State v Sheu - Summing Up [2011] FJHC 153; HAC025.2010 (3 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 025 OF 2010

BETWEEN:

THE STATE

AND:

1. POH CHIN SHEU
2. RAJNESH PRATAP SINGH
3. ATUNAISA VEITATA

Counsels: Ms. N. Tikoisuva for the State
: Mr. Naco for 1st and 3rd Accused
: Mr. I. Khan for 2nd Accused

Date of Hearing: 24th – 28th, 31st January to 2nd February 2011
Date of Summing Up: 3rd February 2011

SUMMING UP

1. Madam and Gentleman Assessors. We have come to the final stage of this trial. You were listening to all witnesses, State Counsel and Counsels for the Accused persons. 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 the State Counsel and Counsel for the Accused persons made their submissions. That is their duty. The prosecutor to submit how she proved the case and Defence Counsels 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 these accused persons were guilty or not guilty to offences they were 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 be 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 criminal cases the standard of proof, I must direct you as a matter of law, that the prosecution bears the burden of proof in the case. The burden remains throughout the trial and it never shifts. There is no obligation upon the accused persons to prove their innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proven guilty. This is a golden rule.
   
5. The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of guilt of the accused person before you express an opinion that he is guilty. If you have any reasonable doubt about the guilt of the accused you must express an opinion that he is not guilty. You may only express an opinion that he is guilty; if you are satisfied of that you are sure that he committed the offence alleged.
   
6. As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.
   
7. 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.
   
8. All 3 Accused persons are charged on 3 Counts.
   
   1. Possession of a Forged Document.
      
   2. Uttering a false document.
      
   3. Demanding property on forged document
      
9. 346 (1) of the Penal Code states as follows:
   

"Any person who, without lawful authority or excuse, the proof whereof lies on the accused, imports into Fiji, or purchases or receives from any person, or has in his custody or possession, a forged currency note or bank note, knowing the same to be forged, is guilty of a felony......"

10. The Prosecution should prove the following ingredients:
    
    1. Without lawful authority or excuse
       
    2. Had in his possession
       
    100. A bank note
         
    4. Knowing it to be forged.
       
11. As no one is authorized to possess a forged bank note, this needs no explanation as

you know, no person can possess a bank note if he knows the same is forged.

12. What do you mean by possession? The word possession has a vast definition, literally if a person has anything in his hand, pocket or a place where he has control means that he has the possession. But the law has more than that meaning. Physically keeping something or having control over a thing will come within the meaning of possession.
    
13. What you mean by Bank note, it is an instrument authorized by the Reserve Bank and banks which includes bank drafts also.
    
14. Forgery in our law is defined as the making of a false document in order that it may be used as genuine, and a document is further defined as false if the whole or any material part thereof purports to be made by or on behalf or on account of a person who did not make it nor authorize its making.
    
15. In this case the bank draft marked as P1 was not printed, manufactured or legally issue by the said Westpac Bank. It was prepared by someone who is not authorized to do so.
    
16. It is your responsibility to decide whether these accused persons had a forged bank draft in their possession, you may make use of all the documents and evidence before you to come to your own conclusions.
    
17. It is agreed by both Counsels for the accused persons and the prosecution that the 3rd accused had the bank draft and he tendered to the bank and 3rd accused also accepts that they had this bank draft in their possession at certain occasions but claims that they possessed the draft without knowing that this is a forged draft.
    
18. Knowledge is one of the main ingredients to all 3 counts, therefore I will address about "knowledge" before we proceed to other two counts. In fact the word knowledge has several meaning. Here the Counsels were saying about "intention"
    
19. In the Criminal Law the word offence has two main ingredients, like a coin has two sides. One is the 'actus reus' means action, someone is doing something, for an example somebody is cutting a person with knife. The other side of the coin is 'mens rea' that is intention. If a person does an act with the intention then he has to take responsibility of his action. For an example, if he cuts another person with the intention to cause the death of the person then he commits an offence. If a medial doctor cuts a patient during a surgery, he commits the act but he has no criminal intention therefore he commits no offence. If there is no intention and action together, there in no offence. So it is important if you want to come to conclusion a person committed an offence these two main ingredients must proved, if not he commits no offence.
    
20. Now let us see the 2nd charge in the information. That is uttering a false document. In this case it is alleged that these accused persons tendered a bank draft to ANZ Bank.
    
21. As per Section 343(1) of the Penal Code the prosecution has to prove the following ingredients:
    
    1. Knowingly
       
    2. tendering
       
    100. false draft
         
22. We have extensively discussed about the ingredient 'knowingly' that is the

intention.

23. False document we have already discussed previously.
    
24. What do you mean by uttering? The English Lexicon states as follows:

"to use a forged document criminally" commonly. Osborn's Concise Law
Dictionary says: "utter mean to attempt to pass off a forged document, die or seal etc..."

25. In simple term you give a document to someone. In this case the 3rd Accused had gone to the ANZ Bank and gave the bank draft. It was deposited to the account of Full Creation International Investment Limited. Where the 2nd Accused had knowledge and control. 1st Accused knew about the account, he agreed and decided with the 2nd Accused to deposit the draft into the said account.
    
26. The big question before you is whether these accused persons had the knowledge of the draft to be a forged or counterfeit.
    
27. The 3rd Count is demanding property on forged document.
    
28. In this case Accused persons was allegedly demanding 50 million Euros from the bank, to the account of Full Creation International Investment Limited.
    
29. Prosecution need to prove that the accused persons knowingly submitted a forged bank draft and demanded 50 million Euros from the ANZ bank.
    
30. It is admitted that the bank draft for the value of 50 million Euros was deposited into the account of Full Creation International Investment Limited. The only question to be decided here is whether these accused persons had the knowledge of that the bank draft is a forged document.
    
31. Now I summarize the evidence submitted before the Court. I do not intent to reproduce the entire evidence but a certain portion of those evidence in a summarized form. That does not mean that you have to consider only that portion. I invite you to consider the entire evidence and all materials before you.
    
32. Prosecution called Angeline Christina Anthony a bank officer from ANZ bank. She submitted that she opened the account for Full Creation International Investment Ltd. It was opened on 10th January 2008 (P3 & P4) 1A, 3A and another person Mohammed Rizwan Khan were present at the time of opening. The account number is 9617231. They have deposited $250.00.
    

On the 23rd January 2008, 3A brought a bank draft (P1). She had filled it. The deposit slips (P2) and accepted the same. She had told the 3A that it will take about 6 weeks to realize the draft.

This witness had identified 2nd and 3rd Accused in Court.

She submitted that she didn't realize the draft was postdated. Only on the 25th, when it was submitted to international branch she got to know it was postdated. The date on the draft was 6th Jun 2008 (sic). Bank will not accept a postdated draft. She further said she had never dealt with 50 million Euros. She thought it was 50,000 Euros. It was not the duty of the witness to check the genuinely of the draft that will be done by the international department. She had not examined the draft and she didn't realise that it was a postdated draft.

33. The next witness called was GITESH NEERAJ NAIR. He is the Manager of Operational Risk and Compliances of ANZ Bank. His duties are to comply with relevant laws and regulations and to report to the relevant authorities of suspicious transactions.
    

On the 25/01/2008 he had received a complaint about the bank draft (P1). He had conducted his own search analization and found that the draft was counterfeit, i.e. not genuine. 2nd Accused had come to the bank and met the witness to inquire about the draft. He was informed by this witness that the bank draft was a counterfeit. He had identified the 2nd accused and the bank draft (P1). This witness had handed only the bank draft to the Inspector of Police Sailesh Kumar. IP Sailesh Kumar had escorted the 2nd Accused out of the bank.

This witness submitted that a counterfeit bank draft will not have any value, in the meantime he did not categorize the same to be a useless paper. The 2nd Accused had told this witness he had no knowledge of this draft.

34. Prosecution called Mr. ROBERT NORMAN HARNESS as 3rd witness. He is the Trust Manager of an Anglican Church. His duty is to manage the properties of the church.
    

The trust board had decided to sell one of their freehold properties in the extent of 5700 acres in the name of NITOAVATU at Vanualevu.

2nd Accused had expressed to buy this property through another person by the name of Peramo. The price was US$1.5million and 10% to be deposited as advance. This witness had requested evidence of their financial status. On one occasion 2nd Accused and Peramo were present at his office and showed a colour Photostat copy of a bank draft (P5). Letter of offer was given to him (P6). Offer to sell was also given (P7). He had also noticed that it was a post dated bank draft when referred to the trustees they verified from the Westpac and it was found that the draft was a counterfeit. He couldn't recall the dates because he is 75 years old and this had happened 2 years ago, but he presumed the date the 2nd Accused and Peramo visited him was on 14/01/2008.

35. 4th witness called by the State was PRAVIR KUMAR RATTAN. He has a company in the name of Shivirs Investment. In January 2008 he had received a request for bridging finance by the 3rd Accused for $250,000 a fund request is made (P8) under the signature of 2nd Accused in the letterhead of Mahe Investment dated 08/01/2008. He had met 2nd Accused on the 6th January 2008. The witness requested some more evidence, 2nd Accused & 3rd Accused had given a copy of the bank draft (P5) since the bank draft was post dated he had taken to the Westpac bank to verify the authenticity. They requested the original draft, when this witness requested the same from 2nd Accused & 3rd Accused they could not provide to him. He had identified 2nd Accused & 3rd Accused in the Court. He had never come across a bank draft for such a huge amount.
    
36. 5th witness called by the Prosecution was EPELI RACULE an experienced bank officer from Westpac bank. He had done the internal investigation regarding the bank draft (P1). Inquiry commenced because of P.Rattan's query regarding the draft.
    

He had referred it to New Zealand and found that they have no branch at Westgate and the draft was not initiated from New Zealand. Further it was a counterfeit.
He categorically stated that banks will not issue post dated bank drafts. Further normally big amount such as 50 million Euros never transmitted, mostly in small amounts. Anything above $10,000 has to be accompanied by Fiji Reserve Bank approval.

He demonstrated the difference in a genuine bank draft (P9) and the counterfeit draft (P1). Further he explained the procedures of getting a bank draft.

He further finds there is no "padlock and key" water mark, both signatures looks similar which cannot happen, post dated, texture of the paper made him to conclude that this is a counterfeit draft. When you look at the P1 initially it looks genuine.

37. Inspector of Police ABHAY NAND was the 6th witness called by the Prosecution. He was the charging officer of 1st Accused. The accused was given his statutory rights and there is no complaint. Charge statement was marked in Court as P10.
    
38. Detective Sergeant RAJESH KUMAR was the 7th witness called by the Prosecution. He was the charging officer of 2nd Accused. He claims that the 2nd Accused was given his statutory rights. He has got legal advice from his lawyer Mr. Apaitia Seru. Charge statement was marked as P11.
    
39. Inspector of Police AMINIASI TORA was called as 8th witness to confirm that he charged the 3rd Accused. The 3rd Accused was given his statutory rights and he had obtained advice from his counsel Mr. Apaitia Seru via mobile phone. His charge statement was produced in Court marked as P12.
    
40. Investigating Officer Inspector of Police SAILESH KUMAR was called as 9th and last witness for the Prosecution. He gave evidence that he conducted the investigation as uplifted all the documents from proper custody on search warrant (P13). He identified all 3 accused persons in Court. He produced rest of the documents and marked those from P13 to P26. He had recorded the cautioned interview statement from all 3 accused persons and these statements were accepted by the Accused when they gave evidence in the Court.
    
41. After the case for the Prosecution closed defence called all three accused persons opted to give evidence on their behalf. You should be remembered that they are not bound to give evidence. It's their right to remain silent.
    
42. 1st Accused gave evidence and explained how he got the contact of David and both had come to Fiji together in a same flight via Seoul Korea in Economy Class. Obtained tourist visa in Fiji.
    
43. 1st Accused submits that he genuinely believed the bank draft to be genuine.
    
44. Under cross examination the 1st Accused submitted that he came to Fiji for not only one project but for several. He had arrangements with 2nd Accused. He had signed an agreement with 2nd Accused for an investment of 200 million Euros. 1st Accused claims he is an investor.
    

The Accused had arrived to Fiji on 14.12.2007 on a tourist visa with FJ$2000 in hands. 1st Accused claims he had done proper homework on his business ventures with 2nd Accused in Fiji.

He claims he is a businessman for more than 10 years in Macau. His nature of the business was construction and materials supplier.

45. 2nd Accused gave evidence on his behalf. He claims that he honestly believe the draft given to him was genuine and he banked it on that believe. He had been to Hong Kong on two occasions in 2007. He owns several companies at a residential address of which were prohibited by the original tenancy agreement.
    

2nd Accused was a former Police officer, priest and a businessman. He claims that he knew the procedure to establish a company especially a joint ventured foreign investment company.

46. 3rd Accused Atunaisa Veitata gave evidence on his behalf. He submits that he also genuinely believe the bank draft was genuine.
    

3rd Accused claims that he was a business consultant for about 6 years.

3rd Accused advised about financial transactions to the 2nd Accused.

47. That is the summary of evidence submitted before the Court.
    
48. Considering all evidence before the Court you will note that these 3 accused persons admitted that they had the P1 in their possession, they submitted to the bank and this demanded money on the draft. But the big question to be decided is whether they had the knowledge that is intention to do the offence. That is a matter for you to decide.
    

The Prosecutor submits these accused persons with the experience of life and in the business should have known such a huge amount draft is a counterfeit. She further wants us to consider Financial and Business background of the accused persons to handle a draft of 50 million Euros and contracts with more that 400 million Euros. If you consider in Fiji dollars currency conversion the draft is some where near FJ$170 million. Contracts were value above FJ$1300 million values.

State Counsel claims that the 2nd Accused offered a land or mobile phone to the bank officer Angeline as bribe to pass the bank draft. 2nd Accused said that he was joking with her. It is a factual issue, you should decide.

Defence submits on the face of P1 it appears very genuine so they believed it to be genuine. That is why they tendered to the bank.

The decision is yours. You may consider all evidence before you and use your common sense theory to decide what is acceptable.

49. Counsels for State, 1st, 2nd and 3rd accused persons addressed you as the admissibility of the evidence.
    
50. I humbly request you to consider not only my summary but all evidence before the Court 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.
    
51. As I explained to you in my opening address and at the beginning of the summing up you have to take your own decision after considering the evidence before the court. You will not be asked for the reasons for your decision. Your possible verdict will be guilty or not guilty.
    
52. Let me ask both State Counsel and the Accused whether they have anything to be addressed to you?
    

State Counsel: I am satisfied.
Mr. Naco: I am okay. Nothing further.
Mr. I. Khan: Mistaken of fact under section 10 be addressed.

Ladies and Gentleman assessors, on the request of the Counsel I will explain you what is mistake of fact with an example.

Mistake of fact is where you genuinely believe a thing and act towards it. For an example you have a cassava plantation you find it is disturbed by wild pig. One night you see a black figure like pig is moving in the plantation, you shoot the pig then you find it was your neighbour. Can you suspect in the night, your neighbour is doing something there? You can't, this it is a mistake of fact but if you do that in the broad daylight you cannot claim that you mis identified it. I will briefly explain you section 10 of the Penal Code.

(Section 10 explained)

Court to Counsels: Are you satisfied?
State Counsel: Yes
Mr. Naco: Yes
Mr. Iqbal Khan: Yes

53. 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 State
Naco Chambers for Accused 1 and 3
Iqbal Khan's Office for Accused 2