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State v Ram [2017] FJMC 60; Criminal Case 2107.2010 (2 May 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: 2107/2010

STATE

V

MELVIN ATISH RAM

GANGA PATI PRATAP

Counsel : Ms.J.Prasad for the State

Mr Raza for both accused

Date of Hearing : 02^nd of May 2017

Date of Ruling : 02^nd of May 2017

RULING

1. The 1^st accused is charged with 2 counts of Corrupt Practice contrary to section 376(a) of the Penal Code. In addition he is charged with the 2^nd accused with one count of Money Laundering contrary to section 69(3) of the Proceeds of Crime Act.
2. Today morning when this was called for the hearing, the learned counsel for the accused raised a preliminary objection. The learned counsel submitted that this court has no jurisdiction to hear this case and this has to be transferred to the High Court.
3. The counsel further submitted the Money Laundering is an electable offence and both accused want this matter to be tried in the High Court. Further it was submitted that the penalty for this offence is 20 years imprisonment and a fine of $120,000.00 which is well beyond the sentences this court can impose and therefore the proper forum for this offence is the High Court.
4. The State counsel is objecting and argued that the relevant section of the act (section 69) is silent about the court and therefore pursuant to section 5(2) of the Criminal Procedure Decree this court has the jurisdiction to hear this case.
5. Having considered the submission of both parties now I would proceed to pronounce my ruling in the following manner.
6. Both accused are charged with one count of Money Laundering contrary to section 69(3) (a) of the Proceeds of Crime Act No.27 of 1997.
7. Section 69(3) (a) of the Act states:

“A person shall be taken to engage in money laundering if, and only if:

(a) the person engages, directly or indirectly in a transaction that involves money, or other property, that is proceeds of crime, or

and the person knows, or ought reasonably to know, that the money or other property is derived or realised, directly or indirectly, from some form of unlawful activity.”

8. Section 69(2) (a) states that the prescribed penalty is a fine not exceeding $120,000 or imprisonment for a term not exceeding 20 years, or both of them.

10. The procedural law governing the court in criminal matters is the Criminal Procedure Decree and section 4(1) state that this court can hear the summary offences and the Indicatable offences triable summarily at the election of the accused under the Crimes Decree. The Indicatable offences need to be transferred to the High Court.

11. For the offences created under any other law the relevant provisions are section 5(1) and 5(2) of the Criminal Procedure Decree and they are as follows:

“5. – (1) Any offence under any law other than the Crimes Decree 2009 shall be tried by the court that is vested by that law with jurisdiction to hear the matter.

(2) When no court is prescribed in any law creating an offence and such offence is not stated to be an indictable offence or summary offence, it may be tried in the Magistrates Court in accordance with any limitations placed on the jurisdiction of classes of magistrate prescribed in any law dealing with the administration and jurisdiction of the Magistrates Courts.”

12. Section 69 of the Proceeds of Crime Act does not prescribe a court and therefore pursuant to section 5(2) of the Criminal Procedure Decree, in my view this court has jurisdiction to hear this case.

13. The counsel for the accused submitted to this court the decision of Epeili Rasaro v The State HAA 23 of 2016 where the court held in absence of an election by the accused, the Magistrate court has no jurisdiction to hear the case. But in that case the accused was charged with one count of Burglary contrary to section 312(1) of the Crimes Decree which is an electable offence. But as mentioned above under the Proceeds of Crime Act the Money Laundering is not an electable offence and hence Epeili Rasaro v The State (supra) would not apply for this case.

14. Based on the reasons mentioned above, I consider this court has the jurisdiction to hear this case and dismiss application by the defence.

Shageeth Somaratne

Resident Magistrate, Suva