State v Yau [2014] FJMC 129; Criminal Case 73.2012 (30 July 2014)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 73/2012

BETWEEN

THE STATE

AND

PETER YAU

Prosecution: PC Paul Taitu, Police Prosecutor
Accused: In absentia represented by Mr Vakaloloma

Date of Judgment: 30.07.14

JUDGEMENT

The Accused has been charged with the following offences under the Crimes Decree 2009 No. 44 of 2009:

"Statement of Offence"

OBTAINING PROPERTY BY DECEPTION:

Contrary to Section 317 (1) (a) of the Crimes Decree No. 44 of 2009

Particulars of Offence

You, Peter Yau on the 28th day of July 2011 at Lautoka in the Western Division, by deception, dishonestly obtained 510kg of sea cucumber valued at $32,265.50 the properties of Fred Ho, with the intention of permanently depriving the said Min Hu.

THE LAW
Section 317of the Crimes Decree reads as follows;

317.—(1) A person commits a summary offence if he or she, by a deception, dishonestly obtains property belonging to another with the intention of permanently depriving the other of the property.

Penalty — Imprisonment for 10 years.

(2) for the purposes of this section (and for the purposes of the application of section 306 to this section), the person is taken to have obtained property if, and only if —

(a) the person obtains ownership, possession or control of it for himself or herself or for another person; or

(b) the person enables ownership, possession or control of it to be retained by himself or herself; or

(c) the person induces a third person to pass ownership, possession or control of it to another person; or

(d) the person induces a third person to enable another person to retain ownership, possession or control of it; or

(e) sub-section (7) or (8) applies.

According to section 316 in this Part

"Deception" means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and includes —

(a) a deception as to the intentions of the person using the deception or any other person;

In the case of State v Murti [2010] FJHC 498; HAC195.2010 (10 November 2010)

His Lordship Justice Gounder held that in case of obtaining property by deception prosecution has to prove following elements beyond reasonable doubt.

1. The accused,

2. By deception,

4. With the intention of permanently depr the ownerowner.

Accordingly in regards this case the elements that the prtion o prove are that that

[a] on 28.7.2011

[b] the accused

[c] by deception

[d] dishonestly obtained property of510kg of sea cucumber valued at USD 32 264.50 from the complainant

[e] With the intention of permanently depriving thplcomplainant who was the owner

According to section 57(1) of the Crimes Decree&#160onhe onus is in the prosecution to prove the aforesaid elements and in section 58 (1) particularly says that burden of provf saiments beyond reasonable doubt is also in the responsibility of the prosecution:- on:-

In Miller V Minister Of Pension [1947] 2 AER Lord Denning explained the 'pbeyonsonabsonable doubt'oubt' as 'That degree is well settled It need not reach certainty, but it must carry a high degree of probabi Proof beyond read reasonable doubt does not mean prooond t60;shadow of the& the #160;doubt.&#16 law woaw would fail to protect the community if it admitted fanciful possibes to deflect the course of justice. If . If the&#16denvidence is so strong against a man as to leave only a remote possibility s favwhichbe dismissed with the sentence "of cour;coitse it is possible ible but not in the&#160 least probable", th0;case iase is proved beyond reasonable doubt, but nothing short of that will suffice.

Therefore it should be noted that proving beyond reble dis somewhat proving not beyond all doubts but prot proving ving according to a reasonable prudent man think that the facts before couve been proved with no reas reasonable doubt.

Case for the prosecution
The PW1 gave the evidence and during her evidence following facts were elicited.

The witness is the wife of the complainant and they have been indulging in a business of exporting marine products. The name of their company is Best Sea Food. The said business was started in the year 2007 and the witness became the director of the company only on last year where the complainant had been the director from the beginning.

The witness said that in the year 2011 that they did a business with Mr. Peter Yau. By that time the witness was the Accountant of the company and also she did assist the complainant.

According to the witness about the business the discussions were done in the months of June and July of 2011 and as a result of the said discussion on 28.7.2011 510kg of sea cucumber valued at USD 32000 were export overseas on air freight. The airway bill was marked as PEX2 with no objections of the accused.

The witness stated as arranged the air bill was emailed to Mr Peter Yau expecting him to send the money to an account in China belonging to a cousin of the witness.

The witness said that accordingly they received a money transfer form from West pack bank of Australia indicating that the money has been deposited to the purported account. But the witness said that on a later occasioned they came to know that there was no such transfer of money from accused's account to their cousin's account.

Accordingly when the witness inquired from Mr Peter Yau about the money the witness said that the accused promised that he will transfer the money. But she stated that thereafter her company did not receive any correspondence from the accused. Then the witness said that she met Mr Peter Yauat the Fiji police station in year 2012.

The witness explaining the contents of EX2 stated that the document clearly shows that her company had sent a 510 kg sea cucumber Western trading Ltd in Hong Kong. The reason for them to do the consignment to that company according to the witness is the representations made by the accused. Since the accused requested that the goods to be sent to Western trading Ltd in Hong Kong the witness said that they did the air freight.

In addition to that during her evidence in chief the money transfer form of West pack was marked as PEX1 with no objection of the defense.

At the cross examination the witness stated that although she was not the director in 2011 she assisted her husband. She did not lodge the complaint and that was her husband. In PEX2 although it was not addressed that the goods were sent to Mr Peter Yau, the witness stated that the company mentioned in PEX2was given by the accused to deliver the goods. The witness admitted that she knew that the accused is an Australian citizen and they never sent any products to Australia. And finally she stated that although the said business was arranged by her husband with the accused she also was aware of it.

At the re-examination the witness reiterated that name of the consignment company was given by the accused. The money transfer form marked as PEX1 was from the accused. And when the witness inquired with the bank whether they have received money according to PEX1 that the witness was informed by the bank that there was no such money transfer the witness's account.

After the evidence of PW2 the prosecution then called the investigating officer who is one CPL Sharoon.

According to his evidence he has initiated an investigation upon receipt of a complaint from one Fred Ho. The witness said that accordingly he arrested the accused in Nadi and conducted his caution interview on 11.2.2012 at the Lautoka police station. According to the witness the interview was conducted after explaining all his rights to the accused. Accordingly that interview was marked as PEX3 with no objections of the accused.

At the cross examination the witness admitted that he record the statement of complainant. And further he stated that he uplifted EX2 from the complainant. According to PEX2 the witness admitted that Best Sea Food has sent the goods to Western Trading Ltd. And he stated that although the accused did not physically received the goods he engaged his agent to receive the goods.

After the aforesaid evidence the prosecution then closed their case by marking documents PEX1-3.

Then the counsel for the accused made submissions on no case to answer on the grounds;

1. That the complainant was not present.

2. The evidence of prosecution witness no: 1 is amount to hearsay.

The court refusing the said submissions by the order dated 07.03.2014 called the defense in terms of section 179 of the Criminal Procedure Decree.

Then the counsel for the accused requested from court that the accused to be summoned to give evidence as per his instructions.

The accused appeared before this court on 05.05.2014 although the entire proceeding were taken absentia. Accordingly he gave evidence under oath.

The contents of his evidence in chief are as follows;

He admitted that he spoke to the complainant in the year 2011. Although he did not meet the complainant personally he arranged the complainant's sea cucumber fish to be sold to a friend in China. The accused said that the said products never came to Australia but were received to Hong Kong. He had never met anyone from the complainant's company and contacted only over the phone. Further the accused said that he only made arrangements to buy and cell.

In his cross examination following evidence was elicited;

The accused also was engaged in dry sea cucumber business. His company is Windser Food situated in Australia. He has run the company for the past 10 years and he had not done any dealing with Fiji. The accused stated that he had got contacts with the complainant and his instructions to the Agent were that the complainant will sell fish to the Agent. The accused confirmed that the Agent received goods from the complainant and the accused had done business with the Agent for more than 5 years. The accused further admitted that the consignment was 510kg and the accused said that the agent told him that the products were not in good condition and when he inquired that from the complainant the complainant told him that the product was good.

The accused admitted that he was interviewed under caution on 11.2.2012 and confirmed the signature in PEX3 as the accused's signature. But the accused alleged that he was threatened to give the statement. According to question 77 of the interview the accused stated that he received money from the agent to his account. Thereafter he cannot recollect as to what happened.

After the aforesaid evidence the defense closed their case.

Analysis.
In this case as stated above it is incumbent that the prosecution has to prove the following ingredients beyond reasonable doubt against the accused. Those are that;

[a] on 28.7.2011

[b] the accused

[c] by deception

[d] dishonestly obtained property 510kg of sea cucumber valued at USD 32 264.50 from the complainant

[e] With the intention of permly depriving the complcomplainant who was the owner.

In proving the aforesaid elements at the outset the trail was taken in absentia on an applicati the prosecution with no objections of the counsel for the the accused based on the accused's medical grounds. Once the trial was allowed in absentia the next application by the prosecution was that the charge to be amended due to non-availability of the complainant including the present Director of the complainant's company who is the wife of the complainant.

To this application the counsel for the accused objected on the basis that the statement of the wife of complainant was just recorded two weeks before the hearing and if the amendment is allowed that will be a great prejudice to the accused.

The court up holding the objections of the accused the amendment was not allowed on the basis that in terms of section 182 [2] of the Criminal Procedure Decree it stipulated in section that the court has to record afresh plea of the accused to the alter charge. Since the matter was fixed to be heard in absentia and there is no possibility of accused's presence complying to section 182[2] the application by the prosecution was accordingly refused.

But court allowed calling the wife of the complainant as a witness to their case as there is no provision preventing the prosecution to call her as witness provided that the court will test the credibility and the admissibility of her testimony at the end of the trial.

Accordingly prosecution led her evidence in order to submit following evidence before the court. On 28.7.2010 the complainant did a 510kg of sea cucumber consignment to a company situated in Hong Kong by the name of Western Trading Limited. The consignment was done on the representation made to their company by the accused. The conditions were that the after consignment the bill will be emailed to the accused and the accused will make the arrangements to send money to the account provided by the complainant. The said delivery was done as a result of representations made by the accused to their company and the expect amount to be received by the business according to the witness was around USD 32 000. Consequent to aforesaid delivery the company received a money transfer form from the accused intending that the money was transferred to the account provide by the witness but then later realized that there was no such money was transferred to the account given by the witness from the accused's account.

In the written submissions the accused counsel submitted that the aforesaid evidence should be disallowed on the ground of hearsay. But in his submissions in paragraph 3.4 doses not describe on what basis the counsel urged that the aforesaid evidence to be treated as hearsay.

When the witness was giving evidence she confirmed that she was the accountant of the company and also assisted the complainant during the period of the transaction, when the witness submitted the prosecution exhibit 2 from her knowledge being in the company the accused did not object.

And also when looking at the line of cross examination the accused had never disputed the aforesaid positions taken by the witness. And also the accused was on the position that the witness knew about the deal. It is substantiate from the following questions at the cross examination.

Q The agreement is between you and Yau?

A Yes.

Q Only you knew that you sent product to Hong Kong

A Yes.

Q When your husband made the arrangement did you know what the arrangement was?

A Yes

Q All what you know is once the product sent you were never paid

A Yes

Therefore it is incumbent that the accused also has put the question to witness at the footing that the witness was aware about the transaction. Therefore if the accused is not disputing a vital point at the given opportunity in the cross examination the conclusion that the court can arrived is that the accused is also not disputing that vital point which amounts and admitted facts by the accused. Therefore court has to refuse the submission by the accused that the evidence by the witness is amount to hearsay on the aforesaid grounds. Hence this court is of the opinion that the evidence by aforesaid witness is admissible and relevant despite the credibility of her evidence will be dealt forthwith.

With the forgoing findings it is incumbent that the prosecution was able to submit following evidence before this court.

1. On 28.7.2011 that there was 510kg of sea cucumber valued at USD 32 264.50 2.
   
2. Consignment was done to Western Trading Limited in Hong Kong from Best Sea Food Company in Lautoka
   
3. And that delivery was done on representation made by the accused to the witness's company.
   
4. And as a result of that consignment the witness did not received money as promised by the accused.
   

When looking at the evidence of the accused it is palpable that the accused also did not dispute the 1-4 grounds as he also admitted that he worked as an Agent Western Trading Limited. And he knew that the products were delivered to Hong Kong. And he worked only as an agent to facilitate to buy and sell and he did not receive any payment.

Therefore the only issues that the court has to look for whether the accused

1. By deception
   
2. Dishonestly obtained property 510kg of sea cucumber valued at USD 32 264.50 from the complainant
   
3. With the intention of permanently depriving tmplcomplainant who was the owner
   

According to section 316 "Deception" means an intentional or reckless deception, whether by words or otheduct,whether as to fact or as to law, and includes &#8s — 212;

(a) a deception as to the intentions of the person using the deception or any other person;

Therefore at this point the court has to see from the evidence by the prosecution whether the prosecution was able to adduce any admissible evidence to show the deceptive conduct of the accused that he had the intention of not meeting the conditions discussed by the complainant after the consignment.

The evidence by the first witness is that after the goods were delivered they emailed the air bill to the accused in order to obtain the payment. As a result of that the witness further stated that they received a transfer form to the effect that money was sent to the account given by the witness by the accused from his account at the Westpac bank in Australia. The court observed the contents of the said documents the evidence of the witness consists with the contents of the document. But when look at the cross examination of the accused the accused never disputed the contents nor the evidence of the witness relating to the documents. Thereby the only conclusion that the court has to arrive at this premise is also that the accused did not contest the vital issue as amounts to admissions by the accused.

Therefore as claimed by the first witness if her company did not receive money as sent by the accused in PEX1 now the court is left to decide whether the accused

1. Dishonestly obtained property 510kg of sea cucumber valued at USD 32 264.50 from the complainant.
   
2. With the intention of permanently ving the complaomplainant.
   

There is no evidence before this court by the prosecution that the accused obtained the 510kg of sea cucumber from the complainant.

But in regards to a person is taken to have obtained property covers a situation that a person obtained that property in order to pass ownership, possession or control of it to another person according to the definition of section 317 of the crimes decree.

Therefore although there is no evidence that the consignment was not done to the accused now the court has to see whether the conduct of the accused was led the complaint to deliver the property to another person.

In regards to the this position there is no dispute from the accused he admitted that in his evidence he arranged the complainant to send the product to Honk Kong and worked as an Agent to that deal. He further admitted in his evidence that confirmed receiving good to the dealer in Hong Kong.

At the cross examination the accused admitted as follows;

Q Did the Agent received good from Fred Ho?

A Yes.

Q Consignment was 510kg?

A Yes.

Q What was the arrangement with the agent after receiving product?

A He told the product was not good I told Mr Hu.

From the forgoing evidence therefore it is evident that the prosecution beyond reasonable doubt has proved that as a result of the representation made by the accused the complaint had consigned the product in question in order to receive to a third party.

Therefore now the only question left before this court to decide whether the said good was obtained dishonestly with the intention of permanently deng the complaomplainant.

In order to prove that element the prosecution adduced following material evidence. Those were evidence of the first witned the caution interview of the accused.

The evie evidence of the first witness is clear that they did not receive money as promise by the accused. In her evidence in chief the witness said that when she cross check with the accused the accused had told that he will send money. At the cross examination the accused did not dispute this situation which was total contrary to his evidence. His position was that he did not receive any money but he only work as a facilitator.

But this was totally contradictory to the answer he provided at the caution interview. At the caution interview the accused admitted to the following evidence; That he arranged the consignment with the complainant to Hong Kong. The condition was that once the accused received the production in Hon Kong that he should pay USD 32 264.50 to the complainant by transferring that amount to the account given in China. The accused knew that he did not have that money to pay the complainant when the arrangement was made. Accordingly after the accused confirmed that the consignment was received to his agent the accused said that he prepared a false Westpac money transfer form showing that the accused sent USD 32 264.50 to the complainant. And according to the accused the whole purpose of preparing the document was to fraud the complainant then he took steps to forward the same. But the accused said that on later occasion the complainant was aware that the send documents were false and thereby he emailed the complainant that he would pay the money. And then he later told the complainant that the product was not in good condition.

However the accused said that from his agent he received money for his account in Australia as a payment after selling the product sent by the complainant. The accused admitted that without sending that money he utilized that money for his own use. The aforesaid situation is extracted from his interview as follows:

Q.26 What was the name of the account of your company to which payments were done by the Huug Siug Company?

A. WInstor Foods Trading.

Q.64 What arrangement did you have with this Fred Ho about the said 510 kg of sea cucumber?

A. I asked my Fred Ho to send the said 510kg of sea cucumber to Hong Kong to one of my agent one Mr Chen.

Q. 65 What else was the arrangement?

A. That once I receive the products in Hong Kong that I was supposed to pay this Fred Ho $32,264.50 by transferring this $32,264.50 in his China Account.

Q. 66 When did you inform this Fred Ho before receiving the said 510kg of sea cucumber that you did not have the money for the payment?

A. No I lied to him.

Q. 67 Why didn't you inform this Fred Ho that you didn't have any money to pay for the said 510kg sea cucumber before you made a deal with this Fred Ho?

A. If he knew this than he wouldn't have sent the sea cucumbers to me.

Q. 68 Did you have the intention to defraud this Fred Ho before hand when you ordered the said 510kg of sea cucumbers to be sent to Hong Kong to your agent?

A. I just wanted to sell the said sea cucumbers than send the money to this Fred Ho.

Q. 69 What did you do when you said agent received the said 510kg of sea cucumbers from Fred Ho?

A. On the next day after being informed of the said delivery by my agent I on 28/07/11 made a false Westpac overseas payment receipt using my laptop at home showing that I sent the $32,264.50 as payment of Fred Ho to his Chinese Bank which he gave to me.

Q. 70 What are the details in this document which are falsely done by you?

A. This whole document is false and this was made by me at home using my computer to mislead Fred Ho as I also emailed this false Westpac Overseas receipts to Mr Fred Ho to confirm the payment of $32,264.50 but infact this was false.

Q. 71 Who prepared this false Westpac Overseas payment receipt?

A. I did.

Q. 73 Did Fred Ho come to know later that the said Westpac Bank Overseas payment receipt was false and made by you?

A. Yes then he rang me and I told that the money should be in his China bank account in a few days but than again I emailed to Fred Ho stating that I would pay him later.

Q. 78 What did you do with this said money which the said Mr Chen sent to you after selling Fred Ho's 510kg of sea cucumber?

A. I used the money to buy food and pay bills.

Q. 79 Did you send any money back to Fred Ho for his 510kg sea cucumber?

A. No.

This portion of evidence was only contested by the accused on the ground that his caution interview was obtained by threatened. But when the second prosecution witness gave evidence in regards to conducting of the caution interview the accused never challenged the voluntariness of the confession. The witness was never cross examined to the effect that the interview was conducted involuntarily or oppressively. There is no evidence in against accused upon which the court has to come to the finding that the admissions in the cautioned-interview statement were obtained through violence, oppression, threats, promises or such other improper inducements. This court, in the circumstances, inclined to take the view that the statement was not procured by assault and/or by threat of such assault or by means of oppression. Therefore this court admitted that the contents of the caution interview are as admissible evidence against the accused.

Accordingly this court find that the evidence by the first witness is cogent reliable and worthy of credit. In regards to the evidence given by the accused this court observed that that accused had placed contradictory position in regards to his defense. His demeanor and the deportment is also unworthy of credit. The evidence by the first prosecution witness totally corroborates with the contents of the caution interview given by the accused. According to his Lordship justice Gounder in the case of State v Murti [2010] FJHC 498; HAC195.2010 (10 November 2010) it is held that
'Corroboration means some independent testimony which affects the accused by connecting him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only that the crime has been committed, but also the accused committed it'.
Thus with the forgoing ventures this court is satisfied that the prosecution was able to prove all the aforesaid elements against the accused beyond reasonable doubt. Hence this court finds the accused guilty to the charge and he is convicted for committing offence of obtaining property by deception contrary to section 317(1) of the Crimes Decree No. 44 of 2009.

LakminiGirihagama
Resident Magistrate

30th July 2014