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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 28 OF 2012
STATE
V
CHRIS RONIL SINGH
Counsel: Mr. S. Babitu with Ms. R. Uce for the State
Ms. J. Naidu for the Accused
Date of Hearing: 19th-23rdof October, 2015
Date of Summing Up: 26th October, 2015
SUMMING UP
Madam Assessor and Gentlemen Assessors,
[1] It is now my duty to sum up to you. In summing up the case I will direct you on matters of law which you must accept and act upon. You must apply the law that I direct you on in this case. On the facts however, it is for you to decide what facts to accept and what facts to reject. In other words, you are the judges of fact.
[2] If, in the course of this summing up, I express my opinion on the facts, or if I appear to do so, it is entirely a matter for you whether you accept what I say or form your own opinions.
[3] Both Counsel have made submissions to you at the end of the trial, about how you should find the facts of the case. That is their right. But you are not bound by closing submissions. If what they have said appeals to your own sense of judgment, then you may accept them. You are the representatives of the community at this trial and you must decide what really happened in this case.
[4] You will not be asked to give reasons for your opinions but merely your opinions themselves. Your opinions need not be unanimous although it would be desirable if you could agree on them. Your opinions are not binding on me but they will carry great weight with me when I come to deliver my judgment.
[5] On the question of proof, I must direct you as a matter of law, that the prosecution bears the burden of proving the Accused's guilt. That burden remains throughout the trial upon the prosecution and never shifts. There is no obligation upon the Accused person to prove his innocence. Under our system of criminal justice, an accused person is presumed innocent until he is proven guilty.
[6] The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the Accused person before you can express an opinion that he is guilty. If you have any reasonable doubt about the guilt of the Accused you must express an opinion that he is not guilty. You may only express an opinion of guilt if you are satisfied so that you are sure that he committed the offences alleged.
[7] Your deliberations must be based solely and exclusively upon the evidence which you have heard in this court and upon nothing else. You must disregard anything you may have heard or read about the case outside this court. Your duty is to apply the law to the evidence you have heard.
[8] In assessing the evidence, you are at liberty to accept the whole of the witness's evidence or part of it and reject the other part or reject the whole. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he/she evasive? How did he/she stand up to cross examination? You are to ask yourselves, was the witness honest and reliable.
[9] Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence of a person who saw heard and felt the offence being committed. Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, statement of Tax Account is an example, if you believe that such a record was made. Then you can act on such evidence. You can take into account the contents of the document if you believe that contemporaneous recordings were made at the relevant time on the document.
[10] Now I must direct you on circumstantial evidence. A lot of evidence relied upon by the State in this case is not capable of proof of guilt in itself, but when it is looked at altogether it may create a body of evidence that could lead to an irresistible inference of guilt. Therefore you must consider all direct evidence as well as circumstantial evidence.
[11] It must not be mere speculation guesswork. It is not sufficient that the proved circumstances are merely consistent with the Accused person having committed the crime. To find him guilty you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the Accused person committed the crime.
[12] Circumstantial evidence is powerful evidence, but it is important that you examine it with care. Before you can draw any reasonable inferences you must first be satisfied beyond reasonable doubt that the evidence given by witnesses relating to the circumstances giving rise to the issues of fact to be proven is credible and truthful.
[13] In this case the Prosecution and the Defence have agreed on certain facts. You have been given copies of the Agreed Facts. The Agreed Facts are part of the evidence and you should accept these Agreed Facts as accurate and the truth.
[14] The Accused is charged with Money Laundering. The prosecution must prove the following elements beyond reasonable doubt:
I. The Accused,
II. Engaged directly or indirectly in a transaction involving money or other property, that is a proceed of crime or
III. Received, possessed, concealed, used, disposed of or brought into Fiji any money or other property that are proceeds of crime, or
IV. Concealed or disguised the true nature, origin, location, disposition, movement or ownership of the money or other property derived directly or indirectly from a serious offence or a foreign serious offence,
V. With knowledge the money was derived from some form of unlawful activity.
[15] According to the Information or charge that you have before you Prosecution is running this case on the basis that between 9th September 2005 and 29th September 2005, the Accused, Chris Ronil Singh, had disguised true ownership of money in the sum of $ 47,734.58 which had been derived directly from a serious offence, knowing or ought reasonably to be knowing that the said sum had been derived or realized directly or indirectly from some form of unlawful activity. So, Prosecution, in this case, must prove that:
[16] I. Accused, Singh,
II. Disguised true ownership of money in the sum of $ 47734.58,
III. Which had been derived directly from a serious offence,
IV. Knowing or ought reasonably to be knowing that the said sum had been derived or realized directly or indirectly from some form of unlawful activity.
[17] I will now remind you of the prosecution and defence cases. In doing this it would not be practical for me to go through the evidence of every witness in detail and repeat every submission made by counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence or a particular submission of counsel that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.
Case for the Prosecution
[18] First witness for the Prosecution was Ashok Chand. He is the accountant entrusted with the task of handling the tax returns of Sirin K.R.Riyaz. He identified the statement he made to Police on 11thMay 2007 (PE.2) regarding the incident. His statement, being an agreed fact, was read in evidence.
[19] He confirmed receiving the cheque bearing No.100668 in the sum of $ 3,834.96 drawn in favour of his client Sirin K.R. Riyaz from the Fiji Revenue and Customs Authority (FIRCA). It was meant for her Income Tax refund for the year 2000. He handed the cheque over to the brother of his client, Sahim Khan, to be sent to Sirin K.R. Riyaz.
[20] However, he received a fax dated 10thFebruary 2006 (PE.1) from Sirin K.R.Riyaz stating that she had not received the income tax refund cheque. He then informed the Inland Revenue Department whereupon a stop payment order was issued on the cheque. Thereafter, new replacement cheque bearing No.140459 had been issued. Replacement cheque had been withheld by the Department due to some problem. He was later informed by Satish Chand of FIRCA that the replacement cheque was under police investigation as a fraud case.
[21] Next witness was Sahim Arif Khan. He read his statement given to Police in evidence. He confirmed receiving the cheque bearing No.100668 in the sum of $ 3,834.96 drawn in favour of his sister SirinK.R. Riyaz from the accountant Ashok Chand. He had then sent the cheque to his sister in Auckland under registered post. His sister had not received the cheque. He confirmed receiving a fax dated 10thFebruary 2006 (PE.1) from his sister Sirin K.R. Riyaz stating that she had not received the income tax refund cheque. He forwarded the fax to accountant Ashok Chand.
[22] Lopeti Kau Tukana, retired Acting National Manager of FIRCA gave evidence next. He had been responsible for overseeing Tax operations including processing and issuing of Income Tax and Value Added Tax (VAT) refunds at the FIRCA headquarters in Suva. He said that when it was informed that the cheque No.100668 had gone missing, a new cheque bearing No.140459 in a sum of $3,834.96 was issued as a replacement cheque to Sirin K. R. Riyaz.
[23] It was later transpired that the cheque bearing No.140459 had been deposited in an account No. 5140250 at the Colonial National Bank (CNB) which did not belong to tax payer Sirin K. R. Riyaz. On 05/10/05, his Department had ordered a stop payment on this cheque as it was forged. The bank had carried out the stop payment order on the same day.
[24] He specifically stated that the cheque bearing number 140459 had not been issued to one Mohammed Taslim Khan. He further stated that the amount of the cheque had been altered. His office had issued it as an Income Tax refund only for $3,834.96. However, it was discovered to be a VAT refund cheque for $47,734.58.Impugned cheque was tendered marked as PE.5. He tendered a copy of Tax Account of Sirin K.R. Riyaz's marked as PE.6 to show that the impugned cheque had been issued to Sirin K. R. Riyaz as an income tax refund cheque.
[25] In cross-examination the witness said that tax refund cheques are prepared by a machine. He confirmed that the cheque 100668 was cancelled and cheque 140459 was issued to replace that missing cheque.
[26] Next witness was Satish Chand also from FIRCA. He said that he wrote to the Colonial National Bank requesting a stop payment on cheque number 140459 on 05th October 2005. He further said that he received a letter from the bank confirming that the stop payment was done.
[27] Next witness for the Prosecution was Amra Wati Singh. She is the mother of the Accused. When she was shown the extract of the computer generated Land Transport Authority (LTA) record kept in respect of Mohammed Taslim Khan (MFI.1), she identified the photo in it and confirmed that it was his son Chris Ronil Singh's photograph. However, she never knows a person named Mohammed Taslim Khan whose name appears in the document. She further said that her son, Ronil Singh had been living with her until he got married and had never used the name Mohammed Taslim Khan. She also said that she maintained the post box 7569 before she went to America and she used to get bank statements addressed to one Mohammed Taslim Khan which she had returned to the Postmaster.
[28] Then, banker Mohammed Azim was called by the Prosecution. He had been working for the Colonial National Bank (CNB) and its successor BSP since 2004. In 2005 he was responsible for opening new accounts and attending to customer queries. He said that he is the Customer Service Officer who opened the account bearing number 5140250 for one Mohammed Taslim Khan on 9thSeptember 2005. He said that the applicant must be physically present to open an account with proof of his identity. He said that he checked the learner's permit issued by the Land Transport Authority (LTA) to verify the identity the applicant. He also matched the signature of the applicant with that of the learner's permit. He identified the personal account application form filled by Mohammed Taslim Khan and tendered it marked as PE 10.
[29] He tendered the bank statement issued to Taslim Khan marked as PE.11. Perusing the Bank Statement, Azim said that an ANZ cheque in the sum of $47,734.58 issued by FIRCA had been deposited on 29th September, 2005 into the account opened by Mohammed Taslim Khan. By looking at the deposit slip (PE12), he said the cheque had been deposited by one Taslim.
[30] In cross examination, the witness said the original identity card was tendered and the same was matched with the person who was in front of him. He also said that not only the customer himself but anybody can deposit a cheque in an account. He admitted that Police had come and taken his statement two years after the account was opened.
[31] Last witness for the Prosecution was Makereta Masi of the Land Transport Authority. She said that in 2011, when she was based at Valelevu LTA office as the Team Leader, Registration and Licensing, Police came to her seeking information about two permits issued by her office.
[32] When she checked the system for records, based on the names given by the Police, she had discovered that the two permits had been issued to two different persons but both permits carried similar photographs. She identified the two extracts issued to Police in respect of the two permits, which the Prosecution had already marked as MFI.1 and MFI.2. Permit bearing No. 794920 (MFI.1) had been issued to one Mohammed Taslim Khan while the other permit bearing No. 823835 had been issued to Chris Ronil Singh.
[33] To obtain a learner's permit, the applicant has to be physically present at the LTA office to undergo a test, she emphasized. Applicant is also required to provide identification document such as the birth certificate, marriage certificated or passport, and a photograph, Makereta said.
[34] In cross examination, Makereta admitted that she only helped to gather information for Police and did not personally attend to the process of issuing any of these permits. She also admitted that she only described the normal procedure followed at her office.
That was the case for the Prosecution.
[35] When the Prosecution had closed its case, you heard me explain to the Accused his rights in defence. He could remain silent and say that the Prosecution had not proved the case beyond reasonable doubt; he could give evidence and be subjected to cross examination and call witnesses on his behalf. You are aware that the Accused elected to give evidence although he has nothing to prove in this case. He assumes no onus of proof. That remains on the prosecution throughout. He is under no obligation to prove his innocence. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
Case for the Defence
[36] Accused said that he used to work as a barber and became the owner of the barber shop he worked for in 2004. During that period he was living with his mother Amra Wati Singh in a rented house.
[37] Accused said that he did not have a bank account with Colonial National Bank at any time. He hadused only one name that is Chris Ronil Singh and he had never used the name Mohammed Taslim Khan.
[38] When he was shown Personal Bank Account Application Form (P10) he denied making such an application to the CNB and obtaining any service from Azim. However, he admitted that the learner's permit that had been used to open the bank account carried his photograph. He also admitted that he had applied for and obtained a learner's permit somewhere in 2007.
[39] Accused had no idea as to how his photo came to appear in the learner's permit issued to Taslim Khan. He said that he had given his passport and three similar photographs to one Salen, his customer, who had promised to secure a job in New Zealnad for him. Salen had gone missing after collecting all the documentation. Then he had reported the matter to Police.
[40] He admitted that his mother maintained the PO Box No.7569 which appears in the Personal Bank Account Application Form (P10) and said that he never received anything on it. However, he said he gave this number to 'overseas thing'.
[41] In cross examination, accused said that when he applied for a learner's permit in 2007, he was not required to undergo any test. He denied applying for a learner's permit disguising himself as Mohammed Taslim Khan. He also denied opening a bank account with the Colonial National Bank under a false name.
That is the case for the Defence.
Analysis
[42] It appears there is no dispute that the cheque bearing No.140459 (PE5) is a forged document. It had been drawn by the FIRCA as an income tax refund cheque amounting to $3,834.96in favour of tax payer Sirin K.R.Riyaz. It was not meant to be issued to a person named Mohammed Taslim Khanas a VAT refund amounting to $47,734.58.
[43] Forgery is defined by the Crimes Decree. It means making of a false document in order that it may be used as genuine. Document is false if any material alteration, either by addition, insertion, obliteration, erasure, removal or otherwise has been made to the document. Officers from FIRCA confirmed that the cheque bearing No.140459 (PE5) is a forged document. According to the definition in the Proceeds of Crimes Act, Forgery is a serious offence.
[44. The Prosecution is not required to prove that the Accused committed forgery before he can be found guilty of Money Laundering. What the Prosecution must prove beyond reasonable doubt to sustain the charge of Money Laundering is that the Accused knew or ought to have known that the cheque was forgery when he was engaged in a transaction.
[45] It is not in dispute that Mohammed Taslim Khan is not the true owner of the cheque 140459 (PE.5). Out of the total amount of $47,734.58, amount in the sum of $3,834.96 belongs to SirinK.R. Riyaz. The rest belongs to the FIRCA or the Government of Fiji. When the cheque is deposited in the bank account owned by Mohammed Taslim Khan, the true ownership of the cheque or the funds that it represents is disguised.
[46] Prosecution says that the whole process namely, obtaining a learner's permit from LTA under a false name, opening a bank account under the same false name and depositing the forged cheque in the bank account forms parts of well-planned scheme of money laundering orchestrated by the accused Chris Ronil Singh.
[47] The three issues remain to be resolved in this case therefore are:
[48] Knowledge is a state of mind. Generally, if it is to be shown to have existed, it must be inferred or deduced from the relevant circumstances existing before, at the time of or even after the use by the accused of the forged instrument or the cheque. Inferences are conclusions of fact rationally drawn from a combination of proved facts including the conduct or any statements of the accused. In the context of a criminal trial, where proof of knowledge or intention of the accused is required beyond reasonable doubt, you should not draw any inference from the direct evidence unless if you are sure it is the only rational inference in the circumstances.
[49] There is no direct evidence to show that the impugned cheque (PE.5) had been deposited by the Accused in the bank account opened under the fake name Mohammed Taslim Khan. If you are sure beyond reasonable doubt that the bank account into which the impugned cheque had later been deposited was opened by the Accused under the fake name Mohammed Taslim Khan, then you have no difficulty in drawing the inference that,at the time he opened the account, he had the requisite knowledge that the account is meant for money laundering.
[50] According to Makareta's evidence, learner's permit issued under the name of Mohammed Taslim Khan carried the photograph of the Accused. Even the Accused himself and his mother acknowledged that the learner's permit issued under the name of Mohammed Taslim Khan contained Accused's photograph. You have before you both the extracts marked as the MFI1 and MFI 2.
[51] Makareta emphasized the need of the physical presence of the applicant at the LTA office in order to obtain a learner's permit. Makareta, however, had not personally attended to the issuance process of the impugned learner's permit and hence she is not in a position to say that the Accused was in fact physically present at the LTA office with the photographs. She explained the general procedure adopted by the LTA officers in granting learner's permits. You can presume that the general procedure would have been adopted in this particular case too by the officer whosoever who had attended to this particular licensing unless contrary is proved.
[52] The Accused said that when he obtained his learner's permit in 2007, he was not required by the LTA to undergo any kind of test. However, he did admit that he had personally gone to the LTA office to obtain his permit. It is up to you to form your own opinion as to whether the Accused was the person who had obtained the learner's permit under the fake name Mohammed Taslim Khan.
[53] Makareta said that, merely by looking at the extract, she was not in a position to tell the Court when the impugned learner's permit had been issued. However, if you look at the extract MFI (1) carefully, client details had been entered to the system on 07th September, 2005. You can assume that the impugned learner's permit had been issued somewhere around that date.
[54] It is obvious that the Personal Account Application (P10) had been lodged two days thereafter on 9th September 2005 at the Colonial National Bank using the same learner's permit which contained the photograph of the Accused.
[55] Now you have to be certain, beyond reasonable doubt, that the person who had appeared at the counter of CNB with the Personal Account Application (P10) was none other than the Accused.
[56] You will find banker Mohammed Azim's evidence important in this regard. Azim said that he proceeded to open the account only upon being satisfied about the identity of the applicant. He had used the learner's permit 794920 (MFI.1) as the primary method of identification. He had matched the photograph it had with the person in front of him and also had matched his signature. You have before you today the photocopy of the photo identity card or the learner's permit MFI. Azim had obtained from the original which had been used to identify the customer appeared before him. Accused is sitting in the dock before you today. If you are satisfied that by matching the photograph contained in the learner's permit Azim could have properly established the identity of the Accused and if you are satisfied that the person who had appeared before Azim was none other than the Accused, you can safely act upon banker's evidence.
[57] On the other hand if you are not sure whether it was the Accused or not you must give the benefit of that doubt to the Accused and find him not guilty. Before you come to your final conclusion you must not forget to properly evaluate the evidence given by the Accused also.
[58] Accused denied having applied for a learner's permit and having opened a bank account under the name of Mohammed Taslim Khan. He blames one of his customers, Salen, for fraudulently using his photographs to obtain a fake learner's permit and using it to open a bank account.
[59] Accused said that he had given his photos and the passport to Salen whose whereabouts was not known to him. According to his evidence, he had even lodged a complaint in 2006 against Salen for illegally retaining his passport and photographs. He did not however produce any number or receipt to show that he had made such a complaint.
[60] Accused admitted that the post box number given in the Personal Account Application Form belonged to his mother. Defence Counsel argues that if the Accused was involved in this scam, he would not have given his mother's post box number.
[61] You observed the Accused's demeanor and his conduct in Court. You consider whether his evidence is credible and believable. If the Accused's version is appealing to you that means he has been able to create a doubt in the Prosecution case. Even though the Accused has nothing to prove in this case, if his version is acceptable to you, you must find the Accused not guilty.
[62] Remember, the burden to prove the accused's guilt beyond reasonable doubt lies with the prosecution throughout the trial, and never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt.
[63] If you accept the Prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of accused's guilt of the charge you must find him guilty for that charge. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty for that charge.
[64] Well Lady and Gentlemen that is all I wish to say. You will retire now and deliberate your opinions. Your possible opinions will be "guilty" or "not guilty". It is desirable if three of you could all agree but that is not strictly necessary. When you are ready you may inform our clerks, so that we could reconvene, to receive your opinions.
[65] Any re-directions?
Aruna Aluthge
Judge
AT LAUTOKA
On 26th October 2015
Solicitors: Office of the Director of Public Prosecution for the State
Qoro Legal for the Accused
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