Fareed v Police [2012] WSSC 48 (31 May 2012)

Supreme Court of Samoa

Fareed v Police [2012] WSSC 48

Case name: Fareed v Police

Citation: [2012] WSSC 48

Decision date: 31 May 2012

Parties: ARSHED FAREED male of Pakistan and Fugalei.v Police

Hearing date(s): 29 May 2012

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Mr S Leung Wai for appellant
Ms L Taimalelagi for respondent

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
Stehlin v Police [1993] WSCA 5
Faafua v Police [2010] WSSC 33
Ulugia v Police [2010] WSSC 184
Police v Schuster [1996] WSSC 22
R v Ghosh [1892] 2 All ER 689 at 696
R v Clowes [1994] 2 All ER 316 at 330

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN: ARSHED FAREED, male of Pakistan and Fugalei.

Appellant

AND: POLICE

Respondent

Counsels: Mr S Leung Wai for appellant

Ms L Taimalelagi for respondent

Hearing: 29 May 2012

Decision: 31 May 2012

ORAL DECISION OF NELSON J

(Bail Application)

On Monday 30 April 2012 the defendant was convicted of 25 counts of theft as a servant and sentenced to 4½ years imprisonment on each count, terms to be served concurrently. He has appealed that conviction saying that the court applied the wrong test for dishonest intention, that in fact he was not acting dishonestly in removing the 25 vehicles which were the subject of the 25 charges and that the court failed to give adequate consideration to the defence evidence and case. Further that the trial judge erred in relying on the prosecution evidence as to identification of the 25 motor vehicles and also erred in finding that the defendant was at all material times an employee of the car company in question Alnima Motors Limited. Pending hearing of his appeal he seeks release on bail.

The position as to pre-appeal bail is governed by the guidelines laid down by the Court of Appeal Stehlin v Police [1993] WSCA 5 where the court said:

“The ordinary practice in other jurisdictions, such as New Zealand, is that bail is granted after a conviction and a custodial sentence only rarely. We accept that Samoan circumstances are sufficiently different to justify a more liberal approach here, bearing in mind the general importance of not taking away the liberty of citizens without solid reason. But the grant of bail is still essentially a discretionary judicial decision, normally for the Judge at first instance. Matters falling to be taken into account include the likelihood or otherwise of the person convicted absconding – a matter which is usually, though not invariably, judged by the seriousness of the offence; the length of the sentence; whether there appear to be any substantial grounds of appeal; and the period expected to elapse before a Court of Appeal sits again in Samoa. Those are not exhaustive, but they are the kind of considerations likely to arise and are to be borne in mind in reaching a decision. We think it would be undesirable for this Court to attempt to fetter the discretion by the Chief Justice or any Judge of the Supreme Court of Samoa in these bail cases. We propose to attempt to give no more general guidance than is conveyed by what has just been said. We add that in this particular case the appellant might be thought somewhat fortunate to have obtained bail, bearing in mind that the grounds of appeal put forward on his behalf are not strong (to put it conservatively) and that an appeal was expected to be heard within a little more than six months, as has in fact occurred.”

These guidelines have been applied in subsequent cases such as Faafua v Police [2010] WSSC 33 and Ulugia v Police [2010] WSSC 184. Applying the Stehlin requirements to the present case I find as follows: firstly on the likelihood of the defendant absconding. This was not addressed in the defendants submissions but the relevant factors are that he is a non-citizen who was brought to Samoa initially to work for Alnima Motors Limited. He was accordingly given a 3 year work permit which was subsequently rescinded on his application. A replacement work permit was granted by the Government authorities on his representation that he had changed employers. It is not known to me the current status of that permit or the current immigration status of the defendant. But it is clear he is a foreign citizen here only temporarily and as such flight risk is obviously a factor to be taken into consideration. Such risk is compounded by his conviction for serious criminal charges for which he has received a lengthy term of imprisonment.

Secondly whether the grounds of appeal are substantial or otherwise. The first ground to be argued in this appeal is that the court applied the wrong test. The submission here as per the notice of appeal seems to be that the court applied an objective instead of a subjective test for ascertaining dishonest intention. With due respect to counsel the test in this jurisdiction seems to me to be a mixture of the objective and the subjective. See Police v Schuster [1996] WSSC 22 where the learned Chief Justice opted for the English test which was stated in R v Ghosh [1892] 2 All ER 689 at 696 and in R v Clowes [1994] 2 All ER 316 at 330 to be whether the defendant was acting dishonestly by the standards of ordinary and decent people (the objective element) and if so whether he himself must have realised that what he was doing was by those standards dishonest (the subjective element). I also concur with the learned Chief Justices reasons for preferring the English approach to that applied by the New Zealand courts in this area.

This was the test applied to the defendants case. So that page 6 of the decision under the heading ‘Analysis’ contains the following passage:

“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 exists 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 second ground of the appeal is that he was not acting dishonestly but as explained in the above passage the defendants defence of honest intent was considered and ultimately rejected.

The third ground is that the court failed to adequately consider the defendants evidence and his defence. There is no merit in this ground. Page 6 of my decision also contains the following paragraph:

“The defendants case is as unconvincing as he was on the stand. Where his answers even allowing for language difficulties were 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.”

His evidence was considered but not accepted.

The next ground is the courts so-called reliance on the prosecution evidence identifying the 25 motor vehicles. This aspect is also dealt with beginning with the last paragraph on page 6 of the decision and over the page on page 7. It is clear from that the court relied not only on the prosecution evidence but on the defendants own Exhibit “D-4” and his evidence in the witness box that he removed 28 vehicles from the Alnima Lepea yard and sold them as Singapore Motors stock. This beyond all doubt sufficiently identified the vehicles in question.

The ground that the defendant was not an employee of Alnima. I am surprised the defendant continues to maintain his argument. The evidence was overwhelming. See page 5 of the decision which stated:

“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 e-mails 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.”

The difficulty with this argument of the defendant always was that it was the defendants word against all the other pieces of evidence. And the defendant was not in my evaluation a credible witness. The grounds being advanced for the appeal in my respectful opinion are devoid of substance.

The third Stehlin requirement is the period before the next Court of Appeal sitting. This is currently scheduled for October 2012 just over four months away. This is not an unreasonable delay, a six month delay in Stehlin was considered reasonable and acceptable.

The defendant in this case has also argued that he as a Muselum and a foreign citizen has been the subject of racial discrimination and unfair treatment in Tafaigata Prison. This point was made in oral submissions by counsel. Unfortunately no affidavits detailing the specifics of such an allegation have been filed and the court is therefore not in a position to assess whether there is any merit to this ground. It is also to be noted that the defendant is not the first foreign citizen to be imprisoned at Tafaigata and there has been no evidence thus far or in previous cases of such behaviour at the prison or that it would be tolerated by the prison authorities. The court must also be careful not to confer special or preferential treatment on foreigners over local citizens also serving imprisonment terms.

The blindfold worn by the Roman goddess Justitia is a symbol often used to convey notions of justice. It represents how justice in its application is blind to the ethnicity and personal identity of its recipients. And underlies the concept that justice must always be delivered in an impartial fashion without fear or favour and without discrimination on the basis of race, creed, colour or religious persuasion or belief.

I echo the words of my brother Vaai J in Ulugia v Police [2010] WSSC 184: Bearing in mind that the granting of bail to convicted persons is the exception rather than the rule and that the onus is on the appellant to provide good cause as to why bail should be given; and having regard to the relevant tests and matters referred to above, bail is refused and this application is dismissed.

JUSTICE NELSON