State v Raj [2005] FJHC 522; HAC0019.2005 (9 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL APPEAL CASE NO.: HAC0019 OF 2005

BETWEEN:

STATE
Appellant

AND:

GEORGE SHIU RAJ
SASHI SHALENDRA PAL
Respondent

Counsel: Mr. Daniel Goundar & Ms H. Tabete – for State
Mr. H. Nagin – for George Shiu Raj
Mr. Mehboob Raza – for Sashi Shalendra Pal

Dates of Hearing: 5th – 9th September, 2005
Date of Ruling: 9th September, 2005

RULING

This is a ruling prepared overnight and as such I reserve the right to perfect the context but not the substance of the judgment.

At the conclusion of the Prosecution Case and by consent I granted leave to the State to amend its information as to the particulars of date and timing of representation. The amended information is attached to this decision, as Appendix 1.

Both accused through their counsel then made an application that there was no case to answer.

Background

In 2002 the accused Mr. Raj was Minister for Multi Ethnic Affairs. Mr. Pal, his co-accused, is the Managing Director of a travel agency called Hunts Travel Services Limited.

Mr. Raj was invited by the Indian Government to attend an international meeting sponsored by them to celebrate the Indian diaspora and their achievements. The first such invitation was made in 2002 for the celebration to be held in January of 2003. The second such invitation was made in 2003 for the celebration to be held in January 2004.

In accordance with a guideline adopted by Parliament in 1996 Ministers travelling on official business are entitled to “business class reservations” (para 4.26 exhibit 9).

Mr. Raj took his entitlement and in effect cashed it in; rather than travel in business class he exchanged his business class reservation in the first count to pay for economy class tickets for himself, his wife and a Pundit. In respect of the second count he exchanged the business class reservation for an economy class ticket for himself and a cheque from the travel agency for the balance then remaining. It was the co-accused Mr. Pal that assisted him in making these arrangements.

As a result of an audit of the Ministry’s accounts these otherwise transparent arrangements were, in the opinion of the auditor, discrepancies. It was then thought proper to prosecute these gentlemen under Section 309 of the Penal Code. They are co-accused and jointly charged under Section 309(a) (see Appendix 1) with what is commonly called obtaining money by false pretence.

“No Case” Law

There is an unfettered discretion to discharge an accused at the conclusion of the Prosecution Case.

The most common argument is that the evidence is insufficient to justify a trial.

This is not a test involving judicial prediction of the assessors opinion or my verdict. It is not a question of likelihood of outcome but what may be properly done to give an opinion on guilt and render a guilty verdict. This task requires an objective assessment of the prosecution evidence.

In some cases the evidence supporting the charge may be barely adequate and so tenuous as to lead a judge to the view that it would not be proper for the assessors to render an opinion or the judge to convict and accordingly the interests of justice require the trial to be stopped and that a finding of not guilty be made. The evidence in a case may be adequate if accepted but witnesses may appear so manifestly discredited or unreliable that it would be unjust for a trial to continue. Yet again it may be that in the circumstances the tribunal properly directing its mind to the law and evidence would be unlikely to convict. The rationale for a no case finding of not guilty is not the likelihood of an acquittal in those circumstances but the unsafeness of a conviction having regard to the evidence and the law. (R v Flyger, CA 11/00 judgment 16 August 2000, paragraph 15).

In Fiji the judge’s task has been described as assessing the case to see if the prosecution evidence in its totality touches on all the essential ingredients of the offence [adopted in State v Chae [2000] HAC0023.1999S] my learned sister Justice Shameem described the test as whether at this stage there is evidence, relevant and admissible evidence, that the accused committed the offence. I adopt her honour’s view that if there is some relevant and admissible evidence, direct or circumstantial touching on all elements of the offence then there is a prima facie case.

In considering this application I accordingly need to have regard to the evidence and ask if there is any credible reliable evidence at the conclusion of the Prosecution Case that would make it proper and safe to convict.

The Law (Section 309)

The State chose not to open the trial with a strong statement about the meaning of Section 309. The relevant sections read:

Definition of false pretence

308. Any representation made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false, or does not believe to be true, is a false pretence.
     

False pretences

309. Any person who by any false pretence
     
     • (a) with intent to defraud, obtains from any other person any chattel, money, or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person; or
       
     • (b) with intent to defraud or injure any other person fraudulently causes or induces any other person
       
       • (i) to execute, make, accept, endorse or destroy the whole or any part of any valuable security; or
         
       • (ii) to write, impress, or affix his name or the name of any other person, or the seal of any body corporate or society, upon any paper or parchment in order that the same may be afterwards made or converted into, or used or dealt with as, a valuable security,
         

is guilty of a misdemeanour, and is liable to imprisonment for five years.

To establish this charge, the State must prove three elements.

1. First, that the accused obtained the possession, ownership or benefit of any chattel, money or valuable security (or got any chattel, money or valuable security delivered to a third party).
   
2. Second, that the accused obtained that possession, ownership or benefit by means of a “false pretence”. That is, that there is a direct link between the use of a false pretence and the obtaining of the possession, ownership or benefit. There are three stages to analyzing whether there has been a “false pretence”. The State needs to prove:
   
   • (i) That there was a “representation”, that is, a statement about a matter of present, or past fact, or a statement about a future event, or a statement about an existing intention, opinion, belief, knowledge or some other state of mind;
     
   • (ii) That the representation was “false”. It will be a false representation if the person making it knew it was false. In short, that the statement was a deliberate lie;
     
   • (iii) That the false representation was made with the intention of inducing the person to whom it was made to act on it.
     
3. Third, that the false pretence was made “with intent to defraud”. To defraud someone is to deprive that person of something by dishonestly causing that person to believe something that is not true. A person does something dishonestly if he or she does it deliberately and knowing that it is in breach of his or her legal obligations. Even if this is established, if it is claimed that D nevertheless believed that he was “justified” in departing from such a legal obligation, or was “entitled” to so act, it must be shown that D did not honestly believe this.
   

In summary, the State must prove that the accused without justification or entitlement told a deliberate lie, intending that the complainant would believe it and thereby hand over or deliver something which he or she would not have done if the truth had been known.

When asked to submit his best case for the prosecution counsel for the State said there was some evidence that Mr. Raj:

1. Made a false representation that he intended business class travel when he did not.
   
2. This deliberate lie first induced and then caused the Government to pay for a business class reservation but the journey in that class was never taken.
   
3. In Count 1 the accused used the balance of the benefit for his wife and pundit to travel with him in economy class.
   
4. In Count 2 the accused used the balance of the benefit for himself.
   
5. There is therefore some inference of fraudulent intent and this state of mind must be left to the opinion of the assessors.
   

In relation to Mr. Pal counsel says:

1. He is charged in the aiding and abetting of Mr. Raj’s offence;
   
2. That he knew Mr. Raj was committing an offence by accepting the money for one thing but taking it for another; and
   
3. That Mr. Pal nonetheless encouraged the first accused with positive assistance to obtain the money for a business class ticket knowing that it was only going to be used for an economy class ticket thereby causing loss to the Government.
   

In meeting this case Mr. Raza on behalf of Mr. Pal in summary submits:

1. That the State has failed to prove Mr. Pal had any knowledge of these Government provisions regarding ministerial entitlements to business class travel on official overseas business.
   
2. Counsel, therefore, submits that the State have not proved that Mr. Pal aided or abetted an unlawful act.
   

Mr. Raza submits there is no case on the law or the facts. He says that there is no credible admissible evidence that touches on the ingredients of these offences.

In terms of aiding and abetting Mr. Raza submits how can his client be said to have aided and abetted someone who clearly was acting only by virtue of his entitlement to a business class reservation as detailed in a ministerial guideline (Exhibit 9). He observes that the entitlement is unrestricted. Entitlements for diplomats and staff on overseas missions are circumscribed by law that requires them to travel in the class allocated to them and not deal with or transfer their reservation but Ministers, Mr. Raza says, have no such restriction. Indeed, he observes that Ministers have no law about their travel at all but rather only an adopted guideline.

Counsel goes on to submit that any representation of Mr. Pal’s did not cause the Government to make the payment. He submits that any of the transactions entered into for these travel arrangements at Mr. Pal’s request did not cause the money to be procured from the Government. He says the procurement came by way of the invitation from the Indian Government, Cabinet approval for the travel and then the Ministers entitlement under the guidelines (Exhibit 9). He submits that if the first accused is not guilty at law then his client as an aider or abetter cannot be guilty as a party. I don’t accept that general proposition technically an aider or abetter can be convicted even if the principle is discharged. However, I accept the State concession that in the circumstances of this case a discharge of the first accused should lead to a discharge of the second.

Mr. Nagin on behalf of Mr. Raj emphasizes that while there may have been representations concerning the Minister’s class of travel those were not the operative inducement for the Government to make the payment.

He agrees with Mr. Raza that the inducement was rather caused by a chain of events starting with the invitation from the Indian Government and followed by a scheme of ministerial entitlement and administrative action.

He observes that there is no dispute that Mr. Raj was entitled to business class reservations. There is no dispute that in making these arrangements no attempt was made to cover them up or hide them rather the bookings and process of obtaining the economy reservations and payment of the balance then due to Mr. Raj was quite transparent.

He observes that the parties on both counts 1 and 2 all travelled together in the same class on the same aeroplane. That the Ministry ultimately approved the economy class booking for the Minister’s wife and his pundit (Exhibit 14) and that there is evidence that the Ministry kept passports and made visa applications for the travelling party including in Count 1 the Minister’s wife and pundit. From all of this Mr. Nagin submits there can be no safe inference of any dishonesty or intention to defraud.

Mr. Nagin strongly submits that the Government did not part with any money because of anything the accused said or did rather the Government parted with the money because of the invitation from the Indian Government, the approval from Cabinet, the guideline Minister’s entitlements, the production by the Ministry of an LPO, the creation of an invoice and the payment of a cheque.

He says that even on a no case submission I am entitled to draw an inference concerning an accused’s character. He points to the many statements by prosecution witnesses that the first accused is an honest and diligent Minister. He points to his resignation from office and early refund of the balance money (before prosecution was contemplated) as evidence of Mr. Raj’s integrity and genuine belief that what he originally did was simply part of his entitlement. I accept that particular submission.

As regards count 2 Mr. Nagin says a similar logic applies. There was no representation by false pretence that caused payment. Counsel further submits that any Minister is entitled to receive business class bookings for official overseas travel once that decision is made what the Minister does with the entitlement is very much a matter for him as it is unrestricted by the guideline and is unrestricted by any law or regulation (unlike diplomatic travel) as to the use of that class of reservation.

Decision

The principle evidence has been largely uncontested. Indeed senior counsel involved in the trial reached a large measure of agreement about the facts of the case and the documentary trail. These agreements were recorded in the usual statement.

There is no doubt that Mr. Raj took his entitlement to a business class airfare reservation but did not travel business class instead he travelled in economy and in respect of the first count paid for the passage of his wife and pundit and in respect of the second count took the cash difference between an economy fare and a business class fare.

There is equally no doubt that Mr. Pal assisted him in making the various arrangements to ensure that this happened.

The paper trail and tickets supporting these facts are not disputed.

In addition there was a body of evidence coming from the State’s case that by inference I find supports the good intention of the accused in dealing with the travel in the way they did.

The departmental witnesses for the Prosecution spoke of their Minister as being diligent, honest and hardworking. The Cabinet Secretary held the same view. The departmental witnesses also gave evidence that by inference make it clear that the process adopted to exchange the business class reservation for economy travel was transparent:

• The Minister, his wife and pundit travelled in the same plane as the departmental representatives and in the same class.
  
• When booking the seats and paying for them in count 1 the department cited a travel itinerary that made it clear that economy travel was being taken by the Minister’s wife and the Pundit (Exhibit 14).
  
• No departmental officer raised or contested the Minister’s actions.
  

As regards the second count the Minister again travelled to India in the same class this time with more departmental and cultural representatives from Fiji.

It is accordingly a fair inference at this stage that the State’s evidence without more describes an honest person acting transparently. From the prosecution evidence it is a fair inference that the accused had a genuine belief that he was acting lawfully. The State have no credible or safe evidence to support the ingredient of fraudulent intent. In particular there is no safe evidence of dishonesty.

Further, however, the prosecution evidence has clearly raised the issues of ‘justification’ and ‘entitlement’ to act in the way the first accused did. Therefore beyond positive evidence of dishonesty, there must be some safe evidence to negative an honest belief of ‘entitlement’. There is none.

Transparency and honesty, however, are not the major hurdle faced by the State in this prosecution.

Causation

For the State to prove its case there has to be some safe evidence that the false pretence caused the money to be paid. I find on the basis of the State’s evidence at the close of the Prosecution that causation is far from certain.

I prefer the view submitted by the accused counsel that what caused this payment to be made was in fact an invitation from the Indian Government, an approval by Cabinet for the Minister to travel, his entitlement to business class reservations, the raising of a local purchase order, the presentation of an invoice and the payment of that money. There is no safe evidence that the Minister interfered with that process at all. More correctly put he simply let the independent process of his entitlement happen. The Ministry processed the travel booking. The Ministry got the quotes, raised the LPO, checked the invoice and certified payment. There is no safe evidence that the Minister participated in that process.

The Guidelines

A Minister’s entitlements for official overseas travel is described in paragraph 4.26 of Exhibit 9.

A Minister is entitled to a reservation in business class travel. The provision does not say that the Minister must fly in business class and no other class or that the Minister must reimburse the State if he doesn’t do so.

I found the Cabinet Secretary to be a most impressive witness. He said this was a provision that guided ministerial entitlement. This evidence is supportive of the legal decision I must make as to whether exhibit 9 has the force of law. I do not believe it does. Its status and passage through Parliament is only as a guideline and recommendation. The wide breadth of the discretions contained throughout the document and the specific lack of language restricting the use of the travel entitlement lead to the inevitable conclusion that this is not law but a guide. It establishes no lawful obligation.

Moreover I find that the entitlement described in paragraph 4.26 is such that a Minister is entitled to a business class reservation. Having secured the reservation, because of his entitlement, a Minister is then allowed to treat the ticket in anyway he or she so chooses to the best of their political conscience.

In short Ministers may see it as a pure entitlement or advantage of their position representing the people that they can get paid for travel in business class yet accept the discomfort of economy class travel and pocket the difference. I infer even from the State’s evidence because of the transparency of the process it was clear the first accused genuinely believed it was his pure entitlement to take a business class reservation but travel in any class of travel he chose and utilize the money paid by the Government thereafter for his own benefit. The imperative obligation was that he travel on official business, his entitlement was to a reservation in business class

The guide does not stipulate that the journey must be completed in that class of travel. State’s counsel properly conceded there is no such law or express or implied obligation.

I am not satisfied that there is safe evidence to go to the assessors that the first accused acted dishonestly in the sense of acting deliberately in breach of a known legal obligation.

The State conceded that there was no express or implied restriction or legal requirement for a Minister to account for his overseas business reservation entitlement. He was under no legal obligation to account for this money. It was money allocated by entitlement.

There is no evidence that he took more money than he was entitled to. Indeed there is no evidence of loss to the State at all. The Minister completed his official engagements overseas. The Government was obliged by its guideline to pay exactly what it did pay. That is before the Minister accepted political accountability and refunded the difference of some $10,000.00. In that sense the Government is now $10,000.00 better off then it would have been if Mr. Raj had travelled in comfort.

Although not essential to this decision I think it is important to note that it is a mark of his integrity that when he was disabused of the notion that he should use his entitlement in the manner he did (at a point in time before this prosecution was commenced) without question or without standing on his entitlement he refunded the entire amount of money. Those actions don’t support the State case. Those actions will not form part of counsels' addresses or scrutiny by the assessors as I must stop this trial. Mr. Raj has suffered the humiliation of accusation. It is just that he receives some vindication.

In my view the first accused’s actions in immediately resigning his ministerial position and refunding this money at the point of accusation speaks of a man with integrity. When challenged over his actions in the best of parliamentary tradition he withdrew, made good and let the rule of law take its course knowing that he was not above it.

Conclusion

In conclusion I grant the application by the first accused under Section 293 of the Criminal Procedure Code declare there is no case to answer and on Count 1 and Count 2 find him not guilty.

I accept the submissions of Mr. Raza for the second accused that he did not cause or induce this payment to be made. I further accept counsels submission and State’s concession that in this particular circumstance where I find no case to answer against the first accused it is proper and just that I also do so in respect of the second accused.

I find the second accused has no case to answer on Counts 1 and 2 and I also find him not guilty.

Gerard Winter
JUDGE

At Suva
9th September, 2005