Xu Qiang v Regina [2013] SBHC 155; HCSI CRC 331 of 2013 (19 November 2013)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Criminal Case No. 331 of 2013

XU QIANG

–V-

REGINA

Hearing : 16 September 2013
Judgment : 19 November 2013

D. Lidimani for the Appellant
R B Talasasa for the Respondent

JUDGMENT

1. This is an appeal by the Appellant, Xu Qiang, against orders made by the Chief Magistrate ("CM") on 14 August 2013. The orders were made after the Prosecution withdrew a single count of money laundering against the Appellant under section 190 (2) (b) (ii) of the Criminal Procedure Code (Cap 7) ("CPC").
   
2. The orders were in the following terms: "1. the charge against the accused Xu Qiang is withdrawn under section 190 (2) (b) (ii) of the CPC. 2. Charge is dismissed. 3. The accused is discharged. 4. Cash bail for the accused Xu Qiang of $200,000.00 and surety Reuben Lilo of $200,000.00 are forfeited to the state and 6. No further orders".
   
3. Counsel for the Appellant submits that the CM made a mistake in law when he made the order to forfeit the cash bail of $400,000.00 to the state.
   
4. That submission was based on orders made by a Magistrate of the Second Class ("MSC") on 2 August 2013. The orders were set out under a certificate of conviction. The Certificate appeared to have been drawn under section 121 of the CPC. The particulars of that certificate show the number of the criminal case against the Appellant; he was charged under section 17 (1)(b) of the money laundering and proceeds of Crimes Act 2010; the particulars of the offence shows that the Appellant was engaged in a riot on 16 November 2013 (which was wrong); he pleaded not guilty to the charge and was acquitted under section 190 (2)(b)(i) of the CPC; that cash bail of $400,000.00 to be refunded to the Appellant; that his passport and his wife's passports were to be returned to them; the case was heard on 2 August 2013; and that the certificate of conviction was signed by the MSC (which was a wrong certificate or form).
   
5. Before the legal issues raised by this appeal are considered, it is convenient to mention that the presiding magistrate of the MSC did not have the court file with her, when she heard the case on 2 August 2013. This court did not have access to the records of hearing by the MSC on 2 August 2013 because they went missing after the hearing. The case came before the CM on 24 July 2013. The Appellant with his Counsel were present. The Appellant pleaded not guilty to the charge of money laundering and the case was adjourned to 12 August 2013 for pre-trial conference (PTC). But despite this adjournment, the Appellant and his Counsel appeared in court on 26 and 29 of July 2013. The reasons for these appearances were because of an application made by the Defence and to have the police withdraw the charge against the Appellant for lack of evidence, which was refused by Principal Magistrate. The police prosecutor's position was plain to the Defence. That position was that the charge against the Appellant would either be withdrawn under section 190(2)(b)(ii) or 190(2)(b)(i) of the CPC on 12 August 2013.
   
6. When the case came before the CM for PTC on 12 August 2013, the Appellant and his Counsel were absent. The CM was not aware of the case being heard on 2 August 2013, as records of that hearing did not appear on the case file. As a result, a warrant of arrest was issued against the Appellant and the CM issued the orders set out in paragraph 2 above.
   
7. It is clear that two sets of orders were issued by the Magistrates' Court. One by the MSC and the other by the CM. The issue before this court, therefore, is which of these orders should prevail as the valid orders. The Defence submits that the MSC had jurisdiction to make the orders of 2 August 2013.
   
8. The Appellant was charged with Money Laundering under section 17(1)(b) of the Money Laundering and Proceeds of Crimes Act 2010. The offence carries a fine of not exceeding 500,000 penalty units or to imprisonment for a term not exceeding ten years, or both;.......
   
9. A MSC only has jurisdiction to try summarily any criminal offences for which maximum imprisonment sentences prescribe by law for such offence does not exceed – (i) imprisonment for a term of one year; or (ii) a fine of two hundred dollars; or both such imprisonment and such fine. (See section 27 of the Magistrates' Court Act (cap. 20)
   
10. The MSC who made the Orders on 2 August 2013 was appointed on 10 August 1999. As from 10 August 1999 she is to hold a Magistrate's Court of the Second Class and to exercise all powers and jurisdiction conferred by the Magistrates Court Act or any other Act. The Appellant failed to point to any increase of jurisdiction order either under the Magistrates' Court Act or any provision under the Money Laundering and proceeds of Crimes Act to hear, determine and acquit the Appellant of the Money Laundering charge lay against the Appellant.
    
11. Pursuant to section 27 (1) of Magistrates' Court Act (cap. 20), a Principal Magistrate has jurisdiction to try summarily any Criminal offence for which the maximum punishment prescribed by law for such offence does not exceed fourteen years' imprisonment, provided the maximum punishment which a Principal Magistrate's Court can impose does not exceed – (i) a term of imprisonment for five years; or (ii) a fine of one thousand dollars; or (iii) both such imprisonment and such fine. The CM will have jurisdiction to try summarily and impose sentences or fines over such offences.
    
12. On 13 August 2013, the Appellant was present in Court under a warrant of arrest. His counsel was with him who said that he was confused as he thought the Appellant was discharged on 2 August 2013. He further submitted that the presiding Magistrate on 2 August 2013 had discretion to discharge the Appellant of the charge because there was no evidence against him.
    
13. On 2 August 2013, the MSC dismissed the case and acquitted the Appellant under section 190 (2)(b)(i) of the CPC.
    
14. Section 190 of the Criminal Procedure Code (Cap. 7) is in the following terms:
    

"190 – (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 foresaid-

(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 orders:-

• (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 of the same facts.

S.197- If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused"

15. The Appellant filed an affidavit on 21 August 2013 in support of his appeal. On paragraph 8, he says there was a census reached between the Prosecution and Defence on 26 July 2013 that the PTC set for 12 August 2013 would be abandoned. There was no evidence to confirm this assertion in the court record. He further asserted that the Prosecution withdrew the charge on 29 July 2013. But, the Court record shows, that while the prosecution agreed to withdraw the charge under section 190 (2) (b) (ii) of the CPC, the presiding Magistrate refused the application by Defence to withdraw the charge against the Appellant; maintained that the PTC be held on 12 August 2013; that on 12 August 2013 the Prosecution would either withdraw the charge under section 190 (2) (b) (ii) or section 190 (2) (b) (i); and then extended bail to the Appellant to 12 August 2013 to appear in Court at 9am.
    
16. This Court pointed out in paragraph 9 above, that the MSC has limited jurisdiction to try offences summarily. It is the view of this Court that she exceeded her jurisdiction when she dealt with the offence of Money Laundering as in this case. The orders of 2 August 2013 are therefore set aside as they are invalid. On his part, the CM has jurisdiction to make his order of 14 of August 2013. The cash bail of $200,000.00 and the surety of $200,000.00 were forfeited to the state because the Appellant failed to appear in court at 9am on 12 August 2013, as ordered by the CM on 24 July 2013.
    
17. The CM made no mistake in law in forfeiting the cash bail of $400,000.00. It was done because the Appellant failed to appear on court at 9am on 12 August 2013. The Appellant was discharged under section (90 (2)(ii) of the CPC on 14 August 2013. The Charge of Money Laundering laid against Appellant by the police had been dismissed by the CM.
    
18. The Appellant may be charged again for the same offence in due course pending further investigation. In this case, I have found that the MSC had no jurisdiction to hear and decide cases on Money Laundering charges. The orders she made on 2 August 2013 are accordingly set aside. The CM who presided on the case on 12 and 14 August 2013 had jurisdiction to hear and made the orders of 14 August 2013. The provisions of CPC apply to both the Magistrate Court and the High Court. There were cash bail with sureties in this case. As such, the CM exercised jurisdiction under section 114 (5) of the CPC to forfeit the entire cash bail of $400,000.00.
    
19. Orders imposed under section 114 by any Magistrate may be revised by this Court under section 115 of the CPC. This Court is of the view that forfeiture of the entire cash bail would be a very severe penalty against the Appellant and his surety. The Court record shows that the Appellant had been attending Court adjournments except for his default on the 12 August 2013. This court will accordingly revise the forfeiture order of 12 August 2013 of the $400,000.00 as follows:
    

Orders: 1. $50,000.00 of the Appellant's cash bail be forfeited.
2. $150,000.00 be remitted to the Appellant.
3. $200,000.00 surety from Reuben Lilo be remitted.

THE COURT