State v Ma'afu [2020] FJHC 222; HAA 13 of 2019 (18 March 2020)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CRIMINAL JURISDICTION]

HIGH COURT CRIMINAL APPEAL CASE NO.: HAA 13 OF 2019

BETWEEN

STATE

Appellant

AND

HENELE MA’AFU

Respondent

Counsel : Ms Luisa Latu for the Appellant
Ms Alanieta Bilivalu For the State

Date of hearing : 02 October 2019
Date of Judgment : 18 March 2020

JUDGMENT

1. This is an appeal by the State against the decision of the learned magistrate, in Nadi Criminal case no 1088 of 2010. The appellant advances the following grounds of appeal;
   1. That the learned Magistrate erred in law and in fact in not recording a conviction against the Respondent.
   2. That the learned Magistrate erred in fact and in law when he imposed a sentence which was manifestly lenient.
      
2. This was not a timely appeal, but the respondent agreed for enlargement of time on 14 June 2019. Accordingly leave to appeal out of time was granted to the State and the court proceeded to hear the appeal.
   
3. The respondent was initially charged in the Nadi Magistrate’s Court on 09 November 2010. Later an amended charge was filed on 15 October 2018. The statement of offence and the particulars of offence as per the amended charge are as follows;
   

Statement of offence

Found in possession of controlled chemicals contrary to section 6(b) of the Illicit Drugs Control Act 2004.

The particulars of offence

Henele Ma’Afu on the 26^th day of June 2009 at Nadi International Airport in the Western Division, without lawful authority was found in possession of controlled chemical namely Pseudoephedrine weighing 3858.09g or 3.85Kg.

4. The Respondent was represented by the Legal Aid Commission and he pleaded guilty to the charge on 29 October 2018. He was sentenced by the learned Magistrate upon admitting the following summary of facts;
   

“On the 26^th of June 2009, the accused, Henele Maáfu 56 years old Administration officer of Cummingham Suva, arrived into Fiji with his daughter Chelsea Marie Robb Maáfu, 13 years old, Student of Queensland, Australia at the Nadi International Airport via Korean Air flight KE137 from Hong Kong.

Whilst at the customs baggage hall, their luggage was put through the x-ray machine and it showed some unclear images, requiring further verification and inspection.

Mohammed Azaz, 34 years old, customs officer of Votualevu, Nadi was on duty at the baggage area for this flight checked their luggage.

Upon checking the luggage which were checked in under his daughter’s name, it was discovered that the bag contained a box about the size of the bag and contained Contac NT capsules containing 287 packets of capsules containing 40 capsules each and 20 capsules in a loose packets (sic). Total of 15,500 capsules was discovered. This were all found in one bag only.

The accused was interviewed under caution whereby he stated that the bag was given to him in Hong Kong to be picked by a Joe at Nadi airport and he had no knowledge of control chemicals in the bag.

The samples of the granules were sent for forensic analysis in Australia which confirmed the tablets contained pseudoephedrine and found in possession of controlled chemicals of 3.858kg.

On the 15^th of October, 2018 the State amended the particulars of the charge to reflect the correct quantity of controlled chemicals of 3.85kg found in the accused possession”.

5. The learned Magistrate handed down the sentence on 12 November 2018. The respondent was sentenced to 20 month imprisonment, suspended for 2 years. Further the learned Magistrate declined to record a conviction against the Respondent.
   
6. I will now deal with the first ground of appeal to ascertain whether the learned Magistrate erred in law and facts in not recording a conviction.
   
7. Section 6(b) of the Illicit drugs Control Act reads as follows;

“ Any person who without lawful authority imports, exports, manufactures, possesses, or supplies any controlled chemical or controlled equipment being reckless as to whether that chemical or equipment is to be used in or for the commission of an offence under section 5 commits an offence and is liable to a fine not exceeding $ 1 million or imprisonment for life or both.”

8. Section 5 of the Act stipulates;

Any person who without lawful authority–

(a) Acquires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drug; or
(b) Engages in any dealing with any other person for the transfer, transport, supply, use, manufacture, offer, sale, import or export of an illicit drug

Commits an offence and is liable on conviction to a fine not exceeding $ 1 million or imprisonment for life or both

9. In view of those provisions in the Illicit Drugs Control Act the following ingredients must be established to prove the offence in the matter under consideration;
   1. The Accused
   2. Without lawful authority
   100. Had in possession a controlled chemical
   4. Being reckless as to whether that chemical is to be used in or for the commission of an offence under section 5
      
10. At this point it must be noted that as per section 6 of the Illicit Drugs Controlled Act, an offence is not constituted by mere possession of a controlled chemical without lawful authority. For an offence to be constituted under section 6 in respect of a controlled chemical it has to be qualified by an additional condition set out, either in sub section (a) or (b), apart from establishing possession without lawful authority. On the other hand, an offence under section 5 for illicit drug is constituted so far as possession without lawful authority is proved.
    
11. Accordingly, for an offence under section 6 of the Illicit Drugs Control Act to be constituted it is imperative for the prosecution to prove, apart from proving a person possessed, imported, exported, manufactured or supplied any controlled chemical without lawful authority, that the accused did so either;
    1. Knowingly that the chemical or equipment is to be used in or for the commission of an offence under section 5 or
    2. Being reckless as to whether that chemical or equipment is used in or for the commission of an offence under section 5
       
12. Upon plain reading of the charge in the matter under consideration, it appears that the specific qualification set out in sub section (b) is not reflected in the particulars of offence. Instead it is alleged that the respondent merely possessed the controlled chemical without lawful authority. Secondly, the summary of facts does not speak of the element of being reckless as to whether that chemical is to be used in or for the commission of an offence under section 5.
    
13. The importance of proving one of the two limbs in section 6 was mentioned in obiter in Araibula v State [2017] FJCA 120;AAU0102.2013(14 September 2017). It was a case where the appellant was charged for aiding and abetting the principal offender of an offence under section 6(b) of the Illicit drugs Control Act. The Court of Appeal remarked;
    

“In other words the prosecution does not have to show that the appellant was “being reckless as to whether that chemical or equipment is to be used in or for the commission of an offence under section5” which is the mens rea of the principal offence under section 6(b) of Illicit Drugs Control Act 2004. It is only relevant to the co-accused being the principal offender.”

14. It seems clear that establishing the mental element of the offence; “being reckless as to whether the chemical is to be used in or for the commission of an offence under section 5” is an integral requirement for the offence relevant to this case. Further there is no mention in the summary of facts regarding the element of “without lawful authority” as well.
    
15. Section 58 of the Criminal Procedure Act provides;
    

“ Every charge or information shall contain –

(a) A statement of the specific offence or offences with which the accused person is charged; and
(b) Such particulars as are necessary for giving reasonable information as to the nature of the offence charged.”

16. The charge filed by the prosecution in the Magistrate’s Court does not mention anything about “being reckless as to whether the chemical is to be used in or for the commission of an offence under section 5”. Undoubtedly the failure to include an essential ingredient in the charge makes the charge defective. However, in Shekar v Sta005] FJCA 18; AAU0056.0056.2004 (15 July 2005) the Court of appeal held;

“The purpose of the charge is to ensure that the accused person knowsoffence with which he is being charged. Whilst the particulticulars should be as informative as is reasonably practicable, it is not necessary slavishly to follow the section in the Act”.

17. In Tavurunaqiwa v State; [2009] FJHC 198; HAA0 HAA022.2009 (10 September 2009) the appellant was charged for rape and the charge was found to be defecti it dt conone important ingredient; ‘lack of consent’. However, the cthe court ourt held;held;

“The facts admitted by the appellant clearly established that the complainant did not consent to the sexual intercourse. Before recording the conviction, the learned Magistrate asked twice whether the complainant consented to sexual intercourse, to which the appellant answered "no".

It is clear that the appellant was not embarrassed or prejudiced by the omission of the essential ingredient of lack of consent in the particulars of the offence. Lack of consent from the complainant was established when the appellant admitted the facts tendered in support of the charge by the prosecution. I am satisfied no substantial miscarriage of justice has occurred”.

18. Therefore, when a court considers a conviction on a defective charge it has to be ascertained whether the defect of the charge has embarrassed or prejudiced the accused. And even if the charge does not contain an essential ingredient of the offence, no prejudice would be caused if the summary of facts admitted by the accused covers all the ingredients.
    
19. Upon perusal of the summary of facts admitted by the respondent in the present case, it seems clear that even the summary of facts does not speak of the two important ingredients of the offence “ without lawful authority” and “being reckless as to whether the chemical is to be used in or for the commission of an offence under section 5”.
    
20. It was held in State v Saukova [2000] FJLawRp 1; [2000] 1 FLR 135 (6 July 2000);
    

“It is essential that a Magistrate be satisfied that an Accused is admitting facts which amount to all of the legal elements that go to prove the charge in question. Where the Accused is represented by counsel, the Magistrate's task is easier. Where the Accused is unrepresented a more onerous burden is cast on the court. But the Magistrate should ensure that the Accused is not simply pleading guilty out of a feeling of remorse for being involved in a result as opposed to causing a result.”

21. The steps that should be fol by a Magistrate when an accused person pleads guilty to a charge was discussed in detail iail in Samutitoga v State [2017] FJHC 704; HAA25.2017 (25 September 2017) as follows;

“The appropriate manner in the Magistrate’s Court in recording the plea of the accused constitutes four main steps. The first step is to read and explain the charge to the accused. Having satisfied that the accused properly understood the charge, the court then proceed to record his plea. If he pleaded guilty, the Court is then required to provide the summary of facts, outlining the alleged incident to the accused. The learned Magistrate must satisfy that the summary of facts has outlined alential eial elements of the offence as charged. The learned Magistrate could then record the conviction if the accused admits the truth of the summary of facts&;.

22. Therefore, it is crystal clear that the Magistrate satisfy that all the elements are proved by the summary of y of facts which is admitted by the accused person before convicting him. In the present case mainly the summary of facts does not disclose that the respondent possessed the controlled chemical “being reckless as to whether the chemical is to be used in or for the commission of an offence under section 5”. Therefore the respondent had not admitted that he was reckless as to whether the chemical was to be used in or for the commission of an offence under section 5 of the Illicit Drugs Control Act when he pleaded guilty.
    
23. The only facts admitted by the respondent are that he was in possession of 3.858 Kg of controlled chemical and that he had no knowledge about the contents of the bag which was given to him by another person. Based on that admission the learned Magistrate proceeded to sentence the respondent.
    
24. The appellant argues that the learned Magistrate erred in law and fact by not recording a conviction. It is my opinion that this court need not go to the extent of ascertaining the correctness of the decision of the learned Magistrate not to record a conviction, as on the face of it, no conviction should be recorded for the reasons I have discussed above.
    
25. In Samutitoga v State (supra) the court held that;
    

“It is clear that the summary of facts as outlined, has not disclosed the elements of deception and dishonestly obtaining of financial advantage. Accordingly, the appellant has not admitted the truth of the main elements of the offence as charged. Under such circumstances, the learned Magistrate has no jurisdiction to enter a conviction against the appellant pursuant to Section 174 (2) of the Criminal Procedure Act. I accordingly find the plea of guilt of the appellant is not unequivocal”.

26. When the defective charge and the summary of facts which does not establish all the ingredients of the offence are taken together, I decide that the plea of the respondent cannot be considered unequivocal. The plea was patently equivocal, and no conviction must ensue the admission of the summary of facts for the simple reason that no offence under section 6(b) is established by those facts apart from mere possession of a controlled chemical. It must be reiterated that no offence is constituted by mere possession of controlled chemicals unless it is qualified by one of the two limbs in section 6. It is very clear that the respondent pleaded guilty for mere possession of a controlled chemical only. Although the respondent was represented by a counsel, I am not satisfied that the respondent clearly understood the charge and pleaded guilty to the actual offence created by section 6.
    
27. Although that is not the reason that the learned Magistrate declined to enter a conviction, I do not think that the correctness of his decision needs to be considered in this backdrop. In other words when the plea is equivocal a court must not record a conviction.
    
28. At this juncture it would be pertinent to note the following passage to emphasize the utmost duty of court to see that no miscarriage of justice is occurred by reason of an equivocal plea. In Li Kuen v. R (111 Crim. App. R. 293 the the Court of Criminal Appeal stated the following regarding a murder trial where the accused did not understand English;

"It is for the Court to see that ecessary means are adopted pted to convey the evidence to his intelligence, notwithstanding that, either through ignorance or timidity, or disregard of his own interests, he makes no application to the Court. The reason is that the trial of a person for a criminal offence is not a contest of private interests in which the rights of parties can be waived at pleasure. The prosecution of criminals and the administration of the criminal law are matters which concern the State. Every citizen has an interest in seeing that persons are not convicted of crimes and do not forfeit life or liberty except when tried under the safeguards so carefully provided by the law".

29. Even though this is an appeal by the State against the decision of the learned Magistrate, it is my considered view that a conviction cannot be considered based on the ambiguous plea and the summary of facts admitted by the respondent. Further I decide that the sentence imposed by the learned Magistrate cannot stand for the reasons discussed above. Hence there is no reason to consider the second ground of appeal in respect of the leniency of the sentence.
    
30. I will now consider whether this case should be sent for trial de novo. The date of the alleged offence is 26 June 2009. The respondent is charged for the alleged offence on 09 November 2010. The case has been pending for almost 10 years. It is also very likely that witnesses of both sides may also not be available by now. The respondent was 63 years old when he was sentenced in 2018 as per the mitigation submissions. I am not satisfied that a fair re-trial can be afforded to the respondent after ten years of the alleged incident.
    
31. When the appellate court finds that the plea was imperfect and unfurnished one of the remedies that is available is to quash the sentence without sending back for trial based on the circumstances. It is stated at 4-90 of Archbold 44^th edition (1992);

“Where the plea is imperfect or unfinished, and the court of trial has wrongly held it to amount to a plea of Guilty&# on ap60;appeal the Court 60;Ap#eal < may order that a pleaot Guit Guilty be entered and that the appellant be tried on the indictment: R v. Ingleson ttww.paorg/cgi-biCite?5b1915b1915%5d%201%20KB%20KB%2051220512?stem?stem=&synonyms=&query=plea%20of%20guilty%ilty%20and20and%20conviction%20and%20summary%20of%20%20anlements%20and%20appeal%20and%20set%20aside" titletitle="Vie="View LawCite Record">[1915] 1 KB 512, 11 Cr. App. R. 21; or that the appellant be sent back to plead again to the indictment: Raker (1912) 7 Cr. App. App. R. 217; R v. Hussey (1924) 18 Cr. Ap 121; #160;R v. Brennan (1981) 2 App. R. 41; or mayr may merely quash the conviction withouthellank for trial:&#al: R v. Alexand60;(1912)1912) 912) 7 Cr. App. R. 110; R v. Golathalathann¾ (1915) 11 Cr. App. R. 79; R eld&#1643) 2 App.51. In t In the case of an undefended defendefendant want who pleads guilty care should always bays be taken to see that he understands th0;ele of thof the crime to which he is pleading GuiltGuilty, especially if the depositions disclose that he has a good defence: R v.fiths (1932) 23 Cr23 Cr. App. R.a153 and see observations in R vndford Justices, ex p. G p. G (An Infant) ord">[1967] 1 QB 82, DC. See also R v. Iqbal Begum, ante, S4-7."

32. There is no contention that the impugned offence discloses a serious act allegedly committed by the respondent. However, the duty of this court is to see that no miscarriage of justice is occurred, and due process is followed when a person is convicted. It is my considered opinion that no conviction can be recorded against the respondent for the foregoing reasons.
    
33. For the reasons I have mentioned in paragraph 30 above, I am of the view that it would not serve the interests of justice to order the matter to be re-heard as well.
    
34. In the circumstances I make the following orders;
    
    1. The appeal is dismissed.
    2. The sentence is quashed.
       

Rangajeeva Wimalasena
Actg. Judge

At Lautoka
18 March 2020

Solicitors: Office of the Director of Public Prosecution for the appellant
Office of the Legal Aid Commission for the respondent