Valabhji v ACCS (CM 122 of 2023) [2024] SCSC 45 (5 April 2024)

Carolus J

Background

1. This Ruling arises from a Notice of Motion filed pursuant to section 27(6) and/or section 26(3) of the Anti-Money Laundering Act 2006 (Act 5 of 2006) as amended by the Anti-Money Laundering (Amendment) Act 2008 (Act 18 of 2008) and the Anti-Money Laundering (Amendment) Act 2017 (Act 16 of 2017) (“the Anti-Money Laundering Act 2006 as amended”), by Mukesh Valabhji (“the applicant”) against the Anti-Corruption Commission (“the ACCS”) for the discharge in full of the Restraint Order made by this Court on 31^st March 2023 (“the Restraint Order”) in EXP01/2023. In terms of the Notice of Motion the applicant also seeks for the ACCS to pay “the Applicant’s costs arising out of the making of the Restraint Order, and any applications connected thereto including this Application” as well as “[f]urther and consequential orders”. The application is grounded on the affidavit of Mukesh Valabhji dated 12^th October 2023 and supporting documents exhibited as MV1 (Restraint Order & Ruling dated 31^st March 2023 in EXP 01/2023) and MV2 (Notice of Motion by ACCS with supporting affidavit both dated 4^th April 2023 for amendment of charges in CR114/2021). Counsels for the applicant also filed a bundle of documents which were relied upon at the hearing of the motion, comprising –

Motion and Response

1. Applicant’s Notice of Motion for discharge dated 11 October 2023 and supporting  Affidavit with      

1. Exhibit MV1 (Restraint Order and Judgment of Carolus J, dated 31 March  2023), and
2. Exhibit MV2 (Notice of Motion to Amend Charges with Supporting Affidavit, dated 4 April 2023)

2. Applicant’s supplementary Note to assist the Court and the Respondent dated 15 November 2023
3. Respondent’s Affidavit in Response, dated 24  November 2023

Documents in CR. No.114 of 2021

4. Charges, dated 16^th December 2021
5. Extract from transcript of proceedings, Supreme Court, dated 6  May 2022
6. Amended charges, dated 19 May 2022
7. Transcript of proceedings, dated 14 April 2023

Additional Restraint Documents in EXP 01/2023

8. Ex Parte Notice of Motion dated 8 March 2023 with

1. Supporting Affidavit of Kevin Stephenson, dated 8 March 2023, and
2. Supplementary Affidavit of Kevin Stephenson (updated)

Legislative Provisions

9. Criminal Procedure Code, ss.67, 187
10. Anti Money Laundering Act 2006, ss. 26-27 (as amended by the Anti Money Laundering (Amendment)Act 2017)
11. Anti- Corruption (Amendment) No.3 Act 2021 (Act 58 of 2021)
12. R v Bull (1194) 99 Cr App 193
13. Simeon v R (SCA 23 of 2009) 2010 SCCA 7 (13 August 2010)

 

2. The ACCS object to the Notice of Motion and have filed an affidavit in response thereto dated 24^th November 2023, sworn by Kevin Stephenson, Officer/ Investigator and Review Team Manager at the ACCS, in which he seeks the dismissal of the application. The ACCS also filed two cases relied upon in support of its position namely Director of Public Prosecutions v McFarlane [2019] EWHC 1895 (Admin); [2020] 1 Cr. App. R 4 and Surendra Dayal (Appellant) v Pravind Kumar Jugnauth & 5 Others (Respondents) [2023] UKPC 37.
3. This Court heard oral arguments by the parties on 26^th January 2024.

The Law

4. The Restraint Order was made pursuant to sections 26(1)(b) and 27 of the Anti-Money Laundering Act 2006 as amended. The present application for discharge of the Restraint Order is made pursuant to sub-section (3) of section 26 and sub-section (6) of section 27 aforementioned.  Sections 26 and 27 provide in relevant part as follows:
   1. 1. 26. Circumstances in which Court may make restraint order

 

1. The powers conferred on the Court by this part of this Act shall be exercisable where –

1. proceedings have been instituted in the Republic against the defendant for criminal conduct or an application has been made in respect of the defendant under section 41 or section 42 of this Act, and

1. the proceedings or the application have not or has not been concluded; and
2. either a pecuniary penalty order has been made or it appears to the Court that there are reasonable grounds for thinking that a pecuniary penalty order may be made in the proceedings or an application granted to the Attorney General under sections 38, 41 or 42 of this Act; or

2. the Court is satisfied that proceedings are to be instituted against a person for criminal conduct in respect of which a pecuniary penalty order might be made under Part 5 of this Act.

 

2. For the purposes of section 27 of this Act, at any time when the powers referred to in subsection (1) are exercisable before proceedings have been instituted –

1. references to the defendant shall be construed as references to the person referred to in subsection (1)(b) of this section; and
2. references to realisable property shall be construed as if, immediately before that time, proceedings had been instituted against the person referred to in subsection (1)(b) of this section for criminal conduct in respect of which a pecuniary penalty order might be made under section 38 of this Act.
    

3. Where the Court has made an order under section 27 of this Act by virtue of subsection (1)(b) of this section, the Court shall discharge the order if proceedings in respect of the criminal conduct are not instituted or the relevant application is not made within a period of one week from the date of the order.

Emphasis added.

 

1. 1. 1. 27. Restraint order

 

1. The Court may by order (in this Act referred to as a “restraint order”) prohibit any person from dealing with any realisable property, subject to such conditions and exceptions as may be specified in that order.

 

2. Without prejudice to the generality of subsection (1), a restraint order may make such provision as the Court thinks fit for living expenses and legal expenses of the defendant where the Court considers it essential to do so.

 

3. A restraint order may apply –

1. to all realisable property held by a specified person or persons, whether the property is described in the order or not; and
2. to realisable property held by a specified person or persons, being property transferred to the person after the making of the order.

 

4. A restraint order –

1. may be made only on an application by the Attorney General, and may be made ex parte and otherwise than in public; and
2. shall provide for notice of the application to be given to persons affected by the order.

 

5. A restraint order –

1. may be discharged or varied in relation to any property; and
2. shall be discharged on the conclusion of the proceedings or of the application mentioned in subsection (6).

 

6. An application for the discharge or variation of a restraint order may be made by any person affected by it.

[…]

 

8. For the purposes of this Act, dealing with property held by any person includes (without prejudice to the generality of the expression) –

1. Where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt, and
2. removing the property from the Republic.

 

9. Where the Court has made a restraint order, a member of the police, or an officer of customs may, for the purpose of preventing any realisable property being removed from the Republic, seize the property.

 

10. Property seized under subsection (9) shall be dealt with in accordance with the Court’s directions.

 

The Case of the Parties

The Applicant’s case

5. The ground on which the applicant seeks the discharge of the Restraint Order is that the requirements of section 26(3) of the Anti-Money Laundering Act 2006 as amended have not been met. The applicant’s position is succinctly explained in its “Supplementary Note to assist the Court and Respondent” as follows:
   1. 1. 1. The restraint order dated 31^st March 2023 (“the restraint order”) was made pursuant to the Court’s power under section 26(1)(b)  of the 2006 Act. This section reads:

 

“26(1) The powers conferred on the Court by this part of this Act shall be exercisable where –

…

2. the Court is satisfied that proceedings are to be instituted against a person for criminal conduct in respect of which a pecuniary penalty order might be made under Part 5 of this Act.”

 

1. 1. 1. 2. The relevant provision for the discharge application is section 26(3) of the 2006 Act, which was amended by the Acts of 2008 and 2017. It reads (as amended):

 

“(3) Where the Court has made an order under section 27 of this Act by virtue of subsection (1)(b) of this section, the Court shall discharge the order if proceedings in respect of the criminal conduct are not instituted or the relevant application is not made within a period of one week from the date of the order.

 

1. 1. 1. 3. The short and unanswerable point is that proceedings have not been instituted within one week of the order, and accordingly the Court has no option but to discharge the order. The provision of section 26(3) is mandatory if the conditions have not been satisfied.

 

1. 1. 1. 4. The applicant will submit that:
1. The amendment of charges does not in law constitute the institution of criminal proceedings;
2. Moreover, and in any event:

1. No such amendment of charges has yet taken place; and
2. The mere filing of a motion seeking leave to amend charges does not in law constitute the making of an application to institute proceedings.

             

1. 1. 1. 5. It follows that the requirements of section 26(3) have not been met and the restraint order must therefore be discharged under section 27(6).

 

The ACCS’ case

6. The ACCS’ stance as per paragraph 11 of Kevin Stephenson’s affidavit in response to the present Notice of Motion is that “the ACCS did institute proceedings for a relevant offence within one week of the making of the Restraint Order on 31^st March 2023 (namely 4^th April 2023)” and that therefore “[t]he requirements of section 26(3) AMLA2006 (as amended) were thereby satisfied”. He avers that the Restraint Order was lawfully made as the conditions set out in section 26(1)(b) of the Anti-Money Laundering Act 2006 as amended were made out to the Court’s satisfaction on the basis of substantial evidence placed before the Court, and that therefore the application to discharge the Restraint Order does not arise from any challenge to the evidence placed before the Court (paragraphs 8 & 9 of affidavit in response). He further avers that “[f]urthermore there is no objection in principle to the Restraint Order having been made under section 26(1)(b), nor to the availability of a pecuniary penalty order for the alleged criminal conduct” (paragraph 9 of affidavit in response). He goes on to state that the present application “represents a technical argument arising from the operation of section 26(3) of the AMLA (as amended by the Acts of 2008 and 2017) and the separate time requirement imposed by this subsection after the expiry of 7 days of a Restraint Order having been made” (paragraph 9 of affidavit in response), which argument he avers is without merit and should be dismissed, given that section 26(3) was complied with as proceedings for a relevant offence were instituted by ACCS “within one week of the making of the Restraint Order on 31^st March 2023 (namely 4^th April 2023)” (paragraph 11 of affidavit in response).
7. Kevin Stephenson then goes on in his affidavit in response to explain what proceedings were instituted on 4^th April 2023, as follows:
   1. 1. 12. On 4^th April 2023, the ACCS lodged a Notice of Motion at the Supreme Court which contained an application to amend the existing charges in CR 114/2021 by way of preferring amended, substituted and additional charges against the Applicant. The Notice of Motion was signed by Anthony Juliette on behalf of ACCS and supported by an Affidavit which I swore on 4^th April 2023. Annex B to the Notice of Motion contained the proposed revised charges. These documents have been produced collectively by the Applicant as his exhibit MV2, and I respectfully rely on and refer the Court to its contents.

 

8. The Notice of Motion dated 4^th April 2023 comprised in exhibit MV2 reads in relevant part as follows:

TAKE NOTICE that at 9am on 14^th day of April 2023, or as soon thereafter as this matter may be heard, application will be made to this Honourable Court for the following Orders , to:

 

1. Amend the existing charges brought against the 1^st Respondent, Mukesh Valabhji, and the 2^nd Respondent, Sarah Zarquani Rene, (see Annex A) by way of preferring the amended, substituted and additional charges detailed in Annex B;

 

2. Fix a date for pleas to be entered;

 

3. Withdraw the existing charges in Annex A once pleas have been entered to the amended, substituted and additional charges in Annex B;

 

4. Make an order providing of notice of any such order to be given to the Accused or any other person directed by the court; and,

 

5. Make such further order(s) as the court shall deem just and proper in all circumstances of this case.

 

9. The Affidavit of Kevin Stephenson in support of the Notice of Motion to amend charges dated 4^th April 2023, reads in relevant part as follows:

AFFIDAVIT IN SUPPORT OF NOTICE OF MOTION TO AMEND THE CHARGES

      […]

2. On 19^th May 2022, this Honourable Court gave, inter alia, the following directions: that charges then faced by the 1^st and 2^nd Respondents were amended or substituted. Other charges were withdrawn.

 

3. On 14^th July 2022, the Respondents entered Not Guilty pleas to all charges against them on the indictment.

 

4. I aver and verily believe that since that date, investigators of the ACCS have obtained and have been reviewing a very large amount of material received in response to numerous MLA requests to foreign jurisdictions and material from the Digital Forensics Review (documentary evidence and from electronic devices)…

 

5. I aver and verily believe that learned counsel for the ACCS have been reviewing that material and, consistent with their duties under the Code for Prosecutors, have reviewed the existing charges (see Annex A).

 

6. I aver and verily believe that learned counsel, in light of that review, have drafted charges to amend or substitute the existing charges (see Annex B).

 

7. I aver and verily believe that an application is to be made to amend and substitute the Charges contained in Annex A with those contained in Annex B.

 

10. At paragraph 8 of his Affidavit in support of the Notice of Motion to amend charges, Kevin Stephenson then proceeds to provide a summary of the offences covered by the proposed charges contained in Annex B.
11.  Annex A sets out the existing charges against Mukesh Valabhji and Sarah Zarquani Rene. The original charge against Mukesh Valabhji and other accused persons in CR114/2021 was dated 16^th December 2021. This charge was subsequently amended on 19^th May 2022. As per Annex A the existing charges against Mukesh Valabhji are as follows: Count 1 - Conspiracy to Steal contrary to sections 260, 265 and 381 of the Penal Code; Count 2 - Official Corruption contrary to section 91 of the Penal Code; Count 3 (in the alternative to Count 2) - Abuse of Authority of Office contrary to section 96 of the Penal Code; Count 4 - Conspiracy to Launder Money contrary to sections 3(1)(a) and 3(2)(a) of the Anti-Money Laundering Act 1996; Count 5 - Official Corruption contrary to section 91 of the Penal Code; Count 6 (in the alternative to Count 5) - Abuse of Authority of Office contrary to section 96 of the Penal Code; Count 7 - Money Laundering contrary to section 3(1)(a) of the Anti- Money Laundering Act 1996; Count 8 - Money Laundering contrary to section 3(1)(c) of the Anti-Money Laundering Act 2006 as amended by the Anti-Money Laundering (Amendment) Act 2008; Count 9 - Abuse of Authority of Office contrary to section 96 of the Penal Code; Count 10 - Abuse of Authority of Office contrary to section 96 of the Penal Code; and Count 13 - Conspiracy to Launder Money contrary to sections 3(1)(a) and 3(2)(c) of the Anti- Money Laundering Act 2006.
12. Annex B which contains the “PROPOSED AMENDED/SUBSTITUTED CRIMINAL CHARGES” in CR114/2022 sought by ACCS’ Notice of Motion of 4^th April 2023, contained the following charges against Mukesh Valabhji: Count 1 - Conspiracy to Steal contrary to sections 260, 265 and 381 of the Penal Code; Count 2 - Official Corruption contrary to section 91 of the Penal Code; Count 3 - Official Corruption contrary to section 91 of the Penal Code; Count 4 - Conspiracy to Launder Money contrary to sections 3(1)(a) and 3(2)(a) of the Anti-Money Laundering Act 1996; Count 5 - Official Corruption contrary to section 91 of the Penal Code; Count 6 - Official Corruption contrary to section 91 of the Penal Code; Count 7 - Official Corruption contrary to section 91 of the Penal Code; Count 8 - Official Corruption contrary to section 91 of the Penal Code; Count 9 - Official Corruption contrary to section 91 of the Penal Code; Count 10 - Money Laundering contrary to section 3(1)(a) of the Anti-Money Laundering Act 1996; Count 11 - Money Laundering contrary to section 3(1)(c) of the Anti-Money Laundering Act 2006 as amended by the Anti- Money Laundering (Amendment) Act 2008; Count 14 - Money Laundering contrary to section 3(1)(a) of the Anti-Money Laundering Act 2006. Count 16 - Money Laundering contrary to section 3(1)(a) of the Anti-Money Laundering Act 2006; Count 18 - Money Laundering contrary to section 3(1)(a) of the Anti-Money Laundering Act 2006; and Count 22 - Money Laundering contrary to section 3(1)(a) of the Anti-Money Laundering Act 2006 as amended by the Anti- Money Laundering (Amendment) Act 2008.
13. In his affidavit in response to the present Notice of Motion for discharge of the Restraint Order, Kevin Stephenson avers the following in regards to the proposed Count 11 in the said Annex B:
    1. 1. 13. In paragraph 8.7 of my Affidavit in support [of the Notice of Motion for amendment of charges] sworn on 4^th April 2023, I referred to the additional charge 11, and I averred that it was ‘a new charge’:

 

‘Money laundering of sale proceeds of HPLBVI

 

Charge 11: a new charge to reflect further money laundering by the 1^st Respondent through the use of moneys from the sale of Hotel Properties Ltd (BVI) to buy property in Dubai, through a company (A Pointe Properties Ltd) of which he was ultimate beneficial owner.’

 

1. 1. 1. 14. I further aver that Annex B to the Application dated 4^th April 2023 contained the new proposed Count 11:

 

Count 11

 

STATEMENT OF OFFENCE

 

MONEY LAUNDERING, contrary to section 3(1 (c) of the Anti-Money Laundering Act 2006 as amended by the Anti-Money Laundering (Amendment) Act 2008, and punishable under section 3(4) of the 2006 Act as amended.

 

PARTICULARS OF OFFENCE

 

MUKESH VALABHJI of Morne Blanc, Mahe, Seychelles, between 19^th August 2008 and 31^st December 2019, possessed through a corporate entity of which he was the ultimate beneficial owner, namely A Pointe Properties Ltd, property namely Floor 9 (formerly known as Floor 8) of the Buildings by Daman Office Tower, Dubai, knowing or believing that the property represented the benefit from criminal conduct, or being reckless as to whether the property represented such a benefit.

 

1. 1. 1. 15. Accordingly, I aver and verily believe that the new count 11, as set out in the application to amend the charges, reflects both the evidence and the findings of this Honourable Court when it applied section 26(1)(b) of the 2006 Act (as amended) within the Restraint hearing. The new Count 11 is precisely as envisaged in the Restraint application, and represents the offence which formed the basis for the Court's conclusion that proceedings in respect of relevant criminal conduct were to be instituted by the Respondent. For the avoidance of doubt, the new proposed count 22 in Annex B also represent an allegation of relevant criminal conduct against the Applicant in respect of which a pecuniary penalty order might be made by virtue of the statutory provision. Emphasis added.

 

14. The “proposed Count 22 in Annex B” referred to at paragraph 15 of Kevin Stephenson’s affidavit in response reads as follows:

Transfers of money from Golden Phoenix and CHF Investments Ltd

 

Count 22

STATEMENT OF OFFENCE

 

MONEY LAUNDERING, contrary to section 3(1 (a) of the Anti-Money Laundering Act 2006 as amended by the Anti-Money Laundering (Amendment) Act 2008, and punishable under s.3(4) of the same Act.

 

PARTICULARS OF OFFENCE

 

MUKESH VALABHJI of Morne Blanc, Mahe, Seychelles, between 15^th October 2010 and 31^st January 2012, transferred property, namely in the sums of USD 99,990 from Golden Phoenix and USD 15,000 from CHF Investments Ltd, into Commonwealth Bank of Australia Account (account number 06 4812 10129216) in the name of Sarah Zarquani Rene, knowing or believing that the property was or represented the benefit from criminal conduct, or being reckless as to whether the property was or represented such benefit.

 

15. It does not appear that the ACCS is claiming that proceedings (for criminal conduct in respect of which a pecuniary penalty order might be made under Part 5 of the Act) were instituted against the applicant within a period of one week from the date of the making of the Restraining Order as required under the first part of section 26(3) of the Anti-Money Laundering Act 2006 as amended. It appears to be claiming that section 26(3) has been complied with by the making of an application for the institution of such proceedings within that time frame in terms of the second part of section 26(3), such application being by way of the Notice of Motion dated 4^th April 2023 seeking to amend the charge in CR114/2021 by adding a new charge. This is confirmed in paragraphs 16 and 17 of Kevin Stephenson’s affidavit in response which read as follows:

16. I have been informed by counsel representing the ACCS and verily believe that the application to amend the charges is made pursuant to Section 187 of the Criminal Procedure Code. Section 187 (2) makes it clear that ‘amendment’ can take the form of the substitution of or the addition of a new change:

 

“187.(2) an amendment may be made –

 

1. before trial or at any stage of a trial, except than in trial held by the Magistrates' Court no amendment may be made after the  close of the case for the prosecution;

 

2. Up to the close of the case for the prosecution by way of substitution or addition of new charge.

 

17. I aver and verily believe that the application to amend the indictment represents the institution of proceedings for the additional new offence contrary to the AMLA 2006 (as amended). The count did not exist before the application was made on 4^th April 2023, and the proceedings in respect of the alleged offence were initiated on that date by way of the Notice of Motion supported by affidavit.

 

16. It is clear that the validity of ACCS’ argument at paragraph 17 of Kevin Stephenson’s affidavit in response reproduced above, turns on the interpretation of the term “institution of proceedings” in section 26(1)(b) & (3) of the Anti-Money Laundering Act 2006 as amended. Kevin Stephenson proceeds to define the term as follows:

18. The 2006 Act does not define how 'proceedings in respect of the criminal conduct' may be 'instituted'. However, section 2 contains a wide definition of ‘proceeding’:

 

"Proceedings" includes any hearing before any court, tribunal, commission or any committee of, or appointed by, the Government.

 

19. I aver and verily believe that the Court should give the word 'instituted' its ordinary meaning in its form as a verb, namely: (a) started or caused to exist; (b) initiated; and/or (c) set in motion.

 

and concludes that:

 

20. … by lodging the Notice of Motion, signed by the responsible court officer, on 4^th April 2023, the ACCS did institute proceedings for relevant criminal conduct within one week of the Restraint order being made.

 

17. Kevin Stephenson, in his affidavit in response at paragraph 21 thereof, also addresses the issue raised by the applicant that the Notice of Motion seeking the amendment of the charges in CR114/2021 has not yet having been determined by the Chief Justice, and avers that “the absence of any ruling on the amended charges at this stage is irrelevant for the purposes of section 26(3). Section 26(3) requires the institution of proceedings for the relevant criminal conduct; it does not require the resolution or determination of those proceedings. The absence of a ruling on the proposed additional charges does not affect the position that the proceedings for the relevant offence were instituted by the ACCS within one week of the Restraint Order being made”.
18. In his affidavit in response at paragraph 22, Kevin Stephenson asks the Court to dismiss the application to discharge the Restraint Order. He avers that the Restraint Order remains necessary to prevent the risk of dissipation of assets by the Applicant, thereby frustrating any pecuniary penalty order to be made by the Court in the event of conviction. In my considered view, whether or not this is the case is beside the point, and is not a matter which the Court is required to take into consideration in the present application: if the requirements of section 26(3) are not complied with the Restraint Order must be discharged.

Analysis

19. The issue for determination by this Court is whether proceedings were instituted by the ACCS against Mukesh Valabhji for criminal conduct in respect of which a pecuniary penalty order might be made under Part 5 of the Anti-Money Laundering Act 2006 as amended, within a period of one week from the date of the Restraint Order i.e. 31^st March 2023, or an application made for the institution of such proceedings within that time frame. As stated, ACCS is claiming that an application was made for the institution of such proceedings within the prescribed time frame by the filing of a Notice of Motion dated 4^th April 2023 for the amendment of charges in CR114/2021, as opposed to the actual institution of such proceedings. The applicant on the other hand, argues that “the filing of an application to move the Court at a later date for the Court then to consider whether or not to grant leave to amend the charge, which is all that happened within the one week of the grant of the [Restraint Order], cannot by any measure of statutory construction fit the definition of instituting proceedings nor the legislative intention that there was a one-week time limit to institute proceedings” (Pg 2 of proceedings of Friday 26^th February 2024) and submits on that basis that section 26(3) of the Act has not been  complied with and that the Restraint Order must be discharged. The issue for this Court’s determination therefore turns on the construction of the phrase “institution of proceedings” in the context of section 26(1)(b) & (3) of the Anti-Money Laundering Act 2006 as amended.
20. It is not disputed that the Restraint Order was applied for and made pursuant to section 26(1)(b). In its ruling of 31^st March 2023, this Court stated:

[130]   The present application is made under section 26(1)(b) of the AMLA 2006 as amended, on the basis that “proceedings are to be instituted against [Mukesh Valabhji] for criminal conduct in respect of which a pecuniary penalty order might be made”.

 

[131]   This is shown by paragraph 9 of the Notice of Motion which contains the grounds for the application, in which it is stated at sub-paragraph  (iv) that “[t]the Court is satisfied, on the basis of the affidavit of KEVIN STEPHENSON, that proceedings are to be instituted against MUKESH VALABHJI for criminal conduct, contrary to the AMLA 2006 (as amended), in respect of which the Court may make a pecuniary penalty order under Part 5 of the AMLA 2006 (as amended)”. Emphasis added.

 

[132] In order to grant a Restraint Order under 26(1)(b) of the AMLA 2006 as amended, the Court must be satisfied firstly that proceedings are to be instituted against a person (in this case Mukesh Valabhji) for criminal conduct, and secondly that a pecuniary penalty order under Part 5 of the AMLA 2006 as amended, may be made in respect of such criminal conduct.

 

21. The “criminal conduct” in respect of which proceedings were to be instituted against Mukesh Valabhji, and on the basis of which the Court made the Restraint Order, is also made clear in this Court’s Ruling of 31^st March 2023, in the following paragraphs:

[139]   As indicated above, this application is made under section 26(1)(b) of the AMLA 2006 as amended. As also stated, in order to make a restraint order under that section the Court must be satisfied of two things. The first is that proceedings are to be instituted against a person for criminal conduct.

 

[140]   As further stated at paragraph [131] above, as per paragraph 9 (iv) of the Notice of Motion the restraint Order is sought on the basis that “proceedings are to be instituted against MUKESH VALABHJI for criminal conduct, contrary to the AMLA 2006 (as amended)”.

 

[141]   At the hearing of the application Counsel explained that the criminal conduct for which proceedings are to be instituted is the laundering of funds which are the benefit of criminal conduct, (such criminal conduct being the transfer of the shares in FCHL (which owned Fisherman’s Cove Hotel) which was fully owned by COSPROH, at an undervalue to a company HPLBVI of which Mukesh Valabhji was the ultimate beneficial owner, while he was a director and General Manager of FCHL and the Executive Chairman of COSPROH). The money laundering relates to the sale of HPLBVI and the use of the proceeds thereof to purchase property in the United Emirates namely Floor 9 (formerly known as Floor 8) of the Buildings By Daman Office Tower, Dubai, which is currently in the ownership of APPL of which Mukesh Valabhji is the beneficial owner.

 

 [142]  Mukesh Valabhji currently stands charged with the following offences relating to Fisherman’s Cove Hotel Limited in CR114/2021

 

Count 5

 

STATEMENT OF OFFENCE

OFFICIAL CORRUPTION, contrary to Section 91 of the Penal Code and punishable under s.91 of the Pena Code.

 

PARTICULARS OF OFFENCE

MUKESH VALABHJI of Morne Blanc, Mahe, Seychelles, on or before 31^st January 2004, while being employed in Public Service as a director on the board of Compagnie Seychelloise de Promotion Hoteliere (“COSPROH”) and being charged with the performance of the duty of protecting the financial interests of COSPROH in the sale of assets belonging to COSPROH, in the discharge of the duties of his office corruptly obtained a benefit for himself on account of his authorization of the sale of Fisherman’s Cove Hotel Ltd … at undervalue, to companies of which he was the ultimate beneficial owner.

Count 6 (in the alternative to Count 5)

 

STATEMENT OF OFFENCE

ABUSE OF AUTHORITY OF OFFICE, contrary to Section 96 of the Penal Code, and punishable under s.96 of the Penal Code.

 

PARTICULARS OF OFFENCE

MUKESH VALABHJI of Morne Blanc, Seychelles, on or before 31 January 2004, while being employed in Public Service as a director on the board of Compagnie Seychellois de Promotion Hoteliere (“COSPROH”), abused the authority of his office, did acts prejudicial to the rights of the Republic of Seychelles, namely authorized the sale for the issues share capital in Fisherman’s Cove Hotel Ltd and Barbarons Beach Hotel LTd at undervalue to companies of which he was the ultimate beneficial owner, and did so for the purposes of gain.

 

Count 8

 

STATEMENT OF OFFENCE

MONEY LAUNDERING, contrary to section 3(1)(c) of the Anti-Money Laundering Act 2006, as amended by the Anti Money-Laundering Act 2008, and punishable under s.3(4) of the same Act.

 

PARTICULARS OF OFFENCE

MUKESH VALABHJI of Morne Blanc, Seychelles, between 26^th August 2008 and 30^th January 2020, without lawful authority or excuse, knowing or believing that the property, namely Fisherman’s Cove Hotel Ltd, was, or represented, the benefit from criminal conduct, or being reckless as to whether the property was, or represented such benefit, possessed Fisherman’s Cove Hotel Ltd as the ultimate beneficial owner of Hotel Properties Ltd., BVI.

 

[143]   Counsel explained that the current charges are no longer supported by further evidence that has emerged since the filing of such charges on 19^th May 2022, and which has been outlined in the first part of this Ruling. Such further evidence has been obtained from further investigation, from digital forensic analysis carried out on a vast number of electronic devices seized, and in response to mutual legal assistance requests to a number of jurisdictions, and the analysis of such evidence. Counsel has stated that consequently some of some of the existing charges will be subject to an application to amend them, or withdraw and substitute them, and also for new for new charges to be preferred. This is supported by K. Stephenson’s affidavit dated 8^th March 2023 at paragraphs 6 and 7.

 

[144]   In his affidavit sworn K. Stephenson states the following at paragraph 83:

 

1. 1. 1. 83. I aver and verily believe that the ACCS is intending on charging the 1^st Defendant with an offence of Money Laundering contrary to Section 3 (1) (c) of the Anti-Money Laundering Act 2006, as amended by the Anti Money Laundering (Amendment) Act 2008. The draft particulars of offence I verily believe will be that the 1^st Defendant between 19 August 2008 and 31 December 2019, possessed through a corporate entity of which he was the ultimate beneficial owner, property, namely Floor 9 (formerly known as Floor 8) of the Buildings By Daman Office Tower Dubai, knowing or believing that the property represented the benefit from criminal conduct, or being reckless as to whether the property represented such a benefit.

 

[145]   After setting out the applicable legal provisions he further states at paragraph 89:

 

1. 1. 1. 89. On the basis of these provisions I verily believe that a charge will be preferred against the 1^st Defendant that his possession between 19 August 2008 and 31 December 2019 of Floor 9 (formerly known as Floor 8) of the Buildings by Daman Office Tower, represents property which in whole or in part directly or indirectly was derived from the benefit of his criminal conduct, namely acts of official corruption in his position as Chairman of COSPROH.

 

[146]   R. Cadence also states at paragraph 4 of his affidavit of 8^th March 2023:

 

1. 1. 1. 4.  I have read the Affidavit of my colleague Kevin Stephenson, and believe that the ACCS propose instituting proceedings against the 1^st Defendant in respect of an offence contrary to Section 3 (1) (c) of the Anti-Money Laundering Act 2006, as amended by the Anti Money Laundering (Amendment) Act 2008, in that between 19 August 2008 and 31 December 2019, he possessed through a corporate entity of which he was the ultimate beneficial owner (namely A Pointe Properties Ltd), property, namely Floor 9 (formerly known as Floor 8) of the Buildings by Daman Tower Dubai, knowing or believing that the property represents the benefit from criminal conduct, or being reckless as to whether the property represents such a benefit.

 

[147]   On the basis of the affidavits and the evidence produced to this Court, I am satisfied that proceedings are to be instituted against a Mukesh Valabhji for Money Laundering contrary to section 3(1)(c) of the AMLA 2006 as amended, as shown above. It is to be noted that “criminal conduct” as defined by section 3(9)(a) of that act includes “the offence of money laundering established by sections 3(1) and 3(3) of this Act”.

 

22. It is clear that the “criminal conduct” in respect of which proceedings were to be instituted against Mukesh Valabhji, is the “criminal conduct” set out in Count 11 of Annex B (reproduced at paragraph [13] of this Ruling) exhibited to the Affidavit in support of the Notice of Motion to amend charges in CR114/2021 dated 4^th April 2023. However Counsel for the applicant argues that an amendment of existing charges does not amount to institution of criminal proceedings, and on that basis seeks the discharge of the Restraint Order.
23. He explained the order of events that led to the present application as follows: Mukesh Valabhji was arrested without a warrant on 18^th November 2021. He was taken before the Court on the next day 19^th November 2021 and remanded in custody. On 17^th December 2021 he was charged together with other accused persons by the ACCS with nine offences laid out in the formal charge dated 16^th December 2021. The ACCS then sought leave to amend the charges which were amended on 19^th May 2022, and to which Mukesh Valbhji entered pleas of not guilty on 14^th July 2022. On 14^th March 2023 the ACCS made the application for the Restraint Order which was granted on 31^st March 2023. Four days later, on 4^th April 2023, the Notice of Motion (MV2) for amendment of the charges was filed, and to date remains undetermined. It is the applicant’s case that criminal proceedings were instituted by the filing of the initial charges against Mukesh Valabhji in CR114/2021 in December 2021, and that the filing of the Notice of Motion dated 14^th April 2023 in the existing proceedings for the amendment of the charges in that case does not amount to the institution of proceedings.
24. Counsel for the applicant pointed out that in the Notice of Motion for the Restraint Order in EXP01/2023, at paragraph 9(iii) thereof, Counsel for ACCS expressly acknowledges that criminal proceedings against Mr Valabhji were instituted on 17^th December 2021. This paragraph reads as follows:
    1. 1. 9. The grounds upon which the above Restraint Order is sought are:

[…]

3. On 17^th December 2021, criminal proceedings were instituted against MUKESH VALABHJI in CR114/2021 and on 19^th May 2022 further charges were laid against MUKESH VALABHJI contrary to AMLA 2006 (as amended), the AMLA 1996 and the Penal Code.

     

25. He further argues that the Notice of Motion for amendment of the charges in CR114/2021 dated 4^th April 2023 is simply a motion made in existing proceedings to amend the existing charges against the applicant, in the same way as the motion was made for amendment of the charges in May 2022, and that such amendment does not constitute institution of proceedings. He points out that although at paragraph 9(iii) in the Notice of Motion for the Restraint Order (reproduced at paragraph [24] above) the ACCS refers to the first amendment of charges which took place on 19^th May 2022 as the laying of further charges against the applicant, it now choses to say that the second set of amendments (dated 4^th April 2023) are the institution of proceedings, because of how section 26(1) (b) is worded.
26. Counsel for the applicant explained that the purpose of a Restraint Order is to ensure that property constituting the benefit of criminal conduct is not dissipated so that in the event of a conviction and a pecuniary penalty order being made there will be assets available to satisfy such order. He argued that section 26(1)(a) provides for the making of a Restraint Order when “proceedings have been instituted” whereas section 26(1)(b) caters for situations where “proceedings are to be instituted”, and that these two provisions are mutually exclusive. He explained that proceedings are instituted where following an investigation, a person is arrested and charged, and that in such circumstances a Restraint Order can be made under section 26(1)(a). Conversely where a person has not yet been charged, a Restraint Order may be made in advance of proceedings being instituted against that person to ensure that there is no dissipation of assets before he or she is charged. It is the position of Counsel for the applicant that ACCS was wrong to have applied for the Restraint Order under section 26(1)(b) as there were existing proceedings against the applicant at the time the application for the Restraint Order was made. He submits that the application should have made under section 26(1)(a), and stated that had this been the case, the court would have been empowered to grant such application as proceedings against the applicant had already been instituted in March 2023, when the application for the Restraint Order was made. However he submitted that the ACCS was driven to seek the Restraint Order under section 26(1)(b) because of the delay since  the applicant was charged and the Restraint Order sought, in light of authorities to the effect that such delay disproves the risk of dissipation where a freezing order or injunction is sought.
27. Counsel further explained that these provisions being penal and pecuniary, and also because section 26(1)(b) relies on an intended future step as opposed to an existing state of affairs, section 26(3) provides a safeguard in the event that proceedings are not instituted or the relevant application is not made within 1 week of the Restraint Order being made, in which case the Restraint Order must be discharged. He further explained that the logic behind section 26(3) is to ensure that if a Restraint Order is granted under section 26(1)(b), not only are proceedings instituted or the relevant application made, but that this is done in a timely manner, given that a Restraint Order is a serious interference with an individual’s Constitutional property rights. Counsel went on to submit that the ACCS having made its application for a Restraint Order and the Court having granted the Restraint Order pursuant to section 26(1)(b), section 26(3) was consequently engaged.
28. In light of the applicant’s submissions, this Court has to ascertain the definition of the term “institution of proceedings” for the purpose of making a determination as to whether the amendment of charges amounts to “the institution of proceedings” and consequently whether the filing of the Notice of Motion to amend the charges brought by the ACCS amounts to an application for the institution of proceedings in terms of section 26(3) of the Act. It is to be noted that the term is not defined in the Anti-Money Laundering Act 2006 as amended, but is defined in sections 67 to 70 of the Criminal Procedure Code Cap 54 (“CPC”).  The term “Amendment of charge” is also provided for under section 187 of the CPC.
29. The term “institution of proceedings” as defined in section 67 of the CPC sets out the two ways in which proceedings may be instituted. Section 67 together with sections 68 to 70 falls under the Sub-Part titled “Institution of Proceedings” which in turn falls under Part IV of the Code titled “Provisions relating to all criminal investigations”. Sections 67 to 70 are reproduced below:

Institution of proceedings

    Making of complaint

 

1. 1. 1. 67. Institution of proceedings

Proceedings may be instituted either by the making of a complaint or by the bringing before a court of a person who has been arrested without warrant.

 

1. 1. 1. 68. Complaint and charge
1. Any person who believes from reasonable and probable cause that an offence has been committed by any person may make a complaint thereof to a judicial officer.

 

2. A complaint may be made orally or in writing but if made orally shall be reduced to writing by the judicial officer and, in either case, shall be signed by the complainant and the judicial officer.

 

3. The judicial officer upon receiving any such complaint shall subject to the provisions of subsection (4), draw up or cause to be drawn up and shall sign a formal charge containing a statement of the offence with which the accused is charged, unless such a charge is signed and presented by a police officer.

 

4. Where the judicial officer is of opinion that any complaint or formal charge made or presented under this section does not disclose any offence, the judicial officer shall make an order refusing to admit such complaint or formal charge and shall record his reasons for such order.

 

1. 1. 1. 69. Issue of summons or warrant
1. Upon receiving a complaint and having signed the charge in accordance with the provisions of section 68 the judicial officer may, in his discretion issue either a summons or a warrant to compel the attendance of the accused person before a court having jurisdiction to inquire into or try the offence alleged to have been committed:

 

Provided that a warrant shall not be issued in the first instance unless the complaint has been made upon oath either by the complainant or by a witness or witnesses.

 

2. The validity of any proceedings taken in pursuance of a complaint or charge shall not be affected either by any defect in the complaint or charge or by the fact that a summons or warrant was issued without a complaint or charge.

 

3. Any summons or warrant may be issued on a Sunday.

 

4. At Anse Royale or at Praslin and La Digue a complaint or formal charge may be made or presented to the clerk of the Magistrates’ Court at the aforesaid places in respect of an offence within the jurisdiction of the Magistrates’ Court and in such a case and for such purposes the clerk shall have the same powers as, and shall be deemed to be, a judicial officer.

 

1. 1. 1. 70. Person arrested without warrant, how to be dealt with
1. Where a person who has been arrested without warrant is brought before a court otherwise than under sections 21 [Disposal of person arrested by police officer without warrant], 24 [Detention of person arrested without warrant], 100 [Right to be released on bail] and 101 [Remand by court], the Judge or Magistrate before whom the person is brought shall draw up or cause to be drawn up and shall sign a formal charge containing a statement of the offence with which such person is charged, unless such a charge shall be signed and presented by a police officer.

 

2. The court, if it has jurisdiction, may inquire into or try the offence alleged to have been committed.

 

3. If the accused person is brought before the Magistrates’ Court and such court has no jurisdiction to inquire into or to try him on the charge drawn up or presented under subsection (1) the court may either admit the accused person to bail or remand him in custody for a period not exceeding fourteen days and shall forthwith notify the Attorney-General thereof in writing.

 

 

4. If at the end of such period of bail or custody, the Attorney General has not ordered a preliminary inquiry under the provisions of section 192(1), or taken steps to have the accused person appear or be brought before the Supreme Court, or taken any action to terminate the proceedings under the provisions of section 61 or section 65 or otherwise the Magistrates’ Court shall direct that the accused person appear or be brought before the Supreme Court and may admit the accused person to bail or remand him in custody to appear or be brought before the Supreme Court.

 

30. Section 187 of the CPC provides as follows:
    1. 1. 187. Amendment of Charge

1. Where it appears to the court that the charge is defective, the court may make such order for the amendment of the charge as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice.

 

2. An amendment may be made –

1. before trial or at any state of a trial, except than in a trial held by the Magistrates’ Court no amendment may be made after the close of the case for the prosecution;

 

2. up to the close of the case for the prosecution by way of substitution or addition of a new charge.

 

3. Where a charge is amended –

 

1. the amendment shall be noted on the charge and it shall be treated for the purposes of the trial and of all or proceedings in connection therewith as having been originally drawn up presented and signed by the proper officer in the amendment form:

 

Provided that, where the amendment is by way of substitution or addition of a new charge, the accused shall be called upon to plead to the new charge;

 

2. the court shall, if it is of opinion that the interests of justice so required, adjourn the trial for such period as may be necessary;

 

3. the court shall ask the accused whether he wishes to adduce additional evidence or to recall any witnesses for the purpose of further examination or cross-examination and if he so wishes the court shall allow him to do so.

[…]

 

31. I also find it relevant to set out the provisions of section 3 of the CPC which provides as follows:

3. Trial of offences

(1)  All offences under the Penal Code shall be inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.

(2)  All offences under any other law shall be inquired into, tried and otherwise dealt with according to the same provisions, subject, however, to any enactment for the time being in force regulating the manner or place of inquiring into, trying or otherwise dealing with such offences.

(3)Notwithstanding anything in this Code contained, the Supreme Court, may, subject to the provisions of any law for the time being in force in Seychelles, in exercising its criminal jurisdiction in respect of any matter or thing to which the procedure described by this Code is inapplicable, or for which no procedure is so prescribed, exercise such jurisdiction according to the course of procedure observed by and before the High Court of Justice in England.

Emphasis added.

 

32. Counsel for the applicant submitted that the first rule of statutory interpretation is to identify the intention of parliament as expressed in the language used in a statute, and the context in which the words sought to be construed are used. He states that in the present case, the construction of the term “institution of proceedings” in section 26 would be governed by the definition thereof in the CPC, as all proceedings in the present case are brought under the CPC. It is Counsel for the applicant’s position that in Seychelles proceedings may only be instituted in one of two ways in accordance with sections 67 of the CPC, either by lodging a complaint to a judicial officer or by arresting a person without a warrant and bringing that person before a court and charging him. He submits that in the present case, the plain meaning of the words “institution of proceedings” in section 26(1)(b) and (3) is as defined in sections 67 of the CPC,  and not otherwise than as provided in those sections: in particular “institution of proceedings” does not mean an application to add or amend existing charges under section 187 of the CPC that may never occur, as the Court has a discretion to grant or refuse leave for the same.
33. It is also his position that the legislator when using the term “institution of proceedings” in section 26 of the Anti-Money Laundering Act 2006 as amended must have had in mind the term as defined in section 67 of the CPC. He states that in accordance with another rule of statutory interpretation – that parliament does not legislate in a vacuum – parliament was aware when enacting section 26 that the CPC contained a part dedicated to the “institution of proceedings” and no doubt intended for that term in section 26 to be construed as defined in the CPC.
34. According to him the construction of the term as per section 67 of the CPC is workable in both sections 26(1)(a) and 26(1)(b): a Restraint Order should be sought under section 26(1)(a) where proceedings have already been instituted by either (1) the making of a complaint to a judicial officer where a formal charge is drawn up charging the accused person with the commission of an offence following which summons or a warrant are issued to compel the attendance of the accused before the Court, or (2) by bringing a person arrested without warrant before a court and charging him. On the other hand where a person is yet to be arrested or a complaint has not yet been made against that person, a Restraint Order should be sought under section 26(1)(b). However Counsel went on to state that in cases such as the present one where there are existing proceedings before the Court and new evidence of another crime is discovered, both section 26(1)(a) and (b) may be applicable.  In such a case, if a Restraint Order is applied for under section 26(1)(a) an amendment to the existing charges may be brought at a later stage under section 187 of the CPC to include the new crime. Alternatively, a Restraint Order may be applied for under section 26(1)(b) and thereafter either (1) a complaint lodged against the defendant who is charged with a new offence under a separate formal charge which he or she will be summoned to answer to, or (2) the defendant is arrested for the new offence without warrant and brought before the court and charged with the new offence, thereby instituting proceedings as defined under section 67 of the CPC.  Counsel states that the latter case will result in two sets of proceedings which he opines presents no difficulty, and assimilates the situation to the ongoing proceedings in CR114/2021 and in the firearms case, where there are two separate ongoing cases. He states that in such a case, provided that the joinder provisions in section 112 of the CPC are met, the two charges could then be preferred as a joint charge. Counsel reiterated that both options under section 26(1)(a) where proceedings have already been instituted and section 26(1)(b) where proceedings are to be instituted, provide workable solutions in the present case, as described above, which give effect to the intention of parliament in keeping with the definition of “institution of proceedings” in section 67 of the CPC.
35. Counsel for the applicant also relied on another principle of statutory interpretation that in penal statutes, if there is any doubt as to what parliament intended, any ambiguity must be resolved in favour of the defendant. He argued that the Anti-Money Laundering Act 2006 as amended, being a penal statute, any ambiguity in the term “institution of proceedings” therein must be resolved in favour of the defendant. In that regard he states that the ACCS’ construction of the term as an amendment of existing charges is wrong and that the correct approach is as defined in section 67 of the CPC. In that regard he went on to refer to the Seychelles Court of appeal case of Simeon v R (SCA 23 of 2009) 2010 SCCA 7 (13 August 2010) which he stated provides useful guidance on the principle that penal statutes should be strictly construed as long as it does not lead to an absurdity.
36. Simeon concerned an appeal against a conviction for trafficking in diamorphine (heroin) on the basis of the presumption under section 14(c) of the Misuse of Drugs Act that a person who has in his possession more than 2 grams of diamorphine contained in a controlled drug is presumed to be trafficking in the controlled drug. The mixture that he was in possession of weighed 2.44 grams out of which there was only 0.0976 gram of diamorphine, which was less than what is provided for in section 14 (c). The Court of appeal had to find the true construction of section 14(c) to determine whether the presumption applied where the diamorphine weighed more than 2 grams or where the mixture containing the diamorphine weighed more than 2 grams. It found that “if a person is to be convicted of trafficking on the basis of the presumption in section 14(c) it must be proved that there was more than 2 grammes of diamorphine contained in the mixture the person was in possession of”. It held that where the prosecution fails to establish that there was more than 2 grams of diamorphine contained in a controlled drug the presumption under section 14(c) cannot be made use of to convict an accused of trafficking by adding on to its meaning or straining beyond its ordinary meaning in order to confer penal jurisdiction, and that it is the actual weight of the specified drug referred to in section 14 (c) that brings the possession of them under the presumption of trafficking and not the total weight of the mixture in which the controlled drug is found. In its judgment the Court of Appeal stated:

N S Bindra in his book on interpretation of Statutes (10^th edition, LexisNexis 2007), in making reference to several English, Australian, Indian and American cases has this to say:

     

When it is said that all penal statutes are to be construed strictly, it only means that an offence falls within the plain meaning of the words used and must not strain the words. The rule of strict construction requires that the language of a statute should be so construed that no case shall be held to fall within it, which does not come within the reasonable interpretation of the statute. It has been held that in construing a penal statute, it is a cardinal principle that in case of doubt, the construction favourable to the subject should be preferred (Ishar Das v State of Punjab 1972 SCD 262; WH King v Republic of India AIR 1952 SC 156). To determine that a case is within the intention of a statute, its language must authorize the court to say so. It would be dangerous indeed, to carry the principle, that a case which is within the reason or mischief of a statute is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated (Boni v Columbia 12 L Ed 2d, 894, Yates v United States 1 L Ed 2d 1356). Where an enactment entails penal consequences, no violence should be done to its language to bring people within it but rather care must be taken to see that no one is brought within it, who is not within the express language. In criminal cases, which entail conviction and sentence, liberal construction of the law with the aid of assumption, presumption, and implications cannot be resorted to for the purpose of roping in the criminal prosecution, such persons who are otherwise not intended to be prosecuted or dealt with by the criminal court. Clear words of an Act of the legislature, conveying a definite meaning in the ordinary sense of the words used, cannot be cut down or added to as to alter that meaning (Hari Singh v Crown 1925 1 1-R Nag 358). Words and phrases in a penal statute cannot be strained beyond their ordinary meaning in order to confer penal jurisdiction (Nairn Molvan v Attorney Gen AIR 1948 PC 186; Macleod v Attorney General for New South Wales 1891 AC 455). Nor can the judges add sections of their own to penal statutes with a view to improve them by some fancied completeness or consistency (Emperor v Jaffur Mahommad, (1913) 14 Cr U 204). It is not merely unsound but unjust to read words and infer meanings that are not found in the text (P Venkatanarayana v Sudhakar Rao AIR 1967 AP 111). In Re Wainwright (1843) 12 LJ Ch 426) Lord Lyndhurst LC observed: "It is not the court's province to supply an omission in an Act, and if any such correction would extend the penal scope of an Act, still less will the court be inclined to correct".

 

Another well-recognized cannon of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision, the court should adopt the literal construction if it does not lead to an absurdity. We must not lose track of the maxim 'absoluta sententia expositore non indiget', which means that language that is unequivocal and unambiguous does not require an interpreter, in other words, plain words need no explanation. "Nothing" said Lord Denman, in Everard v Poppleton (1843) 5 QB 181, "is more unfortunate than a disturbance of the plain language of the legislature, by the attempt to use equivalent terms". Maxwell on Interpretation of Statutes (9th ed, London, 1946) says:

 

When the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable, says Vattel, to interpret what has no need of interpretation.

 

The Court cannot, while applying a particular statutory provision, stretch it to embrace cases, which it was never intended to govern. In interpreting a statute, the Court cannot fill gaps or rectify defects. Undoubtedly, if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court would not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature's defective phrasing of an act, or add or mend, and by construction, makeup deficiencies which are there (K B Asbe v state of Maharashtra (2001) AIHC 1271).

 

37. In addition to the reasons set out above to support his submission that the ACCS’ construction of the term “institution of proceedings” includes its application to amend the existing charges in CR114/2021 made under section 187 of the CPC is wrong, Counsel for the applicant also advanced the following arguments: He stated that section 64 of the Anti-Corruption Act 2016, as amended, which is discussed in detail at paragraphs [55] and [56] hereof, and which allows the ACCS to prosecute certain offences also uses the term “institution of proceedings”, which cannot be construed as leave to amend  charges in existing proceedings. He also stated that if amending a charge could be said to constitute the “institution of proceedings”, then amending the existing charges to add a defendant would amount to institution of proceedings which would lead to an absurd result.
38. He also states that section 187 of the CPC which provides for “amendment of charge” and sections 67 to 70 which provides for “institution of proceedings” are completely different provisions. Under sections 67 to 70 it is within the remit of the ACCS to institute proceedings, whereas this is not the case under section 187(1) where in order for a Court to allow the amendment of a charge, the ACCS has to satisfy it that the charges are defective. The amendment is therefore conditional upon the Court granting leave for such amendment, which cannot be construed as the “institution of proceedings” as it is only where the Court grants leave that ACCS can amend the charge. In addition section 187(3)(a) provides that where a charge is amended “the amendment … shall be treated for the purposes of the trial and all proceedings in connection therewith as having been originally drawn up or presented and signed by the proper officer in the amended form”. Counsel submitted that this subsection (3) precludes a construction of section 187 that equates an application for amendment of a charge to institution of proceedings, as subsection (3) effectively means that any amendments are deemed to have occurred back in May 2022 or December 2021, when the original charges were filed, which does not support ACCS’ case that proceedings are being instituted by the application of 4^th April 2023.
39. Finally Counsel for the applicant submits that the ACCS’ construction that the application for an amendment under section 187 of the CPC amounts to “institution of proceedings” offends the rule against absurdity. He states that if the “institution of proceedings” required under section 26(1)(b) for the making of a Restraint Order, could be made by adding a charge by way of amendment, it follows that the ensuing Restraint Order should be limited to the value of the property dealt with in the new charge introduced by such amendment: in the present case this would be in the new count 11 namely “the property namely Floor 9 (formerly known as Floor 8) of the Buildings by Daman Office Tower, Dubai”, which counsel refers to as the “jurisdictional hook” upon which the ACCS relies to ground the application for the Restraint Order. Counsel submits that in such a case the Restraint Order should not restrain the applicant’s assets of a value exceeding the benefits of his alleged criminal conduct as identified in the new count 11. However this is not the case as the Restraint Order restrains all of the applicant’s assets, which should only have been possible if the application had been made under section 26(1)(a) on the basis that proceedings had been instituted against the  applicant as these charges covered offences/criminal conduct  from which he had allegedly benefitted up to a value which would have justified restraining all of his assets. Counsel submits that to allow the  restraint of all the assets of the applicant on the basis of the amendment of the charge by adding one new charge on the ground that this amounts to the “institution of proceedings” under section 26(1)(b) when the Restraint Order should have been applied for under section 26(1)(a), would allow the amendment of the indictment to be used as a device to obtain a Restraint Order in respect of other charges subject matter of proceedings which have been ongoing for months or years which could not possibly be said to fall within the scope of Section 26(1)(b). This, counsel states, is wrong in principle and further supports the true statutory construction of the term “institution of proceedings”.
40. Counsel for the applicant also relied on the case of R v Bull (1994) 99 Cr App 193 in support of his case. He submitted that the definition “institution of proceedings” under section 67 of the CPC is comparable to the definition of the term as defined in that case, in which the Court stated at pg. 207 that “Criminal proceedings in the magistrates court are started either by arrest, charge and production to court, or by the laying of an information followed by summons or warrant”. In Bull the definition of “institution of proceedings” was considered in the context of offences under the Health and Safety at Work etc. Act 1974 (“the 1974 Act”). The appellant having been convicted of offences under that Act (under counts 3 and 11) appealed on the ground that the proceedings had not been instituted with the consent of the Director of Public Prosecutions (“DPP”) in accordance with section 38 of the 1974 Act because the charges were laid in April 1990, and the consent of the DPP was not given until October 1990. Section 38 provides:

38. Proceedings for an offence under any of the relevant statutory provisions shall not, in England and Wales, be instituted except by an inspector or by or with the consent of the Director of Public Prosecutions.

 

41. The appellant was arrested on 7^th March 1990 and detained for five days. The trial judge found that the relevant charges were laid on April 11, 1990, when the appellant was served with 8 additional charges in a Notification of Charges Form of the same date. The trial judge further found that the Director’s consent was given on October 26, 1990 and that the appellant was committed for trial by the Devizes Magistrates’ Court on November 5, 1990. The trial judge considered the cases of Trevor v Elliott (1985) 81 Cr.App.R. 115 and Whale and Lockton [1991] Crim.L.R. 692 and in ruling that the proceedings were instituted with the consent of the DPP, stated:

“I find that in all cases, whether or not the offence is an arrestable offence, the institution of proceedings, so far as the consent of the Director of Public Prosecutions is concerned, occurs at the time when the accused has to meet the charge in court. In the context of the present case, that is on 3^rd November 1990 when he was committed to trial. Accordingly I find that the relevant proceedings were instituted with the consent of the Director of Public Prosecutions and that there is no bar to the counts under the Health and Safety at Work etc. Act.”

 

42. In its judgment, the Court of Appeal set out the relevant legal provisions, including section 15(2) of the Prosecution of Offences Act 1985 (“the 1985 Act”) (Interpretation of Part 1) which provides the following definition for “institution of proceedings”: “for the purposes of Part 1 of the Act (section 1 – 15) … proceedings in relation to an offence are instituted–

1. where a justice of the peace issues a summons under section 1 of the Magistrates’ Court Act 1980, when the information for the offence is laid before him;
2. where a justice of the peace issues a warrant for the arrest of any person under that section, when the information for the offence is laid before him;
3. where a person is charged with the offence after being taken into custody without a warrant, when he is informed of the particulars of the charge;
4. where a bill of indictment is preferred under section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 in a case falling within paragraph (b) of subsection (2) of that section, when the bill of indictment is preferred before the court:

and where the application of this subsection would result in there being more than one time for the institution of the proceedings, they shall be taken to have been instituted at the earliest of those times”.

 

43. Section 25 of the 1985 Act (Consents to prosecutions etc.) was also reproduced. To note section 25 was preceded by section 6 of the Prosecution of Offences Act 1979 which was applied in Trevor v Elliot (supra). It reads:

1. This section applies to any enactment which prohibits the institution or carrying on of proceedings for any offence except:

1. with the consent (however expressed) of a Law Officer of the Crown or the Director; or
2. where the proceedings are instituted  or carried on by or on behalf of a Law Officer of the Crown or the Director;

and so applies whether or not there are other exceptions to the prohibition (and in particular whether or not the consent is in an alternative to the consent of any other authority or person).

2. An enactment to which this section applies –

1. shall not prevent the arrest without warrant, or the issue or execution of a warrant for the arrest, of a person for any offence, or the remand in custody or on bail of a person charged with any offence; and
2. shall be subject to any enactment concerning the apprehension or detention of children or young persons.

3. In this section ‘enactment’ includes any provision having any effect under or by virtue of any Act: and this section applies to enactments whenever passed or made.

 

44. The Court of Appeal also made a review of the relevant case law including Price v Humphries [1958] 2Q.B 253, Brentwood Justices, exp. Jones [1979] R.T.R.155, Trevor v Elliott (supra) and Whale v Lockton (supra), in regards to when proceedings were instituted in those cases, as set out below. He made a distinction between the situation where an information is laid and summons subsequently issued for the person to appear in court to answer to a charge as in Price v Humphries and the situation where a person is arrested without warrant and then charged.

Price v Humphries

45. The Court had to determine the point at which the consent or authority required under section 53(1) of the National Insurance Act 1946 for the institution of proceedings for offences under that Act, had to be proved. Section 53(1) provided that proceedings for an offence under that Act shall not be instituted except by or with the consent of the Minister or by an inspector or other officer authorised in that behalf by special or general directions of the Minister. Devlin J stated that “Proceedings in summary jurisdiction of this sort are instituted by the laying of an information and the issue of summons, and, when the summons is issued, that is the institution of proceedings. The point, therefore, at which the consent or authority must be proved is when the summons is issued, and it is the duty of the clerk to the justices if application is made to him, as it generally is, for the laying of the information or the issue of the summons, to see that the requirements of section 53 are complied with otherwise the summons will be bad.” Emphasis added.

Brentwood Justices, exp. Jones

46.  In this case it was held by the Divisional court that for the purposes of paragraph I of Schedule 14 to the Criminal Law Act 1977 “in the case of an arrest without warrant proceedings were "commenced" when the suspect was taken to a police station pursuant to the arrest and formally charged in the presence of a station officer”.

Trevor v Elliott

47. In this case the appellant was arrested with a co-accused on April 21, 1983, for inter alia causing an explosion contrary to section 2 of the Explosive Substances Act 1883. On April 22, 1983, he was charged with that offence. The fiat of the Attorney-General which was necessary for his prosecution under section 63(1) of the Administration of Justice Act 1982, was given on June 14, 1983. On conviction on November 23, 1983, the appellant appealed on the ground that he was charged with the offence before the Attorney-General’s consent had been obtained as required by section 63(1) of the 1982 Act. In dismissing the appeal, the Court of Appeal held that “the word “proceedings” in section 63 (1) of the Administration of Justice Act 1982 meant the time when a person went to court to answer a charge, and that to hold otherwise would be to ignore the provisions of section 6 of the Prosecution of Offences Act 1979” (the predecessor of section 25 of the Prosecution of Offences Act 1985). Furthermore as the Attorney-General’s fiat was given before his trial the fact that it was not obtained before the appellant was charged did not render the proceedings null and void. The appeal was accordingly dismissed. Stephen Brown L.J. in giving the judgment said:

In this instance, the appellant appeared before magistrates in June 1983 but he had been charged with these offences on April 22 that is the day following his arrest, the offences having occurred on April 21, 1983. Counsel submits on the authority of a case decided in the Divisional Court dealing with the provisions of the Road Traffic Acts that the commencement of the proceedings occurs when a person is charged. The case he relies upon is Brentwood Justices. ex p. Jones [1979]  R.T.R. 155. The point was in fact a very different point arising out of the provisions of a different statute.

In this case, the court has considered with care the submissions made succinctly and interestingly by Mr. Milford but it has come to the conclusion that section 63 of the Administration of Justice Act 1982 should be interpreted as meaning that instituting proceedings relates to the time when a person comes to court to answer the charge. Accordingly, the provision that proceedings for a crime will not be instituted ‘except by or with the consent of the Attorney General' must mean the time when he attends at the magistrate's court to answer the charge. To hold otherwise would be to overlook and to ignore the provisions of section 6 of the Prosecution of Offences Act 1979. Emphasis added.

 

Whale and Lockton

48. The appellants were charged on February 25, 1989 with making an explosive substance contrary to section 4 of the Explosive Substances Act 1833 (“the 1833 Act”). The fiat of the Attorney-General was required for the prosecution. An application was made for it on March 14, 1989 and it was received by the prosecutor on March 29, 1989. In the meantime, the appellants had appeared before the magistrates and had been remanded on bail and in custody respectively. The appellants appealed on the grounds that in the light of section 7 of the 1833 Act (as substituted by section 63 of the Administration of Justice Act 1982 which required the fiat of the Attorney General for prosecution of the offence) and section 25 of the Prosecution of Offences Act 1985, the trial judge should have set aside the charges under the 1833 Act because they had been prosecuted before the Attorney general’s consent had been obtained. This Court dismissed the appeal holding that “the proceedings were instituted for the purposes of section 7 of the 1833 Act (as substituted) at the time when a person comes to court "to answer the charge" Elliott (supra). That referred to the stage at which the case proceeded beyond the formalities of charging the offender and the ensuing remands. The proceedings were not instituted until the appellants were arraigned on May 11, 1989, for the purposes of the committal proceedings”. In giving judgment, Leggatt L.J. commented in regards to Price v. Humphries (supra) that: [I]t seems to us that [Price v. Humphries] is of no guidance in a case such as the present where no question of laying an information can arise: and anything said about the circumstances in which or the time at which proceedings were to be regarded as instituted for the purposes relevant to that case have no direct application here." Leggatt L.J. then stated in regards to Elliott (supra):

"One may be assisted by the court’s description for purposes of that case of the stage at which proceedings were to be regarded as having been instituted. It was said that proceedings are instituted at the time when a person comes to court ‘to answer the charge'. In our judgment that reference was to the stage at which the case proceeded beyond the formalities of the charging of the offender and such ensuing remands as in fact occurred

The proceedings in the present case under section 4 of the 1883 Act were not instituted against the appellants until following remands in custody or on bail they were arraigned on 11^th May 1989 for purposes of the committal proceedings. By force of section 25(2) of the [Prosecution of Offences Act 1985], the remands were expressly excepted from the scope of the 1883 Act as amended. Those remands are to be regarded as having finally become spent when the appellants appeared on 11th May for purposes of the committal proceedings. It was then that in the language of Lord Justice Stephen Brown, they came to court to answer the charge. Only then in our judgment were the proceedings effectively instituted against them. Emphasis added.

 

49. Having reviewed the applicable case law, the Court of Appeal, in Bull, then proceeded to analyse the position in the matter before it as follows, before dismissing the appeal in relation to counts 3 and 11:

“(1) When considering the question whether proceedings have been instituted by a specified person or by or with the consent of a specified person, it is essential to have regard to the particular procedure adopted in the given case. Criminal proceedings in the magistrates’ court are started either by arrest, charge and production to court, or by the laying of an information followed by summons or warrant (see Stone’s Justices Manual (1993, vol 1, 1-420). Thus the present case (where the former procedure was adopted) should be compared with the case of Ensign Ordnance Limited where a summons dated May 25, 1990, was issued (the indictment originally charged the appellant and Ensign Ordnance Limited but the company was removed from the indictment).

2. Section 25 of the 1985 Act applies to all enactments which prohibit the institution or carrying on of proceedings for any offence except:

1. with the consent of a Law Officer of the Crown or the Director of Public Prosecutions; or
2. where the proceedings are instituted  or carried on by a Law Officer of the Crown or the Director;

Section 38 of the 1974 Act is such an enactment.

3. The effect of section 25(2) of the 1985 Act is that certain procedural steps can take place prior to the time when the required consent is obtained. These comprise “the arrest without warrant, or the issue or execution of a warrant for the arrest, of a person for any offence, or the remand in custody or on bail of a person charged with any offence”. Thus section 25(2) of the 1985 Act permitted the remands of the appellant on bail (following charge) in the present case before the required consent was obtained.
4. The decision of the judge was in our view correct and consistent with the result arrived at in Eliot (supra)and Whale and Lockton (supra).

 

50. In the present case, counsel for the applicant relied on the following statement by Stephen Brown L.J. in Trevor v Elliott: “In this case, the court has considered with care the submissions made succinctly and interestingly by Mr. Milford but it has come to the conclusion that section 63 of the Administration of Justice Act 1982 should be interpreted as meaning that instituting proceedings relates to the time when a person comes to court to answer the charge”. On that basis counsel states that this construction of “institution of proceedings” accords with the one in section 67 of the CPC where a person is arrested without warrant and brought before the court, which supports his argument that proceedings were instituted against the applicant Mukesh Valabhji when he was brought to court after his arrest and charged on 17^th December 2021, and not when the application for amendment of charges was filed on 4^th April 2024.
51. I do not agree with counsel. What Stephen Brown LJ stated in Trevor v Elliot was further expounded in Whale v Lockton in which the Court further explained what was meant by the time when a person comes to court “to answer a charge”, that is the stage at which the case proceeded beyond the formalities of charging the offender and the ensuing remands. Hence proceedings were not instituted until the appellants were arraigned for the purposes of the committal proceedings This was approved in Bull when the Court of Appeal maintained the decision of the trial judge stating that it was “consistent with the result arrived at in Elliott and Whale and Lockton”.
52. However, this Court is of the view that the case of Bull is distinguishable from the present one for the following reasons: Firstly the procedure followed in Bull was in committal proceedings before the Magistrate’s Court. Whilst our CPC provides for such procedure in Part VII thereof (Provisions relating to the committal of accused persons for trial before the Supreme Court), it is not one which is used any longer and was not used in CR114/2021.
53. Secondly in the case of Bull relying on Elliott and Whale v Lockton the construction of the phrase “institution of proceedings” was considered in the context of cases where proceedings were required to be instituted with the consent of or by a specified person, in the light of applicable legal provisions. In Bull, as in Elliott and Whale v Lockton, reliance was placed upon section 25 of the Prosecution of Offences Act 1985 (formerly section 6 by the Prosecution of Offences Act, 1979) which applied to enactments prohibiting the institution of proceedings except with the consent of a specified person or where the proceedings were instituted by a specified person, which led the Court in those three cases to arrive at the conclusion that they did.  As stated in Bull, “[t]he effect of section 25(2) of the 1985 Act is that certain procedural steps can take place prior to the time when the required consent is obtained. These comprise “the arrest without warrant, or the issue or execution of a warrant for the arrest, of a person for any offence, or the remand in custody or on bail of a person charged with any offence”. Thus section 25(2) of the 1985 Act permitted the remands of the appellant on bail (following charge) in the present case before the required consent was obtained”. It is on that basis that the Court in Whale v Lockton (as in Trevor v Elliott) which was followed in Bull, found that proceedings were instituted at the time when a person comes to court to answer the charge, which is the stage at which the case proceeded beyond the formalities of charging the offender and the ensuing remands, that is when the person is arraigned for the purpose of committal proceedings. However in the present case no question of consent of a specified person being required for the institution of proceedings arises as in Bull.
54. Nevertheless, it would seem from Bull, that a similar reasoning may be adopted  in cases where proceedings are required to be instituted by a specified person (as opposed to cases where consent is required to be given by a specified person prior to the institution of proceedings as in Bull etc.). Following that reasoning the institution of proceedings would also take place, when the accused person comes to court to answer the charge as defined above in Bull, Elliott and Whale v Lockton. The question arises as to whether there is a requirement for proceedings to be instituted by a specified person in the matter before this Court?
55. Counsel for the applicant submitted that section 64 of the Anti-Corruption Act 2016, as amended by the Anti-Corruption (Amendment) (No.3) Act, 2021 (Act 58 of 2021) and the Anti-Corruption (Amendment) Act, 2022 (Act 9 of 2022) which contains provisions which allow the ACCS to prosecute certain offences, and in which the term institution of proceedings is also used,  is similar to the provision in Bull, which lays down the requirement for proceedings to be instituted by or with the consent of a specified person. Act 58 of 2021 amends the Anti-Corruption Act 2016 by amending section 64 thereof and adding new sections 64A, 64B and 64C thereto, while Act 9 of 2022  repeals and replaces section 64, so that the amended and new provisions which are currently applicable read, in relevant part, as follows:

Prosecution by Commission

64. (1)  Prosecutions may be instituted by the Commission for the following offences —

[…]

 (c) Money laundering offences under … the Anti-Money Laundering Act 2006 (Act 5 of 2006) ….

(2) The Commission may, with the leave of the Court, institute prosecutions for such other offences under the Penal Code or any other written law which are founded on the same facts or otherwise closely related to offences being prosecuted

under subsection (1).

(3) Where the Commission has instituted an investigation or prosecution for money laundering offences contrary to the Anti-Money Laundering Act 2006 (Act 5 of 2006), the Commission may exercise the powers of the Attorney General under Part IV and V of that Act and references to the Attorney General therein should be read as including the Commission.

[…]

 

Institution of proceedings

64A.  Criminal Proceedings instituted by the Commission by the powers conferred under section 64 shall be instituted and referred to as “Republic Versus ___________” or “Anti-Corruption Commission Versus ___________”.

 

Discontinuance of Proceedings

64B.  Subject to article 76 of the Constitution, the Commission may discontinue any proceedings instituted under section 64, at any stage before the delivery of judgment by the Court. Emphasis added.

 

56. My understanding of these provisions is that they empower the ACCS to institute proceedings in respect of inter alia offences under the Anti-Money Laundering Act 2006 as amended for which it had no such powers before. However they do not lay down a requirement for such proceedings to be instituted by the ACCS to the exclusion of any other prosecuting authority empowered to do so. The difference between the original section 64 before any amendments were made and the current one is glaring, and illustrates the point perfectly. It reads as follows: “No prosecution for an offence under Part III shall be instituted except by, or with, the consent of the Attorney General”. This provision, prior to the amendments effected by Act 58 of 2021 and Act 9 of 2022, is similar to the legislation in Bull referred to by Counsel, but I find no similarity in such legislation and the current section 64, which Counsel for the applicant appears to argue would enable the same construction of the term “institution of proceedings” to be made in the present case as in Bull.
57. Furthermore our law does not contain any provision similar to section 25 of the Prosecution of Offences Act 1985 on the basis of which the decisions in the cases of Bull, Elliott and Whale v Lockton were made, and which further distinguishes these cases from the one before this Court. In the result, I find that the cases of Bull, Elliott and Whale v Lockton do not find any application in the circumstances of the present case.
58. Counsel for ACCS submitted that the case of Director of Public Prosecutions v McFarlane [2019] EWHC 1895 (Admin); [2020] 1 Cr. App. R 4, would better assist the Court as it had more similarities to the present case, and was authority for the proposition that proceedings can be instituted by the addition of a charge or charges. In McFarlane the meaning of “institution of proceedings” was considered in the context of substituting an existing charge against a defendant who was already before the court. The defendant was arrested and charged with resisting a police officer on 4^th July 2018. He pleaded not guilty on 16 August 2018 and the case was adjourned for trial. On 16 November 2018, the Crown Prosecution Service (CPS) sent an email to the defendant’s solicitors and the court advising them that they would not be continuing with the original charge. Attached to the email was a document headed “Further charges” which set out the details of two offences, in each case with the further heading “additional/amended charge”. Under section 29 of the Criminal Justice Act 2003, a prosecutor could institute criminal proceedings by issuing a written charge either by issuing a requisition or by a single justice procedure notice served on the defendant but no reference was made to section 29 in the email or the attached document. The district judge was of the opinion that the document attached to the email was a written charge, but that the failure to issue a requisition on the defendant personally in accordance with section 29 had rendered the commencement of proceedings invalid and that the additional charges were therefore time-barred and should be stayed. The prosecution appealed by way of case stated posing the question: whether the district judge was correct in law to conclude that the Crown cannot circumvent compliance with section 29(3) of the Criminal Justice Act 2003 by serving only the written charges on the legal representative and neither issuing nor serving any requisition on the defendant. In dismissing the appeal Males LJ answered as follows:

1. Criminal proceedings are instituted by the issue of a written charge pursuant to s.29 of the Criminal Justice Act 2003 regardless of whether a requisition or a single justice procedure notice is issued and regardless of whether the charge and requisition or single justice procedure notice are served on the defendant in accordance with subs. (2) and (3) or (3A) of the Act;
2. failure to comply with the requirements of subs. (2) and (3) or (3A) do not render the proceedings a nullity but may in an appropriate case be dealt with as an abuse of process; and
3. the district judge was wrong to conclude that the charges issued on 16 November 2018 were time-barred pursuant to s,127 of the Magistrates' Courts Act 1980.

 

59. I find the above case to be of limited assistance not least because it involves legislation which are different from ours, but also because of the specificities of our own laws.
60. We turn back to the rules of statutory construction in order to determine whether the Notice of Motion for amendment of an existing charge by way of addition of a new charge can be considered as institution of proceedings, in terms of section 26(1)(b) and (3) of the Anti-Money Laundering Act 2006 as amended. In the normal course of things the definition of “institution of proceedings” under sections 67 to 70 of the CPC would apply to that term in section 26(1)(b) and (3). However regard must be given to section 3(2) of the CPC which, while it provides for the application of the provisions of the CPC to offences under laws other than the Penal Code, also makes this subject to “any enactment for the time being in force regulating the manner … of dealing with such offences”. Such enactment would include the Anti-Money Laundering Act 2006 as amended, which is where the wording of section 26(1)(b) and (3) becomes relevant.
61. It is clear that the criminal conduct envisaged by section 26(3) in respect of which proceedings must be instituted or an application made for the institution of such proceedings within one week of the making of the Restraint Order failing which the Restraint Order must be discharged, is the same criminal conduct referred to in section 26(1)(b) in respect of which the Court has to be satisfied that proceedings are to be instituted in order to make the Restraint Order. The use of the word “the” which precedes the words “criminal conduct” in section 26(3) confirms this construction. In the present case this is the criminal conduct as stated under the proposed new Count 11 (see paragraph [22] of this Ruling). Although the applicant had been charged in respect of other offences/criminal conduct and therefore proceedings instituted against him (within the meaning of sections 67 to 70 of the CPC) in respect of these offences/criminal conduct, no proceedings had been instituted against him in respect of this particular criminal conduct as set out in the proposed Count 11. If we are to follow the applicant’s argument that the only construction that can be given to the term “institution of proceedings” in section 26(3), is as provided in sections 67 to 70, then this criminal conduct should be the subject matter of a fresh formal charge separate from the formal charge in terms of which the applicant had been initially charged on 17^th December 2021 and which was amended on 19^th May 2022. Counsel proposed that thereafter the offences/criminal conduct in the two separate charges could be joined pursuant to section 112(1) of the CPC which provides that “[a]ny offences … may be charged together in the same charge or information if the offences charged are founded on the same facts or from, or are part of, a series of offences of the same or similar character”. 
62. This Court is of the view that such a construction would lead to an absurdity. Where the language of a statute is clear and does not give rise to any ambiguity, as stated in Surendra Dayal (Appellant) v Pravind Kumar Jugnauth & 5 Others (Respondents) [2023] UKPC 37, relied upon by the ACCS “full effect to the plain meaning of the words of the statute should be given”. However this does not mean that the context of the statutory provision under consideration should be ignored.
63. In that case, the appellant Dayal was an unsuccessful candidate in the 7^th November 2019 Mauritius National Assembly election. He challenged the validity of the election of three of his opponents from another political party) on inter alia grounds of bribery and treating. His petition was dismissed by the Supreme Court of Mauritius and he appealed to the Privy Council, contending that the Supreme Court was wrong to dismiss the allegations that: (1) promises made by the 1^st respondent (Mr Jugnauth) in October 2019 to increase the basic retirement pension, to accelerate forms of public sector pay and terms, and to pay one-off performance bonuses to police officers, firemen and prison officers constituted bribery; and (2) the provision of free food and drink at an event on 1 October 2019 organised by the Ministry of Social Security constituted treating. In determining whether those acts amounted to “bribery” and “treating”, the Privy Council considered the meaning of these words as defined in section 64 of the Representation of the People Act 1958 (Mauritius), and Dame Sue Carr had this to say:
    1. 1. 29. The normal principles of statutory interpretation are engaged. The words of the statute should be interpreted in the sense which best reflects their ordinary and natural meaning and accords with the purposes of the legislation. It is always necessary to consider not just the ordinary meaning of the words used but the context in which the words appear and the underlying policy of the legislation (see R (The Good Law Project) v Electoral Commission [2018] EWHC 2414 (Admin); [2019] 1 All ER 365, paras 33 and 74. Further, a statute cannot be interpreted according to its literal meaning without testing that meaning against the practical outcome of giving effect to it (see R v Committee of Lloyd’s; Ex p Moran (1983) The Times, 24 June 1983 and In re British Concrete Pipe Association [1983] 1 All ER 203 at 205). The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by the legislature. Absurdity is given a very wide meaning, covering, amongst other things, unworkability, impracticality, inconvenience, anomaly or illogicality (see R v McCool [2018] UKSC 23; [2018] NI 181, para 24). Underlining is mine.

 

64. In Dayal, the Privy Council went on to consider the proper interpretation of section 64 considering its purpose and context, and found that the purpose of that provision to be “to prevent corrupt practices such as the buying of votes” and that “It is directed at preventing private inducements to the electorate to vote by reference to arguments other than the public good”. It also found that its approach in interpreting section 64 was “consistent with the principle of free and fair elections underpinning a sovereign democratic state and the right to freedom of expression enshrined in … the … Constitution”. In construing section 64(1) which defined “bribery” it inferred corruption in the first limb of section 64(1) although the word “corruptly” only appeared in the second limb of that provision, and stated: “Thus, the legislature did not use the word “corrupt” in those cases where the act itself afforded ground for reasonable inference that the act was done for a corrupt purpose. Only in those cases where the court should not infer the purpose simply and solely from the act had the word “corruptly” been inserted”.
65. The Court in Dayal took a purposive as opposed to a literal approach to the correct interpretation of “bribery” in section 64(1), and stated that “[t]he literal and mechanistic approach advocated for Mr Dayal would also lead to absurd results”.
66. Relying on Dayal therefore, where the context requires a construction other than the one ordinarily applicable to the term “institution of proceedings” as set out in sections 67 to 70 of the CPC, such construction must be preferred. A construction which would not lead to absurdity is also to be preferred. Section 26(3) provides: 

3. Where the Court has made an order under section 27 of this Act by virtue of subsection (1)(b) of this section, the Court shall discharge the order if proceedings in respect of the criminal conduct are not instituted or the relevant application is not made within a period of one week from the date of the order.

 

67. The general purport of this provision is clear and cannot be said to be ambiguous: Either criminal proceedings are instituted or the relevant application is made for the institution of such proceedings within one week of the making of the Restraint Order, failing which the Court must discharge the Restraint Order. Where there are no existing charges against a person against whom a Restraint Order was made under section 26(1)(b), then proceedings can be instituted as per sections 67 to 70 of the CPC. However where there are existing charges against a person against whom a Restraint Order was made under section 26(1)(b), but the defendant is to be charged with a new offence/ criminal conduct on the basis of which the Restraint Order was made, then the relevant application for institution of proceedings for the new offence must be made. Counsel for the applicant has stated that such institution of proceedings could only be done as provided in sections 67 to 70 of the CPC.  It is the view of this court that it would not make sense to charge the applicant in a separate formal charge for different related offences for the sake of applying the section 67 definition of “institution of proceedings” and then join the separate charges, as proposed by applicant’s counsel, when the same end can be achieved by a much simpler procedure of adding the new charge pursuant to section 187 of the CPC which under its subsection (2)(b) allows the addition of a new charge. This procedure proposed by applicant’s counsel is cumbersome and would create an absurdity, as defined in Dayal that is, impractical, inconvenient and illogical. As also stated in Dayal, the Court should seek to avoid such a construction “since this is unlikely to have been intended by the legislature”.  
68. Admittedly in the circumstances of this case, the ACCS could have applied for a Restraint Order under section 26(1)(a) and as suggested by counsel for the applicant, then amend the existing charge to add the new one, but it is the view of this Court that  the ACCS was not precluded from applying for a Restraint Order under section 26(1(b), for the reasons given above. Furthermore the legislature in section 26(3) in addition to “the institution of proceedings”, makes provision for the making of “the relevant application” for the institution of proceedings. If it had intended only for the institution of proceedings as defined in sections 67 to 70, it would not have made provision for the making of an application for the institution of proceedings: in such a case the ACCS could simply institute proceedings as defined in section 67 to 70 of the CPC for the new offence without the need to make any application, which as explained, would require a separate charge to be filed and would lead to an absurdity, or proceeded under section 26(1)(a). Since the legislature provided for  the making of an application for the institution of proceedings, it would seem that it intended for the institution of proceedings to be made other than in accordance with section 67 to 70 of the CPC, in situations such as the present one.
69. It is therefore this Court’s view that the application for a Restraint Order was properly made under section 26(1(b), as proceedings had not been instituted against the applicant in regards to the specific offence under the proposed new Count 11, and further that the proceedings in respect of that offence was properly initiated by way of an application in the form of the Notice of Motion dated 4^th April 2023. Accordingly I am of the view that the term “institution of proceedings” in these circumstances should, as submitted by ACCS, be given their ordinary meaning bearing in mind the context in which the words are used, that is the commencement or initiation of proceedings in respect of the criminal conduct on the basis of which the Restraint Order was made and in respect of which proceedings had not been previously instituted.
70. It has also been submitted on behalf of the applicant, that even if the Court is not convinced by his argument that the amendment of charges does not in law constitute the institution of criminal proceedings, the application for amendment of charges was not made within the period of one week from the making of the Restraint Order. He pointed out that the Notice of Motion (MV2) itself states that it is only “at 9am on 14^th April 2023” that “application will be made to the Court” for the orders sought. He submits that it is therefore not correct to say that the application for the amendment was made on the date of filing of the Notice of Motion on 4^th April 2023, four days after the Restraint Order was granted, but rather on 14^th April 2023, 14 days after the grant of the Restraint Order. In the circumstances, in terms of section 26(3) which provides a period of one week for the application to be made, the Court should discharge the Restraint Order. I do not find any merit in this argument. Section 26(3) states that “… the court shall discharge the order if proceedings in respect of the criminal conduct are not instituted or the relevant application is not made within a period of 1 week from the date of the order”. It is my view that in the context of this section, the date of the making of the application is the date of the filing of the Notice of Motion and not the date where the matter is actually called before the Court and the application made to the presiding judge. The obligation on the ACCS was to file the application within a week of the grant of the Restraining Order. Once any application is filed, it is at the discretion of the Court, subject to any statutory provisions, to fix a date when the parties will appear before it and when the application will be made to the presiding judge. Depending on the circumstances and the nature of the application, the presiding judge may hear the parties on the matter there and then, or fix another date for hearing of the motion. The presiding judge may also, on the date that the matter first comes before the court, fix a date for filing of the response of the other party and thereafter another date for hearing of the motion.  An applicant only has control over the date of filing of the application and not when the motion will come before the court or be heard or ruled upon. Regardless of the wording of the motion, it would not make sense to construe section 26(3) as meaning that the application had to be made to, or heard by, or determined by, the trial judge within a week. The construction of section 26(3) that makes most sense is therefore that the application has to be filed within the time limit of 1 week.
71. Counsel for the applicant also argues that to date, the Notice of Motion has not been heard or determined by the Court, that no amendments to the charges as they stood as at 19^th May 2022 have been made, and that therefore it cannot be said that the time limit of 1 week from the date of the making of the Restraint Order prescribed by section 26(3) for the making of the application has been complied with. Kevin Stephenson addresses this issue in his affidavit in response at paragraph 21 thereof, and avers that “the absence of any ruling on the amended charges at this stage is irrelevant for the purposes of section 26(3). Section 26(3) requires the institution of proceedings for the relevant criminal conduct; it does not require the resolution or determination of those proceedings. The absence of a ruling on the proposed additional charges does not affect the position that the proceedings for the relevant offence were instituted by the ACCS within one week of the Restraint Order being made”. For the reasons given above,   I am inclined to agree with the ACCS that as long as the Notice of Motion was filed within one week of the making of the Restraint Order then section 26(3) has been complied with.

Decision

72. For the reasons given above, the application to discharge the Restraint Order is accordingly dismissed.

Signed, dated, and delivered at Ile du Port on 5^th April 2024.

 

 

____________

Carolus J