Supreme Court of Mauritius, 19 juin 2020, 2020 INT 76 – Police v Curoopen

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Police v Curoopen

2020 INT 76

Cause Number: 495/2019 IN THE INTERMEDIATE COURT OF MAURITIUS (Criminal Side) In the matter of: – POLICE v/s Kervin Steven CUROOPEN Judgment

1] The Accused stands charged with seven counts of the Information for the offences of drug dealing: possession of heroin for the purpose of distribution in breach of sections 30(1)(f)(ii) and 47(5)(a) of the Dangerous Drugs Act (count 1); drug dealing: possession of cannabis for the purpose of distribution in breach of sections 30(1)(f)(i) and 47(5)(a) of the Dangerous Drugs Act (count 2); drug dealing: possession of cannabis seeds for the purpose of cultivating cannabis plants in breach of sections 30(1)(f)(i) and 47(5)(a) of the Dangerous Drugs Act (Count 3); drug dealing: possession of dangerous drugs: (Nitrazepam) for the purpose of distribution in breach of sections 30(1)(f)(i) and 47(5)(a) of the Dangerous Drugs Act (count 4); drug dealing: possession of dangerous drugs (Diazepam) for the purpose of distribution in breach of sections 30(1)(f)(i) and 47(5)(a) of the Dangerous Drugs Act (count 5); smoking cannabis in breach of section 34(1)(a) of the Dangerous Drugs Act (count 6); and ‘Money Laundering’ in breach of sections 39(1) (a) (2), 48 and 47 (5)(a) of the Dangerous Drugs Act (count 7). The accused pleaded not guilty to all the counts of the Information.

2] The accused was represented by Ms Y. Moonshiram together with Mr A. Toorabally, of counsel and the prosecution was assured by Ms Soochit, from the office of the Director of Public Prosecutions assisted by police prosecutor, Inspector Nundloll.

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Prosecution Evidence

3] The evidence led by the prosecution rested on the depositions of various police officers and the production of documents, and exhibits including money secured at the place of the accused.

4] Witness no.4, Ps Mohun, produced a booklet of photographs, doc A; and a statement explaining the photographs, doc B. He was not cross examined.

5] The prosecution produced a report from the forensic science laboratory (FSL) dated 17.01.2019, containing three pages marked as document C, C1, C2 and a memo from the Ministry of Health dated 11.02.2019, document D. The FSL report confirmed the compositions of the drugs secured from the accused which formed the basis of the different counts as per the Information. Document D, disclosed that the accused did not have a prescription for the drugs as per counts 4 and 5.

6] Witness no.2, Cpl Ragoonaden, deposed to the effect that on 19.7.2018, he called at the place of the accused at Lot 121, Morc Soobra, Pte aux Sables, and in virtue of a search warrant carried out a search at the premises of the accused with his consent. During the search police secured a blister pack of Valium containing 10 pills; 5 blister packs of Magadon (3 containing 10 pills and 2 containing 8 pills). He further stated that amongst the personal belongings of the accused, police secured a parcel wrapped in tape which when opened was found to contain 3 packets. One packet contained white powder suspected to be heroin; the second one contained leaf matter suspected to be cannabis; and the third one contained some 20 seeds suspected to be cannabis seeds. He then cautioned and informed accused of his constitutional rights. Upon being questioned about the heroin accused told police to give him a chance; for the cannabis leaf, he stated it was for smoking and he remained silent when questioned about the seeds. Whilst continuing the search, police secured a bag containing a substantial sum of money in cash in Mauritian currency, which money was suspected to be proceeds of drugs. The sums secured were in the amount of Rs 1,113,850, which accused readily accepted belonged to him. Accused was arrested and brought to ADSU headquarters. Thereat, all the exhibits secured at the place of the accused were placed in envelopes and sealed in his presence and he voluntarily affixed his signature on each of the envelopes. The sealed exhibits were then conveyed to the forensic science laboratory for examination and police confirmed that no unauthorised person had access to these exhibits. The exhibits marked RR1/2018 and RR2/2018 were produced in Court. Under cross examination, the witness stated that the accused was cooperative with the police throughout the search at his place as well as at the ADSU office. He also added that the value given to the drugs is only an estimate based on the street price per weight.

7] Witness no.3, Pc Gungadeen, deposed and stated that whilst carrying out the search at the place of the accused in presence of other police officers, he secured a blue bag containing some Rs 1,113,850 in cash, which sum was subsequently produced and counted in court.

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8] Witness no.1, the main enquiring officer, deposed and produced all the out of court statements recorded from the accused, documents E, E1 and E2. He also produced a letter from the registrar of companies, document F and a letter from the Mauritius Commercial Bank, document G. A number of receipts were also produced from various betting places, documents H, J, K, K1, all winning ones. He added that the different drugs as per the Information, had a total street value of approximately Rs 15,000.

9] Under cross examination, the witness admitted that he did not inform the accused of the charge of distribution and cultivation whilst recording the accused’s out of court statements, but he explained that he used the term ‘transaction’ throughout. He admitted that accused in his out of court statement never said that the drugs were meant to be shared amongst friends, to sell or to cultivate. He also admitted that the receipts of the winning tickets produced by the accused to explain the provenance of the money secured at his place were found to be accurate and were confirmed by the various betting houses, during the police enquiry. In fact, the amounts tallied more or else with the wins on the receipts when added.

Case for the defence

10] Accused made a statement from the dock admitting that the drugs secured at his place were his and that he bought same for his personal consumption. He added that he is a gambler and the money secured were his wins from gambling.

11] Both counsels offered submissions.

Analysis

Charges

12] The charges levelled against the accused are for drug dealing, smoking drug and money laundering. Throughout the police enquiry, accused accepted being in possession of the drugs and that the money belonged to him. It came to light during the course of the trial that the charges of drug dealing for the purpose of distribution and that of drug dealing for the purpose of cultivation were never put to the accused by the enquiring officer.

13]The question arising is whether the failure to put the exact charge to the accused amounted to a breach of his constitutional rights such that he can no longer benefit from a fair trial. First and foremost, it is imperative to understand that the rationale for putting the charge to an accused party is to allow him to know the case he has to meet and to put forward an appropriate defence. I refer here to section 10(2) (b) of the Constitution which reads:

‘Every person who is charged with a criminal offence – …..

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(b) shall be informed as soon as reasonably practicable, in a language that he understands and, in detail, of the nature of the offence.’

14] I find it apt to quote the case of Jhootoo v The State [2013 SCJ 373] where it was held that:

“[16] …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.

[17] As was stated by the Privy Council in the civil case of Kanda v Government of Malaya [1962] AC 322, 337 by Lord Denning:

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.”

15] Although, in Grandcourt J.G. v The State [2018] SCJ 56, their Ladyships, distinguishing Jhootoo (Supra) and quoting Seetahul v The State [2015 SCJ 328] and Kanda v Government of Malaya (supra), held that putting the facts and circumstances to the accused would satisfy section 10(2) of the Constitution, which principle was later adopted in DPP v Lagesse [2018 SCJ 257], I quote:

“This is not a case where the rationale of Jhootoo v The State [2013 SCJ 373] would be relevant or applicable. In Jhootoo (supra) it was noted that the charges under count 2 and 3 namely for giving false statement in relation to drug dealing offence, were never put to the appellant at the enquiry stage so that he could not rebut the allegation. In fact as stated in the case of Seetahul v The State [2015 SCJ 328], the suspect needs to be made aware of the version of the complainant, the facts and evidence of the case and he should be aware what the Police and ultimately the prosecution will rely upon. This is to enable suspect to prepare his defence and have “an opportunity to correct or contradict” the case against him as stated by Lord Denning in Kanda v Government of Malaya [1962] AC 322,337.”

16] The above authorities considered, the question arising in the case at hand is whether the accused was aware of the evidence against him and how obvious the offences were.

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As held in The State v/s Mohamad Jiaved Ruhumatally [2015 SCJ 384]:

“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.” 17] On the facts in the present case, it is undisputed that the accused was arrested in connection to a drug case, however, there are many possible offences under the Dangerous Drugs Act and it was therefore desirable for the police to inform the accused of the nature of the offence for which he was suspected and charged. Though, in this particular case, judging from the manner the police enquiry was conducted and the clear and unambiguous answers of the police officers during their testimonies, it cannot be said that the enquiry was so unfair that it breached the constitutional rights of the accused. On the contrary, the accused was given every opportunity to present his defence and to give his explanations as to the provenance of the drugs and the money secured. I, therefore, find that even though the exact charges were not put to the accused, there has been no breach of section 10 (2) of the Constitution. On the merits of the case

18] The Information contains 7 counts, with specific charges. The different counts and evidence on record are summarised below:

Count 1: Drug dealing: possession of heroin for the purpose of distribution in breach of section 30(1)(f)(ii) and 47(5)(a) of the Dangerous Drugs Act

– The police secured 0.57 grams of brown solid enclosed in a heat-sealed transparent plastic parcel wrapped in a grey tape parcel, amounting to approximately Rs 8,500 street value, which the FSL report confirmed to contain traces of heroin.

Count 2: Drug dealing: possession of cannabis for the purpose of distribution in breach of section 30(1)(f)(i) and 47(5)(a) of the Dangerous Drugs Act

– The police secured 0.64 grams of Cannabis wrapped in a white plastic parcel in turn wrapped in a grey parcel, amounting to approximately, Rs 400 street value, as per the evidence of witness no.1, at page 34 of the proceedings dated 24.01.2020.

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Count 3: Drug dealing: possession of cannabis seeds for the purpose of cultivating cannabis plants in breach of section 30(1)(f)(i) and 47(5)(a) of the Dangerous Drugs Act

– The police secured 20 Cannabis seeds weighing 0.23 grams, wrapped in a grey tape parcel, amounting to approximately Rs 2000 street value.

Count 4: Drug dealing: possession of dangerous drugs: (Nitrazepam) for the purpose of distribution in breach of section 30(1)(f)(i) and 47(5)(a) of the Dangerous Drugs Act

– The police secured 46 Nitrazepam, white pharmaceutical tablets labelled “ICN” in original blistered packs labelled “Magadon 5 mg”, amounting to approximately Rs 4000 street value.

Count 5: Drug dealing: possession of dangerous drugs (Diazepam) for the purpose of distribution in breach of section 30(1)(f)(i) and 47(5)(a) of the Dangerous Drugs Act

– The police secured 10 Diazepam blue pharmaceutical tablets labelled “ROCHE 10” in original blistered pack labelled “Valium Diazepam 10 mg”, amounting to approximately Rs 800 street value.

Count 6: Smoking cannabis in breach of section 34(1)(a) of the Dangerous Drugs Act

– Accused admitted in his statement that he smoked cannabis.

Count 7: ‘Money Laundering’ in breach of sections 39(1) (a) (2), 48 and 47 (5)(a) of the Dangerous Drugs Act

– Police secured the sum of Rs 1,113,850 in different Mauritian Bank notes in a cloth bag colour blue in his room.

19] Section 30(1)(f) of the Dangerous Drugs Act reads as follows:

Drug dealing offences (1) Any person who unlawfully ….

(f) possesses, purchases or offers to purchase any dangerous drug for the purpose of any activity in this section, shall commit an offence….’

The Accused is charged under counts 1, 2, 4 and 5 for possession of drugs for the purpose of distribution as provided by section 30(1)(d) which reads:

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(d) offers, offers for sale, distributes, sells, brokers, delivers or transports on any terms whatsoever, dispatches, or dispatches in transit any dangerous drug;

20] In line with the provision of the law, the prosecution has to prove beyond reasonable doubt that the accused was firstly, in possession of those drugs and secondly, that the drugs were in his possession for the purpose of distribution.

21] There is clear evidence on record that the accused was in possession of the drugs as per counts 1, 2, 4 and 5. Accused admitted both in court and in his out of court statements that the drugs belonged to him. Hence, I find that the prosecution has been able to prove beyond reasonable doubt the element of possession in respect of counts 1, 2, 4 and 5 against the Accused.

22] In dispute is whether the heroin, cannabis, nitrazepam and diazepam found in his possession were for his own personal consumption, as per the version of the defence or for the purpose of distribution, as alleged by the prosecution.

23] Distribution has been defined by case law by its ordinary dictionary meaning in the case of Puttaroo v The State [2008] SCJ 92:

‘I read from the Oxford dictionary that ‘distribute’ means ‘hand or share out a number of recipients or to supply….

The question is what the accused would have done with that quantity of drug imported through the Indian national. Indeed, the issue is his intention at the material time of attempting to have possession of the drug. No doubt it is difficult to have direct evidence of the intention and this can only be inferred from surrounding circumstantial evidence.’

24] In reference to the above, it can be gathered that there is no requirement for there to be direct evidence of distribution but circumstantial evidence would suffice to infer the intention of the Accused at the material time. Of utmost relevance, would be the quantity of drugs secured and their respective value.

25] It is on record that no incriminating objects linked with drug dealing have been secured at the place of the accused. The drugs were all kept in his bedroom amongst his personal effects as stated by the police officer who conducted the search. Of note, is that the accused was not at his place when police came to carry out the search, nevertheless, he readily came and opened the door to allow police to search his place when informed. In terms of quantity of drugs secured the estimated street value were as follows under each separate count: heroin Rs 8,500 (count 1); cannabis Rs 400 (count 2); nitrazepam (count 4) Rs 4000 and diazepam (count 5) Rs 800, making a total of Rs 13,700 approximately. Accused never denied being in possession of these drugs, in fact he explained that he purchased same the day before from an unknown person for the sum of Rs 6,000, for his own personal consumption. He admits to being a consumer

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and told police that he smoked cannabis after purchase. He also explained that he regularly consumed nitrazepam and diazepam as he suffers from epilepsy. It is worth mentioning that there was a blister pack with two missing tablets, which adds credence to his version.

26] From the above, it cannot be said beyond reasonable doubt that the quantities of the different drugs secured were of such quantities that they were larger than reasonably needed for one’s personal consumption generally and specifically in the case of the accused who stated that he was a regular consumer. Court also considers that a substantial amount of cash was secured from the place of the accused, but there was no evidence adduced by the police officers to suggest that the money emanated from sales of drugs or that accused was involved in any other drug related activity or activities from which the court could draw any such inference.

27] In view of the evidence on record and the answers given by the police officers deposing, it cannot be said that there are circumstantial evidences from which this court can reasonably infer that the Accused had the intention to distribute the said drugs as per counts 1, 2, 4 and 5 of the Information, although, there is evidence of possession and consumption. I find therefore that the prosecution has failed to prove the element for the purpose of distribution beyond reasonable doubt against the accused under counts 1, 2, 4 and 5.

28] In respect of Count 3, drug dealing for the purpose of cultivation, refence is made to the case of J. B. Bernard v The State [2012 SCJ 31], where it was held that the prosecution need not prove that the actual activity in question did take place, but it was incumbent upon the prosecution to adduce sufficient evidence from which the purpose can reasonably be inferred by court.

“[14]… It is not necessary under a charge under section 30(f) of the Dangerous Drugs Act 2000 (possession for the purpose of any of the activities specified under the section) for the prosecution to prove that any of the intended and specified activities did actually take place. It is enough for the prosecution to adduce such facts as to show that the possession was for the purpose of the activities: i.e. sale, import, export, production, manufacture, extraction, preparation, transformation, distribution, brokering, delivery, transportation, cultivation etc as the case may be.

[15] In that regard, all that was incumbent upon the prosecution to do was to adduce evidence of facts from which the court could draw the inference that the drug was meant for the specified activity or activities…”[underlining mine]

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29] Although, police secured 20 cannabis seeds at the place of the accused, the prosecution has failed to adduce evidence of facts from which this Court could draw the inference that the cannabis seeds were meant for cultivation. Hence, in absence of any such evidence, this court finds that the prosecution has failed to prove the second element of the offence, that is for the purpose of cultivation against the accused in regards to count 3.

30] I, find, therefore, that the prosecution has not been able to prove the charges under counts 1,2,3, 4 and 5 against the Accused beyond reasonable doubt.

31] However, given the undisputed evidence of possession and pursuant to section 30(3) of the Dangerous Drugs Act, which reads ‘Where on the trial of a person charged with an offence under subsection (1)(f), it is proved that the possession, purchase or offer to purchase, as the case may be, was not for the purpose of any of the activity specified in subsection (1), he shall not by reason thereof be acquitted but the Court may find such person guilty of an offence of possession, purchase or offer to purchase, as the case may be, under section 34(1)(b)’, Court, therefore, finds accused guilty for the offence of possession under section 34(1)(b) of the Dangerous Drugs Act for counts 1, 2, 3, 4 and 5 of the Information.

32] Court also finds accused guilty as charged under count 6 of the Information as per his own admission in his out of court statement and in court.

33] On the charge for money laundering, count 7, the law provides as follows:

Section 39(1) of the Dangerous Drugs Act

Every person who unlawfully – (a) acquires, possesses, uses, converts or transfers goods, resources or rights thereto derived or realised, in whole or in part, directly or indirectly, from any offence under this Act; (b) conceals or disguises the genuine nature, origin, location, disposition, movement or ownership of the goods, resources or rights thereto derived or realised, in whole or in part, directly or indirectly, from any offence under this Act, where he suspects or has reasonable grounds for suspecting that the goods, resources or rights thereto are derived or realised, in whole or in part, directly or

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indirectly, from any offence under this Act, shall commit an offence and shall, on conviction, be liable to a fine not exceeding one million rupees and to imprisonment for a term not exceeding 20 years. (2) A person may be convicted for an offence under this section notwithstanding the absence of a conviction in respect of an offence under this Act, which generated the goods, resources or rights thereto alleged to have been laundered. (3) In this section, “goods” or “resources” includes possessions.

34] The elements that the prosecution has to prove beyond reasonable are firstly, ‘possession of goods or resources’ and secondly, ‘derived or realised in whole or in part, directly or indirectly from an offence under this Act’.

35] Section 2 of the Dangerous Drugs Act defines “possessions “as:

(a) means property of any kind, nature or description, whether movable or immovable, tangible or intangible; and (b) includes – (i) any cash in a bank account or bank deposit, whether in a person’s own name or in a fictitious name; (ii) any currency, whether or not the currency is legal tender in Mauritius, and any bill, security, bond, negotiable instrument or any instrument capable of being negotiated which is payable to bearer or endorsed payable to bearer, whether expressed in Mauritius currency or otherwise; (iii) any balance held in Mauritius currency or in any other currency in accounts with any bank which carries on business in Mauritius or elsewhere; (iv) any balance held in any currency with any bank outside Mauritius; (v) motor vehicles, ships, aircraft, boats, works of art, jewellery, precious metals or any other item of value; and (vi) any right or interest in property;

Possession of goods or resources

36] It is undeniable that the accused was found in possession of cash in the amount of 1,113,850 in Mauritian Rupees at his house. In fact, the accused has readily accepted in his out of court statement that the money belonged to him. This satisfies the element of possession of goods and resources under count 7 of the Information.

Derived or realised in whole or in part, directly or indirectly from an offence under this Act 37] This element is specific to the dangerous drugs act. Here the prosecution has to prove beyond reasonable doubt that the ‘possessions’ that is the money was derived in whole or in part, directly or indirectly from an offence under the dangerous drugs act. This requirement differs from that under the Financial Intelligence and Money Laundering Act, which speaks of proceeds of any crime.

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38] I have found no case law on section 39(1) of the Dangerous Drugs Act but a reading of the section and its subsections makes it clear that for this section to apply the money must have been derived in whole or in part, directly or indirectly from an offence under the dangerous drugs act, and so, irrespective of a conviction for an offence under this act. Therefore, it is immaterial whether the accused is convicted of a dealing offence under the present information for this section to find its applicability. It would suffice that the prosecution brings enough evidence from which the present court, being a court of record, can draw such inferences that the accused was dealing in drugs or was involved in drug related activity or activities which generated proceeds.

39] It is not denied that sum of Rs 1,113,850 was secured at the place of the accused and belonged to him. As per the prosecution evidence and based on the out of court statement of the accused, it came to light that accused is a gambler and gambles a lot. It was confirmed by the police that the receipts were kept in a cupboard at the place of the accused’s mother. Interestingly, accused was in police custody when he indicated to the police where to find the receipts and his brother handed over all the receipts to the police for enquiry purposes. Amongst the receipt there was also a cheque in the name of the accused which was not banked. Police verified the tickets and the betting houses confirmed that they were all winning ones, and it transpired that they were paid up in cash although it could not be confirmed to whom as it is not the practice of the betting houses to keep records of same. It is also considered that police did not adduce any evidence to rebut that these receipts did not belong to the accused or that the money was not from these wins. As such, gambling is an authorised activity and wins from such activity are legitimate. This court is bound by the records and on the present prosecution evidence, there is nothing to suggest that the money was not proceeds of these wins or that it was from sales of drugs or any drug activity. It must be remembered and emphasized that an accused is deemed innocent until proven guilty.

40] I am alive to the pronouncement in the case of Antoine v The State [2009 SCJ 328] which reads “Since suspicion has to be based on facts, it is the duty of the Court to analyse the whole of the evidence on record in order to determine whether or not it can be inferred, from the facts and circumstances of the case, that the accused reasonably suspected that the proceeds were proceeds of crime.”

41] After careful analysis of the whole evidence on record including the receipts produced by the prosecution, and no evidence having been adduced by the prosecution to suggest that the money was in fact from drug activities and not from gains from betting as per accused’s version, this court finds that no inference can be drawn from the facts and circumstances of the case that the accused reasonably suspected that the goods and resources were derived in whole or in part, directly or indirectly from an offence or offences under this act.

42] Henceforth, mere possession in absence of any evidence by the prosecution to disprove that the receipts produced by the accused were not his or that the money did not come from these wins, or that the money were from drug activities, this court finds

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that the prosecution has failed to discharge the burden of proof in respect of the second element of the offence. Court, accordingly, finds that the prosecution has failed to prove count 7 against the accused beyond reasonable doubt. Court, therefore, dismisses count 7 against the accused.

Judgment delivered by Ms Navina Parsuramen Magistrate Intermediate Court (Criminal Side) Dated this 19 th June 2020.