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State v Singh [2010] FJHC 438; HAC020.2005 (22 September 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


CRIMINAL CASE NO.: HAC 20 OF 2005


STATE


V


BRIJAN SINGH aka BRIAN SINGH
s/o Ram Singh


Counsels: Office of the Director of Public Prosecution for State
Mr. Johh Rabuku for the Accused


Hearing: 6th to 21st September 2010
Summing Up: 22nd September 2010


SUMMING UP


  1. Madam and Gentlemen Assessors. We have come to the final stage of this trial. You were listening to all witnesses and both Counsels. Now it is my duty to give the summing up to you. In the summing up I will be directing you on matters of law, which you must accept and act upon. Regarding the facts of the case, I do not wish to give an opinion, but if I give so you may accept or reject. You are not bound as in matters of law. In brief you have to accept my direction on law and you can judge independently when it comes to facts of the case. Because you are the judge of facts.
  2. Both State and Defence Counsels made their submissions. That is their duty. The prosecutor to submit how he proved the case and the Defence Counsel to say that the case is not proved. You are not bound by their submission. You are the representative of this society in this trial. After assessing all evidence you must decide whether this accused is guilty or not guilty to the offence he is charged.
  3. After, all these submissions you will be asked to retire for your verdict. Your verdict should be either guilty or not guilty. You will not be asked to give reasons for your decision. Your opinion can be unanimous or divided. It will be preferable if it is unanimous but the decision has to your own decision. Your opinions are not binding on me but it will be persuasive. I will give them the greatest weight when I deliver my judgment.
  4. In a Criminal case, onus of proving the case is always with the prosecution and he has to prove the charge beyond reasonable doubt. There is no obligation on the accused to prove of his innocence. Under our criminal justice system a person is presumed to be innocent until he is proven guilty.
  5. In a criminal trial the standard of proof is beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused person's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.
  6. As I informed you in my opening address, your decision must base exclusively upon the evidence which you have heard in the Court, and upon nothing else. You must absolutely disregard anything you might have heard about this case outside of this court room. It is important that you must decide the fact without prejudice or sympathy to either accused or the State. One of my duties is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
  7. The accused Brijan Singh also known as Brian Singh was charged with 3 Counts of false pretence.

"First Count


Statement of Offence


FALSE PRETENCE: Contrary to Section 308 and 309 (a) of the Penal Code Cap 17.


Particulars of Offence


BRIJAN SINGH aka BRIAN SINGH s/o Ram Singh between the 24th day of May, 2002 and the 2nd day of August 2002, at Suva in the Central Division, with intent to defraud, caused the Government of the Republic of the Fiji Islands to pay the sum of $8,739.00 by falsely pretending that the said sum was for the payment of a business class ticket when in fact the money was used to purchase the cheaper economy class ticket and he pocketed the difference for his own benefit


Second Count


Statement of Offence


FALSE PRETENCE: Contrary to Section 308 and 309 (a) of the Penal Code Cap 17.


Particulars of Offence


BRIJAN SINGH aka BRIAN SINGH s/o Ram Singh between the 17th day of February 2003 and the 7th day of April 2003, at Suva in the Central Division, with intent to defraud, caused the Government of the Republic of the Fiji Islands to pay the sum of $4,311.00 by falsely pretending that the said sum was for the payment of an upgrade to business class ticket from Hunts Travel Service when in fact the money was later paid out to him by Hunts Travel Service after cutting its commission.


Third Count


Statement of Offence


FALSE PRETENCE: Contrary to Section 308 and 309 (a) of the Penal Code Cap 17.


Particulars of Offence


BRIJAN SINGH aka BRIAN SINGH s/o Ram Singh between the 22nd day of May 2003 and the 17th day of July 2003, at Suva in the Central Division, with intent to defraud, caused the Government of the Republic of the Fiji Islands to pay the sum of $9,724.00 by falsely pretending that the said sum was for the payment of a business class ticket when in fact the money was used to purchase the cheaper economy class ticket and he pocketed the difference for his own benefit".


  1. The main issues to be decided by you are:
  2. Now I will explain you Section 308 of the Penal code. The section states as follows:

"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"


  1. Section 309 (a) states as follows:

"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".
  1. The main ingredients of Section 308 are as follows:
  2. For the accused to be found guilty of "false pretence", the prosecution must prove beyond reasonable doubt, the following elements:
  3. In the Oxford Advanced Learner's Dictionary of current English (New 7th Edition, 2005) "defraud" is taken to mean "to get money illegally from a person or organization by tricking them"; "fraudulent" is taken to mean "intended to cheat somebody, usually in order to make money illegally"; and "execute", in law, is taken to mean "to make a document legally valid", or "to perform a duty", or "to do a piece of work".

Case for the Prosecution


  1. Prosecution has preferred 3 counts in the charge sheet. Now let us see the first count is:

Between 24th May 2002 and the 2nd August 2002 the accused had paid for business class fare to Geneva and travelled in Economy class and he obtained the difference of fare for his own use.


  1. Regarding this Count, you may consider the following documents:

P5 - Cabinet decision dated 09.04.02 on Fiji's participation at the 90th session of ILO Conference in Geneva.


P4 - PSC memo dated 22.04.02 re-ILO Conference Geneva 3-20 June 2002, P(1) (a) Local Purchase Order No: 679186 dated 24.05.02


P(1) (b) - Duplicate of Local Purchase Order No: 679186 dated 24.05.02


P(1) (c) - Triplicate LPO No: 679186 dated 24.05.02.


P18 - Hunts Travel Itinerary for Brian Singh for Geneva dated 24th May 2002


P3 - Hunts Travel Invoice No. 11295 dated 28.05.02


P2 - Payment voucher in a sum of $20,329.30


P21 - Condensed Itinerary (Hunts Travel Wallet)


P20 - Payment Voucher raised by Hunts Travel for Brian Singh


P19 - Copy of ANZ Cheque No. 010787


P29 - Westpac Bank Deposit Slip dated 2nd August 2002


P30 - Bank Statement for Westpac Bank dated 30th April 2002


D3 - Breakdown of travel prepared for Brijan Singh


D4 - Revenue receipt of Brijan Singh


P15 - PSC Circular dated 20th October 1988 to all Permanent Secretaries regarding Class of Passage for Permanent Secretaries travelling abroad by air on duty.


  1. Considering the available above material the accused had an invitation in the capacity of Permanent Secretary and it was approved by the PSC. As per the PSC Circular the accused is entitled to travel in the Business Class. A LPO was issued for Business class and the money was paid for that fare. But he had travelled in the Economy class. The difference of fare was taken by the accused. He had repaid the money what he obtained from the travel.
  2. The accused claim that he never submitted the application to obtain the money from the government. Further he submits that he never asked for Economy class. On the day of the travel just few hours before he was given the ticket he had no option but to travel because of the official commitment. When he returned, the Managing Director of Hunts Travel contacted him and assured him the refund of the difference. The same was returned and the accused had obtained the cheque and deposited the same in his account. When the Auditor General inquired into the issue he had repaid the amount which he received. It should be noted the difference, fare obtain business class and economy class as $5413.00. But the money repaid was $4127.00.
  3. Similar charge was in the 3rd Count. The charge was the accused travelled to Geneva on official duty to attend the annual meeting of ILO. Here also there was an invitation from the ILO and the same was approved by the PSC. Following the usual procedure quotations were called as per Prosecution witness Kenneth Brown and his notes at P12. Taina's travel quoted the lowest price but the accused had informed him that Hunts travels will submit another quotation and on receiving Hunts quotation the LPO was issued to them.
  4. Regarding the 3rd Count I want you all to consider the following documents:

P14 - Cabinet Decision dated 11.03.05 on Fiji participation at the ILO conference in Geneva from 2nd to 19th June 2003.


P12 - Memorandum dated 1st April 2003 to the Permanent Secretary for Labour, Industrial Relations & Productivity from the Accounts Officer for Labour, Industrial Relations & Productivity.


P13 - Letter from Kenneth Brown to Clerical Officer to issue LPO.


P10 (a)- LPO No: 679862 dated 22.05.03 in a sum of $9,724.00


P10 (b)- Triplicate copy LPO No: 679862 in a sum of $9,724.00


P26 - Copy of Itinerary for Brian Singh for Geneva dated June 2003


P11 - Payment Voucher dated 20.06.03 in a sum of $12,587.00


P33 - Ticket from Nadi to Geneva number 36762454164


P25 - Payment Voucher for $5097 for Brian Singh


P24 - ANZ Cheque No. 001652 by Hunts Travel to Brian Singh


D3 - Breakdown of travel prepared for Brijan Singh


D4 - Revenue receipt of Brijan Singh


P15 - PSC Circular dated 20th October 1988 to all Permanent Secretaries regarding Class of Passage for Permanent Secretaries travelling abroad by air on duty.


  1. In the 3rd Count also as per the First count the money was paid for business class and the travel was done by the accused was in Economy class. When it was questioned by the Auditor General the accused refunded the money which he received from Hunts travel. The difference between the prices was $5422.00 but the money refund was $5097.00.
  2. Now let us consider the second Count as per the second count. Between 17th February 2003 and 7th April 2003 the accused had travelled to Jakarta to participate in the ILO conference.
  3. In this occasion as per P39 the PSC had approved his travel with following condition:

"The approval granted is on the condition that the ILO will meet all costs". ILO had provides the ticket in Economy class but the accused had approved himself to upgrade to Business class as per P9. Ms. Margaret Chute has made the arrangements to pay for business class ticket on the instruction of the accused. The ticket fare for the Economy class was $2904.00 as the Business class was $7215.00 the difference of $4311 has paid by the Ministry.


  1. For the 2nd Count I wish you will peruse the following documents:

P39 - PSC letter dated 17.02.03

P9 - Letter dated 19.02.03 from Kenneth Brown Account to Hunts Travel for the upgrade of Mr. Brian Singh's air ticket to Jakarta

P6 - Payment voucher dated 11.03.03 in a sum of $4311

P8 - Hunts Travel Invoice No: 15680 dated 20.02.03 in a sum of $4311.00

P7 - Government of Fiji Cheque number 003836 for $4311.00

P23 - Payment Voucher $3656 for Brian Singh

P22 - ANZ Cheque $3656 to Brian Singh from Hunts Travel

P27 - Westpac Bank Deposit Slip dated 30th April 2003

P28 - Bank Statement for Westpac Bank dated 30th April 2003

D3 - Breakdown of travel prepared for Brijan Singh

D4 - Revenue receipt of Brijan Singh


Actual amount paid by the Government was $4311.00 the amount refunded was $3656.00.


  1. Considering the case of prosecution and the defence in my safety summaries as follows:

Agreed between Parties


  1. Accused is entitled for Business Class under P15 PSC Circular
  2. These three are official trips
  3. Proper procedure followed to purchase tickets
  4. Government paid for Business class tickets
  5. Accused travelled in Economy class
  6. Balance money after deduction paid to Accused by Hunts travels services
  7. There was an audit query
  8. Accused repaid the money what he received
  9. Government overpaid $15146 and received 12880.30 back from the accused Brijan Singh
  10. There is a loss of $2265.70 to the Government in these transaction
  11. The accused claims that he honestly believed the money he received the travel difference from Hunts travel was his entitlement. Now you have to decide among other issues whether the accused was entitled to encash his entitlement or not.
  12. You heard the evidence of Kenneth Brown - Principal Accounts Officer, Sashi Salendra Pal - Managing Director from Hunts Travel, Orisi Matakasa - Manager of Westpac Bank, Kameli Tikoitoga - Ministry of Labour, Michelle Jo-on Solvalu - Labour officer, Margaret Chute - Principal Admin Officer, Atunaisa Nadakuitaki - Director of Audit, Murgessan Pillay - Manager Revenue Air Pacific, Puran Lal - Investigation Officer, Sailesh Kumar - Charging Officer for the Prosecution.
  13. For the Defence accused Brijan Singh gave evidence. In addition Mr. Kenneth Zinck former Minister of Labour gave evidence.
  14. I must caution you all when considering the evidence of Sashi Sailendra Pal. He was a co-accused in this case. A nolle prosequie was entered and the DPP has granted immunity to him. As the defence Counsel suggest he may have an agenda in giving evidence.
  15. When you are evaluating his evidence you should see whether he is showing a total bias in giving evidence or he is telling the court what he knows. Is there any material the Prosecution completely depending on him, where no other Prosecution witness is not presenting. You have to ask yourself the question and come to a conclusion after assessing and the evidence presented to Court.
  16. The Defence summarized that the Prosecution has not proved the case because one of the main ingredient of the charge of False Pretence is intention. Brijan Singh had not made representation with intent to defraud to obtain money from the Government of Fiji.
  17. I have explained you what are the ingredient to the offence of False Pretence earlier. Offence under our Penal code has two main ingredients. It is like a coin with two sides. One is not valid without the other. One is the act and the other is intention. Here you have found the Prosecution has submitted there is an act. The question is whether this was done with the intention.
  18. The Prosecution submits there is intention to defraud and it had been proved beyond reasonable doubt.
  19. Now let us consider the intention. The Prosecution submits that the money paid to the travel agency and the accused got the difference paid back to him which is no doubt, now both parties agree on that but the question is whether the accused with the intention of defrauding obtained the money. Defence says when he obtains the money there is no intention because the money was his entitlement therefore it is legal. But the Prosecution says no the intention should be assumed from the entire act.
  20. How do you assess the intention? If I give you a simple example, a person goes to a shop and buys a cane knife. Can you assume what is his intention? You can't it may be to cut cane or to cut the neck of another person. You have to see the entire incident, then you can assume his intention. Similarly you have to consider the entire transaction and come to a reasonable and just conclusion.
  21. As far as the Law is concern regarding the PSC Circular 32 of 1988 empowers the Permanent Secretary to travel in Business class. There is no mention in any other provision that this can be encashed or not. But the Learned DPP provided a similar section from Fiji Overseas Regulations (FOSR) Section D (3) says as follows:

"PASSAGE ENTITLEMENTS


D.3 An officer travel to or from an overseas post appointment or transfer, or on return to Fiji at the end o his tour or duty overseas will be entitled to passages at public expense at the following class of fare for himself ands his dependents who are to reside with him or are residing with him during his overseas service and who accompany him:


(a) Head of Mission : business class
(b) Others : economy class

All other travel for Head of Mission and other staff be economy class. Provided that no officer or dependent shall be permitted to exchange Entitlement for business travel for any other benefit or to claim official payments for business class travel if he has not travelled business class".


  1. Accused submits that he is very learned and he honestly believed that the said entitlement can be encashed. After all he suffered the travelling so can he be entitled for the difference. He honestly interpreted the circular to his favour. The Prosecution submits that in a Civil Case reference Civil Appeal 53 of 1981 Fiji Public Service Appeal Board vs Mahendra Singh decided on 2nd April 1982. The appeal Judge says that "no Public Servant or any other person has any right or entitlement other than that which has been expressly delegated.
  2. If I say it briefly what you are entitled is what is expressly provided. If it is not provided you and not entitled. This is very appropriate when you deal with Public funds which are mostly collected from the tax payers. Do you think this situation has arisen in this case? If so you have to consider all circumstances and come to your own conclusion.
  3. You have to consider all evidence before you and come to a reasonable finding as I stated from the inception that the burden is on the Prosecution to prove the case beyond reasonable doubt. The accused has no responsibility what so ever to prove that he is innocent. At anytime the burden never shift to him. He is not required to prove his innocence.
  4. You heard both Counsels submitting their views on entitlement and encashing the entitlement. Both Counsels submitted similar examples on entitlements. Such as Meal allowance, Perdiem allowance and quarters entitlement. Meal allowance and Perdiem are flat rates given to the Government Officers on official duty. Government does not call for quotation for those and it is paid in cash. Government quarters is governed by different circular. Houses are allocated as per their official standards and capacity it cannot be sub-leted or delegated to another.
  5. The clarification sought by the accused through Kenneth Brown from the Public Service Commission is regarding another trip made to New Zealand by the Accused. In that travel the money was paid to Hunts Travel and it was recovered by the State in another transaction. Is it relevant to the issue you may advice yourself.
  6. You are provided with the copies of all the documents which were presented in the course of the trial. Please consider all documents before you come to your own conclusion.
  7. The Prosecution has called 9 witnesses to present their case. The accused person even though he had the right to remain silent he opted to give evidence under oath and subjected himself to cross examination. Further he called another witness to give evidence.
  8. Considering all evidence before you and come your own conclusion. If you are satisfied beyond reasonable doubt of the accused's guilt and you are sure of it. You must find the accused guilty as charged. If you are not satisfied beyond reasonable doubt of the accused's guilt, and you are not sure of it. You must find the accused not guilty as charged.
  9. As I explained to you in my opening address and at the beginning of the summing up you have taken your own decision after considering the evidence before the court. You will not be asked for the reasons for your decision. You possible verdict will be guilty or not guilty.
  10. You may retire to deliberate. Once you have reached your decision, please advice the Court Clerk so that we can reconvene the Court to receive them.

S. Thurairaja
Judge


At Suva


Solicitors
Office of the Director of Public Prosecution for the State
Vakaloloma & Associates for the Respondent

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