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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
[APPELLATE JURISDICTION]
CRIMINAL APPEAL NO. HAA 36 OF 2023
IN THE MATTER of an Appeal from the Decision of the Magistrate’s Court of Rakiraki, in Criminal Case No. 461 of 2018.
BETWEEN :
SEMI TITOKO
APPELLANT
AND :
THE STATE
RESPONDENT
Counsel : Ms. Vaulina Cava for the Appellant
Ms. Sheenal Swastika for the Respondent
Date of Hearing : 4 March 2025
Judgment : 23 May 2025
JUDGMENT
[1] This is an Appeal made by the Appellant against his conviction imposed by the Learned Resident Magistrate, Magistrate’s Court of Rakiraki, in Criminal Case No. 461 of 2018, on 31 March 2023.
[2] The Appellant was a Legal Practitioner and Principal of his own Law Firm named Qarcia Barristers and Solicitors. Aporosa Ratuveikau was said to be the Accounts Officer (Accounts Clerk) of the said Law Firm. The Appellant together with the said Aporosa Ratuveikau, were first produced in the Magistrate’s Court of Rakiraki, on 1 November 2018. They both were granted bail on the same day.
[3] On 26 February 2020, the prosecution had been granted leave by Court to file Amended Charge [Vide page 12 of the Magistrate’s Court Record]. As per the Amended Charge filed the Appellant, together with Aporosa Ratuveikau, were charged with the following offences:
FIRST COUNT
Statement of Offence
CONVERSION BY TRUSTEE: Contrary to Section 320 (1) (a) (ii) of the Crimes Act 2009.
Particulars of Offence
SEMI TITOKO, on the 27th day of September 2017, at Rakiraki, in the Western Division, being a trustee of the sum of $222,740.00, received as payment for the purchase of Lot 2 on Deposit Plan 10460 from Monisha Kritika Kumar into Qarcia Barristers and Solicitors Trust Account Number 9804945369 held at Westpac Banking Corporation, for the benefit of Tara Devi, with intent to defraud converted the sum of $30,000.00 from the $222,740.00 for the benefit of Aporosa Ratuveikau.
SECOND COUNT
Statement of Offence
AIDING AND ABETTING CONVERSION BY TRUSTEE: Contrary to Section 45 and 320 (1) (a) (ii) of the Crimes Act 2009.
Particulars of Offence
APOROSA RATUVEIKAU, between the 27th day of September 2017 and the 18th day of October 2017, at Rakiraki, in the Western Division, aided and abetted Semi Titoko commit the acts referred to in Count 1 by depositing cheque number 20 for the amount of $30,000.00, of Qarcia Barristers and Solicitors Trust Account Number 9804945369 held at Westpac Banking Corporation, into his Bred Bank Account Number 00103019010 and withdrawing monies thereafter.
THIRD COUNT
Statement of Offence
CONVERSION BY TRUSTEE: Contrary to Section 320 (1) (a) (ii) of the Crimes Act 2009.
Particulars of Offence
SEMI TITOKO, on the 18th day of October 2017, at Rakiraki, in the Western Division, being a trustee of the sum of $222,740.00, received as payment for the purchase of Lot 2 on Deposit Plan 10460 from Monisha Kritika Kumar into Qarcia Barristers and Solicitors Trust Account Number 9804945369 held at Westpac Banking Corporation, for the benefit of Tara Devi, with intent to defraud converted the sum of $30,000.00 from the remainder of the $222,740.00 for the benefit of Aporosa Ratuveikau.
FOURTH COUNT
Statement of Offence
AIDING AND ABETTING CONVERSION BY TRUSTEE: Contrary to Section 45 and 320 (1) (a) (ii) of the Crimes Act 2009.
Particulars of Offence
APOROSA RATUVEIKAU, between the 18th day of October 2017 and the 15th day of November 2017, at Rakiraki, in the Western Division, aided and abetted Semi Titoko commit the acts referred to in Count 3 by depositing cheque number 23 for the amount of $30,000.00, of Qarcia Barristers and Solicitors Trust Account Number 9804945369 held at Westpac Banking Corporation, into his Bred Bank Account Number 00103019010 and withdrawing monies thereafter.
FIFTH COUNT
Statement of Offence
CONVERSION BY TRUSTEE: Contrary to Section 320 (1) (a) (ii) of the Crimes Act 2009.
Particulars of Offence
SEMI TITOKO, on the 17th day of November 2017, at Rakiraki, in the Western Division, being a trustee of the sum of $222,740.00, received as payment for the purchase of Lot 2 on Deposit Plan 10460 from Monisha Kritika Kumar into Qarcia Barristers and Solicitors Trust Account Number 9804945369 held at Westpac Banking Corporation, for the benefit of Tara Devi, with intent to defraud converted the sum of $35,000.00 from the remainder of the $222,740.00 for the benefit of Aporosa Ratuveikau.
SIXTH COUNT
Statement of Offence
AIDING AND ABETTING CONVERSION BY TRUSTEE: Contrary to Section 45 and 320 (1) (a) (ii) of the Crimes Act 2009.
Particulars of Offence
APOROSA RATUVEIKAU, between the 17th day of November 2017 and the 7th day of December 2017, at Rakiraki, in the Western Division, aided and abetted Semi Titoko commit the acts referred to in Count 5 by depositing cheque number 26 for the amount of $35,000.00, of Qarcia Barristers and Solicitors Trust Account Number 9804945369 held at Westpac Banking Corporation, into his Bred Bank Account Number 00103019010 and withdrawing monies thereafter.
SEVENTH COUNT
Statement of Offence
CONVERSION BY TRUSTEE: Contrary to Section 320 (1) (a) (ii) of the Crimes Act 2009.
Particulars of Offence
SEMI TITOKO, on the 6th day of December 2017, at Rakiraki, in the Western Division, being a trustee of the sum of $222,740.00, received as payment for the purchase of Lot 2 on Deposit Plan 10460 from Monisha Kritika Kumar into Qarcia Barristers and Solicitors Trust Account Number 9804945369 held at Westpac Banking Corporation, for the benefit of Tara Devi, with intent to defraud converted the sum of $25,800.00 from the remainder of the $222,740.00 for the benefit of Aporosa Ratuveikau.
EIGHTH COUNT
Statement of Offence
AIDING AND ABETTING CONVERSION BY TRUSTEE: Contrary to Section 45 and 320 (1) (a) (ii) of the Crimes Act 2009.
Particulars of Offence
APOROSA RATUVEIKAU, between the 6th day of December 2017 and the 18th day of January 2018, at Rakiraki, in the Western Division, aided and abetted Semi Titoko commit the acts referred to in Count 7 by depositing cheque number 27 for the amount of $25,800.00, of Qarcia Barristers and Solicitors Trust Account Number 9804945369 held at Westpac Banking Corporation, into his Bred Bank Account Number 00103019010 and withdrawing monies thereafter.
NINTH COUNT
Statement of Offence
PERVERTING THE COURSE OF JUSTICE: Contrary to Section 190 (e) of the Crimes Act 2009.
Particulars of Offence
SEMI TITOKO, on or about the 3rd day of April 2018, at Rakiraki, attempted to obstruct the course of justice by having Tara Devi sign a withdrawal letter to withdraw her complaint against him to the Chief Registrar.
[4] On 18 June 2020, both the Appellant and Aporosa Ratuveikau pleaded not guilty to the respective charges against them and the matter proceeded to trial [Vide page 13 of the Magistrate’s Court Record].
[5] However, on 29 June 2022, Aporosa Ratuveikau decided to take a progressive approach in the matter and pleaded guilty to the four charges against him. The Appellant maintained his not guilty plea in respect of all charges against him [Vide page 25 of the Magistrate’s Court Record].
[6] On the next day, 30 June 2022, Aporosa Ratuveikau, admitted to the Summary of Facts and he was found guilty on his own plea. The conviction against him had been deferred [Vide page 25 of the Magistrate’s Court Record].
[7] On 8 November 2022, the trial proper against the Appellant had commenced. The trial had continued on the 9 November 2022 and concluded on the next day (10 November 2022). At the end of the case for the prosecution, the Learned Resident Magistrate held that there was a case to answer and called for the defence. The Appellant exercised his right to remain silent. Neither did he call any witnesses in support of his case.
[8] On 31 March 2023, the Judgment was delivered. The Appellant was found guilty and convicted of all the charges against him. Aporosa Ratuveikau was also convicted of the respective charges against him [Vide page 48 of the Magistrate’s Court Record].
[9] On 2 June 2023, the Appellant had been imposed an aggregate sentence of 2 years and 8 months imprisonment (32 months imprisonment) in respect of the four counts of Conversion by Trustee (Counts 1, 3, 5 and 7). A non-parole period of 2 years and 2 months imprisonment was also imposed on him (26 months). For the ninth count of Perverting the Course of Justice, the Appellant had been imposed a sentence of 13 months imprisonment, with a non-parole period of 7 months imprisonment.
[10] Considering the totality principle, the said Sentence of 13 months imprisonment, with a non-parole period of 7 months imprisonment was ordered to be served consecutively to the aggregate sentence of 32 months imprisonment, with a non-parole period of 26 months imprisonment. Thus, the Appellant will have to serve a total term of 45 months imprisonment.
[11] For the record, Aporosa Ratuveikau was sentenced to 1 year and 8 months imprisonment (20 months imprisonment), in respect of the four counts (Counts 2, 4, 6 and 8) of Aiding and Abetting the Appellant in committing the offences stated in Counts 1, 3, 5 and 7. For reasons stated in the Sentence the said Aporosa Ratuveikau was ordered to serve 10 months imprisonment immediately. The remaining period of 10 months imprisonment was suspended for a period of 3 years [The Sentence of the Learned Resident Magistrate is found from pages 52 to 65 of the Magistrate’s Court Record].
[12] Aggrieved by his conviction, on 30 June 2023, the Appellant filed a Notice of Appeal against Conviction in the High Court. The said Notice of Appeal was filed by the Appellant in person. In the original Notice of Appeal filed there was only a single Ground of Appeal against conviction, namely that the conviction is unreasonable and not supported by the totality of the evidence.
[13] However, on 29 November 2023, the Counsel for the Appellant was granted leave to file an Amended Petition of Appeal with Amended Grounds of Appeal. On 16 February 2024, the said Amended Grounds of Appeal were filed in Court.
[14] This matter was taken up for hearing before me on 4 March 2025. The Learned Counsel for the Appellant and the State Counsel for the Respondent were heard. Both parties filed written submissions, and referred to case authorities, which I have had the benefit of perusing.
[15] As per the Grounds of Appeal filed by the Appellant the Grounds of Appeal against Conviction are as follows:
GROUNDS OF APPEAL AGAINST CONVICTION
(1) That the Learned Trial Magistrate erred in law and in fact by failing to give a proper consideration to the complainant’s letter dated 3 April 2018 where the complainant had withdrawn her complaint with the Legal Practitioners Unit against the Appellant whereby, she had stated that she has settled her matter with the Appellant.
(2) That the Learned Trial Magistrate erred in law and in fact in finding that the Appellant pressurized the complainant to withdraw the complaint against the Appellant with the Legal Practitioners Unit.
(3) That the Learned Trial Magistrate erred in law and in fact in accepting prosecution’s contention without any evidence to substantiate that the Appellant obstructed the due course of justice.
(4) That the Learned Trial Magistrate erred in law in holding that the Independent Legal Service Commission (ILSC) is not a Court of Law and that it does not hold or exercise judicial authority.
(5) That the Learned Trial Magistrate erred in law in holding the Appellant accountable for an offence again which was dealt with in the Independent Legal Service Commission Action 1 of 2019.
(6) That the Learned Magistrate erred in law in his Judgment when he failed to provide a warning or sufficient warning as to the care in which the testimony of Aporosa Ratuveikau should be approached (which) resulted in a substantive and grave miscarriage of justice.
(7) That the Learned Magistrate miscarried, the Appellant had been sentenced to imprison, his co-accused Aporosa Ratuveikau had revealed fresh evidence to the Appellant and other inmates, and that he had been promised a suspended sentence by the prosecution on the condition that he gives false evidence to implicate the Appellant on the charge against the Appellant and that he had informed other inmates.
[16] It must be mentioned that only Grounds of Appeal 1 to 5 above were part of the Amended Grounds of Appeal filed. Grounds 6 and 7 above were brought in during the written submissions filed by the Learned Counsel for the Appellant. However, in the interest of justice, those Grounds of Appeal would also be addressed by Court.
THE LAW
[17] 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.’’
[18] 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.”
THE GROUNDS OF APPEAL AGAINST CONVICTION
Grounds 1 and 2
[19] The first Ground of Appeal against conviction is that the Learned Trial Magistrate erred in law and in fact by failing to give a proper consideration to the complainant’s letter dated 3 April 2018 whereby the complainant had withdrawn her complaint with the Legal Practitioners Unit against the Appellant and where she had stated that she has settled her matter with the Appellant. The second Ground of Appeal against conviction is that the Learned Trial Magistrate erred in law and in fact in finding that the Appellant pressurized the complainant to withdraw the complaint against the Appellant with the Legal Practitioners Unit.
[20] In my opinion, the said two Grounds of Appeal against conviction are inter-connected and will be addressed together.
[21] The Learned Magistrate’s Judgment is not found in the Copy Record of Magistrate’s Court of Rakiraki. However, a copy of the Judgment is separately available in the original Magistrate’s Court record. The Judgment contains 47 pages (344 paragraphs).
[22] During the hearing in the Magistrate’s Court the prosecution led the evidence of the following 5 witnesses:
[23] The transcripts of the evidence (proceedings) given by the prosecution witnesses is found from pages 30 to 45 of the Magistrate’s Court Record. In his Judgment the Learned Resident Magistrate has summarized the evidence of all the witnesses [From paragraphs 48 to 118 of the Judgment-Pages 7 to 17].
[24] Thereafter, the Learned Resident Magistrate has duly analysed all the evidence in relation to the charges against the Appellant [From paragraphs 211 to 333 of the Judgment-Pages 30 to 45].
[25] From paragraph 313 of his Judgment the Learned Resident Magistrate has made specific reference to the purported letter of withdrawal by the complainant, dated 3 April 2018. He has provided his reasons as to why the said withdrawal letter cannot be accepted, although the complainant agrees that she had signed the said letter herself.
[26] Therefore, I am of the opinion that the Learned Magistrate has given due consideration to the letter of withdrawal made by the complainant in the course of his Judgment and provided his reasons as to why he is not accepting the said withdrawal letter as valid. For the aforesaid reasons, I find that the said two Grounds of Appeal against conviction are without merit.
Ground 3
[27] This Ground of Appeal against conviction is that the Learned Trial Magistrate erred in law and in fact in accepting prosecution’s contention without any evidence to substantiate that the Appellant obstructed the due course of justice.
[28] The ninth count against the Appellant was for Perverting the Course of Justice, contrary to Section 190 (e) of the Crimes Act No. 44 of 2009 (Crimes Act).
[29] Section 190 of the Crimes Act is reproduced below:
“A person commits a summary offence if he or she —
(a) conspires with any other person to knowingly and maliciously accuse any person falsely of any crime; or
(b) conspires to do anything to obstruct, prevent, pervert or defeat the course of justice; or
(c) in order to obstruct the due course of justice, dissuades, hinders or prevents any person lawfully bound to appear and give evidence as a witness from appearing and giving evidence, or endeavours to do so; or
(d) obstructs or in any way interferes with or knowingly prevents the execution of any legal process (civil or criminal); or
(e) in any way obstructs, prevents, perverts or defeats, or attempts to obstruct, prevent, pervert or defeat, the course of justice.”
[Emphasis is mine].
[30] The Appellant has been charged in terms of Section 190 (e) of the Crimes Act for Perverting the Course of Justice.
[31] I find that the Learned Magistrate has outlined the elements of the offence of Perverting the Course of Justice in his Judgment [At paragraph 191 of Judgment]. He has then duly analysed all the evidence in relation to the said charge and come to the finding that the Appellant is guilty of the charge [From paragraphs 313 to 333 of the Judgment-Pages 43 to 45]. I see no error of law or fact in the Learned Magistrate coming to the said finding.
[32] For the aforesaid reasons, I find that the said Ground of Appeal against the conviction is also without merit and should be rejected.
Grounds 4 and 5
[33] The fourth Ground of Appeal against conviction is that the Learned Trial Magistrate erred in law in holding that the Independent Legal Service Commission (ILSC) is not a Court of Law and that it does not hold or exercise judicial authority. The fifth Ground of Appeal against conviction is that the Learned Trial Magistrate erred in law in holding the Appellant accountable for an offence again which was dealt with in the Independent Legal Service Commission Action 1 of 2019.
[34] In my opinion, the said two Grounds of Appeal against conviction are also inter-connected and will be addressed together.
[35] The Appellant relies on Section 14 (1) (b) of the Fiji Constitution 2013 (Constitution) which provides as follows:
“A person shall not be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted.”
[36] However, it must be noted that proceedings in the ILSC cannot be considered as criminal proceedings. The said proceedings are only in the nature of disciplinary proceedings in respect of Legal Practitioners.
[37] Section 2 of the Legal Practitioners Act No. 16 of 2009 (Legal Practitioners Act) stipulates that disciplinary proceedings means proceedings commenced against a Legal Practitioner, or Law Firm, or an employee or agent of a Legal Practitioner or Law Firm, by way of an application to the Commission (ILSC) in terms of Part 9 of the Act. Part 9 of the Act deals with Professional Standards that have to be maintained by a Legal Practitioner.
[38] Further it is stated at Section 130 of the Legal Practitioners Act, that nothing in the said Act shall affect the jurisdiction exercisable by any Court or Judge thereof, over Legal Practitioners.
[39] For the aforesaid reasons, I find that the said Grounds of Appeal against the conviction are also without merit and should be rejected.
Ground 6
[40] This Ground of Appeal against conviction is that the Learned Trial Magistrate erred in law in his Judgment when he failed to provide a warning or sufficient warning as to the care in which the testimony of Aporosa Ratuveikau should be approached (which) resulted in a substantive and grave miscarriage of justice.
[41] It is true that a Court normally requires an accomplice’s evidence to be corroborated by other independent evidence. Basically what this means is that an accomplice’s evidence should be treated with caution.
[42] In this case, from paragraphs 147 to 153 of his Judgment, under the heading Accomplice Evidence, the Learned Magistrate has duly considered this issue. At paragraphs 149 and 150 of his Judgment, the Learned Magistrate referring to the case of Davies v. DPP (1954) 38 Criminal Appeal Reports (at page 11) states as follows:
“149. If it is proven that the 2nd Defendant either aided or abetted the commission of one, several or all of the conversion offences by the 1st Defendant, in law and in fact the 2nd Defendant is an accomplice.
150. The undersigned is mindful that it can be dangerous to convict a defendant in this case the 1st Defendant, based on the uncorroborated evidence of an accomplice or based on the uncorroborated evidence of the 2nd Defendant, if the 2nd Defendant is indeed found to be an accomplice.”
[43] At paragraph 153 of the Judgment, the Learned Magistrate has stated that although it is dangerous to convict based on the uncorroborated evidence of an accomplice, the Court may very well be minded in some cases to convict without any corroborative evidence.
[44] Therefore, it is without merit to state that the Learned Magistrate failed to provide a warning or sufficient warning as to the care in which the testimony of the accomplice, Aporosa Ratuveikau should be approached.
[45] For the aforesaid reasons, I find that the said Ground of Appeal against the conviction is also without merit.
Ground 7
[46] This Ground of Appeal against conviction is that the Learned Magistrate miscarried, the Appellant had been sentenced to imprison, his co-accused Aporosa Ratuveikau had revealed fresh evidence to the Appellant and other inmates, and that he had been promised a suspended sentence by the prosecution on the condition that he gives false evidence to implicate the Appellant on the charge against the Appellant and that he had informed other inmates.
[47] This is a reference to fresh evidence in the matter. This Court cannot take cognizance of such matters at this stage of the proceedings. In terms of Section 257 of the Criminal Procedure Act it is stated as to the manner in which further evidence or fresh evidence can be considered by an Appellant Court.
[48] In any event, in this case it is manifest that the accomplice Aporosa Ratuveikau was imposed a 20 months term of imprisonment and was ordered to serve 10 months imprisonment immediately. Only the remaining period of 10 months imprisonment was suspended for a period of 3 years. Thus he was imposed only a partial suspended term of imprisonment. His entire term of imprisonment was not suspended.
[49] For the aforesaid reasons, I find that the said Ground of Appeal against the conviction is also without merit and should be rejected.
Conclusion
[50] Accordingly, I conclude that this Appeal should stand dismissed and the conviction and sentence be affirmed.
FINAL ORDERS
[51] In light of the above, the final orders of this Court are as follows:
Riyaz Hamza
JUDGE
HIGH COURT OF FIJI
AT LAUTOKA
This 23rd Day of May 2025
Solicitors for the Appellant: S. Nand Lawyers, Barristers & Solicitors, Lautoka.
Solicitors for the Respondent: Office of the Director of Public Prosecutions, Lautoka.
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