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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT
CRIMINAL APPEAL NO. AAU0010 of 2014
High Court Action No. HAC 137 of 2010
BETWEEN:
MAHENDRA PAL CHAUDHRY
Appellant
AND:
THE STATE
Respondent
Coram: Chandra JA
Temo JA
Kotigalage JA
Counsel: Mr. A. K. Singh & Mr. M. A. Khan for the Appellant
Mr. M. D. Korovou for the Respondent
Date of Hearing: 7th and 8th August 2014
Date of Judgment: 14th August 2014
JUDGMENT
[1] This is an appeal against the conviction and sentence imposed by the High Court on the Appellant consequent to his being charged under the Exchange Control Act ("ECA") (Cap. 211).
[2] There has been a sequence of events which led to the charging of the Appellant under the said Act and it would be relevant to set out the sequence of events before dealing with the grounds of appeal.
[3] A helpful summary of such events is found in the Ruling made on 25 July 2012 of Justice Goundar relating to the seeking of two pre-trial orders for a stay of prosecution on the ground of abuse of process and to quash the Information for not disclosing an offence when the Appellant was charged with three counts of breach of the Exchange Control Act, five counts of money laundering and five counts of making false statements in his income tax returns. The summary of events as set out in the said Ruling have been based on the affidavit filed by the Appellant when seeking the pre-trial orders.
[4] The Appellant had been elected as the Prime Minister of Fiji in 1999 and had been deposed in a Coup that had taken place in 2000 when he had been held hostage. After his release he had gone to Australia for medical treatment. Fresh elections had taken place in 2001 and the Appellant remained a member of Parliament.
[5] After the political upheaval in 2000 although he had been offered permanent residency in Australia he had not done so and had proceeded to India. While in India he had received donations which had been deposited into his personal bank account in Australia.
[6] In 2004 the Fiji Island Revenue & Customs Authority (FIRCA) had inquired about the source of the funds in the Australian Bank Account. The Appellant after advice from his Accountant, had decided to disclose the income generated as interest from the funds and pay taxes in Fiji. He had paid his outstanding taxes to FIRCA and had complied with Fiji's tax laws.
[7] The issue of the Appellant's Australian funds had been raised in the Fijian Parliament by the then Prime Minister.
[8] The Appellant was appointed as the Finance Minister by the interim government of Fiji after the coup in 2006. As the media had published matters relating to his tax affairs he had expressed his concerns to the Prime Minister in 2008.
[9] This resulted in the appointment of a Committee to conduct an inquiry and the Committee in its report incorporating its findings stated that the inquiry could not establish any breach of laws by the Appellant. Consequently, he was informed by the Prime Minister that in terms of the findings of the Committee that the matter was no longer an issue as far as the Prime Minister and the Government were concerned and the Appellant resumed his ministerial duties from which he had stepped aside while the inquiry was being held. The Appellant had resigned from his post as Finance Minister on 18 August 2008.
[10] The Reserve Bank of Fiji, however not being satisfied with the matter, after obtaining legal opinion, had notified the Appellant in writing on 23 October 2009, that he had breached the provisions of the Exchange Control Act retaining the funds in Australia and wanted the funds to be remitted to Fiji within 30 days or face legal proceedings.
[11] The Appellant had responded and requested the Reserve Bank to furnish him in detail the circumstances giving rise to the breaches of the Exchange Control Act.
[12] On 23 July 2010 the Director of Public Prosecutions filed 10 charges against the Applicant which were the subject matter of the application before Justice Goundar seeking pre-trial orders on the basis of abuse of process and non disclosure of an offence.
[13] The Applicant sought to disqualify Justice Goundar from presiding in his trial on the ground of apparent bias. The grounds adduced being:
"(i) That it was possible that judicial officers, who were resident in the country between late 2005 – late 2009 may have read, watched or heard news reports on his tax records and details and formed an opinion one way or another and this could prejudice his right to a fair trial.
(ii) That since Justice Goundar worked as a prosecutor in the Office of the Director of Public Prosecutions before he was appointed to the bench as a judge of the High Court and he had personal friendship with the Director of Public Prosecutions and that he was maintaining a relationship with his previous office even after joining the bench. That he was the Chief Guest at the closing ceremony of a workshop on Money Laundering organized by the Office of the Director of Public Prosecutions.
(iii) That Justice Goundar had granted an order for production and inspection of documents in relation to the Appellant's tax matters."
[14] Justice Goundar in a reasoned Ruling dated 19 November 2010 dismissed the application stating that no grounds for his disqualification existed in fact or in law.
[15] Justice Goundar by his Ruling dated 25 July 2012 permanently stayed Counts 9-12 being the charges under the Penal Code and quashed the money laundering charges (Counts 4-8). He also ruled that no abuse of process had been established in relation to the charges under the Exchange Control Act and that the trial would proceed on counts 1 to 3 only.
[16] On 26 April 2013 when the matter came up before Justice Madigan in the High Court, the Appellant made an application to have the proceedings in respect of the three offences permanently stayed on the grounds of (i) abuse of process and (ii) that the offences charged were no known offences in Fijian Law.
[17] Having considered the material filed before Court and the submissions Justice Madigan by his reasoned Ruling delivered on 15th May 2013 dismissed the application for permanent stay.
[18] The Appellant made an application to Justice Madigan to recuse himself from presiding over the trial of the Appellant. His grounds of application were:
"(i) The applicant is "informed" that the Judge attended a workshop conducted by the DPP from 16–23 July 2010 where these proceedings were "exhaustively discussed" and that the Judge made a suggestion that a schedule of the appellant's bank accounts be attached to the information.
(ii) The Appellant understand and believes to be common knowledge that the Judge had in the past socialized with the Prosecutor in the proceedings, one Mr. Clive Grossman, and had previously a working relationship with Mr. Grossman's Junior counsel, Ms. Elizabeth Yang."
[19] Justice Madigan in a reasoned Ruling dated 18 September 2013 refused the application for recusal.
[20] The Appellant by way of notice of motion and affidavit dated 15 October 2013 filed a notice of motion (HAM 236 of 2013) moving the Court to make the following orders:
"(i) that the information dated 3 October 2013 be dismissed (sic) pursuant to section 290 (1)(e) of the Criminal Procedure Decree 2009 on grounds of invalidity and of failing to disclose an offence at law; and/or alternatively;
(ii) that the information (sic) as filed against the applicant be struck out and dismissed pursuant to section 290(1)(f) of the Criminal Procedure Decree 2009 as such indictment against him is in breach of his fundamental rights under the Constitution of Fiji as currently in force.
(iii) that all pending interlocutory applications and orders against the applicant be dismissed."
[21] The Appellant by way of a notice of motion (HAM 239 of 2013) dated 16th October 2013 made an application:
"(i) that the information dated 3 October 20th be quashed on the ground that there was no nexus between funds alleged to be held overseas and Fiji Islands balance of payments.
(ii) that the applicant has had no notice of the alleged offences, and that the applicant does not fall within the class of persons referred to in section 36(a–e) of the Fifth Schedule of the Exchange Control Act.
(iii) that the Exchange Control Act provisions do not apply to the applicant and that there is no requirement under law for the applicant to sell any foreign currency.
(iv) that the indictment cannot be amended to create an offence."
[22] In the said application Counsel for the Appellant had proffered three major grounds why the three charges should be struck out or quashed. The grounds were:
A. Jurisdiction (in that there was no consent to the prosecution).
B. The charges are not apposite to the underlying facts.
C. The charges are bad for duplicity and multiple ambiguities.
[23] After considering the submissions of Counsel regarding these applications Justice Madigan by his Ruling dated 6th March 2014 refused the applications.
[24] The Appellant made a further application for recusal of Justice Madigan from presiding over his imminent trial on the basis that Justice Madigan had made findings of fact which would lead a fair minded observer to perceive that he would not be able to receive a fair trial.
[25] Justice Madigan in his Ruling dated 31st March 2014 referred to the material in the affidavit filed by the Appellant and Counsel's submissions made on hearing the application where Justice Madigan was said to have made statements which were alleged as having pre-judged the case against the Appellant and stated that the issue of whether funds are caught by the ECA will be an issue of fact and law to be decided by the assessors and the Court on the evidence and on directions of law in due course, refused the application for recusal.
[26] The Appellant made a further application seeking to have excluded from the evidence in his trial all documents seized by the Police in diverse locations pursuant to search warrants, on the basis that the search warrants were defective and not authorized by the Minister as stipulated in the Exchange Control Act. Further he sought to have officers of Fiji Customs & Revenue Authority prohibited from giving evidence on any matters pertaining to the tax documents on the basis that S.52(3) of the FRCA Act 1998 prevents officers from giving such evidence.
[27] By his reasoned Ruling dated 1st April 2014 Justice Madigan allowed the seized documents to be admitted in evidence and allowed the FIRCA witness(es) to be called to speak to the documents.
[28] The trial was held on 2nd and 3rd April 2014 and the Agreed Facts were finalized and the prosecution led the evidence of only one witness, Sabrina Hanif, Board Secretary of Reserve Bank.
[29] The charges against the Appellant in the information were as follows:
FIRST COUNT
Statement of Offence
FAILURE TO SURRENDER FOREIGN CURRENCY: Contrary to Section 4 of the Exchange Control Act, Cap 211 and section 1 of Part II of the Fifth Schedule of the Exchange Control Act, Cap 211.
Particulars of Offence
MAHENDRA PAL CHAUDHRY in between the 1st day of November 2000 and the 23rd day of July 2010, at Suva in the Central Division being a resident in Fiji entitled to sell foreign currency but not being an authorised dealer, however being required by law to offer it for sale to an authorized dealer, retained the sum of $1,500,000.00 ($1.5 million) Australian Dollars for his own use and benefit, without the consent of the Governor of the Reserve Bank of Fiji.
SECOND COUNT
Statement of Offence
DEALING IN FOREIGN CURRENCY OTHERWISE THAN WITH AN AUTHORISED DEALER WITHOUT PERMISSION: Contrary to Section 3 of the Exchange Control Act, Cap 211 and section 1 of Part II of the Fifth Schedule of the Exchange Control Act, Cap 211.
Particulars of Offence
MAHENDRA PAL CHAUDHRY in between the 1ST day of November 2000 and the 23rd day of July 2010, at Suva in the Central Division being a resident in Fiji but not being an authorised dealer, did lend the sum of $1,500,000.00 ($1.5 million) Australian Dollars to persons otherwise than an authorized dealer, namely the Financial Institutions in Australia and New Zealand as listed in Annexure marked "A", without the permission of the Governor of the Reserve Bank of Fiji.
THIRD COUNT
Statement of Offence
FAILURE TO COLLECT DEBTS: Contrary to Section 26(1)(a) of the Exchange Control Act, Cap 211 and section 1 of Part II of the Fifth Schedule of the Exchange Control Act, Cap 211.
Particulars of Offence
MAHENDRA PAL CHAUDHRY in between the 1ST day of November 2000 and the 23rd day of July 2010, at Suva in the Central Division being a resident in Fiji having the right to receive a sum of $1,500,000.00 ($1.5 million) Australian Dollars from the Financial Institutions in Australia and New Zealand as listed in Annexure marked "A", caused the delay of payment of the said sum, in whole or in part, to himself by authorizing the continual re-investment of the said sum together with interest acquired back into the said Financial Institutions without the consent of the Governor of the Reserve Bank of Fiji."
[30] The Agreed Facts filed on 2 April 2014 were the following:
"1. The Accused is MAHENDRA PAL CHAUDHARY, father's name is Ram Gopal Chaudhary ("the Accused").
2. The Accused was a Fijian resident between 1st day of November 2000 and 23rd day of July 2010.
3. At the relevant times the Accused had the following overseas accounts ("the Overseas Accounts") in the following financial institutions in Australia and New Zealand ("the Financial Institutions"):-
(a) Cash Management Call Account No. 06-2245-10088252 with the Commonwealth Bank of Australia;
(b) Commonwealth Balance Fund Account No. 39920061 with the Commonwealth Managed Investments Limited, Australia;
(c) Term Deposit Account No. 9800000016059 with the ANZ National Bank Limited, New Zealand;
(d) Account No. 2006 8875 with the Perpetual Investments Management Limited, Australia;
(e) Colonial First State Income Fund Account No. 0900-0670-5669 with the Colonial First State Investments Limited, Australia;
(f) FirstChoice Investments Account No. 0700-0673-5908 with the Colonial First State Investments Limited, Australia;
(g) FirstChoice Investments Account No. 070-011 3363221 with the Colonial First State Investments Limited, Australia;
4. At the relevant times the Financial Institutions listed n Annexure A of the Amended Information and paragraph 3 hereinabove were not "authorized dealers" in terms of the Exchange Control Act, Cap 211 ("ECA").
5. More particularly, the Accused's Cash Management Call Account was maintained with the Ryde, New South Wales branch of the Commonwealth Bank, Australia. It was not an authorized dealer in terms of ECA.
6. Further and more particularly, the Accused's Term Deposit account was maintained with the Wellington branch of the ANZ National Bank Limited, New Zealand. It was not an authorized dealer in terms of ECA.
7. At the relevant times, the Accused was not an "authorized dealer" in terms of ECA.
8. In May, 1999 the Accused was sworn in as Prime Minister of Fiji until May 2000 when he was deposed. The Accused later travelled to Australia.
9. The Accused received the sums totaling over AU$1.5 million in the form of donations from people in India to assist the Accused and his family to leave Fiji following the political upheaval here in May 2000 and to establish residence in Australia.
10. The said AU$1.5 million was made up of funds deposited into the Accused's Cash Management Call Account numbered 06-2245-10088252 with the Commonwealth Bank, Australia ("the Accused's Cash Management Call Account").
(a) On 1 November 2000, the sum of AU$503,000;
(b) On 22 February 2001, the sum of AU$486,890;
(c) On 15 April 2002, the sum of AU$514,148.50. (collectively "the Subject Funds")
11. The sum set out under paragraph 10(c) herein was deposited into the Accused's Cash Management Call Account by the Office of the Consul-General of Government, India. The Subject Funds were deposited with the knowledge and approval of the Indian Government.
12. At the relevant times and at least until 23 July 2010, the Subject Funds in the Accused's Cash Management Call Account have not been brought into Fiji but remained reinvested in accounts abroad including the Overseas Accounts by the Accused.
13. The Accused invested the sum in Australia.
14. In October 2000 the Accused returned to Fiji.
15. The Accused's tax agent Messrs. G Lal & Co. on behalf of the Accused confirmed that the subsequent capital contributions into the Accused's Overseas Accounts as identified below emanated from the Subject Funds from the Accused's Cash Management Call Account.
16. The following are principal examples of the movement of funds in the Overseas Accounts.
17. On 26 February 2001, AU$400,000 was deposited into Accused's Commonwealth Balanced Fund account numbered 39920061 with Commonwealth Managed Investments Limited, Australia.
18. Since at least about 26 March 2001, about NZ$150,000 was deposited with the Accused's Term Deposit account numbered 981000000116059 with ANZ National Bank Limited, New Zealand.
19. On 17 September 2002, AU$500,000 was invested into the Accused's account numbered 20068875 with Perpetual Investment Management Limited, Australia.
20. On 17 September 2002, AU$500,000 was invested into the Accused's First State Income Fund account numbered 0900-0670-5669 with Colonial First State Investments Limited.
21. On 19 September 2002, the Accused closed the Accused's Commonwealth Balanced Fund Account with Commonwealth Managed Investments Limited, Australia and the balance of AU$378,979.18 was paid out. On the same day, the same amount was deposited into the Accused's Cash Management Call Account.
22. On 23 September 2002, AU$380,000 was withdrawn from the Accused's Cash Management Call Account. On 24 September 2002, AU$380,000 was invested in the Accused's FirstChoice Investments Account numbered 0700-0673-5908 with the Colonial First State Investments Limited.
23. On 4 August 2005, the Accused closed his account with Perpetual Investment Management Limited, Australia and the balance of AU$488,231.02 was paid out. On 5 August 2005, the same amount was deposited into the Accused's Cash Management Call Account.
24. On about 30 January 2006, the Accused closed his First State Income Fund account with Colonial First State Investments Limited and the balance of AU$472,722.56 was paid out.
25. On about 6 February 2006, about AU$450,000 was invested with the Accused's FirstChoice Investments account numbered 070-0113366221 with the Colonial First State Investments Limited.
26. All foreign currency including Australian dollars and New Zealand dollars are specified currency under ECA.
27. On 7 January 2007, the Accused was appointed Minister for Finance (with additional portfolio responsibilities).
28. On 23 August 2008, the Accused resigned from his position as Minister for Finance (with additional portfolio responsibilities).
29. The accused received the letter dated 23 October 2009 from Messrs. Siwatibau & Sloan on behalf of the Reserve Bank of Fiji.
30. The Accused sent the letter dated 18 November 2009 to Sada Reddy of the Reserve Bank of Fiji in reply to the said letter dated 23 October 2009.
31. The Subject Funds remained invested in Australia at all relevant times."
[31] After the closure of the case for the prosecution the Defence made an application for No Case to Answer and Justice Madigan by his Ruling dated the 3rd April 2014 ruled that all essential elements of the offences were established by the agreed facts and that there was a case to answer on each count.
[32] The learned Judge delivered his summing up on 4 April 2014 and the Assessors brought in a unanimous verdict of guilty. Thereupon the learned Judge delivered his Judgment on 4 April 2014 agreeing with the Assessors and convicted the Appellant on all three counts in the information.
[33] The Appellant after he was convicted moved Court to have the said judgment arrested on the grounds that the information does not state any offence which the Court has power to try pursuant to section 239 of the Criminal Procedure Decree.
[34] Justice Madigan by his reasoned Ruling delivered on 30 April 2014 refused the said application.
[35] After the Appellant led evidence regarding mitigation the learned trial Judge by his sentencing judgment dated 2 May 2014 ordered as follows:
"1. I order that the convictions remain recorded against the accused's name.
2. I order that he pay a fine of 20,000 penalty units (equivalent to FJD$2 million).
3. I order that the fine be paid into Court by 30 June 2014 failing which he is to serve a term of imprisonment of 15 months in default.
4. If MPC is to serve a term of imprisonment pursuant to Order No.3 hereof, he is to serve a minimum term of 12 months before being eligible for parole.
5. MPC is to comply with the terms of the E.C.A. and offer all of his foreign funds held abroad to an authorised dealer, such repatriation to be effected by 31 July 2014. Failure to do so will make him liable to prosecution for continuing breach of the E.C.A.
6. I order that the prohibition to access his funds be lifted as of today.
7. I order that the accused continue to be barred from travel out of Fiji until he has complied with Orders 2, 3 and 4. Once the fine is paid or the sentence is served he will then be free of restrictions save as to the need to comply with Order 5."
[36] The Appellant filed notice of appeal against his conviction on 16 April 2014 (prior to the sentencing judgment) and thereafter filed an amended notice and grounds of appeal against conviction and sentence on 8 May 2014.
[37] There were three applications made before a single Judge of the Court of Appeal, for a stay of conviction and sentence pending
the determination of the appeal, leave to appeal against conviction and sentence and an order to grant an urgent hearing of the appeal.
[38] Justice Calanchini President of the Court of Appeal after hearing the parties granted leave to appeal as set out in his decision,
dismissed the application for stay of conviction and sentence pending appeal and granted the application for urgent hearing. The
Appellant was also directed to file and serve further amended notice and grounds of appeal by 4.00p.m. on Friday 18 July 2014 in
compliance with Rule 35(4) and Rule 36(1) of the Court of Appeal Rules setting out concise grounds of appeal.
[39] The Appellant filed Amended Notice and Grounds of Appeal as directed on 18 July 2014 and thereafter filed a further Amended Notice and grounds of Appeal on 24 July 2014. In the said notice of Appeal the following grounds of appeal were set out a summary of which as captioned in the said notice:
"1. Prejudgment, bias and the denial of a fair trial
2. Error or mistake of fact and/or law on objects and/or application of the Exchange Control Act
3. Error of law on requirement to open a foreign Bank account
4. Error of law and fact in summing up on section 3 of the Exchange Control Act
5. Error of law and fact in summing up on section 4 of the Exchange Control Act
6. Error of law and fact on summing up on section 26(1) of the Exchange Control Act
7. Error of fact and law on application of section 36(1) of the Exchange Control Act
8. Error of fact and law on application of section 39(3) of the Exchange Control Act
9. Error of law in holding that the alleged offences were strict liability offences
10. Error of law in application of the delegation of powers as prescribed under section 39(4) of the Exchange Control Act
11. Excess of jurisdiction, error of law and application and/or consideration of irrelevant and/or prejudicial matters used to arrive at sentence."
[40] The Appellant and the Respondent filed their written submissions and when the Appeal was taken up for hearing before us the Appellant's Counsel made oral submissions and stated that he was emphasizing on grounds 1 to 6. He stated further that he was also relying on the written submission filed in respect of grounds 7 to 10.
[41] The counts leveled against the Appellant are on the basis that the provisions of the Exchange Control Act have been violated by him. The objective of the Exchange Control Act (Cap.211) has been set out in its preamble as:
"AN ACT TO CONFER POWERS, AND IMPOSE DUTIES AND RESTRICTIONS, IN RELATION TO GOLD, CURRENCY, PAYMENTS, SECURITIES, DEBTS, AND THE IMPORT, EXPORT, TRANSFER AND SETTLEMENT OF PROPERTY, AND FOR PURPOSES CONNECTED WITH THE MATTERS AFORESAID."
[42] Justice Byrne (as he then was) in The State v. The Governor of the Reserve Bank of Fiji ex parte Reddy's Enterprises Ltd [1990] FJHC 106; [1990] 36 FLR 168 (28 November 1990) in his judgment of the High Court stated:
"The Exchange Control Act is modelled on the English Exchange Control Act (1947) which was repealed in 1987 by the Finance Act of 1987. The two Acts are broadly similar ......
Like its English counterpart the objects and the scheme of the Act impose Reserve Bank control on a wide variety of transactions included directly or indirectly in dealing with gold and foreign currencies, payment to persons resident outside Fiji, the import and export of bank notes, treasury bills and certain other items, and payment for the export of goods. The general purpose of exchange control is to conserve a country's overseas funds and foreign exchange resources."
Citing excerpts from the book "Banking Law and Practice in Australia" by Weerasooriya and Coops, 1976 stated:
"The objective of exchange control is to conserve the country's overseas funds and foreign exchange resources."
[43] Counsel for the Appellant as well as the Respondent referred to the decision in Reddy's case (supra) in the High Court which was set aside by the Court of Appeal and on appeal the Supreme Court retained the judgment of the High Court and endorsed most of the views expressed by Justice Byrne in the High Court regarding the interpretations of the relevant sections in the Exchange Control Act.
[44] Counsel for the Appellant, Mr. Singh, prefaced his arguments regarding the grounds of appeal by stating that the Prosecution failed to prove and Justice Madigan failed to sum up on the elements of right to receive specified currency and entitlement to sell foreign currency.
[45] Mr. Singh's position was that the right to receive specified currency and the entitlement to sell/lend foreign currency under the ECA form the bases of the charges against the Appellant.
[46] He stated that the Appellant had at all material times overseas bank accounts where deposits being gratuitous gifts were made by the staff of the Indian Consul General between 2000-2002, and that there was no evidence led at the trial that these deposits were received by the Appellant for credit or balance at a bank or for any payment.
[47] He stated further that Section 26 was the main section that has to be considered and that sections 3 and 4 were parasitic on section 26. That it had to be proved that the Appellant had breached section 26(1) and the breaches under sections 3 and 4 would have been consequential breaches arising out of section 26(1). He laid emphasis on "right to receive any specific currency" as an element of the charge under section 26(1). Section 26 relates to the receipt to a duty to collect a debt which is necessary to create the offence, that there was no evidence of any debt owed to the Appellant and which he delayed in collecting and also that there was no evidence that the Appellant had a right to receive any specified currency under section 26(1).
[48] He referred to the charge under section 26 (cited above at paragraph 29) and related same to the summing up of Justice Madigan at paragraphs 17 and 18 of the summing up which read as follows:
"17. The third count the accused faces is called a failure to collect debts. It simply means that being a holder of foreign exchange abroad, and being resident in Fiji, he delayed bringing those funds back into the Fijian banking system and kept them for himself by continuing to reinvest them. To prove to you so that you are sure before you can find the accused guilty the State must establish the following elements of the offence:
18. Now Ladies & Gentlemen the State would say the first element is proved by Fact 2, the second element by Fact 3, the third element is proved by Fact 31 and that there is no evidence before you to prove that he had consent of the Governor."
[49] His position was that Justice Madigan's reference to "it simply means that being a holder of foreign exchange abroad, and being resident in Fiji, he delayed bringing those funds back into the Fijian Banking system and kept them for himself by continuing to reinvest them," was an incorrect statement of the law as it fails to consider the element of "right to receive any specified currency/foreign exchange". He cited the decision in Reddy's case in support of his argument.
[50] To consider these arguments it will be necessary to consider the charge based on section26. The charge refers to the Appellant having the right to receive a sum of $1,500,000 Australian Dollars from the Financial Institutions in Australia and New Zealand as listed in Annexure "A".
[51] There is no dispute as stated in the Agreed Facts that the Appellant had the monies stated in the charge in the Financial Institutions in Australia and New Zealand which obviously were in the currencies of those countries. The charge does not speak of a situation as contemplated by Mr. Singh in his argument relating to the right to receive which he bases on the gratuitous donation that the Appellant had received from India.
[52] The charge does not speak of the Appellant's right to receive any monies before the deposit of the monies in the Australian and New Zealand Financial Institutions. The charge relates to the position after the monies had been deposited in the Appellant's Accounts which catches up the with provisions in section 26.
[53] The ECA provisions deal with the position of a Fiji resident having monies in an overseas account and the obligations cast on such a person regarding such monies. Section 26 though being referred to by Mr. Singh as the main section on which sections 3 and 4 are parasitic is a section which by itself imposes a mandatory duty on a resident of Fiji regarding monies he has in an overseas account. The section speaks of a delay in remitting such monies to Fiji while sections 3 and 4 deal with different obligations in respect of such monies.
[54] We are not in agreement with the argument of Mr. Singh that the charge based on section 26 relates to the receipt of monies as contemplated by him as the charge refers to the monies that the Appellant had in his overseas accounts which were admitted by him and not to the position of the manner of receiving monies which were deposited in his overseas Account.
[55] In the light of this position we find that the directions of Justice Madigan in paragraph 17 cited above was a correct explanation of the elements of section 26. We will deal with paragraph 18 when we deal with Appeal Ground 6.
[56] Mr. Singh also cited the decision of the Supreme Court in Reddy's case The Governor of Reserve Bank of Fiji v. Reddy's Enterprise Ltd [1996] CBV 0001/93] to support his argument regarding the right to receive monies. In the first instance it must be stated that the factual situation in Reddy's case was quite different in that it related to the receipt of monies due on an Insurance policy where the payment was done in England and a request had been made to invest such monies in England without bringing them over to Fiji.
[57] The Supreme Court in Reddy's case stated S.26 is directed only at conduct by Fiji residents seeking to delay or evade the receipt of payments due to them in the context of the facts in that case. The position in the present case is different in that it deals with the position of a person having monies in his overseas accounts regarding which he had rights of receiving payments as he had all the rights regarding such monies subject to any conditions imposed by the Financial Institutions regarding repayment.
[58] Therefore the argument of Mr. Singh regarding the necessity of a contract between two persons for good consideration and the agreement about place of payment based on the dicta cited by him from Reddy's case in relation to section 26 does not support him.
[59] Mr. Singh cited the decision of the High Court in First Mortgage Ltd v. Romanella Pty Ltd [1992] FJHC 80; [1992] 38 FLR 71 (22 April 1992) to the effect that the ECA applied only to contracts entered into in Fiji and that since there was no contract in Fiji by the Appellant the ECA would not apply to him. The decision in Romanella goes against the purpose and ambit of the ECA and we do not accept the argument based on that decision.
[60] In the above circumstances, we are not in agreement with the arguments of Mr. Singh which prefaced the arguments on the specific grounds of appeal regarding the purpose and ambit of section 26 of the ECA.
Appeal Ground 1 – Prejudgment, bias and the denial of a fair trial
[61] It was the contention of the Appellant that the trial Judge erred in fact and law when he made findings of fact and law on the subject matter/s forming the bases of the charges in a reported interlocutory ruling (Misc 236/239 of 2013) wherein he said:
"[27] No matter how the Appellant may regard his funds in Australia and no matter what their provenance the fact is that they represent foreign exchange held by a Fijian resident and as such are caught by the terms of the Act;
[28] .....The funds being held abroad, the legislation creates the "nexus' and this limb of the Appellant's argument has no merit."
[62] As stated at paragraphs 20 and 21 above, an application was made on behalf of the Appellant at a pre-trial stage to stay proceedings which was refused by Justice Madigan.
[63] In order to consider the full impact of the said paragraphs as cited by the Appellant it is necessary to consider the nature of the application made by the Appellant which is summarized by the learned Judge at paragraph 22 of the Ruling and his comments which preceded paragraphs 27 and 28 which were as follows:
"22. As a second limb of Counsel's attack on the information, he submits that section 4 and 26 of the Exchange Control Act, sections which the applicant has been charged with, cannot apply to the facts as relied upon by the Prosecution and they are therefore bad law and should be quashed.
23. It must be stated that this argument as it was developed by Counsel appeared to cover the same ground that was advanced previously before Goundar J. and this Court, and neither application succeeded. There is no reason why the Court should entertain this part of counsel's submissions except out of fairness to his client and therefore for the last time the Court considers Counsel's submissions.
24. Mr. Reynolds submits that the charges (4 and 26) relate to activities with relation to overseas accounts and the sections must be construed as being applicable solely to activities within Fiji. He submits that section 4 only applies to situations where the relevant currency is in Fiji. The section means, he submits, that if a person in Fiji has foreign currency with him he must sell it to an authorised dealer. In support of this argument counsel seeks to rely on an artificial and narrow construction of s.4 by submitting for example that where no mention is made in the section of extra territoriality it must be construed generally within the jurisdiction and that any penal statute cannot be construed restrictively to the prejudice of the accused. He presses his point by again submitting(as in the two earlier applications) that there is no "nexus" between the monies held in Australia and Fiji or Fijian currency. He advances the proposition that were section 4 to be held to apply to currency held in foreign bank accounts, then all persons in Fiji, resident or tourist, with foreign bank accounts would be caught by the section and liable to prosecution. He prays in aid of this argument the dicta of the Supreme Court in Reddy's Enterprises Ltd [1996] FJSC which dealt with an amount in pounds sterling. He extends his argument to the construction of s.3 and s.26 of the Exchange Control Act. He prayed in aid examples of other jurisdictions and the impact there of exchange control legislation.
25. The Exchange Control Act was introduced in 1952 in Fiji in an attempt to regulate and conserve foreign exchange. It was modelled on similar legislation passed after the second world war in the UK. In the case of Reddy's Enterprises (supra) a case relied upon by the applicant, the Supreme Court said:
"The central issue in the appeal is the effect of the Exchange Control Act on this transaction. It is a comprehensive statute aimed at the protection of Fiji's reserves of gold and foreign currency and is modelled on the United Kingdom Exchange Control Act of 1947 which was repealed in 1987. It prohibits a wide range of transactions involving dealings by Fijian residents in gold, foreign currency and securities without the permission of the Minister."
And later when discussing section 4 of the Act and referring in particular to subsection 6, the Court said:
"This section is clearly aimed at achieving the transfer of gold and foreign currency held by a Fijian resident to Fiji through the commercial banking system by means of compulsory offers of sale."
26. Although the Reddy case is distinguishable in that it concerned the nature of the currency in question the principles made clear in the quotes above are that without doubt, the purpose of the legislation is to compel citizens or residents holding monies abroad to repatriate those funds to Fiji and bring the currency into the banking system by the requirements of Section 4."
[64] The matters set out in paragraphs 27 and 28 have to be considered together with the preceding paragraphs to get the a full understanding of what Justice Madigan had stated in those two paragraphs. The Appellant has taken these two paragraphs out of context and stated that they express a pre-judgment of the case before him. These two paragraphs have to be read together with the paragraph starting from paragraph 22 which clearly indicates what the Judge has stated in those two paragraphs. What the paragraphs complained of set out is the ambit within which the Court was going to deal with in the case against the Appellant and not a prejudgment of the issues in the case.
[65] The matters referred to in the said paragraphs are not matters which had not come to light at that stage of the case as the number of applications and affidavits of the Appellant filed in support of the several applications set out the fact that the Appellant had funds in overseas accounts and that the charges against him were in respect of such monies.
[66] The Appellant cited the case of Balaggan v. State [2011] FJHC 501; HAM 134.2011 (6th September 2011) where Justice Madigan had recused himself from hearing the case where he had made a statement regarding the accused whose trial was before him. The position in that case and the present are quite different and does not lend support to the Appellant's argument.
[67] It is well known that trial Judges make pre-trial orders on applications made to them prior to the trial proper. Goundar J in his Ruling regarding an application for recusal made in this same case by the Appellant (HAM 160 of 2010) which was refused by him stated:
"[26] In criminal cases, judges have to make pre-trial ruling and decisions during the trial. Not all rulings that a judge makes may be favourable to the accused. The mere fact that a judge has ruled against the interest of an accused is not a ground for disqualification. To do so will set a dangerous precedent because as soon as a judge makes an unfavourable decision he or she is disqualified from trying the accused and no case will ever be heard. The result will be contrary to the public interest to see all those who are charged with criminal offences are tried in accordance with the law."
[68] The prejudgment issue raised by the Appellant brings in the concept of bias and fair trial and was raised before Justice Madigan himself by application HAM 216 of 2013 (31 March 2013) seeking a ruling for recusal. Justice Madigan gave his ruling refusing the application and it would be pertinent to set out the following paragraphs from his Ruling which clearly set out the position that he had not prejudged the case before him:
"4. The applicant submits that I have prejudged matters of fact which are for the assessors to decide thereby leading to the perception of bias.
"13. Those funds were collected between 2000 and 2002 in New Delhi and other parts of India, including non resident Indians (sic) to assist the applicant and his family members to establish residence in another country following the political upheaval in Fiji in May 2000.
14. The donated funds, totaling approximately AUD 1.5 million were deposited by the Indian Consul General in Sydney into the personal bank account held by the applicant in Australia. The Applicant retained the funds in Australia. In 2004 he disclosed the income generated from interest on the funds, amending his tax returns and paid outstanding taxes to the Fiji Islands Revenue and Customs Authority".
... ... ...
15. The issue of whether funds are caught by the ECA will be an issue of fact and law to be decided by the assessors and the Court on the evidence and on directions of law in due course."
[69] The Supreme Court in Amina Begum Koya v. State [1998] CAV 0002 set out the procedure to be adopted where the issue of bias has been raised after trial. In Tikoniyaroi v. State [2011] FJCA 47; AAU0043.2005 (29 September 2011) those principles were followed and stated:
"We are not concerned with the question whether a judge or juror should be disqualified at the commencement of an action or trial, that is, when the course of the proceedings lies ahead and one is necessarily contemplating the realms of possibilities. Here we are concerned with a trial which has actually taken place and which the question whether there has been a miscarriage of justice on the ground that there was a real danger of bias or reasonable apprehension or suspicion of bias.
In the determination of that ground, the record of the trial, showing how it was conducted by the trial judge, is of fundamental importance. Generally speaking, if the records were to demonstrate that a judge sitting with a jury conducted a trial impeccably, it would be difficult to establish that there was a real danger that the trial was vitiated by apparent bias or a fair-minded observer, knowing the facts, would reasonably apprehend and or suspect that such was the case."
[70] A further matter that can be considered regarding the argument relating to pre-judgment is the fact that the Agreed Facts filed by the Appellant set out the facts related to the contents of paragraphs 27 and 28 which by themselves was an admission that what was stated in paragraphs 27 and 28 were setting out facts relating to the case before Court.
[71] The Appellant argues that the Agreed Facts were filed subsequently and therefore cannot be considered in that manner. The several applications for interlocutory orders, the submissions of Counsel and the affidavits of the Appellant accompanying such applications were related to the Agreed Facts that were filed. If the argument is that the Appellant filed the Agreed Facts subsequently, the question can be asked as to why they were filed as agreed facts if the agreed facts were supportive of that position stated by the learned trial Judge at paragraphs 27 and 28.
[72] In view of the reasons set out above it is our view that appeal ground no 1 lacks merit and is dismissed.
Appeal Ground No.2 – Error or mistake of fact and/or law on objects and/or application of the Exchange Control Act
[73] This ground is based on Count 1 of the information which relates to section 4 of the Exchange Control Act.
[74] Count 1 has been set out at paragraph 29 above and relates to the Appellant not being an authorized dealer retaining 1.5 million Australian dollars for his own use and benefit without the consent of the Governor of the Reserve Bank of Fiji without offering it for sale to an authorized dealer.
[75] The Appellant argues that the learned trial Judge in his summing up at paragraph 11 erred in law which paragraph 11 is as follows:
"[11] The first charge that the accused faces is a charge alleging that he is in breach of section 4 of the Act. That section in the simplest of terms says that any person resident in Fiji who has money overseas in foreign currency and he is not a person authorised to have it, then he must offer that money to a person who is authorised to hold it, unless he has permission from the Minister to keep that money or permission to give it to somebody else. Persons authorised are called "authorised dealers" and for the purposes of the Act are only in Fiji, usually banks. So what the State must prove to you so that you are sure is this:
(1) That at the time, that is from November 2000 to July 2010 the accused was a resident of Fiji.
(2) That he had foreign currency overseas.
(3) That he was not an authorised person to hold foreign currency.
(4) That he did not have the Minister's permission to have the Funds.
(5) That he did not bring the funds into Fiji."
[76] The first aspect of this argument is that the learned Judge appeared to confuse money with foreign currency as Money is not defined in the ECA. He cited section 2 of the ECA which defines foreign currency as:
"any currency other than Fiji currency, and includes a reference to any right to receive foreign currency in respect of any credit or balance at a bank".
[77] In paragraph 11 of the summing up the learned Judge refers to "money overseas in foreign currency". This in our view is a reference to foreign currency as defined in section 2 which speaks about "any currency other than Fijian currency" firstly and has an inclusive part separated by the disjunctive word "and" when speaking of "a right to receive foreign currency in respect of any credit or balance at a bank. The Appellant's argument fails to consider this definition as an inclusive section in relation to the definition of foreign currency and therefore the consideration of the right to receive or entitled to receive foreign currency is not relevant.
[78] In view of our position regarding the interpretation given to "foreign currency" the Appellant's arguments regarding right to receive, entitle to receive, the necessity of a contract etc have no relevance and are misconceived. Therefore there was no necessity for the Prosecution to prove the entitlement or right to receive foreign currency in relation to count 1. The Appellant relates this argument in relation to counts 2 and 3 also, therefore our position regarding 'foreign currency' would apply to those counts as well.
[79] The contention of the Appellant that the failure to prove the element of entitlement and right to receive meant that all the constituent elements of the offences in count 1 and 3 were not proved. We do not agree with this contention for the reasons stated above. We also state that the learned Judge set out the elements in section 4 correctly and in the simplest form to the Assessors.
[80] It is also our view that the directions on the law regarding section 4 of the ECA was in keeping with the decision of the Supreme Court in Reddy's case where it was held:
"However, among other specific provisions the protection of Fiji's foreign exchange reserves is secured by the requirement in s.4 to offer specified foreign currency to an authorized dealer; and by the default provision in s. 26(2) giving the Minister the power of obtaining or expediting receipt or payment."
[81] A further argument of the Appellant in relation to grounds 2 was that the prosecution did not prove that the Appellant had not been granted or denied permission by the Minister to retain the monies subject to the charge/s.
[82] At paragraph 12 of the summing up by the learned trial Judge he stated:
"So where do you find the evidence for these elements of the offence? The agreed facts which you must accept say this:
(1) That the accused was at the relevant times "resident (Fact 2).
(2) That he had foreign currency in 7 different accounts. (Fact 3).
(3) He was not an "Authorised dealer" (or authorised person) to hold it (fact 7)
(4) The funds were never offered to an authorized dealer in Fiji (Fact 31).
And in addition there is no evidence before you that the accused had permission to hold the funds. On the contrary, there is evidence in P(3) a letter of the Reserve Bank that the accused had no authority to hold the funds."
[83] The learned trial Judge in (1) to (4) set out correctly matters relating to the evidence that was relevant for Count 1. However, he stated thereafter that "there is no evidence before you that the accused had permission to hold the funds". It is necessary to consider the nature of the Agreed Facts to consider this statement of the learned Judge. Agreed Fact 29 is that "The Accused received the letter dated 23 October 2009 from Messrs. Siwatibau and Sloan on behalf of the Reserve Bank of Fiji". What were the contents of that letter which is referred to as P1? It states that the Appellant had disclosed significant sums of foreign currency in Australian and New Zealand Bank accounts. That he disclosed that he used monies in these accounts to pay debts overseas. That by retaining such deposits he had breached section 3 of the Act, that by failing to repatriate to Fiji foreign currency in his possession, he had breached section 4 and by depositing funds with such financial institutions and failing to calling the debts thus created he had breached section 26 of the ECA. He was required to remit all the funds held overseas within 30 days and that the failure to do so would result in instituting legal proceedings.
[84] Though the Appellant responded to the said letter he did not comply with the direction given in the said letter and sought time and the basis for such conclusions drawn against him. The subsequent events were that the Appellant was indicted which resulted in the conviction of the Appellant.
[85] The failure to obtain permission to hold the funds was a fact that had to be established in the negative or as an omission. An act constitutes either a commission or an omission or a commission together with an omission. We are of the view that the Agreed Facts taken in their totality and specially the letter P1 which is an agreed fact is evidence of the omission of the Appellant and that therefore there was evidence before Court regarding same.
[86] The learned Judge's position that there was no evidence that the accused had permission to hold the funds has been interpreted by the Appellant as a failure by the prosecution to adduce such evidence. On the other hand there is also the possibility of stating that what the learned judge meant was "there was no evidence to show that the Appellant had got permission to hold the funds". Giving the Appellant the benefit of the doubt of interpreting the said statement in the Appellant's favour, it would amount to a misdirection by the learned Judge which would ensure to the benefit of the Appellant.
[87] However, it is our view that there was evidence by way of the Agreed facts taken in their totality that the Appellant had not got permission to hold the funds in the overseas accounts. Even though there was this misdirection we consider the proviso to section 23(1) of the Court of Appeal Act (Cap.12) to the effect that there was sufficient evidence to bring in a conviction on count 1 and that there has been no substantial miscarriage of justice.
[88] In relation to this ground of appeal there was also the contention that there was no requirement to obtain permission to open a bank account overseas. It was contended that the letter P3 referred to by the learned Judge in paragraph 12 of his summing up was an erroneous statement.
[89] A doubt arises as regarded the admissibility of the document P3. A perusal of the record and the evidence does not show how that letter referred to as P3 was admitted. A perusal of P3 shows that it was a letter issued by the Reserve Bank of Fiji regarding a search warrant dated 6 July 2010 that the Reserve Bank of Fiji did not provide approval to the Appellant for opening the accounts listed therein which were all overseas Banks and Institutions.
[90] Therefore the statement of the learned Judge that this letter P3 was evidence that the Appellant had no authority to hold the funds is incorrect. The charges against the Appellant were not regarding opening accounts overseas it was regarding holding of funds overseas. Although this statement would amount to a misdirection it does not take away the effect of the evidence that was available before the Assessors and the Court for the proof of Count 1. And as stated above in paragraph [87] we apply the proviso to section 23(1) of the Court of Appeal Act and hold that there was sufficient evidence to convict the Appellant on Count 1.
[91] Before considering the other grounds of Appeal we consider it appropriate to state our view on summing up in cases. We quote Archbold on Criminal Pleading, Evidence and Practice 2003 at paragraph 4-368:
"It has been said before but obviously requires to be said again. The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case. The search for universally applicable definitions is often productive of more obscurity than light. A direction is seldom improved and may be considerably damaged by copious recitations from the total content of a judge's notebook. A direction to a jury should be custom-built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts."
(per Lord Hailsham L.C., in R v. Lawrence [1982] A.C. 510 at 519, HL).
[92] The duty of a trial Judge is to direct the Assessors in the simplest possible language the relevant law relating to the offences
on which an accused is tried and to relate the evidence to the elements of such offences. If there has been a misdirection or non-direction
by the trial judge in a summing up it is the duty of the Appellant's counsel who appeared at the trial to deal with such matters
by bringing it to the notice of the Judge at the conclusion of his summing up and seek re-directions. No such re-directions were
sought by Counsel for the Appellant.
[93] Marshall JA in Fiji Independent Commission Against Corruption v. Tuisolia [2011] FJCA 49; Criminal Miscellaneous Action 29 of 2011 (29 September 2011) stated:
"........There is a general principle that it is the duty of the counsel to draw the trial judge's attention to deficiencies in the summing up and the failure to do so may debar the party from taking up the point on appeal: Singleton v. French 1986) 5 NS WLR 425."
[94] In the present case the Appellant who was defended by eminent counsel failed to seek re-direction after the learned trial Judge
concluded his summing up. Therefore the grounds of appeal which have been formulated in the present appeal have to be viewed in that
light and would apply to all the grounds where the Appellant is complaining about misdirections.
[95] In view of our reasoning given above we find no merit in appeal ground 2 and dismiss the same.
Ground 3 - Error of law on requirement to open a foreign Bank account
[96] The Appellant refers to paragraph 12 of the summing up and paragraph 3 of the Judgment regarding this ground of appeal.
[97] We have already considered the submissions regarding paragraph 12 of the summing up and expressed our view regarding the matter of the opening of a foreign bank account. Though it may be a requirement of the Reserve Bank Act to seek permission to have a foreign bank account as stated by the sole witness in the case Ms. Hanif there is no charge against the Appellant regarding same.
[98] In paragraph 12 of the summing up the learned trial Judge has not stated anything about the opening of an overseas bank account what he has stated is that the Appellant had no authority to hold the funds. As to the document P3 we have already expressed our views above.
[99] In paragraph 3 of the Judgment the learned Judge stated:
"3. In a letter dated 23 October 2009, solicitors for the Reserve Bank of Fiji wrote to MPC advising him that the reserve Bank was of the view that he was in breach of certain sections of the Exchange Control Act by retaining the overseas funds, and by not repatriating the funds to Fiji as required."
[100] The Appellant again resurfaces the argument relating to the right to receive any funds and that there was no such agreement in the Agreed Facts in relation to this ground of appeal. The Appellant further combines the position regarding opening an overseas account and repatriating funds to Fiji and states that the learned Judge was wrong in his reasoning.
[101] The learned trial Judge did not decide the issue regarding the opening of an overseas bank account and as stated earlier there was no such charge against the Appellant. The charge was relating to the repatriating of funds in overseas accounts as contemplated by section 26(1). We are of the view that the learned Judge was correct in finding that there was a breach of section 26(1) by the Appellant by failing to repatriate the funds which were in his overseas accounts.
[102] For the reasons stated we find no merit in appeal ground 3 and we dismiss that ground.
Ground 4 – Error of law and fact in summing up on section 3 of the Exchange Control Act
[103] This ground is based on section 3 of the ECA and refers to paragraph 14 of the summing up which is as follows:
"14. In looking then at the second count; an offence under section 3 of the Exchange Control Act. The matters that the State must prove to you so that you are sure for you to find the accused guilty of this offence are:
Again ladies and gentlemen, the prosecution would say to you that the first element is proved by fact 2; there is no evidence before you that the accused had permission from the Governor of the Reserve Bank to lend the money. I direct you as a matter of law that investing funds and by placing funds in banking institutions are loans to those banks which the banks must repay on demand, so the accused's admissions in paragraph 3 of the agreed facts would satisfy the second element."
[104] The learned trial Judge in paragraph 14 has set out the elements in section 3 of the ECA in (1) to (3) and has set out the evidence in the subsequent paragraph. He refers to Agreed Fact 2 regarding the first element, refers to Agreed Fact 3 regarding the 3rd element and uses the same phraseology as he did regarding Count 1 in respect of the 3rd element.
[105] We have already expressed our views regarding use of the phraseology by the learned trial Judge regarding permission of the Reserve Bank and base the same reasoning stated above regarding the said element in respect of this charge.
[106] It is our view that there was evidence to satisfy all the elements relating to the offence in terms of section 3 of the ECA. Further, as stated above in relation to Count 1 above, we also state that there was no substantial miscarriage of justice in convicting the Appellant on the second count in terms of the proviso to section 23(1) of the Court of Appeal Act.
[107] In arriving at this conclusion we state that Count 2 was relating to lending the sum of 1.5 million Australia dollars to persons otherwise than an authorized dealer without the permission of the Governor of the Reserve Bank of Fiji. Mr. Singh has again resurfaced the argument regarding the right to receive foreign currency in relation to foreign currency. We have already expressed our view regarding this argument and we do not intend to deal with it again.
[108] Mr. Singh's further argument was in relation to "lending" and states that according to the Fijian Banking Act putting money in a bank amounted to a deposit and not a loan. As against that argument the Respondent has submitted that the relationship between the customer and banker is one of creditor and debtor as stated in Foley v. Hill [1848] HL case 28. The learned trial Judge relying on the case in Arab Bank v. Barclays Bank [1954] AC 405 directed the assessors on the law relating to investing funds and stated that placing funds in banking institutions are loans to those banks which the banks must repay on demand. We do not see any error of law in such direction as the fact remains that monies placed by a customer in a bank or Financial Institution remains the money of the customer the repayment of which may depend on conditions laid down by such Bank or Institution and would justify the position that such placing of funds amount to lending. Even if as Mr. Singh stated placing funds are deposits the same principles apply and monies in such accounts would be viewed in the same manner.
[109] The House of Lords in Arab Bank Ltd case (supra) stated:
"The contract between a banker and a customer on current account is fundamentally a contract for the loan of money, but for a loan on which are engrafted special terms."
[110] The interpretation given to the term "lend" by the learned trial Judge is based on Common Law principles and we see no reason as to why it should be considered as erroneous. The discussion of the other cases cited by both the Appellant and the Respondent were considered by us which relate to interpretation of Statutes and we take the view that the interpretation given by the learned trial Judge to the term in terms of the ECA is not erroneous.
[111] In view of the above reasoning, we are of the view that Count 2 has been proved regarding the aspect of lending the foreign currency which were in his accounts for purposes of investing without permission which investments were admitted by the Appellant in the Agreed Facts. Therefore we see no merit in Ground 4 and we dismiss the same.
Ground 5 – Error of law and fact on summing up of section 4 of the Exchange Control Act
[112] This ground relates to the failure to surrender foreign currency or retention of foreign currency and refers to paragraph 11 of the summing up which we have already considered above in relation to Appeal Ground 2 and there is no need to revisit same.
[113] In the written submissions and in the submissions made before us orally, Mr. Singh contended that Justice Madigan failed to sum up on the elements of section 4 of the ECA. He emphasizes on the elements of "entitlement to sell" and "offering for sale unless permitted to retain such foreign currency".
[114] As stated above, the fact that the Appellant had foreign currency in his Accounts overseas is not disputed. He has stated that he had invested the subject funds in accounts abroad (Agreed Facts 12, 13 and 31). If there was no entitlement to sell, how is it that he invested such funds in the overseas accounts that he has admitted in his Agreed Facts? He did so as he was entitled to use them and therefore entitled to sell. He also agreed in the Agreed Facts that institutions where his funds were overseas were not "authorized Dealers" in terms of the ECA (Agreed Facts 4, 5 and 6).
[115] The Appellant admitted that he had invested his funds in overseas Banks and Institutions which was clearly offering for sale
which of course did not have the required permission. Thus the investment by the Appellant in that matter was a failure to offer
the said foreign currency for sale to an authorized Agent. These elements were set out by the trial Judge in his summing up and therefore
it is our view that there was no misdirection as far as the elements were concerned.
[116] As regards the proof of these elements there was sufficient evidence placed by the prosecution as discussed earlier and therefore
there is justification for the conviction of the Appellant for offending section 4 of the ECA.
[117] The Appellant has also referred to section 4(5) and (6) as being important as they relate to offer for sale. Sub section (5) relates to a situation where there is an authorization by the Minister for sale at a particular price. No such situation arose in the present case as there was no request by the Appellant from the relevant authorities to sell. Sub Section (6) deals with the powers of the Minister regarding a violation of the section regarding the currency, and therefore is a discretion conferred on the Minister to act in such situations. Therefore a consideration of the said sub-section were irrelevant for the purposes of the trial before Court.
[118] The Appellant has also submitted that at paragraph 11(5) of the summing up, Justice Madigan had added another element to the offence that the Appellant was regard to bring the monies back to Fiji. This is a misconception as what has been stated in paragraph 11(5) is that "the Appellant did not bring funds into Fiji". There was no misdirection as urged by the Appellant on that score.
[119] For the reasons set out above Appeal ground 5 is without merit and is dismissed.
Ground 6 - Error of law and fact on summing up on section 26(1) of the Exchange Control Act
[120] This ground is based on paragraph 17 of the summing up on the basis that the elements that needed to be proved under section
26(1) were not defined by the learned trial Judge and therefore there was a misdirection.
[121] We have considered the position regarding paragraph 17 of the summing up already. The learned trial Judge set out the elements correctly in his summing up regarding section 26(1) and dealt with the evidence relating to same.
[122] Section 26(1) which we have considered earlier requires a resident of Fiji who has a right to receive any specified currency without delay to bring in such funds to the Fijian Banking system and in the event of a delay in doing so contravenes the section.
[123] At no stage has the Appellant who had funds in his overseas accounts brought back those funds to Fiji nor did he do so when directed to do by the Authorities. With the evidence establishing that the Appellant had funds in his overseas accounts and that he had failed to bring those funds into Fiji and that he had no permission to retain those funds overseas the Appellant had clearly contravened the provisions in Section 26(1).
[124] We see no reason to consider that there was a misdirection by the learned trial on the elements of section 26(1) and we dismiss the said ground of appeal.
Ground 7 – Error of fact and law on application of section 36(1) of the Exchange Control Act
[125] Section 36(1) deals with Enforcement and Administration. Questions relating to enforcement and administration were not the subject matter of the charges leveled against the Appellant. The charges being regarding the contravention of the provisions in sections 3,4 and 26(1) of the ECA.
[126] The provisions in section 36(1) are matters relating to procedure regarding enforcement and administration which have not arisen in the case before Court and therefore there is no merit in this ground and stands dismissed.
Ground 8 – Error of Fact and Law on application of section 39(3) of the Exchange Control Act
[127] This ground is based on the premise that the trial Judge misdirected himself and the Assessors at paragraph 13 of his summing up, when he directed that there was no legal requirement for the Appellant to be directed or given notice of his alleged impending breach of section 39(3) of the Exchange Control Act.
[128] In paragraph 13 of the summing up Justice Madigan stated that there is no legal requirement for the accused to be "directed " or given notice of his impending breach. That those matters are not elements of the offence and should not play part in the deliberations.
[129] We see no error in that direction in his summing up as the learned trial Judge was addressing the Assessors on the elements of the sections with which the Appellant was charged with. This was a matter relating to procedure and in any event the Appellant had been informed of the breaches of section 3, 4 and 26 of the ECA and wanted him to comply with the provisions of law which he failed to do.
[130] The learned trial Judge was not in error when he held that the letter dated 23 October 2009 constituted a valid direction from the competent authority. There was no dispute regarding this letter as it was part of the Agreed Facts.
[131] There is no merit in this ground and we dismiss it.
Ground 9 – Error of law in holding that the alleged offences were strict liability offences
[132] In this ground of appeal the Appellant states that the learned trial Judge erred in law in his directions to the Assessors at paragraph 22 of the summing up when he said:
"The three offences are what we call in law offences of "strict liability". What that means is that if the elements of the offences are established, then the offence is proved. It is irrelevant that the accused does not think he has offended; it is irrelevant that he does not know that the offences exist."
[133] As stated earlier in his summing up the duty of the trial Judge is to explain the legal concepts in as simple language as possible. The direction quoted puts in very simple language what is meant by strict liability. A perusal of the sections clearly show that the mental element is not encapsulated in the sections and therefore there is no reason as to why they cannot be called strict liability offences. However, Justice Madigan in the said paragraph has in plain language stated about the mental element when he said that the accused's thinking that he has not offended is irrelevant.
[134] We do not accept the Appellant reading into the sections that it was necessary to establish a mental element on the part of the Appellant to defeat the provisions of sections 3, 4 and 26. The sections speak of the conduct on the part of an offender and do not specify any mental element.
[135] This ground has no merit and is dismissed.
Ground 10 – Error of law in application of the delegation of powers as prescribed under section 39(4) of the Exchange Control Act
[136] It is the submission of the Appellant that the learned trial Judge erred by holding that the permission of the Governor Reserve Bank was required.
[137] This ground deals with the delegation of the powers of the Minister. This issue has been resolved by the Supreme Court in Reddy's case (supra) when the views of Justice Byrne in the High Court were endorsed by the Supreme Court regarding delegation of powers to the effect that a reference to the Reserve Bank must of course include the Governor of the Reserve Bank.
[138] There is no error therefore in the learned trial Judge's reference to the Governor Reserve Bank and therefore this ground has no merit and is dismissed.
Conclusion on Grounds 1 to 10
[139] We have dealt with all the grounds of appeal regarding conviction and find that there is lack of merit in them and we dismiss
them. In arriving at our conclusions we have considered the written submissions and the oral submissions of the parties. We have
also considered the authorities cited by Counsels in their submissions and cited only those authorities which we consider relevant
for our findings.
[140] We reiterate our view that we expressed earlier regarding the proviso to section 23(1) of the Court of Appeal Act (Cap.12) that there is no substantial miscarriage of justice in the conviction of the Appellant as there was sufficient evidence to convict him.
Ground 11 – Excess of jurisdiction, error of law and application and/or consideration of irrelevant and/or prejudicial matters used to arrive at sentence
[141] These grounds deal with sentencing errors which are set out in summary as follows:
"1. The learned trial Judge exceeded his jurisdiction and erred in fact and law when he, at paragraphs 26 and 27 of the sentence considered matters governed by parliamentary privilege and not properly in evidence before the court at the trial;
2. The learned trial Judge erred/misapplied and/or failed to correctly apply the law as it relates to aggravating factors by taking into account irrelevant factors such as filing of interlocutory applications, judge shopping and ignoring advice from counsel on exchange control breaches as charged;
3. The learned trial Judge erred in fact and in law in imposing a fine up to three times the amount of the alleged foreign currency;
4. The learned trial Judge erred in fact and in law at paragraph 31 of the sentence and sentencing order 2 in imposing affine up to three times the currency;
5. That the learned trial Judge erred in law and exceeded his jurisdiction in directing in sentencing Order 5 for repatriation of the monies and to deposit them with an authorized dealer in Fiji."
[142] A fine of $2,000,000 was imposed on the Appellant by the learned trial Judge on the basis of the application of Section 1(4) of the Fifth Schedule Part II of the ECA. Section 1(4) provides for a maximum fine of $2,000 for a conviction on indictment and in terms of the proviso to that section a larger fine may be imposed not exceeding 3 times the amount or value of the currency, security, payment, gold, goods or property.
[143] The learned trial Judge in imposing the fine acted under the proviso to section 1(4) and stated in paragraph 8 of the sentence that the penalties laid down are a maximum term of imprisonment of two years, forfeiture of the foreign funds in question and a fine not exceeding the equivalent of AUD 4.5 million.
[144] In arriving at the final sentence, the learned trial Judge considered the evidence and factors presented on behalf of the Appellant regarding mitigation and thereafter discussed the matters placed before him. He rejected the submission that it was a technical breach. He further stated that was not an insignificant breach as large sum of money had been retained over a long period and some of that period intentionally concealed.
[145] The learned trial Judge also stated that the Court had no intention to forfeit the funds but that it would make an order in consideration of section 4 of the Sentencing and Penalties Decree which would benefit the people of Fiji to a small degree and that the fine will not only bring a large part of the funds back into the revenue but will also benefit the balance of payments of the State.
[146] The learned trial Judge at the third paragraph of paragraph 26 of the sentence referred to the "Hansard" about the Appellant denying the existence of the monies and stated that such deceit in hiding its existence for so long from the authorities can only be an aggravating factor. The reference in the Hansard may have been available in the record but to consider matters stated therein may have the effect of considering parliamentary privilege regarding which it was argued that it was totally irrelevant and prejudicial to the Appellant. It was further stated in the submission that there had been agreement that the prosecution would exclude Parliamentary evidence from their evidence.
[147] At paragraph 27 of his sentencing ruling the learned trial Judge had stated that the Appellant had not shown a shred of remorse for his breaches despite advice he had received of possible breach from Counsel in both Australia and New Zealand and his dogged interlocutory attempts to derail proceedings and to "shop" for a more "pliant" judge must also be an aggravating factor.
[148] It is our view that the learned trial Judge was in error when he treated the aforesaid matters as aggravating factors. To state that the Appellant had received advice from Counsel of possible breaches and has not shown any remorse was without any evidence regarding such advice.
[149] It is a right of an accused to explore all legal avenues in respect of charges framed against him by making applications to seek interlocutory orders before facing the trial proper. It was quite evident that there had been a series of interlocutory applications made by the Appellant before the trial proper was taken up and even after the judgment was delivered. But these are all matters within the exercise of one's legal rights in trying to defend oneself and the Courts allow these applications to ensure a fair trial. Such applications are made generally on advice of counsel. Therefore the reference by the learned trial Judge that the making of interlocutory applications and seeking pre-trial orders as an aggravating factor is an error of law.
[150] It was also urged that the learned trial Judge by imposing a fine of $2,000,000 erred in law by invoking the provision relating to imposing a fine up to three times the currency held by the Appellant. The fund that the Appellant has overseas was agreed by the Appellant as $1.5 million Australian dollars. Considering the amount in the overseas funds the fine imposed is not up to the amount of three times of such funds.
[151] However, taking all these factors into account, we are of the view that the fine imposed on the Appellant specially taking into account the aggravating factors which we have commented on, is excessive and that it should be reduced.
[152] Acting in terms of the provisions of Section 23 of the Court of Appeal Act we reduce the fine by $1,000,000 Fijian Dollars so that the fine imposed on the Appellant would be $1,000,000 Fijian Dollars.
[153] We do not wish to interfere with the sentence in any other respect and affirm the conviction and the other orders in the sentence subject to the variation of the order relating to the imposition of the fine which we have reduced by $1,000,000 Fijian Dollars and dismiss the appeal.
Orders of Court:
(1) The conviction of the Appellant is affirmed.
(2) The fine imposed on the Appellant is $1,000,000 Fijian Dollars.
(3) The other orders in the sentence order are affirmed.
(4) The Appeal is dismissed subject to the variation in the fine.
Hon. Justice S. Chandra
JUSTICE OF APPEAL
Hon. Justice S. Temo
JUSTICE OF APPEAL
Hon. Justice C. Kotigalage
JUSTICE OF APPEAL
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URL: http://www.paclii.org/fj/cases/FJCA/2014/137.html