UKPC 41
Privy Council Appeal No 0027 of 2011
Marie Joseph Charles Robert Lesage (Appellant) v The Mauritius Commercial Bank Ltd (Respondent)
From the Supreme Court of Mauritius
JUDGMENT DELIVERED BY
20 December 2012
Heard on 9-10 October 2012
James Guthrie QC
(Instructed by M A Law (Solicitors) LLP)
Eric Ribot SC
P Maxime Sauzier SC
Louis Eric Ribot
(Instructed by Blake Lapthorn Solicitors)
"[The bank alleged] a mega fraud ... (the largest) that has allegedly been orchestrated and perpetrated in its history over a span of some 14 years by one of its top personnel, Mr Robert Lesage ... The [bank] asserts that a huge amount of funds has been siphoned off and/or misappropriated via complex schemes of financial transactions using shell companies for the benefit of one person, Mr Teeren Appasamy .... Unauthorised loans, discounting of bills of exchange and ploughing into the fixed deposits of some of the [bank's] important customers were allegedly the three methods resorted to by Mr Lesage in order to perpetrate the fraud. An intricate system of splitting/layering/integrating of funds belonging to the [bank] designed to foil its internal and external audit trail was used."
"[He] has strenuously denied all the allegations of fraudulent transactions made against him by the [bank]. He has maintained that he had been acting under instructions since he first joined the [bank]. He has stated that he had never committed any acts of larceny or fraudulent abstraction of funds and that what he did was at all material times within the knowledge of his superior officers and in particular the General Manager. He has stated that the management of the [bank] from 1989 to 1996 was aware of the transactions which were instituted at their request. He has disagreed with the prayer made against him and he maintained that he is not liable in any amount whatsoever."
"In the first place, we shall consider the allegation of Mr Lesage that whatever he had been doing at the bank was in the course of his employment and with the authorisation and knowledge of the bank. If we reach the conclusion that the contention of Mr Lesage is correct, then the claim of the [bank] must fail..."
"In considering whether the version of Mr Lesage is correct, it stands to reason that it is really an issue of credibility which calls to be determined. We have to consider the version of Mr Lesage against that of Mr P G Noel, having regard to all the documents which had been put before us by both parties and the lengthy submissions of all learned counsel."
"After anxious consideration, we have reached the conclusion that the version of Mr Lesage cannot be retained. We say so because we find that he has been fabulating in more than one instances (sic) losing his poise when cornered and he was not only shutting his eyes to the obvious but he was also glossing over certain events and putting the blame on others, forgetting that he was the person responsible for the department concerned. He has also shown himself to be very selective in his recollection of events. He has come up with answers which are contradictory and demonstrates his gift of painting a different picture thereby distorting facts which are obvious especially when confronted with documents the contents of which are clear and unambiguous. We have certainly not been impressed by his ad nauseam mantra of having done all those acts in the course of his employment under instructions when, admittedly as it was said, being a man of notes, he has been incapable to bring up any instructions in writing from Mr PG Noel or from any other former General Manager during that long period under consideration. We simply do not believe Mr Lesage and we need only to highlight some of the evidence and major contradictions to support our conclusion."
"The most damning piece of evidence is in relation to the answer given by Mr Lesage to the pertinent question … under cross-examination as to whether he had ever said that what he had done was not under instructions. In chief, he stated on every possible occasion that everything that he had done was under the instructions of Mr PG Noel and with the knowledge of the Top Management of the bank. Without batting an eyelid and with much assurance, he stated that he acted under instructions. But, when he was confronted with the statement he had given to the ICAC under oath and in the presence of his counsel at the time when he was granted immunity, he had to concede having said in his statement of 9 September 2003 that he had not acted under instructions when he took funds from the NPF/NSF deposit accounts and that he did so on his own initiative. He has agreed that what he had stated was the truth.
He again had to admit that without being prompted, he had replied to the ICAC that the idea of siphoning off funds of the NPF/NSF occurred to him, when around that time (meaning August 1996), he had received a phone call from late Mr Dipnarain Manna who was the then Financial Secretary and the Chairman of the NPF Investment Committee requesting him to make a transfer of Rs50m from the deposit account for investment abroad through the SBM. He had admitted that the second time he made use of the funds of the NPF/NSF, it was without instructions and was done on his own initiative. He needed the funds to plug the holes which he had dug after Mr T Appasamy failed to return moneys to him."
The proceedings on 2 September 2009
"You take instructions from your client. You may advise him because (sic) when he doesn't follow that's his problem. Isn't it? Then, at this stage of the proceeding which we have tried since the month of March to put in shape, has been dragging on since the year 2004, maybe your motion to withdraw might not even be considered. Like I have done in other cases where you also you have appeared, I may refuse you to withdraw from the case."
"MR STEPHEN: My Lord, if I may. I received, obviously, instructions from my instructing Attorney..... (interrupted).
THE COURT: Unless, your client come and say that he doesn't want you anymore, then the other issue will [be], who will appear for him because these matters are far back when I read the letter. The problem started in mid-August. So, mid-August to today, a little more than two weeks. Your client could have retained another Counsel. The Attorney still remains there, isn't it? Right? So? I will give you time to think about it and I'll come back to you. If your client says that he doesn't want you that's a different matter now. You see what I mean.
MR STEPHEN: Yes, but from my point of view, he is not following my advice and Your Lordships, I am bound by professional secrets, confidentiality but Your Lordship is aware and my client has, in fact, put up (sic) the Court into the picture and for these reasons I am unable to, professionally, continue appearing in the case. I am afraid. I will be doing disservice to my client where I should not continue appearing and my client is aware of this and the reasons for which I have intimated to him that I will be stepping down from the case.
THE COURT: Yes, but then your decision could have been taken to (inaudible) so that he is [in] a clear position. I understand from the letter he stated that if ever you withdraw, he will ask for a postponement and whether the Court will grant a postponement that's another matter now, right."
The letter sent by Mr Lesage to the court
The grounds of appeal
The latter document was merely an amended version of the "Application for Permission to Appeal" document which had been annexed to the original Notice of Appeal. It remained verbose and long-winded and contained factual assertion and argument rather than stating concisely the actual grounds of appeal.
"In the absence of a clear and concise statement of the grounds of appeal, the Board has examined your letter and the amended document carefully and, as best it can judge, there is a single ground of appeal viz that the appellant was denied a fair hearing.
The arguments on which this ground appears to be based are these:
1. The trial judge should have recused himself;
2. An adjournment of the trial should have been granted;
3. The trial judge was hostile to the appellant and his counsel;
4. The appellant had no right of appeal to the Court of Appeal in Mauritius.
The Board will permit argument on these issues only."
It is further satisfied that the ground identified in the Registrar's letter of 13 October 2011 and the arguments which were stated to support that ground represent the correct basis on which the appeal could be appropriately pursued.
The absence of a right of appeal to a Court of Appeal in Mauritius
"Any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial, and where proceedings for such a determination are instituted by any person before such a court or other authority, the case shall be given a fair hearing within a reasonable time."
"59. The Court reiterates that the right of access to the courts secured by Article 6(1) may be subject to limitations in the form of regulation by the State. In this respect the State enjoys a certain margin of appreciation. However, the Court must be satisfied, firstly, that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Secondly, a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
It follows from established case law that Article 6(1) does not guarantee a right of appeal. Nevertheless, a Contracting State which sets up an appeal system is required to ensure that persons within its jurisdiction enjoy before appellate courts the fundamental guarantees in Article 6. However, the manner of application of Article 6 to proceedings before such courts depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein."
"The Court reiterates that the 'right to a court', of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard."
"It is true that upon the case being heard by a two-judge, appeal will only lie to the Judicial Committee of the Privy Council on leave being granted (vide Section 81(1) of the Constitution and Section 69 of the Courts Act). However, apart from the fact that this would cut both ways and potentially affect not only the applicant but also any other party to this case, there is the overwhelming consideration that the applicant cannot be considered as having a right of appeal as such to the Court of Civil Appeal. Having regard to the well-established practice to which we have referred earlier, no such right of appeal has ever existed."
Should an adjournment of the trial have been granted?
"MR HURHANGEE: Well My Lord, I need time ...
COURT: So tomorrow morning ten o'clock.
MR HURHANGEE: No. My Lord I was concentrating on the witnesses on the list of witnesses of my friend and I've already been communicated and quite extensively. And to be honest, My Lord, I need time.
COURT [addressing Mr Ribot]: But then I think earlier you should have told them that you might be closing your case ...
MR HURHANGEE: Exactly.
MR RlBOT: It's OK, My Lord. I don't want to press my learned friend with anything. I'm saying I don't want to press my learned friend with anything. It is three o'clock. We can meet tomorrow at ten. There is no problem for that.
COURT: No, I'm just telling him that tomorrow morning ten o'clock he must be ready.
MR RIBOT: Yes.
COURT: And that he does not come up with a motion that he has burnt the midnight oil again and that he is tired. So tomorrow morning we are starting with defendant no 1.
MR HURHANGEE: Well My Lord, I need at least …
COURT: At least what?
MR HURHANGEE: I have to have a bit of time to breathe at least, My Lord.
COURT: Until tomorrow morning you've got 20 hours before you.
MR HURHANGEE: Yeah but...
COURT: 20 hours is very long, you know.
MR HURHANGEE: My Lord, I do understand but for the 15 past days it was 20 hours on each day.
COURT: Mr Hurhangee, if you step in a case late, that's your problem. Isn't it?
MR HURHANGEE: I do understand, My Lord.
MR HURHANGEE: But at least for ...
COURT: We have been trying to accommodate with you. We have been very patient with you.
MR HURHANGEE: I appreciate, My Lord.
COURT: We have given you time. We also help you to put questions when you were not so clear in your mind.
MR HURHANGEE: Exactly. I really appreciate, My Lord.
COURT: You've got your junior with you, you should work.
MR HURHANGEE: OK.
COURT: Tomorrow morning ten o'clock. It's examination in chief. It will be very easy. All right."
The court's hostility to Mr Lesage and his counsel
The appearance of bias or unfairness
"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
"The fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matters, not what is in the mind of the particular judge or tribunal member who is under scrutiny."
"Q. When you say, Mr Lesage, that funds were taken from the Bank out of the NPF account to replenish the whole of Air Mauritius. This is the purport of my first question. I put it to you that these were taken out of your own initiative?
A. No, the source was my own initiative. The instructions came from my superiors.
Q. I put it to you that in the statement that you gave to ICAC, you accepted that it was out of your own initiative?
A. The initiative..... (interrupted)
Q. I put the question and you'll answer?
Q. The question which was put to you concerning the NPF/NSF account is as follows:-
'Were you acting under instructions when you first took funds from NPF/NSF fixed deposit account?'
and your answer is:-
'No. I did it on my own initiative. The idea to use the NPF/NSF fixed deposit accounts occurred to me when around that time I received the phone call from late Mr Deepnarain Manna who was the Financial Secretary and also Chairman of the NPF Investment Committee requesting me to make a transfer of Rs. 15 million.'
Did you say that to the ICAC?
A. I said it to the ICAC, again putting it in proper perspective. It was the source which was my initiative. Otherwise, the pattern was a Financing scheme.... (interrupted).
COURT: Mr Lesage, the question put to you is:
'Did you say that to the ICAC?'
The answer if 'yes' that's the end of the matter. Right? You cannot go on telling this and this and that. If this is not found in your statement, let Mr Hurhangee, in re-examination, try to put it clear. The question is put to you, you answer to that question."
In consequence a re-trial, if ordered now, will involve considerable inconvenience to the parties and witnesses and will involve a substantial demand on court resources. Should these matters have any part to play in the Board's decision as to whether there should be a re-trial?
"Inconvenience, costs and delay do not, however, count in a case where the principle of judicial impartiality is properly invoked. This is because it is the fundamental principle of justice, both at common law and under article 6 of the Convention for the Protection of Human Rights. If, on an assessment of all the relevant circumstances, the conclusion is that the principle either has been, or will be, breached, the judge is automatically disqualified from hearing the case. It is not a discretionary case management decision reached by weighing various relevant factors in the balance."