Regina v Maebinua [1999] SBHC 136; HC-CRC 160 of 1999 (6 September 1999)

HIGH COURT OF SOLOMON ISLANDS

Criminal Review Case. No. 160 of 1999

REGINA

-v-

ROBERT MAEBINUA

In the High Court of Solomon Islands
(FRANK KABUI, J)

Date of Review: 6th September 1999

REVIEW JUDGMENT

(Frank Kabui J): By request from the Principal Magistrate at Auki, Malaita, this case is being reviewed under section 46 of the Magistrates Courts Act (Cap. 20). In the Principal Magistrate Court, the prisoner was charged with one court of obtaining money by false pretence with intent to defraud, contrary to section 309 of the Penal Code Act (Cap. 26) and one count of being in possession of dangerous drug, namely, Indian hemp, contrary to section 8(a) of the Dangerous Drugs Act (Cap. 98). On being arraigned, the accused pleaded guilty to both counts in the charges against him. After the guilty pleas were recorded by the Magistrate, the facts were recorded. The accused agreed the facts were correct. On being asked if he had anything to say before sentence was passed, the prisoner said he had nothing to say. On count one, being obtaining money by false pretence with intent to defraud, the Magistrate sentenced the accused to 1 year imprisonment. On count two, being in possession of Indian hemp, the Magistrate sentenced the accused to 2 months imprisonment both sentences to run concurrently.

From the charge sheet, it is obvious that the prisoner was charged with the offence of obtaining money by false pretence, contrary to section 309 of the Penal Code Act (Cap. 26) in Count 1.

The Charge was in these terms:-

Count 1

Statement of Offence

Obtaining money by false pretence, c/s 309 of the Penal Code Act

Particulars of Offence

That Robert Maebinua of Airahu Village, West Kwara’ea at Auki in the Malaita Province between 1st - 30th April, 1999 with intent to defraud, obtained the sum of $270.00 from Rex Sirukwai by falsely pretending that he will change it in two weeks where in fact was false.

Was Count 1 the Correct Charge

According to the Court record, the prisoner pleaded guilty to the charge under section 309 of the Act. This section is in these terms:-

Any person who -

“(a) in incurring any debt or liability obtains credit by any false pretence or by means of any other fraud; or

(b) with intent to defraud his creditors or any of them, makes or causes to be made any gift, delivery or transfer of or any charge on his property; or

(c) with intent to defraud his creditors or any of them, conceals, sells or removes any part of his property, after or within two months before the date of any unsatisfied judgment or order for payment of money obtained against him,

is guilty of a misdemeanour, and shall be liable to imprisonment for one year.”

Clearly, the maximum penalty for an offence committed under this section is imprisonment for 1 year. If indeed, the prisoner was charged under the correct section, then obviously, the Magistrate had imposed the maximum sentence of 1 year imprisonment for a first offender. I do not think this was the case for two reasons. Firstly, the wording of the charge would be more in line with section 308 of the Act because there was no evidence before the Magistrate pointing to incurring a debt or liability by way of credit by false pretence or fraud or that there was evidence of intent to defraud creditors by the prisoner. Secondly, the imposition of 1 year imprisonment by the Magistrate would be more within with the penalty provision of section 308 of the Act being 5 years imprisonment. This section is in these terms:-

Any person who by any false pretence -

“(a) with intent to defraud, obtains from any other person any chattel, money or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person; or

(b) with intent to defraud or injure any other person fraudulently causes or induces any other person:-

(i) to execute, make, accept, endorse, alter or destroy the whole or any part of any valuable security; or

(ii) to write, impress, or affix his name or the name of any other person or the seal of any body corporate or society, upon any paper or parchment in order that the same may be afterwards made or converted into, or used or dealt with as, a valuable security,

is guilty of a misdemeanour, and shall be liable to imprisonment for five years.”

This “mix-up” would have been avoided had the Magistrate applied his mind to section 201 of the Criminal Procedure Code Act (Cap. 7) and amended the charge to read correctly under section 308 above. Section 201 of the Criminal Procedure Code Act is in these terms:-

“(1) Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:-

Provide that where a charge is altered as aforesaid, the court shall thereupon call upon the accused person to plead to the altered charge.

Provided further that where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate and, in such last mentioned event, the prosecution shall have the right to re-examine any such witness on matters arising out of such further cross-examination.

(2) Variance between the charge and the evidence adduced in support of it with respect to the day upon which the alleged offence was committed is not material and the charge need not be amended for such variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof.

Where an alteration of a charge is made under subsection (1) or there is a variance between the charge and the evidence as described in subsection (2), the court shall, if it is of the opinion that the accused has been thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary.”

It is therefore obvious that the prisoner pleaded guilty to an offence that he did not commit when he did so under section 309 of the Penal Code Act. Section 309 is the equivalent of section 13 of the Debtors Act, 1869. This section is intended to cover cases of frauds being perpetrated upon creditors whether by bankrupts or not. It contains different category of offences from the provisions of section 308 above. The prisoner was not represented by Counsel and it was not surprising that the prisoner pleaded guilty to an incorrect charge in the Magistrate Court. Although, as I have said, the prisoner was understood by the Magistrate to have been pleading guilty to an offence under section 308 under the Criminal Code Act, he was not being charged with that offence because section 308 was not being cited in the charge against the prisoner in the Magistrate Court. There is of course the other point whether or not on the facts, the prisoner could have been correctly charged for obtaining money by false pretence. The facts admitted by the prisoner seemed to suggest that the payment of the sum of $270.00 was to be repaid by the prisoner thus pointing to a civil contract transaction with a promise to repay the money in the future. The false pretence here being the prisoner was a landowner at Fote where a logging Company was operating clearly suggesting that the prisoner was and indeed capable of repaying the money requested of the Complainant. The facts were not sufficiently detailed so as to make out a case for false pretence or otherwise. In my view, there should have been further investigation to establish a case of false pretence beyond reasonable doubt before the charge was laid against the prisoner. There was a doubt that the prisoner had intended to defraud the Complainant in this case. This reason and the incorrectness of the charge are, in my view, enough to exercise my power under section 47 of the Magistrate Courts Act (Cap. 20) and set aside both the conviction and sentence recorded by the Principal Magistrate against the prisoner on Count 1. I therefore order that the conviction and sentence entered against the prisoner on Count 1 be set aside. I acquit the prisoner on count 1.

The second charge was preferred under section 8 of the Dangerous Drugs Act (Cap. 98).

The charge was in these terms:-

Count 2

Statement of Offence

Possession of a dangerous drug (Indian hemp) C/s section 8(a) of the Dangerous Act (Cap. 98).

Particulars of Offence

That Robert Maebinua of Airahu Village, West Kwara’ae, at Auki, Malaita Province, on or about the 11th August, 1999 was in possession of Indian hemp.

Section 8 of the Dangerous Drugs Act (Cap. 98) is in these terms:-

“Every person -

(a) growing opium poppy, Indian hemp or coca leaf whether for private use or otherwise; or

(b) found in possession of or selling, or who shall have given or sold, to any person any substance to which this Part of this Act applies,

shall be guilty of an offence against this Act”

Subsections 1 (a), (2) and (3) of section 39 are in these terms:-

“(1) Any person who -

(a) acts in contravention of or fails to comply with any of the provisions of this Act or any rule made under this Act; ...

(2) Every person guilty of an offence against this Act shall, in respect of each offence for which no penalty is otherwise prescribed, be liable:-

(a) on conviction by the court sitting with assessors, to a fine of two thousand dollars, or to imprisonment for ten years, or to both such fine and imprisonment; or

(b) on summary conviction, to a fine of five hundred dollars, or to imprisonment for six months, or to both such fine and imprisonment;

and shall in every case, on conviction for the offence, forfeit to Her Majesty all articles in respect of which the offence was committed; and the court before which the offender was convicted may order the forfeited articles to be destroyed or otherwise disposed of, as the Court deems fit.

(3) No person shall be proceeded against under paragraph (a) of subsection (1) unless the proceedings are instituted by, or with the consent of, the Director of Public Prosecutions; ...

It is obvious that section 39(2) (b) was applied because section 8 prescribes no penalty for the offence of being in possession of Indian hemp. However, in terms of subsection 3, the consent of the DPP is required in order to institute proceedings under this Act. Subsection 3 applies to contraventions of any of the provisions of the Dangerous Drugs Act and therefore being in possession of Indian hemp is a contravention of section 8 being a provision of the Dangerous Drugs Act. The need for the sanction of the DPP to proceed against the prisoner in the first place would have been obvious in this case. On the facts of this case, there was no evidence of the sanction of the DPP. In fact, Indian hemp was found on the prisoner at the Auki Police Station on 11th August, 1999 only when he was searched by the Police as a result of the charge against him for false pretence with intent to defraud, contrary to section 309 of the Penal Code Act. The prisoner was charged with Count 2 the next day being 12th August, 1999 and pleaded guilty to that charge that same day in the Auki Magistrate Court. In my view, the requirement of subsection 3 above is in agreement with section 91 of the Constitution which empowers the DPP to institute and undertake all criminal proceedings in Solomon Islands. I am sure that the Office of the DPP had not been consulted before the prisoner was arraigned in the Auki Magistrate Court on 12th August, 1999. That is, the DPP had not sanctioned proceeding against the prisoner on count 2 as required by section 39(3) of the Dangerous Drugs Act. Again, in exercising my power under section 47 of the Magistrates Courts Act (Cap. 20) I set aside the conviction and sentence entered against the prisoner on Count 2 forthwith. The prisoner is acquitted on Count 2. I order that the conviction on count 1 and on count 2 be quashed. The prisoner is to be released from prison forthwith.

F.O. Kabui
Judge