Ah Him v Attorney General [2015] WSCA 5 (17 April 2015)

COURT OF APPEAL OF SAMOA
Ah Him v Attorney General [2015] WSCA 5

Case name:	Ah Him v Attorney General
Citation:	[2015] WSCA 5
Decision date:	17 April 2015
Parties:	Muagututagata Peter Ah Him (Appellant) Attorney General (Respondent)
Hearing date(s):	15 April 2015
File number(s):	CA03/15
Jurisdiction:	Criminal
Place of delivery:	Mulinuu, Courthouse
Judge(s):	Honourable Justice Fisher Honourable Justice Blanchard Honourable Justice Panckhurst
On appeal from:	Police v Muagututagata Peter Ah Him (Supreme Court matter)
Order:	The appeal is allowed in part. The conviction and fine on count S1856/14 are quashed. The appeal is otherwise dismissed. The appellant must pay the fine on the remaining conviction and the various costs payable in terms of the sentence imposed by Nelson J (if not already paid) within seven days of the date of this judgment, in default of which he is to serve the term of imprisonment stipulated by Nelson J.
Representation:	Appellant in person P Chang and B L-Tam for Respondent
Catchwords:	FORGERY – dishonestly – false document -
Words and phrases:
Legislation cited:
Cases cited:	Crimes Ordinance 1961 Criminal Procedure Act 1972
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

C.A 03/15

BETWEEN:

MUAGUTUTAGATA PETER AH HIM
Appellant

AND:

ATTORNEY-GENERAL
Respondent

Coram: Honourable Justice Fisher

Honourable Justice Blanchard

Honourable Justice Panckhurst

Hearing: 15 April 2015

Counsel: Appellant in person

P Chang and B L-Tam for Respondent

Judgment: 17 April 2015

JUDGMENT OF THE COURT

Introduction

1. Mr. Ah Him was tried before Nelson J in the Supreme Court on four counts. He was acquitted of forgery and of dishonestly dealing with a cheque but convicted of using a false document (an invoice) as if it were genuine (s. 108 (a) Crimes Ordinance 1961). In traditional language this was a conviction for uttering the document.
2. He was also convicted of a charge under s.89 (1) (b) (2) of the Ordinance that with intent to defraud by false pretence, he used a document (the same invoice) to cause or induce the complainant (Grand Ocean Industries) to make or execute a valuable security, namely a cheque. However, as the use of the invoice as charged in the uttering count was for exactly the same purpose of obtaining the cheque, there was a duplication, or duplicity as it is technically known, in the two counts. When the Court pointed this out to Ms Chang, for the Attorney- General, who had not appeared below, she realistically accepted that the conviction under s.89 could not stand. The focus of this judgment is therefore on the appeal against the uttering conviction.
3. We must first say something about the circumstances which led to Mr. Ah Him appearing for himself on this appeal, which was regrettable but which in the end we are satisfied did not materially prejudice him.

Successive adjournment applications

4. Mr. Ah Him was found guilty on 30 January 2015 and remanded on bail for sentencing. On 2 March 2015 he was convicted and fined $10,000 on each charge and ordered to pay $6000 prosecution costs, $3000 court costs and $1000 probation costs. He did not file his notice of motion for leave to appeal (which was in fact an appeal as of right under s.164K of the Criminal Procedure Act 1972) until 1 April 2015. The matter was immediately and properly set down for hearing at the current sitting of the Court of Appeal. But, instead of preparing to argue the appeal, Mr. Ah Him’s counsel, Mr. Fepuleaí, chose to make a series of applications for adjournment. At a callover on 9 April the Chief Justice refused an adjournment. The Registrar wrote to Mr Fepuleaí suggesting he come prepared for a fixture on 14 April at 2pm, as directed by the Chief Justice. The Registrar warned counsel that the Court of Appeal had consistently stated that the absence of a translated version of the transcript was not accepted as a reason for not filing the record of appeal. It was also pointed out that copies of the required documents and transcripts from the Supreme Court file had been provided to counsel on 8 April to enable preparation of the record. Counsel was asked to file the record.
5. On receipt of that letter Mr. Fepuleaí chose not to file the record but made another application for adjournment in which he contended that he had insufficient time to prepare the record. In fact the record was helpfully prepared over last weekend by the Attorney-General’s office when nothing was forthcoming from Mr. Fepuleaí. Counsel also complained that he did not have a translated transcript. Clearly he already had a transcript in Samoan. He received the English translation on Monday 13 April.
6. We heard Mr. Fepuleaí’s application on 13 April at 9.30am and refused the adjournment. We took the view that the appellant had had the opportunity since at least 2 March to consider and formulate the basis of the appeal. Mr. Fepuleaí had been counsel at the trial and must have been very familiar with the evidence and exhibits. The trial had occupied only three days. The transcript was not extensive. It was essentially to be an appeal on the facts: that the “verdict was against the weight of the evidence” (by which we took counsel to be somewhat inaccurately referring to s.164N (a) of the Criminal Procedure Act). As the members of the Court had received the transcript on Sunday 12 April and had taken the trouble to read it and consider the exhibits before hearing the adjournment application we were in a position to form the view that there would be ample opportunity for counsel to prepare the appeal if given a little extra time. We therefore agreed to delay the hearing of the appeal by 24 hours to 2pm on Wednesday 15 April but otherwise refused the application.
7. At approximately 2pm on 14 April we were surprised to receive an application by Mr. Fepuleaí to withdraw as counsel for the appellant, who, it was said, intended to instruct overseas counsel. We immediately issued a Minute in which we reserved leave for counsel to renew his adjournment application but said that the appellant should understand that it would almost certainly be dismissed and that the appeal would almost certainly proceed on 15 April at 2pm, whether or not the appellant was represented by counsel. The decision by the appellant to instruct overseas counsel would not be accepted as a reason for an adjournment.
8. When the hearing commenced on 15 April Mr. Fepuleaí did renew his application but raised no matter not previously considered. It was pointed out to him that if he had actually been embarrassed in not having the Samoan transcript he could have requested its preparation when he knew that the appeal was to be heard at this sitting.
9. Mr. Fepuleaí indicated that he would withdraw as counsel because he did not feel able to conduct the appeal to the highest possible standard in the circumstances. The Court asked him to remain in the courtroom so as to assist Mr. Ah Him in dealing with any legal issues and in answering questions from the Bench. He was given an opportunity of conferring with Mr. Ah Him but then insisted on withdrawing completely. We reluctantly gave him leave to do so. The appeal then proceeded with Mr. Ah Him representing himself with some assistance from his wife.

The facts

10. Mr. Ah Him and his wife have for many years conducted a business known as Apia Business Machines Ltd (ABM) of which they are the shareholders and directors. More recently Mr. Ah Him became involved in the establishment of Grand Ocean Industries (Samoa) Ltd in which he held 10% of the shares. The remaining 90% shareholding was owned by two Chinese businessmen. All three men were directors of Grand Ocean.
11. Grand Ocean used ABM’s premises. Its representative in Samoa was Ms. Lirong Juan, a longtime friend of Mrs. Ah Him. It seems that her obligations to the overseas shareholders and directors and that friendship conflicted in the events that unfolded and led to inconsistencies in her evidence at the trial. Those inconsistencies, of which the Court is very much aware, were said to support the ground of appeal that the Judge’s decision on the uttering charge was unreasonable.
12. In January 2013 two containers shipped from China on behalf of Grand Ocean arrived in Apia. There was an initial over-assessment of duty by Customs caused, it seems, by a misstatement of the value of the imported goods in the paperwork. Lirong Juan asked for help from Mr Ah Him. He engaged the services of a customs agency, Savea Savelio, and in particular of Mr Savea with whom ABM had dealt in the past. A re-assessment of duty in the sum of $30,772 was negotiated. Savea Savelio then paid the duty and invoiced Grand Ocean in a total amount of $32,454.50 which included agency fees and other proper expenses. That Savea Savelio invoice was numbered 5517. The containers were cleared and delivered for storage on a property belonging to ABM.
13. Invoice 5517 was delivered to the office of ABM on 31 January 2013. Mr Ah Him believed that ABM was entitled to recover from Grand Ocean recompense for services rendered in assisting with the clearance of the containers and accommodating them on ABM’s land. Those services were later detailed in a document to which reference will be made. It seems that Mr Ah Him believed that ABM’s services were worth $30,000 including VAGST. That would appear to be an extraordinary amount to claim for the services even allowing for the fact that a very substantial reduction of duty had been negotiated.
14. On the same day, 31 January, what appeared to be an invoice from Savea Savelio bearing number 4850 and addressed to Grand Ocean was handed by Mr Ah Him to Lirong Juan. This invoice was for $62,454.50 and showed customs duty of $60,722 as having been paid by Savea Savelio. Both those figures were $30,000 higher than the comparable figure in the genuine invoice 5517.
15. A curious explanation was given in Mrs. Ah Him’s evidence of how invoice 4850 came into existence. She said that her husband had asked her to prepare an invoice for ABM’s claim from Grand Ocean, including customs duty. (It should be interpolated at this point that Mr Ah Him paid invoice 5517 the next day with his personal cheque and so reimbursed the duty paid by Savea Savelio). She said she was inexperienced in preparing an invoice of this kind and decided to do some practice. She therefore recovered from one of ABM’s files an old invoice received by ABM from Savea Savelio over a year earlier in October 2011 which bore the earlier number 4850. That old invoice had nothing to do with Grand Ocean. She had used correction tape to white out the detail. She had then photocopied it and written in the particulars which appeared in the invoice that Lirong Juan received from Mr Ah Him later that day. She said she had simply been playing around with the invoice. She had used the old Savea Savelio invoice because there were a lot of charges that would not fit on an ABM invoice.
16. It was Mrs. Ah Him’s evidence that she had not finished her task and had left the altered photocopy on her desk intending to return the next day and type up an ABM invoice to Grand Ocean.
    
17. Mr. Ah Him gave evidence that he had found the document on his wife’s desk and, thinking it was the invoice received from Savea Savelio relating to the containers, had innocently passed it on to Lirong Juan.
18. Mrs. Ah Him also testified that the next day, 1 February, she and her husband had realised what he had mistakenly done and that soon afterwards she had contacted Lirong Juan and alerted her. Lirong Juan had then told her that invoice 4850 had already been sent to the Chinese directors. This assertion by Mrs. Ah Him had not been put to Lirong Juan, as the Judge noted at the time.
19. On 5 February 2013 Mr Savea was asked to meet Mr Ah Him at ABM’s office. Mr Ah Him told him that ABM had charges to make in respect of the containers but that Grand Ocean would not accept an ABM invoice. He requested that these charges be incorporated in invoice 5517. Mr Savea obligingly wrote into his invoice an additional line: “Special Service Charges $30,000.” Mrs Ah Him then altered the total to $62,454.50. (No change was made to the amount of customs duty shown.).
20. The defence evidence was that Mrs. Ah Him then wrote a letter dated 5 February 2013 which was addressed to the directors of Grand Ocean and asked them to disregard invoice 4850 which had been sent in error. She enclosed a cancelled copy of invoice 4850 together with the altered version of invoice 5517 and an invoice from ABM for $30,000 detailing its services. Although Lirong Juan denied receiving these materials, Nelson J found, on the basis of the evidence of the secretary who had typed the letter and on the basis of Lirong Juan’s admitted signature in ABM’s delivery book, that she had uplifted them on 7 February.
21. The Chinese directors came to Apia a few days later. A cheque from Grand Ocean for $62,454.50 dated 15 February 2013 and made out to “Cash” was given to Mr. Ah Him. He cashed $10,000 and the rest was deposited into his personal account on 18 February.
22. The matter was subsequently investigated by Grand Ocean’s solicitor, Mr Ainu’u, and a complaint made to the police.

The Supreme Court decision

23. Nelson J rejected the explanations given by Mr and Mrs Ah Him respectively about the preparation and handing over to Lirong Juan of the altered photocopy of invoice 4850. He described Mrs. Ah Him as a self-confessed forger. She was, he said, no naive clerk. She and her husband had operated a successful business in Apia for over 20 years. They were well aware of the practices of the trade, proper billing procedures and what is involved in clearing shipments from suppliers. The issue of payment of ABM for their services was obviously important to Mr and Mrs Ah Him. This was no minuscule sum. It was stretching the grounds of credibility to say they would be so casual about something so significant.
24. The Judge found that Mr Ah Him had became aware of the bogus invoice drawn up by his wife but still passed it to Lirong Juan knowing she would send it to China for approval. He had done this because he knew, as he told Mr Savea, that his partners would not approve of such a charge if rendered by an ABM invoice. He settled Savea Savelio’s account because he was confident invoice 4850 would be passed for payment and he would be reimbursed. In the four days (actually five days) between the handing over of invoice 4850 and the alteration of invoice 5517 by Mr. Savea, the Judge said, someone must have “raised a red flag” about the duty paid. It therefore became necessary to have Mr. Savea amend his invoice. ABM’s letter of 5 February and the enclosures were Mrs. Ah Him’s part in attempting to conceal the subterfuge. The matter would probably never have come to light if Mr. Ah Him and his fellow shareholders had not had a falling out precipitated by disputes over other issues.
25. The Judge dismissed the forgery charge because it was not Mr. Ah Him who generated invoice 4850. He may have been an accessory to the forgery but the evidence of that was “thin”. There was no evidence that he had instructed his wife to do as she did. Nelson J was however satisfied beyond reasonable doubt that Mr. Ah Him knew the document was a forgery and that it would be acted on by Grand Ocean. No businessman, let alone one as successful as Mr. Ah Him, would allow the charges for his company to a third party to be placed on the letterhead of another entity, let alone the letterhead of a customs agent. He had received invoice 5517 on 31 January and was well aware of the amount of the duty. He would have seen even on a cursory inspection that invoice 4850 was for an obviously different figure and total. Furthermore, the document itself was contrary to his own instructions to his wife. His evidence had been that he thought his wife would attach to Savea Savelio’s invoice the ABM invoice for service. No such invoice was attached. Again he could not have failed to notice that. Nelson J accordingly found Mr Ah Him guilty on the uttering charge (and on the charge under s.89 (1) (b) (2)).
26. The charge of receiving the cheque and dishonestly dealing with it was dismissed because the Judge was “not satisfied the extent of the defendant’s obligation was to pay the entirety of the $62,454.50 to Savea.” He was only obliged to meet on behalf of Grand Ocean the customs agent’s fees and costs, which he had done on 1 February 2013.

Discussion and analysis

27. Having carefully considered all the evidence and the exhibits and had the benefit of reading Mr. Fepuleaí’s closing submissions at the trial, we find ourselves in complete agreement with Nelson J’s analysis and conclusions about the actions of Mr. Ah Him on 31 January when he handed the false invoice 4850 to Lirong Juan. It made no commercial sense for ABM’s charges to be documented on a Savea Savelio invoice and certainly not on a doctored photocopy of an old invoice unrelated to the transaction. It was consistent only with concealment of the existence of ABM’s (seemingly excessive) charges to document them by adding $30,000 to the figure for customs duty. That was patently false. Mrs. Ah Him’s explanation had been implausible and was rightly rejected by the Judge.
28. The Judge was also fully entitled to reject the explanation by Mr Ah Him of his “mistake” in handing over the obviously false invoice 4850. It beggars belief that he did not examine the document he says he found on his wife’s desk. He would, on his account of events prior to that point, have been alert to see that the Savea Savelio invoice was accompanied by the ABM invoice that Mrs. Ah Him was supposedly preparing. He would not have handed over one without the other, if his story is to be believed. Moreover, the total sum was $30,000 higher than the total in invoice 5517 received by Mr Ah Him that very day. As the Judge said, he must have noticed that.
29. We have considered whether the obvious inconsistencies in Lirong Juan’s evidence concerning subsequent events casts any reasonable doubt on Nelson J’s conclusion. We do not accept that it does. There may well have been a “red flag” not long after the false document had been deliberately handed over by Mr Ah Him. He and his wife may then have been concerned to create an appearance that a mistake had been made lest what had been done with invoice 4850 should come to light. But plainly that material did not find its way to the Chinese directors before Grand Ocean’s cheque went to Mr Ah Him, as it was their later discovery that there were two invoices (4850 and 5517) that triggered the complaint to the police. As we said at the outset of this judgment, Lirong Juan was seemingly conflicted between her representation of Grand Ocean and her friendship with Mrs Ah Him.

Result

30. The appeal is allowed in part. The conviction and fine on count S1856/14 are quashed. The appeal is otherwise dismissed. The appellant must pay the fine on the remaining conviction and the various costs payable in terms of the sentence imposed by Nelson J (if not already paid) within seven days of the date of this judgment, in default of which he is to serve the term of imprisonment stipulated by Nelson J.

Honourable Justice Fisher

Honourable Justice Blanchard

Honourable Justice Panckhurst