Qu Qiang v Reginam [2014] SBCA 26; SICOA-CRAC 33 of 2013 (17 October 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua J)
COURT FILE NUMBER:	Criminal Appeal Case No. 33 of 2013(On Appeal from High Court Criminal Case No. 331 of 2012
DATE OF HEARING:	08TH OCTOBER 2014
DATE OF JUDGMENT:	17TH OCTOBER 2014
THE COURT:	Justice Goldsbrough JA, President Justice Williams JA Justice Wilson JA,
PARTIES:	Qu Qiang Appellant -V – Reginam Respondent
Advocates: Appellants: Respondent:	Lidimani D Appellants JOEL F with her Olutimayin R Respondent
Key words	Forfeiture of recognizance
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	ALLOWED
PAGES	1- 7

1. This appeal from a decision of the High Court delivered on 19 November 2013 concerns an order made in the Magistrate's Court on 14 August 2013. That order was made in criminal proceedings against the present Appellant following what the presiding magistrate found to be a wilful failure to comply with the terms of bail. The Appellant did not attend a hearing in those criminal proceedings scheduled for 12 August 2013 before the Chief Magistrate, a warrant of arrest issued and the Appellant, together with his counsel, appeared in the Magistrate's Court the following day.
   
2. The order made which is the subject of this appeal is the order forfeiting cash bail of $200,000 from the Appellant and $200,000 from his surety. In addition to that order at the same time the criminal proceedings against the Appellant were withdrawn by the prosecution and the Appellant discharged.
   
3. On appeal to the High Court the order estreating the recognizances of the Appellant and his surety were considered and upheld save to the extent that the amount payable by the surety was remitted in its entirety and the amount payable by the Appellant reduced from $200,000 to $50,000.
   
4. The sole question on this appeal is whether it was proper in the circumstances to estreat any of the recognizances. To appreciate the reason why this may be the case it is necessary to set out some of the criminal case history.
   
5. Having been charged with criminal offences the Appellant appeared in the Magistrate's Court and was remanded in custody. Thereafter he was released on bail by the High Court and was released on bail on terms to appear back in the Magistrate's Court. The matter was adjourned from time to time without incident. At a hearing before a Principal Magistrate the prosecution indicated that they intended to withdraw the charges. The Principal Magistrate, noting that the matter was listed less than two weeks ahead before the Chief Magistrate, declined to deal with the application to withdraw. He adjourned the matter back to the Chief Magistrate who already had a pre-trial conference scheduled for 12 August 2014 in the same matter.
   
6. Not content with waiting until 12 August 2014 counsel for the Appellant made a further request to have the matter determined before that date and appears to have been successful in persuading a Magistrate 2nd Class to hear the application to withdraw the matter. It must have been a further request as otherwise the matter need not have gone before the Principal Magistrate on 26 and 29 July 2014 although that request nor reasons for it are not readily apparent from the appeal papers.
   
7. The request for a further advance hearing before the Magistrate 2nd Class came with a certificate of urgency, citing the onerous nature of the bail conditions. At the hearing no mention of onerous bail conditions was made but instead reference to pressing medical reasons for the Appellant to be free from the obligation to attend court in answer to bail and travel for medical treatment. No explanation is given for the change in emphasis.
   
8. At the hearing on 2 August 2014 before Magistrate 2nd Class Lelapitu the Magistrate purported to acquit the Appellant and ordered the return of travel documents and the cash bail. It is necessary to describe her actions as 'purporting' as it is an agreed fact on this appeal that the Magistrate 2nd Class had no jurisdiction to hear and determine this matter.
   
9. Prior to the hearing on 2 August before Magistrate Lelapitu the Chief Magistrate had written to counsel for the Appellant. From the letter it is apparent that he had become aware of attempts being made by that counsel to obtain an earlier hearing date and his letter in very clear terms set out why he felt that such attempts, not addressed to him, were improper. We agree with the sentiments that he expressed in that letter of 1 Aug 2014. The attempts at manipulation of the hearing dates and sitting magistrates were quite improper and may easily have led to the appearance, on the part of counsel for the Appellant, of "judge shopping".
   
10. When the prosecution seek to withdraw a charge or charges in the Magistrate's Court section 190 of the Criminal Procedure Code Cap 7 applies. That provides:-
    

(1) The prosecutor may with the consent of the court at any time before a final order is passed in any case under this Part withdraw the complaint.

(2) On any withdrawal as aforesaid-

(a) where the withdrawal is made after the accused person is called upon to make his defence, the court shall acquit the accused;

(b) where the withdrawal is made before the accused person is called upon to make his defence, the court shall subject to the provisions of section 197 in its discretion make one or other of the following order-

(i) an order acquitting the accused;

(ii) an order discharging the accused.

(3) An order discharging the accused under paragraph (b) (ii) of subsection (2) shall not operate as a bar to subsequent proceedings against the accused person on account facts.

11. It is agreed, and we endorse that agreement as correct, that when a withdrawal is to take place the matter must be heard by a judicial officer with jurisdiction to try the substantive matter. Jurisdiction in the magistrate's court is determined with reference to the maximum penalty provided for an offence and as far as these allegations are concerned they fell outside of the jurisdiction of a Magistrate 2nd Class.
    
12. One can readily see the importance of the matter going before a magistrate with jurisdiction given the options available to the judicial officer within section 190. It is notable that Magistrate 2nd Class Lelapitu acquitted the accused whereas he was discharged by the Chief Magistrate.
    
13. As far as the Appellant was concerned, however, he had appeared with his counsel on 2 August 2014 and had heard the orders made in his case and no doubt believed that the matter ended there. By 12 August 2014 his counsel knew that the Chief Magistrate expected the scheduled hearing of 12 August 2014 still to take place but that does not mean to say that the Appellant himself shared that believe. There is in fact no evidence that counsel for the Appellant told his client of the letter of 1 August 2014.
    
14. On appeal to the High Court, the Appellant contended that the orders of the Magistrate 2nd Class were correct and therefore the order of the Chief Magistrate were in error. That submission did not find favour in the High Court and now it is accepted that this is the correct position. Having determined that the Chief Magistrate was correct in his assessment of the situation, the High Court further determined that the forfeiture of the whole of the cash bail deposited (being $400,000 in total) was too harsh an imposition and reduced the amount to be forfeited to $50,000, requiring that all of this came from the Appellant in person with nothing to be forfeited by his surety.
    
15. Forfeiture of recognizances is governed by section 114 of the Criminal Procedure Code Cap which provides:
    

114. - (1) Whenever it is proved to the satisfaction of a court by which a recognisance under this Code has been taken, or when the recognisance is for appearance before a court to the satisfaction of such court, that such recognisance has been forfeited, the court shall record the grounds of such proof, and may call upon, any person bound by such recognisance to pay the penalty thereof, or to show cause why it should not be paid.

16. There is no complaint within this appeal or below that the Chief Magistrate did not afford an opportunity for the Appellant to show cause why no order of forfeiture should be made. The complaint is that the circumstances demonstrate on the part of the Appellant a reasonable cause for not answering his bail as required on 12 August 2014.
    
17. From the position of the Appellant, and we note that it is the position of the Appellant that is paramount in proceedings against him for forfeiture, it is clear that there existed from 2 August 2014 and still on 12 August 2014 reasonable grounds for him to believe that the criminal proceedings against him had come to an end. He had been given notice that the prosecution intended to bring them to an end, he had attended court with a view to that taking place towards the end of July 2014 and finally he had been present when, on 2 August2014, he saw and heard a Magistrate 2nd Class allow the charges to be withdrawn and an acquittal entered. It was not for him to determine whether that magistrate had the jurisdiction to make such an order. That role was and should be reserved for his legal representative.
    
18. By 12 August 2014 the Appellant had reasonable ground to believe that he was no longer subject to bail, conditional or otherwise. He was, no doubt, not the only person holding that belief. In those circumstances it is difficult to find that he was in culpable default when he failed to attend court on 12 August 2014. The same finding, of course, is not available to his legal representative who had by now received the letter of 1 August 2014 written by the Chief Magistrate. His obligation was either to attend court on the date referred to in the letter or respond to that letter setting out his views why the 12 August date was no longer needed. His failure to respond to correspondence from the Chief Magistrate seems to be close to the foremost reason for this imbroglio.
    
19. Taking any view of what took place towards the end of the criminal proceedings in the Magistrate's Court counsel for the Appellant behaved in a way that this Court cannot condone. We have already indicated that it was wrong to attempt to manipulate hearing dates in the way that was done, that it was wrong to fail to respond to correspondence sent to him by the Chief Magistrate. It was then wrong not to attend court either with his client or otherwise on 12 August 2014 when he had not replied to the letter of 1 August 2914 and it was wrong to submit 'confusion' as a reason for his client not attending court on 12 August 2014. There was no confusion. Counsel had achieved what he set out to achieve which was an earlier hearing date. He knew that the Chief Magistrate thought otherwise. He had the opportunity not to share that with his client and that led to his client not appreciating that his presence was necessary on 12 August 2014. Counsel was wrong in his understanding of the law as regards jurisdiction in the Magistrate's Court. He exposed, through that lack of proper understanding, his client to these protracted proceedings. In all his conduct is lamentable yet from his submissions on this appeal he appears to have learnt nothing from it.
    
20. The High Court set aside the orders of the Magistrate 2nd Class and so there is no need to make any orders in that regard. The order discharging this Appellant by the Chief Magistrate was confirmed and there is no appeal against that part of his order. We set aside the order forfeiting $50,000 of cash bail from the Appellant made by the High Court and order the return of that amount.
    

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Justice Goldsbrough JA, President

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Justice Williams JA

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Justice Wilson JA,