L’Independent Commission against Corruption (ICAC) pourrait changer de tactique contre le Directeur des poursuites publiques (DPP), Me Satyajit Boolell, Senior Counsel, dans l’affaire Sun Tan Hotels Pty Ltd. Dans un contre-affidavit juré mercredi 22 juillet, Chimunlall Ghoorah, directeur des investigations de la commission anticorruption, a levé un pan du voile sur cette option. 

 

Il explique que l’enquête dans cette affaire doit être orientée vers un possible délit commis par le DPP sous les dispositions de l’article 9 du Prevention of Corruption Act (PoCA). Cette provision de la loi est la suivante : «Any person who exercises any form of violence, or pressure by means of threat, upon a public official, with a view to the performance, by that public official, of any act in the execution of his functions or duties, or the nonperformance, by that public official, of any such act, shall commit an offence and shall, on conviction, be liable to penal servitude for a term not exceeding 10 years.»

 

Chimunlall Ghoorah a précisé qu’il y a une possibilité que des pressions aient été exercées sur le ministère du Logement et des terres pour faire annuler une première lettre et en substituer une seconde afin que le State Law Office (SLO) ignore la première lettre adressée par le ministère du Logement requérant un avis légal.

 

Il poursuit que cet avis émis éventuellement par le SLO était plus avantageux à la compagnie Sun Tan. Cela en se basant sur l’évaluation différente stipulée dans le premier conseil légal de Me Satyajit Boolell en 2008.

 

Pour le directeur des enquêtes de l’ICAC, cette situation justifie des enquêtes plus poussées afi n d’établir un possible délit en vertu de l’article 9 du PoCA. Mais l’option du délit de conflit d’intérêts en vertu de l’article 13 (2) du PoCA n’a pas été abandonnée.

 

Pour mieux comprendre le fonctionnement de l’article 9 du PoCA, nous vous proposons des extraits d’un jugement de la Cour en 2008 évoquant cette clause dans le cas ICAC vs Komardath Singh Sicharam.

 

Accused, Komardath Singh Sicharam, is charged with having willfully, unlawfully and criminally exercised pressure by means of threat, upon a public official, Mrs. Vijayal Manogaree Sunassee, with a view to hinder the performance of the latter in the execution of her duties. Therefore being in breach of Section 9 of the Prevention of Corruption Act.

 

The prosecution called Mrs. Vijayal Manogaree Sunassee who gave evidence to the effect that in March 2003 she was employed as Planning Officer at the Black River District Council. Among her duties, she had to see to it that applications for Development Permits were processed and examined. Thereafter she would make recommendations to the Planning Committee.

 

(...)In connection with the present case, at the end of January 2003, Sains Enterprise Ltd submitted an application with a development permit to convert an existing building in Albion into a store for beef skin. On the day the application was made, the accused who was a councilor at the Black River District Council, accompanied the representative of the applicant, one Darmalingum Chocken. The accused asked Mrs. Sunassee to process the application on a fast track and that he would liaise with the relevant authorities such as the Ministry of Health so that the application could be examined by the next Planning Committee.

 

In February 2003 clearance from the Fire Services was obtained. The Inspector in charge of the area, Mr. Sohan Dabee, carried out a visit at Albion along with mrs Sunassee as well as the accused who represented Sains Enterprise Ltd. The accused showed the building but since he did not have the key, they could only look through an open window and she found that the storage of beef skin had already started. After another visit of the locus was made by Inspector Sohan Dabee and a notice to stop the activity was sent to Sains Enterprise Ltd. The Ministry of Health did not give its clearance for the reason that the activity would cause smell nuisance.

 

On 27 March 2003, when the Planning Committee met.It did not recommend the granting of the application. Therefore no development permit could be issued. A few days later Komardath Singh Sicharam came in mrs Sunassee office and asked about the Sains Enterprise Ltd file. She told the accused that the application was not successful because the Ministry of Health did not recommend the granting of the application.

 

The accused was angry and told her that she was responsible for that state of affairs. The accused then asked questions in respect of a permit granted to one Arnachellum. She then called Mr. Dabee and asked the latter to bring the Arnachellum file. There was actually no link between the Arnachellum case and the Sains Enterprise Ltd case. She told the accused that he could still appeal to the Town and Country Planning Board. The accused was very angry and in presence of Mr. Dabee told her very loudly the following in a threatening manner: “Mo pou pourswiv ou la cour. Mo pou denonss ou l’ICAC lor dosié Arnachellum e ou pou gagn bel l’amerdment ar mwa si dan prosenn komité ou pa fer sanz desizion lor dosié Sains Enterprise.’’ Subsequently she was also verbally harassed by the accused during the Planning Committee sittings.

 

In September 2003, the Planning Committee decided to grant a permit to Sains Enterprise Ltd. In the cross-examination, she added that she did report the incident to his superior who suggested that the matter be reported to the police but she thought that this would not please the other councilors. She also made written complaints of verbal harassment against the accused to the Permanent Secretary of the Ministry of Local Government and to the Minister also.

 

Mr. Sohan Dabee was also called by the prosecution. According to his version, in 2003, he was working at the Black River District Council as Inspector of works. His job consisted of checking documents submitted in connection with applications for permits and he had to carry out site visits and he would then send his remarks to the Planning Officer, Mrs Sunassee, who was at that time his superior.

 

In connection with the application made by Sains Enterprise Ltd, he carried out three site visits. During one of which he found people working in the building although that company was not granted a permit to operate. He therefore served a notice on that company to stop the activity. In March 2003, he then heard the accused telling Mrs. Sunassee that if she did not recommend the application made by Sains Enterprise Ltd she would “gagn bel lamerdmen”. He knew the accused well as the latter was at the material time a councillor at the Black River District Council.

 

The representative of the Ministry of Health was also called to produce a letter sent to the Secretary of the Black River District Council dated 24th February 2003 to show that the Ministry of Heath did not recommend the issue of a development permit in connection with the application of Sains Enterpise Ltd as the proposed trade would be a source of smell nuisance. No evidence was submitted by the accused and he denied having been to the office of Mrs. Sunassee.

 

The defence called Mr. Soonden Karupudayyan the Chief Executive of the Black River District Council who stated that it was not mandatory for the committee to follow Mrs. Sunassee recommendations. He also added that Mrs. Sunassee did complain about threats made by the accused once and he advised her to report the matter to the police. The accused was a councilor and he had good working relationship with the latter.

 

It is not disputed by the accused, in his statement, that he was aware of the application for a development permit made by Sains Enterprise Ltd. He was on friendly terms with one Mohamad who was the owner of that company. He also averred that he told the said Mohamad that he could not make an application himself for a development permit on behalf of that company as he was a councilor and this could lead to a conflict of interest but he could help him – “mo finn dir li, mo capav ed li pou fer enn dimounn depoz sa pou li.’’

 

Subsequently, he asked one Chockren, a gardener at the DBM Coromandel to make the application on behalf of Sains Enterprise Ltd. It was quite possible that he accompanied the said Chockren to make the application. The latter came to see him at the Black River District Council on several occasions on his motorcycle. The unsworn version of the accused therefore clearly shows that he was involved to a large extent with the application of Sains Enterprise Ltd for a development permit and I have therefore no difficulty in finding that he must have been very keen to see to it that the development permit was granted.

 

I am also satisfied that on 31 July 2003, the accused who was then sitting on the Works and Planning Committee, did personally propose to the Council that a permit be granted to Sains Enterprise Ltd for two years. In the circumstances, I find that the version of witness Sunassee to the effect that the accused was angry when the development permit was not granted must indeed be a true account of events. The version of witness Sunassee to the effect that the accused did come in her office and threatened her was confirmed by witness Dabee. Both witnesses were convincing ones who stood the test of cross-examination.

 

I find that I can safely rely on their word. Mr. Soonden Karupudayyan, the Chief Executive of the Black River District Council called by the defence further confirmed that Mrs. Sunassee did complain about the accused’s threats.

 

“Any person who exercises any form of violence, or pressure by means of threat, upon a public official, with a view to the performance, by that public official, of any act in the execution of his functions or duties, or the nonperformance, by that public official, of any such act shall commit an offence.”

 

I am satisfied that that witness Sunassee, in her capacity of Head of the Planning Department at the Black River District Council, had made necessary recommendations in respect of granting of development permits, whether the recommendations were binding or not. I find that it was her duty to act in a professional and in an objective manner without interference in the execution of her duties.

 

Since the accused came to her office and shouted at her and furthermore told her “ou pou gagn bel lamerdement ar mwa si dan prosenn komité ou pas fer sanz decizion lor dossié Sains Enterprise”, I find that the conduct of the accused clearly shows that the accused did exercise pressure by means of threat upon witness Sunasee so that the latter made a favorable recommendation to the Planning Committee in respect of the application of Sains Enterprise Ltd for a development permit. For the reasons given above, I am satisfied that the prosecution has proved its case beyond reasonable doubt. I shall accordingly find the accused guilty as charged.