Republic v Roy [2017] KIHC 2; Criminal Case 42 of 2013 (2 May 2017)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 42 OF 2013

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[SUBASH CHANDRA ROY ACCUSED

Before: The Hon Mr Justice Vincent Zehurikize

26 September 2016

Ms Tewia Tawiita for the Prosecutor
Ms Kiata Kabure for the Accused

JUDGMENT

Zehurikize, J: The accused, Subash Chandra Roy, is charged with Carrying on Business on Unregistered Investment contrary to section 18(1) of the Foreign Investment Act 1985 in Count I and Contravening Permit Conditions contrary to section 23(1)(K) of the Immigration Ordinance Cap 41, in Count II.

In Count I it is alleged that the accused during the years of 2011 and 2012 carried out a business in Tabiteuea North in the Republic of Kiribati without a valid licence required under section 16 of the Foreign Investment Act 1985.

In Count II it is alleged that the accused during the same period on the same outer island unlawfully carried out his business which contravened clause 5 of the Conditions of his permit.

The accused denied both charges whereupon the case went into full hearing. In a bid to prove the case the prosecution called five witnesses. Terengaki Tebiria (PW1), Niteti Tongabiri (PW2) and
Okaro Karibwarenga (PW3) gave substantially similar evidence.

The said three witnesses, who were running retail shops, told Court that each of them during the alleged period bought goods from the accused. He was going around the island selling merchandise and they bought some of the articles from him. They believed he was the owner of the goods they were buying. PW3 added that the accused came to the island as a constructor at the hospital and that he did not have a wife.

PW4 Tooki Tangitang is a Foreign Investment Officer. He told Court that in August 2016 Police came to the Ministry of Commerce and Foreign Investment to find out whether the accused had registered the business. On checking the system there was nothing to show that he ever came to the Ministry.

In cross-examination by Ms Kabure for the accused the witness noted that the business certificate is in the name of Katongatonga Teraoi. He also recognized a marriage certificate for the accused and Katongatonga Teraoi. It can be noted here that there is no dispute that the two are validly married as per their Certificate of Marriage
(Exhibit “B”).

PW5 Tiaki Smith was called to merely exhibit the accused’s Residence Permit dated 17 May 2016 (Exhibit P5). With this evidence the prosecution closed its case.

In his defence the accused stated that he is married to Katongatonga and have three children. That in 2012 he was selling merchandise but that the business belongs to his wife. He was assisting her as she was taking care of their small child. Sometimes he would walk around selling the goods.

In cross-examination by Ms Tawiita Counsel for the Republic the accused said that he is a Bangladesh citizen. That he was granted a work permit and that one of its conditions is that he could not do any other business. His work was construction at the hospital. He went on to testify that in 2012 he went with his wife to TabNorth. But it was his wife who was running the business and he was simply assisting her. He added that the business licence is under the name of their son one Suhag.

Apart from tendering the Marriage Certificate DW1 Katongatonga gave similar evidence emphasizing that the business was hers and that the accused was simply assisting her.

At the close of the defence case both Counsel undertook to file written submissions. But as I write this judgment no submissions are on the case file.

Ms Tawiita on 19 April 2017 wrote a letter saying that she would be out of the country and would only be available after 1 May 2017. No reason has been communicated by Ms Kabure for failure to file her submissions.

I am unable to oblige Ms Tawiita’s prayer. I have limited time and any delay would disable me from writing the judgment. Hence I have had to proceed to write this judgment without Counsels’ input.

But before going into the merits of the case there is one preliminary point of law which was raised by Ms Kabure during the trial. On
22 November 2016, before Ms Tawiita introduced and examined PW5, Ms Kabure raised an objection to the effect that the Statement of this witness was never disclosed to the defence. That a copy of his statement was availed to her on 8 November 2016.

She contended that under section 230 of the Criminal Procedure Code the prosecution can only introduce a new witness prior to the commencement of the trial, but cannot do so once the trial has commenced.

In reply Ms Tawiita said that she was relying on section 251 of the same Code. That the prosecution disclosed the evidence on 8 November 2016 and that this was reasonable time to the defence. That there is no prejudice to the defence.

Ms Kabure countered this by referring Court to the provisions of section 222 of the said Code.

I overruled the objection and allowed the prosecution to examine PW5 but promised to give more reasons in my judgment, which I now proceed to do.

Section 230 of the Criminal Procedure Code relied on by Ms Kabure provides as follows:

“If, after receipt of the authenticated copy of the statements and depositions as aforesaid and prior to the trial before the High Court, the Attorney-General is of the opinion that there is, in any case committed for trial, any material or necessary witness for the prosecution or the defence who has not been bound over to give evidence on the trial of the case, the Attorney-General may require the magistrates’ court which committed the accused person for trial to take the deposition of such witness and compel his attendance either by binding over or by summons or by warrant as hereinbefore provided”.

In my view the provisions of this section are simply part and parcel of the proceedings relating to the committal of the accused person for trial before the High Court under Part IV of the said Criminal Procedure Code.

It is clear to me that the reading of section 230 has nothing to do with the disclosure of the material evidence to the defence before the trial commences. The section only gives latitude to the Attorney-General to have a witness whether for the prosecution or defence be bound over or compelled to attend the trial. It has nothing to do with disclosure.

Section 222 of the Criminal Procedure Code which was also cited by Counsel provides that the accused is entitled to copies of depositions and statements of witnesses which will be used at the trial. These are materials which are ready at the time the accused is committed for trial before the High Court.

It is to be noted that there are no committal proceedings conducted before the accused is due for trial by the High Court. And there was none in the instant case. The accused was straight away charged before this Court. Therefore this provision is of no consequence in the matter before this Court.

The only relevant provision applicable in the issue raised by Ms Kabure is section 251 which was relied on by Ms Tawiita Counsel for the Republic. It provides:

“251(1) No witness who has not given evidence at the preliminary inquiry shall be called by the prosecution at any trial unless the accused person has received reasonable notice in writing of the intention to call such witness.

(2) The notice shall state the witness’s name and address and the substance of the evidence which he intends to give.

(3) The court shall determine what notice is reasonable, regard being had to the time when and the circumstances under which the prosecution became acquainted with the nature of the witness’s evidence and determined to call him as a witness”.

Ms Tawiita contended that the witness’s statement was served on the defence on 8 November 2016. That for that matter the accused received reasonable notice required under section 251(1) of the Criminal Procedure Code.

I am inclined to agree with her that in the circumstances of this case and where hearing was on 22 November 2016, the accused had sufficient opportunity to study the witness’s statement. This was sufficient notice needed under section 251(1) of the Code. No prejudice could be occasioned to the accused and his right to a fair trial was not infringed in any way. He had ample time to prepare his defence.

It is for the above reasons that the preliminary objection could not be sustained.

I now turn to the merits of the case. As regards the offence in Count I, the essential ingredients of the offence are:

(1) Whether the accused carried out any business;

(II) If so whether he did so without a valid licence.

As regards the first segment, the evidence adduced by the prosecution is that in the years 2011 and 2012 the accused was seen selling merchandise. That PW1, PW2 and PW3 actually bought goods from him.

The accused did not deny selling goods generally and to the witnesses in particular. But his explanation is that he was not the owner of the business. That the business belonged to his wife operating under the name Suhag Roy. That in fact this is a name of their son.

He was supported by his wife (DW1) who stated that the business was hers and that the accused was only helping her when she was looking after their baby.

This defence version was not rebutted by the prosecution. No credible evidence was adduced to assert that the business actually belonged to the accused. Payment receipts for Retail Store licence are in the names of Suhag Roy and not in the names of the accused.

Section 18(1) under which the accused is charged provides:

“No person or foreign enterprise shall carry or continue to carry on business in Kiribati without a valid certificate of registration issued under section 16 of this Act”.

The operative phrase in this offence “to carry on business”. The prosecution had the burden to prove beyond reasonable doubt that the accused was carrying on the business of a retail shop in TabNorth. Merely selling goods, which was explained, in my view is not carrying on business for the purposes of this offence. If it were so then a shop assistant or an employee of a company would be regarded as carrying on business.

If the legislature wanted “carrying on business” to have such a wide meaning would have said so by legislation. A Court of justice cannot widen the meaning of a criminal legislation with the danger of criminalizing persons who were not in the contemplation of the legislature when enacting the penal prohibition.

If the legislature wanted they could have stated that any person who assists in carrying out the business is guilty of the offence. But they did not. I have no power to do so.

I find that the accused in selling the merchandise was merely assisting his wife but not carrying on business within the meaning of section 18(1). It follows therefore he was not obliged to have a valid certificate of registration issued under section 16 of the Act.

None of the elements of this offence was proved beyond reasonable doubt.

As regards the second Count of Contravening Permit Conditions contrary to section 23(1)(K) of the Immigration Ordinance, I find that this could stand only if the offence in Count I had been proved.

The central point of this offence is that the accused contravened Clause 5 of the Conditions of his permit, mainly the condition which prohibits the permit holder from working or engaging in other commercial activities.

The permit (Exhibit P5) allowed him to “Reside with family”. It is his evidence and that of his wife that he was staying with his family and that is how he came to assist his wife in selling her shop goods.

Having found that the accused was not actually carrying out business within the meaning of section 18(1) of the Act I do not find that there was sufficient evidence to prove that he contravened Clause 5 of the Conditions of his permit. This offence was also not proved beyond reasonable doubt.

Consequently I find the accused not guilty of any of the two offences with which he was charged and acquit him accordingly.

Dated the 2^nd day of May 2017

THE HON MR JUSTIE VINCENT ZEHURIKIZE
Judge