Laojindamanee v State [2016] FJCA 137; AAU0044.2013 (30 September 2016)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court of Fiji]

Criminal Appeal No.AAU0044/2013
Criminal Appeal No.AAU0047/2013
Criminal Appeal No.AAU0050/2013
(High Court Case No.HAC323/2012)

BETWEEN:

PHANAT LAOJINDAMANEE
LUM BING
ZHANG YONG
JASON ZHONG
Appellants

AND:

THE STATE
Respondent

Coram :Calanchini, P
S. Fernando, JA
Goundar, JA

Counsel: Mr. S. Sharma for the 1st Appellant
Ms B. Malimali for the 2nd and 4th Appellants
Mr. A. Singh for the 3rd Appellant
Mr. V. Perera for the Respondent

Date of Hearing: 11, 13, 28 and 29 May 2015
Date of Judgment: 30 September 2016

JUDGMENT

Calanchini P
[1] I have had the advantage of reading the draft judgment of Goundar JA and agree with his reasoning and his conclusions.

S. Fernando JA
[2] I agree with the conclusion in the judgment of Goundar JA and his reasons.

Goundar JA
Introduction
[3] In September 2012, two young women arrived in Fiji from Thailand to work as masseuses. Upon arrival, they were allegedly forced into sexual servitude. As a result of that allegation, the appellants were charged with various human trafficking offences under the Crimes Decree 2009.

[4] The appellants pleaded not guilty to the charges. The trial commenced on 19 November 2012 before a judge sitting with three assessors. On 13 December 2012, the assessors found the appellants guilty. Based on the assessors' opinions, the learned trial judge instead of convicting Phanat Laojindamanee and Lum Bing of the charged offence of aggravated trafficking in persons convicted them of two counts of the lesser offence of trafficking in persons. Zhang Yong was convicted of two counts of domestic trafficking in persons. Jason Zhong was convicted of two counts of sexual servitude.

[5] On 25 January 2013, the appellants were sentenced to concurrent terms of imprisonment as follows:

Phanat Laojindamanee - 10 years’ imprisonment with a non-parole period of 9 years (counts 1-2).

Lum Bing - 10 years’ imprisonment with a non-parole period of 9 years (counts 1-2).

Zhang Yong - 8 years’ imprisonment with a non-parole period of 7 years (counts 3-4).

Jason Zhong - 11 years 9 months’ imprisonment with a non-parole period of 10 years (counts 5-6).

These are appeals against both conviction and sentence.

Background facts
[6] The two complainants, Kwanchanok Kunok and Aimpika Jumrat were Thai nationals. In August 2012, a woman by the name Man contacted Kwanchanok Kunok with a proposal to work in a resort in Fiji as a masseuse. After discussing the proposal with her friend, Aimpika Jumrat, both women agreed to take on the offer to work in Fiji as masseuses. All travelling arrangements were made by Man.

[7] On 5 September 2012, the complainants turned up at the Bangkok International Airport as arranged by Man. There they met a lady called Nikki, Phanat Laojindamanee and Lum Bing (aka Ah Ho) for the first time. Lum Bing gave US$300.00 each to the complainants to be shown to the immigration officials in Fiji. All five of them flew to Hong Kong and arrived on the same day. All five stayed overnight in the same hotel in Hong Kong. The following morning they flew to Fiji and arrived in Nadi on 7 September 2012. They met Zhang Yong (who they referred to as “Bald Head”) at the Nadi International Airport. Zhang Yong transported all five to Suva in a vehicle hired by Jason Zhong.

[8] When they arrived in Suva they went to Fong Lee restaurant where they met Jason Zhong for the first time. Phanat Laojindamanee introduced Jason Zhong to them as 'the boss in Fiji'. From the restaurant they went and checked in at the Holiday Inn. The three women stayed in one room while Phanat Laojindamanee and Lum Bing shared one room. After arranging the rooms, Jason Zhong spoke to the complainants. He told them that he is 'the big mafia here' and will look after them. All five stayed at the Holiday Inn till 9 September when they checked out and moved to a two-storey building in Walu Bay. The bottom floor of this building was used as a restaurant while the top floor was used as a massage parlour. The complainants were accommodated in one of the rooms in the massage parlour. While they were there Nikki told them that it was not only massage but sex as well. When Kwanchanok Kunok heard this, she started crying and wanted to go home. Phanat Laojindamanee, translating for Jason Zhong said that if they went back home they had to give $1900.00. When Jason Zhong said this he was angry and started banging the table.

[9] Later on the same day, the complainants were taken and kept in a place they referred to as the Pink House at Laucala Beach for about two days. On one of the days when Kwanchanok Kunok was in the Pink House, she performed oral sex on a man who was brought there by Jason Zhong. Kwanchanok Kunok said she was afraid of Jason Zhong. Since she did not have the money to pay Jason Zhong, she felt she had to comply and have sex with clients.

[10] From Laucala Beach, the complainants were moved to the Peninsula Hotel. After moving to the Peninsula Hotel, Zhang Yong took the complainants to the nightclubs to solicit clients. They attended to clients brought to the hotel by Zhang Yong until the Fiji Immigration officials rescued and took them away.

[11] The second complainant, Aimpika Jumrat gave similar evidence except that the money given to them by Lum Bing at the Bangkok International Airport was to be shown to the immigration officials in Hong Kong and not in Fiji. She said that she performed sexual services for clients brought to the Peninsula Hotel by Zhang Yong because she did not have the money to pay back Jason Zhong.

[12] The vehicle in which the complainants were transported from Nadi to Suva was a rental vehicle. The rental company’s agent gave evidence that the vehicle was hired by Jason Zhong and Zhang Yong was nominated as the driver.

[13] All four appellants gave evidence at the trial.

[14] In his evidence, Phanat Laojindamanee first suggested that his association with the complainants was an innocent association. But in cross-examination, he admitted that he had met Lum Bing and one Allen twice in Bangkok and had discussed about bringing people to Fiji. He said that he was the one who had passed on US$300.00 each to the complainants given to him by Allen. Phanat Laojindamanee said Lum Bing paid for everything while they were transiting in Hong Kong to come to Fiji. Phanat Laojindamanee also confirmed that he translated for Jason Zhong when Jason Zhong told the complainants to repay $1900.00. From Walu Bay, Phanat Laojindamanee moved to the Peninsula Hotel. In his caution interview, Phanat Laojindamanee admitted facilitating the entry of the complainants into Fiji and that the complainants were deceived, but in his evidence, Phanat Laojindamanee said that those statements were fabricated by police.

[15] Lum Bing in his evidence said that he was a businessman doing import and export of timber and seaweed. Lum Bing said Allen is his friend and through him he met Phanat Laojindamanee once in a coffee shop in Bangkok. The second time Lum Bing met Phanat Laojindamanee was on 5 September 2012 at the Bangkok International Airport. Lum Bing came to know about the three women for the first time when they were on the plane to Hong Kong. When they arrived at Hong Kong, Lum Bing said he was just being a nice guy looking after the three women and paying for their expenses. Lum Bing accompanied Phanant and the three women from Nadi to Suva in the vehicle driven by Zhang Yong. When they arrived in Suva, they went and had lunch. After lunch he checked in at the Holiday Inn. On 10 September 2012, Lum Bing flew to Savusavu for business. He returned to Suva on 12 September 2012 and checked in at the Peninsula Hotel because Zhang Yong had told him that there was a room for him that had already been paid. In cross-examination, Lum Bing admitted that he had also accompanied the complainants to the massage parlour at Walu Bay and to the Pink House at Laucala Beach. Lum Bing’s defence was that his association with the complainants was innocent as he came to Fiji on a genuine business trip.

[16] Zhang Yong in his evidence admitted that he had transported the complainants from Nadi to Suva on request from a “Chinese friend”. He knew the ladies were coming to Fiji accompanied by Phanat Laojindamanee. He said he had requested Jason Zhong to be translator for the Thai people. He said that he knew that the group from Thailand had come to Fiji to operate massage parlours. He took the complainants to several massage establishments and when they were not happy with the facilities they saw, he took the complainants to his home – the Pink House. He said he did not know the complainants were brought to Fiji to work in the sex trade. His defence was that all the time his association with the complainants was as their driver.

[17] Jason Zhong in his evidence said his association with the complainants was as their translator at the request of Zhang Yong who was interested to start a massage parlour in Fiji. Jason Zhong admitted saying to the complainants that they had to repay $1900.00 but only because he was translating that for Zhang Yong.

Grounds of appeal
[18] Counsel for Phanat Laojindamanee advances three grounds of appeal against conviction and three grounds of appeal against sentence. The grounds in summary are:

Conviction

1. Misdirection on the elements of trafficking in persons.

2. Guilty verdict is not supported by evidence.

3. Inadequate direction on joint enterprise.

Sentence

1. Irrelevant factors taken into account.

2. Relevant factors not considered.

3. Starting point was too high.

[19] Counsel for Lum Bing advances four grounds of appeal against conviction and one ground of appeal against sentence. The grounds in summary are:

Conviction

1. Failure to direct on the fault element, namely, intention.

2. Inadequate direction on separate consideration of charges.

3. Lack of direction on the legal difference between trafficking in persons and aggravated trafficking in persons.

4. Inadequate direction on joint enterprise.

Sentence

1. Penalty is harsh and excessive.

[20] Counsel for Zhang Yong advances seven grounds of appeal against conviction and two grounds of appeal against sentence. The grounds in summary are:

Conviction

1. Misdirection on closing address of trial counsel.

2. Misdirection on joint enterprise.

3. Erroneous direction on joint enterprise.

4. Lack of direction on common intention required for joint enterprise.

5. Misdirection on the circumstantial evidence.

6. Lack of essential directions.

7. Error in holding a joint trial.

Sentence

1. Relevant matters not taken into consideration.

2. Sentence is manifestly excessive and cannot be justified.

[21] Counsel for Jason Zhong advances two grounds of appeal against conviction and two grounds of appeal against sentence. The grounds in summary are:

Conviction

1. Lack of direction on the defence of "translating".

2. Lack of competent and accurate translation of the Thai complainants'

evidence.

Sentence

1. Sentence is excessive when compared to other similar cases.

2. Sentence is harsh and excessive in all the circumstances.

The summing up
[22] As can be seen from the grounds of appeal, the complaints against convictions mainly relate to the directions in the summing up. The court records show that the appellants did not take up any of the complaints that are now being pursued on appeal with the trial judge when an opportunity was accorded to them to seek redirection after the summing up was delivered. It has been said by the Supreme Court in Raj v State unreported Cr App No. CAV0003 of 2014; 20 August 2014 at [35]:

The raising of direction matters in this way is a useful trial function and in following it, counsel assist in achieving a fair trial. In doing so they act in their client's interest. The appellate courts will not look favourably on cases where counsel have held their seats, hoping for an appeal point, when issues in directions should have been raised with the judge.

[23] When ascertaining whether the direction gave rise to any miscarriage of justice, the fact that no objection was taken is relevant because the absence of objection may be taken as an indication that counsel, absorbed in the atmosphere of the trial, saw that no injustice or error occurred in what the trial judge said or failed to say (R v Tripodina and Morabito (1988) 35 A Crim R 183, 191). However, the absence of objection to a trial judge's direction is not fatal to reliance on an error if it occasions a miscarriage of justice, 'but there are reasons to pause before embracing that conclusion' (Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193, [73]).

[24] A passage frequently cited by appellate courts regarding the contents of a summing up is the passage from R v Lawrence [1982] AC 510, 519 where Lord Hailsham said:

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.

[25] Similarly, in Silatolu v The State unreported Cr App No AAU0024 of 2003S; 10 March 2006 this Court emphasized at [13]:

When summing up to a jury or to assessors, the judge’s directions should be tailored to the particular case and should include a succinct but accurate summary of the issues of fact as to which decision is required, a correct but concise summary of the evidence and of the arguments of both sides and a correct statement of the inferences which the jury is entitled to draw from their particular conclusions about the primary facts; R v Lawrence [1982] AC 510. It should be an orderly, objective and balanced analysis of the case; R v Fotu [1995] 3 NZLR 129.

[26] One of the important functions of a trial judge is to correctly explain to the assessors the relevant law as it applies to the facts and issues presented in a trial. There is a real risk of miscarriage of justice when the trial judge fails to correctly explain to the assessors the relevant law. In Mraz v R [1955] HCA 59; (1955) 93 CLR 493 Fullagar J said at 514:

If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law.

Consideration of Phanat Laojindamanee's appeal
[27] Phanat Laojindamanee was charged with aggravated trafficking in persons contrary to sections 112(5) and 113(1)(a)(i) of the Crimes Decree 2009, but was convicted of the lesser offence of trafficking in persons contrary to section 112(5) of the Crimes Decree 2009.

[28] Section 112 (5) states:

A person (the first person) commits an indictable offence of trafficking in persons if

(a) the first person organises or facilitates the entry or proposed entry, or the receipt, of another person into Fiji; and

(b) the first person deceives the other person about the fact that the other person’s entry or proposed entry, the other person’s receipt or any arrangements for the other person’s stay in Fiji, will involve the provision by the other person of sexual services or will involve the other person’s exploitation or debt bondage or the confiscation of the other person’s travel or identity documents.

[29] Section 113 (1) (a) (i) states:

(1) A person (the first person) commits an aggravated offence of trafficking in persons if the first person commits the offence of trafficking in persons in relation to another person (the victim) and any of the following applies —

(a) the first person commits the offence intending that the victim will be exploited, either by the first person or another:

(i) if the offence of trafficking in persons is an offence against sub-section 112(1), (3), (5) or (7) - after entry into Fiji; ...

[30] The charges alleged that Phanat Laojindamanee and Lum Bing between 5th and 7th September 2012 with intent that the complainants be exploited after arrival in Fiji, facilitated their entry into Fiji, and deceived them about the fact that the arrangements for their stay in Fiji would involve their exploitation.

[31] The learned trial judge explained the elements of the offence in paragraph 10 of the summing up as follows:

Trafficking in persons has two elements which the prosecution must prove to you beyond reasonable doubt.

(i) The accused must either individually or part of group in agreement, facilitate the entry, or proposed entry of another person into Fiji, and

(ii)) That the accused either individually or part of a group in agreement, deceive the other person about the fact that she will be exploited during her stay in Fiji.

[32] The element of aggravation was explained in paragraph 11 of the summing up as follows:

You will have seen that Phanat Laojindamanee and Lum Bing (the first and second accused) have been charged with “aggravated” trafficking in persons. Trafficking in persons becomes aggravated if the State proves to you so that you are sure that Phanat Laojindamanee and Lum Bing intended, or were part of a group that intended that the girls would be exploited once they arrived in Fiji.

[33] Section 113 (2) of the Crimes Decree 2009 gave the learned trial judge power to consider an alternative charge. Section 113 (2) states:

If, on a trial for an offence against this section, the court is not satisfied that the defendant is guilty of the aggravated offence, but is satisfied that he or she is guilty of an offence against section 115, it may find the defendant not guilty of the aggravated offence but guilty of an offence against that section.

[34] The learned trial judge on his own motion directed the assessors to consider an alternative charge in paragraph 64 of the summing up:

For the first two charges involving the first and second accused, your possible verdicts are guilty of aggravated trafficking in persons or not guilty. If your opinion is not guilty, you will be asked if each accused is guilty or not guilty of the alternative charge of trafficking in persons (that is without the aggravated). You can only find the accused guilty of the alternative if you think they did facilitate the entry of the girl in to Fiji and did deceive her as to her duties once here but you do not think that the accused or the group of which he was part, had the intention to exploit the girl.

Elements of offence and joint enterprise
[35] Grounds one and three can be dealt together. Mr Sharma submits that the trial judge erroneously imported extra words, namely “part of group in agreement” when directing on the elements of the offence under section 112(5) of the Crimes Decree 2009.

[36] It is clear that section 112(5) does not require proof of ‘being part of a group in agreement’ to be culpable. All that is required is that the accused organised or facilitated the entry of the complainant into Fiji and that the accused deceived the complainant about the fact that the complainant’s stay in Fiji would involve sexual services or exploitation or debt bondage or confiscation of travel or identity documents.

[37] In the present case, the learned trial judge tailored his direction on the elements of the offence based on the principle of joint enterprise. This is evident when immediately after directing on the elements, the learned trial judge gave direction on joint enterprise in paragraphs 12 and 13 of the summing up:

I digress now to tell you about the law of what is called joint enterprise. The prosecution’s case is that Phanet and Lum Bing committed this offence in conjunction with others. Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are acting together as part of a joint plan or agreement to commit the offence, then each of them is guilty. The plan or agreement does not have to be formal written plan but the essence shared a common intention to commit the offence and played a part, however, great or small, so as to achieve that aim. Your approach to the case should be therefore that in looking at the case of each of these accused separately, you are sure that with the intention that I have mentioned, he took some part in the offence, then he is guilty of the offence.

Let me give you an example of how that principle operates. If four men (A, B, C and D) decide that they are going to rob the ANZ Bank in Sigatoka, they divide up their roles. A is to drive them there and wait to drive them quickly away. B and C are to go into the bank and take the money at knife point, D is to stand guard outside and warn them if the Police happen to come along. Now because they have all agreed to rob the bank, by playing a part they are each guilty, even though A the driver, and D the lookout man, didn’t go into the bank and take the money.

[38] When a person commits an offence, he or she is principally liable for the offence. However, there are circumstances where two or more persons commit the same offence, but their participation in the commission of the offence is different. This is where the secondary responsibility for the offence is imputed on the offender based on the principle of joint enterprise. In Fiji, the law on complicity or joint enterprise is governed by Part 7 of the Crimes Decree 2009. The prosecution did not rely on any of the provisions regarding complicity or joint enterprise under the Crimes Decree 2009.

[39] Mr Sharma submits that the direction on joint enterprise is inadequate in the sense that the learned trial judge failed to direct on the state of mind that is required for aiding or abetting. I think this submission is misconceived. None of the accused was charged as an aider or abettor. All four accused were charged as principal offenders. The joinder of the accused persons on counts one and two was justified on the ground that the two accused committed the same offence in the course of the same transaction. The joinder on this ground was permitted under section 60 (a) of the Criminal Procedure Decree 2009.

[40] When presenting her opening address to the assessors and the trial judge, Ms Puamau (the trial prosecutor) did not attribute criminal responsibility on any accused based on the principle of joint enterprise. The prosecution case was that all four accused persons were principal offenders. The State maintained that position on appeal. Counsel for the State submits that the learned trial judge’s direction on joint enterprise cannot be justified. I accept the State's concession. In my judgment, the learned trial judge misdirected when he wrongly incorporated the principle of joint enterprise as an element of the offence under section 112 (5) to impute secondary liability on the accused contrary to the prosecution's case.

Sufficiency of evidence
[41] Mr Sharma submits that there is insufficient evidence to support the guilty verdict for trafficking in persons. Trafficking in persons is made of two essential elements. In the context of the present case, the elements were:

1. That the accused facilitated the entry of the complainants into Fiji;

2. That the accused deceived the complainants about the fact that the arrangements for their stay in Fiji would involve their exploitation.

[42] Facilitate is the physical element. The legislature has not defined the word 'facilitate'. Ordinarily, the word 'facilitate ' means 'make easy or easier; promote; help forward (an action result etc)': New Shorter Oxford Dictionary (Oxford University Press, 1993) 903. In P J v The Queen [2012] VSCA 146, the Victorian Court of Appeal said at [48] that the word facilitates is an active verb, describing conduct directed at producing a result or outcome.

[43] The prosecution case was that Phanat Laojindamanee and Lum Bing facilitated the entry of the complainants into Fiji by escorting them from Thailand to Fiji. The result was that the complainants were brought to Fiji by Phanat Laojindamanee and Lum Bing. The real issue was whether the complainants were deceived about the fact that their stay in Fiji would involve their exploitation.

[44] Section 111 defines "deceive" as "mislead as to fact (including the intention of any person) or as to law, by words or other conduct". Section 4 states "exploitation, of one person (the victim) by another person (the exploiter), occurs if —
(a) the exploiter’s conduct causes the victim to enter into slavery, forced labour or sexual servitude;...".

[45] What the prosecution was required to prove was that the accused had misled the complainants by words or conduct about the fact that the arrangements for their stay in Fiji would involve their exploitation.

[46] In the present case, the only time the learned trial judge briefly defined deception was in relation to the charges of domestic trafficking in persons against Zhang Yong. Deception was also an essential element of trafficking in persons. But the learned trial judge gave no direction as to how the assessors were to consider this element. The evidence was that a woman by the name Man made the representation to the complainants that the work in Fiji entailed massage in a tourist resort. Phanat Laojindamanee and Lum Bing had not made any representation to the complainants regarding their work in Fiji. There was direct evidence that Phanat Laojindamanee and Lum Bing facilitated the complainants' entry into Fiji by escorting them from Thailand to Fiji. However, there was no direct evidence that Phanat Laojindamanee and Lum Bing deceived the complainants regarding their work in Fiji. But there was evidence from which an inference could have drawn that Phanat Laojindamanee and Lum Bing knew that the complainants would be exploited after their entry into Fiji and that they deceived the complainants by their conduct by making them believe that they would be working as masseurs and not providing sexual service.

[47] But instead of explaining the element of deception to the assessors in the summing up, the learned trial judge erroneously attributed liability on the accused based on the principle of joint enterprise. The error is not that the verdict cannot be supported having regard to the evidence. A miscarriage of justice occurred as a result of the erroneous application of the principle of joint enterprise to attribute criminal liability on Phanat Laojindamanee. For these reasons, I would allow Phanat Laojindamanee's appeal against conviction.

Consideration of Lum Bing's appeal
Intention
[48] Grounds one and three can be dealt together. Ms Malimali submits that the learned trial judge did not clearly explain the element of intention required for aggravated trafficking in persons and the legal difference between aggravated trafficking in persons and trafficking in persons. This complaint is moot. The additional element of intention makes the offence of trafficking in persons an aggravated offence under the Crimes Decree 2009. Lum Bing was charged with aggravated trafficking, but he was convicted of the lesser offence of trafficking in persons, which did not require proof of intention. The guilty verdict for the lesser offence meant that when Lum Bing facilitated the entry of the complainants to Fiji, but he did not intend that the complainants would be exploited after their entry into Fiji. These grounds fail.

Separate consideration of charges
[49] Ms Malimali submits that the learned trial judge did not direct the assessors to consider the evidence on each count separately. In paragraph [8] of the summing up, the learned trial judge clearly directed the assessors that they "must consider each count separately and the case against and for each accused separately". This ground fails.

Joint enterprise
[50] Ms Malimali submits that the learned trial judge did not identify the role each accused played in the joint enterprise to commit aggravated trafficking or trafficking in persons. I think this submission is misconceived. The issue is not the role each accused played in the joint enterprise. The issue is whether the principle of joint enterprise applied to Lum Bing. The State says the principle of joint enterprise did not apply to Lum Bing. As I have said earlier in my judgment, a miscarriage of justice occurred when the learned trial judge erroneously directed that the prosecution was relying on the principle of joint enterprise to prove the element of deception required for trafficking in persons. The prosecution did not rely on the principle of joint enterprise. The prosecution relied on an inference of deception by conduct because there was no direct evidence of deception. For these reasons, I would allow Lum Bing's appeal against conviction.

Consideration of Zhang Yong's appeal
Closing address of trial counsel
[51]In his closing address, Zhang Yong's trial counsel, Mr Naco said that "the Police had not done enough to investigate this case". The learned trial judge dealt with that comment in paragraph [4] of the summing up:

You must judge this case solely on the evidence that you heard in this Court room. There will be no more evidence and you are not to speculate on what evidence there might have been or should have been. You judge the case solely on what you have heard and seen here. In this regard you are to ignore the submissions of Mr. Naco who told you that the Police had not done enough to investigate this case. Nobody, including Mr. Naco is to speculate on what evidence should be before you, nor should he tell you how this case should have been investigated.

[52] Mr Singh takes an issue with the strong language used by the learned trial judge to admonish Zhang Yong's trial counsel, saying that the direction had the potential to cause the assessors not to pay any regards to inadequacies in the prosecution case. I disagree.

[53] The assessors are not bound by a closing address. If what is said in the closing address appeals to the common sense of the assessors then they may accept the submission when considering the guilt of an accused.

[54]When presenting a closing address, counsel may confine himself to the facts or may relate the facts to the law. If there are weaknesses in the evidence, the weaknesses may be addressed in the closing address. What is not permitted is to invite the assessors to speculate on what evidence that could have been led but was not led by the prosecution. The law is that the opinions of the assessors and the verdict of the trial judge must be based on the admissible and relevant evidence led at the trial.

[55]In the present case, Mr Naco did not support his submission that "the Police had not done enough to investigate this case" with evidence led at the trial. By making an unsubstantiated submission, Mr Naco was inviting the assessors to speculate on evidence that was not led at the trial. In these circumstances, although the tone of the direction was strong, the learned trial judge was correct to direct the assessors to ignore that aspect of Mr Naco's closing address.

[56] Under this existing ground of appeal, Mr Singh added new grounds for the first time in his written submissions. The raising of a new ground for the first time in the written submissions not only violates the Court of Appeal Rules, but is also an unfair practice that should not be encouraged. Mr Singh offered no explanation why he did not apply for leave to amend the grounds of appeal by adding the new grounds rather than raising it for the first time in his written submissions. I have decided to consider the new grounds, but in the future, the court may require compelling reasons to consider new grounds raised for the first time in the written submissions.

Standard of proof
[57] Mr Singh submits that the trial judge made references to objectionable phrases like 'where the truth lies' and 'fanciful doubt' when directing on the standard of proof.

[58] The phrase 'where the truth lies' was used by the learned trial judge at the beginning of the summing up when he explained the role of the assessors. The learned trial judge said in paragraph [2] of the summing up:

I remind you that I am the Judge of the law and you must accept what I tell you about the law. You in turn are the Judges of the facts and you and only you can decide where the truth lies in this case. If I express any particular view of the facts in this summing up then you will ignore it unless of course it agrees with your view of that fact. (Underlining mine)

[59] Later in paragraph [25] of the summing up, the learned trial judge returned to the role of the assessors and said:

Madame and Gentlemen, having dealt with directions on the law which you must accept, it is now my duty to summarise the evidence for you. Once again you do not have to accept my summary, because you are the Judges of the facts. If in my summary, I omit to mention the evidence of a witness who you think is important then you must give that evidence due weight and if I stress something as important you do not have to agree with me - you and only you can decide where the truth lies in this case. (Underlining mine)

[60] In Navunigasau v State unreported Cr App No. AAU 0012 of 1996S; 14 November 1997 this Court accepted that a direction that the assessors must determine where the truth lies carries with it the implication that they must come to a firm conclusion as to the existence or non-existence of the facts and cannot remain in a state of doubt about them. The Court agreed that a direction in a summing up having that effect could deprive a defendant of being of a reasonable doubt. However, the Court did not find the direction to be misdirection for the reasons explained at p5:

If a summing-up contains such directions, their effect may be to vitiate it notwithstanding that the judge has included also proper directions in respect of the standard of proof. That was found by the Full Court of the Supreme Court of South Australia to be the situation in R v Calides (1983) 34 SASR 355. However, the inclusion of such a direction or directions in a summing-up will not necessarily have that effect. Whether it does so or not depends on the content of the summing-up as a whole. We have examined carefully Scott J's summing-up in the present case and, although he should have avoided giving any directions couched in terms of finding where the truth lies - indeed references to where the truth lies are seldom helpful - we are satisfied that, taken as a whole, it did not misdirect the assessors and was not a misdirection to the judge himself.

[61] Another complaint regarding the direction on the standard of proof is the use of the phrase 'fanciful doubt' to explain the standard. The impugned direction is in paragraph [7] of the summing up:

It is most important that I remind you of what I said to you when you were being sworn in. The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty - that doubt must be a reasonable one however, not just some fanciful doubt. The accused do not have to prove anything to you. If you are sure however that these men committed the crimes they are charged with, then you will find them guilty. (Underlining mine)

[62] After summarising the prosecution case, the learned trial judge returned to the burden and standard of proof and said in paragraph [40] of the summing up:

All four accused, having given evidence, it becomes evidence for you to take into account when you are deliberating. However if you do not believe the evidence of any one of them, that does not relieve the State of the burden to prove to you, so that you are sure, that the accused whose case you are looking at committed the offence as charged. Just because you don't believe an accused does not necessarily mean that he is guilty of the offence that he is charged with. You still have to be sure that the State has proved the case against him.

[63] When looking at the summing up in its entirety, I do not think that that the use of the phrase 'fanciful doubt' had the effect of vitiating the direction on the standard of proof. In my judgment, the summing up adequately conveyed to the assessors that they must feel sure before expressing an opinion of guilty against an accused. As Lord Hoffmann said in Brown & Anor v The State (Trinidad and Tobago) [2003] UKPC 10 (29 January 2003) at [26]:

The appellants say that the reference to a reasonable doubt, which was something other than a fanciful doubt, vitiated the effect of the summing up. This was based upon some remarks of Lord Goddard CJ in R v Hepworth [1955] 2 QB 600, 603. He said that a reference to a reasonable doubt, by contrast with a fanciful doubt, was in itself unhelpful because these expressions did not explain themselves. The jury needed more help and it was better to tell them that they must feel sure of the prisoner's guilt. Of course the criminal standard of proof is not some point on a mathematical scale of probability and it would not help the jury very much if it were. Any choice of words to convey the appropriate degree of persuasion is bound to have some element of approximation. But Lord Goddard in Hepworth emphasised that there was no set formula. It depended upon the summing up as a whole. Their Lordships think that this summing up adequately conveyed the appropriate standard.

[64] For these reasons, I do not think that there was a misdirection on the standard and burden of proof that resulted in a miscarriage of justice.

Joint enterprise
[65] Grounds two, three and four can be dealt together. Only Zhang Yong was charged with domestic trafficking in persons contrary to section 115 (3) of the Crimes Decree 2009.

[66] Section 115 (3) states:

A person (the first person) commits an indictable offence of domestic trafficking in persons if —

(a) the first person organises or facilitates the transportation of another person from one place in Fiji to another place in Fiji; and

(b) the first person deceives the other person about the fact that the transportation, or any arrangements the first person has made for the other person following the transportation, will involve the provision by the other person of sexual services or will involve the other person’s exploitation or debt bondage or the confiscation of the other person’s travel or identity documents.

[67] The prosecution alleged that Zhang Yong on 7 September 2012 facilitated transportation of the complainants and deceived the complainants about the fact the arrangements made for them following transportation would involve the provision by them of sexual services.

[68] The learned trial judge explained the elements of the domestic trafficking in persons in paragraph [16] of the summing up as follows:

I now move on to the legal definition of Domestic Trafficking in Persons which is the subject of the third and fourth counts, the third relating to Ms Kunok and the fourth relating to Aimpika Jumrat.

Domestic trafficking in persons has two elements which the prosecution has to prove to you beyond reasonable doubt.

(i) the accused facilitates the transportation of another person from one place in Fiji to another place in Fiji;

(ii) the accused deceives that other person about the fact that the arrangements that have been made after she has been transported will involve the provision by her of sexual services; and

"Deceive" means to mislead as to fact, or as to law by words or other conduct.

[69] Immediately after directing on the elements, the learned trial judge attributed criminal responsibility on Zhang Yong by directing on the principle of joint enterprise in paragraph [17] of the summing up:

Once again the doctrine of joint enterprise comes into play. If you accept the evidence that it was the third accused (Zhang Yong), whom they call "Bald Head" who did drive them from Nadi to Suva, (and that is not in dispute) then you must go on to decide whether he was part of the group with the common intention to deceitfully traffic these girls. So to find Zhang Yong guilty you must accept that he drove them across Viti Levu and that he knew that they were going to have to provide sex and he knew that they had been told that it was only massage they were here for; in other words was Zhang Yong (or Bald Head) in on the plot?

[70] Mr Singh submits that the direction on the principle of joint enterprise is inadequate and that the direction is erroneous because the prosecution did not rely on the principle of joint enterprise to prove the charges against Zhang Yong. I accept this submission. The prosecution did not rely on the principle of joint enterprise to impute criminal responsibility on Zhang Yong. Zhang Yong was charged with the specific offence of domestic trafficking in persons on a specific date. The prosecution could have alleged that Zhang Yong was a part of a group in Thailand with the common intention to deceitfully traffic the complainants into Fiji to provide sexual service, but the prosecution chose not to allege joint enterprise. The separation of power does not allow the courts to question the prosecutorial discretions. The bringing of charges involves prosecutorial discretion. The courts lack jurisdiction to question that discretion.

[71] Counsel for the State maintains that the direction on the principle of joint enterprise cannot be justified. Like Phanat Laojindamanee and Lum Bing, the learned trial judge erroneously attributed criminal liability on Zhang Yong based on the principle of joint enterprise when the prosecution was relying on an inference to prove the element of deception required for domestic trafficking in persons. The error has resulted in a miscarriage of justice. On this ground I would allow Zhang Yong's appeal against conviction.

Circumstantial evidence
[72] Mr Singh submits that the direction on circumstantial evidence was inadequate. Mr Singh submits that the learned trial judge should have directed the assessors not to convict, if there was a reasonable hypothesis or reasonable possibility consistent with innocence. The impugned direction is in paragraphs [21] - [24] of the summing up:

Now those are specific directions on the law of the individual charges that the accused are being charged with and those are directions that you must accept. Just before I leave the law and turn to the evidence, there is one more area of law that I will direct you on that will assist you to analyse the evidence. That is called the law on circumstantial evidence.

Sometimes assessors are asked to find some fact proved by direct evidence. For example, if there is reliable evidence from a witness who actually saw an accused commit a crime, or if there is a video of the crime or reliable evidence from the accused that he committed it, these would all be good examples of direct evidence against him. On the other hand it is often the case that direct evidence of a crime is not available and the prosecution relies on circumstantial evidence to prove guilt. That simply means that the prosecution is relying on evidence of various circumstances relating to the crime and to the accused which they say taken together will lead to the sure conclusion that it was the accused who committed the crime.

Circumstantial evidence can be powerful evidence - indeed it can be as powerful as, or even more powerful than direct evidence, but it is important that you examine it with care - as with all evidence - and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt, or whether on the other hand it reveals any other circumstances which are or may be of sufficient reliability and strength to cast doubt upon or destroy the prosecution case.

Finally, we should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence and mere speculation. Speculation in a case amounts to no more than guesses or making up theories without good evidence to support them and neither the prosecution, the defence, nor you, should do that.

[73] Reliance on the circumstantial evidence to prove guilt of an accused does not require special direction (Waisu v The State unreported Cr App No. AAU0041 of 2007S; 12 March 2008 at [8]). What is required is to make it plain to the assessors that if they are relying on the circumstantial evidence to infer guilt then they must not convict unless they are satisfied of the guilt beyond reasonable doubt (Boila v The State unreported Cr App No. CAV005 of 2006; 25 February 2008).

[74] In the present case, while the assessors were told that the prosecution was relying on evidence of various circumstances which leads to sure conclusion of guilt, the learned trial judge in the summing up did not identify those circumstances relied upon by the prosecution from which an inference of guilt could be made beyond reasonable doubt. However, I accept the State's submission that the prosecution case was not wholly depended upon circumstantial evidence, and therefore, any deficiency in the direction could not have caused a miscarriage of justice. This ground fails.

Essential directions
[75] Mr Singh submits that the summing up lacks essential directions on the following matters:

a. On the elements of the offence

b. Presumption of innocence

c. Actus reus

d. Identification

e. Drawing of inferences

f. Assessing the evidence of witness generally.

[76] Mr Singh submits that the learned trial judge erroneously directed that there were two elements of domestic trafficking in persons. In paragraph 16 of the summing up, the learned trial judge directed the assessors that the prosecution was required to prove that Zhang Yong facilitated the transportation of the complainants from one location to another within Fiji and when he did that he deceived the complainants about the fact that arrangements made for them following the transportation would involve the provision for sexual service. Mr Singh contends that intention is also an element of domestic trafficking in person. He cites Smyth v The Queen [1957] HCA 24; (1957) 98 CLR 163 as an authority to support his submission that "the Assessors must have mistakenly believed that a man intends the natural and probable consequences of his act". However, Smyth v The Queen concerned the element of specific intent required for murder. Unlike murder, the offence of domestic trafficking in persons does not require proof of a specific intent.

[77] Mr Singh further argues that the learned trial judge failed to direct the assessors that honest belief means no intent. Zhang Yong did not put his belief as an issue. His defence was that his association with the complainants was an innocent association because he did not know they were brought to Fiji to provide sexual service. Domestic trafficking not being a crime of a specific intent, the learned trial judge was not obliged to give a direction on intention or honest belief.

[78] Although the learned trial judge did not refer to the presumption of innocence in the summing up, the direction on the standard and burden of proof made it clear that the accused did not carry any burden to prove anything.

[79] Identification was a non-issue at the trial. Zhang Yong admitted he transported the complainants from Nadi to Suva in the vehicle he drove. His defence was innocent association and not mistaken identity. The learned trial judge was not required to give special direction on identification.

[80] Mr Singh did not expound his submissions on the lack of directions on actus rea, drawing of inferences and assessing the evidence of witnesses generally. Counsel says the trial miscarried as a result of these errors. Without particulars, the alleged errors are vague. These are not valid grounds and for that reason cannot succeed.

Joint trial
[81] The question of whether to hold a joint trial or separate trials was within the discretion of the trial judge. The State relied upon section 60 of the Criminal Procedure Decree 2009 to justify a joint trial. Section 60 states:

The following persons may be joined in one charge or information and may be tried together —

(a) persons accused of the same offence committed in the course of the same transaction;

(b) persons accused of an offence and persons accused of –

(i) aiding or abetting the commission of the offence; or

(ii) attempting to commit the offence;

(c) persons accused of different offences provided that all offences are founded on the same facts, or form or are part of a series of offences of the same or a similar character; and

(d) persons accused of different offences committed in the course of the same transaction.

[82] The State's case was that Phanat Laojindamanee and Lum Bing were accused of the same offence committed in the course of the same transaction (s 60 (a)), while Zhang Yong and Jason Zhong were accused of different offences that were founded on the same facts and which formed part of a series of offences of similar character as Phanat Laojindamanee and Lum Bing.

[83] The discretion to hold a joint trial is also guided by the wider interests of justice that includes the public interest factors. The relevant factors were summarised by Shameen J in State v Boila unreported Cr Case No. HAC0031 of 2005S; 17 June 2005:

There are many public interest reasons why such offenders should be tried together. One is the public expense involved in conducting several trials based on the same law and evidence. Another is that witnesses would be greatly inconvenienced by having to give the same evidence many times. A third is that a joint trial is more likely to lead to uniform treatment in respect of all connected defendants. Lastly, separate trials usually lead to delay in the hearing of cases.

[84] When the discretion to hold a joint trial is based on the interests of justice, an appellate court will intervene only if satisfied that the judge's decision has caused a miscarriage of justice (R v. Moghal 65 Cr. App. R. 56).

[85] Mr Singh submits that Zhang Yong was prejudiced by the joint trial because the learned trial judge did not direct that the case of each accused should be looked at separately. This submission flies in the face of the clear direction contained in paragraph [8] of the summing up where the learned trial judge told the assessors that they "must consider each count separately and the case against and for each accused separately".

[86] Mr Singh further submits that the learned trial judge did not direct the assessors that what one accused says about another is not evidence against that other. This submission is misconceived. When an accused gives evidence against his co-accused in a joint trial, the evidence is admissible against the co-accused. In paragraph [41] of the summing up the learned trial judge told the assessors to examine the evidence with the particular care because the accused may have been more concerned about protecting himself than about speaking the truth. As far as the caution interview of the accused was concerned, the learned trial judge told the assessors that they "must not accept what one accused says about another unless he repeats that in evidence".

[87] The final submission was a mere repeat of the ground that the learned trial judge erred in giving direction on joint enterprise. The direction on joint enterprise had no bearing on the learned trial judge's discretion to order a joint trial. For these reasons, I conclude that there was no error in the trial judge's discretion to order a joint trial. This ground fails.

Consideration of Jason Zhong's appeal
Defence of 'translating'
[88] Ms Malimali submits that the learned trial judge failed to direct the assessors that they should acquit if they were not satisfied that Jason Zhong was acting as a translator for another then he should not be found guilty. Defence of 'translating' is not a legal defence. Jason Zhong relied upon this defence on the facts. The learned trial judge fairly summarised Jason Zhong's evidence in paragraphs [58]-[60] of the summing up. The assessors and the trial judge did not believe Jason Zhong was only translating for another and that his association with the complainants was an innocent association. This ground fails.

[89] Ms Malimali advances new grounds of appeal for the first time in her written submissions. As I have said earlier in my judgment, this practice of raising grounds of appeal for the first time in the written submissions should not be encouraged. However, in the interests of justice, I have decided to consider the new grounds.

Fault element – intention
[90] Ms Malimali submits that the learned trial judge did not explain the mens rea for the offence of sexual servitude in the summing up.

[91] Jason Zhong was charged contrary to section 106 (1) of the Crimes Decree 2009. Section 106 (1) states:

(1) A person —

(a) whose conduct causes another person to enter into or remain in sexual servitude; and

(b) who intends to cause, or is reckless as to causing, that sexual servitude;

commits an indictable offence.

[92] Section 104 of the Crimes Decree 2009 defines sexual servitude as:

(1) for the purposes of this Division, sexual servitude is the condition of a person who provides sexual services and who, because of the use of force or threats —

(a) is not free to cease providing sexual services; or

(b) is not free to leave the place or area where the person provides sexual services.

(2) In this section—

"threat" means—

(a) a threat of force; or

(b) a threat to cause a person’s deportation; or

(c)a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person.

[93] The learned trial judge explained the elements in paragraphs [18]-[19] of the summing up:

The last two counts are charged against Jason Zhong and are counts of sexual servitude, one count for PW1 and one for PW2.

To prove this offence, the Prosecution must show to you so that you are sure, that Jason Zhong, that is the fourth accused, caused another person to enter into sexual servitude, and secondly, that he intended to cause that sexual servitude.

Now servitude is a fancy word for slavery and a slave doesn't have to be an African picking cotton in the USA in the mid 19th century. In law sexual servitude is defined as the condition of a person who provides sexual services and who because of the use of force or threats (i) is not free to cease providing sexual services; or (ii) is not free to leave the place or area where the person provides sexual services.

[94] Clearly, the offence of sexual servitude under section 106 (1) has two disjunctive fault elements. The first is intention. The second is recklessness. The prosecution alleged the fault element of intention in the charge. Section 19 (1) states that "a person has intention with respect to conduct of he or she means to engage in that conduct". In the context of the present case, the learned trial judge was required to direct the assessors that when Jason Zhong threatened to enforce a claimed debt of $1,900.00 against the complainants he intended or meant the complainants to enter into a condition of sexual servitude. In my judgment the learned trial judge gave adequate direction on the fault element, namely, the intent.

Physical element - the use of threat
[95] Another complaint relates to the accuracy of the direction contained in paragraph [20] of the summing up. Paragraph [20] reads:

The prosecution are saying to you that because Jason Zhong was demanding the return of $1900 from each of the two girls, they had no choice but to "work" for him by providing sex to customers and that they were not free to stop providing sexual services. If you agree, then you will find Jason Zhong guilty; if you do not agree or if you are not sure then you will find him not guilty of each of these two offences.

[96] Ms Malimali submits that the learned trial judge should have directed the assessors to consider whether Zhong's action of demanding money fell within the Crimes Decree definition of threat.

[97] The use of force or threat is an essential ingredient of sexual servitude. Sexual servitude is the condition of the victim who provides sexual service. That condition is caused by the use of force or threats. The prosecution did not allege force. The prosecution alleged a threat. The prosecution relied on the definition of threat under section 104 (2) (c), that is, "a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person".

[98] In paragraph [20] of the summing up the learned trial judge directed the assessors to consider whether Zhong's demand for return of $1,900.00 from the complainants constituted sexual servitude. Not every demand for return of a debt necessarily constitutes a threat. The prosecution was required to prove that as a result of a threat, the complainants were not free to cease providing sexual services or they were not free to leave the place or area where they provided sexual service. The learned trial judge did not clearly explain this aspect of sexual servitude in the summing up. Instead the learned trial judge substituted the use of threat with the use of demand as the basis of the condition of sexual servitude.

[99] By directing the assessors to consider whether the demand for return of debt constituted sexual servitude instead of a threat of a detrimental action, the learned trial judge virtually imposed a lesser burden of proof on the prosecution. Since the use of threat was an essential element of the condition of sexual servitude, the learned trial judge erred in law when he gave a direction that had the effect of reducing the prosecution's burden to prove the physical element of threat of a detrimental action for Jason Zhong to be guilty. The error has resulted in a miscarriage of justice. I would allow Jason Zhong's appeal against conviction on this ground.

Accuracy of translation
[100] The complainants elected to give evidence in Thai language. The evidence was then translated in English for the court. Ms Malimali contends that the translation was inaccurate. The court record does no support this contention. Any issue regarding the accuracy of the translation should have been taken with the trial judge and not for the first time on appeal. Jason Zhong's trial counsel did not take any issue regarding the competency of the Thai translator or the accuracy of the translation from Thai to English. When Jason Zhong was called to give evidence, his trial counsel told the trial court that Jason Zhong spoke good English. Jason Zhong gave evidence in English. Clearly, Jason Zhong understood the complainants' evidence after it was translated in English for the court. This ground fails.

[101] Given the outcome of the conviction appeals, it is not necessary to consider the sentence appeals.

Conclusion
[102] The misdirection on the elements of the offence is a basic error. The appellants were not convicted according to law. This is not a case for the proviso. Consequently, I would allow the appeals of all four appellants and set aside their convictions and sentences pursuant to section 23 (1) of the Court of Appeal Act.

[103] The power to order a retrial is granted by section 23 (2) of the Court of Appeal Act. A retrial should only be ordered if the interests of justice so require. In Au Pui-kuen v Attorney-General of Hong Kong [1980] AC 351, the Privy Council said that the interests of justice are not confined to the interests of either the prosecution or the accused in any particular case. They also include the interests of the public that people who are guilty of serious crimes should be brought to justice. Other relevant considerations are the strength of evidence against an accused, the likelihood of a conviction being obtained on a new trial and any identifiable prejudice to an accused whilst awaiting a retrial. A retrial should not be ordered to enable the prosecution to make a new case or to fill in any gaps in evidence (Azamatula v State unreported Cr App No AAU0060 of 2006S: 14 November 2008).

[104] The alleged offences are now more than four years old. The complainants who were Thai nationals returned to Thailand immediately after the conclusion of the trial in 2012. All four appellants have served nearly 3 1/2 years imprisonment for their alleged offences.

[105] On the other hand, there was a strong body of evidence upon which a court with assessors properly directed might well have convicted the appellants. I am mindful that the complainants may no longer be available to give evidence, but I believe due to the seriousness of the charges of human trafficking and the strength of the evidence led in the first trial, the interests of justice will be served by an order for a retrial.

The Orders of the Court are:

1. Appeals allowed.
2. Convictions and sentences set aside.
3. Case to be retried before a differently constituted bench.
4. The appellants are remanded in custody pending retrial and the case is listed for mention in the High Court on 12 October 2016 at 9.30 am.
   

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Hon. Mr. Justice W. Calanchini
PRESIDENT, COURT OF APPEAL

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Hon. Mr. Justice S. Fernando
JUSTICE OF APPEAL

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Hon. Mr. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Legal Aid Commission for the 1st Appellant
Pacific Chambers for the 2nd and 4th Appellant
Anil J Singh Lawyers for the 3rd Appellant
Office of the Director of Public Prosecutions for the State