State v Prasad [2012] FJMC 31; Criminal Case 2074.2007 (9 March 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Criminal Case No: - 2074/2007

STATE

V

RONIL RITHESH PRASAD
SATHAN SINGH

For Prosecution: - Mrs. Jayneeta Prasad
1st Accused Person: - In person,
2nd Accused Person: - Mr. Shah

JUDGMENT

1. The two accused persons Mr. Ronil Ritesh Prasad and Mr. Satnam Singh were charged with the offence of “Selling Passport for Personation” contrary to section 372 of the Penal Code Act 17. . The particulars of the offence are that,
   

Ronil Ritesh Prasad and Satnam Singh between January 2006 and June 2006 at Suva in the Central Division sold Passport number 5484300 to Neel Kamal with intent that the said Neel Kamal may represent himself to be Ronil Ritesh Prasad.

2. Both accused persons pleaded not guilty for this offence, wherefore, the case was set down for hearing. During the hearing the Prosecution called eight witnesses and marked 8 documents as prosecution’s exhibits. The first accused person gave evidence on oaths but did not call any witnesses for his defence. The second accused person opted not to give evidence on oaths and neither did call any witnesses for his defence. At the conclusion of the hearing, the Prosecution and the Defence were invited to file their respective closing submissions. Accordingly, the prosecution and the second accused person filed their respective closing submissions but the first accused person opted not to file any. Having considered the evidence presented by the prosecution and the defence and their respective written submissions, I now proceed to pronounce the judgment of this case as follows.
   
3. Section 372 of the Penal Code Act stipulates that “
   

“Any person who, being a person to whom any document has been issued by lawful authority whereby he is certified to be a person possessed of any qualification recognized by law for any purpose, or to be the holder of any office or to be entitled to exercise any profession, trade or business, or to be entitled to any right or privilege, or to enjoy any rank or status, sells, gives or lends the document to another person with intent that that other person may represent himself to be the person named therein, is guilty of a misdemeanor”

4. In view of the section 372 of the Penal Code Act, , the main elements of the offence of “ selling passport for personation” are
   
   1. Any Person
      
   2. who being a person to whom any document has been issued by lawful authority,
      
   3. whereby he is certified to be a person possessed of any qualification recognized by law for any purpose, or to be the holder of any office or to be entitled to exercise any profession, trade or business, or to be entitled to any right or privilege, or to enjoy any rank or status,
      
   4. Sells, gives or lends the document to another person,
      
   5. With intent that other person may represent himself to be the person named therein,
      
5. Bearing in mind the main elements of the offence of “Selling passport for Personation”, I now turn to briefly review the evidence of the prosecution and the defence.
   
6. The prosecution alleges that the first accused person sold his passport number 544300 to the second accused person for $50 and then the second accused person sold the same to Mr.Neel Kamal for $9000 with visa to Japan for him to represent himself as first accused person and travel to Japan.
   
7. Neel Kamal, who is an Indian national, is the first prosecution witness. He gave evidence that he came to Fiji to attend the wedding of Baljindar Singh in September 2005. He stayed with Baljindar in Tailevu. After the wedding took place the witness came to Suva and met Satnam Singh, the second accused. After meeting with Satnam Singh, Mr Neel Kamal gave Satnam Singh his cell phone number and returned to Tailevu. Mr Neel Kamal received a phone call from Satnam Singh later and he came to Suva and was taken by Satnam Singh to his home in 85 Kaunitoni Street. The witness stayed for a week at Satnam Singh’s residence. At Satnam Singh’s residence, the witness was told by Satnam Singh that he sends people abroad and that he helps in providing visa and then sending people abroad. Subsequently, the witness was shown a room where passports were kept and observed that they were passports from many countries. The witness was then asked by Satnam Singh to give his passport so that he could provide the visa for him as well. The witness gave Satnam Singh the passport for Japanese visa. All the arrangements for the visa were done by Satnam Singh. Satnam Singh filled the visa form and signed the visa form as well. The witness gave Satnam Singh FJD$9000 and two passport size photos for the visa. This $9,000 were sent by his father through Western Union and the witness personally gave the money to Satnam Singh in the presence of his uncle. The witness was told that the visa will be given in his Indian passport by Satnam Singh. On 23rd June 2006 the witness was asked by Satnam Singh to come to Nausori Airport. At Nausori Airport Satnam Singh checked in the witness and gave him his ticket and a passport. This passport was a blue Fijian Passport. The passport contained the witness’s photo and he did not know whose signature was on the passport. This passport was shown to the witness who identified it as the same passport that he was given at Nausori Airport (PE7). The witness protested and asked for his money and Indian Passport back from Satnam Singh. Satnam Singh refused and told the witness that the visa was granted and for him to travel out. The witness boarded a flight to New Zealand and from there he travelled to Narita, Japan. In Japan the witness went through immigration and the witness was told that the photo was exchanged in the passport. The witness was detained and while in Japan he called Satnam Singh and upon questioning Satnam Singh admitted that he had changed the photograph. The witness was sent back to Fiji by Japanese Immigration. When the witness arrived in Fiji he met with Immigration staff in Nadi and they told him that his name was no longer in their system. The witness called Satnam Singh from Nadi Airport and told him about this. The witness further told the Immigration Staff at Nadi that his name was Neel Kamal and he came from India. The witness was then brought to Suva and questioned and brought to Court. The witness was bound over for 2 years as his penalty.
   
8. Venaisi Tamani, who is a visa consultant with Pan Pacific Tours is the second prosecution witness. Her responsibilities as a visa consultant are to fill visa application forms for various embassies. She has been working with Pan Pacific Tours for over 7 years. She received visa applications from Satnam Singh, the 2nd accused, for visitors visa application for Japan. The visas were for Om Prakash and Ronil Ritesh. Ronil Ritesh’s form was partially filled so she had to complete it. A passport was attached to the visa application form and she identified PE 7 as the same passport that was attached. After filing the form she lodged the application with Japanese Embassy. The visa application fee was $45 and $40 was the consultancy fee. The visa for Ronil Ritesh was approved. After the visa was granted the witness called Satnam Singh and told him to come and get the passport. Satnam Singh came alone to get the passport. Pan Pacific Tours also assisted Satnam Singh in making reservations for Japan.
   
9. Pene Suliano who is an immigration officer with the Fiji Immigration for 20 years is the third Prosecution witness. He received advised from Air Pacific about a deportee from Port of Narita while he was on the midnight shift on 27th June 2006. Following normal procedures he received the deportee whose name he later came to know as Neel Kamal. The deportee was sent back with a photocopy of the passport and the name in the passport was Ronil Ritesh and the Number was 584300. The photo in this photocopy was of Neel Kamal. The witness made a report of this matter on 27/6/06. He made this report with the help of Mohammed Shameem (prosecution witness 5) who interpreted Neel Kamal’s conversation with the witness. This report was tendered as PE 1.
   
10. Talei Yabakivou who is an immigration office with the Fiji Immigration is the fourth prosecution witness. She received a deportee from Pene Suliano (Prosecution witness3) on 28th June 2006. She was instructed to hand this deportee, Neel Kamal to a Police Officer. The police officer came and took Neel Kamal.
    
11. Mohammed Shameem who is also an immigration officer is the fifth prosecution witness. He was on midnight shift on 27th June 2006. He was informed by Air Terminal Services and Air Pacific representative about a deportee from Narita Japan. The chief purser of the aircraft handed him an envelope containing a covering letter and a copy of the passport no. 584300. The passport contained the name of Ronil Ritesh. The witness interviewed the deportee who gave his name as Neel Kamal. The picture in the copy of the passport was that of Neel Kamal. The witness interviewed the deportee, Neel Kamal with Pene (Prosecution witness 3) and Mr Dass. A report was made of this interview in the shift supervisors’ diary on 27th June 2006 and this was produced as PE 2 and PE2A. The witness confirmed that the notice of deportation he received from Japan in the envelope contained two names of the deportee, that of Neela Singh and Ronil Ritesh Prasad.
    
12. D/CPL Rinesh Prasad, who is the charging officer of Satnam Singh and caution interviewing officer of Ronil Prasad is the sixth prosecution witness. He read out the caution interview of accused 1 and charge statement of accused 2 in court. These were marked PE 3 and PE 4 respectively.
    
13. D/SGT Rajesh Kumar, who is the initial investigating officer is the seventh prosecution witness. He escorted Neel Kamal from Namaka Police Station to Central Police Station. He uplifted the travel document that was in possession of Neel Kamal. He uplifted passport application form for passport number 584300 for Ronil Ritesh Prasad (PE 5). He also tendered the charge statement of accused one (PE 6).
    
14. ASP Munsami, is the eight prosecution witness was the caution interviewing officer of the second accused and the current investigating officer. He uplifted the passport no.584300 from Fiji Immigration Department. This passport was received by Fiji Immigration from the Japanese Embassy which had received the passport from Japanese Immigration. It was tendered as PE 7.
    
15. In contrast to the prosecution version, the 1st accused person denied selling his passport but admits that he gave to the second accused person his passport as a security and as an instrument for identification for a loan of $50 which he borrowed from the second accused person. Second accused person did not give any evidence but vehemently denied the allegation.
    
16. The learned counsel of the prosecution urged in her written closing submission that all the essential elements of the offence have being proved beyond reasonable doubt by the prosecution witnesses. The learned counsel submitted that the prosecution relies on the principle of joint enterprise under section 22 of the Penal Code and the evidences presented by the prosecution have successfully established the same.
    
17. The learned counsel for the second accused person submitted in his closing submission that the prosecution has failed to make a case beyond reasonable doubt against the 2nd accused person. The leaned defense counsel extensively discussed the evidence presented by the prosecution and urged the evidence of prosecution are unreliable and discredited.
    
18. In view of the evidences presented during the hearing of this case, I find that the main issues to be determine in this case are,
    
    1. Whether the two accused persons acted in joint enterprise in committing this offence?
       
    2. To whom this alleged passport No 544300 is issued by the lawful authority?
       
    3. Whether the two accused persons sold, gave or lent the said passport to Mr. Neel Kamal?
       
    4. Did they have the knowledge that Mr. Neel Kamal may represent himself to be person name therein?
       
19. Before I proceed with analyzing the evidence of this case, I draw my attention to the contention of the defense which was emphasized in the defense closing submissions. The learned counsel of the second accused person contended in his closing submission that the prosecution failed to produce the passport No 5484300 and the passport which the prosecution produced as prosecution exhibit 7 is bearing the No 544300 not the number No 5484300. The particulars of the offence in the charge sheet stated that the number of the passport is 5484300 which I consider as a typing error or oversight of the prosecution. The defense did not make any objection that they were served the copy of the passport No 5484300 and not the passport No 544300 as disclosures. Throughout the hearing the prosecution relies on the passport No 544300 and all the evidence the prosecution presented in the hearing were pertaining to the passport Nu 544300. Wherefore, I am inclined to hold that the mention of passport No 5484300 on the charge sheet instead of 544300 is a curable mistake and the accused persons were not misled with their defenses. Accordingly I disregard the said contention of the learned counsel for the 2nd accused person.
    
20. Having dealt with the defense contention on the issue of the wrong passport number, I now turn to analyze the evidence presented by the prosecution and the defense.
    
21. The first issue which I have to determine in this case is that whether the two accused persons acted in joint enterprise to commit this offence. In view of this issue, it is noteworthy to briefly discuss the laws pertaining to the principle of joint enterprise.
    
22. Section 46 of the Crime Decree deals with the principle of Joint enterprise where it stipulates that “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence”.
    
23. The law of joint enterprise is clearly discussed by Her Ladyship Justice Shameem in &#822te v Nute <160; (2008) FJHC 325;HAC139.2007 (26 November 2008), where Justice Shameem held that " the law is that when two or more persons form a common intention to prosecute an unl purin cotion wion with onth one another and while committing that uhat unlawful act, another offence is committed which is a probable consequence of that first purpose, then each of the persons involved is guilty of the final offence".
    
24. In line with the section 46 of the Crimes Decree he above judicial precedents, the prosecution need beyond reasonable doubt that,
    
    1. The two accused persons had formed a common intention to sell, gives or lend the passport of the first accused person to another with intend that other person may represent himself to be the first accused person,
       
    2. They prosecuted such purpose, and
       
    3. This alleged offence of "selling passport for Personation" was the probable consequence of such purpose.
       
25. I first deal with the issue of truthfulness of the caution interview of the first accused person which the prosecution tendered as PE3. The first accused person stated in his evidence that apart from the word of "sold' everything in his caution interview is correct. At this point I consider the fact that the first accused person did not raise any objection to the admissibility of his caution interview until he gave evidence for the defense. He was represented by a lawyer throughout the voir dire hearing of the second accused person and to half way of the substantive hearing. Bearing in mind that fact, I will now examine the credibility and reliability of his evidence.
    
26. The first accused person identifies the Passport No 544300 which is the prosecution exhibit 7 as his own passport and admits that he handed it to the second accused person. He further admits that when he gave the second accused person his photograph was in the passport. He claims in his evidence that he gave the passport as a security and as an instrument for identification for the loan that he obtain from the second accused person.
    
27. The prosecution extensively cross examined him on this contention and he admits the second accused person was his neighbor and he is known to him very well. I do not find any reasonable reason why the first accused person gave his passport as a security and as an instrument for identification when the second accused person knows him very well as a neighbor. Moreover, the first accused person made no effort to report to the police when he found that the second accused person gone missing with his passport. He admits that he went on to report to the police in an earlier occasion when he misplaced his passport. In view of these reasons, I am inclined to disbelieve the contention of the second accused person that he kept his passport with the second accused person as a security and as an instrument for identification for a loan of $50. I accordingly accept the truthfulness of the caution interview the first accused person in which he confessed that he sold his passport to the second accused person.
    
28. Furthermore, the first accused person admits in his evidence that he knows the passports are used to travel outside the county. He admits apart from that there is no need of passport to a person. With that portion of evidence that the first accused person admits in his evidence that he had a knowledge that a passport is needed to travel outside the country.
    
29. At this point I turn my attention to section 14 of the Crimes Decree where is stipulates, that "In order for a person to be found guilty of committing an offence the following must be proved –
    

the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;

(b) in respf each such phys physical et for which a fault elementement is required, one of the fault elements for the physical element.

30. The fault element is defined under section 18 of the crimes decree where it states that "A fault element for a particular physical element may be intention, knowledge, recklessness or negligence".
    
31. The fault element in this offence of "selling of Passport for Personation" is that the accused person's intention that the person to whom the accused sold, gave or lent the document, he may represent himself to be the person named therein.
    
32. I now draw my attention to the evidence of Mr. Neel Kamal. His evidence is consistence and he precisely explained the events which lead from the time he met second accused person up to the time of his return from Japan upon his deportation. Mr. Neel Kamal was consistence and maintain his position though he was extensively cross examined by the counsel of the second accused person.
    
33. Neel Kamal testified in his evidence that he gave the second accused person 9000 Fiji Dollars together with his Indian passport for him to arrange visa to travel Japan. According to the evidence of Mr. Kamal, the second accused person then gave him this alleged passport which is prosecution exhibit 7 for him to travel to Japan at the Nasouri air port.
    
34. In view of the evidence of Neel Kamal, the prosecution established that he wanted to travel Japan and he gave 9000 Fijian Dollars to the second accused person together with his passport for him to arrange visa for him to travel. The second accused person subsequently handed the PW1 with this alleged passport with a tourist visa to Japan and transit visa to New Zealand.
    
35. The second prosecution witness Mrs. Venaisi Tamani who is a visa consultant at the Pan Pacific Tours gave evidence in which she stated that she received visa applications from the second accused person for visitors' visa for Japan. One of these two applications was Ronil Ritesh Prasad. Mrs. Venaisi positively identifies the prosecution exhibit 7 which is this passport in question as one of the passports that second accused forwarded with these two visa applications. Further she stated that she knows the accused person for more than three years as a travel agent who usually comes to her office for visa application matters.
    
36. According to the evidence of Mrs. Venaisi, the prosecution established that the second accused person was in possession of this alleged passport and handed it over to the second prosecution witness Mrs. Venaisi . Furthermore, it was established that the second accused person paid the service fees together with the visa fees for this passport in question. The page seven of this alleged passport contains the visa of Ronil Rithesh Prasad with the photo of Mr. Neel Kamal which establishes that the photo of first accused person was removed and the photo of Mr.Kamal was inserted at the time the second accused person handed it over to Mrs. Tamani.
    
37. Detective Sergeant Rajesh Kumar who is the initial investigation officer in this case gave evidence as seventh prosecution witness. In his evidence Sergeant Kumar stated that he uplifted the original passport application form of the first accused person from the Fiji immigration department and tendered the said original passport application form as prosecution exhibit 5. The details of the original passport application of the first accused person precisely match with the details in this alleged passport which establishes this alleged passport was originally issued to the first accused person.
    
38. The learned counsel of the second accused person extensively cross examined Mr. Neel Kamal about the payment of $9000 and contended in his closing submission that despite Mr. Kamal's oral evidence, the prosecution failed to produce any documentary evidence to prove that Mr. Neel Kamal paid the second accused such amount of money .
    
39. Indeed the prosecution did not produce any documentary evidence to satisfy the court that Mr. Neel Kamal's father sent this money through Western Union and he then paid the Second accused person.
    
40. Generally the court requires evidence to be led before it believes in the existence of a fact. However there are some exceptions to this establish principle which could be found in the common law jurisdictions. "A one exception is that a presumption arises where from the proof of some fact the existence of another fact may naturally be inferred without proof from the mere probability of its having occurred. The facts thus inferred to have occurred is said to be presumed, is taken for granted until the contrary is proved by the opposite party". (Archbold, 2009, para 10-1, pg 1381). When there are no positive testimonies of eye witnesses or by conclusive documents the courts are permitted to infer from the facts proved other facts necessary to complete the elements of guilt or establish innocence".
    
41. The test of inferring a fact from the proof of some fact was discussed by Lord Normand in Teper v R ( 1952)A.C.480 at 489), where Lord Normand held that " it must always narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of the accused being guilty from circumstantial evidence to be sure that there is no other co – existing circumstances which would weaken or destroy the inference".
    
42. This legal position was discussed by Her Ladyship Justice Shameem in Lepani Varani v State (2006) HAA 149/05S, 3 March 2006) where Shameem j held that "It is prudent to examine and analysis whether there are any other possible hypothesis consistence with the innocent of the accused other than the prosecution version of the facts according to the evidence adduced by the prosecution".
    
43. In line with above mentioned judicial precedents the prosecution has established that the second accused person was in possession of this allege passport with the photograph of Mr. Kamal and handed it over to the PW2 for apply for visa to Japan. In accordance with the evidence of PW2, the second accused paid all the fees for visa process in respect of the visa on this allege passport. Apart from that the second accused gave Mr.Neel Kamal this alleged passport with visa to Japan at the Nasouri Air Port. Moreover the prosecution established that this alleged passport was issued on the first accused person by the Immigration Department. In addition the prosecution established that the first accused person had knowledge that the passport is a basic requirement to travel overseas and the second accused person is a travel agent.
    
44. In line with these established facts, I am of the view that I can form an inference that the first and the second accused persons had formed a common intention to sell this alleged passport and executed that purpose by inserting the photograph of Mr. Neel Kamal in this alleged passport. The second accused person then obtained visa for Japan and sold it to Mr. Kamal for $9000. In the execution of this intended criminal purpose both of them had knowledge and intention that Mr. Kamal may represent himself to be the first accused person.
    
45. It is an established principle in common law that the inferred presumption of facts could be taken for granted until the contrary is proven by the opposite party. It is noteworthy to examine what kind of explanation should be offered by the accused persons to rebut the presumption against them. Lord Reading CJ in Abramovitch (1914) 84 L.J.K.B 397) held that "if an explanation has been given by the accused, then it is for the jury to say whether on the whole of the evidence they are satisfied that the accused is guilty. If the jury think that the explanation given may reasonably be true, although they are not convinced that it is true, the prisoner is entitle to be acquitted, inasmuch as the crown would then have failed to discharge the burden impose upon it by our law of satisfying the jury beyond reasonable doubt of the guilt of the accused. The onus of proof is never shifted in these cases; it always remains on the prosecution".
    
46. In view of Lord Readings findings in Abramovitch (supra) the test for rebut the inferred presumption of facts against the accused persons is to provide a reasonable explanation which may be true, but not an explanation to convince that it is true.
    
47. The first accused person admits in his evidence that he handed over to the second accused person his passport with his photograph in it as a security and as an instrument of identification for a loan of $ 50 that he obtained from the second accused person. But in his cross examination he admits that the second accused person is his neighbor and known to him very well. In such circumstance, I do not find any reasonable reason for giving his passport to a well known neighbor as a security and instrument of identification. Moreover the first accused person did not take any trouble to report the matter when he found the second accused person gone missing with his passport. In contrast to this behavior of the first accused person on this particular instance, he went on and reported to the police when he misplaced his passport in an earlier occasion. The second accused person opted not to give evidence wherefore he did not provide any explanation. In view of these reasons, I am of the view that the two accused persons have failed to give a reasonable explanation to rebut the abovementioned inferred presumption of facts against these two accused persons.
    
48. In view of the reasons set out in foregoing paragraphs, I conclude that the prosecution has successfully proved all the essential elements of this charge against the two accused persons beyond reasonable doubt.
    
49. Accordingly, I hold that the two accused persons are guilty for the offence of "Selling Passport for Personation' contrary to section 372 of the Penal Code Act 17 and convict them for the same.
    

On this 9th day of March 2012.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.