Kailaysur v. The State (Mauritius)

Kailaysur v. The State (Mauritius) [2004] UKPC 23 (24 May 2004)

Gunnesingh Ashok Kailaysur Petitioner

The State Respondent

FROM

THE SUPREME COURT OF MAURITIUS

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REASONS FOR DECISION OF THE LORDS OF

THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

UPON A PETITION FOR SPECIAL LEAVE TO APPEAL

OF THE 22nd April 2004, Delivered the 24th May 2004

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Present at the hearing:-

Lord Steyn

Lord Hope of Craighead

Dame Sian Elias

[Judgment delivered by Lord Steyn]

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On 22 April 2004 the Judicial Committee of the Privy Council had before it a petition for special leave to appeal from an order of the Supreme Court of Mauritius dated 21 July 2003 which increased a sentence of imprisonment passed by an Intermediate Court on 2 May 2002 from a total term of 18 months' to a total term of three years' imprisonment. Having heard counsel for the appellant and counsel for the respondent the Judicial Committee resolved to treat the hearing of the petition as the hearing of the appeal. At the same time the Judicial Committee ordered that the judgment of the Court of Appeal dated 21 July 2003 be set aside and that the sentence passed by the Intermediate Court on 2 May 2002 be reinstated.

The course adopted is not expressly provided for in the rules. But the Judicial Committee is the master of its own procedure. In appropriate cases the adoption of such a course advances the attainment of a correct and just disposal of the case without the need for a hearing on another date by a full Board. In the present case the parties through counsel consented to this course being taken. This procedure can be adopted even where there is no consent. On the other hand, it is a power that is best reserved for obvious and clear-cut cases.

On 2 May 2002, being the first day of a trial, the accused pleaded guilty in an Intermediate Court to nine counts of aggravated embezzlement. The accused was employed to collect money from customers of his employer. On nine occasions between November 1993 and May 1994 he embezzled some of the money. The total sum involved was 46,000 rupees (then worth about £1,700).

The accused was a married man. He had three children. He was the sole breadwinner of the family. He had responsibilities to a mother, who suffered from heart problems, and a handicapped sister.

The magistrate's sentencing observations were as follows:

"I have taken into consideration all the circumstances of the case including the Accused's plea of guilty, the amount of money embezzled, Rupees 46,000, the fact that none of it has, as yet, been refunded, the Accused's previous convictions for offences involving dishonesty as well as his family commitments.

I find that a custodial sentence is warranted and I accordingly sentence Accused to undergo 18 months imprisonment with hard labour under each count.

Accused to pay Rupees 350 costs."

It is common ground that the sentences were concurrent. The accused…

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