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Police v Chan and Chan Co Ltd

2013 PL2 20

Cause No. 45/12


IN THE DISTRICT COURT OF PORT-LOUIS (2ND DIVISION)
In the matter of:Police
v.

Chan and Chan Co Ltd


represented by Chan Tai Kong Yan Sun
Ruling
The accused company stands charged for not affixing price labels conspicuously in
breach of section 7(1)&(3) and 31(1)(a) of the Consumer Protection (Price and
Supplies Control) Act (the Act). The representative of the company put in a plea of
not guilty on behalf of the company which is assisted by Mr M.King Fat, of Counsel.
Learned Counsel for the defence has taken a preliminary point in law. He submitted
that the amendment brought to section 29 of the Act by Act no. 14 of 2005 raises a
constitutional issue as regards the separation of powers and consequently, this Court
is not duly vested with the required jurisdiction to try any offence under the Act. Prior to
the amendment, section 29 conferred exclusive jurisdiction to the Profiteering Division
of the Supreme Court to try offences under the Act. With the amendment through the
Finance Act 2005 (Act no. 14 of 2005), the Director of Public Prosecutions (DPP) has
been conferred the discretion to prosecute offences under the Act before the
Profiteering Court, the Intermediate Court or a District Court. This, the Learned
Counsel for the defence submits, violates the sacrosanct principle of separation of
powers as the DPP forms part of the Executive arm of the State. He added that in
other comparable legislation, the legislator expressly includes a proviso to the effect
that such power of the DPP shall apply notwithstanding section 114 of the Courts Act

and section 72 of the District and Intermediate Courts (Criminal Jurisdiction) Act. He
submitted that since the issue he has raised deals with the Constitution, this Court
must refer it to the Supreme Court for interpretation under section 84 of the
Constitution.
Mr Beekhun, the prosecuting counsel, offered brief submissions to the effect that
Parliament, in its sovereignty, has waived the exclusive jurisdiction of the Profiteering
Division of the Supreme Court and hence this Court is properly vested with the
requisite jurisdiction.
I shall address the issues raised under three headings:
I

Separation of powers

II

The proviso in relation to section 114 of the Courts Act and section 72
of the District and Intermediate Courts (Criminal Jurisdiction) Act

III

Invitation for referral of the case to the Supreme Court under section 84
Constitution.

I Separation of powers
Section 29(5) of the Act provides:
Prosecution of an offence under this Act and the Fair Trading Act shall
take place, at the discretion of the Director of Public Prosecutions, before
the Profiteering Court, the Intermediate Court or a District Court.
The Learned Counsel for the defence submitted that the discretion to elect the venue
for the trial violates the sacrosanct principle of separation of powers as the DPP forms
part of the Executive arm of the State.
The DPP has a constitutionally entrenched power to institute criminal proceedings
before any court of law. Section 72(3)(a) Constitution provides:
The Director of Public Prosecutions shall have power in any case in which
he considers it desirable so to do, to institute and undertake criminal
proceedings before any court of law (not being a court established by a
disciplinary law).

It is the most common feature of our criminal justice system that the power to institute
proceedings lies with the DPP. True it is that the limits of the jurisdiction of the different
courts vary in other words, a case can sometimes equally be lodged before a District
Court, the Intermediate Court or the Supreme Court. But it cannot be said that the
exercise of such discretion violates the principle of separation of powers since it is the
Constitution itself which provides for this set up.
I am comforted and fortified in this view by the decision in Legoffe V State and Marie
V The State (2010) SCJ 25. Therein, it was argued that the choice of trial before a
Judge without a Jury for the hearing should not lead to a complete disparity of
sentence for the same substantive offence upon facts that are similar; that the
sentence would have been significantly lower had the case been lodged before the
Intermediate Court.
The Court of Criminal Appeal disagreed and held:
We are perfectly aware that had the case been lodged before the
Intermediate Court, the appellants would have been liable to face a
maximum sentence of 20 years penal servitude. But the Director of Public
Prosecutions exercised his discretion to lodge the case before a Judge
without a jury who could impose a sentence of penal servitude which, at
the relevant time, was defined as being for a maximum period of 30 years.
We consider that he was well inspired to choose that venue considering
the very serious circumstances of the case.
In Mukhtar Ali & Gulam Rasool v The Queen (Appeals Nos. 4 and 5 of 1989), the
Judicial Committee of the Privy Council held:
a discretion vested in a prosecuting authority to choose the court
before which to bring an individual charged with a particular offence is not
objectionable if the selection of the punishment to be inflicted on conviction
remains at the discretion of the sentencing court.
The discretion of the DPP under the Act does not automatically lead to a selection of
the punishment to be inflicted on conviction and such discretion remains within the
province of the sentencing court.

In Police v Flore (1993) MR 106, it was submitted that Parliament had no power to
confer jurisdiction on the Intermediate Court to hear rape cases as it amounted to
stripping the Supreme Court, consisting of Judges whose security of tenure is
guaranteed by the Constitution, of its jurisdiction to hear such a serious crime as rape.
The Full Bench of the Supreme Court overruled this objection and held:
What the legislator did in 1960 was not to remove from the jurisdiction of
the Supreme Court cases which were to be tried by it prior to the setting up
of the Court in 1960. It only gave concurrent jurisdiction to the Intermediate
Court to try these cases. It was up to the then Procureur General (now the
DPP) to decide before which jurisdiction to send a case. To this there can
be no objection.
The Court added:
Whether the case is heard before the Intermediate Court or the District
Court of Rodrigues, the procedural and evidential rules are the same, the
onus of proof is identical, and there are the same rights of appeal.
The argument to the effect that the DPP forms part of the Executive has also been
dealt with by the Supreme Court on several occasions. The DPP is a public official
who is not part of the political executive. I cite for instance Director of Public
Prosecutions V Dhooharika & Anor (2011) SCJ 356 where it was held:
The applicant derives his powers to institute criminal proceedings under
section 72 of the Constitution. . Accordingly there was no breach of the
doctrine of separation of powers. Moreover, as indicated in Director of
Public Prosecutions v Boodhoo [1992 MR 282], it seems . that in a
case of criminal contempt, it is perfectly proper for the Director of Public
Prosecutions as a public official who is not part of the political executive to
conduct those proceedings.
These authorities make it abundantly clear that it cannot be contended that the
amendment to the Act through Act 14 of 2005 violates the principle of separation of
powers.

II The proviso in relation to section 114 of the Courts Act and section 72 of the
District and Intermediate Courts (Criminal Jurisdiction) Act
The defence submitted that if the legislator intended to confer jurisdiction on a lower
court, it should have inserted a proviso in section 29(5) of the Act which reads
notwithstanding section 114 of the Courts Act and section 72 of the District and
Intermediate Courts (Criminal Jurisdiction) Act, as is the case in other legislations.
In Director of Public Prosecutions V Teeha (2012) SCJ 109, the Supreme Court
was called upon to pronounce itself on this proviso which was to be found in section
163 of the Gambling Regulatory Authority Act. This provision read:
163 Jurisdiction
(1) Notwithstanding
(a) Section 114(2) of the Courts Act; and
(b) Section 72(5) of the District and Intermediate Courts (Criminal
Jurisdiction) Act
a Magistrate shall, subject to subsection (2), have jurisdiction to try any
offence under this Act and may impose any penalty provided by this Act.
(2) The prosecution of an offence under any of the sections of this Act
specified in the Fifth Schedule to the Criminal Procedure Act shall take
place, at the discretion of the Director of Public Prosecutions, before a
Judge sitting without a jury, the Intermediate Court, or a District Court.
The Court held:
It appears clear that the purpose of section 163(1) of the Act, when it was
passed in July 2007, was to empower a Magistrate to impose a stiffer
sentence [imprisonment of 3 years and fine of Rs 300,000] than it could
under the Courts Act and the DICCA [2 years imprisonment and Rs 10,000
fine].
The purpose of this proviso is to allow the Intermediate or the District Court to impose
a penalty which is beyond its regular jurisdiction as laid by section 114 of the Courts
Act and section 72 of the District and Intermediate Courts (Criminal Jurisdiction) Act.

The only effect of the absence of this proviso which is consistent with logic and
common sense is that the Intermediate or the District Court is limited to its regular
jurisdiction. Hence, in 2005 (when the District Court had the jurisdiction to impose a
maximum fine of Rs 10,000 and 2 years imprisonment), irrespective of the maximum
set in the Act (fine of Rs 100,000 and imprisonment for 3 years), the District Court
would have been limited to its regular limits under section 114 of the Courts Act and
section 72 of the District and Intermediate Courts (Criminal Jurisdiction) Act as section
29 of the Act was not derogative to (i.e. notwithstanding) the Courts Act and the
District and Intermediate Courts (Criminal Jurisdiction) Act. It is worthy of note that Act
No. 36 of 2008 has now extended the jurisdiction of a District Court under section
114(2) of the Courts Act and section 72(5) of the DICCA to a term of imprisonment of 5
years and a fine of Rs 100,000.
In the light of the above assessment, I find that the argument relating to the absence of
the proviso equally holds no water.
III Invitation for referral of the case to the Supreme Court under section 84
Constitution
Section 84 Constitution entitled Reference of constitutional questions to Supreme
Court provides:
(1)

Where any question as to the interpretation of this Constitution

arises in any court of law established for Mauritius (other than the Court of
Appeal, the Supreme Court or a court martial) and the court is of opinion
that the question involves a substantial question of law, the court shall refer
the question to the Supreme Court.
(2)

Where any question is referred to the Supreme Court in pursuance

of this section, the Supreme Court shall give its decision upon the question
and the court in which the question arose shall dispose of the case in
accordance with that decision or, where the decision is the subject of an
appeal to the Court of Appeal or the Judicial Committee, in accordance
with the decision of the Court of Appeal or, as the case may be, of the
Judicial Committee.
The Supreme Court has reiterated ad nauseam that the purport of section 84
Constitution is not to refer each and every matter where the word Constitution is

uttered to the Supreme Court. In Accountant General v Baie du Cap Estates (1988)
MR 1, the Supreme Court expressed the view that:
The whole range of our criminal law or civil law affects in one way or
another some provision or other of the constitution and it would simply be
unacceptable if matters were, for this reason alone, automatically upon
application, to be referred to the Supreme Court.
This case has been cited with approval on several occasions vide for instance
Police V Roheman (2010) SCJ 415, Independent Commission Against Corruption
V Peermamode (2011) SCJ 178 and Mauritius Revenue Authority V Ad Casa Ltd
(2011) SCJ 13.
In Roheman (supra), the Court cautioned:
The need for interpretation of a constitutional provision only arises when
the wording of that provision is unclear or ambiguous such that there is a
dispute as to how it should be construed and the Supreme Court has not
yet ruled on the correct construction of that provision. It is only when such
need for interpretation arises that a reference under section 84 (1) of the
Constitution is appropriate.
Having regard to the views I have expressed under headings I and II, it is clear that
there is no question which involves a substantial question of law where the opinion of
the Supreme Court should be sought. I hence decline the unwarranted invitation by
Learned Counsel for the defense to refer the matter to the Supreme Court for
interpretation.
Conclusion
Having regard to the foregoing, I hold that this Court is properly vested with the
requisite jurisdiction to hear this case and overrule the preliminary objection raised by
the defence.

Goolshan Sharma JORAI


District Magistrate

12th August 2013