Chand v The State [2003] FJHC 76; HAA0012J.2003S (18 June 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0012 OF 2003S

Between:

RAMESH CHAND
f/n Mahesh Prasad
Appellant

And:

THE STATE
Respondent

Hearing: 13th June 2003
Judgment: 18th June 2003

Counsel: Mr A. Ravindra-Singh for State
Appellant in Person

JUDGMENT

The Appellant was tried in the Suva Magistrates’ Court on the following charge:

Statement of Offence

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

Particulars of Offence

RAMESH CHAND s/o MAHESH PRASAD between 15th December, 1995 to 25th June, 1996 at Nausori in the Central Division with intent to defraud, obtained $3459-00 in cash from RAJ KUMAR s/o 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.

The trial commenced on 31st May 2002. The Appellant was represented by counsel. Judgment was delivered on 18th November 2002. The Appellant was convicted and sentenced to 18 months imprisonment. He now appeals against conviction and sentence upon the following grounds:

(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.

The evidence at the trial was that the Appellant was in 1995 and 1996, running a travel and marriage consultancy. PW1, one Raj Kumar gave evidence that he had gone to the Appellant to arrange for a visa to New Zealand. He called the words “visa” and “PR” interchangeably. The Appellant took $1000 from the Appellant for the paper-work and application. PW1 gave the Appellant four other sums of money (each for $1000) in order that the Appellant could arrange his travel to New Zealand. A document was signed by both parties and was tendered in court. It reads:

“I Ramesh Chand s/o Mahesh Prasad of Lot 10 Bhindi Sub-Division Vatuwaqa took loan sum of $1000.00 only from Raj Kumar f/n Jai Muni Deo of Nadure Rd, Kuku Nausori and will pay back on 15th March 1996.”

A further four sums were also documented in this way on the same document.

When no visa was forthcoming, the complainant reported the matter to the police. In cross-examination, the complainant said that the Appellant had represented that he was able to obtain visas for them, and that he had made telephone calls purportedly to the Immigration Department about the documentation for the visas.

The defence was that the money was lent to the Appellant and was unconditional. The Appellant, in his sworn evidence said that he had a business licence (which he tendered) to operate a travel and marriage agency. He said that the complainant’s wife, Saras Wati had approached him to arrange a marriage of convenience with any person in New Zealand but that he did not make any such arrangement. Instead he asked the complainant for money as a loan.

The defence therefore was that the money was advanced as a loan, and that no representations had been made for the arranging of a visa. On page 27 of the record the Appellant said:

“I drove them around a lot of places. I did not promise them that I will get Police Clearance. When I started taking loans from them, I stopped arranging for their visas. I have not paid them back so far. I was charged in 2001.”

In his judgment, the learned Magistrate referred to the Appellant’s interview under caution in which he admitted that he had agreed to arrange marriages for the complainant and his former wife in New Zealand so that they could emigrate. The Appellant had told the police:

“Raj Kumar told me that both were divorced but staying together from the last 8 years and both wanted to go overseas. I then told them that I can arrange for their marriage and they have to give me certain fees. They said first to arrange their marriage overseas and they will give whatever the fees would be.

Q17: Did you arrange for their marriage overseas?

A: I tried but no one agreed for convenience marriage overseas.”

The learned Magistrate considered that the complainant and his wife were elderly unsophisticated people with no business skills, who wanted to migrate and were attracted by the Appellant’s signboard that he was a marriage and travel consultant. He correctly directed himself that the prosecution had to prove that there was a representation that it was false and that it induced the complainant to part with his money. He found all elements of the offence. He found that the Appellant gave “prevaricating and halting statements” and concluded that his evidence was not truthful. He convicted him as charged.

The appeal

The Appellant in his submissions raised the question of delay. He did not suggest that he was prejudiced by the fact that charges were not laid until 2000, some four years after the commission of the offences. He did suggest that the learned Magistrate had somehow laid the blame for the delay at his door. I see no evidence that the learned Magistrate blamed the Appellant in any way. Indeed, he referred to it as the prosecution’s delay, saying that the prosecution had failed to explain why it took so long to lay charges.

However, the delay in the hearing of the case is obviously the source of concern. In Apaitia Seru and Anthony Stevens –v- The State Crim. App. No. AAU0041 of 1999S the Fiji Court of Appeal considered systemic delay, caused by the court system, and delay before charges are laid. It further held, referring to the decision of the New Zealand Court of appeal in Martin –v- Tauranga District Court (1995) 2 NZLR 419, and of the Canadian Supreme Court in R –v- Morin (1992) CR (4th) 1, that what constitutes unreasonable delay for the purposes of section 29(3) of the Constitution depended on the balancing on a number of factors. They include the length of delay, waiver of any time periods of the accused and the reasons for the delay. However the Court of Appeal pointed out that a stay on the grounds of delay post-change was far more likely to be ordered, than a stay for delay before charges were laid.

In this case there was pre-charge delay but the Magistrates’ Court dealt with the case with commendable speed once charges were laid. The charges are serious and there was good public interest reasons why the trial should have been allowed to proceed. The record shows no lapses of memory or absences of witnesses leading to the defence case being hampered or obstructed. I do not consider that this is a case which should lead to a finding that the Appellant did not have a fair trial or that the trial was not held within a reasonable time.

The Appellant’s main ground of appeal is that the learned Magistrate should not have preferred the complainant’s evidence to his, because of the inconsistencies in the complainant’s evidence. He pointed these out, saying that the complainant changed his story from saying the money was obtained to apply for visas, then as a loan, then for permanent residence. Reading the evidence of the complainant carefully however, I find that there were no material inconsistencies. The false representation was that the Appellant was able to procure for the complainant and Saras Wati, means by which they could migrate to New Zealand. They gave him money believing that he could procure such means, and continued to advance him further sum in the belief that he was taking steps to process their emigration. The telephoning from the café at Suva Point, the constant references to the Immigration Department and to police and medical clearance bolstered their erroneous belief, fuelled by the Appellant, that their applications were being processed. These false representations were the means by which the Appellant obtained money from the complainant, and although the sums were called “loans”, the complainant was adamant that they were sums paid to the Appellant so that he could procure their emigration. The learned Magistrate had no difficulty believing the complaint, and on a reading of the evidence, I also have no difficulty in accepting his version of the facts. The Appellant’s sworn evidence was inconsistent with his statement to the police and the learned Magistrate found him to be an unsatisfactory witness. He made a finding on credibility which he was entitled to make.

There is no merit in the appeal against conviction.

Sentence

The Appellant said that his previous convictions were not put to him before sentence was passed and that they were inaccurate. He further says that his previous convictions were taken into account for the purpose of sentencing and that he should have been treated as a first offender. There are several difficulties with this argument. Firstly although State counsel agrees that the Appellant was not shown his previous convictions because he had disputed them and the State had asked for time to up-date them, the only concession the State makes is that the 2002 conviction has been quashed by this court and a re-hearing ordered. In fact I was advised that the Appellant has been convicted in the 2002 case after the re-hearing (or continuation) of the trial and he now awaits sentencing. Secondly, the State maintains the accuracy of the other convictions. The Appellant says that four convictions in 1990 and a further fine in 1991 are not correct and that he was never convicted of these offences of obtaining money by false pretences. However in the case of Ramesh Chand –v- The State Crim. App. No. HAA0050, 51, 52 of 1991, Jesuratnam J considered the Appellant’s appeal in respect of the very cases the Appellant now says did not occur, 1583/89, 1288/90 and 1289/90. His appeals against convictions were dismissed, but his sentence was reduced from 8 years in total, to four years in total with an order that the sentences on each case were to be served concurrently. The result of the appeal does not appear to be reflected in the previous convictions record, but the convictions themselves were not set aside.

Thirdly even if these disputed convictions did not exist, the Appellant did have some remaining previous convictions and did not deserve to be treated as a first offender. Nevertheless, as I commented when the Appellant applied for bail pending appeal, he was shown considerable leniency by the learned Magistrate. Sentences for this offence range from 18 months imprisonment to 3 years. The Appellant was entitled to some reduction on the ground of the delay. However a sentence of 2 years imprisonment might have been considered appropriate given the sums of money involved, the length of time over which the offending took place, the unscrupulous exploitation of an elderly and gullible couple who were desperate to migrate and the Appellant’s failure to compensate the complainants. In these circumstances the learned Magistrate might have justifiably imposed a heavier sentence.

For these reasons I find that there is no merit in this appeal against sentence.

Result

This appeal is wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
18th June 2003