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State v Pala [2018] FJMC 88; Criminal Case 260 of 2014 (28 September 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: 260/2014

STATE
V
AJAY SHASHIKANT PALA

Counsel: Ms.S.Serukai (ODPP) for the Prosecution
Mr.K.Singh and Mr.Nawaikula for the Accused
Dates of Hearing: 16^th, 17^th and 29^th of August, 03^rd, 04^th and 06^th of September 2018
Dates of Submission: 21^st of September 2018 (ODPP)
28^th September 2018 (Defence )
Date of Judgment: 28^th of September 2018

JUDGMENT

1. The accused was charged with one count of Receiving Stolen Property contrary to section 306(1) of the Crimes Act No 44 of 2009(“Crimes Act”). The particulars of the offence are AJAY SASHIKANT PALA between the 30th day of November, 2013 and 08th day of February, 2014 at dishonestly obtained stolen property namely assorted jewelries valued at $52,900.00 believing the said to be stolen.”
2. The accused pleaded not guilty wherefore this proceeded for the hearing. The prosecution called 03 witnesses and for the defence the accused and another witness gave evidence. At the conclusion of the hearing both parties were allowed to file closing submissions but only the prosecution filed their submission within the stipulated period.
3. Today the defence made an application for ‘mistrial ‘which has been rejected by this court. Then the defence filed the closing submission which I have considered for this judgment.
4. I would first summarize the evidence presented by both parties during the hearing.
5. PW1 was Praveen Chandra, the complainant in this case. He was living in Nausori and there was a theft by one house staff, Villame from there. He was looking after the sick father of PW1 and the company was paying for that. On that day PW1 was alone and brought laptop to his home which he locked in parent’s place. Next day he found it missing and knew someone entered from the glass on top of bed room window. He informed the police that he suspected Villame as he was the only one staying in home and had access to the bed room. With police officers PW1 went to Villaime’s house and informed the mother about that. PW1 also told his sister Manorama , who was staying in Nadi and she also came home. She knew where her mother kept jewelries and found them also missing. They both gave the statements to police and when Viliame came with the police he admitted committing these stealing. He showed how he entered the room and where he sold the jewelries. He said he sold them to Radhe Krishna Jewelry shop in Nausori.
6. During cross-examination PW1 said Delana(Viliame ) was looking after his father and when he was not there his mother also used to come. The Sister of PW1 came and said the jewelries were missing from cupboard and she made notes about them. The stolen jewelries belonged to family members and only the laptop was found. The jewelries were not insured.
7. PW2 was Kusma Manorama, the sister of PW1. On 11/02/2014 brother called her and said Villame stole items from the home. She came to Nausori and checked the cupboard and found all the items missing including cash, jewelries, watches, gold sovereigns and the jewel box was empty as well. She was devastated as these were from her paternal grandfather and grandmother and got sentimental values. She left them with her parents. Father got a safe and in her bed room she kept the jewelry box in the drawer. Viliame knew about the keys and he opened the jewelry box. In that box contained 6 long necklaces , 20-24 rings , finger rings , diamonds , rubies , emeralds , left hand size earnings , gold sovereign , 10 bracelets of 22 carats gold and other jewelries. The value of those jewelries at that time would be$50,000 and current market price would be $130,000.00. Her mother kept all the documents. She did not buy them and they were gifted to her. Her parents, grandparents and friends gifted them to her for her birthdays. The jewelries in the father’s cupboard she bought them. Her grandfather and grandmother gave her earnings and bangles. Villame had access to the rooms and the box was empty. She also marked the receipts as PE1.
8. During cross-examination PW2 said he parents did not approve her marriage and she is still Hindu by marriage but converted to Muslim. She left her jewelry box in the mother’s place and she left all the jewelries there. The box was empty when she checked. She gave a statement on the same date and whatever she remember she told them. Her brother found everything gone from the safe . Villies mother did not take them and it was the ville who stole them. The invoices were not forged and the values of jewelries in the box would be around $30,000-40,000. Her brother did not sell jewelries and they were in the box before the stealing.
9. Pw3 was Villiame Delana who worked for Mr. Chandra from June 2013 to February 2014. He was doing house work and started stealing from there. He stole from Mr. Chandra’s room as well as Manorama’s room. He opened the cupboard and stole earnings, necklaces and bracelets from there. He also saw the jewel box of manorama and saw necklaces, rings, broken pieces and bracelets there. He took the box. He took the gold to Radhe Krihna Jewelries and the owner told him the weight and the price. The person asked for his ID and PW3 gave him his FNPF card. The copy of the receipt was given to him. The receiver was the accused. The second time also he went and sold. That time when he was coming out 2 of his staff called and he met the accused again. The accused asked where pw3 was working and when he said he was working with Mr. Chandra he said if there are other gold left there he can bring and sell them. PW3 said he would bring more gold. More than 10 times he went with gold and some documented and others were not as the accused knows him. PW3 took the box to the accused and sold everything inside and left the box back. Sometimes he made 2 trips per day to the shop and later he was charged for stealing and sentenced as a juvenile. PW3 also marked the receipt book as PE-2.
10. During cross-examination the witness was shown his charge sheet and this was marked as DE-1. He stole all the items from Mr, Chandra room he moved to Mrs. Chandra room. When he searched the cupboard he saw plenty bracelets, chains and earnings. He took items little by little and moved to Manorama’s room and found the jewelry box. It contained chains, earnings, broken jewelries and broken chains. He took the box and sold all in one day returned the box again. He went to Radhe Krishna and sold all to the shop. He sold chain and rings on the first day and went there to sell not to repair. He spoke to owner through translator and informed that they were his. He produced the ID and threw the receipts to rubbish bin. He admitted by signing that they belonged to him. The accused asked where he worked and he said he worked for M. Chandra. During re-examination the witness said only some transactions were documented and the clause was not translated to him and he did not read it also.
11. For the defence the first witness was Sonam Swastika Devi who worked as a sales staff in the shop. She used to fill the receipt book and would not give copies to customers. Villiame came wearing jewelries and could not recall how many times she served him. He read the white page and she filled it only twice. Villame did not tell the jewelries were his and he said he is selling them to go overseas.
12. During cross-examination she admitted serving Villame twice and they obtained ID cards to report to police if the items were stolen. The people would not tell them the jewelries were stolen and they did not know also about that.
13. The accused said he is doing jewelry business and sell, buy and repair gold jewelries. He served Vilame in late 2013 and 2014 and first time he came to repair some jewelries. The accused talked to him through a staff. After repairing he came to sell some and the accused offered the price. He would not give a copy to customer and he was paying $35.00 per gram at transaction at that time. In all transactions he asked for ID and the customer came 11 times to the shop. The staff asked him where he got and he informed that jewelries belonged to him. The accused also asked Delana and he said they belonged to him.
14. During cross-examination the accused said he could not remember how many times Delana came to the shop. He realized the quantity and the quality of the jewelries after checking. He did not tell Delana to get more and was not aware that he was getting it from Chandrs’s house. The accused did not ask him to get more. He did not issue receipts. Delana did not bring the wooden box with the jewelries and the accused used only one book. He was not aware Delana was a house boy or where he was working. The accused did not serve him all the 11 times. It was his duty to ask if the jewelries belonged to him and invoices. He did not call the police to investigate and if the jewelry was broken the value would be less. In 2014 the value of the gold was $35.00-45.00 and he bought jewelries below that price from Delana. He did not write broken in the receipts before giving them to police and also did not tampered with them.
15. During re-examination the accused said he did not know the occupation of Delana. The staff spoke to him in English and they told if the jewelries belonged to him he will by them. He paid less price because the quality was not good of them. Depend on the purity of the gold ( 14 karat , 09 karat ) the price would be less for the jewelries. He wrote everything including the word broken in the receipts in front of Delana.
16. In Woolmington v DPP [1935] AC 462 it was held that :

“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained” (per Viscount Sankey L.C. at pp. 481-482).

17. The accused was charged with one count of one count of Receiving Stolen Property contrary to section 306(1) of the Crimes Act which provides :

“A person commits a summary offence if he or she dishonestly receives stolen property, knowing or believing the property to be stolen.
16. Hence the Prosecution has to prove beyond reasonable doubt the following elements:

i) The accused;

ii) Between the 30th day of November, 2013 and 08th day of February, 2014;

iii) Dishonestly receives stolen properties;

iv) Knowing or believing the property to be stolen.

18. I would like to address some issues raised by the counsel for the accused in his closing submission before analyzing the evidence.
19. Firstly the counsel for the accused in his closing submission submitted that the charge was defective as there was no mention about the person who is claiming the ownership of the property. But as can see in the elements there is no need to mention about the owner in the charge. If this was included it could have been more informative but failure to mention is not a defect in the charge.
20. Secondly the counsel submitted that the Delana was not interviewed about stolen jewelries, but later convicted for that. This issue was never raised during the hearing or asked from Delana. Only available evidence marked by defence shows Delana was convicted for stealing jewelries and properly convicted and he did not raise any objection about that punishment.
21. Also the counsel submitted that the prosecution failed to prove the ownership of the stolen properties. Manorama said the jewelries in the box belonged to her and she also marked the receipts for that. She also submitted that some jewelries were given to her as gifts.
22. The prosecution witness, Delana in his evidence said he sold the jewelries to the accused and he also identified him in the court. From this evidence I am satisfied that the prosecution has proved the identity of the accused in this case.
23. Second issue whether the accused received these properties. I would consider the issue about dishonesty later in my judgment. But Delana said he went to the shop of the accused and sold these jewelries to him. The accused also admitted that he bought them and also the receipt book has been marked to show about these transactions. Hence the prosecution has also proved that the accused received these properties.
24. PW1 and PW2 said from their homes the jewelries were stolen. They said it was committed by Delana who was working as a house boy at that time. Delana whilst giving evidence also admitted that he entered in to the room of Mr. Chandra and stole various jewelries from the cupboard. He stole the jewel box from Manorama house and took jewelries from there also. He sold these jewelries to the accused. Hence the prosecution proved from these witnesses that the properties that were received by the accused were stolen properties that belonged to Manorama and M.Chandra.
25. Real disputed issue in this case is the fault element of the offence.
26. There are 2 fault elements for this offence under the Crimes Act and they are the knowledge or the belief that the property was stolen property when it was received by an accused.
27. In the particulars of the offence the prosecution alleged that when the accused received these properties he believed these to be stolen. But in their closing submission the State submitted that the accused also knew these were stolen properties apart from the belief. It appears that the State submission was based on what was revealed during the hearing.
28. The accused is denying that he knew these properties were stolen.
29. Both parties have failed to submit any case authorities from Fiji discussing about this fault element.
30. In United Kingdom presently this offence is known as Handling and section 22 of Theft Act 1968 provides :
    

(1)A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.

(2)A person guilty of handling stolen goods shall on conviction on indictment be liable to imprisonment for a term not exceeding fourteen years.”

31. Hence the fault elements of the Handling are same as Receiving in Fiji and this has been discussed in number of cases.
32. In R V Moys[1954] CthArbRp 299; 79 C.A.R. 72 (C.A., 1984) the trial judge told the jury that strong suspicion coupled with a deliberate shutting of the eyes was not merely an alternative but was equivalent to belief. The Court of Appeal held that this was not correct and Lord Lane CJ said :

“'The question is a subjective one and it must be proved that the defendant was aware of the theft or that he believed the goods to be stolen. Suspicion that they were stolen, even coupled with the fact that he shut his eyes in the circumstances, is not enough, although those matters may be taken into account by a jury when deciding whether or not the necessary knowledge or belief existed.'

33. In Hall[1955] CthArbRp 152; 81 C.A.R. 260, at 264 (C.A., 1985).Boreham J, speaking for the Court of Appeal, said:

“We think that a jury should be directed along these lines. A man may be said to know that goods are stolen when he is told by someone with first hand knowledge (someone such as the thief or burglar) that such is the case. Belief, of course, is something short of knowledge. It may be said to be the state of mind of a person who says to himself: 'I cannot say I know for certain that these goods are stolen, but there can be no other reasonableconclusion in the light of all the circumstances, in the light of all that I have heard and seen'. Either of those two states of mind is enough to satisfy the words of the statute. The second is enough (that is, belief) even if the defendant says to himself: 'Despite all that I have seen and all that I have heard, I refuse to believe what my brain tells me is obvious'. What is not enough, of course, is mere suspicion. 'I suspect that these goods may be stolen, but it may be on the other hand that they are not'. That state of mind, of course, does not fall within the words 'knowing or believing'.”

34. Having considered the fault element of this offence above manner now I would turn to the evidence in this case again.
35. It is admitted fact by the accused that on 11 occasions Delana came to his shop and sold him the jewelries. The State has marked the receipt book which shows the transactions that happened between Delana and the accused. Perusing these original receipts shows that the 1^st transaction happened on 08^th January 2014 and this continued up to 03^rd February 2014. For clarity I would briefly summarize these transactions as follows :

Date Items Value

1. 08/01/2014 - 1 broken chain - $475.00
2. 08/01/2014- Ring $175.00
3. 17/01/2014- 1 Bangle , 2 rings , 1 chain - $310.00
4. 20/01/2014- 1 Broken bangle, 1 broken chin $380.00

1 ring

5. 20/01/2014 1 Mangala sutra, 1 broken bangle - $400.00
6. 22/01/2014 1 chain , 1 earing ( Jumela) $450.00
7. 23/01/2014 3 items $1600.00
8. 24/01/2014 Broken gold piece $450.00
9. 25/01/2014 01 broken piece $230.00
10. 30/01/2014 01 gold piece broken$290.00
11. 03/02/2014 1 gold piece $44.00
36. These receipts shows that the accused bought 20 pieces of gold items from Delana ( most are seem to be broken pieces according to receipts ) and paid total price of $4804.00 to him for these jewelries.
37. It was also shown without any documentary evidence like invoices to confirm about the ownership the accused paid the substantial amount to Delana . Even though I do not agree with the words used by the state counsel to say an I-Tukai person to own this amount of jewelries should have raised suspicious on the mind of the accused and he should have informed the police about that, it can’t be also disputed that within a such short period of time (08^th January -03^rd February) this person was coming to the shop with these jewelries and managed to sell them to the accused. On some occasions Delana was coming two times per day to the shop with these stolen properties ( 08/01/2014 and 20/01/2014) . This shows the accused was closing to the eyes and was not prepared to accept these were stolen goods.
38. Now I would consider the evidence that I think would show clearly the fault element of this offence of the accused.
39. PW2 said Delana stole jewelries to the total value of nearly $50,000.00 from her house. She also marked the receipts to confirm about these jewelries. She also said the value of the jewelries in her jewel box alone would be nearly $30,000 to 40.000,00. She denied she was inflating her claim and her brother has previously sold some jewelry. I have observed how this witness was giving evidence in the court. At one moment it was so emotional for her when describing about stolen jewelries that this court even had to intervene and ask her whether she could continue with her evidence. Having considered her evidence and demeanor I accept her as credible witness.
40. The defence has marked the charge sheet of Delana whilst he was giving evidence as defence exhibit 1. This charge sheet also shows properties to the total value of $57,800 were stolen by Delana from PW1’s house. These include cash, laptop and various jewelries. After deducting the value of laptop and cash it would show Delana stole nearly $50,000 value of jewelries from that place. These includes 4 plain necklaces valued at $2800.00, 1 necklace valued at $3000.00, 6 bangles valued at $1500.00, 2 kangans valued at $6000.00, 1 pearl ring valued at $800.00, thick chain and pendant valued at $18,00.00 , jewelry box containing various jewelries valued at $8000.00, safe containing assorted sovereign valued at $11,200.00.
41. Now the issue is what happened to these jewelries stolen by Delana from the house.
42. Whilst giving evidence the counsel for the accused informed the Dealana that he was already sentenced and he did not need to be concerned about giving evidence. This court also advised this witness the same thing. I am also mindful that he has been already sentenced by the court for stealing these properties in 2014. He has no reason to favor the prosecution witnesses in this case or prejudiced the accused. Accordingly I accept this witness also as a credible witness.
43. In his evidence Delana said he sold all the items to the accused. He also mentioned that he took the jewelry box to the accused and sold everything inside and next day left the box back in PW1’s place.
44. According to PW2 this jewel box contained the following items :
    1. 6 long necklaces ,
    2. 20-24 rings ,
    100. finger rings , diamonds , rubies , emeralds ,
    4. left hand size earnings , gold sovereign ,
    5. 10 bracelets of 22 carats gold and other jewelries
45. As mentioned in para 37 , Delana took this jewel box to the accused and sold everything and put it back on next day . But receipt shows that the accused purchased only 20 pieces of gold items from Delana . What happened to these missing items from the jewel box?
46. It is interesting to note that Delana said the accused was not issuing receipts later as he got to know him. In re-examination also the witness said not all the transactions were documented. In this case where Delana took the jewel box to the accused and sold all the content to him, it appears that there was no document made about that. It is important to remember this receipt book was surrender to police by the accused during the investigation.
47. If I accept the version of the accused that this is the only receipt book used for Delana , then for this big transaction alone without any documents the accused received substantial properties from Delana. It would have been $8000.00 as per the defence exhibit or as per the testimony of PW2 nearly $30,000.00.
48. Hence I am satisfied that the apart from the 11 documented transactions the accused also purchased from Delana substantial value of jewelries and did not issue receipt for them. Only reasonable inference I can draw for this failure for put this in receipt book is that the accused was aware that these were stolen properties or believed them to be stolen and did not want these to be documented. This applies to other jewelries also which were sold to the accused by Delana .
49. Now I would consider the final piece of evidence against the accused. For that I would like to reproduce what Delana said in the court as recorded in the court record during his evidence in chief.

Q: How many other times did you go to the shop?

A: Second time I went to sell he took it to the room to weigh it.

Q: When you said the second time you went to sell the gold, who’s gold were you selling?

A: Still Mr. M. Chandra’s gold.

Q: And when you went the second time, they took it into the room for weighing, now can you explain what happen after he weighed the gold the second time?

A: When I took the gold, he weighed the gold. He came and told me the price then I accepted it then I took the money before I reached the door at the entrance two of the staffs called me.

Q: And what happened when they called you?

A: They told me that their boss called me

Q: Now when you say boss, who were they referring to?

A: To Ajay

Q: And how did you respond to that when they told you that their boss is asking for you?

A: I went to the boss and he asked me where I was working and I informed him that I working at M Chandra’s house and he told me if there are any other gold’s left there then I can bring it and sell it to him.

Q: Can you explain when you say anymore other gold left there, left where?

A: The house of MR. M. Chandra.

50. During the lengthy cross-examination of this witness, the counsel for the accused did not challenge this piece of evidence. Whilst giving evidence this version was put to the accused by the State also and he has denied that. But as I said earlier I have accepted Delana as a credible witness. His unchallenged evidence as shown in para 44 clearly shows by the second date the accused was aware this person was working for Mr. Chandra. Even though it can argue that the accused was not aware what his real job there was, he has informed the witness to bring other gold left there from that house. The accused further told him that he was prepared to buy that.
51. The above evidence alone is sufficient to show that the accused was aware that Delana was brining to stolen gold from his work place and he also believed about that. In fact this may even point that the accused encouraging Delana to steal further from that house.
52. This would explain why the accused was not checking about invoices or any other documents to confirm the ownership of the jewelries from Delana apart from routine check of his ID or even informing the police about these unusual transactions happening in the shop. Also why in some occasions when the accused was buying substantial value of properties (jewelries in the jewel box) he was not putting that in a receipt book.
53. As I have already said the accused was receiving these properties knowing and believing these to be stolen properties. He had no intention to return them to the rightful owner and was melting them for his own business. Hence I am satisfied also that the accused dishonestly received these properties.
54. Even though there were issued raised about some discrepancies in the original receipts and the photocopies disclosed to the defence, I do not think that has raised doubt about the prosecution case. These changes were about some weight in the receipt book but as seen above I have not relied on this factor and concentered only on the number of pieces in the receipts. Also there is no allegation about the originals of the receipts by the defence which I have relied on my judgment.
55. Having considered the above mentioned reasons I am satisfied beyond reasonable doubt that the accused committed this offence.
56. I find the accused guilty for this charge and convict him accordingly.
57. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate