Tyack v Mauritius
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell,Lord Mance |
| Judgment Date | 29 March 2006 |
| Neutral Citation | [2006] UKPC 18 |
| Court | Privy Council |
| Docket Number | Appeal No 60 of 2005 |
| Date | 29 March 2006 |
[2006] UKPC 18
Privy Council
Present at the hearing:-
Lord Hope of Craighead
Lord Walker of Gestingthorpe
Lord Carswell
Lord Brown of Eaton-under-Heywood
Lord Mance
[Majority judgment delivered by Lord Carswell]
Air Mauritius plays an important part in the economic life of the state of Mauritius. It is a large public limited company, in which members of the public have shareholdings. Its success has been linked with the development of tourism in Mauritius, which is of considerable importance to the island. When it became known that very substantial defalcations had taken place within the company, and it was alleged that very senior members of the management were involved, it gave rise to a large scandal and the public concern was equally great.
The appellant was at the centre of the misfeasance, as general manager in charge of finance and company secretary, playing a part which their Lordships will describe later in more detail. When rumours of irregularities were spreading and an internal inquiry had been commissioned, he admitted his part, provided detailed information to the police and expressed willingness to give evidence against the other participants. He was charged on two counts of conspiracy to defraud, which carried a maximum penalty of five years' penal servitude. The subject matter of the charges represented only a small fraction of the sums wrongly received by the appellant on his own admission, and an even smaller fraction of the company's overall loss. He pleaded guilty at the Intermediate Court and the Presiding Magistrate sentenced him to three years' penal servitude on each count, which are to run concurrently. His appeal to the Supreme Court of Mauritius was dismissed and he has appealed by special leave to the Privy Council, on the ground that the sentence imposed was wrong in principle and manifestly excessive.
Before turning to the facts in more detail their Lordships would observe that although the Board has power to consider appeals against sentence, it is an area in which they are particularly slow to intervene, paying considerable deference to the views of the local court. In Chinien v The State [1993] 1 WLR 329, also an appeal from the Supreme Court of Mauritius, Lord Jauncey of Tullichettle, giving the judgment of the Board, said at p 335:
"It is very unusual for this Board to intervene or even to entertain argument in relation to sentences passed by a court of competent jurisdiction."
It was prepared to do so in that case because questions of principle were involved. In the present case it is claimed that the Intermediate Court and the Supreme Court made a serious error of principle, in that they regarded it as legitimate that the appellant should be sentenced as if the charges laid represented the whole period and total amount of the fraudulent transactions. This involves consideration of the topic of charges in cases of multiple offending and the way in which they should be dealt with, one which their Lordships consider to be of some consequence.
It was common case, and accepted as correct by the Supreme Court in its judgment, that the Mauritian courts will be guided in sentencing by the principles and guidelines applying in England and Wales, so that the leading English authorities are generally apposite in sentencing matters. In the course of their judgment, however, the Supreme Court remarked (Record, pp 115-6) that while they have been inspired in their sentencing principles by the English decisions, the local social context is very different from that obtaining in the United Kingdom and that they must not blindly follow what obtains there. They also pointed out (Record, p 114) that in view of the local context they have "been less lenient in respect of certain crime".
The appellant, who is now 65 years of age, joined Air Mauritius in 1977 as General Manager – Finance and Administration, being also appointed Company Secretary in 1985. In or about 1981 a special fund was set up, which on the appellant's case was done on the instructions of the then Chairman, Mr HK (later Sir Harry) Tirvengadum, to enable payments to be made for the funding of political parties and for other purposes. In his unsworn statement made from the dock in the Intermediate Court the appellant described the Chairman as "un homme d'une forte personalité, qui avait la confiance de tous, a tous les niveaux" – a man of strong personality, who had the trust of everyone at all levels. The money was "laundered" through trusted associates, Rogers & Co Ltd, sales agents to Air Mauritius. They were paid sums by cheque which were described as a special commission, then remitted the amounts by open cheques to the appellant, who cashed them and kept the proceeds in his private safe or in bank accounts other than the Air Mauritius account, paying them over as he was instructed. This practice went on until 1999.
The appellant stated that these sums were initially used to finance political parties, but that "some years later" Sir Harry Tirvengadum asked him to effect various payments from the fund, including additional salaries for Sir Harry himself, for the appellant and for other colleagues, since "il avait la haute main" – he had the upper hand. It was common case that the total sum involved in the fraud was some 85 million rupees, roughly equivalent to £1.5 million sterling, and the amount which the appellant received came to some Rs 27.5 million, equivalent to £513,000 approximately.
About the beginning of September 2001 rumours began to spread about fraud at Air Mauritius and the company's administration decided at some stage to institute an internal inquiry. The appellant asked for and was granted leave as from 10 September 2001 in order to facilitate the inquiry. He wrote a letter on 13 September to the President of the Republic asking him to institute a commission of inquiry at Air Mauritius, stating that he would tell all the truth about the matter. He then handed to the police a "cash book" in which he had noted all the entries and withdrawals in relation to the special fund. He followed this up by giving a series of statements under caution, commencing on 22 September 2001, in which he described in detail the course of the fraudulent conduct, the methods used and his own part in it. He produced a number of original documents setting out the payment of the special commissions and payments made out of the fund and identified a number of cheques relating to the transactions. From his records he accounted for the total of Rs 27,508,833.08 received by himself and paid this whole sum over to the police in October 2001. The appellant has at all times indicated his willingness to give evidence in proceedings against the other persons involved in the fraud and criminal proceedings are at present in train against them or some of them. The appellant has at various times from the beginning of the inquiry expressed his contrition and presented his apologies to the court.
The appellant was charged on two counts of conspiracy to defraud, contrary to section 109 of the Criminal Code (Supplementary) Act, an offence which carries a maximum penalty of five years' penal servitude. The charges related to two specific transactions in April and June 1996 and the amounts concerned were Rs 489,718 and Rs 499,539 respectively, the equivalent in total of approximately £18,500. Their Lordships were not informed of the reasons for prosecuting the appellant on two charges only, but in view of the amount of evidence available incriminating him the inference appears clear that it was a deliberate decision by the prosecuting authorities. As no other charges were contained in the indictment or formulated and taken into consideration, one must conclude that restricting the prosecution to them was intended to reflect the very considerable and probably indispensable co-operation afforded to the police by the appellant.
The appellant pleaded guilty to these charges at the Intermediate Court on 9 December 2002. At a hearing on 27 February 2003 the Presiding Magistrate Mrs Mungly-Gulbul heard evidence from four police witnesses to prove the statements made by the appellant. He made an unsworn statement from the dock, his counsel made submissions on his behalf and in a brief reply prosecuting counsel merely stated that the principles of sentencing were to serve justice. There was no suggestion that other charges were being taken into consideration, nor was any mention of specimen or sample counts made at any stage of the proceedings. The course and scale of the whole fraud were, however, evident from the statements and the submissions presented by his counsel, who did not seek any restriction of the factual matters (which would have been wholly artificial and made the matter very difficult to comprehend). It was confirmed that the appellant had no previous criminal record.
The magistrate adjourned sentencing until 6 March 2003, when she gave a written decision setting out her reasons. She recited the course of the fraudulent conduct over 18 years and the appellant's part in it, stating that notwithstanding his knowledge of the matter he had chosen not to report it to anyone until "the scandal came out in the open". She said that
"the accused's involvement in such a fraud, in breach of his position of trust and causing prejudice, not only to his employer, but also the company shareholders, cannot be condoned or viewed lightly."
She emphasised (Record, p 19) that
"in this context of rampant white collar crime, were the Court were to be unduly lenient to the accused, it would be sending the wrong signals to those professionals in positions similar to the accused, who would have the impression that they can...
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