Jass v Reginam [1977] FJSC 86; Criminal Appeal 086 of 1977 (7 October 1977)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Appeal No. 86 of 1977

RAM JASS
s/o Suruj Bari
Appellant

v.

REGINAM
Respondent

JUDGMENT

On 28th June 1977 the appellant was convicted by the Magistrates Court Suva of personating a Public Officer contrary to section 107(b) of the Penal Code and was sentenced to 12 months' imprisonment. In addition a suspended sentence of 27 months imprisonment imposed on him on 22nd July 1976 was also activated. He was acquitted on an additional count charging him with larceny.

The appellant appeals against his conviction and sentence.

Learned Counsel has urged altogether twenty-eight grounds in support of the appeal but as a large number of them overlap, he grouped several of them together for the purpose of argument. Briefly, the appellant complains that the learned Magistrate did not make any specific findings of fact, that the evidence adduced by the prosecution was unreliable and that, in any case, the evidence, such as there was, was not sufficient to make out the offence of personation. He also alleges that certain features of the trial amounted to an irregularity and, with regard to the sentence, urges this Court to hold that the activation of the suspended sentence was wrong in principle.

It was not in dispute that the appellant collected a carton of goods from a drapery shop in Waimanu Road, Suva for delivery at a shop called Sam's Fashion Wear at Lautoka. According to the owner of Sam's Fashion Wear these goods were never delivered. The learned Magistrate acquitted the appellant of larceny of these goods, described in the particulars as "lady's blouses", as he considered the prosecution evidence insufficient to establish the identity of the goods contained in the carton.

The count relating to larceny is not under consideration but, from the point of view of credibility to be attached to the appellant's own evidence, it is interesting to note that, while he successfully cross-examined the shopkeeper from whom he had collected the carton to show that he could not have known what was in it, the following appears in the record of the interview between Cpl. 842 Umesh and the appellant:

"Q Did you see what was in the carton?

A. Yes.

Q. Did you open it at any time?

A. No.

Q. What was inside the carton?

A. Some ladies clothes."

The appellant's evidence at the trial was that he collected the carton from Jamnadas, the owner of the drapery shop, on 14th August 1976 and delivered it at Sam's Fashion Wear at Lautoka at 5 p.m. on 16th August 1976.

The charge relating to personation arose in this way. According to the prosecution evidence, Bubhash Vagh, the owner of Sam's Fashion Wear received a telephone call to say that someone from the Special Branch Suva was coming to take a statement from him. Soon afterwards the appellant came to the shop and introduced himself as Ram Mahesh from Special Branch and said that he had come to investigate "the ladies tops" which had failed to arrive.

Vagh said in his evidence:-

"He then asked me to make a statement on a blank piece of paper stating that I didn't receive the goods from Veri Lal.

I gave him the statement and he then took out a blank invoice book asking me to sign. I refused to do so. The reason I gave was that I hadn't got anything from you why should I sign blank invoice book. Then he took out a delivery note which we normally sign. He asked me to sign it on the back.

I signed it. Then I turned delivery note round and took it off him and chased him out of my house.

The place I was staying is upstairs and I pushed him on the step downstairs. In the meantime I had taped conversation with accused. I then went and reported matter to the police.

He said that his Police Number was No. 19. I thought from his manner and appearance that he may be a cop. I seized the delivery note."

One Champak Lal who was with Vagh when the appellant arrived said:

"I was talking to 3PW outside his door when accused came up and said that he was CID from Suva - he said this to 3PW. I was just standing by.

He gave his No as 19 Mahesh. I was then returning back to my house."

Learned Counsel submits that the Learned Magistrate ought to have rejected the evidence of these two witnesses entirely because one of them stated that the appellant had said he was from the "Special Branch" and the other that he was from the C.I.D. I do not accepted. This undoubted discrepancy, like any discrepancy, had to be weighed against the rest of the evidence.

The appellant admitted going to Sam's Fashion Wear as alleged but said that he had gone there to ask why they were falsely alleging that the carton had not been delivered.

This encounter took place on 16th November 1976. It appears from the prosecution evidence that that was the first time Vagh or Champak Lal saw the appellant. The appellant had already been charged with larceny on 28th October 1976. On that day he had told Cpl. Umesh that he had delivered the carton at Sam's Fashion Wear and that they had given him a signed receipt for it but that he would not show or give it to the police as he did not trust them.

No receipt was produced at the trial and the prosecution evidence suggested that the incident of 16th November 1976 was an attempt by the appellant to obtain that every kind of evidence, that is, evidence of the receipt of the carton.

Learned Counsel submits that the prosecution ought to have produced the statement taken from Vagh by the appellant, and the delivery note signed by him. As for the statement, the evidence clearly suggests that it went into the appellant's possession after Vagh had sighted it. A copy of the delivery note which Vagh had snatched back from the appellant was in fact produced before the Court for inspection and marked M.F.12. It seems that its production as an exhibit was omitted through inadvertence.

In a criminal trial the prosecuting Counsel is the best judge of what evidence is relevant and necessary to his case. He is free to call what witnesses he chooses and produce what document he wishes. He must, however, be scrupulously fair and make available to the defence any evidence of any kind which may be likely to assist the accused.

The only relevant document which the prosecution had in their possession was the copy, the original having been lost, of the delivery note signed by Vagh on 16th November 1976, and this was produced. According to Vagh, he had never seen the appellant before that date and could not, therefore, have possessed any other receipt or any copy of such receipt.

There was some reference to the taping of some conversation between the appellant and Vagh. Admission of such evidence in a criminal trial produces all kinds of difficulty and is almost always vigorously objected to by the defence. In this case the appellant was unrepresented and any damaging evidence whose admissibility was questionable was, in my view, properly excluded by the prosecution. The appellant, of course, who free to call for it but he chose not to ask any question on the subject.

The learned Magistrate briefly summarised the evidence of Vagh and Champak Lal. He then summarised the appellant's evidence. He accepted the former and completely rejected the latter describing the appellant as a parson on whose testimony he could place no credence whatever.

It is true that the learned Magistrate did not make a specific finding in respect of each ingredient of the crimes but, while it may be desirable to do so, failure so to do is not fatal to the conviction. Nor is it necessary specifically to resolve every discrepancy in the evidence.

The appellant was charged under section 107 (b) which reads:

"107. Any person who -

(a) ...

(b) falsely represents himself to be a parson employed in the public service, and assumes to do any act or to attend in any place for the purpose of doing any act by virtue of such employment, is guilty of a misdemeanour, and is liable to imprisonment for three years."

There was no need for the learned Magistrate specifically to find whether the Appellant represented himself as a "Special Branch" or a "C.I.D.". man. Nor was it necessary for him specifically to find whether or not there was in fact a policemen No. 19 by the name of Ram Mahesh. The learned Magistrate's summary of Vagh's evidence and his acceptance of it makes it clear that he found it proved that the appellant had represented to Vagh that he was a policeman investigating the loss of the carton of goods that had failed to arrive from Suva. The appellant admittedly was not a policeman.

The false representation succeeded to a substantial extent but was eventually detected and he was expelled from Vagh's shop. The learned Magistrate was, therefore, entitled to find that the prosecution had proved the essential requirements of the case.

The appellant's appeal against conviction is dismissed.

As for the sentence of 12 mouths' imprisonment for the offence, the calculated effort on the part of the appellant to frustrate the course of justice justified the imposition of such a sentence. In view of the appellant's record it is neither wrong in principle nor excessive.

With regard to the activation of the suspended sentence, what was wrong in principle was the suspension of the sentence of 27 months' imprisonment imposed in the first trial on 22nd, July 1976. It should not have been suspended. Be it as it may, that matter is not for consideration in this appeal.

While considering the issue of activation all a Court has to do is to consider the case and deal with it in one of the several ways specified in section 28B of the Penal Code. It is a mandatory requirement, however, that it should activate the suspended sentence with the original term unaltered "unless the Court is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence". In this case the facts of the subsequent case were considered by the learned Magistrate and there was no suggestion, even at the hearing of this appeal, that any special circumstances had arisen since the hearing of the case in which the suspended sentence was passed.

The present case is one involving dishonesty and, even if it were not, there is no rigid principle requiring a court to activate a suspended sentence only where the subsequent offence is of the same or similar nature.

The appeal against sentence therefore, is also dismissed.

(G. Mishra)
Acting Chief Justice

Suva
7th October 1977