Police v S.

Chady & Anor

2019 INT 228

THE INTERMEDIATE COURT OF MAURITIUS

Cause No.243/2013

In the matter of: -

Police

1. Mohummud Siddick Chady

2. Ramprakash Maunthrooa

JUDGMENT

1) Accused no.1 is charged with the offence of ‘Public official using his office for gratification’
(Counts I to VI) in breach of section 7(1) of the Prevention of Corruption Act (“POCA”). He
pleaded not guilty to Counts I to VI and was assisted by Messrs S. Toorbuth and K. Brigmohane.

2) Accused no.2 is charged with the offence of ‘Aiding and abetting the author of a crime’ (Counts
VII to IX) in breach of section 38(3) of the Criminal Code coupled with section 7(1) of the POCA.
He pleaded not guilty to Counts VII to IX and was assisted by Messrs A. Domingue, S.C, S.
Hawoldar, N. Aullybocus, Y. Bhadain and A. Bhinda, counsel (at different sittings).

3) Messrs R. Ahmine, Deputy Director of Public Prosecutions and J-M Ah Sen, Principal State
Counsel, appeared for the prosecution.

The case for the prosecution

4) The gist of the evidence for the prosecution is as follows: Mr G. M. G. Philippe (Witness no.17)
was the chairman of the Mauritius Ports Authority (“MPA”) from 1995 to 2000 and was consultant
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 in ports matters abroad as from 2000. Accused no.2 and he had professional relationship only,
which deteriorated and Accused no.2 resigned. Accused no.1 was a long-time friend and his family
doctor. He knows B. Nazeer slightly. At the beginning of 2007 Accused no.1 asked him for a loan
as his company Blockbuster Video Network Ltd (“BVNL”) was in financial difficulty and he lent
him EUR25,000 which came from his per diem as consultant. He made a mistake if he said in his
statement to the police that he gave the loan on different occasions. He denied that he struck out
the word ‘loan’ in his statement to the police because there was no loan: it is the police that did so.
Accused no.1 had asked to refund the loan abroad and he had agreed and gave him the account
number in Singapore. The bank phoned him to inform him of the transfer of EUR25,000 and he
said that it was refund from Accused no.1 (Document W).

5) After the then leader of the opposition had tabled a fax with his name at the Legislative Assembly
and the ICAC questioned him, he enquired from his bank through an exchange of e-mails as from
30 August 2008 and learnt that it was a bank transfer from Baggermaatschappij (Documents U,
U1, W, X, AA and AB). The cheque from Baggermaatschappij was in Euro so the bank added a
Euro account to his account. At the time he sent the e-mail he was already aware he had received
the money from Baggermaatschappij. He denied that he indicated ‘first time’ in his e-mail to create
a document to show it was the first time. He later learnt Baggermaatschappij was a subsidiary of
Boskalis: Baggermaatschappij never employed him. Accused no.1 was the only person who had to
repay him a loan of EUR25,000. He did not invent a story about Accused no.1 borrowing money
from him. He called Accused no.1 to thank him and the latter said that he had promised to repay
him and kept his word. Upon enquiry he found out that fax number 230 2013097 is for Cinema
Majestic and 675 3725 for Miasa Fashion, owned by Accused no.2.

6) Mr R. M. R. Lagesse (Witness no.11) was the Managing Director of Mechanical Transport Ltd
(“MTL”) until 2007 and General Manager/Director of Mammouth in Dubai as from October 2011.
MTL was the sole agent for Boskalis in the Indian Ocean since 1990. He had accompanied the area
managers, Randy Bauer and Pieter Boer, to pay courtesy visits to the different chairmen of the
MPA. Mr Boer knew of Accused no.2 as the latter had met an area manager in Paris. MTL assisted
Boskalis with documents, information and submission of the bid in mid-January in relation to the
English Channel dredging project. Boskalis and he were not aware of the internal process at the
MPA.

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7) Mr Boer came to Mauritius regularly and in April/May asked him to contact Accused no.2 to
understand the delay. He called Accused no.2 in his capacity as external consultant as he had the
expertise and knew people at the MPA. He is not aware if Accused no.2 was paid professional fees
for the work done. They met at his office at Pointe aux Sables and Mr Boer asked for information
about the delay and Accused no.2 disapproved his (Lagesse) suggestion to contact Mr Suntah and
said he knew Accused no.1. Mr Boer still asked him to arrange a meeting with Mr Suntah, but the
latter declined. Shortly after Boskalis wrote to the MPA asking for clarifications and a meeting
was called days later. Mr Boer remained in Mauritius pending a meeting with the MPA and was
nervous about the contract. He met the chairman of Consulting Engineering Services (“CES”) at
Accused no.2’s house and reported the content of the meeting to Mr Boer. The MPA declined Mr
Boer’s request for a meeting (Document AD). In July 2006, Mr Boer or he contacted Accused no.2
to understand the delay at the MPA: Accused no.2 said he would contact Accused no.1. Official
negotiations were held with Boskalis before the end of July 2006 and Mr Boer for Boskalis and the
MPA signed the contract after discussion and reduction of the price. At from then Mr Boer did not
need Accused no.2’s experience for the negotiations because he was always in direct contact with
his head office. At Mr Boer’s request he organised a dinner at Labourdonnais Hotel to thank
everybody from the MPA and the two accused, the project managers and he were present, but Mr
Boer was not.

8) Mr Boer also asked him to organise a meeting with Accused no.1 to thank him: he contacted
Accused no.2 who accepted to arrange it and they agreed to meet at ABC Cinema in Rose Hill. On
three occasions he drove Mr Boer and/or Accused no.2 to Accused no.1’s residence: Mr Boer and
Accused no.1 talked about the opportunity to Boskalis, the quality of work, the importance of the
project and some problems. On the three occasions Accused no.2 invited him to join him outside
and to leave Accused no.1 and Mr Boer alone and they did so for five to ten minutes.

9) He is not aware of any dealings Boskalis made with Accused no.2, did not inform Accused no.2
that he would be retained as consultant for the project or ask him to prepare any aspect of
negotiations. He gave the fax and phone numbers of Boskalis as +310786969845 and
+310786969011 in his statement to the ICAC. He did not say everything he was aware of and was
not honest to the ICAC and deliberately misled them because of the secrecy clause in the agency

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 contract (Document AK) and because Boskalis had not gone public with giving money to Accused
no.1 and he did not want to be dragged in the affair. In 2012 after the comment of the Leader of the
Opposition and his name was associated with a conspiracy and Boskalis had gone public around
August 2012 he decided to give his version to the police. He did not change his version to the
CCID, but reported what he was aware of. He denied that he arranged to be interviewed in Dubai
as he was afraid of being arrested if he came to Mauritius, that the statement he gave to the CCID
is fabricated for a self-serving purpose and contains baseless allegations against Accused no.2
because he had become aware that his name was associated with conspiracy or that he violated the
agreement with Boskalis.

10) Mr A. K. Boodhun (Witness no.14), Senior Sales Officer, Mauritius Telecoms (“MT”) confirmed
that following Judge’s Order SRN730/2012 they provided information about e-mail addresses:
paymon@intnet.mu is ascribed to Accused no.2, bilkissrawat@intnet.mu is ascribed to Bilkiss
Banoo Rawat and megasteel@itnet.mu is assigned to Bashir Nazeer (Documents AM and AN).
Phone number 467 1350 was registered to the name of Accused no.1 for period 24 January 1996 to
26 January 2011. There was an outgoing call from 686 1311 to 786 969845 on 14 September 2006
at 4.44pm. He produced the itemised bills for outgoing calls from phone numbers 686 1311, 466
0589, 465 4952, 675 3725, 674 1616 and 286 0537 obtained following Judges Orders
SRN730/2012 and SN1204/2012 as well as the reply of MT in respect of e-mail status following
Judges Order 1204/2012 (Documents AP, AQ, AR, AS, AT, AU and AV). The information has
been retrieved from the IT Department and should be accurate.

11) Mrs D. Purmah (Witness no.20), Compliance Officer, produced records of the directors and
shareholders of several companies (Documents AW, AX, AY, AZ, BA and BB). Tulip Services
Ltd was incorporated on 11 October 2005. Accused no.2 was not a director or shareholder of
Miasa Fashion Ltd in 2006-2007, but was appointed as director and was a shareholder in 2012:
Chetan Rao Luximon and A. Maunthrooa were shareholders in 2006-2007 and C. R. Luximon was
director in 2012. BVNL was incorporated in 2002: Accused no.1 was appointed as director from
31 January 2007 to 29 October 2010 and the directors and shareholders over the years were Mr M.
Y. S. K. Chady, Mrs H. B. Chady, Mr I. Rajcoomar and Mr M. B. Nazeer. Mega Steel Co Ltd was
incorporated on 23 May 2001: Accused no.1 was never a director or shareholder and the director
and shareholders were Mr M. Y. S. K Chady, Mrs R. S. Syed and Mrs H. B. Chady. Anchor Point

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 Services Ltd was registered on 7 January 2005 and the director and shareholder is Mr C. R.
Luximon. Emerald Enterprise Ltd was incorporated on 27 July 2005 and the director and
shareholder was C. R. Luximon.

12) Mr J. C. Boribon (Witness no.8) Assistant Manager, Velogic Ltd and Customs Broker for Rogers
Logistics Ltd in 2006, Mr C. L. C. Avonne (W.9), Director and Mr P. J. R. Cazelin (W.10)
Customs Clerk, JNA Rapid Freight Ltd, all said that the Customs Declaration Forms and Bills of
Entry of BVNL bear the names of Eshan Chady and BVNL/Bashir Nazeer and not that of Accused
no.1 (Documents BD, BE, BF, BG, BH, BJ, BK, BL to BN, BP to BX, BY, BZ and CA to CE).

13) Mr V. Rughoonauth (Witness no.6), Manager Administrative Services, MPA, was the secretary of
the Board from October 1999 to August 2011. He took down the minutes, prepared information
and board papers for the board meetings and technical meetings from 29 October 2004 to 29
October 2007 (Documents CG to CZ, DA to DN). The consultant was selected before 2004. The
MPA informed Boskalis that it should bear the costs associated with compensation to the
fishermen. Boskalis decided to reduce the bid under the condition that the contract be signed
within a week and the Director General and Mr Boer signed the agreement. The Central Tender
Board (“CTB”) approved the contract and all the members of the Board signed Resolution No.16
2006/2007 (Document DB). The representatives of the MPA, CES and Boskalis, namely Messrs
Lagesse and Boer or Betenius, were present at the some meetings, but not Accused no.1. Accused
no.2 left the MPA in 2003, he never saw him there and the documents do not concern him. He did
not find anything “fishy” during the negotiations.

14) Mr S. Suntah (Witness no.5) was the Ag. Director General of the MPA from August 2005 to
November 2007 and has been the Director General since November 2007 and forms part of the
Board. Mr D. K. Appadu (Witness no.7) was appointed as Board member of the MPA in July 2002
and represented the Minister. Both witnesses gave evidence about the cancellation of the 2004
tender for the dredging works, re-launch of a fresh tender in 2005-2006 and award of the contract
to Boskalis, the lowest bidder, after approval of the CTB. The Board was convinced that the
dredging project was critical and should be implemented at the soonest. On 14 July 2006 the MPA
took the decision to award the contract to Boskalis and obtained the clearance of the CTB for
negotiations. Boskalis reduced the price from Rs439m to Rs380m and bore the compensation costs

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 to the fishermen. The chairman was not present at the technical committees/negotiations meetings.
Mr Suntah is not aware of an exchange of communication between the MPA and Boskalis about
delay, from the time of the bid to the award and there was no intervention. He also said that a
person external to the MPA cannot assist the Director General. The MPA did not have anything to
do with any other company, inclusive of Baggermaatschappij, as the contract was awarded to
Boskalis. The consulting engineers certified the invoice and the MPA made the payment when the
completion certificate was delivered. To their knowledge, Accused no.1 did not interfere in any
improper manner in favour of Boskalis and Accused no.2 did not have dealings with the MPA after
he left in 2003 and could not interfere in the payment process. They would not be aware if
Accused no.1 had any dealings with Boskalis outside the MPA.

15) Mr N. Maunthrooa (Witness no.12) was the manager of his company Microwise Computer Mart,
which had three telephone lines numbers 696 1288, 696 2339 and fax 686 1311 which he offered
as a service for a fee. In his statement to the police he said that the telephone lines allotted by MT
were 698 1545 and 698 2339. The fax also had his home number programmed. He does not have
any records of the use of the fax, which was not in operation since 2008. His employees, Accused
no.2, other relatives and he had access to the telephones and fax machine. Accused no.2 often used
his fax machine, but he cannot say this with certainty. He never sent international faxes as he did
not know the cost, but it depended on circumstances. He did not have any business dealing with
Boskalis. He used the fax to communicate with international suppliers and customers.

16) Mr N. Hurroo (Witness no.16) worked as doorman at Cinema Ritz, at Curepipe, from 1997 to 2010
and did a bit of everything, including working as driver. Mr Eshan Chady was the director and
gave him instructions. He was employed by CNL, which managed the cinema and had an office at
Rose-Hill, at the rear of Cinema ABC. His version to the police that CNL owned several cinemas
in Mauritius and later became BVNL is correct: he knew that Accused no.1, Mr E. Chady’s
brother, was the owner thereof inasmuch as Mr E. Chady said they had to contact him for the
payment of salaries. When Accused no.1 came to see Mr E. Chady he went upstairs to the office.
The phone at Cinema Ritz was on the ground-floor near the ticket office and its number was 674
1616 and it received calls only: Mr E. Chady made the application for the phone and asked him to
put it in his (Hurroo’s) name and Mr E. Chady paid the bills. His version in his statement that there
were phone numbers 670 1310 and 674 1616 in the office and the latter number was used for fax is

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 correct. He did not have access to the fax in the office. He did not send faxes to number 786
969845 on 2, 3 and 12 April 2007 and does not know who did so.

17) Mr M. S. Johar (Witness no.15) is self-employed and owns Enterprise Ltd since 2006. He has
phone number 466 0589, which is also used for fax: he is the only one who sends and receives
faxes to and from his clients. It may be his brothers used his fax, but he does not know. Accused
no.1 is his cousin and often visits him. He knows Accused no.1 managed BVNL and heard about
Boskalis in the press. There was a fax that was transmitted from his phone number 466 0589 on 30
March 2007 at 12h36 to number 786 969845 - Document AQ - but he cannot say who did so.

18) Mr A. T. J. W. de Goede (Witness no.4) joined Boskalis in 1998 as IT Manager. In 2011 he was
Team Leader Operation Network Management, managing a team of Boskalis IT Specialists and is
currently Senior Enterprise Architect in the IT Department. He is not aware of European Union
guidelines when dealing with digital evidence because he is not a forensic expert. He works for
Boskalis and is paid by Baggermaatschappij. He designed the mail infrastructure system, which
was operative in 2006/2007 and his team implemented it: they managed their e-mail system based
on Microsoft. He had nothing to do with the system in 2006 as he was responsible for designing
and maintaining the IT Department. The level of security consisted in firewalls, antivirus, anti-
spam and only the user and administrator were allowed to modify the system. The same system
allowed internal and external e-mails. In 2006 Boskalis did not have a central archive and all e-
mails were received in, and saved to, the central e-mail system until deleted by the user. They used
the KPN relay service, one of several used by Boskalis, for external e-mails at the time. Once the
e-mails reach the relay service they are sent to the server at Boskalis for verification by antivirus
and then to different destinations. The system at Boskalis contains an envelope header, which is
not normally visible to the end-user, but an experienced user can make it appear. It is easier to
manipulate and trace changes on electronic data and if the server is active one can tell who
accessed, who made changes and when, to a document. It is not always possible to trace what
changes were made and by whom. The user can edit the documents, but the time would change.

19) At the beginning of 2012 upon instructions of Gert Jan Elsen to retrieve the original of copies of e-
mails he searched and retrieved e-mails from P. Boer’s and A. Kok’s mail archives in the central
system in their absence: the mail archives were stored on the personal network disc at Boskalis,

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 Papendrecht, where their offices are located. P. Boer and A. Kok worked for Boskalis from 2006
to 2012. He did not make an image copy of the hard drive, but made a copy of the personal
archives on hard disk to another hard disk to examine the contents. When new data is copied in a
new computer, the data and some technical data in the files can change, but he copied the whole
archive so the e-mails were not changed. He then used a search engine to retrieve the e-mails from
the archives and saved and printed them, with his desk computer. As IT Manager he had access to
all user accounts and mail archives. He checked the reliability of the device when he got the e-
mails. He did not check to make sure the archives were not tampered with, has not conducted any
analysis to see what happened between 2006 and 2012 and cannot say that the e-mails are
authentic. There is a time stamp which contains the date the e-mail was sent and the time zone, an
envelope header which represents the path of the e-mail, e-mail addresses of the sender and the
recipient and IP addresses in the e-mails: they do seem like the e-mails he retrieved and that he or
J. Haak handed over to the Mauritian police in Geneva. He did not know anything about the
contents of the e-mails and did not recognise them “word by word”, but globally. If they are the
documents that he remitted to the police in Geneva, he identifies them (Documents DQ, DR, DS,
DT and DU). He gave a copy of the documents to his attorney and kept the other in his office for
about four months after which he handed them to the Mauritian police in Geneva, at the request of
G. J. Elsen, attorney for Boskalis. He gave a statement to the Mauritian Authorities on 25 April
2012 in Geneva, as authorised by Boskalis and Baggermaatschappij, and as representative of his
company, in the presence of Mauritian and Dutch lawyers, to confirm that certain names were
present in the system of Boskalis (Documents DP and DP1). J. Haak gave his statement first and it
was stopped and then his (De Goede) statement started in the afternoon.

20) Mr J. C. Haak (Witness no.3) is a trained lawyer and works for Boskalis. His main functions were
to review and draft contracts for projects and he had nothing to do with financial matters or
management. He was authorised by Boskalis and Baggermaatschappij to give a statement in this
case (Documents E, F, DV and DW). Boskalis is an international maritime company involved in
dredging works, amongst others, and Baggermaatschappij is an entity within a group of
companies. They are separate legal entities.

21) Upon instructions from the board he did an internal investigation to check if certain payments had
been made: he accessed the archives and retrieved the documents and asked the Royal Bank of

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 Scotland (“RBS”) for confirmation that the payments had been implemented. He received from the
RBS documents in respect of payment orders by Boskalis to Sensabian Media Mumbai India,
USD6000 to Shemaroo Pvte Ltd, USD20,000 to UTV Communications UK Ltd, EUR25,000 to G.
G. Philippe, EUR12,000 in favour of Yash Raj International Ltd UK following a written request
dated 13 March 2007 made by Chady of Video Network, USD6000 to SARL, EUR3300 following
a request made in April 2007 by Chady, EUR2400 to Yash Raj Films International following a
request dated 12 April 2007 from Dr Chady, USD25,000 to UTV Communications following a
request dated 14 September 2006, USD60,000 to Yash Raj Films International following a request
dated 9 November 2006 from Blockbuster Network Co, EUR6000 to Bedia Sarl following a
request made by e-mail sent on 13 October 2006 from Prakash and addressed to P. Boer,
EUR12,000 to R. E. Jimenez following a request in September 2006 from Maunthrooa and
EUR41,000 following a request on 8 November by Maunthrooa (Documents DY, DY1, EA, EA1,
EB, EC EC1, ED, ED1, EE, EE1, EF, EF1, EG, EG1, EH, EH1, EJ, EJ1, EK, EK1, EL, EL1, EM,
EM1, EN and EN1).

22) The statements from the RBS are originals, but as for the other documents he does not know and it
could be that only copies were submitted to the police officers. He received the documents from
the bank and does not believe they are fabricated. The documents that he removed from the general
archive did not belong to him and he does not know who input them or what happened to them
between 2006 and 2012. Mr Elsen asked him to go to Geneva and told him he would meet people
from the Mauritian authorities there: he handed over those documents, and the e-mails and faxes
that De Goede had given him, and also gave a statement, to the Mauritian police in Geneva on 24
July 2012 in the presence of Mauritian and Dutch lawyers. He cannot say anything about the guilty
plea because they had an agreement with the Mauritian authorities to keep it all in Mauritius so it
does not affect them in Netherlands.

23) CI Raghoonundun (Witness no.1) read and produced three statements he recorded from Accused
no.1 on 12 and 13 June 2012 and 25 December 2012 (Docs. ER, ER1/ER1a (edited version) and
ER2). He confronted Accused no.1 with Documents EB, ED to EM1. Phone number 213 1416 and
fax number 210 3097 belong to BVNL, c/o Siddick Mohammed of Poudrière St, Port-Louis. There
was communication between phone number 465 4952 belonging to Anchor Point Services Ltd,
phone number 466 0589 belonging to M. S. Johar and phone number 674 1616 belonging to N.

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 Hurroo and phone number 286 0537 belonging to B. M. Nazeer and Boskalis on 4 August 2006,
30 March 2007 and 2, 3 and 12 April 2007 and 8 January 2007. Accused no.1 was a director of
BVNL from August 2006 to April 2007 and the company still existed as at September 2006.

24) The file was referred to the CCID on 17 April 2012. Following an OB opened on 20 April 2012
they started a fresh investigation, which was overseen by Messrs Jhangi and Vadamalay. He
studied the ICAC file superficially and relied on documents in his file, which did not contain the
fax. He should have considered the material the ICAC got from Singapore and London. He was
instructed by his superior officers to go to Geneva alone to investigate a case of corruption by
Boskalis and to record statements and collect documents. He had reasonable suspicions against
Boskalis and Accused no.1 before he went to Geneva, but no evidence and believed Boskalis
would produce evidence against Accused no.1. It was not a targeted mission.

25) Messrs Haak, De Goede, Ghurburrun, Collendavelloo and two lawyers from Holland were at the
hotel. Mr De Goede gave the documents to Mr Haak, who handed them to him, namely Documents
DQ to DU and EA to EN1, which they said were certified copies of those in the Boskalis computer
system. He found out that Boskalis made payments to the companies mentioned in the documents.
He concluded from the documents produced that Boskalis was involved and informed Mr Haak
that he had sufficient evidence that Boskalis and Baggermaatschappij were involved in corrupt
practices. In Mauritius he kept the documents in the Exhibit Room and put in them in the exhibit
register. He kept them in his file, as he had to enquire further. After enquiry he put them in a safe
and on completion, put them in the file and sent all to the Director of Public Prosecutions (“DPP”).
He recorded five statements from Haak: he interrupted his first statement to record that of De
Goede who had to go back to his country. He did not do any other investigations in respect of the
documents, Accused no.1’s bank accounts, the authenticity of the documents, the existence of
Devinck, the source of the fax, Mr Boer, Mrs Kok, Mr Lagesse’s e-mails or with the bank. He
verified with telecommunication and all were corroborated and supported by original banking
documents. He denied that he had to pursue the matter further since there were conflicting
evidence from the MPA and from Messrs Haak and De Goede.

26) CI Seeruthun (Witness no.21) the main enquiring officer for ICAC read and produced the
statements he recorded from Accused no.1 on 9 August 2008 and 8 September 2008 (Documents

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 ER3 and ER4). Following the mention of a fax in Samedi Plus - Document H - the ICAC started
an investigation on 19 July 2008 in an alleged case of corruption. He was present as observer for
the search at Boskalis on 25 November 2009: he did not before mention having seen on a computer
screen there the unsigned fax dated 10 October 2006 with the sender, addressee, amount, and
numbers the same as on the fax. Those details are the same as in Document EJ. The ICAC
recommended prosecution against Accused no.1 in relation to the EUR25,000 and he was arrested
on the basis of the document, the version of G. Philippe that he had lent EUR25,000 to him on 13
November 2004 and verification from Singapore. He did not find any transfer from Boskalis to the
accounts of Accused no.1, his relatives, BVNL or Cine Network. Lagesse did not mention any visit
with Accused no.1 and Mr Boer apart from the courtesy visit. The provisional charge was struck
out (Documents EU and EV). He obtained the summary of Citibank Singapore - Document X. The
account number 0241348008 also appears in Documents ED and ED1. The figures on Document
EJ1 are respectively the branch number of the bank and the bank account of UTV Communications
UK Ltd and they appear in the article in Samedi Plus after the payment reference, but the payment
reference does not match that in the article. The limb of the investigation relating to G. Philippe
was sent to the DPP in March 2011 and the case file returned to him on 12 April 2012 with the
DPP’s recommendation that it be sent to the police (Document EY). Accused no.2’s name did not
appear in documents from the MPA and nobody mentioned him being involved.

27) CI Nutchetrum (Witness no.2) read and produced three statements he recorded from Accused no.2
on 12 and 13 June 2012 and 28 December 2012 (Documents FA, FA1 (edited version) and FA2
(edited version)). CI Raghoonundun opened OB232/12 CCID: he (Nutchetrum) joined the
investigation a few days before June. He was instructed to go to Dubai with CI Raghoonundun for
inquiry, as Mr iikLagesse was bounded with a contract and could not leave. ACP Vadamalay told
him someone from the DPP’s office was there and if they encountered any problem to contact CID
in Mauritius, which would arrange a meeting. He knows Mr Lagesse was the local representative
of Boskalis, but he does not know the extent of his involvement in the negotiations between
Boskalis and the MPA. They did not have evidence against Boskalis before CI Raghoonundun
went to Geneva. They had no reason to doubt the authenticity of the documents as Boskalis
produced them and confessed, so he did not do any counter-verifications of the documents or the
payments or any other investigation. He cannot confirm if the documents were copies and cannot
say if faxes can be manipulated, but e-mails can be. Accused no.2 said he had no written contract

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 with Boskalis and he did not counter-check with Boskalis, but did so with Mr Lagesse. No
evidence was obtained from the MPA or the local agent that he was a consultant. His inquiries
revealed that subsequent to the e-mail dated 15 September 2006 Boskalis made payments of
USD25,000 and USD60,000. There was communication between Boskalis and Miasa Fashion on
675 3725 on 8 and 9 November 2006. Boskalis did not pay Accused no.2, but paid Bedia SARL,
Y. Teeluck and Rogelio Jimenez directly. When putting questions to Accused no.2 he showed him
Documents DU and DS which he got from CI Raghoonundun: the same details appear in
Documents DT, EL and EL1 and in DS, EM and EM1. C. Luximon worked for Accused no.2 and
was the co-director with Accused no.2’s wife in another company.

28) Mr M. Bashir Nazeer (Witness no.18) worked full-time as Public Relations Assistant at the MPA
in 2006-2007. Before that he was employed at Cine Network Co Ltd: at one time he was a director
and the main figure was Accused no.1. BVNL was based in Rose-Hill and later at Cinema
Majestic and was equipped with computer, fax, telephones and Internet facilities. It imported
movies from Yash Raj Films, Shemaroo, Maure Films and others. He does not know why his name
is in the Customs documents as he never dealt with them: it was Eshan Chady who did so. He was
the director of BVNL, the secretary and one of the signatories and he resigned as director some
time in 2004. In 2006-2007 he helped Mr Chady in Blockbuster: as manager he saw to the day-to-
day running of the company and reported to Accused no.1. Accused no.1 dealt with the foreign
companies, ordered movies for BVNL and controlled its financial aspect. He had bank accounts at
First City Bank and Habib Bank at the time: his First City Bank account was used for payments
and receipts for BVNL because the company had problems with the bank in respect of overdraft
(Document FD). His phone number in 2004-2005 was 286 0537 and he used it to make calls and
for faxes. Accused no.1 gave him instructions by phone to send a fax on behalf of BVNL, which
someone dropped at his place, but he did not read the contents at the time. In his statement he said
he sent the fax dated 8 January 2007 to P. Boer, of Boskalis, which fax mentioned that payment
was to be made to G. Philippe. He cannot say he was mistaken when he said in his statement that
Accused no.1 often gave him faxes to send and that there was no international connection. At the
time the fax was sent the fax machine at the office was not working. He does not know Accused
no.2 personally and never had anything to do with him in 2006-2007.

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 The case for Accused no.1

29) In essence the defence statements of Accused no.1 to the police is to the effect that he was the
director of BVNL and oversaw the business and is still a shareholder, but the company is now
defunct. He cannot recollect to who were allocated phone number 213 1416, mobile number 291
8486 and fax number 201 3097. He recollects that BVNL was dealing with UTV Communications
(UK) Ltd, Yash Raj Films and SARL Maure Films, but does not know about Shemaroo Video Pvte
Ltd, Sensabian Media and Shree Krishna International Bombay. BVNL paid for films by
telegraphic transfer. He was appointed as chairman of the MPA in a non-executive capacity from
February 2006 to September 2008. He presided board meetings and the board took all decisions.
The Executive Director has responsibility for the day-to-day management and executive duties. He
was not aware of the tender exercise in 2004 for the dredging of the English Channel, the
annulment thereof and re-launch of the tender in 2005 after clearance of the CTB. He cannot
recollect the papers deposited and the decision the board took during the meetings of 24 February
2006, 21 April 2006 and 14 July 2006. As far as he can recollect and in view of the technical
nature of the statement he did not and could not have made same. He does not recollect and did not
participate in a board meeting on 21 July 2006 involving the MPA, Boskalis and the consultant
wherein after discussions Boskalis reduced the project costs from Rs439m to Rs380m subject to
certain conditions. He signed the board paper dated 24 July 2006 and the board approved the
award of the contract to Boskalis on 26 July 2006 after the approval of the CTB. He knows
Accused no.2 as a politician and when he was appointed as chairman of the MPA, he came to
know he was a previous chairman. He is not aware of any involvement of Accused no.2 in the
dredging project, the MPA did not mandate him to act as intermediary between it and Boskalis in
the award of the contract and Boskalis did not mandate/he is not aware if Boskalis mandated him
to act as consultant in the project. He had not been in constant contact with Accused no.2 when he
occupied the post of chairman. He is not aware that Accused no.2 was updating Boskalis on the
dredging project through fax and e-mail and negotiating commission and meeting CES in relation
to the contract. He was not entitled to any commission fee or other remuneration from Boskalis in
connection with the dredging contract. He has never asked Accused no.2 to negotiate commission
fees with Boskalis on his behalf. He knows Mr Philippe as a friend and politician, B. B. Rawat
who is his brother’s girlfriend and B. Nazeer, who was involved in BVNL and assisted in the
running of the Chady family film business. He does not know Messrs C. Luximon, Y. Teeluck,

Page 13 of 54
 Boer, Mrs A. Kok and if Mr Lagesse was the local representative of Boskalis. He does not recall
meeting Mr Boer during his visit in Mauritius, but the latter could have been introduced to him
during site visits. He does not recall communicating with Mr Boer or another Boskalis employee
by fax, e-mail or phone before or after the award of the contract.

30) He is not aware of, and has not made any request mentioned in the e-mails dated 14 and 25
September 2006 and 10 and 25 October 2006 exchanged amongst Prakash M, Boer P and Kok A.
He does not know anything about RBS certificates confirming payments/transfers from the
account of Boskalis of GBP25,000 to UTV Communications (UK) Ltd, USD60,000 to Yash Raj
Films International Ltd, EUR41,000 to Y. Teelock, EUR25,000 to G. Philippe’s account,
EU12,000 to Yash Raj Films Int. Ltd, USD60,000 to SARL Maure Films, EUR3000 to Krishna
International and EUR9450 Yash Raj Films. He does not know to whom refer the names “Dr
Chady”, “Chady” and “Dr Ms Chady” which appear in some documents. He does not know J. C.
Haak and did not have any dealing with him in relation to the dredging contract awarded to
Boskalis, does not know to which Dr Chady he is referring in his statement and does not know
anything about payments of USD20,000, USD6000, USD4000, USD25,800, USD25,000,
USD60,000, EUR4000, EUR25,000, EUR12,000, EUR6000, EUR3300 and USD9450 to UTV,
Mistry Bhawan/Shemaroo, “Sensotorian” Media, UTV, Yash Raj, Bedia SARL, G. Philippe,
SARL Maure Films and Shree Krishna for the benefit of Dr Chady. He denied that between 10
August 2006 and 13 April 2007 whilst he was the chairman of the MPA he received
“gratification… USD20,000, USD6000, USD4000, Euro25,000, Euro12,000, Euro6000,
Euro2300 and USD9450 from Boskalis International BV and Baggermaatschappij Boskalis BV
for” (sic) himself and on accounts of UTV, Shemaroo, Sensabian Media, Yash Raj, G. Philippe
and Shree Krishna “in respect of contract 34A/2004 Dredging Works of English Channel at the
Mauritius Port Louis Harbour.” (sic) He cannot comment on J. C. Haak’s opinion as it is based on
allegations of facts of which he is now aware. M. B. Nazeer was a director and shareholder of
BVNL in 2003-2004 and continued to be a shareholder after his resignation as director. He cannot
confirm if M. B. Nazeer was the manager of BVNL, but he was involved in the operation of the
cinemas BVNL controlled. He never gave Nazeer the document or the fax number of Boskalis so it
is incorrect to say that he gave him instructions in relation to the document. He occasionally went
to S. Johar’s place. He does not know Lagesse, but he knows the name as he met one Lagesse
when he was chairman of the MPA. He received courtesy calls as chairman of the MPA and it is

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 possible he met Lagesse with other persons then. He did not receive courtesy calls at other venues.
He denied Lagesse’s version that after the signature of the dredging works contract Accused no.2
arranged meetings between P. Boer and he and P. Boer, Lagesse and Accused no.2 met him at his
place at Belle Rose and Accused no.2 asked that P. Boer and he be left alone for discussions. He
denied that he dined with P. Boer and Accused no.2 at Labourdonnais Hotel.

31) In brief his statements to the ICAC are that he is a shareholder of BVNL which owns Cine City
(ex-Majestic), Vogue, Savoy and Ritz and its office has never been at Curepipe. Faxes addressed
to BVNL are received on fax number 674 1616 belonging to Naseeruddin, his employee working
at Ritz Cinema. He did not act as director of BVNL before 2007 and was not involved in the day-
to-day running of the company: when he signed the balance sheets for years ended 2004 and 2005
he omitted the word “for” director.

32) The copy of the fax published in Samedi Plus 19 July 2008 sent by A. Kok to Blockbuster video
was not addressed to him, as Mr Chady is not his name and his company is not Blockbuster Video.
He received a courtesy visit from the representative of Boskalis after the tender was awarded. He
never met anyone whose company submitted a tender before the award of the tender, never came
across the name P. Boer who visited him as representative of Boskalis and cannot remember
having met him several times as chairman of the MPA. The allegation of corruption against him is
unfounded and he or BVNL have never received money on their accounts from abroad. He denied
having used his office as chairman of the MPA to obtain a gratification: there is no evidence to that
effect. He denied that the procedure was not followed. On 14 July 2006 the board approved the
contract to Boskalis, but only after the CTB approved and he intervened on that day. He met the
representative of Boskalis after the tender was allocated. He did not meet Mr Boer on or about 13
July 2006 before the allocation of the contract. It is possible he brought the fax addressed to Mr
Toi at the MPA to his office at Belle Rose. It is the first time he is seeing the fax dated 5 February
2007, number 230 2103097 from A. Kok copied to number 230 6753925 confirming payment of
EUR25,000: he does not know number 230 2103097. It is possible he was the director of BVNL
on 5 February 2007 and it is possible that number 230 2013097 was used at BVNL. He denied that
he asked G. Philippe for financial help, borrowed money from him, G. Philippe gave him his
account number, the question of refund arose, G. Philippe thanked him on 17 February 2007, he
said he had paid as promised and that he met G. Philippe again. Boskalis never contacted him on

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 210 3097 and 674 1616 and he is not aware of any communication between Boskalis and his phone
674 1616. He cannot explain the faxes dated 10 October 2006 and 5 February 2007 to the attention
of Mr Chady from Boskalis, the document dated 14 July 2006 found in his office and the telephone
calls between Boskalis and BVNL. It is possible he was the bank signatory for one account of
BVNL in 2006. He denied that in or about October 2006 and 6 February 2007 he obtained
USD25,000 and EUR25,000 from Boskalis using his position as chairman of the MPA.

33) Mrs F. Goolamhossen, Compliance Officer, Registrar of Companies, said that BVNL was
incorporated on 21 October 2002 and the shareholders and directors were H. B. Chady, M. Y. S.
K. Chady and M. B. Nazeer and the secretary was M. B. Nazeer. H. B. Chady and M. B. Nazeer
ceased being directors and I. Raj Kumar was director at the time the company was defunct
(Documents FF, FG and FH). It is not written anywhere that Accused no.1 was a shareholder.

34) The evidence of Mr M. Sidnam, Principal Court Officer, Intermediate Court, and Insp. Soobul
relate to Accused no.1’s case and complaint against J. C. Haak.

The case for Accused no.2

35) In essence the defence statements of Accused no.2 are to the effect that his mobile number is 799
5454 and his e-mail address is pmaunthrooa@yahoo.com. He used the same mobile number in
2006-2007, but cannot confirm for the e-mail. He cannot recollect if he used the e-mails
pmaun@yahoo.com and pmaun@intnet.mu. He served as chairman of the MPA from October
2000 to November 2003. After that he never offered his services to the MPA. He first met Accused
no.1 in the then Prime Minister’s Officer when he had a dispute with G. Philippe. Accused no.1
never retained his services in port matters when he was chairman of the MPA. He knows Accused
no.1 contacted him on several occasions on technical and operational issues, but he is not
concerned with his businesses. He knows Boskalis but never dealt with them during his term of
office at the MPA. He was a consultant for Tulip Services Ltd, which operated from Curepipe in
the same premises as he and they shared a phone line, but he does not recall its e-mail and fax
number. He knows Rogelio E. Jimenez/Phonphils Fish Services, but does not recall if Tulip
Services had any dealing with it. He worked as consultant for Emerald Enterprises Ltd and they
operated from the same office in Curepipe: there were two phone numbers 675 6738 and 675 6739

Page 16 of 54
 one of which was out of order and fax number 675 3725 which was out of order for a long time
and which he used when it was working. Accused no.1 has used his office phone and fax in
Curepipe on numerous occasions.

36) He does not know UTV Communications UK Ltd, Shemaroo Video Pvte Ltd and Sensabian
Media. He worked as marketing consultant for Bedia SARL. He does not know B. Nazeer, B. B.
Rawat and A. Kok. He has communicated in a professional capacity with Y. Teeluck, C. Luximon,
P. Boer, R. Lagesse, Panigrahi, Gosh and Dar. He is aware of the tender for the dredging project,
that Boskalis was a bidder and CES the consultant, but not about other details about the tender.
Boskalis verbally retained his services as consultant and he assisted in the monitoring process and
resolution of disputes. He asked for a written contract but P. Boer said their verbal agreement was
good enough. His fees for local and regional services were about Rs4m, which Boskalis paid to his
collaborators to whom he owed money and to corporate entities abroad. Accused no.1 never
mandated him “to negotiate or to give instructions to Boskalis International B.V to effect payment
on their behalf in respect of the dredging project.” (sic) He cannot comment on documents “not
authentified” (sic) and no longer has documents to assist him with explanations in relation to e-
mails emanating from Boskalis dated 4 and 15 September 2006, 10 and 25 October 2006
purporting to be communications amongst P. Boer, A. Kok and he mentioning Accused no.1,
Lagesse, BVNL and denies having typed anything in relation to payment. He normally used e-mail
pmaun@intnet.mu.

37) He denied having given instructions to Boskalis for the transfer of funds and cannot comment on
RBS certificates advising Boskalis of transfers of USD30,000, USD25,000, EUR12000 and
EUR6000 to respectively UTV Communications UK Ltd, BVNL, Rogelio E. Jimenez, Phonphils
Fish Services and Bedia SARL. He cannot comment on the e-mails dated 13 October 2006
allegedly between A. Kok and him in respect of Jimenez and P. Boer and he in respect of the
mentioned companies and the e-mails are not correct. He is not aware or involved in any of
BVNL’s and Accused no.1’s requests to Boskalis for payments of USD60,000, EUR25,000,
EUR12,000, EUR6000, EUR3000 and EUR9450 to Yash Raj Films International Ltd, G. Philippe,
SARL Maure Films and Shree Krishna International Bombay in the period 9 November 2006 to 13
April 2007. He denied that in 2006 and 2007 he “aid and abet Mr Siddick Chady to obtain
gratification and for that you facilitated” (sic). It may be that he has used the fax machine at his

Page 17 of 54
 brother’s N. Maunthrooa’s computer shop at Eau Coulée, but cannot recall any specific fax sent.
Boskalis had no transactions with MPA when he was chairman and he does not recall having met
R. Lagesse and Rein de Boer during a courtesy visit and he did not meet him in Paris. In mid-2006
Lagesse phoned him to say Boskalis wished to retain him as consultant and he agreed and Lagesse
said he had to meet P. Boer to discuss terms and conditions and fees. Afterwards he attended
several meetings in Mauritius with representatives of Boskalis when he gave his professional
advice. He denied Lagesse’s version that after 26 July 2006 he organised a meeting between P.
Boer and Accused no.1’s at the latter’s place at Belle Rose and he asked Lagesse to leave Accused
no.1 and P. Boer alone to talk. He denied Lagesse’s version that Accused no.1 and he were invited
to a dinner at Labourdonnais to celebrate the award: he has attended lunches and dinners held by
Boskalis as consultant.

Discussion

38) The trial took six and a half years, over more than a hundred and fifty sittings and the case file
consists of some three thousand pages of evidence, as well as a mass of documents and authorities
submitted for my consideration. Nineteen (19) rulings have been delivered by the court in the
period 15 May 2013 to 16 May 2019 upon motions to stay proceedings for abuse of process or to
dismiss the information (information defective, breach of the Constitution, disclosure of
documents, trial by the press, immunity to prosecution witnesses, editing of statements, calling of
prosecution witnesses, privilege, mutual assistance in criminal matters, evidence through live
video link, validity of appointment of Dutch interpreter, Power of attorney, calling of defence
witness). There has also been more than one challenge of the bench.

39) I have noted that the defence have during their submissions reiterated many of the issues
mentioned, albeit couched differently. It stands to reason that the court will not consider these
issues again. However, the court will consider other issues raised, namely the unfairness of the
investigative process encompassing the provisional information, previous information against
Boskalis International bv and Baggermaatschappij Boskalis bv, “modification of the charge” (sic),
Parliamentary debates (Hansard), testimonies of enquiring officers and other prosecution
witnesses.

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40) I have in my Ruling IV dated 12 June 2013 said that I would have to hear the evidence of the
enquiring officers before determining whether the investigative exercise was unfair and unlawful.
In my Ruling V dated 5 September 2013 I have already ruled upon the contention of the defence
that the prosecution participated in the evidence gathering process, illegality of the documents
obtained and breach of the sovereignty process.

The provisional information

41) In Gordon- Gentil v State [1995 MR 38] the Supreme Court said:

“A provisional information is usually entered when a suspect is arrested or is brought into

custody. Its purpose is to bring the detention of the individual under judicial supervision
and control so as to prevent an administrative detention and to enable a judicial authority to
decide whether the detainee should be released on bail or not and, if not, for how long he
should be detained. No detainee pleads to a provisional information and no trial takes
place.”

42) In P. K. Jugnauth v The Secretary to the Cabinet & Head of Civil Service Affairs & Ors [2013 SCJ
132] the Supreme Court said:

“When a provisional charge is lodged against an accused party at the stage of the
investigation, this does not mean that he is brought to trial on that charge. The provisional
charge is merely a preliminary stage when the prosecution is still carrying its investigation
and has not made any decision whether to lodge a criminal charge or not. The provisional
charge does not lead to a determination of issues of guilt or otherwise and an accused party
does not run any risk of being convicted or of being sentenced at this stage. A provisional
charge may culminate into a criminal charge or it may be purely and simply struck out
without any further charge.

43) In the case of The State v Bundhun [2006 SCJ 254] the court explained the meaning of a
provisional charge in relation to the application of the Judges Rules:

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 “... A provisional charge in the Mauritian context is simply an indication of the offence
which a person is suspected of having committed and is normally lodged at a very early
stage of the enquiry, when investigation may have hardly started and is certainly not over.
The purpose of such a charge is to serve as a basis for the detention or conditional release
of the suspect. Accordingly when only a provisional charge has been laid against a suspect,
he cannot be considered as a person “charged” within the meaning of Rule III(b). ...”

44) In The Director of Public Prosecutions v T. P. J. M. Lagesse & Ors [2018 SCJ 257] the Supreme
Court said the following:
“The fact that there is at times also a “provisional charge” is only to bring any accused
party within the jurisdiction of the courts for bail purposes (vide DPP v Indian Ocean
International Bank [1989 MR 110]).”

45) It is clear from the above that the fact that the charges against the accused in the provisional
information were dissimilar to the charges in the information before me does not render the inquiry
unfair, the more so that the inquiry was initially started by the ICAC and then referred to the
police.

Information against Boskalis International b.v and Baggermaatschappij Boskalis BV –

CN244/2013 and 766/2013

46) The court was constantly referred to the case of Police v Boskalis International BV and
Baggermaatschappij Boskalis BV, CN766/2013, by the defence and by the prosecution. The said
case was heard before a different bench and the evidence in that case is not evidence before this
court. The fact that the representative of Boskalis International BV and Baggermaatschappij
Boskalis BV pleaded guilty to the charges in CN766/2013 is irrelevant for the purposes of the
determination of the case before me. If the contrary were to be propounded, there would not be any
need for the prosecution to adduce any evidence before this bench. A court decides a case on the
evidence adduced before it. However, in so far as the prosecution is relying on the evidence of
witness Haak, I will bear in mind that he pleaded guilty on behalf of Boskalis and
Baggermaatschappij before the abovementioned court in case CN766/13.

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 “Modification of the charge” (sic)

47) As for the “modification of the charge” (sic) evoked by the defence for Accused no.1 between
cases CN766/2013 and CN244/2013 and the comparison between the charges in case CN766/13
and the charges against Accused no.1 in the present case, the accused parties in the cases
CN7662013 and 244/2013 were Boskalis International bv and Baggermaatschappij Boskalis BV. I
find that such an exercise is completely irrelevant to the case before me and can have no bearing
on the determination of same. Furthermore, it remains the prerogative of the DPP under section
71(3) and (6) of the Constitution to institute criminal proceedings against a person, and therefore to
decide what charge to lodge against the person.

Breach of the Judges Rules

48) Counsel for Accused no.1 submitted that witness Raghoonundun breached the Judges Rules when
he recorded the statement of witnesses De Goede and Haak alone and referred the court to
Appendix B, 2(c). It is specified after 2(c) that “If two or more police officers are present when the
questions are being put or the statement made” then the records should be countersigned by at least
two of the police officers present. It is not provided in the said administrative directions that a
statement recorded by one police officer is not admissible in law and would constitute a breach of
the Rules.

Parliamentary debates (Hansard)

49) Mr Aullybocus, counsel for Accused no.2, has during his submissions invited the court to accept as
evidence and as true the statements of the then Prime Minister as reported in the Parliamentary
Debates (Hansard) of 26 June 2012, namely the events between February 2011 and April 2012. In
The Modern Law of Evidence, A. Keane, Eighth Edition, Hearsay admissible at common law,
page 342 it is said:

“Under the common law rule against hearsay, any assertion, other than one made by a
person while giving oral evidence in the proceedings, was inadmissible if rendered as
evidence of the facts asserted… The categories of hearsay considered in this chapter–

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 statements in public documents, works of reference, evidence of age, evidence of
reputation, and statements forming part of the res gestae–share two common features: all of
them were established at common law as exceptions to the rule against hearsay…”

50) At page 343 and 344 it is further said:

“At common law, statements made in most public documents are admissible in both civil
and criminal cases as evidence of the matters stated. The admissibility of such evidence
may be justified on the grounds of reliability and convenience. Where a record has been
compiled by a person acting under a public duty to inquire into the truth of some matter and
to record his findings so that the public may refer to them, the contents of that document
may be presumed to be true. Proof of the facts stated in the document by direct evidence
would clearly be preferable, but in many cases the public official in question will be dead,
otherwise unavailable or unable to remember the facts recorded because of the time which
has elapsed… Generally speaking, however, it seems that a public document is only
admissible as evidence of the truth of its contents if (a) it concerns a public matter, (b) it
was made by a public officer acting under a duty to inquire and record the results of such
inquiry, and (c) it was intended to be retained for public reference or inspection.” (the
emphasis is mine)

51) I am of the view that Parliamentary debates do not fall within the three criteria above, which would
apply to birth certificates for example. They are not evidence before the court, but are for reference
only. I find support from what Mungly-Gulbul J., said in the case of A. R. Ahmine v M. S. Chady &
Anor [2013 SCJ 264], which although not binding on the court is of persuasive authority. In such
case respondent no.2 (Accused no.2 before this court) referred to a statement made by the then
Prime Minister in Parliament upon which he purported to rely. The Learned Judge said the
following:

“The evidence sought to be adduced in the affidavit constitutes not only hearsay
information but is in effect double hearsay and inadmissible as evidence for the purposes of
court proceedings. The respondent is relating information communicated by another person
i.e. the Honourable Prime Minister which had been communicated to him by another

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 person i.e. the Commissioner of Police to seek to establish facts which are not to their
personal knowledge.”

52) Furthermore, it is to be noted that it is the defence which caused the Hansard to be produced,
moved that CI Seeruthun himself produce the statement he recorded from Accused no.1 and is now
relying on the contents of the Hansard to submit that the court should ignore the evidence of CI
Seeruthun. I have perused pages 8 to 19 of the reported debates: the statements made by the then
Prime Minister are information relayed to him by different local authorities on the progress of the
ICAC inquiry, the findings of the ICAC, the referral of the file to the police and Boskalis
informing the police of its wish to cooperate and produce documents and the police inquiry. The
defence cannot have it both ways, the more so that the statements of the then Prime Minister are in
line with the evidence adduced by CI Seeruthun, CI Rughoonundun and CI Nutchetrum on the
evolution of the inquiry.

“Prosecution under POCA exclusively reserved to ICAC” (sic)

53) A similar point was raised in 2013 and 2017 in the course of motions of the defence that the
proceedings be dismissed and permanently stayed. I have already ruled upon the issue in my
Ruling XVII dated 15 June 2017. However, I wish to add that the POCA was proclaimed by
Proclamation No.18 of 2002 and came into effect on 1 April 2002 and section 82 of the said act
provides that:

(1) Subject to subsection (2), no prosecution for an offence under this Act or Part II of the
Financial Intelligence and Anti-Money Laundering Act 2002 shall be instituted except by,
or with the consent of, the Director of Public Prosecutions.

(2) The Director General, the Director of the Corruption Investigation Division, or any
other officer designated by the Commission, may swear an information and conduct the
prosecution in respect of any offence under this Act or Part II of the Financial Intelligence
and Anti-Money Laundering Act 2002.

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 (3) Subsection (2) shall be without prejudice to the Chief Legal Adviser, or any officer of
the Legal Division designated by him conducting any prosecution as specified in that
subsection.

54) I find that the above sections do not preclude the DPP from lodging a case or conducting a
prosecution against a person under the POCA. Furthermore, it is to be noted that for any case
before the Intermediate Court of Mauritius there needs to be a reference from the DPP.

55) I find support for the above in the cases of Peerthum v Independent Commission Against
Corruption [2014] UKPC 42 and S. Ramkalawon v The State [2012 SCJ 254]. In the first-cited
case the appellant had been prosecuted for corruption offences under the POCA. At paragraph 5 of
the judgment the Privy Council said the following:

“Suspected offences of those kind may of course be investigated by ICAC, but its powers
to do so are not exclusive; such offences may well be investigated by the police force, for
example (but not only) where they are wrapped up with other suspected offences, such as,
perhaps, drug trafficking, fraud or economic crime.”

56) In the second-cited case (which is of persuasive authority) the Supreme Court says the following:

“[18] ... ICAC, albeit an independent and impartial body, with its own staff, its own
parliamentary accountability, its own budget and its own statutory rules for the conduct of
an enquiry is not a legal system outside our legal system. In no way does it curtail the
power of any other person or body to investigate and prosecute an offence… But their
existence does not prevent or exclude the Commissioner of Police from exercising his
investigatory or prosecutorial powers where he deems it fit where the case does not show
such sophistication..."

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 Charge against Accused does not exist in law/Charge not put to Accused/Different charge put to
Accused

57) The relevant sections of the law are section 125 of the Courts Act and section 73 of the District and
Intermediate Courts (Criminal Jurisdiction) Act. They read as follows:

Section 125 Courts Act

(1) The description in the information of any offence in the words of the law creating such
offence, with the material circumstances of the offence charged, shall be sufficient. (2) Any
exception, exemption, proviso, or qualification, whether it does or does not accompany the
description of the offence in the law creating such offence, may be proved by the defendant
but need not be specified in the information or proved by the prosecutor.

Section 73 District and Intermediate Courts (Criminal Jurisdiction) Act

(1) No objection shall be allowed to the information, for any alleged defect in its substance
or form, or for any variance which, in the opinion of the Magistrate, is not material to the
merits of the case between such information and the evidence adduced in support of the
charge. (2) Where any such variance or defect appears to the Magistrate to be such that the
party charged has been deceived or misled, the Magistrate may amend such information
and adjourn the hearing of the case to some future day on such terms as he thinks fit.

58) The defence raised similar points on behalf of Accused nos.1 and 2 in 2013 and in my Ruling I
dated 15 May 2013 I found that Counts I to VI disclose offences known to law under section 7(1)
of the POCA and Counts VII to IX disclose offences known to law under section 38(3) of the
Criminal Code (and not section 7(1) of the POCA as contended by defence counsel at the time),
that the information was not in breach of the Constitution and was in compliance with the law, but
I also said that the point raised about the date was premature. I note that Mr S. Toorbuth, counsel
for Accused no.1, has not reiterated his motion to the effect that the information is uncertain
because of the date, but I shall none the less consider the issue in the light of the evidence before
me. As I said before, it is averred under Counts I to VI that the offences occurred “on or about”

Page 25 of 54
 specific dates and the period of the offences was put to Accused no.1 in his statement of 13 June
2012 and he denied the charges. Therefore, I find that the fact that it is averred that the offences
occurred “on or about” a specific date does not render the information bad in law.

59) The question that arises now is whether the charge was put to Accused nos.1 and 2 or whether
different charges were put to them. The court was referred by counsel for Accused no.1 to the
cases of Mrs P. Marday v State [2000 SCJ 225] and P. D. Easton v The State & Anor [2012 SCJ
55]. In those two cases, which date back to more than ten years, the Supreme Court found that the
precise charge was not put to the accused. I find that the judgment in the case of The Director of
Public Prosecutions v T. P. J. M. Lagesse & Ors [2018 SCJ 257] more relevant to the issues before
the court. In the said case, one of the questions before the Supreme Court was the duty of the
police when recording a defence statement and whether such duty had been breached and if so,
whether it was to the extent as to deprive the accused of a fair trial. The Supreme Court said the
following:

“As highlighted by the Court in the case of The State v Madelon and Ors [2004 SCJ 129]
and Seetahul v The State [2015 SCJ 328], we also have not come across a provision in our
Law that imposes a duty upon the Police to actually put the charge to an accused. None of
the rights referred to in section 5 of the Constitution are in issue here. Section 10 of the
Constitution relates to the rights of a person charged with a criminal offence before the
Court, and again not applicable here. Also, as we have stated above respondent No. 3 was
assisted by Counsel (vide State v Coowar [1997 MR 123]) during the recording of the
statements of 6 and 7 August 2013, although he decided not to be assisted thereafter…

The baseline is therefore that the accused must be made aware of the case against him.
What effectively does that imply? Quite clearly this will depend on the particular
circumstances of each case, but evidently cannot mean the “charges as per the information
lodged before the trial court” be put to him at the stage of enquiry.

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 Where there is a complaint, it would de facto imply that the suspect has to be confronted
with that complaint; and if there were additional incriminating evidence gathered during
the course of the enquiry those should be put to the suspect. Obviously, if the police as part
of their enquiry do have incriminating evidence, the suspect has to be cautioned and
informed of his right to be legally assisted, i.e. right against self-incrimination and right to
be legally assisted. Here, it is good to highlight that if the two rights referred to above are
to have any meaning, they have to be imparted to the suspect in a language which he
understands.

In fact there is no such thing as a duty to put the charge as per the eventual information to
the suspect at enquiry stage. He is normally, as he should be, informed of the facts and
circumstances against him, or reproached of him. It is only if the final charge is totally
different or more serious than what had been put to the accused at enquiry stage that there
would be ground for concern.”

60) The concession that Mr Haak made on behalf of Boskalis and Baggermaatschappij and imparted to
Accused no.1 at folio 4680 of his statement of 13 June 2012 is obviously not the ‘charge’ or the
facts and circumstances against him. However, the said statement does not stop there inasmuch as
at the penultimate page, at folio 4682, the following was put to Accused no.1:

“The Police is informing you that between period 10.08.06 and 13.04.07 when you were
the chairman of the Mauritius Ports Authority you obtained gratification as follows:
USD20,000, USD6000, USD4000…, EURO25,000…, EURO12,000, EURO6000,
EURO2300 and USD9450 from Boskalis International BV and Baggermaatschappij
Boskalis BV for yourself on accounts of :(1) UTV Communication UK Ltd, (2) Shemaroo
Video Private Ltd, (3) Sensibian Media (4) Yash Raj Films International, (5)…, (6) Gilbert
Philippe, (7)… and (8) Shree Krishna International, in respect of contract 34A/2004
Dredging Works of English Channel at the Mauritius Port Louis Harbour.” (sic)

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61) The above extract of the defence statement of Accused no.1 manifestly convey the facts and
circumstances against him.

62) In his statement of 13 June 2012 at folio 12/4815 Accused no.2 denied that he “aid and abet Mr
Siddick Chady to obtain gratification and for that he facilitated” payments to different companies.
The words used by CI Nutchetrum might not be a model of grammatical perfection, but they
clearly convey the facts and circumstances against Accused no.2.

63) In the light of all the foregoing, I find that Accused nos.1 and 2 were made aware of the case
against them in clear terms and that it cannot be said that different “charges” than the ones in the
information were put to them. I further find that the offences against them do exist in law, as I had
found six years ago.

The information: elements of the offence/the particulars do not comply with the requirements of
section 7(2) of the POCA, information wrong in law.

64) Mr Toorbuth referred the court to numerous cases, amongst others M. Mungree v The State & Ors
[2013 SCJ 468], C. Leclezio v The State [2001 SCJ 134], Bheekhun v The Queen [1976 MR 3],
Lange TPC v The State [2004 SCJ 247], ICAC v J. Seeneevassen [2012 SCJ 328] and N. Joomeer v
The State [2013 SCJ 413], in support of his arguments. Mr Ahmine also referred the court to the
case of N. Joomeer (supra).

65) I have already considered the issue of the information being wrong in law in depth in my Ruling I
dated 15 May 2013. As I have said six years ago and to the risk of repeating myself, Counts I to VI
and VII to IX reproduce the words of section 7(1) of the POCA and section 38(3) of the Criminal
Code, so that the elements of the offence under such sections are averred.

66) The offences in the cases quoted by Mr Toorbuth are completely different to the offences in the
present case and even if the Supreme Court found in those cases that elements of the offences were
not averred, the findings of the Supreme Court do not really help this court to determine if the
elements of the offence under section 7(1) of the POCA have been averred in the information

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 against Accused no.1. Mr Toorbuth has also cited cases of the Intermediate Court: I am not bound
by them.

67) The facts in the case of Seeneevassen are not the same as the facts in the present case. In that case
the Supreme Court found that the accused had acted as agent and was remitted money to pay a
debt. This is not the contention of the prosecution in the case before me.

68) In the case of Joomeer (supra) the appellant was charged under section 7(1) of the POCA before
the Intermediate Court. The Supreme Court said the following at paragraphs 47 to 49:

“[47] It is quite clear from the above that the section that creates the offence is section 7(1)
of the Act. Section 7(2) is only an evidential section. It creates a presumption. But the
presumption operates not in all the cases falling under the purview of section 7(1) but only
in those situations where the public official “has taken [a] decision or action in relation to
any matter in which he, or a relative or associate of his, has a direct or indirect interest.”

[48] As such, where the decision relates to a relative or an associate, the gratification is
presumed. That makes good sense inasmuch as, it can be assumed as a general rule that
relatives or associates will have a common interest in a decision. The presumption in the
matter is only rebuttable. Kith and kin by nature are not necessarily kith and kin by nurture.
Examples are too many today in this age of material pursuit.”

69) The prosecution cannot be more explicit than the information, which charges Accused no.1 under
counts I to VI with having breached section 7(1) of the POCA. It is averred under Counts I to VI
that Accused no.1 caused payments to be made after the MPA had awarded a contract to Boskalis
International bv. The prosecution is clearly not relying on section 7(2) and is not saying that
Accused no.2 has “taken any decision or action in relation to any matter in which he, or a relative
or associate of his, has a direct or indirect interest.” at the time that he was the chairman of the
MPA and the contract was awarded by the MPA. In the circumstances, Mr Pröper’s letter dated 22
August 2008 addressed to the MPA - Document EQ - to the effect that the tender exercise was fair
and transparent is irrelevant for the purposes of determining the case against the two accused. The
presumption of interest is not an element of the offence with which Accused no.1 is charged. Even

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 if Accused no.1 chose to rebut such presumption, by his counsel submitting for example, that the
price of the contract did not increase but decreased, this does not serve any purpose.

“Accused no.1 is charged in his capacity of management” ((sic))

70) Accused no.1 is being prosecuted as public official, in his personal name, for having allegedly used
his office to obtain gratifications and not as part of the management of BVNL. Therefore, it was
not incumbent on the prosecution to aver section 44 of the IGCA in the heading or body of the
Information. In the circumstances the case of J. J. J. R. Desvaux de Marigny v The State [1999 SCJ
414] cited by counsel for Accused no.1, is not relevant.

‘Blockbuster Video Network Ltd’

71) Counsel for Accused no.1 raised the issue of the name “Blockbuster Ltd” being averred under
Counts I to VI and the evidence on record being in relation to “Blockbuster Video Network Ltd”.
Section 73 of the District and Intermediate Courts (Criminal Jurisdiction) Act reads as follows:

(1) No objection shall be allowed to the information, for any alleged defect in its
substance or form, or for any variance which, in the opinion of the Magistrate, is not
material to the merits of the case between such information and the evidence adduced in
support of the charge.

(2) Where any such variance or defect appears to the Magistrate to be such that the
party charged has been deceived or misled, the Magistrate may amend such information
and adjourn the hearing of the case to some future day on such terms as he thinks fit.

72) I find that the variance between the information and the evidence on record is not material and that
Accused no.1 has not been deceived or misled. I further find that the information is not wrong in
law because it avers “Blockbuster Ltd” at Counts I to VI, to which Accused no.1 has pleaded not
guilty. Had Accused no.1 been informed during the police inquiry, inclusive of the recording of his
defence statements, that the company was Blockbuster Ltd, this might have been prejudicial, but it
was Blockbuster Video Network Ltd that was mentioned during the inquiry. Moreover, if it were

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 the contention of Accused no.1 that BVNL was not involved in the present case, one wonders why
he caused to be produced documents relating to the incorporation of BVNL as part of the evidence
for the defence.

73) I shall now set out counts I, III, IV, V, VI, VIII and IX of the information and the relevant law and
authorities before addressing the issues of authenticity, reliability and chain of custody.

Accused no.1: Counts I, III, IV, V, VI – Official using his office for gratification

74) It is averred under count I that on or about 4 August 2006 at Cine City (ex-Majestic Cinema), La
Poudrière Street, Port Louis, Accused no.1 did whilst being a public official wilfully and
unlawfully make use of his position for a gratification for himself. The particulars of the charge are
that on or about the aforesaid date and place, Accused no.1 whilst being the Chairman of the MPA
and following the award of a contract to Boskalis International b.v by the MPA, caused payment in
the form of a gratification to be effected by the said Boskalis International b.v to different foreign
companies, (1) UTV Communications (UK) Ltd (2) Shemaroo Video Pvte Ltd (3) Sensabian
Media, with which, a local company, Blockbuster Ltd had business dealings and which local
company was managed by Accused no.1.

75) It is averred under count III that on or about 30 March 2007 at No.51 Hitchcock Avenue, Quatre
Bornes, Plaines Wilhems Accused no.1 did whilst being a public official wilfully and unlawfully
make use of his position for a gratification for himself. The particulars of the charge are that on or
about the aforesaid date and place, Accused no.1, whilst being the Chairman of the MPA, and
following the award of a contract to Boskalis International b.v by the MPA, caused payment in the
form of a gratification to be effected by the said Boskalis International b.v to Yash Raj Films, a
foreign company, with which, a local company, Blockbuster Ltd had business dealings and which
local company was managed by Accused no.1.

76) It is averred under count IV that on or about 2 April 2007 at Cinema Ritz, Curepipe, Plaines
Wilhems Accused no.1 did whilst being a public official wilfully, and unlawfully make use of his
position for a gratification for himself. The particulars of the charge are that on or about the
aforesaid date and place, Accused no.1, whilst being the Chairman of the MPA and following the

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 award of a contract to Boskalis International b.v by the MPA, caused payment in the form of a
gratification to be effected by the said Boskalis International b.v to SARL Maure Films, a foreign
company, with which, a local company, Blockbuster Ltd had business dealings and which local
company was managed by Accused no.1.

77) It is averred under count V that on or about 3 April 2007 at Cinema Ritz, Curepipe, Plaines
Wilhems Accused no.1, did whilst being a public official wilfully and unlawfully make use of his
position for a gratification for himself. The particulars of the charge are that on or about the
aforesaid date and place, Accused no.1, whilst being the Chairman of the MPA, and following the
award of a contract to Boskalis International b.v by the MPA, caused payment in the form of a
gratification to be effected by the said Boskalis International b.v to Shree Krishna International
Mumbai, a foreign company, with which, a local company, Blockbuster Ltd had business dealings
and which local company was managed by Accused no.1.

78) It is averred under Count VI that on or about 12 April 2007 at Cinema Ritz, Curepipe, Plaines
Wilhems, Accused no.1, did whilst being a public official wilfully and unlawfully make use of his
position for a gratification for himself. The particulars of the charge are that on or about the
aforesaid date and place, Accused no.1, whilst being the Chairman of the MPA, and following the
award of a contract to Boskalis International b.v by the MPA, caused payment in the form of a
gratification to be effected by the said Boskalis International b.v to Yash Raj Films International
Ltd, a foreign company, with which, a local company, Blockbuster Ltd had business dealings and
which local company was managed by him.

The Law and the authorities in relation to the offence of ‘Public official using his office for
gratification

79) Section in breach of section 7(1) of the POCA reads as follows:

Subject to subsection (3), any public official who makes use of his office or position for a
gratification for himself or another person shall commit an offence and shall, on conviction,
be liable to penal servitude for a term not exceeding 10 years.

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80) Section 83 of the POCA caters for the burden of proof in corruption offences and it reads as
follows:

In the course of a trial of an accused for a corruption offence, it shall be presumed that at
the time a gratification was received, the recipient knew that such gratification was made
for a corrupt purpose.

81) At section 2 of the POCA an “act of corruption is defined as follows”:

(a) means an act which constitutes a corruption offence; and

(b) includes -
(i) any conduct whereby, in return for a gratification, a person does or neglects from
doing an act in contravention of his public duties;
(ii) the offer, promise, soliciting or receipt of a gratification as an inducement or
reward to a person to do or not to do any act, with a corrupt intention;
(iii) the abuse of a public or private office for private gain;
(iv) an agreement between 2 or more persons to act or refrain from acting in
violation of a person's duties in the private or public sector for profit or gain;
(v) any conduct whereby a person accepts or obtains, or agrees to accept or attempts
to obtain, from any person, for himself or for any other person, any gratification for
inducing a public official, by corrupt or illegal means, or by the exercise of personal
influence, to do or abstain from doing an act in the exercise of his duties to show
favour or disfavour to any person;

82) In Jhurry v Independent Commission Against Corruption & Anor [2015 SCJ 258] the Supreme
Court lists the constitutive elements of the offence under section 7(1) of the POCA as follows:

“(1) The person charged is a public official;

(2) he made use of his office or position as a public official;
(3) in order to obtain a gratification either for himself or for another person.”

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83) In P. K. Jugnauth v Independent Commission Against Corruption & Ors [2016 SCJ 187] at page
23 where the Supreme Court said:

“By enacting section 83 of the Act, the legislator has unequivocally indicated, first,
its clear intent that mens rea should be an essential ingredient of a corruption offence and,
secondly, that for the purpose of proving the mens rea in respect of such a corruption
offence, the required guilty knowledge is presumed and the burden accordingly shifts upon
the accused to prove absence of any guilty knowledge on his part.”

Accused no.2: Counts VIII and IX – Aiding and abetting the author of a crime

84) It is averred under Count VIII that on 14 September 2006 at Maurice Martin Street, Forest Side,
Plaines Wilhems, Accused no.2 did knowingly and unlawfully aid and abet the author of a crime,
Accused no.1, in the means of facilitating a crime, to wit: public official using office for a
gratification. The particulars are that on or about the aforesaid date and place Accused no.2
requested Boskalis International b.v to give a gratification in the sum of USD25,000 for the benefit
of Accused no.1, who was the Chairman of the MPA, following an award of a contract to Boskalis
International b.v by the MPA, thereby allowing the latter Accused no.1 to use his position to obtain
a gratification.

85) It is averred under Count IX that on 9 November 2006 at Miasa Fashion, at Thomy D’Arifat Street,
Curepipe, Plaines Wilhems Accused no.2 did knowingly and unlawfully aid and abet the author of
a crime, Accused no.1, in the means of facilitating a crime, to wit: public official using office for a
gratification. The particulars are that on or about the aforesaid date and place Accused no.2
requested Boskalis International b.v to give a gratification in the sum of USD 60,000 for the
benefit of Accused no.1 who was the Chairman of the MPA, following an award of a contract to
Boskalis International b.v by the MPA, thereby allowing Accused no.1 to use his position to obtain
a gratification.

The law and the authorities in relation to the offence of ‘Aiding and abetting the author of a crime’

86) Section 38(3) of the Criminal Code reads as follows:

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 Any person who knowingly aids and abets the author of any crime or misdemeanour in the
means of preparing, facilitating or perpetrating the crime or misdemeanour, shall be
deemed an accomplice, without prejudice to the punishments specially provided by law
against the authors of plots or of instigations to offences affecting the internal or external
safety of the State, even in cases where the crime which was the object of the conspirators
or instigators has not been committed.

87) In Dalloz, Répertoire de Droit Criminel et de Procédure Pénale, Tome I, Complicité, it is said that
three conditions must be met before the act of aiding and abetting becomes an offence punishable
by law, as per note 33:

« La complicité suppose la réunion de trois éléments : un fait principal punissable ; une

participation par l’un des modes prévus par la loi ; une participation intentionnelle. »

88) The three elements of the offence are explained in more detail at notes 34, 61, 73, 88 and 100 as
follows:

« La complicité entraine une criminalité d’emprunt et n’est pas punissable en raison d’une
criminalité qui lui serait propre. Il faut donc que l’acte poursuivi au titre de la complicité
se réfère à une infraction principale elle-même punissable ce qui ne veut pas fatalement
dire que l’auteur principal le soit lui-même : il doit s’agir d’une infraction objectivement
punissable dont l’auteur peut échapper pour une raison ou une autre à la répression.

L’article du code pénal énumère une série de faits susceptibles de constituer des cas de
complicité. Cette énumération est considérée comme limitative et les faits visés sont les
seuls qui soient de nature à entrainer les peines de la complicité. La provocation à une
infraction par dons, promesse, menaces, abus d’autorité ou de pouvoir, machinations ou
artifices coupables ; les instructions données en vue de la commission d’une infraction ; le
fait d’avoir procuré des armes, des instruments ou tout autre moyen qui aura servi à
l’action, sachant qu’ils devaient y servir ; le fait d’avoir avec connaissance aidé ou assisté
l’auteur ou les auteurs de l’action dans les faits qui l’auront préparée ou facilitée ou dans
ceux qui l’auront consommée.

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 Aide et assistance dans les actes préparatoires. C’est le fait d’exécuter les actes
préparatoires du crime ou du délit ou d’aider l’auteur principal à les exécuter. Il importe
peu que l’aide ait porté sur des actes constituant un commencement d’exécution ou
seulement un acte préparatoire. La seule condition est que l’auteur principal en soit arrivé
au moins au point au stade de la tentative punissable. Sera complice celui qui conduit une
femme chez une avorteuse ou la met en rapport avec elle…; celui qui accepte un effet de
commerce de complaisance afin d‘en faciliter l’escompte…

La complicité nécessite, afin d’être punissable, une intention coupable chez son auteur.
Cette intention coupable, c’est non seulement la participation volontaire à l’acte, de
l’auteur principal, mais encore de la concurrence de l’aide ainsi apportée à une
infraction. »

89) In Code Pénal Annoté, Emile Garçon, Tome Premier, Livre Deuxième, Art. 69 ‘l’ intention’ is
defined as :

« … la conscience que l’agent a de commettre les faits constitutifs de la complicité, sachant

qu’il s’associe à un acte délictueux tel qu’il est déterminé par la loi, qu’il provoque ou
favorise ce délit et qu’il enfreint personnellement les prohibitions légales. Il faut qu’il
agisse en vue du délit. »

90) Since the defence has raised the issues of authenticity, reliability and chain of custody I shall
address them now inasmuch as they are mostly germane to the charges under counts I, III, IV, V,
VI, VIII and IX.

‘Authenticity’, reliability and chain of custody in relation to Counts I, III, IV, V, VI, VIII and IX

91) The case for the prosecution under counts I, III, IV, V, VI, VIII and IX rests primarily on the e-
mails and RBS documents and attachments and the evidence of witnesses De Goede, Haak,
Hurroo, Johar, N. Maunthrooa, Raghoonundun and Nutchetrum. I have on 23 June 2017 and 25
and 26 June 2018 given rulings from the bench allowing e-mails, letters from the Royal Bank of

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 Scotland and attachments thereto to be produced, subject to the weight to be attached to the said
documents.

92) I find the definition of the ‘weight’ of evidence particularly explicit in The Modern Law of
Evidence, Adrian Keane, Eighth Edition, at page 29, as follows:

“The weight of evidence is its cogency or probative worth in relation to the facts in issue.
The assessment of the weight of evidence is in large measure a matter of common sense
and experience, dependent upon a wide variety of factors such as: (i) the extent to which it
is supported or contradicted by other evidence adduced; (ii) in the case of direct testimony,
the demeanour, plausibility and credibility of the witness and all the circumstances in
which she claims to have perceived a fact in issue; and (iii) in the case of hearsay, all the
circumstances from which an inference can reasonable be drawn as to the accuracy or
otherwise of the out-of-court statement including, for example, whether the statement was
made contemporaneously with the occurrence or existence of the facts stated and whether
its maker had any incentive to conceal or misrepresent the facts. Weight, like relevance, is
a question of degree: at one extreme, an item of evidence may be of a minimal probative
value in relation to the facts in issue; at the other extreme, it may be virtually conclusive of
them.
(see also Halbury’s Laws of England, Fifth Edition, Volume 11, 2009)

93) In Murphy on Evidence, Peter Murphy, Seventh Edition, 1.4.2 Weight it is said:

“The weight of evidence is a qualitative assessment of the probative value which

admissible evidence has in relation to the facts in issue… The assessment of weight
depends upon a multiplicity of factors, which would be almost impossible to define, but
which may certainly include matters extraneous to the evidence itself, for example other
evidence given in the case, or the demeanour of the witness who gives evidence.”

94) I find paragraph 9-100 of Archbold Criminal Pleading, Evidence and Practice, 1995 Edition as
cited in The State v Sir Bhinod Bacha [1996 SCJ 218], the relevant. It reads as follows: -

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 “The old rule that only the “best” evidence is admissible now survives only in the rule that
secondary evidence of the contents of a private document cannot be given without
accounting for the non-production of the original. Otherwise all admissible evidence is in
general equally accepted, though its weight may be a matter of comment.”

95) I note that both the prosecution and the defence for Accused no.2 have referred the court to
Electronic Evidence, Stephen Mason, Second and Third Editions. The case for the defence is
essentially that the source of the e-mails and bank documents is not established and the documents
may have been tampered with. I will rely on the extracts from the Third Edition for ease of
reference.

96) I find that it apposite at this stage to set out the definitions of ‘authentication’ and ‘reliability’ as
per Electronic Evidence by Mason. ‘Authentication’ is defined as “the capacity to prove that the
digital object is what it purports to be. The authenticity of a digital object is preserved by the use of
techniques to prevent the date from being manipulated, altered or falsified deliberately or
inadvertently. Such methods include providing audit trails of transmissions and maintaining
records of encryption. A number of attributes, taken together, provide evidence of authenticity: the
mode, stature and form of transmission, together with the way in which the data is preseved and
how it is manages.”

97) ‘Reliability’: “this is the capacity of a digital object to stand for the facts to which it purports to
attest, which in turn is linked to ensuring sufficient procedural and technical attributes (including a
combination of preventive measures, such as to prevent unauthorised amendments and changes,
and verification measures to provide for a degree of assurance as to the identity of users and the
provision of audit tails to the document when data is viewed and manipulated) are in place and
working to provide for a degree of assurance that the digital object can be deemed to be reliable. In
essence, reliability if associated with the degree of control exercised over the procedures that
permit the data to be created. It is not absolute.”

98) At paragraph 3.18 it is said:

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 “… The reason for taking particular care with digital evidence is because it is easy to alter.
It is necessary to demonstrate the integrity of the evidence and to show it cannot have been
tampered with after being seized or copied… the record should address such issues as who
collected the evidence; how and where it was collected; the name of the person who took
possession of the evidence; how and where it was stored; the protection afforded to the
evidence while in storage; and the names of the people that removed the evidence from
storage, including the reasons for removing the evidence from storage.”

99) It was submitted on behalf of the prosecution that it was not sufficient for the defence just to raise
the issue of authenticity without more. However, in Electronic Evidence by Mason at paragraph
4.02 it is said:

“It is possible to challenge the authenticity of digital evidence in a number of ways,

although many reported cases appear to indicate that a lawyer will merely assert that the
authenticity or reliability of the evidence is not to be trusted, and the court will then have to
determine a suitable response to the allegation raised, although this is not always the
case…”

100) At paragraph 4.03 it is further said:

“In determining whether the party adducing the digital evidence has discharged the burden,
a range of factors may need to be taken into account, covering some or all of the technical
attributes associated with the preservation of digital data... Preparing and presenting
evidence of the authenticity of digital data is a matter for the party that seeks to have the
evidence admitted, where the procedural rules require suitable evidential foundations to be
met. Alternatively, one party may put the authenticity or integrity of digital documents at
issue; in such case the party adducing the evidence will also need to meet the requirement
to provide suitable evidential foundation.”

101) The nature of the evidence available to a court to determine the authenticity of digital data
will differ from case to case, as indicated by Lord Griffith in R v Shephard:

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 “Computers vary immensely in their complexity and in the operations they perform. The
nature of the evidence to discharge the burden of showing that there had been no improper
use of the computer and that it was operating properly will inevitably vary from case to
case. I suspect that it will very rarely be necessary to call an expert and that in the vast
majority of cases it will be possible to discharge the burden by calling a witness who is
familiar with the operation of the computer in the sense of knowing what the computer is
required to do and who can say that it is doing it properly.”

102) At paragraph 4.10 it is further said:

“… Proving the authenticity of a digital object means providing sufficient evidence to

convince an adjudicator that the object that had been retrieved is a faithful represents of
what is claimed to be the ‘original’, or a reliable representation of the object that was relied
upon by the originator...”

103) At paragraph 4.19 the author goes on to say:

“Where the authenticity of a digital object is in issue, the range of considerations to be

taken into account will differ, according to the nature of the evidence to be authenticated,
and where the evidence is to be found. In the majority of cases, oral and circumstantial
evidence will be sufficient to provide for the authenticity of most documents in digital
format… That such evidence is admitted regularly and with little apparent concern for
authenticity probably reflects the instructions by the defendant to their lawyers, and also
enables the trial to continue without the need for costly authentication exercises that are not
required. This is well understood by lawyers and judges alike, for which note the comment
of D. W. Elliott: “It is not for the opponent to seek its rejection by the judge by showing
that it might be a forgery; rather should he seek, by cross-examination of the sponsoring
witness or by rebutting evidence, to have it rejected by the jury because it is a forgery.”

104) I shall end with paragraph 4.26 which somewhat summarises the factors to be taken into
consideration when assessing evidence in digital format and the questions that I have to ask myself
to determine the present case:

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 “It is not always necessary to obtain intricate details of a computer or its operating system
for evidence in digital format to be accepted into evidence and the means by which a
document is authenticated may not necessarily require the evidence of an expert. There is a
great deal of misunderstanding, for instance, over the admissibility of email to consider just
one example. It is often asserted that because e-mails can be easily forged, therefore it is
important to prove an email has not been forged before it is admitted into evidence. This
proposition is nonsense… The authenticity of a document in digital format can be tested in
other ways that are equally effective… The content of the email demonstrated its
authenticity on the face of the totality of the evidence. If the email was fabricated, it has to
be questioned as to why somebody should go to the length of forging the content of an
email that was so obviously linked with the other evidence produced at trial.”

105) It is clear from the above that the authentication of evidence in digital format is on a case-
to-case basis and that there are numerous factors to be taken into account. However, I find from the
guidelines in Electronic Evidence by Mason that the preventive measures to preserve the date are
important to ensure the integrity and eventually the reliability thereof. It is on record that witness
De Goede retrieved the five e-mails - Documents DQ to DU - and that witness Haak retrieved the
RBS documents/asked for confirmation from the RBS, which is in the form of letters and
attachments from the RBS – Documents DY to EN1. I find that the evidence of those two
witnesses does not satisfy the court as to the authenticity, reliability and chain of custody thereof.
Both witnesses were instructed to remove the documents from the Boskalis computer system and
were unable to enlighten the court on the integrity of the record-keeping system and the
preservation of those documents from years 2006 to 2012. Although Mr De Goede gave
explanations about how the system worked at Boskalis I find that the evidential foundation for the
preservation of the data in the six years prior to the copies being made is not satisfactory: I bear in
mind that witness De Goede said that the IT administration and the user had access to the archives
and that he retrieved the documents from various locations, contrary to his earlier evidence that he
made copies of personal archives.

106) It is to be noted that witness Haak is not lawyer and not a specialist in IT and although
witness De Goede joined Boskalis as IT Manager and is currently Senior Enterprise Architect in
the IT Department, he specified that in 2006 he had nothing to do with the computer system as he

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 was responsible only for designing and maintaining the IT Department and that the system had
changed over the years. It is unknown who had the responsibility for the system in 2006. It is also
on record that neither witness did any investigation apart from retrieving the documents from the
system. I take into consideration the fact that witness De Goede said he did not peruse the e-mails
so that he did not know the contents, but could recognise them “globally”: he was no able to clarify
to the court as to exactly how he could recognise the said documents. I further find that the
evidence of Mr De Goede contradictory in respect of whether the e-mails could have been altered
since he dithered between the possibility that they could have been altered and the assertion that
they were not, but could not give any conclusive evidence that the e-mails were authentic. I further
find that Mr De Goede’s identification of the e-mails produced in court is not conclusive. I find
that the authenticity, reliability and chain of custody of the e-mails has not been satisfied.

107) I find that witness Haak’s evidence on the RBS documents is not clear inasmuch it is on
record that he was asked to retrieve documents to establish payments by
Boskalis/Baggermaatschappij and also that he received documents from the RBS, but could not
remember how he asked for them. I am alive to the fact that in Electronic Evidence by Mason, the
concept of ‘authentic digital object’ is deemed to be “meaningless” but I find that although Mr
Haak might have qualified the RBS statements as originals because he is not an IT expert, it was
incumbent on him to at least explain what he meant by the term since they were retrieved from the
Boskalis computer system and printed, and as such are copies. I note with concern his evidence
that he did not think that the bank documents were fabricated. I find that his evidence on what was
exactly handed over to the Mauritius police in Geneva inconclusive since he said that it may be
only copies were given. I find that the evidence of Mr Haak is not sufficient to establish the
authenticity, reliability or chain of custody of the RBS documents and attachments.

108) The authenticity and reliability of the e-mails and RBS documents and attachments also
have to be considered in the light of the evidence of the two enquiring officers, Messrs
Raghoonundun and Nutchetrum. I find that the evidence of those two witnesses is, to say the least,
extremely scanty, quite evasive, contradictory and far from conclusive in so far as their inquiry,
with regard to the e-mails and RBS documents and attachments, is concerned. Both witnesses were
adamant that they only followed the instructions of their superior officers, Messrs Jhangi and
Vadamalay and did not know much apart from complying with orders. I take into account that both

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 witnesses said that they did not peruse the ICAC file, but had a superficial look at it and that
witness Raghoonundun even admitted that he should have looked at the material gathered from
Singapore and London and that witness Nutchetrum’s leitmotif throughout his testimony was that
CI Raghoonundun was the leading enquiring officer and was the one who would be better able to
enlighten the court. I find that unfortunately CI Raghoonundun has not been able to do so:
according to him, he had no idea who he was going to meet in Geneva or what documents he was
to collect, but he also said that he believed Boskalis would provide evidence against Accused no.1.
It is manifest that CI Raghoonundun and CI Nutchetrum both accepted all the documents produced
in Geneva at face-value, as being authentic and reliable, only because Boskalis had “produced
them and confessed”.

109) I find the evidence of CI Raghoonundun on the nature of the documents given to him
inconsistent, since he said that Messrs De Goede and Haak said that the documents were certified
copies – which obviously they are not since they do not bear any stamp, either of Boskalis,
Baggermaatschappij, the RBS or ABN-AMRO – and later that he was not aware that copies of e-
mails and faxes were given to him and finally that his information from the MT was corroborated
by “original banking documents”. The court is still in the dark what “original banking documents”
he meant. Bearing in mind that he said that he found that he had sufficient evidence against
Boskalis from the documents, he must surely have perused them in Geneva and cannot now say
that he was not aware of the type of documents he had in his possession.

110) I further find that CI Raghoonundun’s evidence on the safekeeping of what he termed the
“exhibits” confusing: it is not clear when he put them in the Exhibit room since he also said that he
kept them in the file as the inquiry was not over. Therefore, there remain some doubt as to the
chain of custody once the documents were handed over to him and he was back in Mauritius.

111) I find that in the light of the nature of the documents produced by witnesses De Goede and
Haak to CI Raghoonundun in Geneva, it was incumbent on the police to go further in their inquiry,
at least to counter-verify those documents with the banks concerned and to obtain certified copies
from the said bank, which certified copies would have attracted much more weight than the copies
produced. It is to be noted that none of the different companies mentioned in counts I, III, IV, V,

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 VI, VIII and IX, the recipients if not the beneficiaries of the gratifications, are listed on the list of
witnesses for the prosecution.

112) Witnesses Hurroo, N. Maunthrooa and Johar confirmed the version they gave to the police
that either the businesses, fax machines and phones of Accused no.1 and their own business and
fax machines and the businesses in which Accused no.2 had an interest and their fax machines and
phones were used to communicate with Boskalis, but I find that such evidence is none the less
inconclusive as they claimed not to be aware of the contents of the faxes sent or that they sent
same.

113) There is evidence on record from MT that there were phone calls to Boskalis on its phone
number 786 969845 in The Netherlands in 2006 and 2007 from phone numbers in Mauritius
attributed to different businesses linked with Accused no.1 and Accused no.2 - see Documents AN
to AZ and BA to BC. However, even if there is evidence on record that BVNL had business
relationships with all the companies mentioned in the information, I find that such evidence does
not satisfy the burden of proof in so far as the elements of the offences under counts I, III, IV, V,
VI, VIII and IX of the information are concerned.

114) I find that in the light of the evidence of witnesses De Goede, Haak, Hurroo, Johar, N.
Maunthrooa, Raghoonundun and Nutchetrum it would not be judicious to attach weight to the e-
mails and RBS documents and attachments and to rely on them for a conviction. I am conscious to
the fact that Mason specifies that the contents of a digital format document can validate its
authenticity in the light of the totality of the evidence, but the evidence mentioned is here of such
tenuous character that it would not be judicious and fair to arrive at such a conclusion.

115) I find that the evidence before me in insufficient for me to come to the conclusion that
Accused no.1 whilst being a public official made use of his office for a gratification under counts I,
III, IV, V and VI or that Accused no.2 requested Boskalis to give a gratification to Accused no.1
thereby allowing Accused no.1 to make use of his office as public official to obtain a gratification
under counts VIII and IX.

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116) I shall now consider the charge under count II which concern Accused no.1 and the charge
under count VII which concern Accused no.2. Contrary to the other counts in the information, the
case for the prosecution under counts II and VII rests primarily on the evidence of respectively Mr
Philippe and the documents that he got from his bank and on the evidence of Mr Lagesse. It is
understood that my findings about the e-mails and RBS documents and attachments apply to all
those documents and that they will not be taken into account in relation to counts II and VII.

Accused no.1: Count II - Public official using his office for gratification

117) It is averred under count II that on or about 8 January 2007 at Avenue Crecerelle, No.2,
Morc. Guibies, Pailles, Port Louis Accused no.1 did whilst being a public official did wilfully and
unlawfully make use of his position for a gratification for himself. The particulars of the charge are
that on or about the aforesaid date and place, Accused no.1 whilst being the Chairman of the MPA,
and the MPA having awarded a contract to Boskalis International b.v, caused payment in the form
of a gratification to be effected by the said Boskalis International b.v to Mr Georges Gilbert
Philippe to whom he owed money.

‘(1) The person charged is a public official’

118) There is undisputed evidence on record that Accused no.1 was the chairman of the MPA
from February 2006 to September 2008 and since the MPA was established under the Ports Act
1998 and is a para-statal organisation, Accused no.1 was, on or about 8 January 2007 a public
official. In any event, the defence never disputed this.

‘(2) The person charged made use of his office or position as a public official; (3) in order to
obtain a gratification either for himself.’

119) Although it was the board of the MPA that took the decision to award the contract for the
dredging of the English Channel to Boskalis, that the CTB ratified such decision and that Accused
no.1 was not present during the negotiations, he was the chairman of the MPA at the time and was
aware of all the details in respect of the award of the contract, who the representatives of Boskalis
were and the reduction of tender for the works. Contrary to the submissions of counsel for Accused

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 no.1 that an increase in the tender would have indicated bribery, the reduction in the tender and the
obtaining of the award would have allowed accused to take advantage of the situation for his own
benefit.

120) Counsel for Accused no.2 has in submissions raised the issue that it is averred under counts
I to VI, VIII and IX that Accused no.1 used his “position” for a gratification and that it is averred
under count VII that he used his “office” for a gratification. I find that the difference is immaterial
and that either word can be used.

121) I take into account the undisputed evidence on record that there were communications –
either phone calls and/or faxes – with Boskalis on its phone number 786 969845 in The
Netherlands in 2006 and 2007 from phone numbers in Mauritius attributed to businesses in which
Accused no.1 was involved, namely BVNL and Cinema Ritz, from phone numbers attributed to
persons who worked for businesses in which Accused was involved namely witnesses Hurroo and
Nazeer and from the phone number of a person who was related to Accused no.1, namely witness
Johar – see Documents AN and AP to AV.
122) Counsel for Accused no.1 also raised the issue that in certain instances (the recording of the
statement of Mr Haak) the name mentioned is “Chady” and not Dr Chady. I find that even if the
name “Mohummud Siddick Chady” is not mentioned, there can be no doubt in the light of the
evidence on record that “Chady” meant Accused no.1 and that the existence of another ‘Chady’
who would be involved with BVNL and Boskalis and Mr Philippe, is remote to inexistent.

123) I am alive to the fact that there was a provisional charge against Mr Philippe and there
might be the temptation of self-absolution. However, I find the testimony of the said witness
reliable notwithstanding the searching cross-examination he was subjected to. I find that the
discrepancies in his version about the mistakes in his defence statement and dates in his e-mails to
the bank are not material. I accept as true his evidence that he lent EUR25,000 to Accused no.1 in
the beginning of 2007 inasmuch as the latter had financial difficulties, that Accused no.1 told him
he would use the money to repay his debts, that they agreed that Accused no.1 would repay the
money abroad, that he therefore gave Accused no.1 his account number in Singapore and that
Accused no.1 told him he had fulfilled his promise to refund him. I am alive to the fact that Mr
Philippe said that he loaned the money to Accused no.1 at the beginning of 2007, but I find that

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 such evidence is in line with the averment under count II that the offence was committed on 8
January 2007.

124) I find established from Documents U, U1, W and X that there was a transfer of EUR25,000
by Boskalis through Baggermaatschappij to Mr Philippe’s account with Citibank in Singapore on 2
February 2007.

125) Counsel for Accused no.1 raised the issue that the payment was by Baggermaatschappij
and not Boskalis. Indeed, it is averred in the information that Accused no.1 made use of his
position to obtain gratifications from Boskalis and the evidence on record specifies that payments
were made by Baggermaatschappij. However, there is evidence on record that Baggermaatschappij
is a company within a group, to which also belongs Boskalis, I find that the only inference is that
the payment was made by Baggermaatschappij, but for Boskalis.

126) Much was made about the fact that in Mr Philippe’s bank statement there is mention that
the transfer of the EU25,000 was a ‘service fee’: according to the e-mail dated 4 September 2008
at 9.40 that the bank sent to witness Philippe, it was not the bank that titled the transfer as such, but
Baggermaatschappij. The fact that Baggermaatschappij titled the transfer ‘service fee’ is not
material inasmuch as Documents U, V, W, X, AA and AB support the evidence of Mr Philippe
that EUR25,000 which is the exact amount that he had loaned to Accused no.1 at the beginning of
2007, had been deposited into his account on 2 February 2007 by Baggermaatschappij, a company
affiliated to Boskalis, which had been awarded the contract for the dredging of the English
Channel by the MPA, which was chaired by Accused no.1 from February 2006 to September 2008.
I bear in mind that the evidence of Mr Philippe that he had no professional link with
Baggermaatschappij has remained unrebutted.

127) An issue was also made by the defence for Accused no.1 about Mr Philippe’s account
being in US Dollars and the transfer from Baggermaatschappij to the account was in Euro. I find
plausible Mr Philippe’s explanation that as the transfer was in Euro the bank created an account in
Euro.

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128) One of the conditions for granting immunity to Mr Philippe was that he refunds
EUR25,000 to the State, but this cannot be construed as ‘purchasing’ his immunity. It is to be
noted that the Request for Immunity letter specifies that the EUR25,000 “represents the proceeds
of crime”. It is to be noted that the Enforcement Authority, the DPP, has the power under section
4(4) of the Assets Recovery Act 2011 to do anything appropriate to facilitate or which is incidental
or conducive to its functions. In the circumstances, Mr Philippe’s explanation that he was asked to
repay the money to the State because it was tainted money is acceptable.

129) On the question of the specific type of gratification not being averred in the information, I
find that this is neither here nor there since Counts II reproduce the word of section 7(1) of the
POCA, namely the word ‘gratification’. Furthermore, I find that the gratification meant is
sufficiently particularised in the ‘Particulars’ since it is averred that Accused no.1 “caused payment
in the form of gratification” to be made and that it falls within the definition of ‘gratification’ at
section 2 of the POCA, which has been reproduced above for ease of reference.

130) I find established from all the evidence on record that Accused no.1 whilst being a public
official made use of his position for a gratification and that he knew that the gratification was made
for a corrupt purpose, under count II.

The defence of Accused no.1

131) I have perused the unsworn statements of Accused no.1 and I find that they are not
sufficient to rebut the case for the prosecution under count II. I note that they consist mostly of
denials, forgetfulness of most details concerning his businesses and ignorance of the facts and
circumstances put to him by the ICAC and police and contradictions. It is entrenched in our
Constitution at section 10(7) that a person tried for a criminal offence has the right to remain silent,
but once there is a strong prima facie against him the burden is on him to bring evidence to rebut
the case for the prosecution. I make no apology for referring to the oft-quoted extract in the case of
Andoo v The Queen [1989 SCJ 257] on the issue, as follows:

“This Court has repeatedly stressed that the unsworn statement of an accused is only
evidence of what he told the Police. Where the evidence for the Prosecution establishes a

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 strong and unshaken prima facie case and the accused chooses not to swear to his statement
and expose himself to cross examination, the trial Court is perfectly entitled to conclude
that the Prosecution evidence remains unrebutted. It is of course true that the burden of
proving the guilt of an accused squarely lies on the Prosecution and that the accused is
entitled to remain silent. His right to silence, however, is exercised at his risk and peril
when, at the close of the case for the Prosecution, a prima facie case has been clearly
established since the burden then shifts on him to satisfy the Court that it should not act on
the evidence adduced by the Prosecution. We need only repeat what was said by Sir A.
Herchenroder C.J in Ramkalawon v. R, [1914 MR 124], namely that the observation of
Beccaria should never be forgotten – “imperfect proofs, from which the accused might
clear himself, and does not, become perfect.””

Accused no.2: Count VII – Aiding and abetting the author of a crime

132) It is averred under Count VII that in or about the year 2006, in Plaines Wilhems, Accused
no.2 did knowingly and unlawfully aid and abet the author of a crime, Accused no.1, a public
official, in the means to facilitate a crime to wit: public official using office for a gratification. The
particulars are that on or about the aforesaid date and place Accused no.2 arranged for a private
meeting between Accused no.1, chairman of the MPA and one Mr Pieter Boer, representative of
Boskalis International b.v, which company was awarded a contract by the MPA, for Accused no.1
to use his office to obtain a gratification.

133) The elements of the offence have been set out earlier at paragraph 87 and they are as
follows:

‘un fait principal punissable’; ‘une participation par l’un des modes prévus par la loi’; ‘une
participation intentionnelle

134) The « fait principal » is Accused no.1, as a public official, using his office to obtain a
gratification. Accused no.1’s use of his office as chairman of the MPA to obtain, from a company
with which the MPA had a contract, the transfer of money to a company with which as manager of
a company he had business dealings is an “infraction objectivement punissable”. It is clear from

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 Dalloz and Garçon that it is not necessary that the principal offender “soit lui même frappé d’une
peine.”

135) There is undisputed evidence on record that Accused no.2 was not involved with the tender
exercise and award of the contract for the dredging of the English Channel to Boskalis within the
MPA. It is to be borne in mind that the case for the prosecution is not that there was any
interference by Accused no.2 at the level of the MPA so that the evidence of Messrs Suntah and
Appadu that Accused no.2 could not interfere with the procedure at the MPA is immaterial. It is to
be noted that both said they would not be aware if Accused no.2 communicated with Boskalis
outside the MPA.

136) I accept the evidence of Mr Lagesse that he contacted Accused no.2 at Mr Boer’s request
around April 2006 to understand the process at the MPA. I further accept the evidence of Mr
Lagesse that as from July 2006 he took Accused no.2 and Mr Boer to Accused no.1’s place three
times and that Accused no.2 and he left Accused no.1 and Mr Boer together when Accused no.2
suggested they do so. I am conscious of the fact Mr Lagesse admitted that he had not related
everything to the ICAC when he gave his first statement and that it is only when he gave his
statement to the Mauritian police in Dubai that he mentioned Accused no.2 and that he may have
also breached the agreement with Boskalis, but I find his evidence reliable on the issue of
accused’s involvement. I find plausible his explanation that he did not mention Accused no.2 in his
first statement because there was the secrecy clause in his contract with Boskalis – Document AK,
Clause 3 – and Boskalis had not gone public and he did not want to be involved in the matter. It is
equally plausible that Mr Lagesse decided in December 2012 to give a statement to the police once
Boskalis had gone public around August 2012 and his name was linked to the conspiracy.

137) I will here refer to the oft-quoted case of Ramcharran v/s The Queen and Hoober v/s The
Queen and Bhoyroo v/s Others [1977 MR 226] where the Supreme Court said:

“It is a fallacy that evidence should be treated as a monolithic structure which must
be either accepted or rejected en bloc. On the contrary, it is the function of a trained
magistrate to weigh and to criticize testimony so as to distinguish what may safely be

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 accepted from what is tainted or doubtful.” (cited with approval in D. Sookun & 4 Ors v
The State [2010 SCJ 7] and B. Trilochun v The State [2005 SCJ 224]).

138) I will also refer to The Modern Law of Evidence, Adrian Keane, Eight Edition, The
Varieties of evidence, page 11, on how circumstantial evidence would be a as conclusive as direct
evidence and also cautions about the need to be careful when assessing same, as follows:

“Circumstantial evidence has already been defined as evidence of relevant facts (from
which the existence or non-existence of a fact in issue may be inferred) and contrasted with
‘direct evidence’, a term which is used to mean testimony relating to facts in issue of which
a witness has or claims to have personal or first-hand knowledge. Circumstantial evidence
may take the form of oral or documentary evidence (including admissible hearsay) and real
evidence.

It is no derogation of evidence to say that it is circumstantial.’ Its importance lies in its

potential for proving in a variety of different relevant facts all of which point to the same
conclusion, as when it is sought to establish that an accused committed murder by evidence
of the discovery of a weapon, capable of ahving caused the injuries sustained by the victim,
buried in the accused’s back garden and bearing his fingerprints. Circumstantial evidence,
it has been said ‘works by cumulatively, in geometrical progression, eliminating other
possibilities and has been likened to a rope comprised of several cords:

One strand of the cord might be insufficient to sustain the weight, but three stranded
together may be quite of sufficient strength. Thus it may be in circumstantial evidence–
there may be a combination of circumstances, no one of which would raise a reasonable
conviction or more than a mere suspicion; but the three taken together may create a
conclusion of guilt with as much certainty as human affairs can require or admit of.

… However, as Lord Normand observed in Teper v R:

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 Circumstantial evidence may sometimes be conclusive, but it must always be narrowly
examined, if only because evidence of this kind may be fabricated t cast suspicion in
another… It is also necessary before drawing the inference of the accused’s guilt from
circumstantial evidence to be sure that there are no other co-existing circumstances which
would weaken or destroy the inference…”

139) I find that I can safely infer from the evidence on record that Accused no.2’s actions of
arranging meetings between Accused no.1 and Mr Boer three times around July 2006 and
prompting Mr Lagesse into leaving them together on each of the three occasions amounts to
facilitating Accused no.1 in using his public office for gratification. Furthermore, I find from the
fact that Accused no.2 accepted Mr Boer’s/Mr Lagesse’s request to meet Accused no.1 that he had
the intention to aid and abet the latter, the more so that Accused no.2 had in the past been the
chairman of the MPA and would have known the rules regulating the procedure for tenders and
award of contracts, the fact that he did not agree with Mr Lagesse’s suggestion to contact Mr
Suntah but suggested instead Accused no.1, that Mr Lagesse, Mr Boer and he met Accused no.1 at
his residence more than once and his request that Mr Lagesse and he leave Accused no.1 and Mr
Boer alone each time, that he had the mens rea to aid and abet Accused no.1 in the means to
facilitate a crime.

140) I take into account that Mr Boer’s request on 3 July 2006 to meet Cpt Wong Chung Toi and
Accused no.1 – Document AD – was met with a flat denial through a letter dated 5 July 2006
under the signature of Mr S. Goburdhone, as being in breach of Clause 26 of the Instruction to
Tenderers – Document EW.

141) There is evidence on record that the MPA approved the award of the contract for the
dredging of the English Channel to Boskalis on 14 July 2006 – Document CT – and that the
member of the board signed their approval on 24/26 July 2006 – Document DB. Even if Accused
no.2 were not aware that the MPA had awarded the contract to Boskalis, he would have known
that any meeting between Accused no.1 and a representative of Boskalis was proscribed. Even his
alleged contract with Boskalis as consultant would not have permitted him to derogate to the rules
governing tenders to the MPA.

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142) I can infer from the evidence on record the close association between Accused nos.1 and 2
notwithstanding their denials and I also bear in mind the communication between Miasa Fashion
Ltd, in which Accused no.1 had an interest and whose director was Chetan Rao Luximon who
worked for Accused no.2, and Boskalis on 1 March 2006 and the numerous communications
between the companies in which Accused no.2 had an interest and BVNL, Cinema Ritz and
witness Nazir, as per Documents AR and AS.

143) In the light of the above I find established the charge against Accused no.2 under count
VII.

The defence of Accused no.2

I have perused the unsworn statements of Accused no.2 and I find that they are not sufficient to
rebut the case for the prosecution under count VII. The contents of the statements are merely
denials and contain contradictions about the use of fax machines and phone lines. It is entrenched
in our Constitution at section 10(7) that a person tried for a criminal offence has the right to remain
silent, but once there is a strong prima facie against him the burden is on him to bring evidence to
rebut the case for the prosecution. The same principle in the case of Andoo v The Queen [1989 SCJ
257] (cited above) apply and I need not reproduce it here.

Conclusion

144) For all the reasons given above I find that the prosecution has failed to prove the case
against Accused no.1 under counts I, III, IV, V and VI beyond reasonable doubt and I therefore
dismiss counts I, III, IV, V and VI against Accused no.1.

145) I find that the prosecution has proved the case against Accused no.1 under count II beyond
reasonable doubt and I accordingly find Accused no.1 guilty as charged under count II.

146) I find that the prosecution has failed to prove the case against Accused no.2 under counts
VIII and IX beyond reasonable doubt and I accordingly dismiss counts VIII and IX against
Accused no.2.

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147) I find that the prosecution has proved the case against Accused no.2 under count VII
beyond reasonable doubt and I accordingly find Accused no.2 guilty as charged under count VII.

W. V. Rangan
Ag. President
Intermediate Court

This 13 November 2019

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