Chand v State [2011] FJHC 706; HAM18.2011 (7 November 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL MISCELLANEOUS NO: HAM 018 of 2011

BETWEEN:

DALIP CHAND
APPLICANT

AND:

STATE
RESPONDENT

Counsel: For Applicant – Mr. M. Raza
For Respondent - Mr. L. Sovau

Date of Hearing: 4 November 2011
Date of Judgment: 7 November 2011

RULING

The applicant was convicted of the offence of Forging A Register Of Births, contrary to section 339 of the Penal Code Cap 17 and was sentenced to 8 years of imprisonment on 19th August 2011.

Applicant appealed against the said conviction and sentence, and pending the appeal he moves for bail.

In the substantive appeal the State filed submissions objecting to the appeal against the conviction, and conceding to the appeal against the sentence, that the sentence is harsh and excessive.

Parties agreed to hear the substantive appeal on the 4th November 2011, and when the case was taken up for the hearing, counsel for the appellant filed supplementary submissions in court. Considering the supplementary submissions filed by the appellant, the State Counsel moved for further time to file their response. The parties therefore agreed to hear the bail pending appeal application.

Although the State in their submissions already filed, objected to the bail pending appeal being granted, the State Counsel informed the Court that they concede to the application for bail being granted, after considering the supplementary submission filed by the appellant in the substantive appeal.

The grounds urged by the applicant in support of the bail application are:

1. That the learned trial Magistrate erred in law and in fact in convicting the Appellant by failing to evaluate the evidence adequately and/or at all.
   
2. That the learned trial Magistrate erred in law and in fact in declaring PW4Mohindar Kumar Metha as a hostile witness without first following the proper procedure.
   
3. That the learned trial Magistrate erred in law and in fact whilst dealing with the evidence of PW5 Mun Sami, which was highly prejudicial in the material particulars to the Appellants case.
   
4. That the learned trial Magistrate erred in law and in fact in admitting the copies of the Birth Certificate as evidence without following the proper procedure or at all.
   
5. That the learned trial magistrate erred in law and in fact in misdirecting himself on the standard and burden of proof.
   
6. That the sentence is manifestly harsh and excessive.
   

As the applicant stands convicted, presumption of bail being granted is displaced in terms of section 3 (4) (b) of the Bail Act 2002. Therefore the applicant is not entitled to bail as of right. In terms of section 17 (3) of the Bail Act 2002 the factors that the Court must take into consideration in a bail pending appeal application are:

1. The likelihood of success in the appeal; s.17 (3) (a) of the Bail Act 2002.
   
2. The likely time before the appeal hearing; s. 17(3) (b) of the Bail Act 2002; and
   

100. The proportion of the original sentence which will have been served by the applicant when the appeal is heard; s. 17 (3) (c) of the Bail Act 2002.
     

In addition to the above factors, Court usually considers whether exceptional circumstances do exist. (Ratu Jope Seniloli and Others v. The State –Criminal Appeal AAU 0041/04S).

The likelihood of the success in the appeal

It is not sufficient for the applicant to show that there are arguable points in appeal. Applicant has to show that on the face of it, the appeal has every chance of success. Bail pending appeal should be granted only when the chances of success in appeal are exceptionally high.

It is stated in the affidavit of Hemant Kumar, which is filed in support of the application, that, the learned Magistrate failed to evaluate the evidence adequately and/or at all. The learned Magistrate in his judgment has considered and evaluated the evidence placed before him. It is an arguable point whether the learned Magistrate could have come to a different conclusion on the evidence adduced. At this stage one cannot conclude that this ground has every chance of success.

Further it was urged in the affidavit, that the learned Magistrate erred in law and in fact when he declared PW4 a hostile witness, without following the proper procedure. The witness was declared hostile after it was found that he had given an inconsistent statement to the police. Just because the statement to the police has some inconsistencies with the evidence in court, a witness cannot be declared hostile. However this witness in his statement to police had said that the accused (applicant) did the alteration in the birth certificate for him. In his evidence, totally exonerating the accused he said, that the accused refused to do it, and Lingam did it for him. Therefore on the face of it, the Learned Magistrate was entitled to declare the PW 4 as a hostile witness. However, what weight the learned Magistrate would have given to the evidence of PW 4, is a matter to be decided at the hearing of the substantive appeal.

It is also urged by the applicant that the learned Magistrate erred in fact and in law in admitting the copies of the birth certificate as evidence, without following the proper procedure. In this case it was not in dispute that the alteration of the date of birth in the birth certificate was done by using the applicants account. Prosecution witnesses No. 1, 2 and 3 testified to that fact. Even the accused (applicant) giving evidence agreed that his account was used to alter Ashok Mehta's birth certificate. However he said that everyone has access to his account. Accused also agreed that each officer had his own password. Therefore it may be an arguable point in the appeal. However at this stage I cannot see that the appeal has every chance of success on this ground.

Grounds No. 3 and 5 are also arguable and to be decided at the substantive appeal.

The likely time before the appeal is heard and the proportion of the sentence that would be served

As I mentioned before, both parties agreed to have the hearing of the substantive appeal on 4.11.2011. When the case was taken up for hearing, the counsel for the appellant filed supplementary submissions and the counsel for State moved for time to respond. Therefore parties agreed to take up the bail application for hearing. State was granted time till 14th December 2011 to file their response and on 14th December the Court will fix the earliest hearing date convenient to parties and the Court.

The applicant was sentenced to 8 years imprisonment. In their submissions the State has conceded that in the given circumstances, the sentence of 8 years is harsh and excessive. Even if the Court decides to reduce the sentence in appeal, by then the applicant would not serve a substantial portion of the sentence.

It was stated in the affidavit in support of the application, that the applicant is married with two children and they are attending University of South Pacific and Fiji National University. Further it was stated that the applicant is very sickly person. What sickness he is suffering from is not stated in the said affidavit. I do not consider these as exceptional circumstances, and I find no other exceptional circumstances to grant bail pending appeal. Therefore the application for bail pending appeal is refused.

Priyantha Fernando
Judge

At Labasa
7th November 2011