Rao v The State [2002] FJHC 218; HAM0029D.2002S (29 July 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS ACTION NO: HAM0029 OF 2002

Between:

MAHESH RAO
Applicant

And:

THE STATE
Respondent

Counsel: Mr M. Raza for Applicant
Ms K. Bavou for Respondent

Hearing: 26th July 2002
Ruling: 29th July 2002

RULING

Background

On 20th May 2002 the Applicant was convicted of Larceny under section 259 of the Penal Code. He had been charged with an offence under section 309(a) of the Penal Code, of Obtaining by False Pretences. The learned Magistrate convicted of the lesser offence under section 182 of the Criminal Procedure Code. He was sentenced to two years imprisonment on 4th July 2002. He now applies for bail pending appeal, on the ground that his appeal is clearly meritorious.

The charge in the Magistrates Court read as follows:

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to section 309(a) of the Penal Code Act 17.

Particulars of Offence

MAHESH RAO s/o Krishna between 25th day of April, 1999 and 4th day of May, 1999 at Suva in the Central Division with intent to defraud obtained $6,000.00 in cash from Bidya Wati Lal d/o Ram Latchan by falsely pretending that he was in a position to arrange her family migration visa to Australia.

Although the court record is not available, the facts of the case are set out in the judgment. An advertisement was lodged in the Fiji Times by Jay=s Travel Agent offering to assist people to emigrate. The complainant, Bidya Wati, rang the number advertised and spoke to the Applicant who apparently told her he could get her a visa within 8 months. She was asked to send him personal documents and to pay $2,000 for each family member. On 23rd April 2001 (this may be a typing error, the date may be 1999), Ms Wati visited the Applicant and paid him (in the office of Jay=s Travel Agent) the sum of $4,000 in cash. She was given a receipt for the payment. Ms Wati=s husband was present when payment was made.

A week later the Applicant telephoned Ms Wati and her husband asking for a further $2,000, to pay for Police and medical clearance. Ms Wati sent a further $2,000 by telegraphic transfer on the 3rd of May 1999.

After eight months Ms Wati contacted the Applicant but was unable to speak to him. She made enquiries at the Australian High Commission about her visa. She did not receive any approval of her visa. She then reported the matter to the police in September 2000.

The proprietor of Jays= Travel Agency, said that his firm did provide migration services and that the Applicant was in charge of those services. He said that the Applicant stopped working for the firm in 2000, and that he, the proprietor knew nothing of the money paid to the Applicant by Ms Wati and her husband.

The Applicant in an unsworn statement said that he had never handled finances and that he was only an employee of the Travel Agency. In his statement to the police, he had admitted signing the receipt for the initial payment of $4,000, but denied receiving any money from Ms Wati.

In her judgment, the learned Magistrate accepted the evidence that the Applicant had received the $6,000 from Ms Wati and said Athere has been no visa and no reasonable explanation why there was no visa obtained by PW1 to date. All that the defendant said in his defence is that he was an employee and did not handle the finances.@ The learned Magistrate then convicted of the lesser offence of larceny.

In her sentence however, she said that the Applicant was convicted of the offence of Obtaining by False Pretence. She sentenced him to two years imprisonment.

The grounds of appeal include a ground that the Applicant was sentenced for the wrong offence, a ground that the conviction seems to be based on an inference that the Applicant stole from his employer, and a ground that there was no direction on the burden and standard of proof.

Principles

The grounds for granting bail pending appeal are that there must be exceptional circumstances, that the merits of the appeal may be relevant where the appeal has every chance of success, and that a substantial portion of the term of imprisonment shall have been served when the appeal is heard (Amina Begum Koya -v- State Criminal Appeal No. AAU0011.1996S).

The ground for this application is that the appeal has every chance of success. The State opposes the application although counsel conceded that there were some obvious errors on the face of the judgment and sentence.

Section 182 indeed allows court to convict of the offence of larceny on a charge of obtaining by false pretence. However, in order to so convict, the court must explain why a conviction under section 309 was not possible, which ingredients of that offence had not been proved beyond reasonable doubt, and why all the ingredients of larceny had been proved beyond reasonable doubt. I see no such explanation. If the learned Magistrate was of the view that the Applicant had fraudulently converted monies that he ought to have paid to his employer, then she ought to have said so. However the basis of her decision appears to be that Ms Wati was the complainant and that she believed her evidence that she had paid the Applicant the money. She also accepted the evidence of Ms Wati that no visa had been obtained. Of course, for a section 309 the question was whether at the time of obtaining, the complainant thought, as a result of false representations made to her by the Applicant, that he could obtain a visa for her. On the evidence of the proprietor of the Travel Agency, the firm did provide such services and that therefore was not a false pretence. What his evidence showed if it was accepted, is that the Applicant took the money on behalf of his employer and kept it for his own use. The learned Magistrate therefore appears to have accepted, that the Applicant stole $6,000 from his employer.

However, on the charge under section 309, his employer was not the complainant. Could the learned Magistrate therefore convict of the lesser offence? The judgment does not indicate whether she considered this question, or indeed the ingredients of the offence of larceny in relation to the facts of the case.

Further, there is no reference to the burden and standard of proof. The reference to the accused not providing any reasonable explanation, would appear to indicate that he had the burden of proving his innocence.

Lastly the sentence which purports to be for the section 309 offence, is clearly wrong in law. The Applicant was not convicted of the section 309 offence.

The Applicant has therefore shown three grounds that appear to be clearly meritorious and to have every chance of success on full argument of the appeal. For this reason, I accept that there are exceptional grounds to justify the grant of bail pending appeal. I grant bail accordingly, in the Applicant=s own recognisance in the sum of $2,000. He must appear in the High court at 9.30am on 25th August 2002 when this case will be listed for mention to set a hearing date.

Nazhat Shameem
JUDGE

At Suva
29th July 2002