Chand v The State [2004] FJHC 71; HAA0003J.2004S (12 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA003 OF 2004

Between:

RAMESH CHAND
Appellant

And:

STATE
Respondent

Hearing: 5th March 2004
Judgment: 12th March 2004

Counsel: Appellant In Person
Ms. A. Prasad for State

JUDGMENT

This is an appeal against conviction and sentence. The Appellant pleaded guilty in the Nausori Magistrates’ Court to the following offence:

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309 (a) of the Penal Code, Cap. 17.

Particulars of Offence

RAMESH CHAND s/o MAHESH PRASAD, between the 3rd March, 1998 to 8th April, 1998 at Nausori in the Central Division with intent to defraud, obtained $4000.00 in cash from Kamla Devi d/o Shankar Nair pretending that he would arrange visa for her two daughters to Australia, such representation being false and he converted the money to his own use.

Although ordinarily there can be no appeal against conviction on a plea of guilty, the Appellant says that his plea was equivocal and this conviction should be set aside.

The grounds of appeal are as follows:

1. The trial Magistrate erred in convicting because the plea was equivocal.

2. That the delay in continuation of trial after two years in February 2003 prosecution interview another witness which delayed the trial.

3. That I appeal against delay in continuation of trial which was refused by Senior Court Clerk of Nausori Magistrate Court on 12th June, 2002.

4. That the money was loaned which was to be returned on 3rd June, 1998 according to the agreement.

5. That the trial Magistrate erred in preparing his sentencing and not concentrating in what he is writing in sentencing.

6. The trial Magistrate erred in law and not considering that I was unrepresented by counsel.

7. That the charge complaint by police is irregular.

8. That the conviction was unsafe and unsatisfactory.

9. Sentence is harsh and excessive.

The hearing

The charge was filed on the 14th of November 2000. The case was first called on that day and the Appellant pleaded not guilty. The case was adjourned for disclosure, for the non-appearance of the Appellant, for the failure of the court registry to issue a Production Order, for non-appearance of the Appellant’s counsel, for the Prison Department’s failure to bring the Appellant to court on time, for the non-appearance of witnesses and for late disclosure by the prosecution. On 23rd May 2002 when the prosecution witnesses failed to appear, the Appellant asked for an acquittal but that application was refused. On another hearing date (the 11th of April) the Appellant did not appear because the Production Order had not been served, but his counsel also failed to appear for no apparent reason.

On the next hearing date, again the Appellant failed to appear despite the issue of a Production Order. Mr. A. K. Singh was contacted because he also had absented himself and he told the Court Clerk that he was no longer representing the Appellant “due to non-payment of fees.”

The matter then proceeded on the 8th of October 2003, without counsel. This time the Appellant pleaded guilty. The facts were read out on the 14th of October 2003.

They were that Kamla Devi and Ram Kirpal were a married couple living in Wainibokasi. The Appellant promised to arrange for their daughters to travel to Australia and said he would arrange visas for them in exchange for $4000. Kamla Devi gave $4000 to the Appellant in the presence of Ram Kirpal in four instalments, from March 1998 to April 1998.

The facts then read:

“Furthermore Ramesh Chand stated that the total of $4000 given to him was to be repaid by 3rd June 1998 to Kamla Devi and Ram Kirpal. After June 1998 Kamla Devi have been enquiring with Ramesh Chand about repaying the $4000.00 or even the results of processing the visas for her daughters. Ramesh Chand replied that it was still in the process.”

The complainant then reported the matter to the Police. The Police discovered that no application for visas had ever been received by the Australian High Commission on behalf of Kamla Devi’s daughters. Under caution the Appellant admitted taking the $4000 but said that he had not repaid the money because Kamla Devi had reported the matter to the Police.

The Appellant admitted the facts and 36 previous convictions. In mitigation he said that the case was very old, he was married with two children, that he had not offended since 1998 and that because of the delay in the case he should be given a concurrent sentence.

The learned Magistrate then sentenced the Appellant to two years imprisonment. The Learned Magistrate took into account the Appellant’s mitigation, the sentences of the case, the delay in the hearing, the effect of the offending on the complainant who was in court at the sentencing hearing, and the Appellant’s failure to pay back the money. He also took into account the plea of guilty. He ordered that the sentence run concurrently with his existing term of imprisonment.

The conviction

The Appellant submitted that he pleaded guilty out of frustration and said that the facts did not disclose the offence. The history of this case shows a quite unacceptable degree of delay. Much of the delay can be attributed to the court system for failing to issue production orders when the court knew that the Appellant was in prison. The prosecution is also not exempt from blame. Why were statements still being disclosed three years after the charge was laid? Finally the Appellant’s counsel appears to have voluntarily removed himself from the case without informing the court. Such conduct was not only discourteous. It was also responsible for further delay. In all of this delay, I find that the Appellant was largely unblameworthy. In the circumstances his frustration was understandable, particularly when he must have known, that the longer the delay the better the chances of a lengthening of his prison term even if a concurrent sentence were to be imposed.

I now turn to the facts. In order to establish an offence in obtaining by false pretences, the prosecution must lead evidence or read facts, which establish the following elements:

1. The accused obtained;

2. Money or benefits;

3. For his own use;

4. By;

5. False Pretences;

6. With intent to defraud.

The Appellant agreed that he obtained $4000 from the victims but it is not at all clear from the facts on what basis he obtained the money. On the one hand it was alleged that he obtained the money as a result of a verbal agreement to obtain visas. But on the other hand, the State referred to the money as a loan and said that the victim complained because he neither paid the money back nor processed the visas. If the State was saying that the money was taken to apply for visas then this could not be a false pretence. Anyone can apply for visas and any person has the capacity to do so. Further a future promise (I will get a visa for you if you give me $4000) is not a false pretence. A false pretence is a representation of an existing fact which is false. In R -v- Dent (1955) 2 ALL ER 806, the appellant who carried on a business as a pest destructor, agreed to destroy vermin on a farm and received part-payment for the contract. He did no work at all. His conviction for obtaining money by false pretences, was quashed, on the ground that there was no misrepresentation of an existing fact. In what way did the facts in this case disclose an existing fact which was false? They did not disclose a false pretence and the reference to the paying back of the money causes further confusion. I find the facts to be ambiguous and I consider that they were incapable in law of establishing the offence charged.

In the circumstances the conviction cannot stand and must be quashed.

Result

It is unnecessary to consider the other grounds of appeal. However I do observe that when a victim is in court and wishes to make submission about the impact of the offending on him or her, a court should either hear the evidence on oath thus giving the accused an opportunity to cross-examine, or require the prosecution to outline the impact on the victim in the facts outlined, so that the accused is able to dispute it if he/she disagrees. Either way the victim impact evidence is properly recorded. In this case there is no record of the victim appearing in court or giving evidence, but the court relied on what the victim said in the course of his sentencing remarks. Such a procedure is irregular and lacks transparency.

The conviction is a nullity and is quashed. This is a serious offence but the age of it (1998) and the fact that the Appellant is already serving a lengthy prison term thus rendering a consecutive term unlikely, persuade me not to order a re-hearing. The appeal against conviction succeeds.

Nazhat Shameem
JUDGE

At Suva
12th March 2004