Chand v The State [2003] FJHC 199; HAM0009D.2003S (27 February 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO: HAM0009 OF 2003S

Between:

RAMESH CHAND
f/n Mahesh Prasad
Applicant

And:

THE STATE
Respondent

Hearing: 26th February 2003
Ruling: 27th February 2003

Counsel: Mr A.K. Singh for Applicant
Mr V. Vosarogo for State

RULING

The Applicant, on the 17th of February 2003 was sentenced to 18 months imprisonment by the Nausori Magistrates’ Court, on one count of Obtaining Money by False Pretences. The charge 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

RAMESH CHAND (father’s name Mahesh Prasad) between the 15th day of November 1996 to 25th day of June 1996 at Nausori in the Eastern Division with intent to defraud, obtained $3459.00 in cash from RAJ KUMAR (father’s name Jai Muni Deo) pretending that he would arrange visa for the said RAJ KUMAR s/o Jai Muni Deo and his family to New Zealand, such representation being false and he converted the money to his own use.

He now applies for bail pending the hearing of his appeal against conviction and sentence. His grounds of appeal are as follows:

(a) That the learned trial magistrate has erred in law and facts when he failed to consider the loan documents duly executed by the complainant and the appellant.

(b) That the learned trial magistrate erred in law and facts when he failed to properly analyse the evidence and the ingredients of the offence of Obtaining Money by False Pretence.

(c) That the learned trial Magistrate erred in law and facts when he failed to give reason why he failed to consider the evidence of the appellant over the evidence of the complainant.

(d) The learned Magistrate erred in law when he allowed the appellant’s previous conviction after allowing mitigation on behalf of the Appellant and/or without putting it to the Appellant.

(e) The learned Magistrate erred in law when he sentenced the Appellant to 18 months imprisonment on the basis of his 32 previous convictions that were never put to the Appellant.

At the hearing of this application, counsel for the Applicant confined himself to one main ground in support of the application. He submitted that the appeal against sentence was bound to succeed because the learned Magistrate had relied on a record of previous convictions which was in dispute and which contained a number of convictions which had either been set aside, or varied by the appellate courts. He said that the record had never been put to the Applicant, that there had been no opportunity to dispute them and that this error in effect invalidated the sentence.

State counsel submitted that the record was accurate, that defence counsel had ample opportunity to advise the court that the convictions were inaccurate and that in any event there were no exceptional circumstances to warrant the grant of bail.

There is, of course, no right to bail pending appeal. Once an accused person is convicted, it is for him or her to show special circumstances which might justify the grant of bail. One such circumstance might be an obvious error made by the subordinate court, which clearly will lead to a successful appeal. Another might be the length of time an appeal might take to be heard. If the accused is serving a short period of imprisonment, and the appeal will not be heard until a substantial portion has been served, then bail might be granted because a refusal of bail, in the event that the appeal is successful, would lead to real injustice. However, at all times, it is for the Applicant to show that there are exceptional circumstances to justify the grant of bail pending appeal.

In this case, counsel for the Applicant says that the appeal has obvious merit. The Nausori Magistrates’ Court, with commendable speed has forwarded the court record to me at my request. Although I am unable to say whether there is any merit in the appeal against conviction, the learned Magistrate’s sentencing remarks are available for my perusal. In those remarks, he said that the Applicant is “a known fraudster” with 32 previous convictions of a similar nature, from 1981 to the present day. Nevertheless he was considering a non-custodial (suspended) sentence but decided against it because the Applicant had made no attempt to pay back the money taken from the complainants.

The fact that the learned Magistrate was considering a non-custodial sentence for an offence which carries a tariff of 18 months to 2 years imprisonment, suggests that he was prepared (as requested by counsel) to treat the Applicant either as a first offender, or as a reformed character. It appears that the sentencing showed a leniency which might not have been expected if the learned Magistrate had relied on the record of previous convictions.

In an affidavit filed by the Applicant, it is clear that a large number of convictions for obtaining money by false pretences is in dispute. However of these, four previous convictions are only disputed as to the total sentence to be served, not as to the existence of the convictions themselves. Assuming that the record only contained 8 previous convictions (from 1990 to 1994) which are those not disputed by the Applicant, would the sentence delivered have been significantly different from that imposed? I think not.

As for counsel’s argument that the Applicant should have been treated as a first offender because the convictions prior to 1996 had "lapsed”, I consider that this is a matter which must be fully argued at the appeal. I note in any case that the learned Magistrate would have considered a non-custodial sentence (normally reserved for first/young offenders) if the Applicant had attempted restitution. As it is, the Applicant received a sentence at the lowest end of the range for that offence.

In all the circumstances I am not persuaded that there are exceptional circumstances to warrant the grant of bail. Counsel did not argue delay in support of the application. He was right not to do so. The Criminal Procedure Code provides that the court record must be sent to the High Court within 28 days of the filing of the appeal petition. The appeal will be heard within a few weeks thereafter. In the normal course of events, a substantial part of the prison term will not have been served when the appeal is heard.

This application is dismissed.

Nazhat Shameem
JUDGE

At Suva
27th February 2003