State v Chand [2010] FJHC 248; HAA007.2010 (15 July 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 007 OF 2010

BETWEEN:

THE STATE
Appellant

AND:

SHIRLEY SANGEETA CHAND
Respondent

Mr. J. Singh for the Appellant
Mr. H.A. Shah for the Respondent

Date of Hearing: 8 July 2010
Date of Judgment: 15 July 2010

JUDGMENT

[1] On the 27th February, 2009 the respondent was charged with eleven counts of money laundering contrary to section 69 of the Proceeds of Crime Act 1997, in the Nadi Magistrates’ Court.

[2] On the 21st December 2009 the respondent was acquitted of the charges by the Resident Magistrate when the State was part way through the prosecution on the basis that an application for adjournment by the State was without reasonable cause.

[3] The State now appeals that acquittal, properly sanctioned by the DPP under section 308(1) of the Criminal Procedure Code.

Chronology

[4] The charges were laid on the 27th February 2009 and were subsequently amended and filed in the Nadi Court on the 20th November, 2009. The respondent pleaded not guilty to the amended charges on the 23rd November 2009 and on that date exhibits were tendered by consent and the first prosecution witness ("PW1") was called. Being unable to finish the evidence of PW1 the matter was adjourned part heard until 27 November 2009.

[5] On the 27th November the Magistrate was unavailable in the morning, and in the afternoon the defence counsel (who is not the Counsel appearing on this appeal) was absent for religious reasons. The date of 30 November 2009 was set as "mention only to fix a hearing date".

[6] On the 30th November 2009 the prosecution informed the Court that the senior State Counsel responsible for the case was unavailable in December and that a date in February 2010 would be greatly convenient. Defence Counsel however was most insistent that an early date be set for continuation citing "administration of justice and a duty to the public at large". The Magistrate fixed the 21st December 2009 for continuation.

[7] On the 21st December, the prosecution informed the Court that Senior State Counsel was not in a position to proceed on that date and they made application under section 202 of the Criminal Procedure Code to have the matter adjourned. The State Counsel had just returned from a conference in Hong Kong and had to attend to urgent business in the DPP’s Office. Moreover the witnesses (including PW1) were not available. The Defence Counsel opposed the application for adjournment, doubting the truth of the State Counsel’s submissions, and arguing that no reasonable cause had been shown at all. In a written ruling the learned Magistrate refused the adjournment and ordered the State to proceed. The State not having any witnesses had to concede that there was insufficient evidence to establish a prima facie case and the Magistrate acquitted the accused.

The Appeal

[8] The State appeals on the grounds that –

(i) the learned Magistrate erred in fact and law in the exercise of his judicial discretion to acquit the respondent;

(ii) the learned Magistrate erred in fact and law when he acquitted the respondent despite the State’s submission that the evidence against the respondent was overwhelming.

(iii) That the learned Magistrate erred in fact and law when he acquitted the respondent in light of the case being of extreme public interest and importance, and that the acquittal is an "affront to justice".

[9] These unhappily worded grounds are supported by written submissions from the State, relying on relevant Fiji case law and stressing that the Magistrate failed to consider "the overall interest of the case", in that it was a serious fraud case and "an enormous amount of documentary evidence is involved".

[10] The respondent through her counsel has filed written submissions stressing that the Magistrate properly exercised his discretion in refusing the adjournment and relying on cases which state that an Appellate Court should not lightly interfere with the exercise of that discretion.

The Law

[11] The Fiji Court of Appeal said in Robert Tweedie McCahill CA 43/90:

"The granting of an adjournment is a discretionary matter with which an appellate court will not interfere unless it is satisfied that the discretion was not exercised judicially (sic) and the rights of the parties were thereby defeated altogether"

and again in Rajesh Chand and Shailesh Kumar CA 56/99:

"If it appears that the result of the order made in the Court below is to defeat the rights of the parties altogether or to do an injustice to one or other of the parties, the appellate court has a duty to review such an order. Where the refusal of an adjournment would seriously prejudice a party, the application should be granted."

[12] Section 202 of the Criminal Procedure Code, Cap. 21, deals with adjournment. It states ...

202(1) – "During the hearing of any case, the Magistrate must not normally allow any adjournment other than from day to day consecutively until the trial has reached its conclusion, unless for good cause, which is to be stated in the record.

(2) For the purpose of subsection (1) good cause includes, but is not limited to, the reasonably excusable absence of a party or witness or of a party’s legal practitioner."

Analysis

[13] There can be no doubt that the charges laid against the respondent were serious and of great public importance, given that the legislature saw fit to visit them with maximum penalties of 20 years imprisonment.

[14] At first glance, it would appear that a failure to proceed with the case was the desire of the prosecutrix in carriage to undertake an entirely unnecessary trip to Hong Kong at the expense of this serious prosecution. However the issues involved go deeper than that.

[15] In his ruling the learned Magistrate referred to four adjournments out of which three had been at the request of Counsel for the DPP. This finding however is unfair to the State. Two of those adjournments were when the case was in the pre-trial stage and the other could not proceed because the Magistrate was elsewhere and the defence counsel was performing religious rites. The only request to adjourn of substance was made on the 21st December 2009 when the Magistrate had been forewarned of difficulties faced by the prosecution at the previous hearing on the 30th November 2009. It cannot therefore be a factor to determine the issue that the State had unilaterally delayed the hearing.

[16] The reasons given by State Counsel in applying for the adjournment were in the main legitimate and the ruling of the Magistrate appears to be more punitive rather than reasoned. In knowing that the State was not ready to proceed (and having been earlier warned that that might by the case) the Magistrate insisted that the State call evidence which they were not prepared to do (even though they did have two of their witnesses there) without completing the evidence of PW1 who was not available.

[17] Money laundering is an insidious and very corrupting offence. It goes to the heart of any commercial transaction and is highly destructive of the legitimate financial network of the nation’s economy. It is therefore in the public interest that any allegations of money laundering be aired and deliberated upon judicially and judiciously. That being the case, then it would be a great injustice to the State to prevent them calling their evidence in trial merely because the Magistrate perceived that State Counsel were as he said "dragging the matter on". The record below does not reflect this finding.

[18] It is also a factor to be considered that a trial is complex and involves a great deal more preparation than normal trials. As Fatiaki J. said in State v Verma [2002] FJHC 3, when dealing with a similar appeal:

"The trial Magistrate erred in being unduly concerned with the personal circumstance of the respondent and in failing to have regard to the overall "interests of justice" including the seriousness of the charge preferred against the respondent ...the fact that the charge, in form, was for a ‘general deficiency’ which is notoriously more difficult to prepare and prove than a single offence of stealing a specific amount on a specific date; and finally, in improperly perusing the record of the earlier proceedings against the respondent prior to delivering his ruling on the prosecution’s application."

[19] All of these factors mentioned are present in the instant case and the Magistrate appears not to have taken them into consideration.

[20] Whilst I am of the view that the Magistrate exercised his discretion judicially (obviously), he did not exercise it judiciously and thereby defeated the right of the State to be given reasonable latitude to present its case, a case which is serious and very much in the public interest to be fully vented.

[21] In the premises the appeal is allowed, the order for the acquittals quashed and the case is to be remitted to the Nadi Magistrates’ Court for trial de novo before a different Magistrate.

[22] The hearing of this case should be accorded the highest priority and to this end, first call of the case will be in the Nadi Magistrates’ Court on Monday 26th July 2010.

[23] It is to be noted that my judgment in this appeal touches in no manner on the substantive issues involved in this case; the appeal is one on procedure alone and this judgment a decision on points of procedure and nothing more.

Paul K. Madigan
Judge

At Lautoka
15 July 2010