the lease agreement was never countersigned by Accused no.1 on behalf of the company.
Thus, it cannot be said that Accused no.2 disposed of the car by leasing it to one Kalua
Management ltd, a company whose director is Accused no.1 (Document N refers). In any
event, had the lease agreement been implemented, it would have been an agreement
between Accused no.2 and Kalua Management Ltd and not with Accused no.1 and it is
here needless to say by the way that as per Jugnauth v The State 2016 SCJ 187, a
director and a company are two separate entities. I also have to add that there is no
evidence as to who drafted the said agreement. Thus, there is no evidence that Accused
no.1 had such a design in his intention which he later advanced into an agreement.
In the light of this Court having found that Accused no.3s statements to be worthless, I
cannot either find any evidence from Accused no.3 having agreed with the other two
Accused parties as regards the said lease agreement.
Thus, even if Accused no.2 might have intended to enter into a lease agreement, it must
still be proved that he agreed with another person to do an unlawful act, since Unless
two or more persons are found to have combined there can be no conviction: R. v.
Plummer [1902] 2 K.B. 339 and The offence cannot exist without the consent of two or
more persons (not being husband and wife, 1 Hawk. c. 72, s. 8) Mawji and another v. R.,
41 Cr. App. R. 69. There is no such evidence of Accused no.2 having agreed with
another person be it with Accused no.1 or Accused no.3 to lease the car. As regards the
purported lease agreement with Kalua Management ltd, there is no evidence as to who
drafted the said document so that it cannot be said that Accused no.1, as director, had
such design in his intention which he then advanced into agreement. It could be that

Accused no.2 himself drafted the said document since when reading his affidavit
(Document L, para. 7(d) refers), I find that he averred that upon being communicated
with the conditions attached to his concession, he caused the lease agreement to be
replaced by a reconnaissance de dette. Thus, it could be that Accused no.2 himself
decided on his own to enter into a lease agreement, without any meeting of minds with
the other Accused parties as regards the design of a lease agreement.
Thus, there is definitely no evidence of let or lease as a means of otherwise dispose so
that there is no evidence that Accused no.2 breached any of the conditions after the
concession was granted. There is also no evidence that the three Accused parties agreed
with each other so that Accused no.2 would lease the car to Accused no.1.
Prosecution submitted that the unlawful act is in the fact that Accused no.2 used the
benefit of concession on duty and taxes when importing a car which he was entitled for
someone else benefit. However, the short answer to this is whilst it may be true that this
is the case, it is nevertheless not unlawful. There is no restriction or condition as to how
the car so imported under Resident returning scheme should be used or as regards its
possession as at date of offence. There is simply no restriction to the effect that he could
not allow someone else use and enjoy the car. There is no restriction on Accused no.2
which prevents him from allowing any of his acquaintance the use and enjoyment of the
car as long as he did not sell, pledge or otherwise dispose of it to the other party.
Moreover, the Excise (Amendment of Schedule) Regulations 2013 GN 2/2013 came
into force on 01.01.13 and now under item 3 of the first schedule, at paragraph 7, such a
returning resident should not only now provide evidence that he is still residing in
Mauritius but that he is also in possession of the motor vehicle.
The amendment brought by GN 2/13 thus bolsters the case that there was in fact no
restriction as regards possession prior to 01.01.13.

I therefore find that the Prosecution has not been able to prove this element of the offence
of conspiracy against the Accused parties under count 1, namely, to carry out an unlawful
act as per the particulars averred; the agreement between the Accused parties was
therefore not to carry out an unlawful act as there is no evasion of duty and taxes by
anyone involved.
Moreover, the Prosecution would also have to prove the mental element of the offence of
conspiracy. It is here relevant to refer to the following extract from Archbold quoted in
Deedaran (Supra) as regards the mental element of the offence of conspiracy:
4051. c. (iv) The mental element
Conspiracy involves the element of mens rea, in that the prosecution must prove not only
an agreement between the alleged conspirators to carry out an unlawful purpose, as
signified by words or other means of communication between them, but also an intention
in the mind of any alleged conspirator to carry out the unlawful purpose: R. v.
Thomson, 50 Cr. App. R. 1. Before a person can be convicted of conspiracy to commit an
offence, he must at least know the essential matters which constitute that offence. Mens
rea is an essential element in conspiracy only in so far that there must be an intention to
be a party to an agreement to do an unlawful act. Knowledge of the law on the part of
the defendant is immaterial and knowledge of the facts is material only in so far as it
throws a light upon what was agreed. If what the alleged conspirators agreed to do was,
on the facts known to them, an unlawful act, they cannot excuse themselves by saying
that, owing to their ignorance of the law, they did not realise that such an act was a
crime. If on the facts known to them, what they agreed to do was lawful, they are not
rendered artificially guilty by the existence of other facts, not known to them, giving a
different and criminal quality to the act agreed upon: Churchill v. Walton [1967] 2
A.C. 224; 51 Cr. App. R. 212, H.L. The prosecution are not bound to prove that the
persons entering into the agreement had knowledge of the illegality of the act agreed to

be done. As to both that and the necessity of proving knowledge of essential facts, see
Churchill v. Walton [1967] 2 A.C. 224; 51 Cr. App. R. 212, H.L.
In the present matter, both Accused nos.1 and 2 made it perfectly clear in their respective
affidavits as well as Accused no.1 in his statements that whatever they had done was
lawful and not in contravention of any customs laws. They maintained having agreed to
do something lawful and Accused no.1 even sought legal advice on this aspect. Thus,
they had no intention whatsoever to carry out any unlawful act. As regards Accused no.3,
it is clear that his statements cannot be relied upon so that there is no evidence of any
intention in his case as well.
In the light of above, I find that the Prosecution case against all three Accused
parties under count 1 has not been proved beyond reasonable doubt so that I
dismiss the charge against all three Accused parties under count 1.
THE CHARGE AGAINST ACCUSED NO.1 UNDER COUNT 2
Under count 2, it is alleged that Accused no.1 was in possession of a car Mercedes Benz
SLS 63 AMG on which duty and taxes payable have not been paid.
However, since it is proved that the said good was imported by Accused no.2 who
benefitted from concession under the returning resident provisions which were duly
complied with, I fail to see any offence committed. When the table of calculations
prepared by Mr. Vythilingum is considered (Document AF refers), it is clear that
whatever tax and duty Accused no.2 had to pay as importer of car under the
concessionary rate as a returning resident was in fact paid at the rate of 15 percent, so that
it is clear that duty and taxes payable on the good was in fact paid. Thus, Accused no.1
was in possession of a good imported by Accused no.2 who duly paid the duty and taxes
payable on said good at the time of importing it.

Now, it is also true that it is alleged that the car was undervalued but it is equally a fact
that there is no evidence to substantiate such alleged fact. Mr. Vythilingum admitted that
the mail he based himself to find that the car was undervalued was not in his possession.
In fact, he had based himself on the said mysterious mail to make his calculations and
this is obvious from the table itself (Document AF refers) but such a mail was never
produced. Secondly, PS Bundhoo also conceded that the original invoice was not secured
from Bramley so that he could not say what was written therein. Thus, whether there has
been undervaluation of the car or otherwise has not been proved. True, Accused no.3
admitted that he changed the price of the car in the invoice dated 31.10.10 (Document Y
refers) from 90,000 to 70,000. But he did not depose in this matter so that whatever he
stated in his statement which this Court has found to be worthless against him is in any
event not evidence against another Accused party. Even if he had deposed under oath,
then there would still have been a discrepancy since Mr. Vythilingum has valued the car
at 143,500 and not 90,000 as stated by Accused no.3 in his statement (Document E
refers).
I therefore find the Prosecution case under count 2 not proved beyond reasonable doubt
since I find that the duty and taxes payable were in fact paid in respect of the goods in
question when imported by Accused no.2.
For above reasons, I dismiss the present charge against Accused no.1 under count 2.
THE CHARGE OF SWEARING FALSE AFFIDAVIT AGAISNT ACCUSED NO.2
Under count 5, the particulars of the offence have been provided as follows: [he] did
before Mr. Deoraz Beedassy, the Principal Court Officer at the Supreme Court, solemnly
affirm an affidavit, to be used in a Judge in Chambers application bearing SCR No.
193/2013, in the said affidavit dated 11/02/13 [the Accused] falsely stated to have taken
delivery and possession, and further falsely stated that he allowed one Thierry Lagesse to
drive the vehicle for recreational and personal purposes.

Indeed, it is found that in his affidavit dated 11.02.13 (Document L1, paras. 4 and 8
respectively) to have made those averments.
Now, when section 195(1) of the Courts Act is considered, it is clear that swearing false
affidavit is an offence:
195. Penalty for swearing false affidavits
(1) Any person who swears a false affidavit where an affidavit is required or may be
used, shall be liable
The elements of the said offence, which the Prosecution has to prove beyond reasonable
doubt, are as follows:
1. swears a false affidavit;
2. where an affidavit is required or may be used ( in the present matter, it has been

averred may be used)

The Prosecution also has to prove beyond reasonable doubt the mental element of the
said offence which was explained in Neerooa v The Queen 1989 SCJ 454 to be the
following, it is necessary to prove that the appellant knew that the statement was false
or that he did not believe that it was true.
But first, the Prosecution has to prove that the statements were false. However, the
evidence from the Prosecution case has established the contrary. In fact, Mr. Vythilingum
admitted that Accused no.2 took delivery and possession of the car. He also admitted this
fact in his affidavit in response to the very averment in question under the present count.
Furthermore, Mr. Luckhun also admitted that he stated in his statement dated 13.08.13
that Accused no.2 took possession of the car on 24.02.11. Moreover, there is the certified
copy of entries in the register of motor vehicles at the NTA produced by Mr. Luckhun to
the effect that Accused no.2 is the owner of the said car and the date of possession of the

said car being 24 Feb 2011 (Document AG refers). In the face of an official public
document to the effect that Accused no.2 took possession of the car on 24.02.11, I find
that in fact Accused no.2 took possession of the car consistent with his averment in the
affidavit (Document L1 refers). Thus, the Prosecution witnesses themselves have proved
that the said statement by Accused no.2 in his affidavit is not false. True, it is that Mrs.
Beeharry stated that a removal permit was issued from 21.02.11 to 23.02.11 with a trip
from Port Louis to Cap Malheureux and back, but again, the permit was applied by
Accused no.2 himself so that the permit was in his name and that too for a period ante
24.02.11 (Documents AJ, AJ1 refer). Thus, again, there is no evidence of false statement.
There is a statement from Accused no.3 to the effect that the car was taken to Cap
Malheureux and the key given to Accused no.1 but this statement by Accused no.3 is not
evidence against another Accused unless he deposed under oath and subjected himself to
cross examination, an event which did not occur. Moreover, the truth of the fact is that
Accused no.2 is as from 25.02.11 the registered legal owner of the said car so that it is
presumed until the contrary is proved, that he was in possession of the said car
(Document AG refers). But, based on evidence on record, there is nothing which shows
beyond reasonable doubt that he made a false statement under para. 4 of his affidavit as
averred by Prosecution.
As regards the alleged false statement under para. 8 of the affidavit, there is again no
evidence to show that it is a false statement when Accused no.2 stated he allowed the CoRespondent to drive the car for recreational and personal purposes. The Prosecution has
adduced evidence from the MRA officers who carried out surveillance exercise to show
that on eight occasions between May and September 2012, the car was seen at Accuseds
place at Cap Malheureux. But this does not show that the statement is false. The
Prosecution might be alluding to the fact that Accused no.1 had full possession of the car
and not merely allowed by Accused no.2 to use the car. However, the surveillance
exercise only proved that the car was at Accused no.1s premises on eight occasions
between May and September 2012 which cannot amount to evidence of full possession. I

have also considered the fact that there are photographs produced by Police (Documents
C, C1 to C5 refer) where according to PS Bundhoo (Document AB refers), Accused no.2
used to keep the said car outside his garage (Document C5 refers). This is evidence
before this Court produced by Prosecution and which has not been contradicted so that
there is also evidence that Accused no.2 kept the car at his place. There is also no
evidence to show that the car was being used for any other purposes other than
recreational or personal purposes. Moreover, it is only when one has a right in something
that he may allow or permit or give someone that something and Accused no.2 as the
rightful owner of the car had the capacity to allow Accused no.1 to drive his car. There is
therefore no evidence whatsoever to show that the statement he made was false.
Since the Prosecution has not proved that Accused no.2 made false statements as
averred under count 5 beyond reasonable doubt, I find Prosecution case under
count 5 against Accused no.2 not proved beyond reasonable doubt so that I dismiss
the charge against Accused no.2 under count 5 as well.

Neerooa M.I.A
Magistrate, Intermediate Court.
This 28 July 2016.