Yeung Sze Wail v State [1998] FJCA 1; AAU0013d.97s (16 January 1998)

IN THE FIJI COURT OF APPEAL

CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. AAU0013/97S
(IN THE MATTER of an appeal from the
High Court at Suva in Criminal Case No. HAA0079 of 1997)
(Magistrate Court Criminal Case No. 2075 of 1997)

IGN=CENTER>BETWEEN:

:

YEUNG SZE WAIL ALICE
FONG PAK HUNG
HO KWOK ON
Applicants/Appellap>

AND:

THE STATE
Respondent

;

Mraza for the Athe Applicants/Appellants
Mr J. Naigulevu for the Respondent

DECISION
(Leave to appeal out of time and bail applicat/b>

There are two applications before me - one is fors for leave to appeal out of time, and the other for bail pending appeal.

All 3 Appellants are from overseas and are of Chinese origin. All 3 were represented by Counsel. On 22 August 1997 all 3 had pleaded guilty before the Magistrates' Court at Suva to charges of uttering forged credit cards and of obtaining goods on forged documents. The 1^st Appellant also pleaded guilty to 2 further similar charges. All 3 also pleaded guilty to a charge of being in possession of unlawfully issued immigration permit (Count 9).

The facts as outlined by the prosecution and as interpreted to them by a Chinese interpreter were admitted by them. On 26 August 1997 the trial Magistrate convicted each of them as charged.

In respect of uttering and obtaining charges he imposed various terms of imprisonment but suspended all of them. In respect of Count 9 he fined each one $300 and ordered them to pay it immediately, in default 12 months imprisonment. He also ordered them to leave Fiji immediately and recommended that all of them be escorted to Nadi Airport and be placed on the first available flight to Hong Kong.

The State through the DPP appealed to the High Court against sentence as being over lenient and obtained a stay order in the meantime.

The appeal was argued before Townsley J. The Appellants were represented at the High Court appeal hearing by Mr J.K. Maharaj the same Counsel who represented them in the Court below. In a written decision delivered on 3 September 1997 Townsley J. allowed the appeal against sentence on Counts 1 to 8 as being manifestly inadequate. He set aside the sentence passed in respect of them and passed the following sentences in lieu thereof-

1^st Appellant (Yeung Sze Wail Alice)

Count 1 - 3 months' imprisonment

Count 2 - 9 months' imprisonment

Count 3 - 6 months' imprisonment

Count 4 - 18 months' imprisonment

All sentences to be concurrent.

2^nd Appellant (Fong Pak Hung)

Count 5 - 12 months' imprisonment

Count 6 - 3 years' imprisonment

Both sentences to be concurrent.

3^rd Appellant (Ho Kwok On)

Count 7 - 12 months' imprisonment

Count 8 - 3 years' imprisonment

Both sentences to be concurrent.

The judge also ordered any property seized to be returned to their rightful owners.

On 5/11/97 Mr M. Raza the new Counsel for the Appellants filed the present application in the Fiji Court of Appeal. At the same time he also filed a Petition of Appeal without leave although the time for appealing had expired on 3 October 1997, i.e. 30 days after the decision of the High Court. However I allowed the Petition of Appeal to remain on the Court file but had it marked "proposed" Petition of Appeal.

The bail and the leave applications are supported by 2 affidavits sworn by Yogesh Narayan, Senior Law Clerk in the employ of Messrs Mehboob Raza & Associates.

Both sides have filed written submissions and have agreed that a decision may be given without oral hearing unless request in writing for oral hearing is made.

The last written submission was received on 29 December 1997.

Grounds of Appeal

The proposed grounds of appeal read as follows:-

"2. THAT the findings of the Learned Appellate Judge for the purpose of sentencing is unreasonable and cannot be supported having regard to the material before the Court despite the pleas of guilty.

3. THAT the Learned Appellate Judge erred in law and in fact in failing to take into account the relevant factors and took into account irrelevant matters.

4. THAT the Learned Appellate Judge gave undue weight to the Appellants past history.

5. THAT the Learned Appellate Judge did not give sufficient weight to the Appellants pleas of guilty.

6. THAT in any event the Learned Appellate Judge ought to have noted pleas of not guilty and remitted the case back to the Magistrate’s Court to be determined according to law more particularly in view of the fact that the Appellants had believed that the "credit cards" were genuine at the material time.

7. THAT further and/or in the alternative the Learned Appellate Judge erred in law and in breach of the Criminal Procedure Code in convicting the Appellants for the offence of forgery contrary to Section 341 of the Penal Code when they were initially charged with contravening Section 343.

8. THAT further and/or in the alternative the whole proceedings both before the Learned Trial Magistrate and the Learned Appellate Judge were conducted in breach of the Criminal Procedure Code more particularly without the consent of the Appellants and are therefore a nullity."

re Leave application

I will deal with the application for leave to appeal out of time first because the question of dealing with the bail application will only arise if time for appeal is extended.

Although the length of delay was only a little over a month and therefore was not inordinate nevertheless it was not insubstantial. By their failure to appeal in time they allowed their position to fundamentally change in that they now have no right of appeal without leave that is if leave is permissible. The onus is now on the intended Appellants to show that they deserve the Court's indulgence.

The only effort made to seek the Court's indulgence in respect of the leave application is to be found in paragraphs 3, 4, 5, 6, 7 of Yogesh Narayan's affidavit sworn on 5 November 1997. These paragraphs read as follows:-

"3. THAT on the 24th day of September, 1997, the Appellants’ then Solicitors, Messrs J K Maharaj Esq, had filed Petition of Appeal in the Fiji Court of Appeal and sometimes later withdrew as Solicitors for the Appellants’.

4. THAT the Appellants’ wish to appeal against the said sentences imposed by the High Court.

5. THAT due to the confusion of instructing another Counsel to Appeal, the Appellants’ being in prison, found extreme difficulty in instructing another Counsel.

6. THAT it is only this week that the Appellants’ had instructed our firm to Appeal for and on behalf of the Appellants’.

7. THAT the Appellants’ have good Grounds of Appeal and intend to argue on the Hearing of this Appeal."

The Court record shows that no such Petition of Appeal was filed by Mr Maharaj.

re Restrictions on appeal against sentence

It is to be noted that according to Narayan's affidavit the Appellants wished to appeal against "sentence imposed by the High Court". Nevertheless I have borne in mind that the Appellants do wish to appeal against conviction also. Whilst the explanation for the delay is unsatisfactory the Appellants have more fundamental obstacles to overcome before leave to extend time to file appeal can be considered. These are -

(1) The provisions of Section 309 of the Criminal Procedure Code which says "No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on such a plea by Magistrates' Court, except as to the legality of the sentence".

No question of legality of sentence per se is involved here. As regards the contention that the plea was equivocal the following paragraphs from the written submissions of the learned Counsel for the Respondent are pertinent -

"2.5 In the Magistrates Court the Applicants were adequately represented by a Counsel of some experience, and the pleas had been accepted and recorded by an experienced professional Magistrate who was assisted by a similarly experienced, professional interpreter, Mr E. March.

2.6 In the record of the proceedings of the Magistrates Court, it is recorded that during the appearance on the 11^th day of August 1997, the charge was read and explained twice, the second clearly in the Chinese language by the Chinese Interpreter. On the first occasion, it is recorded that they understood the charge. On the 22^nd August 1997, the second appearance, it is recorded:

"Mr March clearly explained the matter to the three in Chinese and they confirmed that they are pleading guilty to the nine (9) counts."

"Accused are pleading guilty on their own free will as explained to them...."

It is submitted that the only "matters" that was before them that required an explanation by the interpreter were the substance of the nine counts contained in the charge and their pleas on each of them.

2.7 The prosecutors written account of the facts that was read in Court set out in material way the purpose of the accused persons visit to Fiji:

".. ....to do some business in Fiji with false credit card and fake passport."

The outline of the facts in addition set out in a material way that all the three accused persons obtained goods on forged credit cards that they uttered; and that they had in their possession unlawfully issued permits which were used to stamp fake passports.

These account of the facts, it is submitted supported each of the nine counts and suggest that each of the applicant were at the material time aware that the credit cards were forged.

2.8 The mitigation on behalf of the applicants were delivered by Counsel in which the applicants expressed remorse and sought the ‘mercy and leniency’ of the Court.

It was said in Lemeki Duidomo v State Criminal Appeal No. 2 of 1991 that:

"....an innocent man is hardly likely to ask for forgiveness or leniency for an offence that he did not commit or did not in any event believe that he committed." Per Fatiaki J at page 2.

It is submitted that counsel, after taking full instruction would not have so averred if there were ambiguity in their pleas or if their pleas were involuntary, and would have, given his experience on the bench, sought an alternative cause of action.

It is therefore submitted that there was nothing placed before the Magistrates Court which cast doubt on the voluntariness and the equivocality of the applicants’ plea.

2.9 The issue of equivocality of plea was never raised by the applicants at the hearing of the appeal in the High Court, where there was an opportunity to do so."

(2) Section 22(1) of the Court of Appeal Act. This reads as follows -

22.-(1) Any party to an appeal from a magistrate's court to the Supreme Court may appeal, under this Part, against the decision of the Supreme Court in such appellate jurisdiction to the Court of Appeal on any ground of appeal which involves a question of law only (not including severity of sentence):

Provided that no appeal shall lie against the confirmation by the Supreme Court of a verdict of acquittal by a magistrate's court."

Two points are clear. First, that on a second appeal a ground of appeal involving a question of law only, can be urged against conviction. Secondly, that there is an absolute prohibition against an appeal on severity of sentence, unless of course the sentence passed was beyond the competence or jurisdiction of the Court. Here it is clear that the sentences imposed were indeed within the jurisdiction of the appeal judge.

In Prem Chand & Reginam 22 FLR [1976] 100 at page 104 the Fiji Court of Appeal considered the limitation placed by the words "a question of law only". It held -

"We read section 22(1) as meaning that there is no jurisdiction to entertain an appeal against sentence which goes to the quantum or extent of a sentence even if a question of law is involved."

In the present case it is clear that grounds 1 to 5 constitute an appeal against severity of sentence and as such the Court of Appeal will not entertain them.

(3) The Appellants did not appeal to the High Court against conviction on the ground that they had been convicted, allegedly, on an unequivocal plea. Nor did they make that an issue at the High Court hearing.

re Grounds 7 and 8

As to grounds 7 and 8 of the appeal I have had the opportunity of reading the Appellants' submissions and as well as Respondent's reply thereto.

Basically both these grounds raise the question of jurisdiction and as such involve a question of law. I am inclined to agree with the Respondent's view that a distinction has to be drawn between a trial Court's powers under Section 214 of the Criminal Procedure Code and the powers of an Appellate Court under Section 319 of the same Code especially bearing in mind the provisions of Section 169. Furthermore consent of an accused does not appear to be necessary if a conviction is entered for misdemeanour under Section 341 of the Penal Code. The issues raised under grounds 7 and 8 are nevertheless arguable and no doubt will be dealt with by the Court of Appeal if leave to appeal out of time is granted. At this stage, prima facie, they do not appear to be valid enough to suggest that the convictions are likely to be set aside. If they did I would have certainly considered granting bail.

Outcome

Having regard to the length of the sentences I do not think there is any risk that Appellants will have served their effective sentences before their appeal is heard.

The Appellants have failed to satisfy me that this is a proper case in which bail ought to be granted.

Bail application refused in respect of each Appellant.

However as regards leave to appeal out of time is concerned I have reluctantly decided to grant this application although I am not entirely satisfied with the reasons given for the delay. I have granted this indulgence to enable the Court of Appeal to deal with questions of law if the Appellants wish to pursue their appeal.

The Appellants are given 14 days within which to file and serve revised grounds of appeal on questions of law only not including severity of sentence. The Appellants are to comply with the requirement of Rule 36(1) of the Court of Appeal Rules by stating precisely in their notice of appeal the questions of law upon which the appeal is brought.

Sir Moti Tikaram
President, Fiji Court of Appeal

16 January 1998

Aau0013d.97s