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Chaudary v State [2018] FJHC 628; HAA20.2017 (18 July 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
[APPELLATE JURISDICTION]


CRIMINAL APPEAL NO. HAA 20 OF 2017


IN THE MATTER of an Appeal from the decision of the Suva Magistrate’s Court in Criminal Case No. 391 of 2015.


BETWEEN : RAJNEEL CHAUDARY

APPELLANT

AND : STATE

RESPONDENT


Counsel : Ms. R. Lal for the Appellant

Ms. J. Prasad for the Respondent

Date of Hearing : 9 November 2017

Judgment : 18 July 2018


JUDGMENT


[1] This is an Appeal made by the Appellant against his conviction and sentence imposed by the Magistrate’s Court of Suva.

[2] When this matter was first called in the Magistrate’s Court of Suva, on 20 February 2015, the Appellant, together with one Manjeet Singh (Appellant in Criminal Appeal No. HAA 21 of 2017), were charged with the following offences:


FIRST COUNT

(Representative)

Statement of Offence (a)

MONEY LAUNDERING: Contrary to Section 69(2) (a) – 3(a)-(b) of the Proceeds of Crime Act 27/1997 and Section 25(a) of the Proceeds of Crime (Amendment Act) 7/2005.


Particulars of Offence (b)

RAJNEEL VISHAL CHAUDARY, between the 5th day of December 2013 and the 15th of December 2013, at Suva, in the Central Division, engaged indirectly in transactions that involved money, transferred, received and used the total sum of FJD$4,500.00, from Bank of the South Pacific account number 7378383 belonging to Sat Narayan, into account number 7020429, knowingly or ought reasonably to know, that the money was derived, directly or indirectly, from some form of unlawful activity.


SECOND COUNT

(Representative)

Statement of Offence (a)

MONEY LAUNDERING: Contrary to Section 69(2) (a) – 3(a)-(b) of the Proceeds of Crime Act 27/1997 and Section 25(a) of the Proceeds of Crime (Amendment Act) 7/2005.


Particulars of Offence (b)

MANJEET SINGH, between the 5th day of December 2013 and the 16th of December 2013, at Suva, in the Central Division, engaged indirectly in transactions that involved money, transferred, received and used the total sum of FJD$14,102.51, from Bank of the South Pacific account number 7378383 belonging to Sat Narayan, into account number 7020429, knowingly or ought reasonably to know, that the money was derived, directly or indirectly, from some form of unlawful activity.


THIRD COUNT

(Representative)

Statement of Offence (a)

MONEY LAUNDERING: Contrary to Section 69(2) (a) – 3(a)-(b) of the Proceeds of Crime Act 27/1997 and Section 25(a) of the Proceeds of Crime (Amendment Act) 7/2005.


Particulars of Offence (b)

RAJNEEL VISHAL CHAUDARY and MANJEET SINGH, between the 5th day of December 2013 and the 15th of December 2013, at Suva, in the Central Division, engaged indirectly in transactions that involved money, transferred, received and used the total sum of FJD$6,000.00, from Bank of the South Pacific account number 7378383 belonging to Sat Narayan, into account number 9694919, knowing or ought reasonably to know, that the money was derived, directly or indirectly from some form or unlawful activity.


FOURTH COUNT

(Representative)

Statement of Offence (a)

MONEY LAUNDERING: Contrary to Section 69(2) (a) – 3(a)-(b) of the Proceeds of Crime Act 27/1997 and Section 25(a) of the Proceeds of Crime (Amendment Act) 7/2005.


Particulars of Offence (b)

RAJNEEL VISHAL CHAUDARY and MANJEET SINGH, between the 5th day of December 2013 and the 16th of December 2013, at Suva, in the Central Division, engaged indirectly in transactions that involved money, transferred, received and used the total sum of FJD$4,400.00, from Bank of the South Pacific account number 6005468 belonging to Deo Chand, into account number 9694919, knowing or ought reasonably to know, that the money was derived, directly or indirectly from some form or unlawful activity.


[3] The Appellant pleaded not guilty to counts 1, 3 and 4, when he took his plea on 20 February 2015.

[4] Since the prosecution was relying on the admissibility of the caution interview statement made by the Appellant, the Appellant was granted time to file his voir dire grounds.

[5] Thereafter, a voir dire hearing in respect of the Appellant and the 2nd accused, Manjeet Singh, was held, commencing on 13 June 2016. The proceedings of the said voir dire hearing is found at pages 18-87 of the Magistrate’s Court Record.

[6] The Learned Magistrate made his voir dire ruling, on 13 October 2016, finding that the State has proved beyond reasonable doubt that the Appellant and the 2nd accused, Manjeet Singh, have made their caution interview statements voluntarily and were not subjected to oppression. Accordingly, he made order that the said caution interview statements are admissible in evidence.

[7] Thereafter, the matter was fixed for trial from 6-8 March 2017.

[8] When this matter was called on 6 March 2017, the Appellant had informed Court that he wishes to plead guilty to the charges. The Court record (at page 89) bears testimony to the fact that, on the said day, the Appellant was duly represented by Counsel.

[9] Accordingly, the Appellant had pleaded guilty to counts 1, 3 and 4. Later that day, the Summary of Facts had been filed by the State. There is nothing on record to indicate as to whether the Learned Magistrate had convicted the Appellant on the same day.

[10] The trial in respect of the 2nd accused, Manjeet Singh, had proceeded on 7 March 2017 (Vide pages 90-106 of the Magistrate’s Court Record).

[11] On 8 March 2017, the prosecution made an application to file an Amended Charge Sheet (Vide page 107 of the Magistrate’s Court Record). Pursuant to the Learned Magistrate permitting this application, the State filed an Amended Charge Sheet bearing the following charges:

COUNT 1

Statement of Offence

MONEY LAUNDERING: Contrary to Section 69(2) (a) and 3(a)-(b) of the Proceeds of Crime Act 27/1997 and Section 25(a) of the Proceeds of Crime (Amendment Act) 7/2005.

Particulars of Offence

RAJNEEL VISHAL CHAUDARY, between the 5th day of December 2013 and the 15th of December 2013, at Suva, in the Central Division, engaged indirectly in transactions that involved money, transferred, received and used the total sum of FJD$4,500.00, from Bank of the South Pacific account number 7378383 belonging to Sat Narayan, into account number 7020429, knowingly or ought reasonably to know, that the money was derived, directly or indirectly, from some form of unlawful activity.


COUNT 2

Statement of Offence

MONEY LAUNDERING: Contrary to Section 69(2) (a) and 3(a) of the Proceeds of Crime Act 1997.


Particulars of Offence

MANJEET SINGH, between the 5th day of December 2013 and the 16th of December 2013, at Suva, in the Central Division, engaged indirectly in transactions that involved money, to the sum of FJD$14,102.51, from Bank of the South Pacific account number 7378383 belonging to Sat Narayan, into account number 6145496, knowingly or ought reasonably to know, that the money was derived, directly or indirectly, from some form of unlawful activity.

COUNT 3

Statement of Offence

MONEY LAUNDERING: Contrary to Section 69(2) (a) and 3(a) of the Proceeds of Crime Act 1997.

Particulars of Offence

RAJNEEL VISHAL CHAUDARY and MANJEET SINGH, between the 5th day of December 2013 and the 16th of December 2013, at Suva, in the Central Division, engaged indirectly in transactions that involved money, to the total sum of FJD$6,000.00, from Bank of the South Pacific account number 7378383 belonging to Sat Narayan, into account number 9694919, knowing or ought reasonably to know, that the money was derived, directly or indirectly from some form or unlawful activity.


COUNT 4

Statement of Offence

MONEY LAUNDERING: Contrary to Section 69(2) (a) and 3(a) of the Proceeds of Crime Act 1997.

Particulars of Offence

RAJNEEL VISHAL CHAUDARY and MANJEET SINGH, between the 19th day of December 2013 and the 21st day of December 2013, at Suva, in the Central Division, engaged indirectly in transactions that involved money to the total sum of FJD$4,400.00, from Bank of the South Pacific account number 6005468 belonging to Deo Chand, into account number 9694919, knowing or ought reasonably to know, that the money was derived, directly or indirectly from some form or unlawful activity.

[12] On a close scrutiny of the Amended Charge Sheet it is revealed that all four charges have been amended compared to the charges that were found in the original Charge Sheet filed in Court, on 20 February 2015. All four charges in the original Charge Sheet were based on the premise that they were ‘representative’ counts. However, it is clear that the Amended Charge Sheet no longer refers to ‘representative’ counts.

[13] On the 17 March 2017, the Learned Magistrate passed sentence on the Appellant. For the reasons stated therein, the Appellant was sentenced to 8 years imprisonment with a non-parole period of 6 years.

[14] Aggrieved by this Order the Appellant filed a Petition of Appeal against his conviction and sentence.

[15] On 2 June 2018, this Court granted the Appellant leave to file Amended Grounds of Appeal.


Amended Grounds of Appeal

[16] The Amended Grounds of Appeal filed by the Appellant is as follows:


APPEAL AGAINST CONVICTION

  1. THAT the learned Magistrate erred in law and in fact by failing to consider breaches of the 2013 Constitution of the Republic of Fiji; namely Section 13, the Rights of Arrested and Detained Persons and Section 14 the Rights of Accused Persons when convicting the Appellant.
  2. THAT the learned Magistrate erred in law, fact and procedure when convicting the Appellant on Count 3 because:

(a) the conviction and sentencing charges differ;

(b) the charge was amended after the Appellant plead guilty;

(c) the amended charge was not put to the Appellant; and

(d) the Appellant was convicted to a charge he never plead to.

  1. THAT the learned Magistrate erred in law, fact and procedure when convicting the Appellant on Count 4 because:

(a) the conviction and sentencing charges differ;

(b) the charge was amended after the Appellant plead guilty;

(c) the amended charge was not put to the Appellant; and

(d) the Appellant was convicted to a charge he never plead to.

  1. THAT the learned Magistrate applied the wrong legislation during conviction; namely 3 counts of Section 69(2) and 3(b) of the Proceeds of Crime (Amendment) Act Number 7 of 2005.
  2. THAT the learned Magistrate applied the wrong criminal charge during conviction; namely 3 counts of Section 69(2) and 3(b) of the Proceeds of Crime (Amendment) Act Number 7 of 2005.
  3. THAT the learned Magistrate applied the wrong penalty provision during conviction; namely Section 69(2) and 3(b) of the Proceeds of Crime (Amendment) Act Number 7 of 2005.
  4. THAT the learned Magistrate erred in law and in fact, through the application of the Proceeds of Crime (Amendment) Act Number 7 of 2005, without its Principal Act, the Proceeds of Crime Act 1997.

APPEAL AGAINST SENTENCE

  1. THAT the learned Magistrate applied to wrong legislation during sentencing; namely 3 counts of Section 69(2) and 3(b) of the Proceeds of Crime (Amendment) Act Number 7 of 2005.
  2. THAT the learned Magistrate applied the wrong criminal charge during sentencing; namely 3 counts of Section 69(2) and 3(b) of the Proceeds of Crime (Amendment) Act Number 7 of 2005.
  3. THAT the learned Magistrate applied the wrong penalty provision during sentencing; nemly Section 69(2) and 3(b) of the Proceeds of Crime (Amendment) Act Number 7 of 2005.
  4. THAT the learned Magistrate applied the Proceeds of Crime (Amendment) Act Number 7 of 2005, without its Principal Act, the Proceeds of Crime Act 1997.
  5. THAT the learned Magistrate applied the wrong sentencing principles; namely the UK Sentencing Guidelines of 2014 for Fraud, Bribery and Money Laundering Offences.
  6. THAT the learned Magistrate erred in law and in fact by allowing extraneous or irrelevant matters to guide him; namely the wrongful premise that this was the “first internet bank fraud in the country”.
  7. THAT the learned Magistrate erred in law and in fact by failing to consider breaches of the 2013 Constitution of the Republic of Fiji; namely Section 13 the Rights of Arrested and Detained Persons and Section 14 the Rights of Accused Persons when sentencing the Appellant. And erroneously decided that credit could not be given for cooperating with Police due to the Appellants insistence that his statement has been coerced and amended after the fact.
  8. THAT the learned Magistrate erred in law, fact and procedure when sentencing the Appellant on count 3 because:

(a) the conviction and sentencing charges differ;

(b) the charge was amended after the Appellant pleaded guilty;

(c) the amended charge was not put to the Appellant; and

(d) the Appellant was sentenced to a charge he never plead to.

  1. THAT the learned Magistrate erred in law, fact and procedure when sentencing the Appellant on count 4 because:

(a) the conviction and sentencing charges differ;

(b) the charge was amended after the Appellant plead guilty;

(c) the amended charge was not put to the Appellant; and

(d) the Appellant was sentenced to a charge he never plead to.

  1. THAT the learned Magistrate erred in law and in fact by failing to review similar tariff cases when determining the starting point for the Appellants sentence.
  2. THAT the learned Magistrate erred in law and in fact when he used and wrongly applied the term ‘objective seriousness’; amounting to a double counting of the aggravating factors during sentencing.
  3. THAT the learned Magistrate erred in law and in fact in sentencing the Appellant, when he applied the UK Sentencing Guidelines of 2014 for Fraud, Bribery and Money Laundering, while disregarding the tariff and sentencing bands that accompany these Guidelines.
  4. THAT the learned Magistrate erred in law and in fact when he wrongfully applied UK Sentencing Guidelines of 2014 for Fraud, Bribery and Money Laundering in mitigation.
  5. THAT the learned Magistrate erred in law and in fact when he wrongfully applied UK Sentencing Guidelines of 2014 for Fraud, Bribery and Money Laundering in determining the aggravating factors of this offence.
  6. THAT the learned Magistrate erred in law and in fact when he wrongfully applied the UK Guilty Plea Guidelines of 2007 in determining the reduction of sentence.
  7. THAT the sentence is manifestly harsh and excessive in the circumstance as the learned Magistrate failed to take into account the following factors when determining both the starting point of the sentence and the mitigating factors:

(a) the time period over which the offending occurred; and

(b) the amount of money relevant in the offences;


[17] From the above it is clear that 7 Grounds of Appeal are against the conviction; and 16 Grounds of Appeal against the sentence.

[18] During the hearing of this matter both parties filed written submissions, and also referred to case authorities, which I have had the benefit of perusing.

The Law and Analysis

[19] Section 246 of the Criminal Procedure Act No. 43 of 2009 (“Criminal Procedure Act”) deals with Appeals to the High Court (from the Magistrate’s Courts). The Section is re-produced below:

“(1) Subject to any provision of this Part to the contrary, any person who is dissatisfied with any judgment, sentence or order of a Magistrates Court in any criminal cause or trial to which he or she is a party may appeal to the High Court against the judgment, sentence or order of the Magistrates Court, or both a judgement and sentence.

(2) No appeal shall lie against an order of acquittal except by, or with the sanction in writing of the Director of Public Prosecutions or of the Commissioner of the Independent Commission Against Corruption.

(3) Where any sentence is passed or order made by a Magistrates Court in respect of any person who is not represented by a lawyer, the person shall be informed by the magistrate of the right of appeal at the time when sentence is passed, or the order is made.

(4) An appeal to the High Court may be on a matter of fact as well as on a matter of law.

(5) The Director of Public Prosecutions shall be deemed to be a party to any criminal cause or matter in which the proceedings were instituted and carried on by a public prosecutor, other than a criminal cause or matter instituted and conducted by the Fiji Independent Commission Against Corruption.

(6) Without limiting the categories of sentence or order which may be appealed against, an appeal may be brought under this section in respect of any sentence or order of a magistrate's court, including an order for compensation, restitution, forfeiture, disqualification, costs, binding over or other sentencing option or order under the Sentencing and Penalties Decree 2009.

(7) An order by a court in a case may be the subject of an appeal to the High Court, whether or not the court has proceeded to a conviction in the case, but no right of appeal shall lie until the Magistrates Court has finally determined the guilt of the accused person, unless a right to appeal against any order made prior to such a finding is provided for by any law.

[20] Section 247 of the Criminal Procedure Act stipulates that “No appeal shall be allowed in the case of an accused person who has pleaded guilty, and who has been convicted on such plea by a Magistrates Court, except as to the extent, appropriateness or legality of the sentence.”

[21] Section 256 of the Criminal Procedure Act refers to the powers of the High Court during the hearing of an Appeal. Section 256 (2) and (3) provides:

“(2) The High Court may —

(a) confirm, reverse or vary the decision of the Magistrates Court; or

(b) remit the matter with the opinion of the High Court to the Magistrates Court; or

(c) order a new trial; or

(d) order trial by a court of competent jurisdiction; or

(e) make such other order in the matter as to it may seem just, and may by such order exercise any power which the Magistrates Court might have exercised; or

(f) the High Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(3) At the hearing of an appeal whether against conviction or against sentence, the High Court may, if it thinks that a different sentence should have been passed, quash the sentence passed by the Magistrates Court and pass such other sentence warranted in law (whether more or less severe) in substitution for the sentence as it thinks ought to have been passed.”

[22] In this case, the Appellant has pleaded guilty to the charges against him. In terms of Section 247 of the Criminal Procedure Act it is clear that no appeal shall be allowed in the case of an accused person who has pleaded guilty, and who has been convicted on such plea by a Magistrates Court, except as to the extent, appropriateness or legality of the sentence.

[23] As per the Grounds of Appeal filed the Appellant claims that substantial miscarriage of justice has been caused to him. In my view grounds 2-7 of the Grounds of Appeal against conviction are inter related. The crux of the matter is that the Appellant has been convicted on charges that were not put to him.

[24] As I have stated earlier, the Appellant pleaded not guilty to counts 1, 3 and 4 found in the original Charge Sheet, when he took his plea on 20 February 2015. Subsequently, on 6 March 2017, the Appellant had informed Court that he wishes to plead guilty to the said charges and his plea of guilt was recorded. Although the Summary of Facts had been filed by the State on the same day, there is nothing on record to indicate as to whether the Learned Magistrate had convicted the Appellant on the same day.


[25] On 8 March 2017, the prosecution had filed an Amended Charge Sheet. At the time, the Appellant had not even been present in Court. Only the 2nd accused, Manjeet Singh, had been present and his plea to the Amended Charge Sheet has been recorded.

[26] The Appellant had next been present in Court only on 13 March 2017. On that day his sentence had been fixed for 17 March 2017.

[27] Therefore, I agree with the contention of the Appellant that the Learned Magistrate had erred in law, fact and procedure when convicting the Appellant on counts 3 and 4, as the amended charges were not put to the Appellant prior to his conviction and sentence. In other words, the Appellant has been convicted and sentenced to charges that he never pleaded to. In my opinion, this would apply to count 1 as well.

[28] The Learned State Counsel too has conceded that grounds 2 and 3 of the Grounds of Appeal against conviction have merit.

[29] In the case of Deo v. Reginam [1976] FJLawRp 1; [1976] 22 FLR 1 (23 January 1976); it was held as follows:

“So far as the appeal against conviction is concerned, section 290(1) of the Criminal Procedure Code provides that no appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on such a plea by a magistrates' court, except as to the extent or legality of the sentence. However it is well established that an appeal against conviction can be entertained on a plea of guilty if it appears that upon the admitted facts the appellant could not in law have been convicted of the offence charge (R v Forde [1923] 2 KB. 400 at 403); and it is on this proposition that the appeal against conviction is founded.”

[30] The provisions under Section 247 of the Criminal Procedure Act is identical to the said provisions under the former Criminal Procedure Code.

[31] However, His Lordship Justice Vincent Perera in Raisokula v. State [2018] FJHC 148; HAA 24 of 2017 (2 March 2018) observed as follows:

“13. The other main difficulty as I see it, is the clear intention of the lawgivers to prohibit appeals on plea of guilty from the magistrates court being allowed demonstrated by stipulating the provisions under section 247 of the Criminal Procedure Act which came into force in 2009 notwithstanding the practice of this court to entertain such appeals against conviction following the decision in Deo v Reginam (supra) since 1976.

14. All in all, it is my opinion that there is a patent lack of jurisdiction for this court to entertain appeals against conviction entered by the magistrate court on a plea of guilty.

15. Nevertheless, I am also of the view that there should be a legal remedy for those who are convicted by the magistrate court on equivocal pleas of guilty. An equivocal guilty plea is a nullity and therefore the ensuing conviction cannot stand.

16. In my opinion, the proper course of action according to the existing law for a person convicted by a magistrate court on an equivocal plea to seek redress is to invoke the revisionary jurisdiction of the high court under section 260 of the Criminal Procedure Act. Given the provisions of section 262(5) of the said act which reads “[w]here an appeal lies from any finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed” it is manifestly clear that a person convicted on a plea of guilty by the magistrate court whose appeal against conviction cannot be allowed in terms of section 247 of the Criminal Procedure Act, can invoke the revisionary jurisdiction of the high court.

17. Since equivocality of a plea is usually challenged based on errors apparent on the face of the record and involves questions of legality, jurisdiction and/or procedural impropriety, such matters can in fact be properly dealt with under revisionary jurisdiction as opposed to appellate jurisdiction.”

[32] I too agree with the reasoning of His Lordship Justice Perera on this issue. The legal remedy available to the Appellant is to invoke the revisionary jurisdiction of the High Court in terms of the provisions of Section 260 of the Criminal Procedure Act.

[33] In the case of State v. Ratuvou [2002] FJHC 140; HAA 60J of 2002S (2 August 2002); Her Ladyship Madam Justice Shameem held: “....This matter is before the High Court on an appeal against sentence. However the Court can, in its revisionary jurisdiction, quash convictions based on invalid charges.”
[34] Section 262 of the Criminal Procedure Act sets out the powers of the High Court on revision. The Section is re-produced below for ease of reference:

“262. — (1) In the case of any proceedings in a Magistrates Court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may —

(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 256 and 257; and

(b) in the case of ader other ther than an order of acquittal, alter or reverse such order.

(2) No order under this section shall be made to the prejudice of an accused person unless he or she has had an opportunity of being heard either personally or by a lawyer in his or her defence.

(3) The High Court shall not impose a greater punishment for the offence, which in the opinion of the High Court the accused has committed, than might have been imposed by the court which imposed the original sentence.

(4) Nothing in this section shall be deemed to authorise the High Court to convert a finding of acquittal into one of conviction.

(5) Where an appeal lies from any finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.”

[35] In the circumstances, I exercise the revisionary jurisdiction of this Court under Section 262(1) of the Criminal Procedure Act to set aside the conviction imposed by the Learned Magistrate Magistrate’s Court of Suva. Since the conviction is been set aside the sentences imposed by the Learned Magistrate Magistrate’s Court of Suva is also set aside. In terms of Section 262 (1) of the Criminal Procedure Code, read with Section 256 (2) (c), I order a new trial to be held against the Appellant.
[36] Since I have decided to set aside the conviction and sentence for the reasons stated above, I find it inexpedient to deal with the grounds of appeal against sentence.

Conclusion

[37] In light of the above, the final orders of this Court are as follows:

  1. The conviction and sentence imposed by the Learned Magistrate Magistrate’s Court of Suva is set aside.
  2. A new trial is ordered against the Appellant.
  3. The Appellant is to appear before the Chief Magistrate, Magistrate’s Court of Suva, on Friday 17 August 2018, at 9.30 a.m.
  4. The Appellant is ordered that he must continue to observe the bail conditions imposed by this Court on 16 November 2017, in HAM 168 of 2017.
  5. The Chief Magistrate, Magistrate’s Court of Suva, may vary any of the bail conditions if he deems it appropriate.

Riyaz Hamza

JUDGE

HIGH COURT OF FIJI
At Suva
This 18th Day of July 2018


Solicitors for the Appellant : Lal Patel Bale Lawyers, Suva.
Solicitors for the Respondent: Office of the Director of Public Prosecutions, Suva.

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