Police v Express Maintenance Ltd (represented by its Director, Mr J. D. L. Yene Teck) IN THE INTERMEDIATE COURT OF MAURITIUS. Express Maintenance Ltd

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1 Police v Express Maintenance Ltd (represented by its Director, Mr J. D. L. Yene Teck) 015 INT 1 IN THE INTERMEDIATE COURT OF MAURITIUS Cause No.1869/013 In the matter of: - Police v Express Maintenance Ltd (represented by its Director, Jacques Desire Laval YENE TECK) JUDGMENT The accused company (the accused), as represented, is charged with the offence of Embezzlement in breach of section 333(1) of the Criminal Code, coupled with section 44(1)(b) of the Interpretation and General Clauses Act. Mr Yene Teck, the representative of the accused company (the representative), pleaded not guilty to the charge and was assisted by Mr A. Toorabally, counsel. Mrs A. Stephen-Sunglee, Ag. Senior State Counsel, appeared for the prosecution. The case for the prosecution Mr Y. Fowdar (W4) was the director of Expand Technology (Holding) Ltd (Expand) in 011. They needed a centralised air-conditioning system and when the representative came to their premises, they asked him for a quotation: one for Rs1,350,000/- was sent (Doc. E). There was an exchange of correspondence with the representative as to why the works were being delayed, but cannot remember the reasons given for the delay. The management informed him about birds causing trouble and he contacted the providers (Doc. F): the is in relation to the installation of air-conditioning following the contract. Mr B. Sanasy (W5) worked as accountant for Expand in April 011 when the company allocated a contract to the accused for the installation of air-conditioning. They made a deposit of Rs77,65/- on 16 May 011 and a payment of Rs1m on 18 July 011, through CIM Finance, to the accused, but the works were not carried out. The total cost of the order was Rs1,350,000/- plus VAT. According to the quotation it was one amount and there is no mention of labour. The accused had to do the delivery on 15 September 011, but failed to do so or to install the air-conditioning. In his statement he said that the accused did not do any works or installation of the equipment or refund any money, but it did some preparation work/he is not aware what works were done. After about one year Expand contacted Goupille, which did the installation. He is aware the accused made an order with Goupille, but not that it was delayed. Mr J. F. E. N. D. Desveaux (W6) was the manager of air-conditioning and corporate department at G. M. Goupille (Goupille) in 011. On 17 October 011 they ordered tailor-made air-conditioning from Galanz

2 on the basis of a scanned copy of a cheque representing part-payment of Rs438,000/- sent to them by the representative, but they never received the cheque. They received the air-conditioning on 5 December 011 and contacted the representative by phone for the payment of Rs951,841.77/-, in vain. The business that needed the equipment contacted them to buy same in January 01 and some three months later Goupille did the installation to dispose of the equipment. He is not aware if the order was placed on 4 July 011, if Goupille was late in the delivery or if they sold the equipment to Expand. He does not know if the part-payment mentioned in the quotation relates to the order. There is a document from Goupille that payment was to be made within 30 days after delivery (Doc. D). PC Seebaruth (W1) recorded two statements from the representative on 6 February 01 (Docs. C and C1): he informed the representative that he was remitted the sum of Rs1,077,65/- and it was an offence. On 6 April 01 PC Rossaye (W) went to the premises of Expand and did not see any air-conditioning installation or any works. On 13 May 013 he recorded a statement from the representative (Doc. C). Ms N. D. Puran-Beeharry (W3) Compliance Officer, Registrar of Companies, produced a document listing the directors of the accused company (Doc. A) and Mr P. Kurumchand (W7), of the Mauritius Revenue Authority (MRA), said that the accused company is not registered with the Customs (Doc. B). The case for the defence The defence closed its case without adducing any evidence. In his out-of-court statements, the representative said that he is the director of the accused, which is registered in his name with the Registrar of Companies, and that the other director, Mr Didier Tang Sip Shiong had nothing to do with the deal he made with Expand. He admitted that Expand remitted to the accused the sum of Rs1,077,65/- (a cheque for Rs77,65/- which was cashed on 16 May 011 and a sum of Rs1m through CIM) for the installation of air conditioning/purchase of air-conditioning, but that the work was not done and the company did not respect the delivery deadline of 15 September 011. The company has completed the electrical work, but there was a delay as they did not receive the equipment from abroad. He is ready to complete the works once he gets the equipment, which has arrived and is at the customs. On 6 February 01 at Phoenix police station Mr Yovan Fowdar identified him as the person to whom he remitted a cheque for Rs77,65/-. The accused is not registered with the MRA as importer or exporter: it goes through Goupille to import equipment. Goupille was late to deliver the equipment to the accused and did the work against their advice. Discussion It is averred that in or about September 011 the accused as represented did wilfully and fraudulently embezzle to the prejudice of the owner, money, which had been delivered to the said company for a work with a promise of remuneration with the condition that the same be used for a specific purpose, to wit: the sum of Rs1,077,65/- remitted by Expand Technology (Holding) Ltd, represented by its director one Mr Yovan Fowdar for the delivery and installation of air conditioners make Samsung. Section 333(1) of the Criminal Code reads as follows: Any person who embezzles, squanders away or destroys or attempts to embezzle, squander away or destroy to the prejudice of the owner, possessor or holder, any goods, money, valuables, security, bill, acquittance or other document containing or creating an obligation or discharge,

3 which has been delivered to such person merely in pursuance of any lease or hiring ( louage ), deposit ( dépôt ), agency ( mandat ), pledge ( nantissement ), loan for use ( prêt à usage ), or for any work with or without a promise of remuneration with the condition that the same be returned or produced or be used or employed for a specific purpose, shall be punished by imprisonment and a fine not exceeding 100,000 rupees. Our section 333(1) is equivalent to article 408, alinéa 1 of the French Code Pénal (Ancien) which reads as follows: Quiconque aura détourné ou dissipé au préjudice des propriétaires, possesseurs ou détenteurs, des effets, deniers, marchandises, billets, quittances ou tous autres écrits contenant ou opérant obligation ou décharge, qui ne lui auraient été remis qu'à titre de louage, de dépôt, de mandat, de nantissement, de prêt à usage, ou pour un travail salarié ou non salarié, à la charge de les rendre ou représenter, ou d'en faire un usage ou un emploi déterminé, sera puni des peines portées en l'article 406. Before considering the merits of the case, I will address the issue raised by the defence that the charge was not put to the representative when his defence statement was recorded. Rule II of the Judges Rules provides that As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence. There is no obligation on the police officer to put the charge to the person. In the present matter, the representative was duly cautioned and such caution contains the mention that he agrees to give a statement in the matter of OB140/10 Phx Embezzlement. Therefore, it stands to reason that the representative was aware that there had been a declaration of embezzlement against the accused and he replied to the particulars of the embezzlement that were put to him by the recording officer, namely the version of the complainant. Hence, the representative was aware of the charge and voluntarily gave the out-of-court statements. Coming back to the offence of embezzlement per se, in Dalloz Pénal, Abus de Confiance, note 7, it is said «L abus de confiance, tel qu il est défini par l article 408 du code pénal implique les éléments constitutifs suivants; 1 nature des choses sur lesquelles peut porter l abus de confiance; remise de la chose à titre précaire en vertu d un des contrats déterminés par la loi; 3 détournement ou dissipation; 4 caractère frauduleux du détournement ou de la dissipation; 5 préjudice.» The first element of the offence is explained in detail at note 8 as follows: «8. Les objets dont le détournement ou la dissipation peut servir de base à l abus de confiance sont limitativement énumérés par l article 408 du code pénal. Ce sont les «effets, deniers, marchandises, billets, quittances ou tous autres écrits contenant ou opérant obligation ou décharge, les valeurs immobilières, les effets de commerce, les billets de banque, en un mot tous les papiers qui représentent une valeur appréciable en argent pour la victime.» There is undisputed evidence from Mr Sanasy that Expand remitted a sum of Rs1,077,65/- (a cheque for Rs77,65/- credited on 16 May 011 and Rs1m through CIM) to the accused and the representative admitted the remittance of the said money. The question that arises now is whether the remittance was in pursuance of one of the contracts mentioned in section 333(1) and à titre précaire - see note 11, Dalloz (supra) which states that «11.

4 L auteur du détournement doit non seulement être entré régulièrement en possession de l objet détourné ; il doit en outre, l avoir reçu La remise doit avoir été faite à titre précaire à la charge de rendre ou représenter la chose, ou d en faire un usage ou un emploi déterminé.» Defence counsel has cited the case G. Gerard David v The State [003 SCJ 4] in support of his submissions. In that case the appellant had been remitted money to repair a house: the Supreme Court found that the money was remitted to the appellant as pay or salary to do as he wished with it and cited an extract from Garçon, Code Pénal Annoté, Livre III, article 408, as follows: The element of embezzlement does not reside, as is often wrongly understood, in a breach of any of the contracts referred to therein. It is found in the laying of one s hand on the property rights of the money or object which has been remitted to one not as owner but à titre précaire. So that a worker who squanders a sum of money remitted to him without accomplishing the work entrusted to him does not commit an embezzlement if that money was remitted to him as his pay or salary for the work to be done, because he received that money not à titre précaire but as owner with the right to dispose of it as he wished Au contraire, celui qui dissipe le salaire ou les honoraires qui lui ont été payés d avance pour faire un travail, et qui ne le fait pas, ne commet point un abus de confiance. Sans doute, il n exécute pas le contrat, les fonds lui sont remis dans un but déterminé, sa mauvaise foi est certaine et il trompe la confiance de son cocontractant. Mais l art. 408 ne sanctionne pas la violation des contrats qu il énumère; il a pour fin unique de protéger la propriété de la chose confiée à titre précaire en exécution de ces contrats, ce qui est bien différent. Or, les salaires sont remis, non à titre précaire, mais en propriété. En en disposant, celui qui les a reçus use de son droit et l exécution du contrat de travail ne peut donner lieu qu à une action civile V. supra, 1.0. The prosecution has adduced evidence, which has remained undisputed, that the money was remitted to the accused company for a specific purpose, that is, for the delivery and installation of air-conditioning at the premises of Expand. The delivery and installation of the air-conditioning included the purchase of the said equipment from Goupille, since as admitted by the representative, the accused did not import equipment. Therefore, the money that had been remitted to the accused company was à titre précaire since the condition was that it was to be used also to purchase air-conditioning equipment from Goupille. Therefore, the present circumstances can be distinguished from those in G. Gerard David v The State. However, the issue of the contract in virtue of which the money was remitted is a problematic one. It is to be noted that in Doc. E, which is dated 13 April 011, and has been identified as the offer made to Expand, the parties agreed on a fixed price, Rs1,55,500 (inclusive of VAT), out of which a sum of Rs1,09,53 is estimated for equipment and a sum of Rs306,07 is estimated for Installation and Commission for Eight outdoor units and 17 Indoor Units, Includes Cable Tray. Therefore, such sum is not exclusively for installation and there is no evidence how it was apportioned. The representative admitted in his statement that the sum remitted to the accused was for the purchase (delivery) and installation of the air-conditioners. The question is whether the remittance of money for the delivery and installation falls within the ambit of work with a promise of remuneration. It is said in Dalloz Pénal, Abus de Confiance, note 69 that «L article 408 s applique bien, en effet, aux détournements commis par les entrepreneurs d ouvrages par suite de devis lorsqu il est convenu que ces derniers fourniront seulement leur travail ou leur industrie».

5 In P. Mootoosamy v The State [009 SCJ 367] the Supreme Court cited Garçon, Code Pénal Annoté (1959 Edition), Article 408, to differentiate a remittance pour un travail salarié ou non salarié and a remittance in pursuance of contract of agency. I find pertinent the extract in respect of the former, as follows: «447 Les mots pour un travail salarié ou non-salarié visent le cas où l auteur du détournement s est engagé à accomplir pour autrui un travail matériel ou à lui rendre certains services qui ne constituent pas un acte juridique.» Furthermore, at note 70, Dalloz (supra) it is said «ne rentre pas dans les prévisions de l article 408 le contrat d entreprise par lequel un entrepreneur s engage à exécuter des travaux moyennant un prix forfaitaire et sans stipulation d honoraires». The accused falls within the definition of entrepreneur and it was not only providing its knowledge in installing air-conditioners in the premises of Expand, but was also providing the equipment that it had to purchase from Goupille, and Expand and the accused agreed on a fixed price of Rs1,55,500. Therefore, the agreement would be again excluded from work with a promise of remuneration. In the light of the above, there is no need for me to consider the other elements of the offence. Conclusion For all the reasons given above, I find that the prosecution has failed to prove the case against the accused company as represented beyond reasonable doubt. I accordingly dismiss the information against the accused company as represented. W. V. Rangan Magistrate Intermediate Court (Criminal Division) This 0 July 015

EASY WAY CATTLE OILERS LTD. and HER MAJESTY THE QUEEN. Heard at Saskatoon, Saskatchewan, on November 14, 2016.

EASY WAY CATTLE OILERS LTD. and HER MAJESTY THE QUEEN. Heard at Saskatoon, Saskatchewan, on November 14, 2016. Date: 20161128 Docket: A-432-15 Citation: 2016 FCA 301 CORAM: RENNIE J.A. DE MONTIGNY J.A. BETWEEN: EASY WAY CATTLE OILERS LTD. Appellant and HER MAJESTY THE QUEEN Respondent Heard at Saskatoon, Saskatchewan,