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BEFORE THE INTERMEDIATE COURT OF MAURITIUS
CAUSE NO:-815/05
Police
V/S
Satcam Chooramun
Accused was assisted by counsel and pleaded not guilty to both counts namely:
Count I; a charge of offering cannabis for sale in breach of sections 30 1(d)(i), 45(1), 47(5)(a) and 48 of the Dangerous Drugs Act.
Count II; a charge of possession of cannabis for the purpose of selling in breach of sections 30 1(f)(i), 45(1), 47(5)(a) and 48 of the Dangerous Drugs Act.
Before dwelling into the merits of the case, I propose to deal with the motion of learned counsel for Accused to stay proceedings on account of abuse of process as the device adopted by the police in detecting the commission of the offences by Accused amount to entrapment. The concept of “ entrapment” has been examined in detail by the House of Lords in R v Looseley [2001] UKHL 53 . as set out in the extended reasoning of Lord Nicholls (§13-29) and Lord Hoffmann (§47-71). It is sufficient to reproduce:
"Police conduct which brought about State-created crime was unacceptable and improper and the role of the courts was to stand between the State and its citizens to make sure this did not happen. But, if a person freely took advantage of an opportunity to break the law, given to him by a police officer, the police officer was not to be regarded as inciting or instigating the crime in the context of the prohibition of entrapment
In considering whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute the court had to have regard to all the circumstances of the case and in exercising its inherent jurisdiction to stay the proceedings as an abuse of process had particularly to consider:
Lord Hoffman defined “entrapment ” in the Looseley case as:
“. Entrapment occurs when an agent of the state - usually a law enforcement officer or a controlled informer - causes someone to commit an offence in order that he should be prosecuted .”
Further, certain factors had been laid down in the Looseley case which the Court needs to take into account in order to decide whether entrapment exists or not, I quote:”
26. The nature of the offence . The use of pro-active techniques is more needed and, hence, more appropriate, in some circumstances than others. The secrecy and difficulty of detection, and the manner in which the particular criminal activity is carried on, are relevant considerations.
27. The reason for the particular police operation . It goes without saying that the police must act in good faith and not, for example, as part of a malicious vendetta against an individual or group of individuals. Having reasonable grounds for suspicion is one way good faith may be established, but having grounds for suspicion of a particular individual is not always essential. Sometimes suspicion may be centred on a particular place, such as a particular public house. Sometimes random testing may be the only practicable way of policing a particular trading activity.
28. The nature and extent of police participation in the crime . The greater the inducement held out by the police, and the more forceful or persistent the police overtures, the more readily may a court conclude that the police overstepped the boundary: their conduct might well have brought about commission of a crime by a person who would normally avoid crime of that kind. In assessing the weight to be attached to the police inducement, regard is to be had to the defendant's circumstances, including his vulnerability. This is not because the standards of acceptable behaviour are variable. Rather, this is a recognition that what may be a significant inducement to one person may not be so to another. For the police to behave as would an ordinary customer of a trade, whether lawful or unlawful, being carried on by the defendant will not normally be regarded as objectionable.
29. The defendant's criminal record . The defendant's criminal record is unlikely to be relevant unless it can be linked to other factors grounding reasonable suspicion that the defendant is currently engaged in criminal activity. As Frankfurter J said, past crimes do not forever outlaw the criminal and open him to police practices, aimed at securing repeated convictions, from which the ordinary citizen is protected: see Sherman v United States (1957) 356 US 369, 383.
As mentioned in the article of Re-drawing the boundaries of Entrapment by Andrew Ashworth in CLR 2002 at page 162, I quote:
“In Looseley the trial judge had rightly refused to stay the prosecution because there were reasonable grounds to suspect the defendant of involvement in the supply of class A drugs and the undercover officer had done no more than give him an opportunity to commit the offence whereas in AG Ref No.3 of 2000 , the trial judge had been right to stay the prosecution because the police officers had no reasonable grounds to suspect the defendant of involvement in the supply of class A drugs.”
From the evidence adduced before me, two ADSU officers namely constable Motaye And sergeant Awotar, following information received that Accused was involved into the sale of drugs, they called at Ecroignard on the 8 th April 2005 where they met with Accused. Following a conversation which they had with Accused about their alleged involvement into drug dealing and their interest to purchase drugs, Accused proposed to provide and sell them drugs. Upon remittance of money to Accused, they were in fact handed over with drugs and thus leading to the arrest of Accused and subject matter of prosecution under count I. A search took place at the premises of Accused whereby the latter volunteered to reveal to the police of his possession of other drugs.
Based on this set of evidence, I have now to consider whether the acts and doings of the police constable and police sergeant amount to “entrapment” so as to stay proceedings because of abuse of process of Court. As held in the case of Fadhili Mwikalo Salim 2000 SCJ 192, I quote:
“ In relation to the activities of the police as undercover agents in the world of drug trafficking, activities which police officers who deponed in this case conceded having pursued, the following observations of Lord Griffiths in Somchai Liangsiriprasert v Government of the United States of America (1991) 92 Cr. App. R. 77, (1991) 1 A.C. 225 are well in point:
“It is notoriously difficult to apprehend those at the centre of the drug trade; it is only their couriers who are usually caught. If the courts were to regard the penetration of a drug dealing organisation by the agents of a law enforcement agency and a plan to tempt the criminals into a jurisdiction from which they could be extradited as an abuse of process it would indeed be a red letter day for the drug barons”.
In
R v Latif and R v Shahzad (
1996) 2 Cr. App. R 92, 1 W.L.R. 104
the House of Lords upheld the decision not to stay proceedings which had been arrived at by a trial judge on the following reasoning:
“Though no court will readily approve of trickery and deception being used there are some circumstances in which one has to recognise, living in the real world, that this is the only way in which some people are ever going to be brought to trial, otherwise the courts will not get to try this sort of offence against people who are seriously involved in it.”
The House of Lords in fact held, in this case, that , in criminal proceedings, weighing countervailing considerations of policy and justice, it was for the trial judge, in the exercise of his discretion, to decide whether there had been an abuse of process which amounted to an affront to the public conscience and thereby required those proceedings to be stayed ( the emphasis being mine)
In R v Mullen (1999) C.L.R. 561 , the Court of Appeal held, allowing the appeal, that a court determining whether there had been an abuse of process had to carry out the balancing exercise identified by Lord Steyn in R v Latif and R v Shahzad (supra) weighing in the balance the public interest in ensuring that those charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court would adopt the approach that end justified any means.
From the evidence before me, the two police officers called at Ecroignard following information received that Accused was into drug dealing, they therefore had reasonable suspicion on Accused when they called there. The evidence on record also reveals that a request was simply made to Accused out of a conversation when he offered drugs for sale, there was no force and or persistence on the part of constable Motaye and or sergeant Awotar. The nature and extent of police participation was not such as to bring the administration of justice into disrepute.
Besides, after taking into account that Accused would not have behaved otherwise towards others than with those two police officers on the 8 th April 2005 as he volunteered to provide them with drugs upon request and even had drugs in his possession and knew the value of drugs are factors that Accused had the inclination to offer drugs for sale. It is salient to note that upon remittance of a Rs.1000 note, Accused gave one roll of cannabis of the weight of 3.55 grams so that this indicates that he knew the value of how much drugs are sold. I am therefore satisfied that this is not a fit case to stay proceedings. True it is that the police prompted Accused to sell drugs but would he not have the predisposition to do so, he would have never offered drugs for sale. I am instead satisfied that Accused had the inclination to sell drugs and when he came up with the offer made by the police officers on the 8 th April 2005, he naturally took up the offer. Constable Motaye and sergeant Awotar merely provided Accused with an opportunity to commit the offence on the 8 th April 2005. I am convinced and satisfied that the way Accused behaved towards the two police officers upon a request for drugs would have been similar had this been made by any other person.
This distinction between causing the commission of the offence and providing an opportunity for it to be committed was considered in the case of Nottingham City Council v Amin [2000] 1 WLR 1071 , and Lord Bingham of Cornhill CJ observed pp 1076-1077, I quote:
:"On the one hand it has been recognised as deeply offensive to ordinary notions of fairness if a defendant were to be convicted and punished for committing a crime which he only committed because he had been incited, instigated, persuaded, pressurised or wheedled into committing it by a law enforcement officer. On the other hand it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable if a law enforcement officer gives a defendant an opportunity to break the law, of which the defendant freely takes advantage, in circumstances where it appears that the defendant would have behaved in the same way if the opportunity had been offered by anyone else."
The manner in which constable Motaye and sergeant Awotar acted on the 8 th April 2005 was unlike the manner in which the police behaved and found to have enticed Accused into committing the offence in the case of Teixeira de Castro v Portugal (1998) 28 EHRR 101, I quote:
“Since the applicant had attracted no suspicion, had no record and had no drugs in his possession or control when approached, there was nothing to suggest any predisposition to offend. His offending was therefore the product entirely of incitement. At §38 the court concluded: "…. The two police officers did not confine themselves to investigating Mr Teixeira de Castro's criminal activity in an essentially passive manner, but exercised an influence such as to incite the commission of the offence”
McHugh J had this approach in mind in Ridgeway v The Queen (1995) 184 CLR 19 , 92 , when he said:
'The State can justify the use of entrapment techniques to induce the commission of an offence only when the inducement is consistent with the ordinary temptations and stratagems that are likely to be encountered in the course of criminal activity. That may mean that some degree of deception, importunity and even threats on the part of the authorities may be acceptable. But once the State goes beyond the ordinary, it is likely to increase the incidence of crime by artificial means.'
The evidence before me as to the acts and doings of the two police officers in detecting the commission of the offences by Accused was consistent with “ ordinary temptations and stratagems”
I therefore set aside the motion of abuse of process as submitted by learned counsel for Accused on the ground of entrapment.
In relation to count I, 3.55 grams of leaves wrapped in a roll which Accused offered for sale on the 8 th April 2005 to constable Motaye and sergeant Awotar upon them requesting to buy drugs was produced as exhibit ( Exhibit 1 refers ) . These leaves after examination, have been proved to be cannabis as per the forensic scientific laboratory report ( Doc A refers ) . The statement of Accused recorded in connection to count I was also produced in Court ( Doc C refers ) wherein Accused made a full confession as to possession of the drugs only but denied that he offered same for sale to the police on the 8 th April 2005.
In order to prove out the charge under count I against Accused, prosecution relied mainly upon the testimonies of constable Motaye and sergeant Awotar. According to both of them, on the 8 th April 2005, following information received that Accused was into drug dealing, they called at Ecroignard where they met with Accused whom they both identified in Court. After disclosing to Accused that they were allegedly into drug dealing and was looking for gandia to sell, Accused offered drugs to them for sale. In fact, upon payment of one thousand rupees to Accused, the latter handed them over with one roll of leaves which averred to be cannabis. Accused was then cautioned and questioned about same and he stated:” gandia meme sa missie, faire ene zaffaire pour moi”
In relation to count II, on the same material date, following the event of Accused offering them drugs for sale, Accused disclosed to the police of him being in possession of other drugs kept at his place. In the presence of the police, he in fact withdrew from the top of his wardrobe a carrier bag which he handed to them and same was found to contain leaves. These leaves had been produced as Exhibit 2 in Court and when examined by the forensic scientific laboratory, it had been proved to be cannabis in the weight of 3.02 grams ( Doc B refers ).
Whilst constable Motaye identified Exhibit 1 and Doc A as being the drug which Accused offered for sale and the fsl report in respect of the said exhibit respectively, sergeant Awotar identified Exhibit 2 and Doc B as being the drug produced by Accused when they called at his place and the fsl report pertaining to the said exhibit.
Accused did not choose to adduce any evidence in Court. Based on the testimonies of constable Motaye and sergeant Awotar, I am satisfied that prosecution has proved out its case beyond reasonable doubt. As regards count I, the fact that upon request, Accused provided the two police officers with drugs upon payment of a one thousand rupees note, I find him guilty of the charge.
As per count II, prosecution has succeeded in proving possession against Accused and which had been admitted by Accused but the issue to be decided by this Court is whether he had same for the purpose of selling. In so far that prosecution has succeeded in establishing that Accused is into drug dealing by offering cannabis for sale and being in possession of drugs and by having knowledge of the market value of the drugs, based on this set of circumstances, this Court can safely conclude that Accused had possession of the drugs found at his place for the purpose of selling same.
Likewise, in the case of BOODHOO A. v THE STATE 2004 SCJ 235, it was held that one could infer the purpose of selling based on the surrounding facts and circumstances of the case, I quote:
“The appellant was charged with the offence of “possession of a dangerous drug for the purpose of selling”. It was incumbent on the prosecution to prove all the elements of the offence beyond reasonable doubt. This burden can be discharged by adducing direct or circumstantial evidence, but the standard of proof remains that of proof beyond reasonable doubt. Now, unless an accused party has expressly stated his intention, such an intention can only be inferred from the surrounding facts and circumstances. At the same time before drawing such an inference from circumstantial evidence, it is necessary to be sure that there are no other co-existing circumstances which could weaken or destroy such an inference: vide Teper v R [1952 A.C. 489]
For all the reasons mentioned above, I accordingly find Accused guilty under both counts.
M J Ng Wong Hing
This 7 th November 2005
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