Police v Fareed [2012] WSSC 21 (10 February 2012)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

ARSHED FAREED male of Pakistan and Fugalei.
Defendant

Counsel: Ms L Taimalelagi for prosecution
Mr S Leung Wai for defendant.

Hearing: 15, 16 & 17 November 2011
Submissions: 16 December 2011
Ruling: 10 February 2012

RULING OF NELSON J

The defendant faces 31 charges of theft as a servant laid pursuant to sections 85 and 86 (1) (g) of the Crimes Ordinance 1961. The charges allege that on diverse dates between June 2009 and February 2010 the defendant while employed as Manager of Alnima Motors Limited a Samoan registered company stole and sold 31 vehicles belonging to his employer.

Section 85 relevantly provides:

"Theft defined – (1) Theft or stealing is the act of fraudulently or dishonestly taking, or converting to the use of any person, anything capable of being stolen, with intent-

(a) To deprive the owner or any person having any property or interest therein permanently of such thing or of such property or interest;

(4) Theft is committed when the offender moves the thing, or causes it to be moved with intent to steal it."

Section 86 (1) (g) provides:

"Punishment of theft – (1) Every one who commits theft is liable to imprisonment for a term not exceeding -

(g) Seven years if the property stolen is anything stolen by a clerk or servant which belongs to or is the possession of his employer."

The prosecution have correctly indentified the ingredients of theft as a servant as being proof beyond reasonable doubt that first the defendant was an employee of Alnima Motors Limited, second that there was an unlawful taking in terms of section 85 and third that at the relevant time the vehicles were the property of Alnima Motors Limited.

There is no dispute as to certain matters such as the fact that the vehicles were shipped from Singapore to Samoa, that there was a taking of the vehicles in the sense that certain vehicles were moved from the Alnima premises at Lepea to "new" premises at Savalalo and Fugalei, or that the cars were converted to the use of various buyers when the defendant sold them. Or indeed that cars are things capable of being stolen. What is in dispute is the dishonest or fraudulent intent or intent to deprive the owner permanently of its property that the defendant is alleged to have possessed at the material time. Ownership of the vehicles is also in dispute as is the fact that the defendant was alleged to have been an employee of Alnima at the relevant time.

The Facts:

The evidence established that when the Tuilaepa Administration effected the road switch a group of Pakistani businessmen operating car sales out of Singapore and Japan realized there were money making possibilities in exporting and selling right hand drive cars to Samoa previously a left hand drive market. The group comprised Kuldip Singh aka Bobby Singh of Balwin Exports, Singapore ("Balwin") for whom the defendant worked and Nooruddin Panjawani a resident of Japan and his brother Sheraly Moosa of Dubai, in the United Arab Emirantes. On 19 August 2008 Alnima Motors Limited ("Alnima") was incorporated in this jurisdiction as a private company with Panjawani and Moosa as equal shareholders and directors.

The arrangement was Balwin Exports would ship the cars and Alnima under the management of the defendant would sell them from the companys premises at Lepea. These were owned by LV Motors Limited ("LV") a company owned and managed by a local business couple Mr and Mrs Alapati Pupi. LV received a $500 per car commission for vehicles sold from its yard and also helped the new operation get on its feet in various ways such as assisting with clearing its vehicles and providing secretarial and sometimes mechanical services when required. Alnima however had its own office and staff, ran its own books, kept its own accounts and records and functioned as a fully independent and separate operation under the defendants day to day control. Things progressed satisfactorily and the directors of Alnima took turns visiting their Samoa operation. All was well.

Then about May 2009 things began to change. The evidence from LV employees was that the number of Alnima cars began dwindling bit by bit because the defendant was removing them during working hours, sometimes after hours and taking them initially to the Le Well premises at Savalalo and subsequently to the Elava Motel yard further down the road 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. By the end of 2009 and certainly by mid-February 2010 there were no more cars in the LV Lepea yard and the company had cleared out and closed its Lepea office.

The further evidence of these employees was that whereas previously their relationship with the defendant was good and their commissions always paid promptly, from this point on this too began to change. He stalled off payment of commissions due and would refuse to provide a list of the vehicles sold. When queried about receipt books for vehicle purchases he told them they were with the company accountant and when pressed, he finally provided a new receipt book to use to receipt payments for vehicles. A receipt book marked by him "just temporary". LV were therefore unable to accurately track what had been sold and their commissions or entitlements.

They testified that the defendant also began spending less and less time at Lepea and more and more time at the Elava premises. He operated an office from there and their impression was the company had changed its name because soon a "Singapore Motors Limited" sign adorned the Elava car yard. By years end the defendant ceased visiting Lepea and had no further dealings or relationship with LV or its employees.

The evidence of Mrs Pupi was that when queried the defendant explained the move was because the new yard was closer to the main town area of Apia and because the defendant was the manager, they did not interfere. But they did report to the Alnima owners what was happening. Mr Pupis testimony was it was clear there were problems arising between the defendant and his employers. But all witness were emphatic that at no time did the defendant say or make them aware that he had resigned from Alnima or that he was now working for a new operation. Be it Singapore Motors or some other entity. On making complaints about unpaid commissions to Panjawani they were told to wait until he visited in February 2010.

Mr Panjawanis evidence was that when he visited in May 2009 things were running smoothly. Everything appeared in order and no complaint of any kind was received from the defendant. Neither did the defendant tender any form of resignation or indicate he wished to leave the companys employment. He said that while the defendant had no written employment contract, the terms of his employment as to salary of $1,800 per month, payment of his accommodation by the company, use of the company car and as to expenses and other matters had been agreed upon. Consequently the company obtained a 3 year work visa from the Samoa Immigration authorities. The visa covered the period 08 December 2008 to 30 November 2011.

One of the terms of the defendants employment was that he provide a monthly sales report to the company owners. A term that he faithfully complied with until about July 2009. Panjawani said from then on the defendants excuse was that he had no time to prepare these reports and that he was always busy. Email correspondence however continued as to shipping of vehicles and as to expenses and other company matters. He said that only in December 2009 did the defendant first indicate that he wished to return to Parkistan for a holiday to visit his family and requested a replacement to whom he could "handover you all account". Panjawani said he agreed but told the defendant to wait untill his 2010 visit and he would bring someone to manage the Samoa operation.

In February 2010 he arrived and was surprised to find the Lepea office closed and empty. The defendant told him Bobby Singh who had visited a few days earlier had instructed removal of all office equipment and all remaining vehicles to the Elava premises. The LV employees confirmed that this had in fact taken place and had occurred prior to Panjawanis visit and that some vehicles had to be towed because they were awaiting parts. When Panjawani confronted the defendant he said his response was he could not disobey Bobby Singh as the vehicles were the property of Mr Bobby Singh. Something Panjawani could not understand as the defendant was the local manager not Mr Singh.

He said he was further surprised to learn that on 02 February 2010 one Mr Laulu Dan Stanley a previous accountant for Alnima had without authorization written to the Immigration Authorities cancelling the defendants Alnima work permit and seeking a new permit for the defendant whom the letter said had recently started working for Singapore Motors Limited. A company that involved new investors from Singapore.

On 10 February 2010 Immigration cancelled the defendants Alnima permit and issued a new 3 year visa sanctioning his employment by Singapore Motors Limited. Correspondence produced before the court showed that Stanley had initially written to Immigration on 31 December 2009 on Singapore Motors letterhead advising of the change and indicating that he was with the defendant a director of the new company which was in the automotive selling business. The letter also stated the company had leased the Elava premises as from August 2009.

The company records produced to the court show that as far back as 04 June 2009 the defendant and Stanley had applied to incorporate Singapore Motors Enterprises Limited with them as sole directors. Singapore was incorporated on 04 June 2009. On 02 February 2010 Bobby Singh replaced Stanley as company director. There seems little question that theevents in June 2009 in relation to the formation of Singapore Motors Enterprises Limited took place without the knowledge or approval of the original owners of Alnima whom the defendant was purportedly working for. And that the defendant while employed as a manager of Alnima seemed to be in secret partnership with Stanley in a competing business.

The defendants evidence:

The defendants evidence was that Alnima was a fifty-fifty partnership between Panjawani and Bobby Singh and that he was specifically told to report to Balwin Exports and Bobby Singh in Singapore. I could find no evidence to substantiate this. Bobby Singh remains a shadowy figure in this entire exercise and he did not appear as a witness to support what the defendant was saying. This assertion by him must be rejected.

The defendant also said that he was told his initial salary was $1,800 but that as the business improved the issue of a personal commission for him would be considered. The company also agreed to meet his accommodation and other expenses. He said that in May 2009 Singh and Panjawani visited and were satisfied in all respects with the operation. He therefore raised the issue of a commission with Singh who told him that he would discuss the matter with his partner Panjawani. He was subsequently advised that Panjawani objected to payment of such a commission and said that Singh told him to go and start his own business. He then told Panjawani he was resigning as manager of Alnima Motors and went out and with Stanley formed Singapore Motors Enterprises Limited.

I have some difficulties with this evidence. Firstly and significantly, as noted Bobby Singh was not called as a witness in these proceedings. Secondly the question must be asked why did he not approach Panjawani directly on the issue of his commission and resignation. Thirdly all this is contrary to Panjawanis evidence. Fourthly it makes little sense that Panjawani who I assessed to be a deliberate and methodical businessman would agree to this and then continue to retain the defendant on his payroll as an independent country manager with full control of all bank accounts and company operations.

The defendant made no secret of the existence of Singapore Motors. Several witnesses testified as to a sign in plain view of all opposite Farmer Joes in the Elava Motel yard where Singapore Motors was located. Farmer Joes being one of the busiest supermarkets in town. It was plain to the LV employees and therefore would have been to others that the defendant was now operating out of the Elava premises. Further that the car population at Alnima at Lepea was decreasing. All these lead me to the conclusion that initially Alnima Motors were not aware of what the defendant was doing. Hence his continued role as country manager for the company. But that subsequently they became so aware probably when Moosa came to town in or about July 2009 and reported these matters back to Panjawani leading to Panjawanis trip in February 2010. It is not a coincidence that before Panjawani arrived the last of the Alnima cars were removed from its premises at Lepea and transferred to the "new" premises of Singapore Motors.

Analysis:

The first ingredient the prosecution must prove beyond reasonable doubt in a theft as a servant case is that the defendant was an employee of Alnima at the relevant time. The defendant maintained and argued that from June 2009 onwards he was no longer an employee he having resigned around the end of May. That is a ludicrous argument. The evidence clearly showed he continued to draw his monthly salary from the business until at least October 2009. The email correspondence that he was sending back and forth belies his claim because it is plainly in terms of an employee reporting and corresponding with his employer. The term "boss" is used in several emails from the defendant to the company directors. Furthermore there was no indication to people that he dealt with that he was now working for someone else. He continued to run and operate Alnima as before, making sales, dealing with clients, negotiating payments and the terms thereof, ordering and authorizing payments for shipments, clearing and uplifting shipments and so forth. All indicia of the employer-employee relationship continuing. As late as 29 December 2009 he was signing company cheques for substantial sums. See Exhibit "P-24" for the prosecution which includes cheque for a payment of $58,314.14 to the Westpac Bank. I have little difficulty in rejecting this argument. I find the first ground established beyond reasonable doubt.

The second element the prosecution must prove beyond reasonable doubt is that there was an unlawful taking in terms of section 85, in other words that there was a taking and converting to the use of a third party something capable of being stolen. That of course seems beyond dispute. Indeed it was conceded at the outset by defence counsel who pointed out the real defence being run was of mens rea. It is clear that the cars by mid-February 2010 had all been removed from the Alnima Lepea premises and transferred to either Savalalo or Fugalei where they were being sold by the defendant or placed for sale by him under the auspices of Singapore Motors Limited. This ingredient also requires as counsels have correctly identified proof that the defendant acted fraudulently or dishonestly with intent to deprive the owner permanently of its property in the goods: section 85(1)(a).

I am satisfied the defendant acted fraudulently and dishonestly. He well knew the cars were purchased by Alnima, he was at the centre of every transaction. He seems to be a reasonably intelligent fellow capable at his job which was to sell the cars and bank the proceeds to the Alnima bank account. The issue of payment by Alnima for the cars to its supplier Balwin or to Mr Singh to whom the defendant now had a new loyalty because he became involved in the Singapore Motors operation was a separate and distinct issue. In any case the documentary evidence produced in this case shows that payments were in fact made to the supplier Balwin. According to Exhibit "P-18" for the prosecution Balwin had been overpaid.

I am also satisfied beyond reasonable doubt the defendant took the vehicles with an intent to permanently deprive the owner of its property. The documentary evidence is overwhelming. See Exhibits "P-12" and "P-13". The vehicles were shipped by Balwin in Sinapore to Alnima in Samoa. Each Bill of Lading which is prepared on the instructions of the shipper lists Alnima as the consignee. All relevant documents are in the name of Alnima. The defendant as local manager cleared the shipments and attended to payment of customs duty, wharfage and all other charges. Balwin invoiced Alnima for each vehicle. The defendant again as local manager paid Balwin not for each shipment but as per Exhibit "P-18" by lump sum telegraphic transfers to Balwins Singapore bank account. The defendant signed various documents on behalf of Alnima including the telegraphic transfer bank documents which reads inter alia "Signature of remitter confirming that all payment details are correct". Each transfer had to be supported by the relevant transaction documents. The defendant set the price for each vehicle, negotiated their sale and where necessary payments by installment of the purchase price. And he purported to convey on behalf of the company to the buyers good title to the vehicles.

These establish beyond reasonable doubt that the vehicles were the property of Alnima Motors Limited and that the defendant was well aware of this. And that in taking and selling them from the new companys yard, he stole them with intent to deprive the true owner of its property. His argument that not withstanding all this the cars still belonged to Balwin and he was therefore justified in removing and selling them from the Singapore Motors yard rings hollow like the empty drum that it is.

He seems to be saying that he had a reasonable and honest albeit possibly mistaken belief that because the vehicles had not been paid for they therefore still belonged to Balwin. The problem with that argument is there exist no reasonable grounds for holding such a belief. And I doubt very much if such a belief was honestly held by him. If in fact he had bothered to check his records which he should have as a good and responsible manager he would have found what Panjawani found namely the vehicles had been paid for and in fact there was an overpayment to Balwin. Indeed he could have ascertained that easier than Panjawani who testified that on his February 2010 visit he was supplied inadequate documents by the defendant and had to go to many different places to source relevant documentation. Documentation which the defendant conveniently was unable to locate.

The defendants case is as unconvincing as he was on the stand. Where his answers even allowing for language difficulties where unnecessarily embellished and complicated. Simple questions received lengthy replies to matters not asked for. His logic on some issues such as for example his assertion that Bobby Singh was somehow an "investor" in Alnima because he supplied the cars to Alnima made little sense and flew in the face of the documentary evidence. His case is not assisted by his failure to call either Singh or Stanley who may have bolstered his credibility.

In reaching these conclusions I have placed no reliance on Exhibit "P-23" for the prosecution which is an unsigned record of an interview of the defendant under caution by Sergeant Tauati the police investigating officer of this case. The sergeants evidence was the defendant initially agreed to give the cautioned statement but at the end of the interview he read and refused to sign it. He did not explain to the sergeant his reasons why. I have formed the view that this document should not be admitted into evidence or in any way relied upon. Apart from not wishing to create an undesirable precedent by admitting unsigned incriminating statements of suspects, it would not in my view be safe to rely on such a document. I am also concerned that the statement seemed to take an inordinate length of time from 4:50 pm to 10:00 pm with roughly two 20 minute breaks in between. Although I accept the defendant can be very difficult to understand at times because of his heavy accent. Even if the cautioned statement overcame the hurdle of voluntariness I still have no hesitation in rejecting it in the exercise of the courts residual discretion. Something that is recognized in many previous decisions.

It would be clear from the findings made that I reject the defence argument that the identification of the vehicles alleged to have been stolen has not been established. The argument cannot succeed in light of the defence concession at the outset that the cars were brought into Samoa, in counsels words that they "actually arrived in Samoa" and that the relevant shipping and other documents could be tendered as they were by consent as Exhibit "P-12" and "P-13". These established that all 31 vehicles were shipped by Balwin from Singapore to Alnima as consignee in Samoa. And according to "P-18" for the prosecution they were all paid for by Alnima.

The defendant in his testimony said that of the 31 vehicles 28 were not paid for and that he removed or caused to be removed these 28 vehicles from the Lepea yard to the Singapore Motors premises. Further that he sold them as Singapore Motors stock because according to him they rightly belonged to Singapore Motors. See pages 42 – 46 of his evidence in chief. The 28 cars in question were identified at the end of a list of all the cars supplied by Balwin to Alnima that he produced as Exhibit "D-4" for the defence. I note the prosecution objected to the admissibility of this document but I fail to see why as it assisted their case. But their objection was not pursued in final submissions even though they were given the opportunity to do so. The document was therefore accepted and forms part of this case.

Exhibit "D-4" shows that 25 of the 31 Alnima vehicles were removed to the Singpore Motors yard and sold as Singapore Motors stock. The 25 have been sufficiently identified. Hence the defence argument that the vehicles alleged to have been stolen have not been identified can only be sustained in respect of 6 of the 31 vehicles. These 6 being the vehicles involved in charges numbered 3,4,5,6,10 and 22. The rest were confirmed by the defendant as having been transferred to the yard and sold as Singapore Motors stock. For ease of reference and using the defendants stock numbers in Exhibit "D-4" and the column marked "S No," I will outline the 25 vehicles referred to: B34 corresponds with the vehicle in charge number 1, B52 corresponds with the vehicle in charge number 2, B72 corresponds with the vehicle in charge number 7, B87 corresponds with the vehicle in charge number 9, B89 corresponds with the vehicle in charge number 8, B93 corresponds with the vehicle in the charge number 11, B100 corresponds with the vehicle in charge number 12, B102 corresponds with the vehicle in charge number 13, B103 corresponds with the vehicle in charge 18, B106 corresponds with the vehicle charge 14, B107 corresponds with the vehicle in charge 19, B108 corresponds with the vehicle in charge 20, B109 corresponds with the vehicle in charge 15, B112 corresponds with the vehicle in charge 16, B113 corresponds with the vehicle in charge 17, B123 corresponds with the vehicle in charge 24, B124 corresponds with the vehicle in charge 23, B127 corresponds with the vehicle in charge 21, B128 corresponds with the vehicle in charge 27, B129 corresponds with the vehicle in charge 25, B131 the vehicle in charge 26, B133 the vehicle in charge 28, B134 the vehicle in charge 30, B135 the vehicle in charge 29 and B136 the vehicle in charge 31. Those represent the 25 vehicles that the defendant testified about and Exhibit "D-4" shows they were removed from the Lepea premises to the new Singapore Motors premises; indeed "D-4" lists them as "stock transferred to Singapore Motors".

The third and final ingredient of theft as a servant that the prosecution must prove is that at the relevant time all 31 vehicles were the property of the employing company Alnima Motors Limited. This has been covered by the courts finding above as to ownership of the vehicles and I find it therefore established beyond reasonable doubt.

The end result is as follows: Informations numbered 1,2,7-9,11-21 and 23-31 have been proven beyond reasonable doubt. Those numbered 3 to 6, 10 and 22 fail as it has not been proven the vehicles in those charges were in fact removed from the Lepea premises, taken to the Singapore Motors premises at Savalalo and Fugalei where they were disposed of by the defendant as Singapore Motors stock. Those six informations are accordingly dismissed.

I did raise with counsels at the end of the evidence the possibility that if the evidence fell short of proving theft as a servant beyond reasonable doubt, whether the court could convict the defendant of the lesser charge of unlawful conversion pursuant to section 91 of the Crimes Ordinance. In view of my findings above it is unnecessary to explore this option. But because both counsels addressed it in their submission, as a matter of courtesy I would state that even if I had a reasonable doubt about the defendants conduct, I would have been satisfied beyond reasonable doubt as to his guilt in respect of this secondary charge of unlawful conversion. In that he unlawfully converted the vehicles to his own use and sold them as stock belonging to his newly formed company. He said he was only a minor shareholder in that enterprise but the company documents show him to be more than that. In the absence of anyone such as Bobby Singh, his evidence cannot be accepted. He is therefore deprived of the protection of the colour of right defence to that charge.

I would also have no difficulty invoking the relevant parts of section 36 of the Criminal Procedure Act 1972 by making the necessary amendments to the charges. If the court had followed that course of action no prejudice would result to the defendant because the essential and relevant facts for the purposes of such amended charges would remain the same. It would only be a question as to the proper interpretation and construction of said facts. Neither would the defences raised be any different. Because dishonest taking is also an essential ingredient of unlawful conversion. Any prejudice could have also been cured by an adjournment as permitted by section 36(4). Sections 37 to 39 which counsel cited in their submission do not with respect have any application to this particular issue.

Finally I am grateful to counsels for their well presented and written submissions. The prosecution as they are required to do by the onus of proof presented their submission in a format that was easy to follow given the myriad of documents produced as part of their case. I commend them for that. Mr Leung Wai has also I believe said all that can be said in respect of his client.

It now remains to set a date counsels to deal with sentencing of the defendant on the 25 charges that the court has found established. Your client needs a probation report so Mr Leung Wai please make sure that he sees the probation office as soon as possible. Mr Fareed your matter is adjourned to the 12 March for sentence and as you heard me tell your lawyer you need to go to the probation office and get a probation report and tell them the date of your case is 12 March. Conditions of your bail will continue until that day.

..........................
JUSTICE NELSON