Khera v State [2016] FJSC 25; CAV 003.2016 (22 June 2016)

IN THE SUPREME COURT OF FIJI
[CRIMINAL APPELLATE JURISDICTION]

CRIMINAL PETITION NO: CAV 0003 OF 2016

[Court of Appeal No: AAU0117 of 2014]

BETWEEN : MANOJ KHERA

Petitioner

AND : THE STATE

Respondent

Coram : The Hon. Justice Priyantha Fernando,
Acting President of the Supreme Court

The Hon. Justice Saleem Marsoof,
Justice of the Supreme Court

The Hon. Justice Almeida Guneratne,
Justice of the Supreme Court

Counsel : Mr. M. Raza with Mr. S.D. Khan for the Petitioner

Ms. J. Prasad for the Respondent

Date of Hearing : 9^th June 2016

Date of Judgment : 22^nd June 2016

JUDGMENT OF THE COURT

[1] By his petition dated 25^th January 2016, the Petitioner seeks special leave to appeal from the judgment of the Court of Appeal [Chandra JA, Fernando JA, and Goundar JA] dated 18th January 2016, which affirmed his conviction in the High Court of Fiji in Suva [Temo J]on four counts of obtaining money by false pretences contrary to section 309 of the Penal Code, Cap 17, and one count of money laundering contrary to section 69(2) and (3) of the Proceeds of Crime Act No. 27 of 1997, and the sentence imposed by the High Court.

[2] The following grounds of appeal are urged by the Petitioner for seeking special leave to appeal to this Court.

(i) The learned trial Judge erred in law and in fact in that he failed and /or neglected and/or did not adequately consider the defence case.

(ii) The learned trial Judge erred in law and in fact admitting and relying upon evidence of lay witnesses as opinion evidence particularly evidence of the purported signatures on vital documents which were fundamental to the prosecution case.

(iii) The learned trial Judge erred in law and in fact in not dealing adequately and/or properly and/or sufficiently on circumstantial evidence and in not identifying what evidence was or could be classified as circumstantial evidence.

(iv) The learned trial Judge erred in law and in fact in misdirecting and/or not properly and/or sufficiently himself and the assessors on the standard and burden of proof.

(v) The verdict is unsound, dangerous, unsafe, unreasonable and cannot be supported having regard to the evidence as whole, hence there has been a miscarriage of justice.

(vi) The Fiji Court of Appeal erred in law in applying the proviso under section 23 (1) of the Court of Appeal Act, Cap 12, in the circumstances of this case.

(vii)The sentence is wrong in principle, harsh and excessive in the circumstances of the case. The learned trial Judge failed and/or neglected to take into account that the money alleged to have been obtained by false pretences (monies) together with the penalties were paid well before the prosecution commenced.

[3] Before considering the application of the Petitioner for special leave to appeal, it may be useful to set out in brief the background facts.

Factual Matrix

[4] At all material times, the Petitioner was the owner of a jewellery business carried on under the name and style of Shivam Imports & Exports (hereinafter referred to as “Shivam”), registered with the Fiji Revenue and Customs Authority (FRCA) under Tax Identification Number 11-24276-0-5.

[5] Shivam was registered under FRCA as a VAT collector, and was entitled to a tax refund when the VAT paid on the purchases made by Shivam exceeds the VAT that was collected on its sales.

[6] Each of the said VAT returns lodged on behalf of Shivam contained a declaration that the information provided in support of the applications for VAT refund was true and correct.

[7] However, evidence led at the trial revealed that the schedules of input tax credits appended to the aforesaid VAT returns contained false information which was sought to be supported with false invoices from certain suppliers of goods and services listed therein, such as Raniga Jewellers Ltd., Telecom Fiji, One Flight Travel Center, Fiji Electricity Authority, Control Meat Company Ltd., and Lords Jewellery, all of whom denied supplying the goods or services specified in the said invoices and schedules to Shivam.

[8] It is in evidence that FRCA expected all applicants for refunds to provide true and correct information in order to process the above mentioned VAT returns on trust. FRCA eventually paid into an Access Account at ANZ Bankin Nausori bearing No. 5636155 designated by Shivam, theVAT refunds claimed by it on the aforesaid VAT returns, namely, $9,611.82 on the January 2004 return (count 1), $8,200 on the February 2004 return (count 2), $11,800 on the March 2004 return (count 3) and $15,000 on the April 2004 return (count 4), aggregating to $44,611.82.

[9] A substantial portion of the sums paid into the said account by FRCA for the taxable period from January to April 2004 were withdrawn from the said account using International ATM Card bearing No. 600998981000027, on 6 May 2004 ($9,000); 25 June 2004 ($2,000); 5 July 2004 ($16,000) and 8 July 2004 ($15,000).

The Proceedings before the High Court and the Court of Appeal

[10] The Petitioner was charged in the High Court of Fiji in Suva on four counts of obtaining money by false pretences and one count of money laundering on the basis that the VAT returns in question were submitted to FRCA by the Petitioner with intent to defraud, and the amounts of money paid into the aforesaid ANZ Access account bearing number No. 5636155 were withdrawn by him.

[11] On 22^ndJuly 2014, which was the first day of the trial against the Petitioner in the High Court of Suva, the Petitioner pleaded not guilty to all the counts.

[12] At the trial, the prosecution called in all nine witnesses, namely Laisa Bainimarama, Auditor of FRCA, Sala Naivalu, IT Application Support Officer of the Fiji Electricity Authority, Nilesh Prasad, Manager, Operational, Risk and Compliance of ANZ Bank at Victoria Parade, and six other witnesses who represented the business establishments referred to paragraph [7] of this judgment. The latter witnesses specifically denied that the said establishments had supplied the goods or services referred to in the schedules to the VAT returns presented to FRCA by the Petitioner during the period January to April 2004.

[13] The Petitioner did not give evidence at the trial, but called three witnesses, namely, Nibuka Vuli of the Immigration Department, Arun Kumar Narsey, a Chartered Accountant and the Petitioner’s younger brother, Prakash Khera.

[14] At the conclusion of the trial, the three assessors found the Petitioner guilty as charged on all counts, and by his Judgment dated 30^th July 2014, the learned High Court Judge accepted the said verdict of the assessors and convicted the Petitioner. He observed in his Judgement that-

“The verdict of the assessors was not perverse. It was open to them to reach such conclusion on the evidence.

Assessors are there to assist the trial judge to come to a decision on whether or not the accused is guilty as charged. I accept the three assessor’s verdict. I agree with them. I find the prosecution witnesses’ evidence credible and I accept them. I reject the accused’s denial as contained in his police caution interview statements. I accept the prosecution’s version of events.”

[15] On 3^rd October 2014the learned High Court Judge sentenced the Petitioner to 2 years’ imprisonment on each count of obtaining money by false pretences and 4 years’ imprisonment on the one count of money laundering, the sentences to run concurrently.

[16] The Petitioner appealed against his conviction and sentence to the Court of Appeal. His grounds of appeal were that:-

(1) the learned trial judge erred in law and in fact in admitting evidence of lay witnesses as opinion evidence particularly evidence of the purported signatures on vital documents which were fundamental to the prosecution case; and

(2) the sentence is wrong in principle, harsh and excessive in the circumstances of the case.

[17] By the unanimous decision of the Court of Appeal dated 18^th January 2013, the conviction of the Petitioner as well as the sentence imposed by the High Court were affirmed.

[18] In affirming the conviction, Goundar JA (with whom Chandra JA and Fernando JA concurred) observed as follows at paragraph 25 of his judgment:-

“The prosecution case was solely based upon circumstantial evidence. The trial judge's direction on circumstantial evidence in paragraph 36 of the summing up is impeccable. The trial judge did not refer to the impugned opinion on handwriting in his summing up. The appellant did not dispute that he was owner of the company that were paid VAT refunds by FRCA as alleged by the prosecution. He also did not dispute that the refunds were paid into his personal bank account and that the alleged withdrawals were made from the account. His defence was that someone else had used his identity to commit the fraud. The assessors and the trial judge did not find that defence plausible. In my judgment, the assessors and the trial judge on the evidence properly admissible and properly directed without doubt have been of the same opinion.”

[19]The Court of Appeal also dismissed the Petitioner’s appeal on the sentence. Having examined the issues carefully, Gondar JA concluded as follows in paragraph 35 of his judgment:-

“The trial judge was correct to conclude that the appellant had expressed no remorse. The court record also supported the conclusion that the appellant had made efforts to either avoid or delay the trial. There was no evidence to suggest that the prosecution was responsible for any delay. In any event, the delay was not exceptional to suspend the sentence. There is no error in the sentencing discretion of the trial judge.”

The Application for Special Leave to Appeal

[20] Before adverting to the grounds on the basis of which the Petitioner seeks special leave to appeal in this case and the submissions of learned Counsel in regard to this application, it is necessary to refer to a matter that needs to be clarified at the outset.

[21] In view of the fact that in paragraphs [11], [12],[14],[20] and [25] of the impugned judgement of the Court of Appeal, the business of “Shivam Import & Export” has been referred to as a “registered private company” or simply as a “company”, at the commencement of the hearing of this application for special leave to appeal, learned Counsel were specifically asked to clarify the juridical basis of the business of the Petitioner, particularly whether it was a sole proprietorship, a partnership or a company incorporated by law, and if it was the latter, what they had to say about issues of corporate criminal liability that could arise in the case, which aspects had not been considered by the Court of Appeal.

[22] Since learned Counsel were unable to assist court in this regard, learned Counsel were asked to assist Court to locate the Agreed Facts referred to by the learned trial judge in his summing up. When it was found that no agreed facts were included in the records made available to court, and none were available with learned Counsel or in the file relating to this application maintained in the Supreme Court Registry, the Clerk of the Court was directed to procure from the Suva High Court copies of the agreed facts, and make the same available to Court.

[23] It now appears from the Agreed Facts dated 5^th July 2013 that it was specifically agreed by the parties (1) that the Petitioner is Manoj Khera also known as Manoj Kumar; (2) that Manoj Kumar operated as a Sole Proprietor in the name and style of “Shivam Imports and Exports” having a tax identification number 11-24276-0-5; and (3) that he had and ANZ Bank Account bearing number 5636155. Agreed fact (2) above is significant because, if as the Court of Appeal had assumed, Shivam was a limited liability company, issues of corporate criminal liability of the kind that was considered by the House of Lords in Tesco Supermarkets Ltd., v Nattrass [1971] UKHL 1; [1972] AC 153 would have arisen, apart from the question as to whether the false pretences relevant to counts 1 to 4 were made by the company as opposed to the Petitioner.

[24] It has now becoming a common occurrence for agreed facts not to be made available to the Judges who sit in the appellate courts, and the omission to do so can cause serious errors and mislead the appellate courts. Indeed, in this case, the omission to make the agreed facts available in the briefs had resulted in the Court of Appeal assuming erroneously that the business of Shivam was a limited liability company. Court officials as well as learned members of the Bar must take note of the fact that agreed facts are an essential part of the trial court record, and must be available at the hearing of criminal appeals.

[25] Coming back to the application of the Petitioner seeking special leave to appeal, as was noted in paragraph [2] of this judgment, the Petitioner has urgedseven grounds in his applicationfor special leave to appeal to this Court. Six of them relate to his conviction, and only ground (vii) relates to the sentence.

[26] The gist of the submissions of the learned Counsel for the Petitioner against conviction was that the High Court as well as the Court of Appeal had not given proper consideration to the Petitioner’s defence, which was in essence that,he had not prepared, signed or lodged the VAT returns that led to him being charged with counts 1 to 5, or received any money that was paid into the ANZ Access account bearing No. 5636155. Learned Counsel for the Petitioner contended that all that had been done by the Petitioner’s cousin Jitendra Pala, who was assisting in his business of Shivam, and to whom he had entrusted his International ATM Card bearing No. 600998981000027 and disclosed its Pin Number.

[27] Learned Counsel for the Petitioner stressed that both the police and the prosecution knew the Petitioner’s defence to the allegations, as he had clearly informed the police of his position when he was caution interviewed on 2^nd April 2012. He submitted that not only had the Petitioner disclosed his defence at the outset, but had consistently maintained it until the conclusion of the trial, but that despite the fact that 2 years and 3 months had elapsed between the date of the caution interview and the date of commencement of trial, the prosecution had not placed any credible evidence to establish that the Petitioner had signed any of the VAT returns relating to the first 4 counts through expert testimony or otherwise, or withdrawn any money deposited into the ANZ Access account bearing No. 5636155.

[28] In particular, learned Counsel for the Petitioner submitted that the testimony of PW1, Laisa Bainimarama, had caused the defence grave prejudice, since she had stated in her examination in chief when producing Prosecution Exhibit No.1, which was Shivam’s VAT return for January 2004 relating to count 1, that the signature thereon was that of the Petitioner, whose name appears therein as Manoj Kumar. He contended that the witness was not called as an expert witness, and since there was no evidence that she had seen the Petitioner sign or was otherwise familiar with his signature, the testimony of the said witness that the signature on Exhibit No 1 is that of the Petitioner would have prejudiced the minds of the assessors. He stressed that the learned trial judge erred in law in admitting and relying upon the evidence of a lay witness as opinion evidence.

[29] Responding to these submissions, learned Counsel for the Respondent pointed out that the learned trial Judge had not only considered but also adequately and accurately summarised the defence case in his summing up, and had referred in paragraph 23 of his summing up to the testimony of the 3 defence witnesses called by the Petitioner to give evidence. She submitted that the acceptance or otherwise of the defence case was a matter left to the assessors, and given the conviction of the Petitioner on all counts, it is evident that his defence was not accepted by the assessors and the trial judge, who had no reason to disagree with the assessors.

[30] Learned State Counsel while conceding that the prosecution had not laid the proper foundation for the admission of the handwriting evidence given by Laisa Bainimarama,emphasised that no reference was made by the learned trial judge in his summing up to the signature of the Petitioner on the VAT return relating to count 1, and that the case was dealt with as one of circumstantial evidence.She submitted that in any event, the assessors had found the Petitioner guilty of counts 2, 3 and 4 with respect to which there was no signature or handwriting evidence given by Bainimarama or any other witness, and that clearly showed that the conviction was based on circumstantial evidence and not signature evidence.

[31] In any trial of this nature, the assessors are the best judges of the facts, and from the evidence led at the trial, it is clear that the defence taken up by the Petitioner was altogether lacking in credibility. The essence of the Petitioner’s case throughout was that he had not signed any of the VAT returns that contained false information and that he had not personally received any payment from FRCA. In the course of his caution interview, he had answered questions relating to his ANZ Access account bearing number 5636155 in the following manner:-

Q. When did you open this account?

A. Sometime in 2003

Q. What was the type of this account?

A. Personal.

Q. What is the status of this account now?

A. Closed since 2005.

Q. Who are the authorized signatories of this account?

A. Myself and the accountant, Jitendra.

Q. How was this account operating?

A. Either authorized signatory to sign at one time.

[32] The position taken up by the petitioner was not supported by the testimony of prosecution witness Nilesh Prasad who was the Manager, Operational, Risk and Compliance of the ANZ Bank in Suva. He stated that the name of the account holder of ANZ Access account bearing number 5636155 was Manoj Kumar, which is the name used by the Petitioner for opening the said account and that his signature is the only specimen signature available in the bank. He also testified as that the sums paid into the petitioner’s account for the taxable period January to April, 2004 were withdrawn in four large withdrawals using the Petitioner’s International ATM Card bearing number 600998981000027. He also stated in evidence that withdrawals of large sums of money can be effected only with the authorisation of the account holder. The mandate to operate the account was that of Manoj Kumar himself, and there was no authority for any third party to operate the access account bearing number 5636155.

[33] The submission of the learned Counsel of the Petitioner that the learned trial Judge erred in law and in fact in not dealing adequately and sufficiently with the circumstantial evidence and in not identifying what evidence was or could be classified as circumstantial evidence, and failed to properly direct the assessors in this regard, is in my opinion, totally lacking in substance.

[34]In paragraph 25 of her judgment in Nute v The State [2014] [2014] FJSC 10; CAV0004.2014 (19 August 2014), her Ladyship Ekanayake JA summarised the legal principles underlying circumstantial evidence as follows:-

“(a)For a Court to act on circumstantial evidence it must be complete, and of a conclusive nature and incapable of explanation,

(b)All proved circumstances must provide a complete chain,

(c) No link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with the innocence of the accused, and

(d) In a case based on circumstantial evidence motive plays an important role in order to tilt the scale against the accused.”(Emphasis added)

[35] In paragraph 36 of his summing up, the learned trial judge very correctly and clearly identified the elements of circumstantial evidence outlined above, and in the succeeding paragraphs, went on to deal with the circumstantial evidence that had been led in the case in the following manner:-

“37. In this case, in his police caution interview statements, the accused did not deny nor dispute the fact that, the relevant VAT returns and the schedules attached thereto, were submitted by his firm "Shivam Import and Exports", at the material times. He also did not deny nor disputed the fact that the VAT returns and schedules attached thereto, contained some false information. He did not deny, nor dispute the fact that, it was mandatory for an applicant to submit true, correct and complete financial information, in his VAT returns application. The accused did not deny, nor dispute the fact that, FRCA processed the VAT Return application on trust and had the power to impose penalty tax on those that submitted false information. The accused did not deny, nor dispute the fact that, FRCA approved his VAT return application, and deposited 4 FRCA ANZ Cheques in his personal ANZ Bank Access Account No. 5636155, at Nausori, totalling $44,611.82. The accused did not dispute, nor deny the fact that $42,000 was withdrawn from his account between 6 May and 8 July 2004, via the use of his International ATM card, and the account was closed in 2005.

38. Mr. Nilesh Prasad (PW9), Manager, Operational Risk and Compliance at ANZ Bank, Suva, gave evidence. He said, ANZ Bank Access Account No. 5636155, Nausori, was, according to their records, the accused's personal account. According to ANZ records, the only authorized signature was the accused's. No one else was authorized to access the account but the accused. The accused was given his PIN number, which was private to him. No one else was given the PIN number. According to the accused's account records (Prosecution Exhibit No. 72, 73 and 74), the large withdrawal of $42,000 mentioned in paragraph 37 above, was accessed via the accused's international ATM pin number. This PIN number was private to the accused. According to PW9, the above withdrawals were done at the ANZ Bank, Nausori, with the aid of the accused international PIN number. Before the cash were released, the accused's authorized signature must be confirmed by the bank teller. In this case, the cash were released, suggesting that the teller confirmed the authorized signature of the accused. The accused admitted in his police statements that he closed the account in 2005. What does the circumstantial evidence suggest to you? Was it the accused, who committed the charges laid against him? Your answer to this question is entirely a matter for you.”(Emphasis added)

[36] In my opinion, there could not have been a more perfect summing up on the circumstantial evidence led at the trial of this case. Not only did the trial judge properly direct the assessors that the burden to prove the guilt of the accused person beyond reasonable doubt lies on the Prosecution, in paragraphs [32] to [34] of his summing up her went on explain the defence of the petitioner in the following words:-

32. In his police caution interview statements (Prosecution Exhibit No. 62), the accused did not seriously challenge nor dispute the abovementioned undisputed facts. His defence were as follows. He said, he did not fill in, nor file the VAT Returns and the Schedules attached thereto. He said, he knew nothing of the matter. Consequently, he appeared to say, he was not guilty of the charges.

33. Furthermore, the accused appeared to cast the blame on his present problems on his cousin, Jitendra Pala, who was at the material time, working as his accountant. He appeared to say that, may be, Jitendra Pala filled in and submitted the false VAT Return and Schedules. In 2004, he said he complained to the Immigration Department about Pala competing with him, and as a result, Pala was deported from the country in 2004. He was sent back to India. Note he did not complain to the police about Pala allegedly taking money from his account, as he alleged.

34. Nevertheless, the accused, in his police caution interview statements said, he entrusted his ANZ account to his accountant, and it appeared, he had the liberty to deposit and withdraw cash from the same, as and when he pleases. Whether or not to accept the accused's defence, as contained in his police caution interview statements, is entirely a matter for you.

[37] In all the circumstances of this case, we have no reason to disagree with the finding of the Court of Appeal in paragraph 25 of its impugned judgment, which has been quoted fully at paragraph 18 of this judgment, that the trial judge's direction on circumstantial evidence in paragraph 36 of his summing up is impeccable. We are also of the opinion that the learned trial judge had given adequate directions to the assessors on circumstantial evidence and had directed the assessors and his mind to the relevant evidence of the circumstances, and there is no question that the conviction of the Petitioner was sound, safe, reasonable and supported by the totality of evidence led at the trial, and there was no miscarriage of justice in this case.

[38] The grounds of appeal set out in the Petitioner’s application for special leave against his conviction clearly do not meet the stringent criteria set out in section 7(2) of the Supreme Court Act No. 14 of 1998, and accordingly, special leave to appeal against the conviction must be refused.

[39] Turning now to the question of the sentence, it is noteworthy that the Court of Appeal has dealt adequately with the ground now advanced by the Petitioner, which is that the sentence imposed on the Petitioner by the High Court was wrong in principle, harsh and excessive in the circumstances of the case.

[40] It is significant to note that on 3^rd October 2014, the learned trial judge ruled on the sentence after taking into consideration aggravating and mitigating factors and the Petitioner’s period of remand custody, and imposed on the Petitioner a sentence of 2 years’ imprisonment on each count of obtaining money by false pretences and 4 years’ imprisonment on the one count of money laundering. He also directed the sentence imposed with respect to counts 1, 2 and 3 be made concurrent to each other.

[41]However, in view of the disgusting and outrageous nature of the Petitioner’s determination to continue to defraud FRCA in count No. 4, the learned High Court Judge further directed that the total 2 years’ imprisonment with respect to counts 1,2 and 3 be made consecutive to the sentence of 2 years’ imprisonment imposed for count No. 4, taking the total sentence for the offences of obtaining money by false pretences to 4 years’ imprisonment.

[42] The learned trial judge also took into consideration the totality principle, and made order that the sentence for obtaining money by false pretences be served concurrently with the sentence for money laundering, making it a total sentence of 4 years’ imprisonment.

[43] Learned Counsel for the Petitioner has submitted that the learned trial Judge failed and neglected to take into account the fact that the monies paid by FRCA to the ANZ Access Account of the Petitioner were repaid by the Petitioner to FRCA. This submission had been made before the Court of Appeal and had been dealt with very carefully by that court, which very rightly took the view that in cases of a serious nature such as this, mere restitution would not suffice, and to be considered as a ground for mitigation of sentence there must be evidence of true and sincere remorse, an early guilty plea and restitution. On the contrary, as the Court of Appeal observed at paragraph 35 of its judgment, the Petitioner had not expressed any remorse and the court record also supported the conclusion that the appellant had made efforts to either avoid or delay the trial.

[44] In these circumstances, we are of the considered view that there is no basis for granting special leave to appeal to the Petitioner against the sentence.

Conclusion

[44] For all these reasons, special leave to appeal against the decision of the Court of Appeal dated 18th January 2016 is refused, and the petition of the Petitioner dated 25^th January 2016 stands dismissed.

Orders of Court

[45] We accordingly make order as follows:-

(1) Application for special leave against the conviction and the sentence is refused.

(2) The petition dated 25^th January 2016 is dismissed.

........................................................

Hon. Justice Priyantha Fernando Acting President of the Supreme Court

.................................................

Hon. Justice Saleem Marsoof

Justice of the Supreme Court

........................................................ Hon.Justice Almeida Guneratne

Justice of the Supreme Court

Solicitors:
Mehboob Raza and Associates for the Petitioner
Office of the Director of Public Prosecutions for the Respondent