Fazir v State [2008] FJHC 319; HAA025.2008 (18 November 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
APPELLATE JURISDICTION
AT LABASA

CRIMINAL APPEAL CASE NO: HAA 025 OF 2008

BETWEEN

MOHARMED FAZIR
[s/o Mohammed Safiq]
Appellant

AND

THE STATE
Respondent

Appellant in Person
Ms Siainiu Fa’alogo-Bull for the Respondent

Date of Ruling: 18 November 2008.

RULING

1. Moharmed Fazir, you were charged in the Magistrates Court with three counts of Obtaining Money by False Pretence, contrary to section 309(a) of the Penal Code Cap 17 and three counts of Giving False Information to a Public Servant, contrary to section 143(a) of the Penal Code Cap 17. You pleaded guilty to the charges and you admitted the facts that were summarized in court for the offences charged.
   
2. You were sentenced to 16 months imprisonment for each of the three counts of Obtaining Money By False Pretence and 6 months imprisonment for the three counts of Giving False Information to a public Servant. The 16 months imprisonment for each of the three counts of Obtaining Money By False Pretence were ordered to be concurrent and the 6 months imprisonment for each of the counts of Giving False Information to Public Servant were also ordered to be served concurrently. Both sets of sentences were ordered to be served consecutive to each other making a cumulative total of 22 months imprisonment.
   
3. On 18 June 2008 you filed your petition of appeal against sentence in which you claim that the sentence is harsh and excessive.
   
4. The hearing of your appeal has been delayed due to the delay in receiving the outcome of your Legal Aid application. At the time of this appeal hearing there is still no response from the Legal Aid and you agreed to that the appeal hearing proceed. You have been assisted by Mr. Malcolm Maitava as Duty Solicitor and the court is indeed grateful to him for that assistance.
   

State Submission

5. The State as respondent has filed written submission in Court, that the charges under section 309(a) of the Penal Code Cap 17, discloses no offence known to law and that the summary of facts tendered in court is similarly defective in that it does not support the elements of an offence under that provision. In all three instances the representation which is false was about something to be done by the accused in the future.
   

Appeal Determination

6. It is clear that for a charged preferred under section 309(a) of the Penal Code Cap 17, the false representation that is made by an accused must be about a past or present fact which is false. A promise to provide something in future is not a false pretence, it has to be about an existing or past fact: Ramesh Chand v State [2004] FJHC; HAA 003 of 2004(12 March 2004). The elements of the offence are:
   
   1. the accused obtained;
   2. money or benefit;
   3. for his own use
   4. by false pretence [see: section 308 of PC]
   5. with intent to defraud
      
7. I will now review the wording of the three charges under 309(a) of the Penal Code Cap 17 the subject of this appeal, to determine whether there was indeed no false representation as submitted by the State. These are Magistrate Court Criminal Case Nos: 304/08; 305/08 and 306/8.
   
8. In Criminal Case No: 304/08 the particulars of the offence is:
   

‘ Moharmed Fazir, sometime in October 2002 at Labasa in the Northern Division, with intent to defraud, obtained $50.00 from Ravindra Thakur Dutt by falsely pretending that he would provide him with employment at Valebasoga Tropic Board.’

9. The nature of the false representation is not the provision of employment sometime in the future at Valebasoga Tropic Board, rather the false representation is that he [the appellant] at the time of making the promise, falsely claimed that he was able to arrange for the victim’s employment. It was representation of present fact, which is false.
   
10. A similar situation arose in Raghwa Nand Maharaj v State [1994] FJHC; HAA 032 of 1994(30 March 1995) where six persons paid various sums of money to the appellant after he told them that he was in a position to secure land for them. That was sufficient for the court to uphold the finding of the learned magistrate that that promise was a false representation of the fact that he was able to secure land, which at the time it was made was false.
    
11. I have reviewed the summary of facts for this particular charge and I am satisfied that it supports the charge.
    
12. I therefore find that the guilty plea was unequivocal and properly made and accepted by the trial Magistrate.
    
13. In Criminal Case No: 305/08, the particulars of offence
    

‘Moharmed Fazir on 4 day of January 2008 at Labasa in the Northern Division with intent to defraud obtained from Biren Chand $50.00 in cash by falsely pretending to the said Biren Chand to arrange for an employment for him as a cleaner at Labasa Hospital.’

14. Unlike the wording in Criminal Case No: 304/08, in this instance the false representation is about doing something in the future, not a fact in the past or present. In this instance, the accused is representing that he will ‘arrange for an employment’ which is clearly about doing something in the future and not undertaking to provide employment, which is representation about present ability [factual state] to provide employment in the future, which is false.
    
15. In that regard, I would hold that the charge in Criminal case No: 305/08 is a nullity because it does not disclose a false representation about an existing or past fact. The guilty verdict entered against the appellant is set aside.
    
16. In Criminal Case No; 306/08 the particulars of offence is:
    

‘Moharmed Fazir on the 4th day of January 2008 at Labasa in the Northern Division with intent to defraud obtained from Deo Narayan $50.00 in cash by falsely pretending to the said Deo Narayan to arrange for an employment as a cleaner at Labasa Hospital’.

17. From the wording of the particulars, it is clear that the false representation is ‘to arrange for an employment as a cleaner at Labasa Hospital’. The false representation is about a future event or fact to be carried out by the appellant. In that regard the charge is fatally defective as it discloses an offence not known to law.
    
18. The guilty verdict in this case is set aside as the charge is a nullity.
    
19. There were three charges of Giving False Information to a Public Servant, contrary to section 143(a) of the Penal Code Cap 17. These were Criminal Case Nos: 301/08; 302/08 and 303/08. I will now review each of the charges and their summary of facts to determine whether they disclose and offence in law. The elements of the offence under section 143(a) of the Penal Code Cap 17 are:
    
    1. the accused person gave information;
    2. which he knew or believed to be false;
    3. to a person employed in the public service;
    4. causing such a person to do something which he would not have done if he knew the truth of the information given to him
       
20. In Criminal Case No: 301/08 the particulars of the offence states:
    

‘Moharmed Fazir on 11 January 2008 at Labasa in the Northern Division gave DC 2794 Sanjeet Lal, a person employed in the public service certain information, namely his name as Mohammed Nausad during an investigation, which information the said Mohammed Fazir knew to be false and thereby caused such person in the public service to investigate’

21. The summary of facts admitted to by the appellant was sufficient to support the charge laid in this case. I do not agree that it is ambiguous. I therefore find that the guilty plea entered against the appellant as regards this charge was correct.
    
22. In Criminal Case No: 302/08, after reviewing the charge statement and the facts submitted in support, to which the appellant admitted, I have come to the same conclusion as in Criminal Case No: 301/08 that the guilty plea was properly accepted by the trial Magistrate. I uphold that finding.
    
23. In Criminal Case No: 303/08 the wording of the charge is identical in every respect to the charge in Criminal Case No: 302/08. There are no summary of facts provided in the court record. I am of the opinion that the appellant was charged twice for the same offence and therefore I will quash the guilty plea entered against the appellant in this instance.
    
24. The outcome of the review of the charges and whether the guilty plea were unequivocal, is that two out of three counts of Obtaining Money under False Pretence, contrary to section 309(a) of the Penal Code Cap 17 in which the appellant was found guilty is now set aside. This leaves only count of Obtaining Money By False Pretence.
    
25. As regards the three charges of Giving False Information to a Public servant, contrary to section 143(a) of the Penal Code Cap 17, the following elements of the offence must be stated in the Charge and proven beyond reasonable doubt by the prosecution:
    
    1. that the information given by the accused was false;
    2. the information or statement was made to a public servant;
    3. the maker knew the information was false or believes it to be false;
    4. The maker intended to cause or knew that he was likely to cause the public servant to do or omit to do something which he would not do or omit to do had he known the state of facts
       

[Donald Ian Lane v R [1980] 16 FLR 197]

26. In the light of the above requirements of the charge and after reviewing the wording of the charges laid in this case, I have concluded that only two of the three charges were properly supported on the facts admitted to by the appellant.
    
27. In the light of the above findings, I will now review the sentence on the basis that the appellant now is guilty of only one count of Obtaining Money By False Pretence, not three and two counts of Giving False Information to a Public Servant and not three as was the case in the Magistrates Court.
    
28. In reviewing the sentence passed by the trial Magistrate, I find that his choice of 2 years imprisonment as starting point of his sentence determination, for the Obtaining Money By False Pretence counts, is proper and within tariff: State v Saukilagi [2005]FJHC 13; HAC 002 of 2004. I accept his reasoning as correct.
    
29. I agree with an increase of 2 months for aggravating factors determined by the trial Magistrate. However, I believe that for a first offender with a young family and who has expressed remorse, a discount of 3 months as mitigation is insufficient. I would determine 8 months discount as adequate, making the sentence 18 months imprisonment.
    
30. For the appellant’s guilty plea, given at the first available opportunity and saving court’s time and financial and other resources, I would further discount the sentence by a third, leaving the sentence of 12 months imprisonment effective from 12 June 2008.
    
31. The sentence determination by the trial Magistrate with regard to the Giving False Information to a Public Servant counts, is proper and principled except that he did not discount the guilty plea of the appellant at all. I would further reduce the sentence by 2 months imprisonment from 5 months to 3 months imprisonment. I would order that these sentences be served concurrently.
    
32. In conclusion this appeal succeeds both against conviction on certain counts and also against sentence.
    

ORDERS

33. I make the following Orders:
    
    1. the conviction entered by the trial Magistrate in Magistrate Court Criminal Case Nos: 303/08;305/08 and 306/08 against the appellant is hereby quashed and the appellant is acquitted accordingly;
       
    2. The sentence passed in Magistrate Criminal Case No; 304/08 of 22 months imprisonment is vacated and substituted with 12 months imprisonment effective from 12 June 2008;
       
    3. The sentence passed in Magistrate Criminal Case No: 301/08 and 302/08 is vacated and substituted with 3 months imprisonment effective from 12 June 2008;
       
    4. The sentences are to be served concurrently.
       
34. I wish to thank State Prosecutor Ms Siainiu Fa’alogo-Bull for her written submission which assisted the court immensely.
    

Isikeli Mataitoga
JUDGE

At Labasa
18 November 2008.