Fareed v Police [2012] WSCA 14 (23 November 2012)

COURT OF APPEAL OF SAMOA

Fareed v Police [2012] WSCA 14

Case name: Fareed v Police

Citation: [2012] WSCA 14

Decision date: 23 November 2012

Parties: Ashed Fareed male of Siusega (Applicant) and Police (Respondent)

Hearing date(s): 19 November 2012

File number(s): CA 5/12

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s):
Justice Fisher
Justice Hammond
Justice Salmon

On appeal from:

Order:

Representation:
S Leung Wai for appellant
P Chang and L Taimalelagi for respondent

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

FILE NO CA 5/12

BETWEEN

ARSHED FAREED of Siusega

Appellant

AND

POLICE

Respondent

Coram:

Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Salmon

Counsel:

S Leung Wai for appellant

P Chang and L Taimalelagi for respondent

Hearing: 19 November 2012

Judgment: 23 November 2012

JUDGMENT OF THE COURT

Introduction

[1] The appellant, Arshed Fareed, was convicted on 10 February 2010 by Nelson J in the Supreme Court of Samoa on 25 counts of theft as a servant of 25 vehicles from Alnima Motors Limited over the period June 2009 to February 2010.

[2] The court found that while employed by Alnima, Mr Fareed was selling vehicles paid for by Alnima as stock of a rival company, Singapore Motors Limited, a new venture he was involved in, and handing over the proceeds of sale to Singapore Motors.

[3] Mr Fareed was originally charged with 31 counts of theft as a servant; six counts were dismissed by the trial judge.

[4] The appellant was sentenced to 4 ½ years imprisonment on each of the counts on 30 April 2012, to be served concurrently.

[5] Mr Fareed now appeals against his convictions.

The elements of the charges

[6] It was common ground at trial and before us that the prosecution had to prove three ingredients beyond reasonable doubt to establish theft as a servant.

[7] First, that Mr Fareed was an employee of Alnima at the relevant time.

[8] Second, that there was an unlawful taking in terms of s85 of the Crimes Ordinance 1961. More specifically, a taking or converting of something capable of being stolen. This element encompassed a requirement that it be established to the requisite level that Mr Fareed acted fraudulently and dishonestly with intent to deprive the owner permanently of its property and goods.

[9] Third, that at the relevant time all 25 vehicles were the property of Alnima.

The appeal grounds

[10] The appeal is mounted on three grounds: that there was no dishonest intention on Mr Fareed’s part; that there was no or no adequate identification of the relevant vehicle; and that he was not an employee at the requisite time.

[11] The appellant submits that all 25 charges of the theft should be quashed and that he should be acquitted. An appeal of this character is essentially a challenge to the judge’s factual findings. We will set out the essential background facts and then consider each of the grounds of appeal separately.

The background facts

[12] Alnima Motors Limited was a Samoan company formed on 19 August 2008 by a group of Pakistani businessmen residing overseas to supply and sell right hand drive vehicles. The group comprised Kuldip Singh (aka Bobby Singh) of Balwin Exports, Singapore (“Balwin”), for whom Arshed Fareed worked, and Nooruddin Panjawani and his brother Sheraly Moosa in the United Arab Emirates.

[13] Alnima employed Arshed Fareed (also Pakistani) as the in-country manager. He was responsible for overseeing and running the business on behalf of the absentee owners.

[14] The arrangement was that Balwin would ship the cars and Alnima, under the management of Arshed Fareed, would sell them from the company’s premises at Lepea. The premises were owned by L V Motors Limited (“L V”). L V received a $500 per car commission for vehicles sold from its yard.

[15] Although Arshed Fareed had no written employment contract, the terms of his employment salary were $1,800 per month, payment of his accommodation by the company, use of the company car and expenses and other matters had been agreed upon.

[16] From about May 2009, L V employees noticed Alnima cars began dwindling as Arshed Fareed was removing them during working hours, sometimes after hours, and taking them initially to premises at Savalalo and subsequently to the Elava Motel yard at Fugalei. New cars were no longer kept in the Lepea yard but were towed and/or driven to Savalalo and Fugalei and sold from there.

[17] Without the knowledge of the absentee owners of Alnima, Arshed Fareed on 4 June 2009, in partnership with a local accountant, Laulu Dan Stanley, incorporated a rival car dealership called Singapore Motors Limited which operated from premises at Savalalo and later from Elava Motel site at Fugalei.

[18] Vehicles continued to be removed from the L V yard and sold from the Singapore Motors premises as Singapore Motors stock.

[19] One of the terms of Arshed Fareed’s employment was that he provides a monthly sales report to the company owners. He did this until about July 2009 and then stated that he had no time to prepare them. Email correspondence continued as to shipping of vehicles, expenses and other company matters.

[20] Arshed Fareed wound down his involvement with L V car yard and spent most of his time at the Singapore Motors yard. He operated an office from the latter and soon a “Singapore Motors Limited” sign appeared at the Elava car yard.

[21] Arshed Fareed’s relationship with L V deteriorated. He stalled off payment of commissions due and refused to provide a list of the vehicles sold. L V were unable to accurately track what had been sold and their entitlements as Arshed Fareed would not provide them with receipt books or produced only “temporary” ones.

[22] According to company records, Arshed Fareed continued to draw his salary from Alnima until at least October 2009 and continued to run and operate Alnima as before – making sales, dealing with clients, etc. As late as December 2009 he was signing company cheques for substantial amounts.

[23] By the end of 2009 and certainly by mid-February 2012 there were no more cars in the L V Lepea yard, Alnima had cleared out and closed its Lepea office.

[24] Alnima had organised a three year work visa from the Samoan Immigration authorities covering the period 8 December 2008 to 30 November 2011. Without Alnima’s knowledge, Arshed Fareed cancelled this three year work permit in February 2010 and substituted it with a new work permit allowing him to be employed by the new business venture, Singapore Motors.

[25] In February 2010, Panjawani arrived to find the L V office closed and empty. Arshed Fareed told him Singh had visited a few days earlier and instructed removal of all office equipment and all remaining vehicles to Elava. When Panjawani confronted the defendant his response was he could not disobey Singh as the vehicles were Singh’s property.

[26] This then was the overall context of the case.

[27] We deal with the elements of the charges in the order in which the judge addressed them.

Not an employee

[28] Mr Fareed gave evidence. He said that from June 2009 onwards he was no longer an employee of Alnima Motors, he having resigned around the end of May. The judge found this to be a “ludicrous argument”. This because the evidence which the judge accepted showed that Mr Fareed continued to draw a monthly salary from that business until at least October 2009.

[29] Secondly, the judge noted correspondence which undermined Mr Fareed’s claim “because it is plainly in terms of an employee reporting and corresponding with his employer.” He used the term “boss” in several emails he sent to the Company Director.

[30] Thirdly, the appellant gave no indication to other persons he dealt with that he was now working for someone else. Rather he continued to operate Alnima as before. Clients were negotiated with, sales were made, arrangements for payment and shipping and the like. At the end of 2009 he was still signing Alnima company cheques for substantial sums. These were produced as exhibits. As the judge said, “all indicia of the employer/employee relationship [continued].”

[31] There was evidence on which the judge could, and properly did, find against the appellant on this point. This ground of appeal is therefore dismissed.

A dishonest taking

[32] The essence of the appeal on this point is that Fareed had an honest belief that he was entitled to remove the cars and was not acting dishonestly or fraudulently. Even if this belief was unreasonable, as long as it was honest, that affords a defence.

[33] Mr Fareed gave evidence that he was brought from Singapore by Mr Singh to look after Mr Singh’s interest in Samoa. He considered himself to be answerable to Singh, reported to him, and him only. He maintained there was a partnership between Mr Singh and Mr Panjawani, not just a second-hand car supplier arrangement, with an agreement to share the profits and expenses of the business. In May 2009 when Mr Singh and Panjawani met in Samoa to discuss business matters, he said he was authorised by Singh to remove some of the Balwin supplied cars and to set up a new company. In January 2010, Mr Singh came to Samoa to meet with Mr Panjawani and resolved various business matters including payment for cars which had been supplied by Balwin. Mr Singh called Balwin who was then overseas and told him he would be removing the cars that Balwin had supplied that had not been paid for. And according to the appellant, Mr Panjawani agreed to this.

[34] The difficulties for the appellant with the line he maintained at trial were that Mr Singh was not called as a witness at all. Nobody questioned Mr Panjawani directly on the question of his commission and payments. And most importantly of all, as the judge noted, Mr Fareed’s evidence was quite contrary to Mr Panjawani’s evidence. The judge found Mr Panjawani “to be a deliberate and methodical businessman”. And he had considerable difficulty with Mr Fareed’s evidence.

[35] The judge traversed the transactions in which Mr Fareed was involved in some detail. He found that these established beyond reasonable doubt that the vehicles were the property of Alnima Motors Limited and that Mr Fareed was aware of this.

[36] In short, the judge found against Mr Fareed on his argument that he had acted in the way he did because he honestly believed the cars still belonged to Balwin and this justified him in removing and selling them from the Singapore Motors yard. The judge found this to be “hollow like the empty drum that it is”.

[37] We accept that colour of right is a lawful defence in Samoa. It is assessed subjectively. An honest but mistaken belief will suffice.

[38] The essence of the appeal point is that the judge assessed the relevant evidence objectively.

[39] The passage complained about in the judgment has to be seen in context. It was not a misunderstanding of the law by the judge or a transference of the required onus of proof. The judge was simply if a little loosely, saying that not only did he reject the honesty of the appellant’s belief but also there existed, in light of all the documentary evidence, no reasonable grounds for holding such a belief.

[40] There was no error of principle by the judge. He was entitled to, and did, come to the view on the evidence before him that the appellant acted dishonestly.

No proper identification of property taken

[41] The essence of the defence case here was, as it is on the appeal, that the prosecution had failed to present reliable evidence to establish the identity of the 25 vehicles found to have been stolen.

[42] It is important to note, as the judge did, that the defence conceded at the outset of the trial that the cars were brought into Samoa and the relevant shipping and other documents were actually tendered by consent. What these showed is that 25 vehicles were shipped by Balwin from Singapore to Alnima as consignee in Samoa. They were all paid for by Alnima. There is no contest at that level.

[43] The documentary evidence before the court then showed that 25 of the 31 Alnima vehicles were moved to the Singapore Motors yard and sold as Singapore Motors stock. On the documentary evidence the judge found, to the requisite standard, as he was perfectly entitled to, that those 25 vehicles “had been sufficiently identified”.

[44] We need not traverse the circumstances of the other 6 cars, on which the judge gave the appellant the benefit of the doubt.

[45] This appeal point is not made out either.

Conclusion

[46] The appeal against conviction on all 25 charges is dismissed.

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Honourable Justice Fisher

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Honourable Justice Hammond

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Honourable Justice Salmon