POLICE v ALVARO SOBRINHO AFRICA LTD

2019 INT 28

IN THE INTERMEDIATE COURT OF MAURITIUS

(CRIMINAL DIVISION)

Cause Number 703/2017

In the matter of:

POLICE v ALVARO SOBRINHO AFRICA LTD

Judgment

1. Factual Background

1.1. Alvaro Sobrinho Africa Ltd (the accused company) is an investment bank. It
holds an Investment Banking Licence (IBL) issued by the Financial Services
Commission (the FSC), the statutory regulator of the financial services industry in
Mauritius, on 25 November 2016. A private domestic company incorporated on
07 November 2016, the accused company forms part of a group (the ASA
Group) comprising of other companies, including Alvaro Sobrinho Africa and
Asset Management Ltd (ASA Asset Management) incorporated on 27 August
2015. The Group had therefore set up in Mauritius and it held different licences
from the FSC. The main protagonists acting on behalf of the ASA Group for the
purpose of the present matter were Messrs. Mauricio Jorge Almeida Fernandes
(Deputy CEO of the accused company) and José Manuel Pinto (Board Director
of the accused company).

1.2. In the year 2016, Deloitte, was approached by ASA Asset Management to assist
the ASA Group in an application for a banking licence and it was found that an
IBL was a more appropriate option for the business model of the ASA Group.
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 Following a meeting in April 2016 with the Bank of Mauritius (BoM), the then sole
Licensing Authority, the application for an IBL was put on hold pending
forthcoming proposed amendments to the law which would remove the licensing
for IBL from the BoM and bring it under the ambit of the FSC. The proposed
amendments were indeed brought about with effect from 07 September 20161.

1.3. The ASA Group was looking for a legal adviser who would look after their affairs
generally in Mauritius. In line with its service which accompanies investors during
their venture in Mauritius, Deloitte, introduced ASA Asset Management to BLC
Robert & Associates Ltd (BLC), as a potential legal adviser. The type of licence
which would fit the financial services activities of the ASA Group was discussed
during that introductory meeting held on 15 September 2016. Emails were
thereafter exchanged between Mr. Pinto on behalf of the ASA Group and
Messrs. Iqbal Rajahbalee and Jean-Eric Sauzier from BLC on 16 and 19
September 2016 and 31 October 2016.

1.4. On 29 September 2016, the Financial Services Commission (FSC), received its
first application for an Investment Banking Licence (IBL). Such application in the
name of the accused company, which was then, still in the process of
incorporation, was made by Deloitte on behalf of the ASA Group. In reply to a
request from the FSC for additional information regarding inter alia details of the
legal adviser of the Company in an email dated 07 November 2016, the director
of the accused company named ‘BLC Chambers, Mr. Iqbal Rajahbalee’ (sic) as
its legal adviser, on 11 November 2016. The FSC granted the IBL to the accused
company on 25 November 2016.

1.5. Mr. Rajahbalee was shocked when, it was later brought to his knowledge that his
name appears as the legal adviser in an application for an IBL. He was of the
view that his name had been used to give credibility to the application which had
been filed. His complaint was that his individual name was being used without his
consent when he had not been engaged as a legal adviser to the accused

1 Section 24 of The Finance (Miscellaneous Provisions) Act, No. 18 of 2016

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 company of which he did not even know that it had decided to apply for an IBL
with the FSC.

1.6. The next relevant happening is that following a press communiqué in the daily
newspaper L’ Express of 07 March 2017 wherein Mr. Iqbal Rajahbalee is cited to
have denied having ever been approached to make any application on behalf of
the Alvaro Sobrinho Group with the FSC and denied that BLC had given its
consent to be named as legal adviser of the accused company in a file submitted
by the latter to the FSC, the then Head of Licensing at the FSC reported the
matter to the police for an investigation to be carried out.

1.7. It is against such factual background that the accused company pleads not guilty
to a charge of having willfully and unlawfully, in connection with an application
submitted to the FSC for an IBL, made a statement to the Commission which it
ought reasonably know was misleading, in breach of Sections 19(1)(a), (2) of the
Financial Services Act 2007 coupled with Section 44(1)(b), (2)(a) of the
Interpretation and General Clauses Act 1974.

1.8. Both parties were legally represented throughout the proceedings.

1.9. The case for the prosecution rests essentially on the oral testimony of (a) formal
witnesses producing documents relating to the legal status of the accused
company and the out of court statements recorded in defence; (b) witnesses from
the FSC, who, in essence, explained the nature of the complaint made to the
police, the requirements and criteria for an IBL application, the processing of
such applications, the reason for requesting additional information more
particularly details of the legal adviser of the applicant, and how the FSC was
allegedly misled; and (c) the representative of Deloitte and the legal practitioners
from BLC regarding their relationship with the accused company and their
respective mandate in relation to the same. Documentary evidence consisting of
the legal status of the accused company, the out of court statement recorded
from Messrs. Fernandes and Pinto, the application pack for an IBL to the FSC,
the email from the FSC requesting for clarifications on a number of issues
pursuant to the application filed and the reply from Mr. Fernandes, a copy of the
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 press article published in L’ Express, and emails exchanged between BLC and
the ASA group, were produced during the trial. The representative of the accused
company, for his part, deposed under oath.

2. Issues

2.1. The facts of the present matter as set out in the preceding introductory
paragraphs which led to the present charge being preferred against the accused
company are not disputed. Hence, the actual issue for the decision of this Court
appears to be a simple one that can be stated very shortly. In view of all the
surrounding circumstances which appear to link the different protagonists in one
way or another, ought the accused company to reasonably have known that,
giving the details of its legal adviser in the manner it did and as styled, to the
FSC in connection with an application for an IBL, was misleading? It is submitted
by the prosecution that it ought to have known.

2.2. This being said, the broader and pertinent questions that have been raised,
mostly by the defence, in the course of the proceedings are not in the least
simple; one of the main reasons being, the lack of definition of key words, in the
relevant statutory instruments or by the FSC where applicable, which are
pertinent to the constitutive elements of the present offence.

2.2.1. Such words include, ‘determine’ as it appears under Section 79A of the
Act; ‘statement’ and ‘misleading’ under Section 19 of the Act, and ‘legal
adviser’ as requested by the FSC.

2.2.2. Having recourse to the plain and ordinary dictionary meaning of such
terms, where they are so provided, does not appear to be the answer, as
it does not necessarily give a purposeful interpretation in the context in
which they appear in the present case, as will become apparent later in
this judgment.

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 2.3. Hence, such live issues, have required this Court to consider generally, (a) the
policy justifications for the Financial Services Act and the scope of the power of a
regulatory body to seek for information from a prospective applicant and (b) the
role of a legal adviser.

2.3.1. In that respect, the following three broad questions, which I have
identified and formulated hereunder, will be considered.

A. Would the information given by the accused company to the FSC in the
present matter, i.e. the details of its legal adviser, fall within the meaning
of a statement under Section 19(1)(a) of the Act, which will render an
applicant liable to prosecution if it ought to have reasonably known that
such information was misleading?

B. How and to whom was the information furnished by the accused company
misleading? In the absence of the definition of the term ‘legal adviser’, in
any of the statutory provisions relevant to the present matter and in any
guidelines issued by the FSC in relation to an application for an IBL,
would the details of the legal adviser of an applicant, which is not a strict
legal requirement, lead to the necessary implication that it referred to a
legal practitioner/law firm who has advised on and/or whose services had
been retained, for the specific purpose of the application form being filed
with the FSC? Hence, would it in the circumstances be misleading as a
matter of fact if the person named as legal adviser was not specifically
involved with the application for an IBL filed with the FSC?

C. What is the required degree of knowledge which the accused company is

expected to have?

3. The Law

A. Statutory Framework
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 3.1. Pursuant to Section 19 (1) (a) of the Financial Services Act 2007 (the Act), which
falls under Part IV of the Act dealing with the regulation of financial services, “no
person shall, in connection with an application submitted to the Commission for a
licence including a Global Business Licence, an authorisation under section 71A
or any information submitted in respect of a valid licence – (a) make or procure
the making of a statement to the Commission which he knows or ought
reasonably to know is false or misleading.”

3.2. Part XA of the Act which regulates Investment Banking, provides for the
requirements to be met for an application for IBL under Section 79A of the Act.

3.3. Section 17 of the Act empowers the FSC to inter alia require an applicant to give
further information in connection with an application in such form and manner as
it may specify. Notwithstanding such general power conferred on the FSC,
Section 79(A)(1)(d) of the Act specifically provides that an application for an IBL
shall be accompanied by such other information as may be specified in FSC
Rules or otherwise required by the Commission to determine the application.
Rule 4 (3)(d) of the Financial Services (Investment Banking) Rules 20162 confers
similar powers in relation to the request for additional information by the FSC.

B. Elements of the Offence

3.4. The constitutive elements of an offence under Section 19(1)(a) of the Act, for the
purposes of the present matter, may be summed up in the following four
propositions, namely:

(a) An application was submitted to the FSC for a licence;

(b) A statement was made to the FSC in connection with that application;

(c) In that statement there was something which was misleading; and

2 GN No.277 of 2016
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 (d) The applicant ought to have reasonably known that such statement was
misleading.

C. Mental Element
3.5. It is settled law that, as a general rule, every offence requires a mental element,
the nature of which will depend upon the definition of the particular offence in
question.

3.6. The statute creating the offence under Section 19 of the Act requires that the
maker of the statement either knew it was misleading, in the sense ‘knowingly’ or
in the alternative, ‘ought to reasonably know’ that it was misleading. Hence, the
requirement of knowledge is applied only to the element of “the statement being
misleading” and not to the act of making such statement in the first place. The
present matter concerns the ‘ought to reasonably know’ alternative. Of note, it
cannot be said to be one of strict liability, in the sense that the mere doing of the
act is itself an offence irrespective of the guilty knowledge; hence, the ordinary
presumption that mens rea is required, applies.

3.7. I am however not persuaded by the reasoning of Learned Counsel for the
Defence to the effect that ‘ought to reasonably to know’ is the equivalent of the
English concept of ‘recklessness’. There are specific and distinct requirements as
to the state of mind, and ‘with intent to’, ‘knowingly’, ‘recklessly’, are just a few
examples. As rightly pointed out by the prosecution, our statute specifically refers
to ‘ought to reasonably know’ and not to ‘recklessly’ as the alternative to
knowingly committing that particular offence.

3.7.1. This being said, the submissions on behalf of the prosecution inviting the
Court to consider Section 348 of the Financial Services and Markets Act
2000 in the UK rather than Section 177 (4) of the same Act as being the
equivalent of Section 19 of our Act, is superfluous, as far as the mental
element is concerned, because both Sections 348 and 177(4) specifically

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 provide that the misleading information may be given knowingly or
recklessly.

3.8. So what is the degree of knowledge which is required? The answer is found in
the following passage3, which has been relied upon by the prosecution, the
relevant parts of which provide:

“…..….The third sort of knowledge is what is generally known in law as

constructive knowledge. It is what is encompassed by the words “ought to have
known” in the phrase “knew or ought to have known”. It does not mean actual
knowledge at all; it means that the defendant had in effect the means of
knowledge…”

3.9. Both parties have agreed that the test to be applied in relation to the “ought
reasonably to know” requirement, is an objective one.

4. Applying the Law to the Facts

4.1. I have duly considered all the evidence on record and the submissions of learned
counsel for both parties, including all the relevant principles that have emerged
from the authorities that have been placed before this Court.

Application submitted to the FSC for an IBL

4.2. It is undisputed that the accused company had made an application to the FSC
for an IBL pursuant to the provisions of Section 79A of the Act.

4.2.1. The application4, the first of its kind, was made in accordance with the
form and manner specified by the FSC Rules and pursuant to the
Licensing Criteria Investment Banking Licence –FS-6.1 of 16 September
2016 (the Licensing Criteria).

3 Per Devlin J at page 5 in Taylor’s Central Garages (Exeter) Ltd v Roper [1951] 115 JP 445
4 Doc D refers
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 4.2.2. The application form contained an endorsement paragraph, i.e. a
declaration by the applicant/applicant’s representative, at the end, to the
effect that the applicant certifies that the information furnished in the said
application and additional submission, as required in the Annex thereto, is
complete and correct to the best of his knowledge and belief. There is
furthermore an undertaking to notify the FSC of any material change in
information/documents submitted with respect to the application.

A statement was made to the FSC in connection with that application

4.3. In order to understand the significance of the identified issue in relation to this
element of the offence, namely, whether the impugned information furnished to
the FSC falls within the ambit of a statement which can engage the criminal
liability of its maker, it is necessary for the Court to consider the following:

(a) The nature of the information sought and given.

(b) The legal status of such information, in other words, did it concern something
which must by law be stated with strict precision or could it involve liability,
whether or not its provision was a strict legal requirement?

(c) Should the information sought be relevant to the determination of the

application or is the nature of the present offence such that the relevance and
purpose of the information required is not material as long as it was lawful for
the FSC to ask for the same.

Nature of Information required by the FSC

4.4. There are two sets of information which have been given by the accused
company to the FSC in connection with the application in the present matter. The
first set of information forms part of the original application pack which is subject
to the endorsement certificate/declaration on behalf of the accused company as
set out at paragraph 4.2.2 above. The second set of information communicated

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 to the FSC consists of both missing information flowing directly from the
application form and additional information, which do not bear any such
expressed declaration mentioned above from the accused company.

4.4.1. It is agreed that the impugned information, subject matter of the present
case, namely, the details given by the accused company, in writing,
following a request made by the FSC in an email for details of inter alia
the legal adviser of the company, relates to additional information.

Is it a legal requirement?
4.5. It is agreed that the required additional information, i.e. details of legal adviser,
neither appeared on the application form for an IBL and/or in the Annex thereto
nor was it a specified requirement in either any statutory provision relevant to the
application or in the Licensing Criteria issued by the FSC to provide guidance to
prospective applicants for an IBL. Unlike the legal certificate requirement for a
Global Business Licence application, for instance, there was furthermore no
statutory or other requirement, that the said application form be certified by a
legal practitioner, legal consultant or law firm to the effect that the application
complies with the laws of Mauritius and/or for any other reason.

4.6. In the result, there was no statutory or other legal requirement imposed on the
accused to give details of its legal adviser as far as an application for an IBL was
concerned.

Should the information be relevant to the determination of the application for an

IBL?
4.7. The significance and the why of the details of the legal adviser of an applicant in
relation to an application for an IBL was made a live issue by the defence in the
course of the proceedings. Much emphasis was laid on the fact that the
impugned information was not a legal requirement but additional information
sought as per established practice as will be considered in more detail below.

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 4.7.1. It is the contention of learned State Counsel that the relevance of the
information to the success of an application is not a material
consideration under Section 19 (1) (a) of the Act and she submits that our
law is broader and covers any statement sought by the FSC in connection
with an application. As such she drew a distinction from its English
counterpart found in Section 398(1) of Financial Services and Markets Act
2000 in the UK (the FSMA), which requires that the information be
misleading in a material particular, to substantiate her submissions.

4.7.2. She however appears to have overlooked the fact that what is sanctioned
under Section 398 of the FSMA is information which is materially
misleading by reason of what it contains or by reason of what it should
contain but fails to contain, in other words, information which has the
effect to mislead in a way which is significant and/or in a way which
matters5. But the information itself may be any information provided to the
Authority in compliance with any requirement imposed by or under the
FSMA.

4.8. It is undisputed that as far as the FSC is concerned, the details and/or name of
the legal adviser of the accused company, neither had any impact on nor was a
determining factor, in the decision to grant the application for an IBL. Hence, the
first question is why did the FSC ask for such details in the circumstances?

4.8.1. The conclusions which can essentially be drawn from the searching cross
examination of the then Head of Licensing and the Senior Examiner, who
had dealt with the present application and who represented the FSC in
Court, are:

(a) The present application fell within the category of financial

applications and details of the legal adviser in respect of such

5 R v Mallett [1978] 3 All ER 10

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 applications, was a required item on a list. I however note that only
the FSC was privy to such list;

(b) It was a common/established practice for such details to be provided

for that particular category of application; and

(c) The FSC thought it could, and was entitled to, in case of ambiguity,
request legal advisers of applicants to give opinions on the legality of
an application.

Second, could the FSC therefore have lawfully asked for such information? To
answer the same, a distinction has to be drawn between, on the one hand, the
reasons which prompted the FSC to seek for such details as considered above,
and, on the other, the extent of the powers conferred upon it to make such
queries by way of a request for further information in the first place.

4.8.2. As far as the former is concerned, it is beyond the jurisdiction of this Court
to make any determination on the relevance, propriety, and rationality
regarding (a) the considerations which led, and the purpose for which, the
FSC had chosen to seek for the details of the legal adviser of the accused
company in relation to the application it had filed and (b) the reasons such
details did not form part of the application form.

4.8.3. As to its powers to do so, the FSC, presumably, thought it was entitled to
ask for such additional information, pursuant to the general powers
conferred upon it under the Act, namely to require an applicant to give
further information in connection with an application in such form and
manner as it may specify; and/or as it was empowered in particular under
Section 79 (A)(1)(d) of the Act and the Rules made under the Act.

4.8.4. This being said, the different wordings used under Sections 17 and
79(A)(1)(d) of the Act and the disclaimer in the Licensing Criteria, suggest
that such other information as may be required by the FSC from
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 prospective applicants, has to be in connection with the application
(Section 17) and required by the FSC to determine the application
(Section 79(A)). Furthermore, the information which the FSC requests, as
they appear on the application form and/or in the guidelines, are not
exhaustive.

4.9. The different provisions of the Act cannot and should not be read in isolation but
considered in the light of its true intent, meaning and spirit. Indeed, “the modern
approach to statutory construction is to have regard to the purpose of a particular
provision and interpret its language, so far as possible, in a way which best gives
effect to that purpose.”6 Regulation, in the financial sector in particular, is rarely
the simple expression of a single idea or objective; the purposive interpretation.

4.9.1. The word ‘determine’ is not defined in the interpretation section of the Act.
The plain and ordinary dictionary meaning of such a term is to ‘cause
something to occur in a particular way or to have a particular nature’7. Its
legal definition includes inter alia the act of reaching a conclusion and is
synonymous to the word ‘ascertain’ which is also defined in similar terms8;
to come to an end or to bring to an end9, e.g. the contract was
determined, meaning terminated. On the other hand, the term
‘determination’ in legal use connotes the idea of reaching a final decision
by a court or an administrative agency, like in the context of ‘hear and
determine’.

4.9.2. In the context of the present matter and in the light of the above
definitions, information required ‘to determine the application’ may, in my
considered view, be interpreted to include the provision of information to

6 IRC v McGuckian [1997] STC 908 considered in Barclays Mercantile Business Finance (BMBF) Ltd
v Mawson [2005] STC 1 and referred in DPP v T. P. J. M. Lagesse and 2 Ors [2018 SCJ 257]
7 Oxford Online Dictionaries
8 Legal Dictionary- thefreedictionary.com
9 Black’s Law Dictionary- online dictionary second edition
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 close the application at an administrative stage; in the sense of
information required to process the application and ensure that such
application satisfies all criteria before a final determination on its merits is
taken, for instance. Such a term does not necessarily refer to information
required for the actual decision making process to determine whether the
application ought to be granted or not. Hence, the explanations of the
FSC that such information was not a separate criterion but was part of the
whole licensing process. Furthermore, the additional information was
asked for at the processing stage when the Senior Examiner was
checking whether all the requirements, including any other information,
had been met.

4.9.3. Furthermore, if the Court were to hold that ‘to determine the application’
refers to the actual decision making process on the merits and the
materiality and relevance of the information forming part of the statement
must be directly related to the determination of the application, it would
(a) render the provisions of the Act relating to the asking for further
information and the sanctioning of any breach thereof absurd and (b) be
importing considerations which were not intended by the legislator. As will
be seen below, not every information required in an application form is
directly linked to the determination of an application or has a discernable
bearing on the outcome of the application or is a legal requirement. Yet
any such information so requested on the application form will be subject
to the endorsement certificate referred at paragraph 4.2.2 above and will
engage the criminal liability of the applicant if found to be false or
misleading and made with the required state of mind. By the same token,
further information sought in connection with such application cannot be
subject to a different threshold relating to relevance and/or materiality as
far as engaging liability is concerned.

4.9.4. An obvious example would be details of the address of an applicant. It

might not make any difference for the application proper where the
location of the applicant is. Other examples include (a) government
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 application forms containing questions about ethnic background which
are for statistical purpose rather than because they are needed for
determining the application; (b) applications forms issued by companies
in the financial services sector may include questions designed to enable
the company to build up a data bank for marketing purposes rather than
for any reason connected with the application itself.10 Yet, the application
may not be processed if such required information is not furnished when
requested. In that context it can fall within the notion of information
required to ‘determine the application’ and it may engage criminal liability
if found to be false or misleading and made with the required mental
element.

4.10. Besides, bearing in mind the mischief which the particular statutory provision
aims to sanction, the wordings of the Act regarding the powers of the FSC to
seek for further information and the policy justifications for the existence and
exercise of such powers, assume all their importance, in determining how those
provisions ought to be interpreted.

4.10.1. It can be gauged from the second reading of the Financial Services Bill11
that one of its main objectives was the streamlining and consolidating of
the whole licensing framework for various non-bank financial institutions
and financial service providers where all service providers licensed by the
FSC would be subject to the same licensing procedures and to the same
supervisory powers.

4.10.2. The regulatory function of the FSC generally and its statutory power to
license, regulate, monitor and supervise the conduct of business activities
in the financial services sector in particular, is entirely dependent on its
being provided with full and accurate information by prospective
applicants. The FSC would in effect be unable to fully carry out its

10 R v Lancaster [2010] EWCA Crim 370

11 No. XVI of 2007, copy of which produced by the prosecution
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 statutory power in relation to applications for licences without having the
information to assess the applicant’s integrity and willingness to be open,
transparent, and honest with it, for instance. The FSC would indeed fail in
fulfilling its public function should it not adhere to such strict rules of
disclosure.

4.11. With those considerations in mind and being alive to the fact that every
application will turn on its own facts and circumstances, the Court finds that the
request for the impugned additional information was not made in the abstract but
resulted from the application form filed with the FSC and formed part of its
processing procedure of the application. Once these requirements are satisfied,
any statement, in its widest sense as to cover any assertion made in connection
with an application to the FSC, would fall within the ambit of Section 19 of the
Act.

4.11.1. Hence, the fact that the particular name of the legal adviser was of itself
not important and did not have a direct bearing on the final determination
of the application in the present matter, would not (a) affect the power of
the FSC to have asked for such information in the first place and (b)
exonerate the accused company from criminal liability if such information
provided is found to be in breach of the Act.

4.12. In the light of the above, I find that Section 19 of the Act should be given a wide
and purposive interpretation to cover any statement made to the Commission in
connection with an application, and this, irrespective of the incidence it may or
may not have on the determination of the application.

Was the Statement misleading?

4.13. It is submitted on behalf of the prosecution that the statement was
misleading as a matter of fact and Learned State Counsel referred to the
evidence borne on record which essentially support the contention that neither

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 the services of BLC nor those of Mr. Rajahbalee had been retained for the
application with the FSC.
4.14. That neither BLC nor Mr. Iqbal Rajahbalee had either received any specific
instructions or had their services retained for the particular purpose of filing of the
application for an IBL with the FSC on 29 September 2016, is beyond dispute.

4.15. At this stage, I do not propose to embark on an analysis of the evidence relevant
to the professional relationship, if any, which existed between the accused
company and BLC Robert and Associates and/or Mr. Iqbal Rajahbalee, at the
time the application form was submitted to the FSC, but shall address such
evidence when determining the fourth element of the offence, namely whether
the accused ought to have reasonably known that the statement was misleading,
for reasons which will become apparent below.
In order to understand the import of what is alleged to be misleading in the impugned
information, it is necessary to set out briefly the history of the events that have led up to
the police investigation and subsequently to the charge as particularized in the
information.

The History
4.17. The event which has set the ball rolling in the present matter rests on a
complaint from Mr. Iqbal Rajahbalee which was essentially set down in
(a) a letter to the FSC, (b) a press communiqué, and subsequently (c) a
statement to the police. It is at this stage pertinent to note that Mr. Iqbal
Rajahbalee, Senior Counsel, is and was at all material times, the
Managing Director of BLC Robert and Associates. What Mr. Rajahbalee
is essentially saying is that neither his good self nor BLC have anything to
do as legal adviser in respect of an application for an IBL filed with the
FSC by the accused company. The out of court version of Mr. Rajahbalee
put to the accused company by the police substantially echoes the above
complaint but with added details as to the particular manner in which he
was not involved in the filing of the said application. Of note the letter to
the FSC mentioned above does not form part of the evidence adduced
before this Court and the FSC did not make mention of the same
either. The FSC for its part, was of the opinion that it had ‘received an

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 information and another information was made on the public’ (sic). It had
relied on that part of the press communiqué relating to the denial of the
services of BLC/Mr. Rajahbalee having been retained as legal adviser,
which it claims led the FSC to believe that the name that was given to it
was not the right name.

4.17.3. As a result, what did the police have in mind when they questioned the accused
company? The tenor of the testimony of the police officer who had recorded the out of
court statement of the accused company and who had cautioned the representative of
the accused company, shows that the case for the police is that its investigation
revealed that the services of the legal adviser whose name appears on the application
for an IBL were never retained.

4.18. The particulars of the offence averred in the information in the present matter
suggest that the statement ‘BLC Chambers, Mr. Iqbal Rajahbalee’ was
misleading in its entirety.

Possible outcomes in view of nature of the complaints What was misleading, how was it
misleading, and who was misled? The answers to these three questions, assume
all their importance in determining this element of the offence. In that respect, the
case for the prosecution is not clear because the tenor of the testimony of its
witnesses regarding the nature of their grievances suggest that the manner in
which the details of the legal adviser, could potentially have been misleading, is
threefold.

4.20. First, the grievance of Mr. Rajahbalee is that his individual name was used. Mr.
Rajahbalee has in no uncertain terms explained in the course of his testimony
that what he was taking objecting to, was the fact that his individual name had
been used and associated as the legal adviser in an application form, the
particulars of which mentioned him, ‘Iqbal Rajahbalee, BLC Chambers’, in his
individual name, as being the adviser of the applicant and which he is of the view
was mentioned to give credence to the application. His ‘complaint’ to the relevant
authorities was not made with the view of complaining to the latter but simply to
set matters right on record that his name was being used without his consent.

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 4.20.1. If that was the only part of the information imparted which is being challenged,
i.e. the name ‘Iqbal Rajahbalee’, used without his consent and to give credence
to the application, it could have, theoretically and on the face of it, been
misleading, as a matter of fact. But such cannot be said to be the case as the
FSC had made it clear that the name of the legal adviser given by an applicant
had no bearing on its decision in respect of such application. Furthermore, the
then Head of Licensing explained that the details of the legal adviser was one of
the elements of the whole licensing requirement and she could not say how the
particular name of the legal adviser would mislead as ‘it is le tout that makes it.
So, for this particular item, being the legal advisor, false or true, at this particular
point, I don’t see if it can mislead’ (sic). She added that the IBL had already been
granted and the details of the legal adviser provided had not been misleading to
the FSC at that particular point in time. Second, the remark of Mr. Rajahbalee
regarding the manner in which the law firm ought to have been referred, i.e. if the
details on the application form were genuine, the words ‘BLC Robert and
Associates’ should have been inserted rather than ‘BLC Chambers’, only
suggests that it was wrongly described. In that scenario, it would have at most
been a misnomer, either because it referred to the words ‘BLC Chambers’ or
because the law firm was referred to as ‘BLC Chambers, Mr. Iqbal Rajahbalee’.
The third scenario is, what the prosecution and the FSC appear to be relying
upon to say that the statement was misleading in the present matter; namely,
that the services of BLC and/or Mr. Rajahbalee were never retained for the
purpose of the application for an IBL filed with the FSC and yet they were named
as the legal adviser of the accused company when the additional information was
sought.

4.22.1. But, was it a pre-requirement that such services be retained before the
name of the legal adviser could be given to the FSC in connection with an
application for an IBL? The short answer is no for reasons which will
become apparent below under the heading ‘legal adviser’.

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 4.22.2. So what is basically being reproached of the accused company? The
version of Mr. Rajahbalee taken extra judicially and put to the accused
company by the police suggests that the accused company was not
entitled to name its legal adviser as it did because (a) Mr. Rajahbalee has
neither been involved in preparing/compiling any document in connection
with the application made to the FSC nor has he vetted the application
nor has Mr. Rajahbalee given his consent to be referred to as legal
adviser for ASA Group for an IBL; and (b) the accused company/ASA
Group had not signed any engagement letter which BLC Robert and
Associates typically uses to express its undertaking of any legal services
to any client if its proposal is agreed by the client.
The next hurdle is to give a purposive interpretation to the two key words, ‘misleading’
and ‘legal adviser’.
Misleading
4.24. The term ‘misleading’ not being defined in the interpretation section of the
Act, it is submitted on behalf of the prosecution that it should be given its
plain and ordinary dictionary meaning, which is ‘to cause to have a wrong
impression about someone or something.’12 An offence under Section
19(1)(a) of the Act can be committed by giving an information which is
either false or misleading, the two words to be read disjunctively. When
one looks at the dictionary meaning of the word false, which includes, ‘not
according with truth or fact; incorrect’, it conveys the idea that it may also
be caught under the plain dictionary meaning of ‘misleading’, in the sense
that an information which is incorrect may also be misleading. This being
said, the legislator having specifically provided that the statement may be
defective in either of the two ways mentioned above and bearing in mind
that something which is misleading is not necessarily entirely false, I find
that the meaning of such word (misleading) in the legal dictionary is more
appropriate, namely, ‘delusive; calculated to lead astray or to lead into
error’.13 Although, unlike its English counterpart, the legislator in

12 Concise Oxford English Dictionary, Tenth Edition Revised.

13 Black’s Law Dictionary-online second edition
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 Mauritius has not specifically provided that the statement susceptible to
mislead must be in a material particular and without importing words
which otherwise do not appear in our law, ‘misleading’ in the present
context cannot be in the abstract or merely theoretical but must be
intended to have a bearing on the application. It is not denied that it did
not in the present matter.

Legal Adviser The term ‘legal adviser’ is neither defined in any statutory provision nor
in the law dictionary nor have I been able to find any common law definition to such
word.
4.25.1. So who is a legal adviser? Is it a question of fact or a question of law? In
many cases the answer is easy, but in others, like in the present matter, it
is difficult because of the nature of the question. Different minds may
come to different conclusions with equal propriety depending on who is
answering that question. There is no legal definition of who a legal
adviser is and one of its plain dictionary meaning and commonsensical
definition includes “a lawyer who gives advice.”14

4.25.3. One may in turn question what is the significance of legal advice? “In the
complex world in which we live there are a multitude of reasons why
individuals, whether humble or powerful, or corporations, whether large or
small, may need to seek the advice or assistance of lawyers in
connection with their affairs.”15 “…They should be able to know what they
can do under the law, what is forbidden, where they must tread
circumspectly, where they run risks.”16

4.25.4. The functions and duties of a lawyer are diverse and so are the legal
consequences flowing from the lawyer-client relationship, so that such
relationship cannot, in my view, be captured by one interpretation. One
cannot turn a blind eye to the fact that the lawyer-client relationship has

14 Collins online Dictionary

15 Three Rivers District Council and others (Respondents) v Governor and Company of the Bank of
England (Appellants) [2004] 3 WLR 1274
16 Daniels Corp v ACCC [2002] 192 ALR 561
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 entered a new era with different expectations around what services law
firms deliver and how. It can be said that the time of purely transactional
engagements between lawyers and clients is long gone. Legal
professionals have expanded their skills beyond practice areas and law
firms have geared their strategies on understanding and meeting client
needs.

4.25.5. Although the Court may take judicial notice of who can dispense legal
advice and/or the fact that a barrister appearing for a litigant/ an accused
party before a Court of Law has been properly instructed and retained to
represent that client in a particular case, the role of a named legal adviser
in an out of court /extra judicial application is not sufficiently notorious or
of such common knowledge that it requires no proof.

4.25.6. The Court can therefore neither take judicial notice that the name of the
legal adviser sought by the FSC refers to the lawyer/law firm whose
services have been retained for the specific purpose of the application
filed nor is there any presumption of law or of fact to that effect.

What did FSC mean by ‘legal adviser’?

4.26. What did the FSC have in mind when it requested details of the legal adviser of
the accused company?

4.26.1. The Senior Examiner, who does not have any notion as to the legal
definition of a legal adviser, assumed that the legal adviser ought to have
been the one who had advised on and vetted the application form
submitted. She further assumed that even if the applicant would not know
what is meant by legal adviser, Deloitte should have known what the FSC
meant by legal adviser. In other words, what the FSC appears to be
saying is that it had left it to a third party to guess what the FSC was
requesting when there is no clear evidence to show that the FSC itself
knew what such term entailed.
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 4.26.2. The Guide to Global Business issued by the FSC in relation to an
application for a Global Business Licence and where the details of the
legal adviser of the applicant is a required information on the application
form itself, defines legal adviser as ‘the law practitioner qualified under
the Law Practitioners Act 1984 who will provide legal services to the
applicant by signing the legal certificate and/or by supplying legal advice
on an on-going basis in the future.’

4.26.3. Of note, no such definition and/or any other definition of the term ‘legal
adviser’ is provided for an application for an IBL.

4.26.4. There was no specific requirement that the application ought to have
been certified or vetted by a legal practitioner. Indeed, in this case it was
submitted by Deloitte.

4.27. Can it therefore be said in the circumstances of the present matter that,
the simple fact that (a) the person or entity who was named to the FSC had not
given his/its consent to be so named, when such consent was not a legal
requirement; and/or (b) such person or entity is disputing the particular
relationship to which his/its name has been ascribed in view of its non-
implication in relation to the application filed, of itself sufficient, to prove that such
information relating to the name of the person and/or entity is misleading as a
matter of fact? The contention of the FSC that they did and that of the
prosecution that they do, must fail on that score in the light of (a) the purposive
interpretation to the word ‘misleading’ and (b) the inherent ambiguity the term
legal adviser may entail in view of the wide interpretation which can be ascribed
to it as will be considered further when dealing with whether the accused
company ought to have known that such information was misleading.
4.28. The present matter being a criminal one, constitutive elements of the
offence charged, have to be proved beyond reasonable doubt. In the light
of all the matters considered above coupled with the evidence led on
behalf of the FSC which suggests that the requirement for details of the

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 legal adviser was at the end of the day essentially a box ticking exercise
for financial applications which did not have any bearing at the decision
making stage and the FSC is itself not clear as to what it had in mind
when details of the legal adviser were requested, this Court has difficulty
to understand in what manner the fact that BLC and/or Mr. Rajahbalee
had not been involved as far as the application for the IBL is concerned
could have misled the FSC and/or would in fact be misleading. Such
disassociation, of itself, would certainly not be misleading as a matter of
fact. In the absence of any presumptions regarding the role of the legal
adviser in the present matter and in view of the fact that the Court cannot
take judicial notice of such a term, it cannot, in the circumstances, be
interpreted to mean the legal practitioner/law firm who had been retained,
instructed, and had accordingly advised on the application filed. As such
the Court cannot speculate to make a determination as to whether the
information imparted was indeed misleading.

The accused company ought to have reasonably known that the statement
was misleading
4.29. The issue to be resolved by this Court is not whether there was indeed a law
firm/lawyer and client relationship between, BLC and/or Mr. Iqbal Rajahbalee,
and the accused company, to bring them within the realm of duties, obligations,
and legal consequences which may flow from any such engagement, if there was
one, as far as the application for the IBL is concerned. Indeed, the import of the
duty of a lawyer and the dimension of the lawyer’s obligations is beyond the
scope of determination of this Court, in the present case.

4.29.1. What the Court has to decide is whether based on the interactions
between the parties, ex facie the evidence on record, the accused
company ought to reasonably know that it would be misleading to name
BLC and/or Mr. Iqbal Rajahbalee as its legal adviser, in the
circumstances and the manner, it did.

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 4.29.2. What is imputed to the accused company is knowledge which a
reasonable man ought to have had but did not have, the determination of
which, will depend on the factual context and the actors involved.

4.29.3. Hence, the relationship between the accused company and BLC on the
one hand including the professional qualifications of the representative of
the accused company and the requirements of the FSC on the other,
would be the main relevant considerations to determine whether a person
standing in the shoes of the accused company, ought reasonably to know
that naming ‘BLC Chambers, Mr. Iqbal Rajahbalee’ as its legal adviser in
the course of an application for an IBL with the FSC, was misleading.

Interaction between BLC and ASA Group

4.30. It is agreed that Mr. Pinto who was representing ASA Asset Management and
Mr. Iqbal Rajahbalee from BLC Robert and Associates (BLC), were not total
strangers, at the time the application form was filed, in the sense that they had
had an introductory meeting at the seat of BLC on 15 September 2016 and
emails were thereafter exchanged on three occasions in September and October
2016, i.e. prior to the application for the IBL was filed. It is further agreed that
discussions included financial activities of the ASA Group. Such meeting also
included Mr. Jean-Eric Sauzier from BLC. The name of BLC and/or Iqbal
Rajahbalee, did not therefore come out of thin air.

4.30.1. In the course of that introductory meeting, Mr. Pinto, Board Director of
ASA Management, gave a very broad outline of what may generally be
referred to as Alvaro Sobrinho Group. He described what ‘their company’
(sic) was going to do as financial services activities and the parties to the
meeting had discussions about what sort of licence would fit those
activities. A number of issues concerning the possibilities for the group to
set up a bank in Mauritius were pointed out and that included the
advantages of opting for a Banking Licence rather than consider an IBL in
view of possible shortcomings in the law which were highlighted. The

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 issue of an IBL was raised in the course of the meeting but with no
particular ambition indication of action that the group was to take. Mr.
Pinto left the meeting and he was to go back to his stakeholder to revisit
their company’s strategy before deciding whether to go forward with
whatever application and coming back to BLC.

4.30.2. Emails were thereafter exchanged, on 16 and 19 September and 31

October 2016, between Mr. Pinto, Board Director of ASA Asset
Management and Messrs. Rajahbalee and Sauzier on behalf of BLC.

(a) The subject of the first email ‘Premier contact’ addressed to Messrs.
Rajahbalee and Sauzier indicates that Mr. Pinto was very satisfied
with what came out from the introductory meeting and he was
awaiting for Mr. Sauzier to send him « la présentation de vos services,
comme convenu, afin que nous commencions notre collaboration. »

(b) The contents of the next email with the subject ‘RE: BLC Firm Profile
and Proposal’ from Mr. Sauzier to Mr. Pinto and copied to Messrs.
Iqbal Rajahbalee and Fayaz Hajee Abdoula, refer inter alia to the firm
profile being attached. It will be sufficient for the present purposes if I
refer to the following two paragraphs, the relevant parts of which are
reproduced below, namely:

“…As a commercial gesture and in a way of expressing our interest of

being your partner as you gradually ramp up your activities, we
propose to start with a reduced workman hour rate of ……… until you
manage to obtain the licence being opted for, at which point we shall
start charging our normal rate……..

……Do feel free to give us a call (or have any member of your team
do so) in the event that you may require any clarification in relation to
the above or any legal issue you may be faced with and we would be
happy to oblige…..”

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 (c) BLC did not hear from Mr. Pinto until the email of 31 October 2016.

(d) On 31 October 2016, Mr. Pinto sends an email to Mr. Sauzier to which
Mr. Rajahbalee is put in copy, requesting for an information regarding
the indication of the reporting currency required by the Central Bank.
Mr. Rajahbalee replied to the email on the same day giving his
opinion on the information sought and gives an indication that should
Mr. Pinto wish to retain a specific currency « on pourrait essayer de
discuter avec eux. »

Procedure for onboarding of clients at BLC

4.31. BLC has an onboarding of client procedure which can take two forms; either in a
very formal way, which will be an engagement letter setting out the terms of the
engagement and if accepted is returned in a Client Acceptance Form. Such
letters are usually used for major tasks or assignments; or for lesser assignments
of a shorter period or ‘one spotted files’, BLC would at least have knowledge of
the matter involved and the terms of its fees would be communicated and
accepted by the client before advice is given.

4.31.1. It is common ground that there was no engagement letter between the
parties until 25 January 2017 where such document was exchanged
between BLC and ASA Group in respect of a purchase of shares by the
ASA Group.

4.31.2. Mr. Sauzier explained that BLC could not put an engagement letter
following the meeting of 15 September 2016 because it needed to have a
precise scope so that it may agree on what it was going to do and it was
uncertain what the client expected from them; it was against that
background and the then prevailing circumstances, that a law firm profile
with an open rate was given, in anticipation of formal instructions so that

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 they could work on whichever selected licence the applicant would be
opting for.

4.31.3. It was in 2017 that BLC had undertaken specific assignments, not relating
to investment banking, for the ASA Group.

Version of Accused Company

4.32. The representative of the accused company for his part explained the
circumstances which led him to insert the words ‘BLC Chambers, Mr. Iqbal
Rajahbalee’ as additional information sought. It was for him an obvious and
natural response to name ‘BLC Chambers, Mr. Iqbal Rajahbalee’ as the legal
adviser of the company for reasons which will be addressed below.

4.32.1. Mr. Fernandes explained in his out of court statement to the police that
“Mr. Iqbal Rajahbalee of BLC Chambers was our retained legal advisor
and I have not misled or given any false information to the FSC…” He
however qualified such statement by explaining that ‘BLC Chambers of
Mr. Rajahbalee’ had been acting as their legal advisers on various
matters at the relevant time and afterwards and for the following reasons:

(a) According to him, the introductory meeting arranged with BLC by

Deloitte was for the purpose of retaining the services of ‘BLC Robert
Chambers’.
(b) The tenor of the emails exchanged as highlighted above, more
particularly, the words ‘being your partner…’ suggested clearly to him
that BLC would be their standing lawyer. He also claims that there
was only one licence that the group intended to apply for and that was
the IBL to the FSC; in that connection he referred to the word ‘licence’
used in the email of 19 September 2016 where the different rates
were proposed pending the licence opted for was obtained. He also
referred to the invitation to contact BLC for any issue they may be
faced with expressed in the same email.

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 (c) He then referred to the dealings he had with BLC in February 2017.
The same are however disregarded as they are neither relevant nor
have any direct bearing on the issue to be determined in the present
matter, which refers to details given in November 2016.

Summary of chronology of events

4.33. The evidence relating to the involvement of the different actors at the different
stages cannot be viewed in isolation but considered in their entirety. I therefore
find it apt at this stage, at the risk of repeating all the matters already referred to
earlier, to summarize the chronology of events since the ASA Group approached
Deloitte in the year 2016 to put the involvement of the different protagonists in
perspective as it gives an insight into the undertone of their respective versions
which (a) may render inconsistencies in their respective versions more apparent
than real and (b) which since the very beginning, in fact created
misunderstandings of relevant and important words which were given different
connotations by the party using such word and the party at the receiving end, in
their respective jargons and capacities. The two notable words being ‘licence’
and ‘legal adviser’.

(a) The evidence on record shows that the first parties to be privy to the prospect
of an application for an IBL are Deloitte, ASA Group, and the BoM in April
2016.

(b) BLC comes into the picture in September 2016 when Deloitte arranges a
meeting because ASA Group was looking for a potential legal adviser to look
after their affairs generally in Mauritius and the meeting was arranged
through Mr. Sauzier. Mr. Sauzier invites Mr. Rajahbalee, the Managing
Director of BLC to join that introductory meeting where Deloitte would be
introducing one of its client to them. In the mind of ASA Group, however, it
appears that the only licence they ever intended to apply for was the IBL and
that remained the only licence they have kept contemplating at all material
times. But was it clearly conveyed to BLC in no uncertain terms? The

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 evidence on record does not unequivocally point to such a fact. On that
score, notwithstanding the fact that Mr. Rajahbalee was categorical that the
ASA Group never discussed that they had an intention of applying for an IBL,
Mr. Sauzier who had initially echoed such a denial in his out or court
statement to the police, conceded in the course of his testimony that Mr.
Pinto had explained to ‘us’(sic) that the ASA Group wanted to set up a
financing platform and in that context, at a point in time, it was said that they
were envisaging the application for an ‘FSC Investment Banking Licence’
(sic).

(c) According to the accused company, the intention of the ASA Group to apply
for an IBL was made known during the introductory meeting but then Mr.
Rajahbalee highlighted the potential obstacles they might encounter if they
opted for an IBL. Mr. Pinto, who represented ASA Group, further avers that it
was agreed that BLC would provide its fees rates and would send a
‘quotation’ for them to start working whenever ASA Group would require legal
advice on any matter as they were a new company in Mauritius and needed
advice on the laws of the country. On the other side, BLC, was waiting for
specific instructions as ASA Group had to get back to them after reviewing
their strategy. BLC had in the meantime submitted what its fees would be and
the advice tendered in the email of 31 October 2016 was in the words of Mr.
Rajahbalee, ‘a piece of information at heart that can be given to any person
as we are often asked in the course of any day’’ and not an email to a client.
Mr. Pinto conceded that he never replied to the email from BLC when the
fees were communicated to him because he is very pragmatic and to him he
would have only gone to BLC if he had any case and the first time he got one
he went to them. Every time ASA Group had a legal issue they went to BLC.

(d) BLC is out of the picture from 19 September to 31 October 2016, and in
between, on 29 September 2016, Deloitte files an application for an IBL on
behalf of the accused company with the FSC. BLC is out of the picture when
Deloitte files the application with the FSC and according to Mr. Pinto, BLC did
not have to be in the picture. When ASA Group contacts BLC on 31 October
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 2016, no specific mention is made of any IBL. According to Mr. Pinto, if BLC
was not the legal adviser of ASA Group, Mr. Rajahbalee would not have
replied to his query on 31 October 2016. Mr. Rajahbalee for his part was
under the impression that when queries were made about the reporting
currency to the Bank of Mauritius, ASA Group was going to decide to make
an application to the BoM.

(e) The FSC processes the application and on 07 November 2016, seeks for
additional and missing information from Deloitte. On 11 November 2016, the
accused company furnishes such information directly to the FSC, including
details of its legal adviser in the manner it did as the same was a natural and
obvious response in view of the tone of the written interactions between
them. Again, in the mind of Mr. Pinto, BLC was their legal adviser as a
general adviser and they never proclaimed that BLC was the legal adviser as
far as the application for the IBL is concerned.

(f) The IBL is granted on 25 November 2016.

(g) ASA Group did not have any legal issues between 31 October 2016 and
January 2017; hence there was no interaction with BLC. BLC and ASA Group
start to formally work together as lawyer/client on 25 January 2017 in respect
of other assignments not pertaining to IBL when ASA Group decided to buy a
management company. Thereafter, whenever ASA Group had issues, they
contacted their lawyers, BLC. Mid- February 2017, Mr. Rajahbalee, for the
first time, became aware that the accused company had applied for and
obtained an IBL from the FSC and his attention was drawn to a press article
referring to the bank that had obtained the IBL as being a ‘banque marron’.

(h) Later, Mr. Rajahbalee learns that his individual name had been used in the
application for the IBL; he notifies the FSC and the press. The FSC had in
fact received an application and granted such a licence for the first time; it
had not given any guidance to the applicant as to what it meant by ‘legal
adviser’ of the company; it appears that it had in the first place requested for
such details because they appeared on a list of requirements for financial
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 applications, which was privy to the FSC only; and the FSC nevertheless
believed that it had been misled and went to the police to open an
investigation.

(i) The result is the present proceedings.

4.34. Can it therefore be said that a person standing in the shoes of the accused
company ought to reasonably know that the details of the legal adviser it had
submitted to the FSC was misleading?

4.34.1. In the light of all the surrounding circumstances of the present matter set
out in the preceding paragraphs coupled with the fact that it had not been
proved that such statement was in fact misleading, the answer is in the
negative.

4.34.2. There was no legal requirement for the accused company to obtain the
consent of its legal adviser for the purpose of filing the application and it
cannot be said in the circumstances that the accused company had
neglected to ascertain that it had the consent of BLC for its name to be
used as a reasonable and prudent person would do.

4.34.3. It cannot further be imputed to Mr. Pinto, that as a professional

experienced businessperson and the co-director of several companies,
he ought to have known what he was doing when he gave details of the
legal adviser, as submitted by the prosecution. He is a banker by
profession and Board Director of the accused company and no evidence
was led as to his professional qualifications or otherwise to enable this
Court to rule that his position had put him on a higher standard of
precision governing his relationship with BLC than that expected from a
member of the general public for instance. In any event, Mr. Pinto is not
being prosecuted in his personal name. He has sufficiently explained the
reason the name of Mr. Iqbal Rajabalee was inserted besides BLC
Chambers, i.e. because it was the name of the contact person and the
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 Managing Partner. The accused company did so in the same way as it
had inserted the individual name of the licenced auditor when it was
asked to give details of the auditor and signing partner, in the same
request for additional information.

4.34.4. The only fault, if any, which can be attributable to the accused company is
having used the name BLC Chambers and Iqbal Rajahbalee loosely and
interchangeably when it gave the required details. Considerations would
have arguably been different if the case for the prosecution was that there
was another legal adviser bearing a similar name and the misnomer of
the legal adviser had been misleading in that respect, for instance. But as
stated earlier, this is not the case for the prosecution and the name did
not have any bearing on the outcome of the application.

4.34.5. It would appear from the second reading of the Financial Services Bill that
such legislation was brought about in line with the philosophy to simplify
processes and procedures and remove hurdles to investment.
Regrettably, a lot of confusion has been brought by the lack of guidance
to (a) prospective applicants for an IBL and (b) the FSC itself, as to what
it meant when the impugned detail was requested.

Misleading heading of the Information

4.35. It was submitted on behalf of the defence that the heading of the information is
misleading in that it reads ‘False and misleading statements to the Commission’
whilst the body of the information avers to misleading information.

4.35.1. It is a settled proposition of the law that the wrong citation of the law, is
not, by itself fatal to the information17. Such proposition would apply to the
heading of the information as well.

17 Wong Yen Cheong M. R. A. v The State [1998 SCJ 375]; R. Jhurry v The Queen [1977 SCJ 113]
and Boodhun v The Queen [1971 MR 296].
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 4.35.2. In the present matter, the body of the information to which the accused
company has pleaded clearly describes the offence with which it stands
charged and the heading of the information is in the circumstances not of
a nature to cause prejudice to it.

5. Conclusion
5.1. The accused company had made an application to the FSC for an IBL pursuant
to the provisions of Section 79A of the Act.

5.2. The law is meant to convey a clear message to prospective investors that they
must not submit any false statement or misrepresentation to the FSC as and
when required by the FSC. There is no reason to distinguish between statements
made in an application form and information submitted upon request. In that
respect, for all the reasons given at paragraphs 4.9 to 4.11 and their respective
sub-paragraphs above, I hold that Section 19 (1) (a) of the Act is deliberately
worded so as to render criminal, any representation, including a statement which
is not required to comply with a statutory or other legal obligation, made to the
FSC in connection with an application, if it be made with the required criminal
intent.

5.3. As enunciated at paragraphs 4.27, 4.28 and its ensuing sub-paragraphs, it has
not been proved beyond reasonable doubt that there was something misleading
in the statement made to the FSC. The ‘legal adviser’ requirement has an
inherent ambiguity as on the one hand ‘legal adviser’ is not defined in law or in
the legal dictionary; on the other hand, it could have referred either to lawyer
whose services have been retained for the purpose of the application or to the
lawyer whose services the applicant intended to retain if ever the need arose or
both. In those circumstances, the information communicated by the accused
company cannot conclusively be said to be misleading.

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 5.4. Bearing in mind the circumstances revealed by the evidence as considered at
paragraphs 4.30 to 4.33 including all their respective sub-paragraphs above, the
Court finds that the accused company did have a meeting with BLC and Mr. Iqbal
Rajahbalee and the possibility of the accused company applying for an IBL was
discussed. Furthermore, the tenor of the email from Mr. Sauzier clearly conveyed
to Mr. Pinto that the ASA Group may contact BLC with any legal issue it may be
faced with; and prior to the filing of the application for an IBL, Mr. Rajahbalee had
attended to a query of the ASA Group and even proposed to initiate discussions
with the BoM if need be. Notwithstanding the capacity in which Mr. Rajahbalee
claimed to have given such legal advice, in the light of all the above interactions,
it would not have been unreasonable for the ordinary reasonable layman to think
that his legal adviser was BLC/Mr. Rajahbalee, the individual name referring to
the contact person and the Managing Director of BLC. The Court also bears in
mind that the accused company had no idea why the details of the legal adviser
was required by the FSC and it certainly could not have thought that this
information was going to be a determining element in the granting of the licence.
Hence, it could not, ought to have known that it was misleading the Commission.

5.5. The information against the accused company is accordingly dismissed.

A. HAMUTH (Miss)
[Delivered by: A.HAMUTH (Miss), Magistrate Intermediate Court]
[Delivered on: 15 February 2019]

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