State v Singh [2015] FJHC 832; HAC28.2012 (28 October 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 28 OF 2012

STATE

V

CHRIS RONIL SINGH

Counsel: Mr. S. Babituwith Ms. R. Uce for the State
Ms. J. Naidu for the Accused

Date of Summing Up: 26thOctober, 2015
Date of Judgment: 28thOctober, 2015

Judgment

1. The Accused was charge with following Count and was tried before three Assessors.

2. Two Assessors found the Accused guilty while the other Assessor found the Accused not guilty of the Count.

3. I direct myself in accordance with my own Summing Up and review the evidence called in the trial. I pronounce my judgment as follows.

4. The Accused is charged with Money Laundering. According to the Information or charge, Prosecution is running this case on the basis that between 9thSeptember 2005 and 29thSeptember 2005, the Accused, Chris Ronil Singh, had disguised true ownership of money in the sum of $ 47,734.58 which had been derived directly from a serious offence, knowing or ought reasonably to be knowing that the said sum had been derived or realized directly or indirectly from some form of unlawful activity. So, Prosecution, in this case, must prove that:

I. Accused, Singh,

II. Disguised true ownership of money in the sum of $ 47734.58,

III. Which had been derived directly from a serious offence,

IV. Knowing or ought reasonably to be knowing that the said sum had been derived or realized directly or indirectly from some form of unlawful activity.

5. It appears that there is no dispute that the cheque bearing No.140459 (PE.5) is a forged document. It had been drawn by the Fiji Revenue and Customs Authority (FIRCA) as an income tax refund cheque amounting to $3,834.96 in favour of tax payer Sirin K.R.Riyaz. It was not meant to be issued to a person named Mohammed Taslim Khan and as a VAT refund amounting to $47,734.58.

6. Forgery is defined by the Crimes Decree. It means making of a false document in order that it may be used as genuine. Document is false if any material alteration, either by addition, insertion, obliteration, erasure, removal or otherwise has been made to the document. Officers from FIRCA confirmed that the cheque bearing No.140459 (PE.5) is a forged document in the sense that it had been altered in three respects namely, name of the drawee, amount and nature (income tax to VAT). According to the definition in the Proceeds of Crimes Act, Forgery is a serious offence.

7. The Prosecution is not required to prove that the Accused committed forgery before he can be found guilty of Money Laundering. What the Prosecution must prove beyond reasonable doubt to sustain the charge of Money Laundering is that the Accused knew or ought to have known that the cheque was derived or realized directly or indirectly from some form of unlawful activity when he was engaged in a transaction.

8. It is not in dispute that Mohammed Taslim Khan is not the true owner of the cheque 140459 (PE.5). Out of the total amount of $47,734.58, amount in the sum of $3,834.96 belongs to tax payer, Sirin K.R. Riyaz. The rest belongs to the FIRCA or the Government of Fiji. Once the cheque is deposited in the bank account owned by Mohammed Taslim Khan, the true ownership of the cheque or the funds that it represents is disguised.

9. Prosecution says that the whole process namely, obtaining a learner's permit from the Land Transport Authority (LTA) under a false name, opening a bank account under the same false name and depositing the forged cheque in that account forms parts of well-planned scheme of money laundering orchestrated by the accused Chris Ronil Singh.

10. The three issues remain to be resolved in this case therefore are:

a. Has the Prosecution proved beyond reasonable doubt that the person who had obtained the learner's permit under the pretense name Mohammed Taslim Khan is the Accused Chris Ronil Singh?

b. Has the Prosecution proved beyond reasonable doubt that the person who had opened the bank account using the said learner's permit is the Accused?

c. If it is proved that it is the Accused, who had disguised himself as Mohammed Taslim Khan,

Has the Prosecution proved beyond reasonable doubt that the Accused knew or ought to have known that the cheque had been derived from some form of unlawful activity when it was deposited in the account he had opened?

11. There is no direct evidence to show that the impugned cheque (PE.5) had been deposited by the Accused in the bank account opened under the fake name Mohammed Taslim Khan. If it can be proved beyond reasonable doubt that the bank account into which the impugned cheque had later been deposited was opened by the Accused under the fake name Mohammed Taslim Khan, then the Court has no difficulty in drawing the inference that, at the time he opened the account, he had the requisite knowledge that the account is meant for illegal purpose of money laundering.

12. Knowledge is a state of mind. Generally, if it is to be shown to have existed, it must be inferred or deduced from the relevant circumstances existing before, at the time of or even after the use by the accused of the forged instrument or the cheque. Inferences are conclusions of fact rationally drawn from a combination of proved facts including the conduct or any statements of the accused.

13. According to LTA officer Makareta's evidence, learner's permit issued under the name of Mohammed Taslim Khan(MFI.1) contained the photograph of the Accused. Her finding was based on the comparison she had made with the Accused's photograph contained in the Accused's driver's permit(MFI. 2) extracted from the data base. Even the Accused does not dispute that fact. Accused himself and his mother in their evidence acknowledged that the learner's permit issued under the name of Mohammed Taslim Khan contained Accused's photograph. Both extracts marked as MFI.1 and MFI.2was given to the Assessors.

14. In order to obtain a learner's permit, Makareta emphasized the need of the physical presence of the applicant at the LTA office. Physical presence is essential to avoid impersonations and due diligence in permit issuance process is expected of any officer attached to the LTA.

15. Makareta had not personally attended to the issuance of the impugned learner's permit and hence she is not in a position to say that the Accused was in fact physically present at the LTA office with his photographs when it was issued. She explained the general procedure adopted by the LTA officers in granting learner's permits. Unless contrary is proved, It can be presumed that the general procedure had been adopted in this particular case too by the public officer whosoever who had attended to this particular licensing.

16. The Accused said that when he obtained his learner's permit in 2007, he was not required by the LTA to undergo any kind of test. However, he did admit that he had personally gone to the LTA office to obtain his permit. Since there is no evidence before this Court that obtaining a learner's permit is possible without applicant being physically present at the LTA, it can be inferred that the Accused had been present at the LTA with his photographs when the learner's permit was issued under the name of Mohammed Taslim Khan.

17. There is no dispute that the Personal Account Application (P.10) under the name Mohammed Taslim Khan had been lodged at the Colonial National Bank using the same learner's permit which contained the photograph of the Accused.

18. Mohammed Azim is the banker who had provided services to open the bank account. He had proceeded to open the account only upon being satisfied about the identity of the applicant. He had used the learner's permit 794920 (corresponding to MFI.1) as the primary method of identification. He had matched the photograph it had with the person in front of him and also had matched his signature.

19. The most crucial issue to be resolved is whether the banker Azmi had, by matching the photograph contained in the learner's permit, correctly and certainly identified the Accused.

20. The bankerAzmi had the privilege of using the original learner's permit to identify the customer. What was attached to the Personal Account Application Form (P.10)is the photocopy he had obtained from the original.MFI.1 extracted from the LTA data base contained the same photograph. It is obvious that the LTA had used the same photograph for its data base and to print the learner's permit.

21. What was made available to Court by the Prosecution is only the photocopy. The photocopy (MFI.1) however was clear enough to identify the person depicted therein. Unlike photographs taken from CCTV camera footage or from a mobile smart phone, photographs mounted in an identity card are taken especially for the purpose of identification.

22. When MFI.1 was shown to Accused's mother Amara Wati, she identified the person depicted in that document as her son Chris Ronil Sing. She said that her eye sight is weak and had forgotten to bring her spectacles to Court. Still she identified his son's photograph depicted in the photocopy. That clearly shows that the photograph in the learner's permit is clear enough to identify the person depicted therein. There is no doubt that the banker Azmi would have been in a better position compared to Amara Wati as he had the privilege of seeing the original learner's permit when he was called upon to match the photograph with the person in front of him.

23. Unlike a bystander at a crime scene, bankers are experts at personal identification. They are specially trained for that purpose to make primary identifications at the counter of the bank. They are professionals coming under strict anti-money laundering legal regime which obligate them to know the customer (KYC) before opening a bank account and are legally bound to practice due diligence in customer identification. I am confident that banker Azmihad properly established the identity of the Accused before proceeding to open the account.

24. It was the first and only occasion where Azmi had the opportunity of seeing the person who had appeared before him to open the account. He had catered to nearly 30 to 40 customers daily as the Customer Service Officer. Considering the time elapsed from the date of identification, State Counsel was correct in his approach when he did not invite the witness to make Doc identification. There was no proper foundation for doc identification.

25. The photographs are admissible in evidence because they are relevant to the issue as to (a) whether an offence was committed and (b).who committed it. When the photographic images are sufficiently clear the jury can compare it with the Defendant sitting in the dock. (Dodson and Williams [1984] 1WLR 971, [1984] 79 Cr App R 220

In Dodson and Williams Watkins LJ expressed the view of the Court of Appeal as follows:

"What are the perils which the jury should be told to beware of?....We do not think the provision by us of a formula or series of guidelines upon which a direction by a judge upon this matte should always be based would be helpful. Evidence of this kind is relatively novel. What is of the utmost importance with regard to it, it seems to us, is that the quality of the photographs, the extent of the exposure of the facial features of the person photographed, evidence, or the absence of it, of a change in a defendant's appearance and the opportunity a jury has to look at a defendant in the dock and over what period of time are factors, among other matters of relevance in this context in a particular case, which the jury must receive guidance upon from the judge when he directs them as to how they should approach the task of resolving this crucial issue."

26. If I were to apply directions in Turnbul (1976) 63 Cr.App.R 132: [1976] 3 WLR.445to a situation where a banker is called upon to identify a customer, Court can be satisfied, given the evidence led in the trial, as to the veracity (rather than accuracy) of identification and, in this case, the danger of a mistaken identification is lessened.

27. Azmi said that it normally takes 20 to 25 minutes for a banker to open a new account. Customer is kept waiting for a considerable time in the bank and it cannot be mere fleeting glance. Customer is confronted face to face with the banker at the counter at a close distance.

28. A Turnbull direction need not be provided unless the prosecution case depends wholly or substantially on visual identification. Where the principle or sole means of defence is a challenge to the credibility of the identifying witness, there may be exceptional cases in which a full Turnbull warning is unnecessary or may be given more briefly than in a case where the accuracy of identification is challenged. ( R. Cape [1996] 1Cr App R 191 CA: R v Courtnell [1990] Crim LR 115 This is such a case.

29. In my summing up, I invited the Assessors to take a look at MFI.1 and the photocopy of the photo identity card or the learner's permit and to compare those with the Accused who was sitting in the dock. Two of them were satisfied that by matching the photograph contained in the learner's permit Azim could have properly established the identity of the Accused.

30. Even today,by matching a photograph taken nearly a decade ago, it is not impossible to say that the person sitting in the doc is the same person whose photograph is depicted in the learner's permit. I am confident that by matching the photograph contained in the learner's permit Azim could have properly established the identity of the Accused in 2005.I find beyond reasonable doubt, that the person who had appeared at the counter of CNB with the Personal Account Application (P10) was none other than the Accused. That is the only rational inference that this Court can make.

31. Accused denied having applied for a learner's permit and having opened a bank account at CNB under the name of Mohammed Taslim Khan. He blames one of his customers, Salen, for fraudulently using his photographs to obtain a fake learner's permit and using it to open a bank account.

32. It is highly improbable Accused to have given his photographs and the passport to a customer named Salen whose whereabouts was not known to him. According to his evidence, he had lodged a complaint in 2006 against Salen for illegally retaining his passport and photographs. However, he failed to produce any evidence to show that he had made such a complaint.

33. Passport is a valuable document for number of reasons. If it is lost, it can become a dangerous document. Specially, if it is being retained by a missing cheat, possibility of it being used for an illegal purpose is high. For these reasons, it is expected of a reasonable person to have kept a record of the Police complaint if such a complaint had actually been made.

34. Accused admitted that the post box number given in the Personal Account Application Form (PE.10) belonged to his mother. Defence Counsel argues that if the Accused was involved in this scam, he would not have given his mother's post box number.

35. There are two probable explanations in this regard that would counter Counsel's argument. Providing his mother's P.O.Box Number in the Personal Account Application Form could have been a mistake on the part of the Accused. In almost every crime scene, culprit forgets something and leaves some form of evidence behind.

36. Even if the Police are successful in tracing his mother's address from the P.O.Box number provided, it is hardly possible for them to trace the Accused unless he is present there when the Police visit the address. The Police would be looking out for a person named Mohammed Taslim Khan, not Chris Ronil Singh.

37. Accused had given his mother's post box number only for 'overseas thing'. He had never used it for any other purposes and had never received anything on it. That's was the explanation given by the accused which is not appealing to me.

38. When the Accused was cautioned interviewed, he had mentioned Salen's name to Police and Police had recognized Salen as a notorious money launderer. If that is the case, Court can't understand why the Police went ahead and prosecuted an innocent person without bringing the real culprit.

39. Accused's evidence was unsatisfactory, implausible and unacceptable. Defense has failed to create any doubt in the Prosecution case.

40. I accept the evidence of the Prosecution and reject that of the Defence.

41. Prosecution has proved the case beyond reasonable doubt.

42. I am not inclined to interfere with the majority finding of the Assessors. Majority opinion is not perverse. They were justified in coming to an opinion of guilt to the Count of Money Laundering. It is open for them to reach such a conclusion on the evidence led in the trial.

43. I accept the majority opinion of the Assessors. Accused is convicted of Money Laundering accordingly.

44. That is the judgment of this Court.

Aruna Aluthge
JUDGE

AT LAUTOKA
28thOctober, 2015

Solicitors: Office of the Director of Public Prosecution for State
Qoro Legal for Accused