POLICE v N.

RAMGOOLAM

2018 INT 190

POLICE v N. RAMGOOLAM

CN: 977/2017

THE INTERMEDIATE COURT OF MAURITIUS

(CRIMINAL DIVISION)

In the matter of:-

Police

v/s

Navinchandra RAMGOOLAM

RULING:
The accused stands charged with the offence of:-
Limitation of payment in cash, in breach of Sections 5, 7 & 8 of the Financial
Intelligence and Anti-Money Laundering Act 2002, under Counts 1 to 23.
The accused has pleaded Not Guilty to the 23 Counts and he is assisted by a panel of
counsel.
The present case has not yet started and, at this stage, the Prosecution has moved to
amend the information as follows:
The proposed amendment is to amend Counts 1 to 23 by adding after each of the said
Counts, the following averment:
‘Complainant further avers that for the purposes of Section 8 of the Financial
Intelligence and Anti-money Laundering Act, the aforesaid sum is derived, in
whole or in part, directly or indirectly, from a crime and therefore prays for
forfeiture of same.’
The defence has objected to the above motion made by the Prosecution for the
following reasons:
(1) It is mere surplusage if the purpose is to bring in the provisions of Section 8 of
FIAMLA, which is but a penalty section, which need not be set out in the body of
the information, as it has already been set out in the heading of the information.
(2) It would appear, however, that the Prosecution is, under the guise of bringing in
Section 8, in fact bringing in elements of a totally different offence as can be seen
by perusing Section 3 of FIAMLA. This amendment would, therefore, create
duplicity or/and uncertainty which will obviously prejudice the accused in his
defence.

Submission by Mr. R. Ahmine, the Learned Deputy D.P.P:

In brief, Mr. R. Ahmine, submitted as follows:
The Court has a wide discretion to allow an amendment in a criminal case and the
power to amend the information can be made at any stage of the trial. But, if the
amendment is likely to mislead, deceive or prejudice the accused, then, the amendment
should not be allowed. The stage at which a proposed amendment is made is an
important factor to be taken into account.
The amendment in this case is being made to bring to the attention of the Court and the
accused that the property, which is the subject matter of the charge, in fact, is derived in
whole or in part from a crime and the Prosecution intends to adduce evidence on that
matter.
Moreover, the proposed amendment is not a surplusage, in as much as Section 6 (3)
of the Financial Intelligence and Anti-Money Laundering Act (hereinafter referred to
as FIAMLA), which concerns the procedure, applies to the substantive money
laundering offences, namely, Sections 3, 4 and 5 of the FIAMLA.
As regards the issue of duplicity, in fact, the Prosecution wishes to bring clarity and
certainty, and is being fair to the defence. There may be different categories of cases
under Section 5 of FIAMLA, but in cases where the contention of the Prosecution is
that the property is tainted, the Prosecution must disclose it right at the beginning.
Witnesses will be called and, who possibly, will give evidence in relation to the proposed
amendment.
Furthermore, the proposed amendment will prevent the defence from raising the
argument that it was not aware of the forfeiture order.
It is not sufficient only to aver Section 8 of FIAMLA; the proposed amendment should
be made where the Prosecution actually wants to ask that the money be forfeited and,
thereby, giving notice to all the parties.
In the course of his submission, Mr. R. Ahmine referred to Sections 125 and 97 (2) of
the District and Intermediate Courts (Criminal Jurisdiction) Act, as well as to the
following authorities: Bungaroo v The Queen [1975 MR 1], Venkiah v The Queen [1984
MR 62], Archbold Digital, Blackstone’s Criminal Practice 2018, R v Johal; R v Ram
[1972] 2 ALL ER 449, L. A. Abongo v The State [2009 SCJ 81] and Beezadhur v The
Independent Commission against Corruption and Anor [2013] PRV 83.

Submission by Mr. G. Glover SC appearing for the defence:

On the other hand, Learned Senior Counsel, Mr. G. Glover contended that the
objections by the defence is twofold:
(i).To bring in the provisions of Section 8 of the FIAMLA would be mere surplusage
because it is an independent section, which is usually set out at the heading of the
information and not in the body of the information.
(ii).The second limb of the objections is that, in fact, under the guise of bringing in
Section 8 (2) of the FIAMLA, the Prosecution is bringing in by the back-door elements
of a totally different offence as can be seen when perusing Section 3 of the FIAMLA,
so that the amendment would create uncertainty/duplicity. By adding in elements, which
are to be found in Section 3 of the FIAMLA, the Prosecution is substituting a new
offence, that is, a hybrid charge and a non-existent offence against the accused, thus,
causing prejudice to the accused. The amendment sought do not merely add
specifications or particulars, but, in fact, introduces new and material averments.
In the information, there has been no averment of any material circumstances of the
offence nor is there any in relation to the proposed amendment. The proposed
amendment fails to comply with Section 125 (1) of the DIC (CJ) Act in that it is not
within the wording of the law under Section 5 of the FIAMLA, which is the offence
Section. The proposed amendment is not an ingredient of the offence.
By adding the words ‘in whole or in part, directly or indirectly’, the accused does not
know with certainty whether the money was derived ‘directly or indirectly’. Thus, the
proposed amendment is bringing in uncertainty.
Only elements of the offence have to be averred in the information as the relevant
penalty is a matter which will come to the fore after the Court finds the elements of the
offence proved beyond reasonable doubt. The letter of the law has to be followed and if
anything else is averred, one is creating a situation which might render the trial unfair.
There is no necessity under Section 5 of the FIAMLA to make any averment in relation
to the purported tainted origin of the money, which is the subject matter of the 23
counts.
Lastly, Section 97 of the District and Intermediate Courts (Criminal Jurisdiction)
Act is not relevant, because it deals with appeals rather than with first instance trials.

The reply of Mr. R. Ahmine:

Mr. R. Ahmine’s stance on the issue is that Section 5 of the FIAMLA has been left
intact and the proposed amendment is in respect of Section 8 of the FIAMLA.

Reply of Mr. G. Glover SC:

Mr. G. Glover SC replied that there is absolutely no connection between the proposed
amendment and Section 8 (2) of the FIAMLA.
In order to buttress his argument, Mr. G. Glover SC resorted to the following
pronouncements: Jean Louis v The State [2000 SCJ 153], J. V. S. L’Etourdi v The
State [2017 SCJ 127], R v Sandhu (1997) Crim. L. R. 288 CA, R v O’Connor (1997)
Crim. L. R. 516, Ricaze v Court of Appeals, G. R. No.160451, February 9, 2007, R v
Barraclough (1906) 1 K. B 201, How Yuen v The State [2007 SCJ 24], Lepion v The
State [1997 SCJ 153] and D.P.P v Ali Mohamed & Ors [2015 SCJ 452].

ANALYSIS:
The Court has taken due consideration of the law, the submission of Mr. R. Ahmine and
that of Mr. G. Glover SC.
The law applicable:
The powers conferred upon the Court to amend an information is contained in Section
73 of the DIC(CJ) Act which reads as follows:
‘73. No objection allowed to information
(1) No objection shall be allowed to the information, for any alleged defect in its
substance or form, or for any variance which, in the opinion of the Magistrate, is not
material to the merits of the case between such information and the evidence adduced
in support of the charge.
(2) Where any such variance or defect appears to the Magistrate to be such that the
party charged has been deceived or misled, the Magistrate may amend such
information and adjourn the hearing of the case to such future day on such terms as he
thinks fit.’
Therefore, if it appears to the Court either that an alleged defect in substance or in form
in the information, or that any variance between the information and the evidence
adduced in support of the charge, is likely to deceive or mislead the accused, the Court
may amend the information and adjourn the hearing of the case to some future day.
Mr. G. Glover SC has submitted that Section 97 (2) of the DIC(CJ) Act is not relevant
for the purposes of the present Argument. At this juncture, the Court finds it apposite to
cite this provision of the law:
‘No conviction shall be quashed on the ground of any defect in substance or in form in
the information, warrant or summons, or for any variance unless the Magistrate or
Intermediate Court has refused to amend the information and to adjourn the hearing,
and unless the court is satisfied that the appellant has thereby been misled or
deceived and prejudiced in his defence.’ [Emphasis added]
Although Section 97 (2) of the DIC(CJ) Act is in relation to appeals, Mr. R. Ahmine
quite rightly submitted that it provides guidelines. Indeed, in deciding whether to allow
an amendment to an information, a trial Court should bear in mind and ensure that, in
so doing, the accused is prevented from being misled, deceived or prejudiced in his
defence at the trial stage.
The principle and guidelines applicable to a motion for amendment of the information
are set out in the case of Bungaroo v The Queen [1975 MR 1] as follows:
“… the Courts have very wide powers of amendment and that nothing short of
prejudice that may be caused to an accused party can prevent the amendment of
a criminal information either by substituting an offence akin to the one originally
charged or by adding a new count to an information or by making good any other defect
of substance or form.
However, the Court must be very careful to see to it that given the nature of the
offence originally charged, the gist of the amendment applied for and the time at
which such application is made, no prejudice will be likely to ensue to the accused.”
[Emphasis added]
It follows from what precedes that nothing short of prejudice would prevent an
amendment to the information and the following factors must be taken into account
when adjudicating upon the matter:
(i).The nature of the offence charged;
(ii).The gist of the amendment applied for; and
(iii).The time at which the proposed amendment is made.

The case-in-hand:
The Court shall now apply the principle and guidelines outlined in the case of Bungaroo
v The Queen (supra) into the present matter:
(1).The nature of the offence charged:
Turning to the first factor to be taken into consideration as mentioned earlier, the Court
finds it appropriate, first of all, to cite Section 125 (1) of the DIC(CJ) Act, which
provides that,
‘The description in the information of any offence in the words of the law creating such
offence, with the material circumstances of the offence charged, shall be sufficient.’
It is trite law that the wording in an information in relation to the offence must follow
faithfully the precise elements of the offence as laid down in the law (vide: D.
Dawonauth v The State of Mauritius [2005 SCJ 285]). Quite naturally, as regards the
nature of the offence charged, the amendment applied for must not seek to change the
nature of the offence originally charged (vide: M. I. A. A Rahiman v The State [209 SCJ
340], Veerasamy v The Queen [1968 MR 129]).

A perusal of the present information reveals that the elements of the offence of
Limitation of payment in cash have been averred therein. The question which arises is
whether the proposed amendment will have the effect of adding a new element to the
existing elements of the offence as couched in the information.
Now, it is expedient to put the proposed amendment into perspective; in other words, it
is important to understand the purpose and nature of the proposed amendment. It is
clear from a reading of the proposed amendment that it is being made solely for the
purposes of Section 8 (2) of the FIAMLA. The penalty section, that is, Section 8 of the
FIAMLA runs as follows:
‘Penalty
(1) Any person who –
(a) commits an offence under this Part; or
 (b) disposes or otherwise deals with property subject to a forfeiture order under
subsection (2),
shall, on conviction, be liable to a fine not exceeding 2 million rupees and to
penal servitude for a term not exceeding 10 years.
(2) Any property belonging to or in the possession or under the control of any person
who is convicted of an offence under this Part shall be deemed, unless the contrary is
proved, to be derived from a crime and the Court may, in addition to any penalty
imposed, order that the property be forfeited.
(3) Sections 150, 151 and Part X of the Criminal Procedure Act and the Probation of
Offenders Act shall not apply to a conviction under this Part.’
Section 8 of the FIAMLA consists of three subsections and the subsection of
relevance is Section 8 (2), which, unfortunately, the Prosecution did not precise. This
part of Section 8 of the FIAMLA provides for the additional penalty of a forfeiture order
to the main penalty under Section 8 (1) of the FIAMLA, for the aggravating element of
the tainted origin of the property. In this Section, there is no need for the Prosecution to
prove this aggravating element of the substantive offence under Section 5 of the
FIAMLA. It can be presumed since the provision of the law, that is, Section 8 (2) of the
FIAMLA says ‘shall be deemed’, leaving on the defence the burden of disproving the
presumption. Of relevance is the case of L.A Abongo v The State (supra), where the
Supreme Court had this to say:
“As rightly observed by the learned Magistrate the legal burden lies on the prosecution
to establish the guilt of the appellant in respect of the elements of an offence under
section 5 of the Act. It is only following a conviction of the substantial charge that the
burden shifts on the appellant to establish particular facts in respect of the lawful origins
of her property before the Court decides whether the appropriate sentence may include
a forfeiture order.”
It is clear from the penalty section that the forfeiture order, which is embodied in
Section 8 (2) of the FIAMLA, is rather an additional penalty to the existing one under
Section 8 (1) of the FIAMLA and no more; it has nothing to do with the substantive
offence and it cannot conceivably be construed as an element of the offence. As aptly
put by the Supreme Court in the case of S. Khodabux v The Queen [1987 SCJ 364],
“the forfeiture order is severable from the conviction and sentence.” Neither an
averment of forfeiture order constitutes an element of the offence, nor can the averment
of the forfeiture order and the elements of the offence be conflated. Moreover, a
conviction under Section 5 of the FIAMLA does not require proof by the Prosecution of
the element of tainted origin of the money. Viewed from this angle, it cannot be said that
the proposed amendment is being brought as an additional element of the offence.
Consequently, the proposed amendment does not affect the body of the information as
it stands now, in any respect, in so far as the offence contemplated is concerned,
namely an offence under Section 5 of the FIAMLA. In addition, it does not alter the
offence contemplated in the sense of bringing a new element that would suggest
another offence, particularly an offence under Section 3 of the FIAMLA as seems to
suggest by Learned Senior Counsel for the defence in invoking duplicity. With regard to
the rule against duplicity, in D.P.P v Merriman (1973) AC 584, Lord Morris of Borth-
Y-Gest said, “It is … a general rule that not more than one offence is to be charged in a
count in an indictment.”
In A.R. Mahamudally v The State and Anor. [2011 SCJ 246], the Supreme Court
prescribed the test to ascertain whether an information is duplicitous as follows:
“…, whether an information is bad for duplicity is to be decided by looking at the wording
of the information itself, in the light of the enactment creating the offence, such as to see
if more than one offence is being charged in the same count.”
When applying this test to the content of the present information in conjunction with the
proposed amendment, it is plain that only one offence would be charged and no
prejudice will stem from the proposed amendment.
Hence, the proposed amendment does not have a bearing on the nature of the offence
charged.

(2). The gist of the amendment applied for:

In order to grasp the gist of the proposed amendment, one has to ascertain the purpose
and the implications of the proposed amendment.
Firstly, the Court is of the opinion that illumination can be sought by drawing parallels
between the relevant Sections of the FIAMLA with those under the Building Act
1915. Although the Building Act 1915 has been repealed by the Building Control Act
2012, the cases and provisions under the Building Act provide an insight as regards
the procedure. For instance, Section 7 of the Building Act is an offence Section.
Section 20 (2) of the Building Act, which is found under the heading ‘Penalties’,
stipulates that,
‘… the Court may further order the demolition of the building or part of the building
which contravenes the provisions of this Act.’
In A & A Construction Ltd v The Pamplemousses/Rivière du Rempart District
Council [2012 SCJ 415], it was observed that, “A pulling down order is a severer
sentence imposable for building without permit; it is an additional penalty which is
inflicted over and above the normal form of punishment that is provided as sanction for
the commission of an offence under the criminal law, notably a fine or imprisonment.”
Section 20 (2) of the Building Act gives a discretionary power to a Court to make a
pulling down order and the information must contain, in addition to the elements of the
offence, an averment, that is, a prayer of pulling down order (vide: Municipal Council
of Port Louis v M.E Verte [2013 SCJ 7]). In the same vein, a forfeiture order under the
FIAMLA finds its relevance as a prayer in an information.
The Court takes the view that the analogy can be drawn between the above-mentioned
penalty section under the Building Act and the penalty Section under Section 8 of the
FIAMLA, in that a forfeiture order and a demolition order are both additional sanctions.
These orders are conspicuously separate and distinct from the offence charged. That is
why a prayer for forfeiture order cannot be considered on the same footing as the
elements of the offence. One must not confuse the averment or prayer of a forfeiture
order with the elements of the offence which are altogether different in nature.
In the case of Municipal Council of Port Louis v M.E Verte (supra), the Supreme
Court highlighted that, “The objective of the Building Act would be defeated if, in
appropriate cases, Courts failed to make pulling down orders of illegal constructions.”
Similarly, the Court cannot lose sight of the aim of the FIAMLA which was pointed out
by the Supreme Court in L.A. Abongo v The State (supra) as follows:
“The Financial Intelligence and Anti-Money Laundering Act was enacted essentially for
the purpose of combating money laundering offences which had the potential of
adversely affecting the social and economic set up, both at national and international
level to such an extent that they may constitute serious threats not only to the financial
system but also to national security, the rule of law and the democratic roots of society.
By enacting sections 5, 6 and 8 of the Act, the policy of the legislator was clearly
designed to achieve the compelling objective of safeguarding the national and
international financial systems against any disruptive intrusion which may be caused by
the perpetrators of certain criminal activities.”
Thus, if a forfeiture order is not invoked following a conviction, this would defeat the
main objective of the FIAMLA. Hence, that would amply justify the significance of the
present proposed amendment.
Secondly, equally of relevance are drug cases where the issue of trafficking arises. In
Heerah v R [1988 SCJ 397], it was held that since the information contained no
averment that the appellant was a trafficker, the Magistrates had no jurisdiction to
adjudicate on that issue. The Supreme Court explained as follows:
“The fact of being in possession of drugs qua trafficker, carrying as it does a heavier
penalty than that prescribed under section 28 of the Act, is nothing else than an
aggravating circumstance which must be averred. One could not imagine someone
charged with larceny being told, after conviction, that, as the evidence had disclosed
that he was armed at the time, he would be sentenced for armed robbery. Still less, in
our context, could a person charged with importing heroin before a Judge without a jury
be told, at the end of the trial, that he would be sentenced to death as the evidence had
disclosed that he had introduced the drug for trafficking.”
It is this legal reasoning in that case which is of the essence and pertinent to the present
matter. The principle applied in a drug case is that there must be an averment of
trafficking included in the information so that an accused is informed before the start of
the case about the aggravating circumstance which would mean that at the time of
arraignment the accused would be aware of the impending risk that a severer penalty
may be inflicted upon him if he is found guilty of the offence.
Similarly, as a meaningful comparison between the two Acts, the same rationale has to
be applied in that, in the present case, a forfeiture order is a severe penalty and it is
quite important that the accused be informed ab initio of this order so that he is aware,
right at the start, of the penalties he is likely to face if he is convicted. This early
disclosure will not only prevent him from being misled or deceived from the beginning,
but also forestall any prejudice which may be caused to him thereafter.
Moreover, if the averment in relation to a forfeiture order is omitted, as a direct
consequence of this lack of precision, an accused may be unable to avail himself of
defences, which would have been open to him. Therefore, Section 8 (2) of the FIAMLA
must be brought home to an accused at an early stage.
Thirdly, another compelling reason which justifies the proposed amendment is the
manner in which the heading of the present information has been set out. At this
juncture, the Court finds it apposite to reproduce the heading of the present information:
‘CHARGE OF: LIMITATION OF PAYMENT IN CASH (COUNTS 1 to 23)
Breach of sections 5, 7 & 8 of the Financial Intelligence and Anti-Money Laundering Act
2002.’
A perusal of the above reveals that Section 8 of the FIAMLA has been mentioned.
However, the Prosecution has not pinpointed which subsection of Section 8 of the
FIAMLA it is aiming at. Bearing in mind the importance of the forfeiture order, which is
contained in Section 8 (2) of the FIAMLA, and the far-reaching implications that will
flow should it be triggered, the Court takes the view that there is lack of precision in the
heading of the information and the Prosecution must be explicit as to the precise
subsection which it will rely upon if there is a conviction. As Section 8 of the FIAMLA
comprises of three subsections, the accused and his legal representatives ought to
know which of the three subsections or whether all subsections are being relied upon by
the Prosecution. Ex facie the information, as at present, it may well be the case that the
Prosecution is relying only upon Section 8 (1) of the FIAMLA. The present state of
affairs, inevitably, leads to uncertainty, in as much as, although Section 8 of the
FIAMLA has been mentioned in the heading of the information, one cannot say for sure
whether the Prosecution will eventually invoke a forfeiture order, if the need arises.
Consequently, the omission of the Subsection (2) in question in the heading of the
information together with the absence of any averment in relation to the forfeiture order
in the information is utterly misleading and the accused will be taken by surprise if
Section 8 (2) of the FIAMLA is applied at a later stage, in case he is found guilty.
Going even further, to gauge the importance of an averment in relation to the forfeiture
order, one may imagine that in a scenario where an accused is not assisted by counsel,
that defendant would be completely unaware of the fate that eventually is to befall him if
he is found guilty. Hence, the Court is of the considered view that, in all fairness to an
accused, the intention of the Prosecution in respect of a forfeiture order must not be
shrouded in mystery, but it must rather be foreshadowed in the information.
Therefore, the failure to specify Section 8 (2) of the FIAMLA in the heading of the
information and the absence of any averment in the body of the information in that
respect is insufficient in a prosecution based on Section 8 (2) of the FIAMLA. In the
circumstances, as correctly submitted by Mr. R. Ahmine, the proposed amendment will
bring certainty. By averring the proposed amendment, the Prosecution is now declaring
its wish to rely on Section 8 (2) of the FIAMLA, thus, giving advance notice to the
accused that should the latter be convicted of the present offence, the forfeiture order
will be invoked. Therefore, it is not likely that the Prosecution is inserting a new
ingredient in terms of the element of the substantive offence as to result in duplicity and
uncertainty as to the present charge the accused has to face; but, in fact has for effect
to bring to the attention of the Court and to the accused that the Prosecution is
contemplating the application of Section 8 (2) of the FIAMLA in sentencing.
Thus, there are cogent reasons to include the proposed amendment into the present
information.
In the course of his submission, Mr. G. Glover SC sought reliance upon the case of
J.V.S. L’Etourdi v The State [2017 SCJ 127], where it was remarked that,
“As per our law, it is sufficient that the information identifies the legislation which creates
the offence and the elements of the offence need to be described in a concise and
simple language. There is no requirement to specify the penalty or the alternative
penalties for the offence.”
However, that case dealt with the offence of Driving a motor vehicle with alcohol
concentration above prescribed limit, which is an entirely different charge to the present
one, and the Supreme Court in that case stressed that,
“…, it would not have been proper in a case like the present one to mention section
123F (4) in the heading of the information as such a course would have tainted the mind
of the Magistrate who would have known beforehand that the appellant was a second
time offender.” [Emphasis added]
Therefore, each case has to be considered on its own. In some cases it may not be
appropriate or necessary to cite the penalty section, whilst, true it is that, generally,
there is no mandatory requirement to insert the penalty section in the heading of the
information, in other cases it may be useful and crucial to specify the penalty, as in the
case-in-hand.
Mr. G. Glover SC also referred to Paragraph 14 of the judgment in the case of
Beezadhur v The Independent Commission Against Corruption & Anor. [2013 PRV
83], which runs as follows:

“In the intermediate court, the magistrate accepted that the money in question did not
have a "tainted" origin, but was the fruit of his savings. However, he held that the Act did
not require the prosecution to aver in the information that the money emanated from
tainted origins. The appellant did not at that stage argue that the transactions were
"exempt" under section 5(2). The magistrate found the appellant guilty as charged and
sentenced him to pay a fine of Rs 10,000 under each of the five counts, and costs of Rs
500.”
Mr. G. Glover SC submitted that “This was a statement of fact by Their Lordships which
was accepted by all parties.”
Now, it is important to consider the said Paragraph 14 in its proper context. Firstly,
Paragraph 14 is found under the heading “The facts”. Therefore, Paragraph 14 is an
excerpt of the history of that case which has been related by the Judicial Committee of
the Privy Council. Secondly, there is not even a hint that their Lordships approved the
statement made by the Magistrate that “the Act did not require the prosecution to aver in
the information that the money emanated from tainted origins.” Thirdly, this fact was not
made an issue, which the Judicial Committee of the Privy Council had to thrash out.
Lastly, the statement made by the Magistrate in that case is not binding.

(3).The time at which the proposed amendment is made:

In Ponen v R [1985 MR 39], the Supreme Court highlighted that, “unless it is likely to
cause prejudice an amendment can be made by the Court at all stages of the
proceedings even after a submission of no case to answer.” In the case of R. v. Johal &
Ram 1972 56 C.A.R. p. 348, it was held that: "no rule of law precludes the amendment
of an indictment after arraignment, whether by adding a new count or otherwise. An
amendment during the course of trial is likely to prejudice the accused person and, the
longer the interval between arraignment and amendment, the more likely it is that
injustice will be caused." Interestingly, in Director of Public Prosecutions v J. C. R.
De L’Estrac [2010 SCJ 118], the Supreme Court pointed out that, “Generally, there
should be no prejudice to an accused where the information is amended at the
beginning of the trial.”
In the present matter, the proposed amendment comes at an early stage when the trial
has not yet started. Hence, there is no prejudice caused to the accused if the proposed
amendment is allowed. On the contrary, the proposed amendment will preclude any
such prejudice, which may eventually be caused to him.
The “hybrid charge” issue:
Although the proposed amendment contains words which mirror some of the elements
of the offence under Section 3 of the FIAMLA, it does not mean that identical words
cannot be used for the purpose of Section 8 (2) of the FIAMLA. True it is that the
words ‘in whole or in part’, ‘directly or indirectly’ consist of elements of the offence under
Section 3 of the FIAMLA, but for the purposes of Section 8 (2) of the FIAMLA, those
words are far from constituting elements of the offence under Section 5 of the
FIAMLA.
Interestingly, Section 6(3) of the FIAMLA, under the heading ‘Procedure’, stipulates
that,
‘In any proceedings against a person for an offence under this Part, it shall be sufficient
to aver in the information that the property is, in whole or in part, directly or indirectly
the proceeds of a crime, without specifying any particular crime, and the Court, having
regard to all the evidence, may reasonably infer that the proceeds were, in whole or in
part, directly or indirectly, the proceeds of a crime.’ [Emphasis added]
Therefore, those words in question can be used to formulate the averment with regard
to the forfeiture order, if this wording is appropriate and fits into the present context.

The issue of surplusage:

Mr. G. Glover SC objected to the proposed amendment on the basis of surplusage. The
Court is of the opinion that the proposed amendment does not amount to surplusage.
Suffice it to say that, in any event, surplusage in an information is not necessarily fatal
(vide: Hinghen v The Queen [1874 MR 35] and J.K.K. How Yuen v The State [2007
SCJ 249]) and failure by the Prosecution to establish an averment in the information
which is merely superfluous is immaterial (vide: C.M. Lepion v The State [1997 SCJ
154]).

CONCLUSION:
In light of the foregoing observations, the Court is of the considered view that the
substantive charge as regards the offence will remain intact and no prejudice will flow
from the proposed amendment. In addition, this proposed amendment will have the
effect of averting any prejudice which may be caused to the accused as far as the
forfeiture order is concerned. Obviously, the two grounds of objection raised by Learned
Senior Counsel appearing for the accused fade into irrelevance. As a result, the court
cannot subscribe to his submission.
The Court, accordingly, overrules the objection put forward by Learned Senior Counsel
appearing for the defence and grants the motion in respect of the proposed
amendment.

Mr. P. SEWPAL Ms. N. PARSURAMEN

Magistrate Magistrate
Intermediate Court Intermediate Court
Criminal Division Criminal Division
Date: 20/07/18