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Independent Commission Agaisnt Corruption v Y.

Bissessur & Anor

2018 INT 195

THE INTERMEDIATE COURT OF MAURITIUS

CN528/2013

In the matter of:-


Independent Commission Against Corruption

1. Yodhun BISSESSUR
2. Aneerood JEEBODHUN

JUDGMENT

1) Accused no.1 is charged with the offence of ‘Public official using office for gratification’ in
breach of section 7(1) of the Prevention of Corruption Act (hereinafter referred to as the
“POCA”) under Count I and ‘Public official using office for gratification’ in breach of
sections 7(1) and 83 of the POCA under Count II. He pleaded not guilty to both counts and
was assisted by Messrs A. Daby and T. Daby, counsel.

2) Accused no.2 is charged with the offence of ‘Public official using office for gratification’ in
breach of section 7(1) of the POCA under Count III. He pleaded not guilty to the charge and
was assisted by Mr A. Domingue, S. C.

3) Messrs A. Roopchand and H. Ponen, counsel of ICAC, led the prosecution.

4) The evidence for the prosecution and defence cover 721 pages. Part of the evidence adduced
by the prosecution, as well as a large part of the evidence adduced, and submissions offered,
on behalf of Accused no.1, are irrelevant to the issues before us. We therefore find no need
to reproduce the evidence in toto, but will summarise the material aspects.
The case for the prosecution

5) SI Dwarka (Witness no.15) read and produced two statements he recorded from Accused
no.1 (Documents A and A1), documents that Accused no.1 produced and documents secured
during the enquiry, namely:
 Executive Summary of Bid Evaluation Report (Document B);
 Letters dated 28 January 2011 and 16 November 2010 (Documents C and C1);
 Invoice dated 28 January 2011 for valuation of assets of Med Point Clinic (hereinafter
referred to as “Med Point”) from the Director Valuation and Real Estate Consultancy
Services (hereinafter referred to as “VRECS”) (Document D);
 Letter dated 25 January 2011 from the Ministry of Health and Quality of Life
(hereinafter referred to as “MOH”) (Document E);
 Hoolooman & Associates Ltd (hereinafter referred to as “Hoolooman”) Reconstruction
Cost Valuation Report dated 29 October 2010 (Document F);
 Letters dated 15 September 2010 and 27 July 2010 signed by Mr Hauroo (Documents
G/AE, J/Y);
 Letter dated 22 July 2010 signed by Mr Dabidin (Document K);
 Photocopy of a press communiqué in Le Matinal dated 3 May 2010 (Document L);
 Documents from the MOH for the acquisition of a building for the setting up of a
National Geriatric Hospital (hereinafter referred to as “NGH”) (Documents M, J,
H/AA).

6) SI Naiken (Witness no.1) read and produced statements of Accused no.1 that he either
recorded or witnessed, as well as documents that Accused no.1 produced to him, namely
certificates, diplomas, letters dated 19 July 2001, 5 August 2002 and documents in respect of
the status of the accused (Documents A2 to A12, N, P, Q, R, S, S1, S2, T, T1, V, W, X and
X1). He said that during the recording of Accused no.1’s statements the latter was
confronted with the documents marked as J/Y, H/AA, AH as well as the following:
 Letter dated 30 July 2010 addressed to Mr Hauroo (Document Z);
 Letter dated 27 August 2010 signed by Accused no.1 (Document AB);
 Mr Keenoo’s and Ms Bissessur’s workings dated 21 July 2010 (Documents AD and
AD1);
 List of items (Documents AE1 to AE12);
 Accused no.1’s Valuation of Plant, Machinery and Equipment (hereinafter referred to
as “PME”) of Med Point dated 10 November 2010 (Documents AF);
 Letter dated 11 November 2010 signed by Accused no.2 concerning the valuation of
Med Point (Documents AG and AG1);
 Letter dated 19 January 2011 signed by Ms Bissessur (Document AJ);
 Letter dated 18 January 2011 addressed to the MOH (Document AJ1).

7) According to SI Naiken the enquiry started with the press article in Le Samedi Plus and
when recording the defence statements of Accused no.1 he put allegations implying
illegality or malpractice to him. There was no prosecution regarding the bidding exercise
overseen by the Bid Evaluation Committee (hereinafter referred to as the “BEC”) or any
advice of cancellation and the “fast track” had logic behind it. The prosecution relied on the
views of witnesses, not all necessarily involved in the exercise: according to them there was
an issue of the basis of assessment, that is, Souillac Hospital and Ms Bissessur made an issue
about the type of valuation done. Ms Bissessur’s valuation was for land and building only,
but the second valuation was for equipment only/for land, building and equipment. It is
common for the VRECS to inflate or deflate figures according to judgment and knowledge.
The valuation of items of Med Point was not within Accused no.1’s “normal duties” and
would have conflicted with his duties and it was put to him that he had no right to claim
money (Documents L and M).

8) Inv. Monneron (Witness no.3) read and produced statements he recorded from Accused no.2
(Documents AT, AT1 to AT3) and produced documents that were shown to Accused no.2,
namely letter dated 16 November 2010, ‘Med Point Hospital Description’ and ‘External
works’ (Documents AU, AUI, AV and AW). He had no reason to doubt Mr Dabidin’s
instructions for the valuation of PME. He did not confront Accused no.2 with the ‘List of
items quoted as per the Bid document’ attached to the letter dated 15 September 2010
secured from the VRECS, but with the breakdown provided by Hoolooman for MEP. He
also showed him a list of sales evidence within the region of Phoenix, which was in file
VOGF/176, but it did not contain the sale by Sumboo to Moloo on which Ms Bissessur
relied. The disputes are about the value of the land and building, two valuations for the same
property and the rate per square foot of the building: each valuer explained how he arrived at
his figure and there is no statement that Accused no.2 inflated the figure.

9) Mr T. Banker (Witness no.19), Valuer, and Mrs T. Khedun-Seegobin (Witness no.20), Ag.
Dep. Director VRECS, both said that it was normal practice to use the Depreciated
Replacement Cost method (hereinafter referred to as the “DRC method”) and to request the
services of a Quantity Surveyor (hereinafter referred to as “QS”) when valuing specialised
properties such as hospitals (Documents AY/BP3, BP1, AZ, BP2 and BA). Mr Banker did
not request the services of a QS for his valuation of Avenue D’Arsenal Ltée, one of the
bidders for the NGH project, as there was a recent transaction of the said property. Mrs
Khedun-Seegobin wrote to the Ministry of Public Infrastructure (hereinafter referred to as
“MPI”) for the services of a QS, but as it did not materialise and the MOH requested the
final valuation she used the DRC method. The two valuers agreed that they would have
relied on a QS if they had to value Med Point.

10) The testimony of Ms R. Bissessur (Witness no.6), Dep. Director VRECS, is in a gist that as
Head of Section and in charge of the Vacoas/Phoenix area amongst others, she was
requested to carry out the valuation of Med Point in early August 2010. She, Mr Keenoo,
who worked under her supervision, and two technicians did the site visit and were showed
the whole property and Mr Keenoo took detailed notes. She used the comparative method to
value the land and the Contractors method to value the building, asking Mr Keenoo to use
the 2008 valuation of Souillac Hospital as a base, as agreed with Accused no.1, although
there is no mention of such instructions in her statement. She had been asked to assess the
rental value of one floor of Souillac Hospital. She relied on the cost of construction of
Souillac Hospital as a whole including all amenities, landscaping and parking and used a rate
pro-rata for the floor to be rented. The figures for Souillac Hospital were based on figures
for Dr Jeetoo Hospital, that Mr Domun, Deputy Chief Quantity Surveyor, gave her over the
phone in 2008. He told her that the contract for Souillac Hospital was awarded in 2001 at
Rs158m, was completed in 2006 at Rs187m and she used the higher figure: she was not
aware that the final cost was Rs235m, per the report of the Director of Audit. She used three
different rates without giving any explanation for it. She did not ask for or see the Bill of
Quantities (hereinafter referred to as “BOQ”) for Med Point and would not know what
specific equipment it had. They depreciated the costs by 30 per cent as Med Point was
constructed in 1995, to reach the final figure of Rs57,320,096 (Rs1432/sqft). For the land,
they took the basic rate of Rs7.5m/Arpent relying on recent sales evidence in the vicinity.
The total valuation of land and building was rounded to Rs75m on Accused no.1’s
recommendation. Thereafter, Accused no.1 Accused no.1 told Mr Keenoo and her that Mr
Malhotra was dissatisfied with the low value and asked them to accompany Accused no.2 to
the site. They went on site a second time as a QS was expected, but he did not attend. There
should not have been a second valuation of Med Point: it was not right that someone lower
in the hierarchy checked her work. In 2007 the inhabitants of Mare Chicose were displeased
with the compensation to be paid to them and she was instructed to give them the cost of
construction of new buildings, so she suggested to the Ministry of Local Government to
refer the matter to the MPI for a QS to evaluate the cost of reconstruction. She relied on the
range of figures Mr Domun provided and submitted a final amended list of compensation.
There were written instructions from the Ministry that additional compensation cost would
be based on the upper range.

11) Mr R. Keenoo (Witness no.18), Sr. Government Valuer, who worked on Ms Bissessur’s
team, was informed by her in mid-August 2010 that they were to do the valuation of Med
Point: they and two technicians did a survey on 4 October 2010 and took notes, but there
was no QS there. He discussed the valuation process with Ms Bissessur and he extrapolated
the figure that she had used for Souillac Hospital, took into account all the facilities and
time-factor inflation and proposed Rs2500/sqft. Ms Bissessur had relied on Mr Domun’s
information concerning tender figures. He discussed with Ms Bissessur and Accused no.1
and as there was no increase in cost of material for building, they opted for
Rs2045/sq.ft/Accused no.1 suggested Rs2045/sqft would be a fairer rate and agreed to use a
life expectancy of 50 years depreciated for 15 years. He adopted a rate of Rs7.5m/Arpent for
the land, as it was a developed site serviced with facilities, and the valuation was rounded to
Rs75m. The sales evidence nos.3 and 4 that Accused no.2 used have greater setbacks –
Documents BR and BS. They do not use latest sales, unless they show an upward trend and
he did not have confirmation of changes in the property market that warranted an increase in
the rate. In October and December 2010 the price of land increased to an average of Rs10m.

12) Afterwards Accused no.1 enquired from him and Ms Bissesur if the inspection had been
properly done, giving him the impression that they had not considered all the elements:
Accused no.1 asked them why they did not have recourse to a QS during the first exercise,
told them Mr Malhotra did not agree with the valuation and instructed them to re-inspect
Med Point with Accused no.2, who then became responsible for the valuation. He sent a
letter to the MPI for a QS to be present during the inspection of Med Point as requested by
Accused no.1 (Document BF). On 22 September 2010 Ms Bissessur, Accused no.2 and he
went to the site and met Mr Malhotra, Accused no.1 and other officers: after discussion Mr
Malhotra accompanied Ms Bissessur, Accused no.2 and he for the visit. He did another
inspection accompanied by a technician to see the infrastructure. No QS was present. Mr
Ramdyal of the MPI informed them that he would not be able to provide a QS and
mentioned the BOQ. The assessment of a specialised building based on a QS report would
be more appropriate and a QS was needed to estimate Med Point, which is a current practice.
The Hoolooman report gives an accurate picture of the premises at the time of his
inspections and he broadly agrees with the methodology used.
13) Mr J. Hauroo (Witness no.17) Dep. Permanent Secretary, Ministry of Social Security, was at
the MOH in 2007 up to February 2011 and reported to the Permanent Secretary, Mr Jugroo
or to Mr Dabidin. In July he chaired the BEC for the acquisition of land and building for a
NGH. At the first meeting on 13 July 2010 they examined the four bids and found two to be
responsive, but eventually asked for the evaluation of the lands and buildings of all four bids
for transparency. He confirmed the contents of his letters dated 27 July 2010, 18 August
2010 and 15 September 2010, which does not refer to a fresh evaluation of Med Point, and
of 30 September 2010 – Documents J/Y, H/AA, G/AE and BD. He does not know the tenor
of the conversation between Accused no.1 and Mr Dabidin. The gap of one month between
the visits to Med Point and Avenue D’Arsenal Ltée is because of instructions that priority be
given to Med Point. The BEC concluded that Med Point be awarded the contract for the
NGH for Rs144,070,000 on the basis of the valuation report, subject to negotiation because
the price quoted exceeded 15 per cent. He felt that Med Point was disqualified because of
the surface area and price. He agreed that in his statement he said that Mr Dabidin told him
the MOH had decided to retain a QS from the MPI to assist the VRECS to review the
Rs75m. He was working under pressure from Mr Dabidin and Minister M. Hanoomanjee.

14) Mr N. Jeetun (Witness no.7) Chartered Valuation Surveyor, working under the supervision
of Accused no.2, his Head of Section, accompanied the latter to a meeting at Med Point in
late September-beginning of October, a working day. They met Accused no.1 amongst
others and the latter instructed him to collect information for the valuation of plant and
equipment: Mr Andre and he collected information, as per a list of equipment, with the help
of a Biomedical Engineer, on six working days over a month, which he handed to Accused
no.1. A week later Accused no.1 instructed him to contact Messrs Payendee and Seetaloo to
collect information of the current market price of the equipment and he did so. He did the
exercise to expedite matters relating to the final figures and signed Documents C and D. He
did the valuation of land and building of one of the four bidders, SOS Nettoyage, entrusted
to him on 20 September 2010: he valued the property at Rs20m and then talked to Ms
Bissessur and increased it to Rs22m.

15) Mr J. J. R. Andre (Witness no.8), Principal Valuation Technician, was Senior Property
Referencer in 2011. He signed Document Z for Accused no.1 as instructed by the latter. He
accompanied and assisted Mr Jeetun at Med Point to check the list of items on two
occasions, during working hours.

16) Mr J. Jeewooth (Witness no.13), Manager Financial Operations at the MOH in April 2011,
was aware that Med Point was selected to be purchased for the project of a NGH and the
amount of Rs144,701,300 was paid and the purchase was finalised at the notary.

17) Mr N. Hoolooman (Witness no.21), Chartered QS and Managing Director of Hoolooman, a


company engaged in quantity surveying consultancy work and construction project
management amongst others, was asked to carry out a reconstruction cost valuation of Med
Point in 2010 and drew a report – Document H – and stated therein that the estimated
reconstruction (demolition and reconstruction) value of the building was Rs155,293,607.32
based on current rates and prices at the time. His firm was part of the team of consultants
which worked on the construction of the original building. He was not aware how his report
was to be used although the preamble in his report states it was to be used by the VRECS for
the valuation of the building, but this was taken from the letter of the VRECS (Documents
BG, BH and BK). His firm has not yet been paid (Documents BL and BL1). The
communiqué was because the press reports damaged the reputation of the firm.

18) Mrs A. S. Benyett (Witness no.11), Manager Human Resources, Ministry of Finance
(hereinafter referred to as “MOF”) in 2010 wrote the letter dated 13 January 2012 to the
ICAC Director – Document AM – following their request about Accused no.1 having the
authorisation to undertake private work and referred to section 11 of the Personnel
Management Manual (hereinafter referred to as “PMM”).

The case for the defence

19) The defence statements of Accused no.1 are in a gist as follows: in July 2010 the MOH
asked the VRECS to evaluate the land, building and PME of Med Point to enlighten the
BEC on the value of the property. The MOH also asked for the valuation of SOS Nettoyage,
Centre Pierre Janet and Avenue D’Arsenal Ltee. The requests were referred to Ms Bissessur,
Accused no.2 and Mrs Khedun respectively. He asked Ms Bissessur to put the valuation on
“fast track”. Ms Bissessur and Mr Keenoo used comparables dated 2003 to 2009 for the land
and the DRC method for the building. They saw him about the base rate for the building
(Rs2500/sqft based on the construction cost of Souillac Hospital in 2001, i.e. Rs187m
excluding PME) and after discussion they adjusted it to Rs2000/sqft. The valuation land and
building of Med Point at Rs75m was completed on 27 August 2010 and he endorsed the
letter dated 31 August 2010 to the MOH. Messrs Dabidin or Utchanah asked him during a
phone conversation to give urgent attention to the valuation exercise of Med Point. He
informed the MOH that the valuation of medical equipment and furniture was not within
their schedule of duties and that there would be a fee per item. Mr Dabidin told him over the
phone that the BEC had decided to value Med Point as a whole with items and he
understood that he was requested to value land, building and all items. On 15 September
2010 he received a letter from Mr Hauroo asking for the valuation all items in the building
of Med Point as per the bid document, which he understood to be a valuation of the whole
property. During a meeting he had told Ms Bissessur and Mr Keenoo to value the land and
building and items and she instructed Mr Keenoo to write to the MPI for the services of a
QS. He asked Accused no.2 to help out as he had experience in the valuation of specialised
properties and he signed the final valuation report. Mr Jhugroo, Supervising Officer,
informed him that Mr Malhotra complained that Ms Bissessur and her team had inspected
Med Point in less than 30mn without any internal inspection, which they denied.

20) On 16 and 20 September 2010 his team and technical staff from the MOH carried out
surveys, locating and identifying the items as per the list given by the MOH and Mr Jeetun
took notes. MOH officers checked all the apparatus and gave Mr Jeetun the current market
price of similar or identical items and later provided the price of 90 per cent of the medical
items, the rest being obtained from the internet. He valued the medical equipment of Med
Point, which exercise is not within his schedule of duties, although it was not a private
valuation but an official valuation done at the request of the MOH by his department under
his supervision. He drew a report for the valuation of PME with the assistance of Mr Jeetun
and submitted the report dated 10 November 2010 to the MOH officially and instructed
Accused no.2 to submit his and Hoolooman’s claims for fees to the MOH.

21) Mr Ramdyal of the MPI informed him that the quantity surveying exercise would take
months unless he had a copy of the BOQ, but the MOH did not provide it to them. On 18
October 2010 during a meeting the Financial Secretary (hereinafter referred to as “FS”)
instructed him to retain a private QS as the delay for the use of funds for the acquisition of
Med Point would lapse in December 2010, so he contacted Mr N. Hoolooman. Accused
no2’s valuation of Rs125m, based on the Hoolooman report, is realistic and fair and he was
justified to value the land at Rs10m/Arpent. At the time of finalising the second report
Accused no.2 “highlighted” to him to reconsider the rate of Rs7.5m/Arpent for the first
valuation, which was not adjusted for time, inflation, planning permission to operate as a
clinic and that part of the land was included in a common and party road, sale of properties
in the area was at Rs10m/Arpent, and since in 2001 and 2002 land found at the green wedge
where development was not allowed was assessed at Rs7m/Arpent. Ms Bissessur’s valuation
using the comparative method was obviously lower.

22) He denied that he told Ms Bissessur to round the valuation of Med Point to Rs75m, that he
told Mr Keenoo and Ms Bissessur that Mr Malhotra found the valuation low and did not
want to see them, but that he was giving them a chance to do a site visit again and to take
Accused no.2 with them, that he told Mr Keenoo to send a letter to the MPI for a QS and that
there would be a site visit at Med Point on 22 September 2010. It could be that he told
Accused no.2 on 21 September 2010 that there were complaints that the price was too low
and to redo the survey and retain a QS to avoid pressure from the MOH.

23) Deposing in court Accused no.1 confirmed that he gave several statements to the ICAC
wherein he explained the way he exercised his duties regarding the disposal of the file for
the acquisition of Med Point. His office was involved in the valuation of Med Point, initially
for the evaluation of bids and later for acquisition. The valuation was entrusted to Ms
Bissessur and Mr Keenoo in the first instance and they discussed the rate being adopted for
the valuation of land and building only, without equipment or associated items. Ms Bissessur
used the comparative method for the land and the Contractors method for the building, i.e.
the rental value of Souillac Hospital and no QS was used. He did not, following discussions
with Ms Bissessur and Mr Keenoo, propose a figure or reduce the figure they proposed. He
agreed with the methodology they applied for the valuation, and with their figure and
initialled on the letter of 27 August 2010 meaning that he noted the contents and the registry
could process it. The letter dated 15 September 2010 refers to a conversation he had with Mr
Dabidin wherein the latter told him that the MOH required the valuation of land, building
and equipment and he had to fast track the exercise (Documents BP, BP1 to BP3). At the
meeting on 18 October 2010 the FS suggested and authorised him to seek the services of a
private QS and the delay to use the funds for the acquisition of Med Point was discussed, but
they were already looking for a QS from the MPI. It is normal practice for a valuer using the
Contractors method to use a QS. He did not use the bid document and the items listed as an
excuse to do the second valuation to inflate the value of Med Point for its acquisition. The
Supervising Officer of the MOH told him that Mr Malhotra was not satisfied with the way
his officers did the survey. He never told Accused no.2 that there was pressure from the
MOH, complaints against the VRECS, the price was low and the work had to be done again.
He could have used such words, but not all: what Accused no.2 said could be an after-
thought/was false.

24) The valuation of equipment of Med Point was not a private valuation, but one for the MOH
and he claimed a fee for it as it was not part of his schedule of duties and Section 18.7 of the
PMM and the PRB Report 2008 allowed him extra remuneration for anything done outside
his schedule of duties (Document BN). The work was done outside normal working hours
using his computer and Internet facilities. He did not use State logistics and did not charge
anything for it.

25) Accused no.2’s defence statements are in essence that he holds the post of Head Valuer since
2005 and is answerable to Accused no.1. On 21 September 2010 Accused no.1 told him
about Mr Malhotra’s complaints of the hasty survey and low price and pressure from the
MOH: he was surprised as the valuation report was confidential. Accused no.1 instructed
him to join Ms Bissessur’s team for the valuation of items in Med Point building, to do the
work correctly and use a QS, as per MOH letters dated 29 September 2010 and 18 October
2010. At the time he was aware that the first valuation report had been submitted to the
MOH and of the request of the MOH. He has not come across a situation where a fresh
valuation was done for the same property. He accompanied Ms Bissessur and Mr Keenoo for
site visits and surveys on 22 and 24 September 2010. There was no QS present on both
occasions. The letter dated 15 September 2010 refers to the valuation of items in the building
and does not request the valuation of land and building, but mentions a conversation
between Accused no.1 and Mr Dabidin, the tenor of which he is not aware.

26) Mr Ramdyal informed him that he would be able to provide him with the current
reconstruction cost if he were given the BOQ. On 18 October 2010 Accused no.1 informed
him that following a meeting with the FS, the MOH agreed that a private QS be retained and
he wrote to Hoolooman, as instructed by Accused no.1, for the estimate of the current cost of
construction and copied the letter to the FS and the MOH. He was not requested to conceal
the BOQ that Mr Malhotra had given him and did not find it important to put it in the file.
He did the valuation based on the Hoolooman report and rounded the current reconstruction
cost to Rs155m. He took into account wear and tear, life expectancy and age of the building
and deducted 15/45 from Rs155m to which he added the value of the land, Rs24,550,000
which he rounded to Rs125m. He did not use comparables as there were not enough of
those, it was a specialised building and he got clear instructions since 21 September 2010 to
use the services of a QS. The figure obtained through the QS method is much higher than
that of the comparative method and Ms Bissessur’s figure “was better off” than the one
using the QS method from the standpoint of Government Expenditure, but the reports were
on different assumptions. He discussed the difference of Rs50m with Accused no.1 who told
him the figure was all right and Accused no.1 later forwarded the figure of Rs20m for him to
add to his valuation of Rs125m for submission to the MOH. Accused no.1 instructed him to
sign and send the letter dated 11 November 2010 and dictated the contents of the letter dated
16 November 2010 that he signed and sent the MOH.

27) The land of Med Point cannot be compared to a residential area, as it is a mixed area: he
used the sales evidence as an experienced valuer and relied on his personal judgment and he
considers that Rs10m/Arpent is fair and reasonable. He used the latest sales evidence Mr
Keenoo gave to him and which were found in residential areas nearby to value the land of
Med Point. When he received the QS report from Hoolooman he asked Accused no.1 about
the rate to be used for the valuation of land and he complied with his instructions to use the
sales evidence of two portions of land at the rear of Gibbs at about Rs10m/Arpent. He did
not verify the sales, as the title deeds were not yet ready at the time. After his valuation, the
values of land and building have increased.

28) Accused no.2 deposed under oath. He confirmed the truthfulness of all the statements he
gave to the ICAC and the facts therein. On 21 September 2010 Accused no.1 asked him to
join Ms Bissessur’s team for the valuation of Med Point and he was aware then that Ms
Bissessur had submitted a first valuation report. Accused no.1 said there was a complaint
about the length of the inspection and the value, but this was not the reason Accused no.1
came to see him to find means and ways to increase the value. Initially Ms Bissessur led the
team and afterwards he did. Ms Bissessur’s valuation dated 27 August 2010 was in respect
of land and building only, excluding equipment. Her sale comparable of 1 Arpent of bare
land was closer to Med Point than his, but was dated 2008. She could have used two sales
comparables dated June 2010 sold at Rs12.5m/Arpent and Rs12m/Arpent, both bare land
with common and party road (Documents BR and BS). His valuation dated 11 November
2010 is based on two sales evidence at Paillotte, sold at Rs10.3m/Arpent and
Rs10.4m/Arpent respectively. He has adopted the rate of Rs10m/Arpent for the land taking
into account its site improvements and size.
29) The disagreement between Ms Bissessur and he was about the rate per Arpent and per sqft.
Ms Bissessur worked on the basis of rental valuation of part of Souillac Hospital based on
the tender figures dated 2001 Mr Domun gave her by phone, but she does not mention the
area of the building in her report. Based on her analysis the building would be about 110,000
sqft and assuming inflation at 10 per cent she should have got a figure and not a range. He
got the final cost of Souillac Hospital, which was Rs235,062,548 as at June 2006 so, the base
of Rs187m on which she relied was flawed (Document BT). It was unprofessional for Ms
Bissessur to rely on information obtained over the phone in relation to bids in 2001 and a
previous report dated 2008 regarding rental value to prepare a report based on replacement
cost.

30) The VRECS has had to value specialised buildings in the past: Mr N. Dilmohamed did the
valuation for Dubreuil, requested by the Ministry of Agriculture, and he sent a letter to the
MPI asking for advice on current replacement cost (Document BU). Mr Ramrekha did the
valuation for Stratford College, a specialised building, in 2001 and relied on the DRC cost
report of the MPI. In the course of the valuation of houses at Mare Chicose, the VRECS had
the assistance of a MPI QS, and Ms Bissessur increased her valuation several times.

31) He did not value Med Point by seeking the services of a QS upon the instructions of
Accused no.1: Mr Keenoo had already written to the MPI for a QS. As instructed he asked
for the assistance of a MPI QS and it was denied due to lack of resources, so the authorities
decided to retain a private QS, Hoolooman. During the recording of his statement Inv.
Monneron showed him a breakdown of MEP by Hoolooman, which is not in the Hoolooman
Report (Document BV). He has used the replacement cost given by Hoolooman which he
rounded to Rs155m (Rs3872.30/sqft) and then applied the depreciation of 33.3 per cent
based on the ratio 15/45, obtaining Rs103,333,333 and he added the estimated value of land,
Rs24.55m, arriving at Rs127,883,333 which he rounded to Rs125m. He cross-checked this
value with the construction cost of Dr Jeetoo Hospital (Rs3818.77/sqft) (Document BW). He
never inflated the figure for Med Point, but used International Valuation Standards
(Documents BX and BY). When he said in his statement that “The figure obtained through
QS method is considerably higher than that of comparative method” he meant that the
method Ms Bissessur used was less than the DRC method in terms of expenditure. He did
say in his statement that the value he got was higher than that of Ms Bissessur and this was a
matter of concern which he raised with Accused no.1 and the latter said to go according to
the report of Rs125m.

32) Mr T. Jugun, Deputy Director VRECS, produced the valuation report of Mr N. Dilmohamed,
former Dep. Chief Government Valuer (hereinafter referred to as “CGV”), for Dubreuil Tea
Factory, QS report, Accused no.2’s tentative valuation report of Stratford College, Mr F.
Ramrekha’s letter seeking the advice of the MPI on the reconstruction cost of the college,
reply of the MPI, report of the MPI QS and Mr Ramrekha’s final valuation (Documents BZ,
CA, CB, CC, CD, CE and CF). Mr N. Dilmohamed, Certified Practising Valuer, identified
Document BZ as the valuation report for Dubreuil Tea Factory, a specialised building and
confirmed that they resorted to the DRC approach in the absence of sale of factory buildings,
and therefore called for a QS report. According to Mr F. Ramrekha, former CGV, it would
appear that they sought the advice of a MPI QS for the valuation of Stratford College and
relied on that report to arrive at the open market value. The Ministry of Education was
proposing to acquire the property and this provoked the valuation.

33) Mrs P. Mohun, Head Examiner of Accounts, National Audit Office, produced a certified
extract of the National Audit Report 2005/2006 in respect of New Souillac Hospital
(Document CH). Mr L. Halkharee, Snr Auditor, conducted an audit into the New Souillac
Hospital project which was completed in 2006 and the total amount spent was Rs235m,
which included the payments to contractor and contract manager. Mr S. Munoruth, Manager
Financial Operations, MOH, produced a practical completion certificate in respect of New
Souillac Hospital and the final payment was Rs221,493,511.38 as at April 2015 (Documents
CJ and CK).

34) Inv. Monneron produced the document that he showed to Accused no.2 when he recorded
his statement (Document CL). He showed Documents AH and CL (drawn by Accused no.1)
to Accused no.2 and neither document gave the breakdown for MEP. He did not show
accused Document BV as he referred only to documents in file VOGF/176. The document
showed to Accused no.2 was the same as Document CL, but another witness, Ms S.
Mosaheb, produced it (Document CR).

35) Mr A. Ramlagan, Lead Government Valuer, said that the acquisition of dwelling houses at
Mare Chicose was a relocation of the inhabitants and the Government was negotiating with
the owners. Ms Bissessur did the valuation exercise and submitted a report dated 7 March
2007 (Document CM). She revised it, increasing the value by Rs23m on 19 September 2007
on the basis of QS report of the cost of residential buildings from the MPI (Document CN).
He understands that Ms Bissessur retained a QS for a further valuation because the
inhabitants protested against the first valuation.
Discussion

Public official using office for gratification – Count I

36) It is averred under Count I that Accused no.1 “did wilfully, unlawfully and criminally make
use of his position for a gratification for another person”. The particulars of the offence are
that Accused no.1 “whilst being the Director of the Valuation Office, used his position to
inflate the initial assessment figure of Land and Building of Med Point Hospital Ltd from
Rs75 million to Rs125 million for the benefit of shareholders” in breach of Section 7(1) of
the POCA, which reads as follows:

Subject to subsection (3), any public official who makes use of his office or position for
a gratification for himself or another person shall commit an offence and shall, on
conviction, be liable to penal servitude for a term not exceeding 10 years.

37) Mr A. Daby, counsel for Accused no.1, cross-examined SI Naiken on whether he put the
charge to Accused no.1. It appears from the tenor of the cross-examination that defence
counsel was referring to the charge under Count 1, although he did not offer any submissions
on this issue in relation to Count I, but restricted such submissions to Count II. Still, since
the issue of the charge under Count I being put to Accused no.1 or not has been raised, it is
incumbent on the court to consider it.

38) We have scrutinised the thirteen defence statements of Accused no.1, which have all been
recorded under caution, and although SI Naiken has not specifically put it to Accused no.1
that he acted “wilfully, unlawfully and criminally” and that he had committed the offence of
‘Public official using office for gratification’ in breach of Section 7 of the POCA, the
questions that he put to Accused no.1 were of such nature that the latter was sufficiently
made aware of the nature of the offence he was suspected of having committed to be able to
answer, which he did by refuting the allegations that he purposely caused a second valuation
to be done to inflate the initial assessment figure. We refer specifically to the statements
dated 25 March 2011, 1 April 2011, 6 April 2011, 14 July 2011 and 6 July 2011 –
Documents A3, A5, A7, A10 and A11. In the circumstances, we find that there is no breach
of Section 10 of the Constitution or of Rule II of the Judges Rule.

39) We shall now consider the merits of the charge under Count I. The elements of the offence
under Section 7 of the POCA are succinctly set out in Jhurry v ICAC & Anor [2015 SCJ
258], as follows:

“Section 7(1) creates an offence which contains the following constitutive elements of an
offence which it is incumbent upon the prosecution to prove beyond reasonable doubt:
(1) the person charged is a public official;
(2) he made use of his office or position as a public official;
(3) in order to obtain a gratification either for himself or for another person.”

Was Accused no.1 a public official in or about September 2010?

40) Public official’ is defined at section 2 of the POCA as follows:

“public official” –

(a) means a Minister, a member of the National Assembly, a public officer, a


local government officer, an employee or member of a local authority, a member
of a Commission set up under the Constitution, an employee or member of a
statutory corporation, or an employee or director of any Government company;
and

(b) includes a Judge, an arbitrator, an assessor or a member of a jury;


41) There is no dispute that Accused no.1, who held the post of Director VRECS, as from 29
September 2006 – see Documents X and X1 – was a public official within the meaning of
section 2 of the POCA at the material time.

Did Accused no.1 make use of his position at the material time?

42) We gather from the evidence adduced by the prosecution and the submissions of Mr
Roopchand that the case for the prosecution is that after Accused no.1 had ratified Ms
Bissessur’s initial assessment and was informed of Mr Malhotra’s complaints that the price
was low, he instructed Accused no.2 to carry out a second valuation of Med Point using the
DRC method/Contractors method knowing that the value would increase and that the
gratification would be the difference between the two values.

43) There is undisputed evidence on record that Ms Bissessur had done a valuation of Med Point
and had forwarded her findings to the MOH after having conferred with Accused no.1 who
initialled on her letter dated 27 August 2010, therefore giving his assent to the valuation.
There is also evidence that the MOH conveyed the decision of the BEC to request for the
valuation of all items in the building of Med Point to Accused no.1 in the letter dated 15
September 2010 – Document G/AE. There is no specific mention, in the said letter, that the
MOH requested that the land and building be valued again and Mr Hauroo also said that the
document does not refer to a fresh valuation, but there is evidence from Accused no.1 that
Mr O. K. Dabidin, Ag. Permanent Secretary at the MOH at the time, had told him during a
phone conversation that the MOH urgently required the valuation of the whole property of
Med Point. Mr Dabidin, who is listed at Witness no.5, was not called as witness by the
prosecution so that the evidence of Accused no.1 that the VRECS was to do the valuation of
the entire property of Med Point has remained unrebutted. It is to be noted that Mr Hauroo
referred to such phone conversation in his letter, but explained in cross-examination that he
was not privy to the said phone conversation. Therefore, we find that there subsists doubt as
to the purport of the letter and whether the request was limited to the valuation of equipment
or extended to the valuation of the whole property.

44) We wish to point out that the BEC, chaired by Mr Hauroo, which was set up to examine,
evaluate and compare the bids received and which had asked for the valuation of the
property of Med Point and all the items found in the building, did not find anything amiss
with the valuation report under the signature of Accused no.2 and acted upon such report to
award the contract to Med Point. It is clear from the Public Procurement Act 2006
(hereinafter referred to as “PPA”) and Public Procurement Regulations 2008 (hereinafter
referred to as “PPR”) that the BEC has the responsibility of ensuring that any request and
any subsequent report in relation to bids are scrutinised. It would have been perfectly
appropriate for that instance to remit back the valuation report dated 10 November 2010 if
there had not been any request from it or from the MOH to do a second valuation of the
whole property, meaning land, building and equipment. The court is still in the dark about
whether there had been any query from the BEC/MOH on the second valuation report, thus
undermining the case for the prosecution.
45) In so far as the question of methodology is concerned, the submissions of the prosecution are
that the DRC method and recourse to a QS are used whenever a valuer wants to inflate an
assessment. There is unrebutted evidence from witnesses from the prosecution and defence
that the DRC method and the services of a QS, who would have the required skill to give an
estimate of reconstruction cost, are routinely used and requested respectively for the
valuation of specialised properties. Furthermore, Ms Bissessur admitted that she herself had
found it appropriate to request the services of a QS when she had to assess the properties at
Mare Chicose.

46) We also take into consideration the fact that Ms Bissessur stated that she relied on the cost of
construction of Souillac Hospital as comparable, whereas from the Report of the Director of
Audit produced by the defence – Document BT – showed that the cost of construction was
finally not Rs187m, but Rs235m. We also note that the bid for Souillac Hospital was dated
2001 and the project was completed in 2006. Therefore, the basis for Ms Bissessur’s
assessment appears to be unsound and moreover, Souillac Hospital could not have been
considered as a recent transaction for the valuation of Med Point.

47) In so far as the second valuation of the land is concerned, there is evidence on record that
several methods of valuation can be used to assess the value of land and that the direct
comparison method is used when there are sales evidence. In that context Accused no.2
cannot be taxed for having used the more recent and established comparables available to
him at the time he drew his report dated 10 November 2010, irrespective of Accused no.1
instructing him to use two sales evidence located at the rear of Gibbs. Moreover, there is
evidence on record that the price of land in the vicinity of Med Point then analysed at about
Rs10m/Arpent – see Documents BR and BS. It is to be noted that none of the prosecution
witnesses gave evidence to the effect that Accused no.2’s assessment of the land of Med
Point was intentionally inflated.

48) We wish to point out that it is clear that the purpose of the valuation of Med Point was for
the acquisition of the property for the setting up of a NGH and that such acquisition was not
compulsory. Therefore, the evidence of Ms Bissessur that the proper recourse of the owner,
if he were not satisfied with the assessment, was to a Board of Assessment, is untenable.

Did Accused no.1 so act to obtain a gratification for another person?


49) ‘Gratification’ is defined at section 2 of the POCA as follows:

“(a) means a gift, reward, discount, premium or other advantage, other than lawful
remuneration; and

(b) includes -
(i) a loan, fee or commission consisting of money or of any valuable security or
of other property or interest in property of any description;
(ii) the offer of an office, employment or other contract;
(iii) the payment, release or discharge of a loan, obligation or other liability; and
(iv) the payment of inadequate consideration for goods or services;

(c) the offer or promise, whether conditional or unconditional, of a gratification;”

50) Since we have found that the evidence adduced by the prosecution failed to establish their
case that the Accused no.1 made use of his position at the material time, the element of
‘gratification’ need not be considered.

Public official using office for gratification – Count II

51) Under Count II it is averred that in or about September 2010, at Ebène, Plaines Wilhems,
Accused no.1 “did wilfully, unlawfully and criminally make use of his position for a
gratification for himself”. The particulars of the offence are that Accused no.1 “whilst being
the Director of the Valuation Office, knowingly instructed his subordinate officers to
conduct a survey for the valuation of medical equipments at Med Point Hospital within
official working hours by using State logistics for a fee for himself when he was not
authorized to do so” (sic). The said charge is under Section 7(1) of the POCA (which has
been already reproduced above) and also under Section 83 of the said act, which reads as
follows:

In the course of a trial of an accused for a corruption offence, it shall be presumed


that at the time a gratification was received, the recipient knew that such gratification
was made for a corrupt purpose.

52) Mr A. Daby submitted that the charge under Count II “was never put in its present format to
the effect that is was not authorised to conduct the survey” (sic) and added that “valuation”
had been removed. In fact the word “valuation” has not been removed but the words “a
survey for” have been added to precede it. We find no merit in his argument.
53) After having perused the defence statements of Accused no.1 recorded under caution, we
take into account that in the statement dated 26 July 2011 – Document A11 – at Question 18
SI Naiken asked Accused no.1 “whether it is normal that you use your officers during
working hours to perform private duty in relation to the valuation of equipment at Med Point
Hospital?” We therefore find that although it was not formally put to Accused no.1 that he
acted “wilfully, unlawfully and criminally” and was in breach of Sections 7 and 83 of the
POCA and had committed the offence of ‘Public official using office for gratification’, he
was sufficiently made aware of the nature of the offence he was suspected of having
committed to be able to answer, and he did so by saying that the valuation of equipment of
Med Point was not a private one, but an official one done at his department under his
supervision. In the circumstances, we find that there is no breach of Section 10 of the
Constitution or Rule II of the Judges Rule.

54) On the merits of Count II, we have already referred to the case of Jhurry in respect of the
elements of the offence and to the definition of ‘public official’ at Section 2 of the POCA.
They are similarly relevant to Count II.

Was Accused no.1 a public official in or about September 2010?

55) As stated earlier, Accused no.1 has been the Director VRECS since 2006 and therefore was
a public official within the meaning of Section 2 of the POCA in or about September 2010.

Did Accused no.1 make use of his position at the material time?

56) In 2006 Accused no.1 sought the authorisation of the FS to undertake private valuation of
assets, valuation for loan purposes and valuation in relation to book value in company
accounts and he was given the authorisation to undertake “valuation of properties for
parastatal and non-Government bodies against remuneration provided that such
assignments would not conflict with the interest of the office of your post and should be
carried out outside normal working hours.” (sic) – see Document AM. The Internal Circular
No.2 of 2011, dated 21 July 2011, issued by the MOF, lapsing all previous authorisation to
undertake private work obtained before the circular, did not apply to Accused no.1 since he
carried out the valuation of the assets of Med Point in 2010.

57) There is undisputed evidence on record that the BEC, through a letter dated 15 September
2010 under the signature of Mr Hauroo of the MOH addressed to the CGV – Document
AE/G – informed him that all the items in the building of Med Point had to be valued and
requested him to arrange for a survey to be done to that effect. The MOH also authorised the
CGV to ask for supporting technical staff and requested that the valuation be submitted
within a week. Since technical supporting staff would be available, the fact that Accused
no.1 did not have any experience in the valuation of medical equipment is irrelevant. It is to
be noted that all the correspondence in relation to the valuation of items in the Med Point
building were addressed to Accused no.1 in his capacity as CGV and that the letter dated 29
September 2010 was copied to Mr Jeetun.

58) The prosecution has established through the evidence of Mr Jeetun that Accused no.1 gave
him instructions to carry out a survey of the existing equipment at Med Point, which he did
during working hours, over a month, on six non-consecutive working days, with the help of
Mr Andre. There is also evidence that Accused no.1 directed him to call Mr Payendee,
Biomedical Engineer and Mr Seetaloo, Surgical Technology Supervisor, for information
about the current market price of the said equipment. Contrary to the contention of Accused
no.1, taking notes would form part of a survey, the ordinary dictionary meaning of which is,
amongst others, “examine and report on the condition of (a building), especially for a
prospective buyer” – Concise Oxford English Dictionary, Tenth Edition Revised.

59) The valuation of assets was requested by the BEC for the purpose of acquisition of property
by Government. It would appear a priori that in valuing the medical equipment of Med Point
at the request of the BEC, Accused no.1 did not do a valuation for a parastatal or non-
Government body, even though the property was private property. However, during her
deposition in court Mrs Benyett confirmed that Accused no.1 was authorised to do “private
work” – see Document AM – and in the letter she forwarded to the ICAC she referred to
Paragraph 2.9.2 (1) of the PPM (Annex 2) which specifies that “An Officer may, subject to
the approval of his Supervising Officer, be exceptionally authorised to undertake private
work, where the work is performed outside official working hours…”. The question that
arises is whether Accused no.1 undertook “private work” when he gave instructions for the
survey of Med Point. The prosecution has not adduced any evidence of what constitutes
“private work” and we have perused the PMM and have not found any definition of “private
work” under the heading ‘Interpretation’.

60) The duties of the CGV are listed in the Scheme of Service (Regulation 15, Public Service
Commission Regulations 1967) – Document BQ – and it is not provided therein that a CGV
can value items such as medical equipment. However, although Accused no.1 has admitted
in his defence statement dated 24 February 2011 that the exercise of valuing medical
equipment was not within his schedule of duties and that he claimed a fee for such valuation,
he maintained that he did not do a private valuation, but an official one for the MOH. We
find that there is no sufficient evidence on record to conclude that since the valuation of all
assets of Med Point does not figure in Accused no.1’s scheme of duties, it is inevitably to be
construed as “private work”. We find in the light of the evidence on record, namely that
Accused no.1 in his capacity as CGV was requested to do the valuation of all items in the
building at Med Point including medical equipment, that he enlisted the help of his
subordinates and that the MOH authorised the request for technical support staff and asked
that the matter be with celerity, and in the absence of any definition of “private work”, it
cannot be said that he unlawfully gave instructions for the survey to be carried out within
working hours using State logistics when he was not authorised to do so.

Did Accused no.1 so act for a gratification for himself?

61) There is evidence on record, and it is admitted by Accused no.1, that he invoiced the MOH
for the valuation of assets, as per the letter and Invoice signed by Mr Jeetun – Documents C
and D. It is on record that Accused no.1 has not yet been paid, but this is irrelevant inasmuch
as it is not necessary for the prosecution to prove that the offender received the gratification,
as the Supreme Court found in N. Joomeer v The State [2013 SCJ 413]:

“ [42] As regards element (c) which has to do with gratification, learned counsel for the
appellant submitted that the appellant had received no gratification in the matter… In
fact, under this section of the law, it is not material that someone who is using his office
or position should have actually obtained the gratification he is looking for. It is enough
that he is abusing his office or position for the purpose of a gift, reward or other such
advantages but also for an offer or promise, whether conditional or unconditional of such
a gift, reward or other advantage.

[43] The opprobrium lies in the abuse or misuse of the office or the position as a public
officer for a gratification. Whether the gratification is received or accepted is not part of
the elements of the offence even if the reception or the acceptance adds further evidential
weight to prove that the abuse of office was “for gratification.”…”
62) However, since we have found that Accused no.1 did not unlawfully give instructions to his
subordinate officers to do the survey when he was not authorised to do so, the issue of
gratification need not be considered.

Public official using office for gratification – Count III

63) Accused no.2 is prosecuted under Section 7(1) of the POCA and it is averred under Count III
that in or about September 2010 at Ebene, Plaines Wilhems, Accused no.2 “did wilfully,
unlawfully and criminally make use of his position for a gratification for another person”.
The particulars of the offence are that he “carried out a second valuation exercise of Med
Point Hospital by adopting measures to inflate the initial assessment figure for the benefit of
its shareholders”.

64) As stated above, the prosecution has to prove beyond reasonable doubt that Accused no.2
was a public official at the material time, that he made use of his office or position as a
public official, in order to obtain a gratification either for another person – per Jhurry.

Was Accused no.2 a public official in or about September 2010?

65) It is undisputed that Accused no.2, who held the post of Lead Government Valuer as from 12
February 2005 – see Documents X and X1 – was a public official within the meaning of
Section 2 of the POCA at the material time (already reproduced at paragraph 40 of this
judgment).

Did Accused no.2 make use of his position at the material time?

66) Mr Domingue submitted that the date of the offence in the Information is September 2010,
but that Accused no.2’s report is dated 11 November 2010 – Document AG – and that he is
charged with having done a second valuation by adopting measures to inflate the first
assessment, but that the case put to him during the trial and the submissions of the
prosecution are that he followed the instructions of Accused no.1 to resort to the services of
a QS. Mr Roopchand replied that the valuation process was an ongoing one which
materialised in the report dated November 2010.

67) Since Accused no.2 admitted in his defence statement dated 25 March 2011 that he had been
clearly instructed since 21 September 2010 to use the services of a QS, even if his report is
dated 10 November 2010 the retaining of the services of a QS had been decided well before
and therefore the valuation process had started since September 2010. In the circumstances,
Count III of the Information is not wrong in law.

68) Defence counsel submitted that even if Accused no.2 received and followed the instructions
of Accused no.1 this does not mean he is guilty under Section 7 of the POCA inasmuch as
the two accused are not jointly charged with the same offence and each count is deemed to
be a separate information. Counsel cited Bhunoo v The Queen [1970 MR 70] in support of
his submissions. The ratio in Bhunoo indeed bears repetition, as follows:

“In a number of cases this Court has ruled that each count in an information is for
the purposes of evidence and judgment a separate information. This principle is
perhaps made clearer still in the following passage in Latham v. R 5B & S 635
(reproduced in the English Reports in vol. 122 at p. 970):

...where an indictment consists of several counts, they are to all intents


and purposes several indictments, and the same as if separate Juries were
trying them”

69) The fact that Accused no.1 gave instructions to Accused no.2 and that the latter acted upon
them does not per se establish the malicious intention of Accused no.2 to inflate the first
assessment figure of Med Point.

70) The defence was not provided with the particulars of the measures Accused no.2 adopted to
inflate the assessment figure and it is apparent from the defence statements of Accused no.2
and his cross-examination in court that the case for the prosecution is that he was aware of
the first valuation done by Ms Bissessur, that he got instructions to do a second valuation
and to retain the services of a QS. It would appear that the measures adopted to inflate the
assessment figure are the recourse to the services of the QS. There is ample evidence on
record from prosecution witnesses that Med Point is a specialised building and from both
prosecution and defence witnesses that the valuation of specialised properties is currently
done using the DRC method/Contractors method and that the use of the services of a QS to
value Med Point was nothing unusual. It is to be borne in mind that there is unrebutted
evidence on record that there were instructions from the MOH/FS to retain the services of a
QS, be it from the MPI or a private one, for the valuation of Med Point.

71) The issue of the methodology adopted by Accused no.2 would also arise here. As we have
said earlier, Mr Roopchand submitted that the DRC method and recourse to a QS are used
whenever a valuer wants to inflate an assessment. However, the witnesses of the prosecution
and defence are all united in their evidence that the DRC method and the services of a QS,
who would have the required skill to give an estimate of reconstruction cost to value
specialised properties, was and is a common occurrence and such evidence has not rebutted.
We have also evoked the fact that Ms Bissessur admitted that she herself had found it fitting
to request the services of a QS for the assessment of the properties at Mare Chicose.
Therefore, it cannot be said that valuers systematically use the DRC method to inflate
figures and that Accused no.2 wilfully adopted measures to inflate the first assessment figure
of Med Point.

72) Furthermore, Ms Bissessur said she that relied on the cost of construction of Souillac
Hospital as comparable, whereas the Report of the Director of Audit produced by the
defence – Document BT – revealed that the cost of construction was not Rs187m but
Rs235m. Moreover, there is undisputed evidence on record that the bid for Souillac Hospital
dated back to 2001 and the project was completed in 2006, so that the basis of Ms
Bissessur’s assessment appears to be unsound. Souillac Hospital could not have been
considered as a recent transaction for the valuation of Med Point either.

73) As regards the second valuation of the land, as we have said earlier there is evidence on
record that several methods of valuation can be used to assess the value of land and that the
direct comparison method is used when there are sales evidence. Therefore, the fact that
Accused no.2 used the more recent comparables available to him at the time he drew his
report dated 10 November 2010, irrespective of Accused no.1 instructing him to use two
sales evidence located at the rear of Gibbs, cannot be held against him. There is undisputed
evidence on record that land in the vicinity of Med Point was at the time sold for about
Rs10m/Arpent – see Documents BR and BS. Moreover, prosecution witnesses did not give
evidence that Accused no.2’s assessment of the land of Med Point was intentionally inflated.
74) We note that Mr Roopchand submitted that he was not challenging Accused no.2’s
calculations. In any event, this court cannot determine the issue of the validity of Accused
no.2’s assessment, whatever method he may have used, as this is of the sole province of the
Assessment Review Committee.

Did Accused no.2 so act for a gratification for another person?

75) The charge is that Accused no.2 wilfully and unlawfully adopted measures to inflate the
initial assessment for the benefit of shareholders. Counsel for Accused no.2 submitted that
the valuation was done in the course of a bidding exercise, which is governed, by the PPA
and PPR and it is the BEC which selected the bid. The prosecution did not offer any
submissions on the matter.

76) It is indeed provided in the PPA and PPR that it is the duty of the BEC to examine, evaluate
and compare the bids and “determine the lowest evaluated substantially responsive bid for
the award” – Regulation 4(5) PPR – so that at the end of the day the responsibility for the
selection of a bidder which does not fulfil the requirements specified in the bid would rest
with the BEC. There is evidence on record that Med Point did not fulfil the bid requirements
for the setting up of a NGH and there is evidence from Mr Hauroo that there was pressure to
accelerate the process and that the BEC took the decision to award the contract to Med Point
even though he felt that it was disqualified because of its area and price. It is also on record
that no one involved in the bidding process was criminally prosecuted.

77) Bearing in mind the circumstances in which, according to Mr Hauroo, the contract was
awarded, and the fact that it is the assessment figure that would have constituted the
gratification, there is no evidence that Accused no.2 made use of his position for the
gratification of the shareholders.

78) Mr Domingue further submitted that the prosecution did not put to his client that he used his
position to gratify shareholders and he referred to Section 10 of the Constitution and Rule II
of the Judges’ Rules. Counsel for the prosecution submitted that it was sufficient that “the
facts in circumstances of the case that the investigation authority of the prosecution has
against an accused is put to him” (sic) and cited the case of V. Seetahul v The State [2015
SCJ 328] in support of his submissions.
79) The recording of defence statements and the procedure to be followed by the police, and by
the ICAC, are contained in the Judges Rules. Rule II reads as follows:

As soon as the police 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.

80) The Supreme Court made the following observations on the notions of fair enquiry and fair
trial in The Queen v C. N. Amasimbi [1991 SCJ 210], as follows:

“… the concept of a fair trial guaranteed by section 10 of the Constitution implies


fair and impartial enquiries into allegations of accused parties which may have a
bearing on their innocence or guilt.”

81) In the case of Seetahul Hamuth and Jugessur-Manna JJ. said the following:

“There is no provision in our law which imposes a duty on the police to actually put
the charge to the accused at the enquiry stage. Section 5 of the Constitution relates to
the rights of the person who is arrested or detained to be informed of the reasons for
his arrest or detention, to be afforded reasonable facilities to consult a legal
representative of his own choice and to be brought without undue delay before a
Court. Section 10 (2) of the Constitution provides that every person who is charged
with a criminal offence shall be informed as soon as reasonably practicable, in a
language that he understands, and, in detail, of the nature of the offence…”.

82) In The State v M. J. Ruhumatally [2015 SCJ 384] (which is of persuasive authority) Fekna
J. expatiates on the need for an accused party to be made aware in clear terms what offence
the he is believed to have committed. The Judge said the following:

“36) But there is one important aspect that cannot and should not be overlooked. The
caution is not given generally in a void; rather, it is given in relation to an
identifiable offence that the accused is suspected of having committed. The further
questioning by the police officer ‘relates to the offence which the person is
suspected to have committed’. The person ‘not being obliged to say anything’ once
again relates to the offence which he is suspected to have committed. If he has
anything else to say which is of a general nature and which can be helpful to the
police, he can still do so under his civic duty to help the police in solving crimes.
37) The above situation begs the question: ‘How does a person exercise the rights
and privileges afforded to him by the caution if he does not know what offence he is
being suspected of having committed?’ An effective interpretation of Rule II would
require that we read into it the obvious proposition that a person has to be informed
of the nature of the offence he is suspected of having committed so that he may
exercise his rights and privileges under the caution in an informed way. This does
not mean that he has to be informed of one or more offences in legal language, or of
the section/s of the law which have been breached, or of the elements of the offence.
But the person must be given an idea which is elaborate enough concerning what is
reproached of him and which constitutes a breach of the penal laws of Mauritius and
to which he is being asked to answer.”

83) In the very recent case of The Director of Public Prosecutions v T. P. J. M. Lagesse & Ors
[2018 SCJ 257] one of the grounds of appeal was that the charge was not put to respondent
no.3. The Supreme Court explained clearly what a ‘charge’ meant and what the
responsibility of the police when recording a statement under caution was, in the light of the
Judges Rules, as follows:

“The question which arises here is what was the duty of the Police when recording the
statement of respondent No.3 (then accused No.3) at the enquiry stage and whether the
duty has been breached, and if so to such an extent as to deprive the accused of a fair
trial. It must also be borne in mind that not every breach will be considered as fatal (vide
A Mohammed v The State [1999] 2 WLR 552 (Privy Council); ([1998] Lexis citation
3212).

As highlighted by the Court in the case of The State v Madelon and Ors [2004 SCJ
129] and Seetahul v The State [2015 SCJ 328], we also have not come across a
provision in our Law that imposes a duty upon the Police to actually put the charge to an
accused. None of the rights referred to in section 5 of the Constitution are in issue here.
Section 10 of the Constitution relates to the rights of a person charged with a criminal
offence before the Court, and again not applicable here. Also, as we have stated above
respondent No. 3 was assisted by Counsel (vide State v Coowar [1997 MR 123])
during the recording of the statements of 6 and 7 August 2013, although he decided not
to be assisted thereafter.

Remains the Judges Rule and Administrative Directions of 1965. It has to be


highlighted that “Nonconformity with these Rules may render answers and statements
liable to be excluded from evidence in subsequent criminal proceedings” (vide,
Appendix A, Introductory Notes, paragraph 4). Again as this document highlights the
fact “it is the law that answers and statements made are only admissible in evidence, if
they have been voluntary in the sense that they have not been obtained by fear of
prejudice or hope of advantage, exercised or held by person in authority, or by
oppression” (vide Appendix A, Introductory Notes paragraph 2 and paragraph 3(e)).
This principle is stated as being overriding and applicable in all case. (Vide Appendix A,
Introductory Remarks, paragraph 4).

The baseline is therefore that the accused must be made aware of the case against him.
What effectively does that imply? Quite clearly this will depend on the particular
circumstances of each case, but evidently cannot mean the “charges as per the
information lodged before the trial court” be put to him at the stage of enquiry.

Where there is a complaint, it would de facto imply that the suspect has to be confronted
with that complaint; and if there were additional incriminating evidence gathered during
the course of the enquiry those should be put to the suspect. Obviously, if the police as
part of their enquiry do have incriminating evidence, the suspect has to be cautioned and
informed of his right to be legally assisted, i.e. right against self- incrimination and right
to be legally assisted. Here, it is good to highlight that if the two rights referred to above
are to have any meaning, they have to be imparted to the suspect in a language which he
understands.”

84) After having perused the defence statements of Accused no.2, all of which were recorded
under caution, we find that he was not informed of the reasons he was being questioned by
the ICAC about his valuation exercise of Med Point or made aware that he was suspected of
having committed an offence, let alone that he acted unlawfully and criminally and that he
had intentionally adopted measures to inflate the assessment figure of Med Point in breach
of the POCA. There is therefore a breach of Section 10 of the Constitution and of the Judges
Rules and we would not have been able to attach much weight to such statements.

Conclusion

85) For all the reasons given above, we find that the prosecution has failed to adduce sufficient
evidence to establish its cases against Accused no.1 beyond reasonable doubt under Counts I
and II. The circumstances as such lead us to conclude that Accused no.1 is entitled to the
benefit of the doubt and we therefore grant to Accused no.1 the benefit of the doubt and
dismiss Counts I and II of the information against him.

86) We also find that the prosecution has failed to prove its case against Accused no.2 under
Count III beyond reasonable doubt. We accordingly dismiss Count III against Accused no.2.

W. V. Rangan I. Dookhy-Rambarun
Vice-President Magistrate

Intermediate Court

This 26 July 2018