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Kumari v The State [2004] FJHC 257; HAM0069D.2004S (2 November 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO: HAM0069 OF 2004S

Between:

VEENA KUMARI
Applicant

And:

THE STATE
Respondent

Hearing: 1st November 2004
Ruling: 2nd November 2004

Counsel: Mr. M. Raza for Applicant
Mr. N. Lajendra for State

RULING ON BAIL PENDING APPEAL

The Applicant applies for bail pending appeal to the High Court. She was charged in the following terms:

Statement of Offence

OBTAINING MONEY BY FALSE PRETENCE: Contrary to Section 309(a) of the Penal Code, Cap. 17.

Particulars of Offence

VEENA KUMARI d/o Hazara Singh, between the 27th day of February 2001 and the 12th day of April 2001 at Navua in the Central Division, with intent to defraud, obtained $31,367.58 cash from Kamlesh Chand s/o Moti Chand by pretending that she was in a position to arrange for a migration visa to United States of America for the said Kamlesh Chand s/o Moti Chand and his family.

She was convicted of the offence on the 23rd of July 2004 and was sentenced to 18 months imprisonment on the 3rd of September 2004. She now applies for bail on the ground that the appeal is bound to succeed and that the Applicant’s daughter a 12 year old child is psychologically affected by the absence of her mother. A report by a Child and Adolescent Psychiatrist is attached to the affidavit of the Applicant’s husband. The report states that the child, Cynthia Riya Khan is suffering from an Adjustment Disorder with Depressed Mood. The source of her situation is separation from her mother.

The grounds of appeal set out in the petition of appeal dated the 28th of September 2004 are:

1. That the learned Trial Magistrate erred in law and in fact in convicting the accused on the basis of evidence which he ruled to be inadmissible.
   
2. That the learned Trial Magistrate erred in law and in fact when he failed to consider all the elements of the offence.
   
3. That the sentence is harsh and excessive.
   

Although the court record is not yet available for my perusal, a copy of the judgment has been given to me by counsel. The facts led in evidence were that Kamlesh Chand and his family wanted to migrate to the United States of America. The Applicant was introduced to Kamlesh Chand’s wife (PW1) by her sister (PW2). PW1 and the accused spoke on the telephone. The accused told PW1 that she knew people at the American Embassy and that she could arrange visas for the family to travel to the United States. On the 27th of February 2001, the Applicant visited the house of the complainant and had further discussion with him and with PW1. She told them that she could arrange the visa within a week and that it would cost more than $2,500. PW1 then gave $1,140 to the Applicant with 4 passports.

On the 28th of February 2001, the Applicant told PW1 that she had lodged the applications at the Embassy and that she needed a further $1,400 and some passport photographs. On the 12th of March 2001, the Applicant again spoke to PW1 and obtained a further $2,400 from PW1 saying that this sum was needed to “stamp” the visa. In April 2001, she asked for a further $13,927 cash which was paid to her by the complainant. A week later, she obtained a further $12,500 from the complainant. In total she obtained a total of $31,367 from the complainant and PW1.

The State alleged that she was in no position to deliver her promises and that she made false representations that she was in such a position. No part of the money was ever returned to the complainant’s family. The complainant died before trial, but his wife, PW1 gave evidence.

The learned Magistrate said that PW1’s evidence that the complainant had paid the sums of $13,927.58 and $12,500 to the Applicant, was hearsay and inadmissible. However in her caution interview the Applicant admitted receiving all the cash, including the two sums from the complainant. This statement was voluntary and was not disputed by the defence as to admissibility. The learned Magistrate found the interview to be sufficient evidence on its own to prove receipt of the money, the purpose for which it was given, and the failure to fulfil that purpose.

It is correct that the learned Magistrate failed to identify specifically the elements of a section 309(a) offence under the Penal Code. However he said in his judgment at page 6:

“In her caution interview, the accused admitted being involved with the complainant’s family in arranging their visa to the United States of America. She admitted receiving a total of $31,627.58 cash from the complainant and her family, at the material time. PW1 said her family did not receive any visa from the accused. They also did not receive their $31,627 cash back. In my view, she obtained $31,627 cash from the complainant and his family by falsely pretending to arrange their United States travel visa, when she well knew she was incapable of doing so. I accept PW3’s evidence and accept the accused’s confession in Prosecution Exhibit No. 1.”

It appears therefore that the conviction is based on the contents of the Applicant’s caution interview. Because I do not have the interview before me, it is impossible to ascertain whether there are admissions in relation to each element of the offence. Those elements are that:

1. The Applicant;
2. Obtained money;
3. With intent to defraud;
4. By;
5. A false pretence;
6. For her own use or benefit or for the use or benefit of another.
   

The false pretence alleged was that the Applicant was in a position to obtain visas for the complainant’s family. There was no reference to the falsity of that pretence in the judgment. I do not know whether the Applicant admitted that the pretence was false in fact. It is at least arguable that there was no evidence of the falsity in fact of the pretence, because the learned Magistrate appears to have treated evidence of failure to produce the visas as evidence of falsity. This ground will have of course to be properly argued at the appeal proper when the record is available but counsel has shown that he has at least an arguable ground of appeal that the falsity alleged was not the falsity referred to in the judgment. However, it is not enough to show an arguable ground of appeal.

The principles relevant to bail pending appeal are that a substantial portion of the sentence will have been served when the appeal is heard, any merits in the appeal and any other exceptional grounds. In considering merits in the appeal, the court must conclude that there are grounds which are bound to succeed. Given the learned Magistrate’s analysis, set out earlier in this Ruling, I cannot say that this appeal, although arguable, is bound to succeed.

The status of the Applicant’s child does however give grounds for concern. Clearly the child is traumatised by her mother’s incarceration and talks of death being preferable to living without her mother. Much of her stress appears to arise from her embarrassment that her mother is a criminal and from the publicity involved in the trial. However, if I were to grant bail, and if the appeal failed, the Applicant’s daughter would once again be exposed to the same shame she is exposed to now. I am concerned that the Applicant’s release will give rise to false hopes in the mind of her daughter which would subject her to even greater trauma if the appeal against conviction and sentence failed. I am not persuaded that the child’s welfare, although a primary consideration in any bail application, constitutes exceptional grounds in this case.

Lastly, the Applicant has been sentenced to 18 months imprisonment. She has served 2 months of this term. The record must be in the High Court within 28 days. Unfortunately it is already 6 days late. However, if the appeal is heard this year, (and subject to the availability of the record, there is no reason why it should not be) the Applicant will only have served 3 months of her 18 month term of imprisonment at the hearing of the appeal. This is not an excessively long period.

The application for bail is therefore dismissed. However to ensure that the appeal is dealt with expeditiously, I will set a mention date for the 16th of November 2004 to check on the availability of the record. If the record is not available, and it is likely that the appeal will not be heard until 2005, I will reconsider this application.

Nazhat Shameem
JUDGE

At Suva
2nd November 2004