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Regina v Chow [2017] SBHC 30; HCSI-CRC 326 of 2015 (2 November 2017)

REGINA

-V-

Mary Chow

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 326 of 2015

Date of Hearing: 7 October 2016

Date of Judgement: 2 November 2017

For the Crown: Mr. Ronald B. Talasasa (Jnr.) (Director of Public Prosecutions) and Mrs. Margaret A. Suifa’asia.

For the Respondent: Mr. Anderson Kesaka (DNS and Partners Law Firm).

Palmer CJ.

1. This is an appeal by the Crown against the orders of the Magistrates’ Court dated 13^th March 2015 in which the defendant (Respondent in these proceedings) was acquitted of all four charges of perjury contrary to sections 102(1) and 102(2) of the Penal Code. She had been charged with one count of perjury under section 102(1) and three counts under section 102(2) of the Penal Code.
   
2. I set out those charges in full for purposes of this appeal herewith.
   

Count 1:

“Statement of offence: Perjury contrary to section 102(1) of the Penal Code.

Particulars of offence: That Ms. Mary Fon Lu Chow of Tavio Ridge in Honiara, Guadalcanal Province at the High Court of Solomon Islands in the Guadalcanal Province was sworn in as a witness on 27^th July 2010 in a civil proceeding No. 125 of 2010 against Mrs. Aggie Podarua for unpaid rent and arrears subsequent to a tenancy agreement between Ms. Chow and Mrs. Podarua entered in the month of August 2007, Ms. Chow wilfully made a statement claiming that no written signed Tenancy Agreement existed which she knew to be false.”

Count 2:

“Statement of offence: Perjury contrary to section 102(2) of the Penal Code.

Particulars of offence: That Ms. Mary Chow of Tavio Ridge at Honiara in the Guadalcanal wilfully made a sworn statement dated 9^th April 2010, for the purpose of a judicial proceeding namely civil proceeding No. 125 of 2010, between Mary Chow and Aggie Podarua which statement she knew to be false.”

Count 3:

“Statement of offence: Perjury contrary to section 102(2) of the Penal Code.

Particulars of offence: That Ms. Mary Chow of Tavio Ridge at Honiara in the Guadalcanal wilfully made a sworn statement dated 14^th May 2010, for the purpose of a judicial proceeding namely civil proceeding No. 125 of 2010, between Mary Chow and Aggie Podarua which statement she knew to be false.”

Count 4:

“Statement of offence: Perjury contrary to section 102(2) of the Penal Code.

Particulars of offence: That Ms. Mary Chow of Tavio Ridge at Honiara in the Guadalcanal wilfully made a sworn statement dated 17 May 2010, for the purpose of a judicial proceeding namely civil proceeding No. 125 of 2010, between Mary Chow and Aggie Podarua which statement she knew to be false.”

Decision of the Magistrates’ Court.

3. In his finding the learned Chief Magistrate, as he then was Mr. Kouhota, stated as follows:
   

“I had considered all evidence including the tendered documents and statements which form part of the evidence before the court and I am not satisfied that prosecution has proved beyond all reasonable doubt that the accused when sworn as a witness wilfully makes a statement she knows to be false or that she wilfully made 3 sworn statements she knew to be false in Civil No. 125 of 2010, neither did the prosecution as a matter of law negative the existence of an honest and reasonable belief raised by the defence accordingly I find the accused not guilty of all four charges against her must acquit the accused of all 4 charges.”

Grounds of appeal.

4. The main ground of appeal challenges finding of the learned Magistrate on the grounds of failure to adequately take into account subjective elements of the crime in the light of the respondent’s own admission in her trial. The learned Director submits this failure amounted to an error of law and fact which resulted in a finding which was erroneous and contrary to the evidence/material before the court. He submits this Court should intervene and either remit the matter to a differently constituted Magistrates’ Court to determine, or that the matter be authoritatively determined by this Court.
   

Brief background of the case.

5. The respondent, Mary Chow is a businesswoman and owns property (“the property”) at Point Cruz, the subject of the proceedings in the dispute.
   
6. In or about September/October 2006, discussions were entered into between the parties in which it was agreed that the property at Point Cruz would be leased out to the Scout’s Association. The Appellant, Mrs. Podarua and her husband, Mr. Podarua managed the property which operated as a food outlet or kitchen selling cooked food etc. to the public.
   
7. An agreement between the Scouts Association and the Respondent, Ms. Chow had been signed in or about March 2007. The tenancy agreement however did not last long for the operations of the kitchen from the outset was bogged down with funding or money problems. There appears to be some reliance on funding from the Republic of China Embassy but that did not eventuate due to disagreements between the executive of the Scouts Association and the Management.
   
8. By July 2007, it appears debts had accrued which remain unpaid and the lease was not working. A notice of termination of lease was issued to the Scouts Association and a new private arrangement entered into between the Appellant and Ms. Chow.
   
9. It is now clear a written agreement was entered into between Ms. Chow and the Mrs. Podarua dated 5^th August 2007. This is where the dispute and criminal charges arose from. This signed tenancy agreement only surfaced in or about March 2011.
   
10. It is also clear that there was a draft written tenancy agreement of the 4^th August 2007 but which was unsigned.
    
11. It appears that when Mrs. Podarua took over the business from the Scouts Association, she also took over responsibilities or liabilities of Scouts Association for repayment thereafter.
    
12. On or about 18^th March 2010, the Claimant exercised her right to have the defendant vacate the premises failing which a civil suit was filed inter alia for orders to have the defendant evicted from the premises.
    
13. In or about 16 April 2010, Ms. Chow filed a claim^[1] for debt for outstanding arrears of rental and other costs, gave notice of termination of what was considered to be a solely verbal tenancy agreement and eviction of the defendant from the premises.
    
14. In the civil suit the Claimant stated inter alia, that there was no written tenancy agreement, that the term of the tenancy was for two years, rental at $35,000 per month and subject to increases by agreement of the parties thereafter.
    
15. At paragraph 7 of the statement of claim, it stated that in or around March 2008, the parties verbally agreed to increase rental to SBD40,500.00 per month. It was increased to $45,000.00 per month in October 2008 and in July 2009, further increased to $55,000.00 per month.
    
16. In July 2009 an extension of one year was agreed upon to July 2010. By then it is claimed the defendant had started to default in repayments. As of February 2010, arrears had accumulated to about $153,000.00 and by March 2010, it had increased to $198,000.00.
    
17. In her defence, the defendant inter alia denied claims that the agreement was verbal, insisting there was a signed agreement between the parties for two years and at a rental of $35,000.00 per month.
    
18. She maintains the view that the claimant was bound by the terms of that written agreement and therefore should not have increased rental within that two year period.
    
19. When the matter came before the court in civil case 125 of 2010, the presiding judge^[2] found inter alia that there was no written agreement based on the evidence before him and so found in favour of the respondent. This was a critical finding in relation to the outcome of the case.
    

The offence of perjury

20. Section 102(1), (2) and (3) of the Penal Code read as follows:
    

“102(1) Any person lawfully sworn as a witness or as an interpreter in a judicial proceeding who wilfully makes a statement material in that proceeding which he knows to be false or does not believe to be true shall be guilty of the misdemeanour termed perjury, and shall be liable to imprisonment for seven years.

(2) Where a statement made for the purpose of a judicial proceeding is not made before the tribunal itself but is made on oath before a person authorised by law to administer an oath to the person who makes the statement and to record or authenticate the statement it shall, for the purposes of this section, be treated as having been made in a judicial proceeding.

(3) The question whether a statement on which perjury is assigned was material is a question of law to be determined by the court of trial.”

21. The crucial elements of the offence of perjury as set out in subsection 102(1) of the Penal Code, and which apply to all four counts under which the respondent has been charged with can be summarised as follows:
    
    • (i) Any person;
    • (ii) Lawfully sworn as a witness;
    • (iii) In a judicial proceeding;
    • (iv) Wilfully makes a statement;
    • (v) Material in that proceeding;
    • (vi) Which he knows to be false or does not believe to be true.
      
22. The prosecution bears the onus to establish those elements beyond reasonable doubt, of particular relevance in this case being, parts (iv), (v) and (vi), that is, that the statements were made wilfully, were material to the proceeding and which she knew to be false, or did not believe to be true.

Defence of mistake of fact.

23. The respondent in her defence, relies on “mistake of fact” as set out in section 10 of the Penal Code, which states as follows:
    

“A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.”

24. The test set out in section 10 stipulates both a subjective and objective element; subjective where it entails an honest but mistaken belief and objective in terms of a reasonable but mistaken belief, that is, the belief must both be subjective and reasonable^[3]. In a decision of the Supreme Court of Papua New Guinea in The Queen v. Yoka and Kiok, Kelly J. made the following pertinent comments:
    

“To come within Sec. 24 (similar to section 10 defence) the belief which the accused professed to hold must be both honest and reasonable. Whether or not the belief is honestly held involves a subjective test and whether it is reasonably held involves an objective test, applying the standard of the ordinary native man coming from the accused’s environment.” (Emphasis added).

25. In the case of Tetkou Piasi v. Reginam SICOA/CRAC 12 of 2015, 9 October 2015, the Court of Appeal referred to section 10 at paragraph 5 of the judgement as follows:
    

“... when raised in a trial, the prosecution must prove beyond reasonable doubt that the accused did not have such a belief or if he did that the belief was not reasonably held.”

At paragraph 16 of the judgement, the Court of Appeal concluded as follows:

“It is for those reasons that we find that the decision made by the trial judge on the defence under section 10 of the Penal Code cannot be relied upon. Clearly the question of consent was an issue during the trial and just as there must be evidence sufficient to prove beyond reasonable doubt that the complainant did not consent so there must be evidence from the prosecution sufficient to demonstrate to the same standard that the Appellant did not have an honest and reasonable belief that the complainant consented to the intercourse.” (Emphasis added)

Note the emphasis remains on both the belief being honest and reasonable.

The issue for determination in this appeal.

26. What is the issue for determination in this appeal? Prosecution alleges that the presiding Magistrate erred in law when applying the subjective test to the facts and circumstances of the case. While ultimately this is a matter solely for the court below, it is for the Crown in this appeal to demonstrate how or why the application of the test was erroneously done.
    
27. Has any error been shown in the application of the subjective test to the circumstances of this case?
    
28. The law on this issue is clear, where defence of mistake of fact is raised, an honest and reasonable but mistaken belief in the existence of the state of things if true, will exonerate the defendant from criminal responsibility.
    
29. In his judgement the Chief Magistrate, Mr. Kouhota as he then was, determined that when the statements were made in judicial proceedings before the court in or about 2010, a lapse of some three years, it was reasonable in the circumstances for the defendant to hold an honest but mistaken belief there was no signed agreement. He concluded that with lapse of time memories were bound to fade as in this instance.
    
30. It is not for this court to substitute its findings on the evidence other than to determine if the test was applied correctly in the circumstances as alleged by prosecution.
    
31. The Crown in its submission argues on the other hand, that the view held by the defendant in relation to honest belief, could not be sustained in the circumstances of the case, in particular in the light of the evidence adduced before the court. The Crown argues the court failed when assessing the evidence before it, to properly take into account the subjective elements of the crime and thereby erred in law and fact.
    
32. I have had the opportunity to consider the undisputed evidence adduced in court in this matter, which included the following pertinent matters. That on the 4^th August 2007, there was an unsigned written agreement, yet on the next day, 5^th August 2007, the same agreement was executed between the parties, in the presence of two independent witnesses; the terms being exactly the same as the draft agreement of 4^th August 2007.
    
33. While the existence of the unsigned agreement was not denied it seemed unusual, odd that the existence of a signed agreement which ought to have had more significance, relevance and impact, completely ignored, or forgotten by the respondent, but not the appellant. It is ironic the respondent could accept there was a draft unsigned agreement which she could recall well, but could not and denied the existence of any signed agreement, when that fact alone should have been sufficient on its own for her to remember because of the importance and significance of such a document, a fortiori, when it was executed on the very next day. Those were matters which the learned Magistrate did not consider in his assessment of the evidence, concluding that with the lapse of time the respondent was entitled to hold the view albeit mistakenly, there was no signed agreement, with little or no thought given as to whether the existence of a draft unsigned agreement in the circumstances could have also jogged her memory, or reminded her of the existence of a signed agreement that had been entered into on the next day.
    
34. Secondly, there is no evidence to support his finding that the witnesses to that agreement, in particular the witness Ruth Alepio, could not recollect or remember signing as witness until she was shown a copy of the agreement. To the contrary, Ms. Alepio had expressly stated in her evidence that she did not forget she was called as a witness. Rather, what she could not remember in evidence, were the date and the number of copies signed; she could recall however, it was in 2007. It was not open to the court therefore to assume that the witnesses too were affected in their memory or powers of recollection by lapse of time. I quote what was said in the judgement at paragraph 3, line 8 of page 3, as follows:
    

“The evidence also shows that even one of the attesting witnesses Ms. Ruth Alepio when contacted by Mr. Podarua was not sure if she signed as attesting witness not until she was shown a copy of the written signed tenancy agreement. No one can blame them for being unsure and having mistaken beliefs, the period between signing of the tenancy agreement and the hearing of Civil Case No. 125 in the High Court was about 3 years and being humans with all human frailties, lapse of time would generally have an effect on their memory and recollection of events. If the witnesses believe they sign or did not sign or unsure whether they signed as witnesses on the written tenancy agreement, there is no reason why the same thing would not happen to accused and cause her to reasonably and honestly believe she did not sign any written tenancy agreement. She is just as human as prosecutions witnesses who are also unsure about the events. Having observed her demeanour in the witness box I believe she is honest in what she told the court.”

It is clear on the evidence that the presiding Magistrate erred in his finding about those witnesses to the agreement being hesitant or unsure about whether they witnessed the agreement or not, for the witness Ruth Alepio had expressly stated in evidence, she did not forget she was a witness to that agreement.

35. Thirdly, the learned Magistrate failed to correctly apply the test being, where the defence of mistake of fact is raised, the burden is on prosecution to prove beyond reasonable doubt that the belief was not merely honest but also not reasonably held. To conclude that the belief was honest and reasonable in the absence of a signed written agreement, without further verification, insufficient on its own and would be unreasonable in the circumstances of the case.
    
36. I am satisfied accordingly in the circumstances of this case, the test of honest and reasonable belief was incorrectly applied by the presiding Magistrate and accordingly appeal should be allowed and the matter remitted to the Magistrates’ Court to be reheard.
    
37. I have considered the question whether this court should intervene and make its own finding but have decided against that as the question of assessment of facts relating to the question of honest and reasonable belief is a matter solely for the court below to determine after trial.
    

Orders of the Court:

(i) Allow appeal and direct that the orders of the court below be quashed.

(ii) Direct that the matter be remitted back to the Magistrates’ Court for a re-hearing.

Sir Albert R. Palmer CBE.

The Court.

^[1] Mary Chow v. Aggie Podarua (Representing herself or trading as La Tortilla) Civil Case 125 of 2010.
^[2] Mary Chow v. Aggie Podaru CC 125 of 2010, 3^rd August 2010, Cameron J.
^[3] See The Queen v. Yoka Kiok, SC 607, at page 5, paragraph 2.