Supreme Court of Mauritius, 5 juin 2020, 2020 ROD 31 – POLICE V BHUGEAH FAYSAL IBNE FARHAAN MOHAMMAD

POLICE V BHUGEAH FAYSAL IBNE FARHAAN MOHAMMAD

2020 ROD 31

Cause Number: 2618/2018

THE COURT OF RODRIGUES

In the matter of:-

POLICE

VS

MOHAMMAD FARHAAN IBNE FAYSAL BHUGEAH

Judgment

Introduction. 1. Accused stands charged under two counts. 2. Under the first count, Accused stands charged with the offence of giving false name in breach of sections 134 (1) (b) (ii) and 163 (1) (b) of Road Traffic Act. 3. Under the second count, Accused stands charged with the offence of forgery of a listed document in breach of sections 161 (1) (a) (i) (3) (A) and 163 (1) (a) (iii) (b) of the Road Traffic Act, as amended. 4. Accused pleaded not guilty under both counts and at trial, Mr. Dayal of Counsel appeared for Accused. 5. Ms Dawoonauth assisted by Police Sergeant Louis appeared for the prosecution. 6. The following documents are on record. (i) A certificate emanating from the National Transport Authority regarding the particulars of vehicle 25RX06 (Doc.A).

(ii) A report drafted by Sub Inspector Burumdoyal regarding the authenticity of the driving licence produced by Accused (Doc.B). (iii) A statement recorded from Accused (Doc.C). (iv) The driver’s licence card of Accused (Doc.D). (v) The driver’s licence card of Ridwan Mohammad Ibné Faysal Bhugeah (Doc.E). (vi) A Police Form 3 issued to Accused for the production of his original licence issued by Police Constable Henriette on 3 June 2016. The trial. 7. For the prosecution, the two main witnesses for the prosecution were Police Constable Henriette (“W2”) and Police Constable Raphael (“W3”). 8. Both police officers testified that on 3 June 2016, together with Police Constable Manan, they were performing an exercise of stop and check of vehicles on Francois Leguat Street. On the material day, at 14.09 hours, coming from Fathemamode Street, W2 saw a black Honda car, registration mark:- 25RZ06 and signaled the driver of the vehicle to stop. The driver of the vehicle however failed to stop. All three police officers climbed in a police vehicle and chased the other vehicle which was being driven by Accused through town for about 15 minutes. At 14.26 hours, the police were able to stop the vehicle driven by Accused near the harbour along Kennel Bégué Street. W2 requested Accused to produce his driving licence to which Accused complied and the driving licence was under the name of Ridwaan Mohamad Ibne Faysal Bhugeah. W2 issued Accused a Police Form 3 (Doc.F) requesting Accused to produce his original driving licence and to which Accused elected to do at Port Mathurin Police Station. 9. The police officers proceeded to Port Mathurin Police Station and an entry in the Diary Book and in the Occurrence Book was made to report the present matter. W2 then went to verify whether the licence produced by Accused was in order. At the Licensing Office, Police Constable Pareague showed to W2 the Police Form 17 of Ridwaan Mohamad Ibne Faysal Bhugeah and whilst comparing same with the licence which Accused produced when he was stopped at the harbour, W2 noticed that the two photographs

were not the same but when comparing same with the Police Form 17 of Mr. Farhaan Mohamad Ibne Faysal Bhugeah, the two photographs were the same. 10. The Police Form 17 of Accused and of Ridwan Mohamad Ibne Faysal Bhugeah were produced by W2 (Doc. D and Doc.E). 11. The other evidence relied by the prosecution to prove its case was the confession made by Accused in his out – of – court statement (Doc.D) recorded by the Police Sergeart Lisette. 12. In his out-of- court statement, Accused stated that he took the vehicle belonging to his father to go to the mosque on that day and this was without the permission of his father. He parked his vehicle in front of Loul Bakery around 12.30 hours to go to the mosque. After the prayers ended around 13.15 hours, Accused entered in his vehicle for a round in Port Mathurin. When he arrived near the administration office of the Rodrigues Regional Assembly, closed to the harbour, he was stopped by police officers who were in a police vehicle. Accused produced a driving licence upon request of the police officer. Accused stated that he produced a fake driving licence which he made some 6 months ago. The police seized the fake driving licence and issued him a Police Form 3 and asked him to produce his original driving licence at the police station. Accused stated that he did not go to the police station and went on to say that there his photograph and the name of his brother, Ridwan Mohammad Ibene Faizal Bhugeah on the driving licence. There was also a stamp of the police on the driving licence. Accused was shown the licence which he did produce on the day he was stopped and confirmed that it was the driving licence which he made. Further, Accused explained as to how he proceeded to fake the driving licence of his brother. Accused stated that he did not see the police officers who signaled him to stop on Francois Leguat. Accused admitted of having produced a fake driving licence at the time he was stopped by the police and this was during a moment of panic. Finally, Accused was informed of the offences that he may be prosecuted and he begged for excuse. 13. The prosecution had Sub Inspector Burumdoyal called and he produced his report (Doc.B). In same, he made two observations regarding the driving licence which was produced by Accused to W2. He found that the stamp impression put on the photograph of Accused on the driving licence which he produced to the police was larger to the one

used by the Rodrigues Licensing Police Office. The front of the stamp impression was found to be dissimilar compared to the specimen stamp. One was compressed compared to the other one was detached. 14. For the defence, the rector of Rodrigues College, Mr. Nan Rock Linege Perrine deponed to the effect that according to the school registry, Accused who is a student of Lower Six, was present in the morning and in the afternoon of the 3 June 2016. On 7 June 2016, Accused was present in the morning and absent in the afternoon. The defence witness testified that the school starts at 08.00 hours and ends at 14.20 hours. The defence witness further testified that when a student attends school at 08.00 hours, the attendance is recorded during each class. If a student has to leave school early, then the parent will have to inform the school in writing in a school diary and the parent has to sign the registry before the student leaves the premises of the college. 15. The father of Accused also testified for the defence. He adduced evidence to the effect that on 7 June 2016, he went to pick up his son at the college between 09.00 hours and 09.45 hours. This was for the recording of a statement from Accused at Port Mathurin Police Station for the recording of a statement. The recording of the statement started at 10.55 hours and ended at 11.20 hours. At the police station, he met with Police Sergeant Lisette who informed him of the charge against his son and was brought in a room where his son gave his statement. The father of Accused testified that Accused denied the charge in his statement. The father went on to say that the statement which was recorded from Accused where he confessed to the charge was from a second statement which was recorded from him and it is his son who told him that he will not be granted bail if he does not confess to the charge and this is why he was granted bail. To conclude, the father testified that his son was at school on 3 June 2016. Assessments 16. I have assessed all the evidence on record including the submission of both Counsel, both oral and written. 17. I shall first deal with the first count. 18. Section 134 (1) (b) (ii) of the Road Traffic Act provides:

A police officer may, without warrant, arrest a person who, on being required under this Act to give his name and address gives a name and address which the police officer has reason to believe is false. 19. Mr. Dayal submitted that the offence under which accused is being prosecuted is in respect of the powers of arrest granted to a police officer when a party gives a false name and hence it is not an offence which is referred in the law. 20. Ms Dawoonauth for the prosecution submitted that Accused did give a false name. she further submitted that the present offence is found under section 143 of the Road Traffic Act and the Court has wide powers to amend the information. She relied on the pronouncement of Bungaroo. VS The Queen [1975 MR 1] to support her point. 21. Now, a wrong citation of the law, is not, by itself, fatal to an information (See: Wong Yen Cheong M. R. A. v The State [1998 SCJ 375]; R. Jhurry v The Queen [1977 SCJ 113] and Boodhun v The Queen [1971 MR 296]). But, this being so, does the fact that Accused gave a false name makes it an offence under section 143 of the Road Traffic Act. 22. Section 143 of the Road Traffic act reads as follows: 143. Powers of inspection (1) (a) A police officer in uniform may stop a motor vehicle or trailer on which – (i) more than one person, in addition to the driver of the vehicle; or (ii) goods, are being conveyed or suspected of being conveyed, for the purpose of ascertaining whether the vehicle is being used for a purpose for which the vehicle is not licensed to be used. (b) A police officer in uniform or a police officer or a road transport inspector not in uniform, who produces his identity card, may

(i) require the driver of the vehicle to furnish his name and address, the name and address of the owner of the vehicle and particulars of the business in connection with which the vehicle is being used; (ii) require a person who is on the vehicle suspected of being used for a purpose for which the vehicle is not licensed to be used or who is suspected of having been on the vehicle recently, to give his full name and address and to state whether or not any remuneration has been or is to be given by him for being conveyed on the vehicle; (iii) require the driver of, or any other person on, the vehicle to furnish the name and address of the sender and consignee and the names of the places between which any goods on the vehicle are to be conveyed. (2) Any person who fails to comply with a request lawfully made under this section shall commit an offence. 23. Upon a reading of section 143 of the Road Traffic Act, I do not agree that this section creates an offence for a driver who gives a false name as in the present situation. I instead find that this is more of a situation where a driver refuse to give his name and address when he is being stopped in a vehicle where he is carrying goods and the police and the transport officer suspects that the vehicle is being used for a purpose other than it has been licenced for. This is also being said because upon examination of section 143 of the Road Traffic Act, I find that this is why the name and address of the driver or the owner may be requested by a police officer or by a road transport inspector. Furthermore, this is the reason as to why the presence of a road transport inspector is needed for that kind of inspection. Otherwise, if it was only for a stop and check of vehicles as in the present matter, the presence of a road transport inspector would not have been required. Hence, I am of the view that section 143 of the Road Traffic Act is not applicable in the present case. 24. I also find that section 134 is not an offence where a sentence which can be imposed. I instead find that section 134 is a section under the Road Traffic Act which provides the power to a police officer to arrest an individual which is more

likely to be a driver when the latter gives a name and address which the police officer has reason to believe is false. 25. Hence, relying on the above, I dismiss Count I against Accused. 26. As regards to the second count, the prosecution is relying on the evidence adduced by W2 and W3 and also on the confession made by Accused in the statement which he gave to the police. 27. As regards to the evidence adduced by W2 and W3, I had the opportunity to assess their demeanours and I have found that they came forward as witnesses of truth. True it is that there has been some difference in the version of events of W2 compared to W3 but I have found that they are not material to affect the veracity in the version adduced by W2 and W3. Furthermore, I can safely say that there was no indication of invention, exaggeration or evasiveness in their oral evidence and I did not find anything which could undermines the creditworthiness of those two witnesses so that they are no longer regarded as witnesses of truth. 28. For the defence, its case rests mainly on the evidence adduced by the rector of the college where Accused is a student but also on the evidence adduced by the father of Accused. 29. As regards to the evidence adduced by the father of Accused, I am of the view that the version which he adduced to the fact that out –of- court statement given by Accused has been given involuntarily cannot stand. This is being said because the father of Accused signed as a witness in the statement recorded from Accused and I fail to see the father of Accused signing a statement when he was not present at the time of the recording. Furthermore, there is no evidence that the father of Accused made a complaint against those police officers who allegedly blackmailed him or put his son under duress to confess to the present case. I also find that the version of the father of Accused cannot stand because the decision to grant bail or not would not rests on those police officers but by an officer of superior rank. 30. In R v Skyes 8 Cr. App. R 233, The Court of Appeal held that:

“A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession, which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it…”

31. In the case of Ibrahim v The King AC 599, their Lordships of the Privy Council stated that:

‘no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.’

32. In the light of the above, having found that the out – of – court statement of Accused has been given of his own free will and accord, I am of the opinion that I can safely rely on the truthfulness of the confession made by Accused. 33. Now, in respect to the evidence adduced by Mr. Nan Rock, the rector of the college, he relied mainly on the school register to testify that Accused was present at school at the time of the offence but he also agreed that it is not him who filled the student register but instead, it was filled in manually by a clerk and he did not verify whether Accused was physically present the whole day. 34. In addition, Mr. Nan Rock could not find any answer except that he relied on the record of the Movement Book to say that Accused left school on 7 June 2016 at 10.10 hours to go to the police station when on the other hand, questions were put by Mr. Dayal during the cross examination of Police Sergeant Lisette, the officer who recorded the statement of Accused, to the fact that Accused attended Port Mathurin Police Station at 09.05 hours on 7 June 2016. After this inconsistency about the time on the movement book for the 7 June was put to Mr. Nan Rock, he conceded that Accused may have left school on 3 June 2016 without informing anyone and without permission. Hence, I find that the evidence adduced by Mr. Nan Rock has failed to cast doubt in the prosecution’s case.

35. Hence in the light of the above, having found that the evidence adduced by the defence witnesses have not cast doubt in the prosecution case and also having found that I can rely on the version adduced by W2 and W3 and also on the confession made by Accused in his out- of – court statement, the next step will be to see whether the prosecution has been able to prove all the elements for the offence under the second count. 36. Section 161 (1) (a) (i) and (c) provide: (1) Any person who, with intent to deceive – (a) (i) forges; (ii) …………… (iii) …………… (iv) …………… (v) ……………. (vi) ………………………… (b) ……………………. (c) ……………………….. a listed document, shall commit an offence. (2) . ……………………………………. (3) In subsection (1), “listed document” means – (A) a licence under this Act; (B) a test certificate; (C) a document, plate or mark by which a vehicle is to be identified as being an authorised vehicle under Part VI; (D) a document evidencing the appointment of an examiner or other officers under Part VI;

(E) a certificate of insurance or certificate of security under Part V; (F) a certificate of fitness; (G) a prescribed document which may be produced in lieu of a certificate of insurance or a certificate of security under section 68 (4), (H)an insurance vignette (i) an Agreed Statement of Facts Form; and (j) a Minor Road Accident Report Form. 37. As regards to the first element, I find that a driving licence is a listed document under the Road Traffic Act. This is being said relying on section 161 (3) (A) which states that a licence under the Road Traffic Act is a listed document under section 161 (1) of the Road Traffic Act and as per section 2 of the Road Traffic Act, a driving licence: (a) means a licence to drive a motor vehicle granted under Part IV and comprising a licence card in the form set out in the Tenth Schedule, and (c) except in sections 41 to 45, includes a licence to drive a motor vehicle issued under any enactment relating to motor vehicles in Mauritius; 38. Now as regards to the elements of forgery, in the case of Li-Ah-Chong v. The King, [1933 MR 210], in which the decision in Thalwansing v. The Queen, [1895 MR 26], was reaffirmed; these elements were set out as (i) the alteration of truth; (ii) an intention to do injury (Prejudice) (iii) an injury (prejudice), real or possible. 39. In the case of Benoit vs The Queen [1957 MR 354], the Supreme Court referred to Garçon, Code Pénal Annoté, Nouvelle Edition, art. 147, no. 11 regarding the elements of forgery and which reads:

Ainsi et en dernière analyse, le faux documentaire n'est punissable que si les conditions suivantes se trouvent réalisées: 1°. Il faut que la vérité ait été altérée; 2°. que cette altération soit contenue dans un écrit; 3°. qu'elle ait été accomplie par un des moyens déterminés par la loi; 4°. qu'elle soit de nature à causer un préjudice; 5°. enfin que l'auteur de l'altération ait agi avec intention frauduleuse. Une définition exacte du faux doit contenir chacune de ces conditions élémentaires. 40. As regards to the first element of forgery, I have no doubt that the act committed by Accused in that of inserting his photograph on the driving licence of his brother cannot otherwise amounts to an alteration of the truth. This is being said because Accused put his photograph on the driving licence with the objective of substituting himself for his brother and he used the falsified driving licence when he was stopped by the police officers in making them to believe that he was the holder of a competent driving licence. 41. The first element is indeed present when relying on the report of Detective Sub- Inspector Burumdoyal. As stated above, in his report, Detective Sub – Inspector Burumdoyal find that the rounded stamp found near the photograph of Accused on the driving licence is larger in size (27 mm) when compared with the specimen stamp impressions used at the Rodrigues Licensing Office of the Police and this is despite the fact that the driving licence has been reduced. The report makes also mention of the front of the stamp impressions was also found to be dissimilar (compressed) whereas the “front” in the specimen stamp impressions were found to be in a detached form. These alterations were made by Accused as he stated in his out-of-court statement. 42. As regards to the second and third element, in Dallloz, Jurisclasseur Penal Art. 153 158, Vo Faux, the author states that:

La supposition de nom ou la substitution de personne reste sans doute le procedé le plus employé en pratique. 43. In Garçon Code Penal Annoté, Art note 344 reads as follows: Mais la supposition de personne, dans un sens large, comprend le cas où une personne a userpé l’indentité d’un individu existant et connu, on dit alors quíl y a substitution de personne. 44. It is also to be noted that under the old penal code in France (article 153) and also under the new penal code (article 441-2), an offence of forgery can be committed in an administrative document (document administratif) which includes also a driving licence (See: Cass.crim.8 nov. 1972, Bull. Crim., no 331). 45. Hence, in the light of the above, I find that the prosecution has proved the second element and the third element for the offence of forgery. 46. As regards to the fourth and fifth element for the offence of forgery, in Garçon, Code Pénal Annoté, new edition, Art. 147, notes 390, 391, 396, 397 and 390 read as follows: 390. L'intention dans son sens légal et juridique nous parait pouvoir être défini: la connaissance chez l'agent qu'il commet le crime de faux dans les conditions que la loi exige pour que le crime soit constitué. 391. … Dans le faux, au contraire, la connaissance de l'altération de la vérité ne suffit pas, il faut encore la preuve que l'agent a su pouvoir causer un préjudice. C'est en ce sens, mais en ce sens seulement, que l'intention dans ce crime offre une particularité. En autres termes, l'intention exige que l'agent ait su qu'il alterait la vérité dans une écriture, par un des procédés légaux, et qu'il ait su encore que cette alteration était de nature à causer un préjudice. 396. Enfin, et c'est le point le plus délicat, il faut que l'agent ait su qu'il pouvait, en altérant la vérité, causer le préjudice tel que nous l'avons déterminé. Il faut, mais il suffit, selon nous, pour constituer l'intention légale et juridique, que l'auteur matériel de l'altération de la vérité ait eu conscience que le mensonge écrit était de nature à causer un préjudice moral ou matériel, immediatement

réalisable ou simplement éventuel, aux intérêts des particuliers ou aux intérêts de l'Etat. Il n'est pas néeessaire qu’il ait eu pour but, plus on moins direct, de nuire à autrui, il suffit qu'il ait eu la connaissance que ce résultat pouvait se produire. 397. Nous irions même plus loin: le faux est constitué, non seulement si l'agent a su que l'écrit pouvait causer un préjudice, mais encore s'il a pu et du le savoir. En vain il se défendrait en disant, que dans sa pensée, l'acte ne lui paraissait pas de nature à léser les intérêts d'autrui si son erreur est fondée sur le droit, elle est encore ici sans portée juridique; s'il s'agit d'une erreur de fait, elle ne fera pas non plus disparaître l'intention; il devait prévoir toutes les consequences de l’altération de la vérité qu'il commettrait sciemment et volontairement. 47. Encyclopedie Dalloz – Droit Criminel vo. Faux en écriture note 32 reads as follows: L'intention frauduleuse, nécessaire à l'existence du faux est la conscience, chez l'agent, que non seulement il altère la vérité mais que cette alteration est susceptible de causer un préjudice (Limoges, 8 mai 1943, J.C.P. 1943 II. 2288). 48. In Faustin Hélie, Droit Pénal, 1948 edition, at page 85, reference is made to the element of fraudulent intent in forgery in the following terms: Le deuxième élément du crime de faux est l'intention fraudulense. il ne suffit pas que l'altération ait été commise sciemment et volontairerment ; il faut qu'elle ait été commise avec fraude, c'est-à-dire dans le dessein de nuire à autrui, ou au moins avec la connaissance que le faux était susceptible de nuire à autrui. I1 n'y a point de faux punissable quand l'altération a été faite sans cette intention. 49. Now, it is clear that the driving licence produced by Accused to the police officers is not an originally genuine one but one which had been falsified by him. This is being said on the admission made Accused in his out-of-court statement where he said that he substituted the photograph of his brother by inserting his own photograph and also part of the stamp which is to be found on the white part of the driving licence. Hence, it goes

without saying and it can be irresistibly be inferred that the purpose and the motivation of Accused for having intentionally falsified the licence of his brother was with the main objective to mislead any legitimate authority such as the police whenever he was requested to produce his driving licence in making them to believe that he was the holder of a competent driving licence for a type of vehicle which he was not entitle to hold and by so doing, and in the present context, I find that Accused did foresee or should have foresaw that the alteration which he made would have cause prejudice to the police. 50. Furthermore, as regards to the mental element as per section 161 (1) of the Road Traffic Act which is an intention to deceive, I find that the production of the forged driving licence by Accused to the police officers was made with the intention to deceive and with the purpose to mislead those police officers to believe that he was the holder of a competent driving licence to drive the vehicle. In addition, taking into consideration the evidence adduced at the trial and that there was no explanation nor any evidence coming from Accused to account for his act, there is no doubt that an adverse inference against him can be drawn of his intention (see: Bhunjun v The Queen [1955 MR 256]). 51. Hence, in the light of the above, I find that the prosecution has proved beyond reasonable doubt that Accused has that guilty mind and that the prosecution has proved all the elements of forgery relying on the French jurisprudence and in law. Conclusion.

52. Therefore, for the reasons referred above, the first count is dismissed against Accused and I find Accused guilty only under the second count.

D.J.A Dangeot Senior District Magistrate Delivered on 5 June 2020.