Fiji Independent Commission Against Corruption v Sing [2010] FJMC 191; Criminal Case 50 of 2010 (19 November 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 50/10

Between:

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

And:

IVAN ALEXANDER VISHAL THAKUR SING

JUDGEMENT

1. The accused in this case is charged with one count of demanding with menaces with intent to steal. The statement of offence and the particulars of offence are as follows;
   

Statement of offence

Demanding with menaces with intent to steal; contrary to Section 295 of the Penal Code.

Particulars of offence

Ivan Alexander Vishal Thakur Singh during the period between the 25th October 2007 and 01st November 2007, at Ba Provincial Holdings Company Limited, at Lautoka in the Western Division, with menace namely by threatening Rakesh Prasad that the said Rakesh Prasad would lose the contract which was awarded to said Rakesh Prasad for "Wood Work Fantastic Furniture" by Ba Provincial Holdings Company Limited as per the agreement dated 25th October 2007, demanded half of the profit out of the said contract which is FJD 30,000 from the said Rakesh Prasad with intent of stealing the said amount of FJD 30,000.

Background

2. The alleged offence is said to have been committed during the period of 25th October 2007 and 01st November 2007. The accused was charged on the 31st May 2010. The case was taken up for hearing on the 08th June 2010.
   
3. The prosecution was conducted by a Prosecuting Counsel of the FICAC and the accused was represented by a counsel. The prosecution called three witnesses. After the prosecution case was closed the Defence Counsel made submissions of no case to answer. After hearing the both parties the court held that the prosecution has made out a case for the accused to reply. The accused gave evidence and no other witnesses were called for the defence.
   
4. The prosecution case was that the accused demanded from one Rakesh Prasad, 50 per cent of the profit of a particular contract by threatening that he will loose the contract. The accused totally denied making such a demand or receiving such money.
   

The law

5. Section 295 of the Penal Code reads as follows;
   

"Any person who with menaces or by force demands of any person anything capable of being stolen with intent to steal the same is guilty of a felony, and is liable to imprisonment for five years."

6. Accordingly the prosecution has to prove the following ingredients in this case;
   
   1. The date and place of the alleged incident
   2. The identity of the accused
   100. Menace
   4. Demanded from a person
   5. A thing capable of stolen
   6. The intent to steal
      

Date and place

7. According to the charge, the offence is alleged to have been committed between the 25th October 2007 and 01st of November 2007 at Ba Provincial Holdings Company Limited at Lautoka in the Western Division. Therefore the prosecution has to first prove that the accused demanded money with menaces with intent to steal between the 25th October 2007 and 01st October 2007 at Ba Provincial Holdings Company Limited at Lautoka in the Western Division.
   
8. The prosecution called a witness, Rakesh Prasad who said that he signed an agreement with the Ba Provincial Holdings on the 25th October 2007 with regard to the completion of a building called Vidilo House. It appears that the witness is the sole proprietor of Wood work Fantastic Furniture as per the agreement. The agreement marked and tendered as P1, appears to have been signed between the Ba Provincial Holdings Limited and Woodwork Fantastic Furniture.
   
9. The witness, Rakesh Prasad said that the said contract was signed on the 25th October 2007. He said after signing the contract the accused spoke to him regarding his commissions. The witness gave evidence regarding this in the following manner;
   

"After signing the contract the accused spoke to me regarding his commissions. He asked me what is the amount of profit I expect to make. I told him it was approximately 60 000. He asked me to give him 50%. He said it's his commission for giving me the contract. He said I will have to give the 50% otherwise another contractor will get it."

10. According to the witness the alleged demand is thus made sometime after 25th October 2007, after the contract was signed. Later the witness said that he made the first payment to the accused on the 31st October 2007. Therefore I am satisfied that the alleged offence falls within the time period specified in the charge.
    
11. It should be noted that the witness did not mention where the above discussion was taken place. The main element of this offence seems to be the demand. It is the duty of the prosecution to prove where the offence actually took place. The prosecution led evidence as to where the money was exchanged in this case. The passing of the property is immaterial as far as this offence is concerned. But as far as the place of the offence is concerned the prosecution did not produce any evidence. It should be noted that in a case of this nature it is equally important to prove the place of offence with the other ingredients of the offence and it is the duty of the prosecution to make sure that every element of the offence is proved.
    

Identity

12. The prosecution witnesses identified the accused as Ivan Alexander Vishal Thakur Singh. There was no dispute with regard to the identity of the accused although the accused totally denied the commission of the offence. However I am satisfied that the prosecution proved the identity of the accused beyond reasonable doubt.
    

Menace

13. Menace is defined in the Stroud's Judicial Dictionary as follows;
    
    • (1) a menace is a threat to injure; and the injury may be to reputation as well as to the person or property. So Larceny Act 1861(c.96). s. 49, provided that " it shall be immaterial whether the menaces or threats herein before mentioned be of violence, injury, or accusation."
      
    • (2) Thus, a threat to allege mere sexual immorality was a menace within Larceny Act 1861, s.44 ( R. v. Tomlinson[1895] 1 QB 706).
      
    • (3) Menaces in Larceny Act 1916(c.50), s.29(4): See R. v. Denyer[1926] 2 K.B. 258, where it was held that an accusation, although true, might come within the definition of "menaces" in the above section.
      
    • (4) Upon a charge of demanding money with menaces contrary to s.30 of the Larceny Act 1916(c.50), menaces meant threats likely to alarm the mind of an ordinary person, whether the intended victim was in fact alarmed or not ( R. v. Clear [1968] 1 QB 670).
      
14. According to the evidence of Rakesh Prasad the accused had told him after signing of the contract that he will have to give 50% of the profit to the accused and otherwise another contractor will get it. That is the statement which can be fathomed as the alleged menace in this case.
    
15. However a doubt arises as to the validity of such an alleged threat after signing of the contract. The witness said during the examination in chief that the accused said so after the contract was signed. However it is not clear how could the contract be given to another once it is signed. But the prosecution did not produce any evidence which suggests that the accused, in fact was in a position to terminate the contract and the witness Rakesh Prakash was aware of it for him to be alarmed of the so called threat. Further the witness once said that he started work even before the contract was signed and he was even partly paid much before the contract was signed. In those circumstances it has to be carefully analysed whether the alleged statement made after the contract was signed is likely to alarm the mind of an ordinary person.
    
16. It was revealed that the accused was the Group Accountant of the Ba Provincial Holdings Limited. The defence highlighted during the cross examination that the contract was not signed by the accused and it was one Saimoni Naivalu who had signed it. He was not a witness in this case. The witness Rakesh Prakash was cross examined in the following manner;
    

"Q: You said Mr Singh gave the contract?

A: Mr. Singh approved the quotation. It was not recommended to the board. He was running the show. It was approved through operations manger.

Q: Who was that?

A: Mr Saimoni Naivalu."

17. Although the witness, Rakesh Prasad said during the examination in chief that the accused said that another contractor will get it, if half of the profit is not given to him, during the cross examination the witness changed this position and said that he agreed to pay a commission to the accused in September when the quotation was approved. The following is an excerpt of the cross examination;
    

Q: You say Mr. Singh was paid a commission?

A: yes

Q: Did you agree to pay the commission?

A: yes

Q: Was this commission agreed to in September?

A: yes. When the quotation was approved.

Q: That was in September 2007?

A: yes.

18. However later the witness again said in answer to a question by the defence, that the accused demanded half of the profit from him. In re examination the witness gave evidence in the following manner;
    

"He gave me a contract and he asked for me that money to approve that. That's what I meant by commission. I agreed to pay, otherwise I would have lost the contract. He said I will loose the contract if I don't pay that amount to him. When I forwarded the quotations he said that. That was somewhere in September 2007. After the agreement was signed in end of October also he said the same thing. I did not voluntarily offered to pay a commission at any time. The first demand came from Mr Ivan singh."

19. How ever this position was contradicted by the prosecution witness Isimeli Bose. He said he is the Chief executive officer of Ba Provincial Holdings Limited. He gave the following evidence;
    

"Then he mentioned to me that he was given a contract and he was asked by the accused to give him some 30 000 dollars. There was a tender given and Rakesh has tendered. The accused has told that Rakesh has to pay 30 000 dollars to the accused to give the tender. There was a written contract between the company and Rakesh. I gave that contract to FICAC. (P1 is shown) This is what I gave to FICAC. I know Saimoni Naivalu. I went through the contract before I handed over to the FICAC. The contract value is 147 950 dollars. Rakesh was told by the accused to top up 30 000 dollars to the tender.

Q: did Rakesh tell you anything with regard to demanding money?

A: He was asked by the accused to put 30 000 dollars above the price, otherwise he will not be given the job.

( question and answer was recorded at the request of the defence counsel)

20. It appears that the intention of the prosecution to call the witness, Isimeli Bose was to corroborate the evidence of the main prosecution witness, Rakesh Prasad. Apart from that it appears that Isimeli Bose has no personal knowledge about the alleged offence. He said he was not working for Ba Provincial Holdings from 2006 to 2008 December. He said he started again in December 2008. This witness gave evidence on what he was told by Rakesh Prasad. But it should be noted that his evidence is contrary to what rakesh Prasad said in court. Rakesh Prasad never said that he was asked to top up the price with 30 000 dollars when he tendered for the project. Rakesh only said that the accused asked for half of his profit. It appears topping up an amount and giving half of the share are two different things. I do not see any evidential value in Isimeli Bose's evidence as he does not corroborate the version of Rakesh Prasad and moreover he contradicts the evidence of the prosecution. How ever this witness said that the accused had told Rakesh Prasad that he would not get the job if he is not given the money.
    
21. There is no gainsaying that under normal circumstances threatening someone not to give a contract or threatening to give a contract to someone else could very well fall within the meaning of "menace". But in the backdrop of the circumstances of this case and with the strength of the evidence, the issue this court has to decide is, whether it could amount to menace in this case.
    
22. As per the judgement in R v. Thomas Walter Clear;
    

" The offence of demanding money with menace with intent to steal, contrary to section 80 of the Larceny act 1916, relates to the acts and the intent of the defendant. The intent to steal must be derived from the whole of the circumstances. Words or conduct which would not intimidate or influence anyone to respond to the demand cannot constitute menaces and may negative an intent to steal, but threats or conduct of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive may amount to menaces, even though there may be special circumstances unknown to the defendant ( eg; the presence of Police) which would make the threats innocuous and unavailing for the purpose of the demand. The presence of such circumstances would have no bearing on the defendant's frame of mind. The demand must be accompanied both by menaces and by an intent to steal and there is no intent to steal unless there is an intent to take without the true consent of the intended victim; but there can be such an intent without the victim being in fact deprived of that element of free, voluntary action which alone constitutes consent."

23. The main witness, Rakesh Prasad first said that the accused asked half of the profit after the contract was signed. Then he said in the cross examination he agreed to pay the commission to the accused when the quotation was approved. In re examination he said that when he forwarded the quotation the accused told him that he would loose it if he does not pay that amount. The other prosecution witness Isimeli Bose said Rakesh Prasad told him that the accused had asked him to top up 30 000 dollars to the tender. Thus it is not clear at what point of time did the accused threaten Rakesh Prasad, as alleged. Secondly when the evidence is considered in toto I am not satisfied that the alleged statement made by the accused could amount to a threat likely to alarm the mind of an ordinary person. As it was held in the above judgement words or conduct which would not intimidate or influence anyone to respond to the demand cannot constitute menaces. In the circumstances I am not satisfied that the prosecution discharged its burden in proving the ingredient "menace".
    

Demand

24. According to the charge the prosecution case is that the accused made the demand during the period of 25th October 2007 and 01st November 2007. However the witness Rakesh Prasad later said that the accused made the demand in September 2007 which does not fall within the period in the charge. Making the demand seems to be the main component in this offence. The prosecution has to clearly prove when the demand was exactly made. A demand is not made until it is communicated. It was held in Treacy V. DPP (1971) 1AllER 110 at 116 that if the demand is contained in a letter it is not made until the letter is received. It should be noted that the prosecution evidence was vague as to when the demand was communicated to the witness Rakesh Prasad.
    

Capable of being stolen

25. The prosecution has to prove that the thing so demanded is capable of being stolen. Section 258(1) 0f the penal code describes a thing capable of being stolen as;
    

" Every inanimate thing which has value and is the property of any person, and if adhering to the realty then after severance there from, is capable if being stolen."

26. The witness Rakesh Prasad said the accused demanded a part of the profit. Rakesh Prasad admitted during the cross examination that he had not made the profit at the time the accused asked for a half of the profit. It is clearly discernible that according to the prosecution evidence, when the alleged demand was made rakesh had not made his profit and it appears that its about a future profit which was not available at the time of the demand. It is very clear that the offence can only be committed with regard to a property capable of being stolen.
    
27. There is no question that money is a thing which is capable of being stolen. But the prosecution case is that the accused demanded half of the profit which is going to be made by Rakesh Prasad. It is crystal clear that at the time that the demand was made, there had not been any money which is capable of being stolen. There is a clear distinction between asking for 30 000 dollars cash and asking for half of the profit. The prosecution witness Rakesh Prakash at no time said that the accused just ask for 30 000 dollars. He only said that the accused asked for half of the profit of the contract which is 30 000 dollars as commission.
    
28. The witness Rakesh Prasad admitted that at the time the alleged demand was made that no profit was made. The prosecution did not lead evidence to prove that the accused made the demand after the profit was realized by Rakesh Kumar. Further I have considered the following two passages submitted by the defence in their written submissions from Rex v. Edwards and others;
    

" If a person with menaces demand money of another, and that other does not give it to him because it is not with him, this is a felony ....... But if the person demanding the money knows that the money is not then in the possession of the party, and only intends to obtain an order for the payment of it, it is otherwise."

" If a man with menaces demands a sum of money of another, and the person does not give it to him because he had it not with him, the offence is the same, but if it turns out, as in this case, that a sum of money, known to be not then in his possession, was demanded, the case is different."

29. I am of the view that a future profit which is not yet realized or made cannot be considered as a property capable of being stolen. Thus according to the evidence of this case I am not satisfied that the amount agreed by Rakesh Prasad to give the accused, in respect of which the offence is committed was a thing capable of being stolen according to the circumstances of this case.
    

Intent to steal

30. Section 259 of the Penal code reads as follows;
    

259.-(1) A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof:

Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner.

(2) (a) The expression "takes" includes obtaining the possession-

(i) by any trick;
(ii) by intimidation;
(iii) under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained; or

(iv) by finding, where at the time of the finding the finder believes that the owner can be discovered by taking reasonable steps.

(b) The expression "carries away" includes any removal of anything from the place which it occupies, but in the case of a thing attached, only if it has been completely detached.

(c) The expression "owner" includes any part owner, or person having possession or control of, or a special property in, anything capable of being stolen.

31. The demand must be accompanied both by menaces and by intent to steal. There is no intent to steal unless there is an intent to take without the true consent of the intended victim. On the other hand I am not satisfied that the evidence produced by the prosecution covers the elements of stealing to establish an intent to steal.
    

Conclusion

32. I have considered the evidence given by the accused as well. The accused totally denied the fact that he made such demands. Further he even denied that he received any money from Rakesh Prasad. Although the prosecution cross examined the accused extensively the accused constantly denied the allegations against him.
    
33. I am not satisfied that the prosecution has discharged its burden in proving all the elements of the offence against the accused. Thus I decide that the prosecution failed to prove the charge against the accused beyond reasonable doubt.
    
34. Accordingly I acquit the accused from the offence he is charged with.
    

28 days to appeal.

Rangajeeva Wimalsena
Resident Magistrate
Lautoka

19.11.2010