Goinsamy Chinien (Petitioner) v Attorney General and Another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hutton |
| Judgment Date | 09 March 2000 |
| Judgment citation (vLex) | [2000] UKPC J0216-1 |
| Court | Privy Council |
| Date | 09 March 2000 |
[2000] UKPC J0216-1
Privy Council
Present at the hearing:-
Lord Hutton
Lord Hobhouse of Woodborough
Lord Millett
[Delivered by Lord Hutton]
This is a petition for special leave to appeal to the Judicial Committee by Mr. Goinsamy Chinien, a barrister, who is seeking to have his name reinstated on the Roll of practising barristers following its removal in 1993. The petition arises out of a judgment of the Supreme Court of Mauritius delivered on 10th June 1999 refusing to reinstate the petitioner's name on the Roll and the subsequent ruling of the Supreme Court on 14th October 1999 refusing the petitioner leave to appeal to the Judicial Committee.
On the hearing of the petition on 17th February 2000 the Board dismissed the petition. It is not their Lordships' practice to give reasons for either allowing or dismissing a petition for special leave to appeal but in view of the issues raised as to the right of a barrister in Mauritius to appeal to the Judicial Committee from the Supreme Court in respect of a disciplinary matter, their Lordships think it appropriate to give brief reasons for the decision.
The background to the petition was this. The petitioner was called to the Bar in Mauritius in 1976 and practised for about 10 years. In 1987 the petitioner was prosecuted on one count of conspiracy to export foreign currency and was convicted and sentenced to five years' imprisonment. His conviction was affirmed by the Supreme Court and the petitioner then appealed against his conviction to the Judicial Committee: Chinien v. The State [1993] 1 W.L.R. 329. The Judicial Committee dismissed the appeal against conviction but quashed the sentence of five years' imprisonment and remitted the case to the Supreme Court for sentence. The Judicial Committee quashed the sentence for two reasons. The first reason was stated as follows by Lord Jauncey of Tullichettle at pages 335-336:-
"In the first place it is axiomatic that a court can sentence only for the offence charged and not for what might have been charged. It would have been perfectly possible for the prosecution to have charged the appellants with the conspiracies to export currency and to import drugs. They chose, no doubt for very good reasons, not to do so. It would in these circumstances be wrong in principle for the appellants to be sentenced in respect of such conspiracies when they had only been charged with conspiring to export currency. It may be that it is proper to take into account the purpose of the illegal export but it can be proper only to the extent of warranting a sentence which would be in the higher rather than the lower range for illegal export of currency."
The second reason was that it was not right to pass a higher sentence for conspiracy than could be passed for the substantive offence. On the further hearing before the Supreme Court that court noted that the maximum fine which could be imposed on the petitioner was Rs.1000 and therefore gave the petitioner an unconditional discharge. The Chief Justice stated:-
"We think that, since a fine of Rs.1000 would serve no purpose, an unconditional discharge, a course which was suggested by all three counsel who addressed us, would be more appropriate and we order accordingly."
In 1987 about the time when the charge of conspiring illegally to export foreign currency was brought against him the petitioner voluntarily asked for his name to be removed from the Roll of practising barristers and this was done. The petitioner had, in fact, ceased to practise for a considerable time before he was indicted for the criminal offence.
In 1999 the petitioner brought an application before the Supreme Court seeking an order that his name be restored to the Roll to enable him to resume practice as a barrister. The Attorney General and the Mauritius Bar Association were respondents to this application. The grounds relied on by the petitioner were as follows:-
"(1)the Appellate Court in his (sic) majority judgment (Supreme Court Judgment No. 89 of 1993) sentenced the applicant to an unconditional discharge which does not count as a conviction or a sentence;
(2)the applicant voluntarily asked for his name to be removed from the Roll of practising barristers in 1987 and had in fact ceased to practise well before he was indicted for the criminal offence. Indeed he has now been in the wilderness for some 13 years;
(3)the applicant has had no other brush with the law since his conviction for the offence of conspiracy to export foreign currency, and
(4)he has purged his crime in the circumstances of the case."
Counsel for the Bar Association supported the petitioner's application and stated that it was the unanimous view of the Bar Association that the applicant should be reinstated on the Roll. The Bar Association did not appear before the Board on the hearing of the petition but the Bar Association made helpful written submissions which their Lordships have taken into account. On the hearing before the Supreme Court it appears that the Attorney General did not oppose the application but it also appears that the Attorney General stated that if the Supreme Court considered that there was a drugs element in the criminal offence of which the petitioner had been convicted and that it was entitled to take that element into account, then he would oppose a reinstatement. On the hearing of the petition before the Board Miss Farmer appeared for the Attorney General.
It is clear that the primary reason for the Supreme Court's refusal to reinstate the petitioner on the Roll was that the criminal offence of which he had been convicted related to drug trafficking. In delivering the judgment of the Supreme Court the Chief Justice stated:-
"To a question from this Court whether the Court would not be sending a wrong signal to the public in reinstating the applicant who was, after all, convicted for the offence of conspiracy to export foreign currency which has for object...
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Hansraj Matadial Appellant v John Bayliss Frederick Respondent [ECSC]
... ... that such application may bemade by the Attorney General or by the person aggrieved by the action ... from Mauritius in the case ofGoinsamy Chinien v The Attorney General and the Mauritius Bar ... had no jurisdiction to grant the petitioner leave to appeal. Conclusion ... 8 ... ...