IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CRI/T/175/2004
In the matter between:
MILLENNIUM TRAVEL AND TOURS (PTY) LTD ACCUSED 1
JAYAKRISHNAN APPUKUTTAN NAIR ACCUSED 2
‘MAMOLISE MARY KAMOHI ACCUSED 3
Delivered by the Honourable Acting Judge Mr. G.N. Mofolo
On the 15th June, 2011
In mitigation of sentence on behalf of accused, Dr. Mosito for the prisoner has submitted:
(1) Accused 2 is first offender, that he is young and only in his 40s having a clean record.
(2) According to Dr. Mosito, the victim is Lesotho Government but there is no evidence as to how much the government actually lost to the accused other than that it was defrauded in the sums reflected in the indictment.
(3) Dr. Mositohas further submitted the case has been hanging over the head of the accused for the last 7 years and in itself some form of punishment.
(4) Accused is breadwinner of his wife and minor child.
(5) Accused is sickly and because of the stringent nature of his bail conditions was not able to consult doctors as required.
(6) Bail conditions were so stringent accused has been rigorously reporting at Anti-Corruption Offices for the last seven years on daily basis unable to venture out of Lesotho to see his elderly and ailing parents in India. Accused has observed his bail conditions to a letter.
The court can only say that as far as (2) above is concerned the amount lost by government at accused’s instance is astounding. Dr. Mosito has also submitted whether it was competent for the court to convict the Director and Company both in their personal and representative company for the same acts in respect of which the company was prosecuted and convicted and he has referred to Lahmeyer International GMBH v The Crown LAC (2000-2004) 895. I have not been able to lay my hands this case tough, fortunately, facts of the case are still clear to this court since it was tried by this court. In that case the company was charged and convicted director(s) having been nominal representatives of the company and not charged in either their personal or representative company as is the case in the instant case. I must make it clear in Lahmeyer’s case it is the company and not its director(s) that was fined and there was no alternative of a fine because a company is an artificial person.
Dr. Mositohas quoted Criminal Procedure and Evidence Act, 1981 Section 338(2) that:
“If the person representing the corporate body is convicted, the court convicting him shall not impose on him in his representative capacity any punishment, whether direct or alternative, other than a fine …”
Indeed it has to be for a Director representing a company steps into the shoes of a company an artificial body which is incapable of undergoing a term of imprisonment. It is to be noted there can under no circumstances be duplication of penalties. Thus where, as in Lahmeyer’s case above a director represents the company, a fine is imposed and where as in the instant case a director represents the company, a fine is imposed there being no question whatsoever of imposing penalty on both the company and its director in a representative capacity, penalty nevertheless to be imposed on the director in his personal capacity. To be understood penalties in this respect are for the malfeasance of both the company and its director.
If I understood Dr. Mosito well, he complains of double jeopardy where an accused is punished twice for the same offence, a principle often referred to as double jeopardy in that according to South African Law and Legal Theory by Hosten, Edwards, Nathan and Bosman once the accused has pleaded and has been acquitted or found guilty, any charge for the same crime will be met by a plea of autrefois acquit or antrefois convict, because no man may be put “in peril” twice for the same offence (the so-called rule against “double jeopardy”) the underlying reason for the rule in respect of the plea of autrefois convict being the idea that once the accused has been sentenced and punished he has paid his debt to society and the reason for the plea of autrefois acquit which applies where the accused has been in peril of conviction on the same offence.
In the instant case though, the entire reasoning is untenable in that the accused is not being punished twice for the same offence. He is punished first in his representative capacity and so to speak on behalf of the company and secondly on his own behalf.
Mr. Penzhornhas submitted this is one of the most serious cases to have come before our courts deserving nothing but a custodian sentence. Maybe except this court has taken exception to the laxity of Ministry and Department officers not called in evidence who took such an I don’t care attitude to erosion of government resources.
This court will not have done itself justice without referring once more to factors inducing this court to sentence as it did in Lahmeyer’s case above where amongst other things it was pointed out, as in the instant case, that the amounts involved are staggering requiring that punishment must reflect the community’s disapproval of the crime whose image undermines the fabric upon which the whole society rests and I say fraud is cancer and an insidious crime not only peculating society but undermining its very foundation.
The court is quite sympathetic to Dr. Mosito’s concerns like it was in Lahmeyer’s case where the court observed offences are not made to be forgiven but to be punished, this being, as I said, the wearisome condition of humanity born under one law and bound to another, created sick and yet commended to be sound Mr. Penzhorn having pressed on this court then and now the need to punish the offence severely to deter it at all costs.
In sentencing accused, serious as the crime is, this court cannot be oblivious to the fact that Accused 2 is of a youthful age and needs to be given another chance particularly noting he is a first offender. I endorse Prof. Snyman’s observation in his Criminal Law that crime is the result of sociological and economic factors and will always occur driven by these factors irrespective of deterrent effect of punishment though where a particular crime is not of control this calls for heavy sentence to warn would be offenders and where a court has been imposing fines or reasonable custodian sentences to impose harder custodian sentences or heavy penalties as this court intends doing in the instant case.
It would be sorely pretentious not to note that this case reeks of deliberate, calculated and dishonest falsification where society is exploited by men to their own advantage. Though as said in S vs Kumalo, 1973 (3) SA 697 (AD) and S vs Roux, 1975 (3) SA 190 punishment must fit the criminal, the crime and fair to society and blended with a measure of mercy.
Also to be noted in Deal Enterprises (Pty) Ltd and Others 1978 (3) SA 302 (WLH) at p.318 Nicholas J had come to the conclusion that in his opinion the crimes of which accused had been convicted “were entirely without mitigation” features for the crimes, as he said, being committed for the sole purpose of making profits, being product of a systematic and cynical stance for corrupting lowly paid railway-men … and the amounts involved substantial and it will be noticed there is no difference between Deal Enterprises and the instant case!
There’s no difficulty assessing profits in the instant case for Crown evidence has put this beyond doubt it being immaterial what may have happened to the profits all that the court is concerned with being that it is repugnant to morality and justice that a convicted wrongdoer should be left in possession of any part of the profits of the crime the fine imposed having to be in keeping with the profits made. As I said in Layhmeyer’s case, there is evidence which this court believed that all profits arose from illicit acts notwithstanding Mr. Penzhorn’s idea of figures have nothing to do with sentence for what is material is the seriousness of the crime.
This was a losing battle from beginning to end Accused 2 so superior to anything government threw at him outwitting all comers at every turn; it was worthless trying except by intervention of expatriate financial experts coming when much harm had been done preferring, on the contrary, that government train own experts to be able to nip any problem in the bud.
My reading of Appeal Court’s judgments in this regard is that a court having taken account of all relevant facts aggravating and mitigating, a court is at large to impose what it believes to be proper sentence and it would seen to me a significant deterrence sentence is called for in this premeditated and carefully planned criminal act much as I am aware a balance must be kept between accused’s factors which favour him and financial loss sustained by government as a result of accused’s acts.
In so far as Section 338 (2) (c) of the Criminal Procedure and Evidence Act 1981 as amended is concerned and where accused is convicted in his representative capacity, it is only fair that if convicted in his representative capacity since he stands for an artificial person his penalty be nothing but a fine. When, however, as in the instant case, both the company and its director are convicted, it is desirable that the company and its director be sentenced separately and taking into account factors favourable and unfavourable to the accused while in Counts 1 to 233 and 457 to 503 Accused 1 is sentenced to pay a fine of M651,349 Accused 2 is sentenced to pay in personal capacity M3,000,000 or undergo 10 years imprisonment.
In Count 457A, Accused 1 is sentenced to pay M230,781 while Accused 2 is sentenced in like manner to pay M1,000,000 or undergo 5 years imprisonment sentences to run consecutively. Accused 2 having paid M2,000,000 of his fine he is at liberty to approach court as to payment of balance of the fine.
My Assessor agrees.
For the Crown : Mr. G.H. Penzhorn, SC
For the Defence : Dr. K.E. Mosito, KC
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