Fiji Independent Commission Against Corruption v Khan [2022] FJHC 122; HACD001.2021S (18 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
ANTI CORRUPTION DIVISON

CRIMINAL CASE NO. HACD 001 of 2021S

FIJI INDEPENDENT COMMISSION AGAINST CORRUTION

vs

SHAMEEM KHAN

Counsels: Mr. Savumiramira S - for Prosecution

Mr. Vosarogo F - for Respondent

Date of Ruling: 18 March 2022

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RULING

Introduction

1. The Accused in this matter was initially charged in the Magistrates Court of Suva on the 25^th of October 2018 with two counts of abuse of office and general dishonesty, respectively, – causing a loss contrary to Section 139 and Section 324 (2) of the Crimes Act of 2009. Since count one was an indictable offence triable summarily, as per Section 4 (1) (b) of the Criminal Procedure Act of 2009, the election had been put to the accused to choose the Court where he expects to be tried and the accused had elected the Magistrate’s Court.
2. Then on 18^th April 2019 FICAC had filed an application in the Magistrate’s Court for the transfer of this case to the High Court inviting the Learned Magistrate to use his discretion and act under Section 188 and Section 191 of the Criminal Procedure Act of 2009.
3. As a consequence, the Learned Magistrate had transferred this case to the High Court, there by estopping any further proceedings in the Magistrate’s Court on 18^th July 2019, pronouncing that;

“This Court therefore finds that this is an appropriate case for the High Court to deal with, given the seriousness of the offence and the amount involved and the high public office held by the accused”

4. Thereafter, this matter had been called in the High Court on the 2^nd of August 2019. On 10^th February 2021 the prosecution had amended the information that was originally filed in the Magistrate Court.
5. In the amended information, prosecution has taken out the two vital components that contained in the original charge filed in the Magistrates Court. In this regard, the value of the alleged sum of revenue that was prevented from FRCS receiving from the arbitrary act of the accused had been removed and the allegation that this was done with the purpose of gaining from the abuse of office held by the accused had also been removed.
6. In the light of these changes, the maximum penalty for the offence has changed to 10 years of imprisonment from 17 years imprisonment. Further, by not mentioning the high value of abuse committed by a public officer in the count, the possible public attention had also been minimized.
7. By this application, defense has raised the issue in this Court that in view of the significant changes made to the original charge filed by FICAC, the accused should be given the opportunity to elect the forum he should be tried in pursuant to Section 4 (1) (b) of the Criminal Procedure Act of 2009. In this regard, prosecution has objected to this application on the premise that the issue of selection has to be done in the first instance and the accused had been provided that opportunity already, where he had chosen the Magistrate’s Court.

Requirement to provide the opportunity to the Accused for Election of Court
8. Section 4 (1) of the Criminal Procedure Act reads, as below:

“Subject to the provisions of this Act

1. any indictable offence under the Crimes Act 2009 shall be tried by the High Court;
2. any indictable offence triable summarily under the Crimes Act 2009 shall be tried by the High Court or a Magistrate’s Court at the election of the accused person; and
   

100. any summary offence shall be tried by the Magistrate’s Court.”

In line with this position, for any indictable offence triable summarily, the election has to be provided to the accused to elect and the trial should proceed accordingly, subject to the other provisions of the Criminal Procedure Act of 2009.

9. This Court is of the view, in the absence of any change in the Section under which the accused is charged with, unless there is plausible evidence to demonstrate that the accused was confused of the charge, there is no need to give another opportunity to the accused for election. In this matter, this election had been given to the accused initially and he had chosen the Magistrate’s Court. Subsequently, this matter had been transferred to the High Court by the Learned Magistrate under Section 188 and Section 191 of the Criminal Procedure Act of 2009, where the Magistrate’s Court is granted the discretion by statute.
10. In this background, as claimed by the counsel for the accused, this Court does not see the requirement to give the accused another opportunity of election under Section 4 of the Criminal Procedure Act 2009 in view of amendments done to the information.

Reasons to transfer the case from the Magistrate’s Court to the High Court

12. In this matter, the charge was initially filed in the Magistrates Court and under Section 4 (1) (b) the option was given to the accused to elect a suitable court, where he opted for the Magistrate’s Court. However this matter was transferred to the High Court by the Learned Magistrate, when FICAC requested for a transfer under Sections 188 and Section 191 of the Criminal Procedure Act of 2009.
13. In facilitating this transfer, the Learned Magistrate had provided a ruling highlighting that the power vested in the Magistrate’s Court to transfer a case under Section 188 is discretionary and provided reasons for using the discretion to transfer this matter to the High Court, as below:

“The Accused holds a senior position in the institution he is employed by and the amount involved is more than $ 4.1 million. The maximum penalty for count 1 Abuse of Office is 17 years imprisonment, 7 years more than the sentencing jurisdiction of a magistrate.

The Court therefore finds that this is an appropriate case for the High Court to deal with, given the seriousness of the offence and the amount involved and the high public office held by the accused.”

14. In this pronouncement, the Learned Magistrate, in addition to other reasons, had specifically mentioned the involvement of high value of more than $ 4.1 million and her inability to impose a higher sentence as reasons to transfer the matter to the High Court.

Absence of some grounds considered by the Learned Magistrate to transfer the matter to the High Court

15. Stemming from our constitution, our legislature has always attempted to bring a healthy balance in the rights granted to the citizenry and authority given to the administration and adjudication. For this end, every entity involved in the administration and adjudication of affairs in our community should endeavour to maintain this balance as much as practically possible.
16. In view of the legislative provisions applicable in this matter, the accused has been given a right by the legislature as to where he should be tried, when he is tried with an indictable offence triable summarily, as per Section 4 (1) (b) of the Criminal Procedure Act of 2009. Therefore, when an accused has chosen the Magistrate’s Court and when a Magistrate is transferring a case under Section 188 and Section 191 to the High Court under the discretionary power vested under a statute, the Learned Magistrate has to be mindful that the decision needs to be made over an election made by the accused to be tried in the Magistrate’s Court under a right granted to the accused by a statute. Therefore, this Court is of the view that the Learned Magistrate should have very plausible and cogent reasons to make such a transfer.
17. It is now agreed by both parties of watering down of the graveness of the information in the High Court. In this regard, this Court notices that the prosecution always had the opportunity to proceed with the counts filed in the High Court, as it is, and if certain elements were unable to be proved, they had the opportunity to be successful in obtaining a conviction under Section 160 of the Criminal Procedure Act of 2009.
18. As this matter stands now in the High Court, it appears that some visibly grave circumstances of the initial offence contained in the charges and the need for a higher penalty that the Learned Magistrate considered to transfer this matter to the High Court do not exist. Therefore, the reasons that were available for the Learned Magistrate to consider in deciding to transfer this matter to the High Court over a statutorily granted right to the accused to be tried in the Magistrate Court are now reduced.
19. Further, in the absence of any attenuating circumstances that prompted the prosecution to water down the information in the High Court, it is reasonable for one to think whether such circumstances ever existed or was it a mere attempt to have the matter transferred to the High Court. In this regard, this Court is of the view that the prosecution should be confident, on analyzing the available evidence, when filing charges against an accused in any Court.
20. In this light, it is perceptible that the Learned Magistrate had not been properly informed of some realistic circumstances of this matter for her to utilize her discretionary power to transfer this case to the High Court and she had made the transfer on some grounds which were nonexistent. For the reasons enunciated above, in the interest of justice, this Court holds that the transfer made by the Learned Magistrate to the High Court is null and void due to the absence of plausible reasons to decide over a statutorily granted right of the accused under Section 4 (1) (b) of the Criminal Procedure Act of 2009. On this premise, this Court directs the Learned Magistrate to proceed with this matter according to the law.

21. You have thirty (30) days to appeal to the Fiji Court of Appeal.

...........................................................
Hon. Justice Dr. Thushara Kumarage

At Suva
14 March 2022

cc: Fiji Independent Commission Against Corruption, Suva.
Office of Vosarogo Law, Suva.