Court of Appeal of Fiji

[12] In Morgan v Lal [2018] FJCA 181; ABU132.2017 (23 October 2018) Calanchini P said on an instance of a ‘question of law’:

‘[9] The immediate issue that is properly before the Court of Appeal at the leave stage is whether any of the grounds of appeal raise an error of law alone. To that end the issue is whether the learned judge has applied the correct test for determining whether Morgan should be granted leave to appeal the Master’s interlocutory Ruling. This is not the same as the question whether the learned Judge has applied the test for granting leave correctly. The first question does not involve the exercise of a discretion and is a question of law only. The second question does raise the issue whether there has been an error in the exercise of the discretion whether to order security for costs and my opinion involves mixed law and fact.’

[13] In Ledua v State [2018] FJCA 96; AAU0071.2015 (25 June 2018) once again Calanchini P had identified what can be regarded as a question of law in relation to a decision on an application for enlargement of time in the High Court.

‘[5] .............Put another way, the issue is whether the learned High Court Judge has applied the correct test for determining the application for an enlargement of time rather than whether he has applied the test correctly. In my opinion the first question involves question of law only and the second involves a question of mixed law and fact.’

[14] In another instance in Turaga v State [2016] FJCA 87; AAU002.2014 (15 July 2016) where the High Court dismissed the appellant’s application for an enlargement of time to appeal against sentence without giving the appellant an opportunity to be heard and without reasons for the dismissal, Goundar J. held the following grounds of appeal to be questions of law alone.

1. The Learned Appellate Judge erred in law when he dismissed the Applicant’s application without hearing the Applicant contrary to Section 256(1) (a) of the Criminal Procedure Decree.
   
2. The Learned Appellate Judge erred in law when he failed to give a written ruling stating the reasons for the dismissal of the Applicant’s application seeking leave to appeal out of time contrary to Section 27 of the High Court Act Cap.13 (formerly Supreme Court Act Ca.
   

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Grounds of appeal

[15] The egrounds of appeal urged on behalf of the appellant are as f as follows:

Grounds of Appeal

Ground 1

THAT the Learned Judge erred in law in holding that the Learned Magistrate had not properly evaluated the evidence adduced at the trial when the Learned Magistrate had in fact applied all the correct legal principles relating to the charge, considered the State’s case, considered the evidence of all State witnesses, considered the evidence of all Defence witnesses and having analyzed the key facts came to the conclusion that the Appellant was not guilty of the offence.

Ground 2

THAT the Learned Judge erred in law in substituting his own views and inferences about the matters contained in paragraph 47 of the judgment to make the finding that these factors constituted corroborative evidence of the Appellant’s guilt when none of these factors had any corroborative value at all about the core legal issue i.e. whether the Appellant knew, or ought reasonably to have known, that the money held in ANZ bank account number 12339449 on account of Chunxiao Tour Company was derived or realized, directly or indirectly, from some form of unlawful activity. The matters set out in paragraph 47 are speculations made by the Learned Judge.

Ground 3

THAT the Learned Judge erred in law in substituting his own views and inferences about the evidence of Aradhana Singh and Tikoduadua as being credible, reliable and truthfully and without any proper lawful basis or analysis disregarded the evidence of Annie Gu [paragraph 6 of the Judgment] and ruled that Annie Gu’s evidence was not credible.

Ground 4

THAT the Learned Judge erred in law by substituting his own findings and inferences at paragraph 40 of the judgment by holding without any lawful basis that the evidence and materials at the trial provided a basis to suggest that Annie Gu was either a participant or involved in this crime either unintentionally or ignorantly and hence the Court must proceed with caution in evaluating her evidence when the Prosecution never suggested or led evidence to suggest that Annie Gu was either a participant or involved in the crimes either unintentionally or ignorantly.

Ground 5

THAT the Learned Judge erred in law by substituting his own views and inferences about the Appellant paying rent on one occasion for Chunxiao Tour Company as well as the usage of the Appellant’s mobile phone by Mr Ling on a few occasions to come to the conclusion that such evidence could be used to infer that the Appellant knew or reasonably ought to have known about the matters and transactions of Chunxiao Tour Company and flowing on from that making the further inference that the Appellant knew or ought reasonably to have known that the moneys in Chunxiao Tour Company’s bank account had been derived or realized from the credit card skimming or any unlawful activities involving the EFTPOS machines [page 47 and 48 of the Judgment]. There was nothing unreasonable about the findings and inferences made by the Learned Magistrate on the same evidence that warranted the Learned Judge to set aside the decision made by the Learned Magistrate.

Ground 6

THAT the Learned Judge erred in law in saying that the Learned Magistrate’s comments about the expatriate Chinese community at paragraph 114 of her Judgment did not fall within the category of evidence that could be taken into account by way of judicial notice when in fact the Learned Magistrate was entitled to rely on her own local knowledge as long as it was properly and within reasonable limits. It is a widely known fact in Fiji that minority communities do network and work closely together to assist each other especially where there is a language barrier when it comes to down to engaging in business or other activities in English.

Ground 7

THAT the Learned Judge erred in law in substituting his own views and inferences about the credibility of witnesses and the evidence adduced in the Magistrates Court when there was nothing unreasonable or manifestly erroneous about the analysis and conclusions made by the Learned Magistrate on whether the Appellant knew or ought reasonably to have known that the funds for the two cheques totaling $10,000.00 given by Mr Zu Haiming a.k.a Mr Ling to Yiwu International to purchase goods from Yiwu International had been derived from some form of unlawful activity.

Ground 8

THAT the Learned Judge erred in law in paragraph 55 of the Judgment where he held that the Prosecution had proved beyond a reasonable doubt that the Respondent and the Second Accused knew or ought reasonably to have known that the money that they had withdrawn had been derived directly or indirectly from some form of unlawful activities when the only fact that had been established by the Prosecution was that the Appellant had cashed two cash cheques at ANZ Bank totaling $10,000.00 given by Mr Zu Haiming a.k.a Mr Ling to Yiwu International to purchase goods from Yiwu International. Inferences can only be drawn from established facts and not be drawn from opinions.

[16] Upon a perusal of the learned Magistrate’s judgment it appears that she had embarked on a detailed consideration of the evidence for both sides and had come to her finding of not guilty and acquitted the appellant. On appeal the learned High Court judge too had engaged himself in an equally elaborate discussion of the evidence and decided to find the appellant guilty only of the first count. It is not the function of this court at this stage to carry out a similar exercise; nor is it required, permissible or possible to undertake such a task without the full transcript of the proceedings in the Magistrates court (and perhaps the High Court).

[17] The only thing that requires the attention of the court at this stage is to see whether in fact there a question of law only that should go before the full court. The consideration of the bail pending appeal application is only incidental thereto, for if there is no question of law the appeal will be dismissed under section 35(2) of the Court of Appeal Act. However, even if the appeal passes that threshold and is allowed to proceed to the full court it does not mean that the appellant ipso facto is entitled to bail pending appeal, for merely because there is a question of law for consideration by the full court that would not necessarily guarantee the appellant a decision in his favour in the end.

[18] Perhaps, realising that all the grounds of appeal raised by the appellant are either questions of fact alone or of mixed fact and law the appellant’s counsel submitted that the question of law he raises is that the High Court judge had not applied the correct principles in determining the appeal. However, other than submissions there is no such ground of appeal raised in the notice of appeal. The grounds of appeal set out are all questions of fact alone or of mixed fact and law. None of them come under section 22 of the Court of Appeal Act.

[19] He cited Ram v State [2012] FJSC 12; CAV0001.2011 (9 May 2012) where the Supreme Court had stated:

‘80. ..............The function of the Court of Appeal or even this Court in evaluating the evidence and making an independent assessment thereof, is essentially of a supervisory nature, and an appellate court will not set aside a verdict of a lower court unless the verdict is unsafe and dangerous having regard to the totality of evidence in the case.’

[20] It has been held that as far as the Court of Appeal is concerned the test to be applied is not whether the conviction is unsafe and dangerous which is the law in the UK but not in Fiji. Section 23 (1) of the Court of Appeal Act providet the court shall alll allow the appeal if the court thinks that (1) the verdict should be side on the ground that it is unreasonable or (2) it cannotannot be supported having regard to the evidence or (3) the judgment of the court should be set aside on the ground of a wrong decision of any question of law or (4) on any ground there was a miscarriage of justice. In any other case the appeal must be dismissed. The proviso to section 23(1) enables the court to dismiss the appeal notwithstanding that a point raised in the appeal might be decided in favour of the appellant if the court considers that no substantial miscarriage of justice has occurred [see paragraphs [54] in Aziz v State [2015] FJCA 91; AAU112.2011 (13 July 2015)].

[21] It appears from section 251 of the Criminal Procedure Act that the decision being unreasonable and cannot be supported having regard to the evidence are two grounds upon which an appeal lies to the High Court but the appealable grounds are not limited to those two grounds. Section 256 shows that the High Court also has powers similar to the proviso to section 23(1) of the Court of Appeal Act.

[22] Therefore, ‘the verdict is unsafe and dangerous’ referred to in Ram does not appear to be the test applicable in Fiji given its unique statutory framework different from the UK. The ‘verdict is unsafe and dangerous’ is the statutory test applicable in the UK. In any event the observations of the Supreme Court at paragraph 80 in Ram had been made in a different context namely regarding trial by the judge with assessors in the High Court and not where a judge sits alone on an appeal. Ram has not laid down any specific test or principles for the High Court to follow in dealing with an appeal from the Magistrates court. What could be gathered as a general position of law from Ram is that the appellate court should evaluate and make an independent assessment of the evidence in carrying out the appellate function and be satisfied that the ultimate decision is supported by legal evidence and the guilt has been established to the requisite standard of proof namely beyond reasonable doubt.