PacLII Home | Databases | WorldLII | Search | Feedback

Court of Appeal of Fiji
You are here:  PacLII >> Databases >> Court of Appeal of Fiji >> 2011 >> [2011] FJCA 30

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Patel v State [2011] FJCA 30; AAU0039.2011 (12 May 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI


CRIMINAL APPEAL NO.AAU0039 OF 2011
CRIMINAL APPEAL NO.AAU0040 OF 2011


BETWEEN:


MAHENDRA MOTIBHAI PATEL
TEVITA PENI MAU
Appellants


AND:


THE STATE
Respondent


Counsel: Mr G Reynolds QC, Mr H Nagin and Mr S Valenitabua for 1st Appellant
Mr D Sharma for 2nd Appellant
Mr M Tennakoon for Respondent


Date of Hearing: Monday, 2nd May 2011


Date of Ruling: Thursday, 12th May 2011


RULING


  1. I heard applications by Mahendra Motibhai Patel and Tevita Peni Mau on 2nd May 2011. They were tried before Mr Justice Goundar and assessors between 14th March and 6th April 2011. The offence charged in each case was abuse of office. The opinion of the assessors in the case of Peni Mau was "guilty". The opinion of the assessors in the case of Mahendra Motibhai Patel was "not guilty". Under the criminal law in Fiji the tribunal of fact in the High Court is the learned judge. Mr Justice Goundar giving very full written reasons exercised this function by finding Mahendra Motibhai Patel guilty of abuse of office. Both men were sentenced on 14th April 2011 to immediate custodial sentences. Mahendra Motibhai Patel was given 12 months imprisonment and Tevita Peni Mau 9 months.
  2. The facts underlying these matters are relatively simple. Mr Patel was the part-time Chairman of the Fiji Post Office. Mr Mau was the Managing Director of Fiji Post Office; Fiji Post Office is part of the Fiji Government. There were serious restoration works underway in about 2002 and 2003 in respect of the façade of Suva General Post Office. The architect Mr Naidu included a clock as a focus and frontispiece of these works and this was included in a drawing seen by the Board on 2nd April 2003; but it was not included as an agenda item or in the costs discussed at that meeting. It was discussed by the Board on 35/2003. Ms Lute Powell queried the clock item but did not get a satisfactory reply. She asked that the question and answer be minuted. When it was not minuted she assumed that those responsible for the minutes had suppressed the matter and that their wish was that the matter was not to be debated or scrutinised. Although Mr Mau had authored and promoted the relevant Public Service Guidelines, he did not apply the rules that required tendering for items over $10,000. He used his approval authorization to pay $75,000 to Prouds which is owned by the Motibhai Group. There was evidence from Mr Naidu that Mr Mau had told him that Mr Patel wished to supply the clock. As the judge said in his summing up that was not evidence against Mr Patel.
  3. I will first of all consider whether Mr Patel should be granted leave to appeal against conviction and sentence.

Should leave be granted to Mr Patel to appeal against conviction and sentence?


  1. Mr Reynolds QC orally presented a number of arguments in support of leave to appeal against conviction. To these section 21(1) of the Court of Appeal Act apply. This raises a threshold question in respect of each argument. With regard to whether the threshold is met the criteria set out in section 23(1) of the Court of Appeal Act and the proviso are essential to each threshold decision.
  2. A principal argument is that where the assessors give an opinion of "Not Guilty" the judge can only overrule and find the defendant guilty if he sets out detailed matters of fact and law in a written judgment. The argument is that Justice Goundar failed to fully follow the requirements set out in the Supreme Court judgment in Leone Lautabui and Others handed down on 6th February 2009. All I need say on this is that I am satisfied that the threshold for granting leave to appeal against conviction is met. This is a matter of mixed fact and law.
  3. A second argument is that there is an error on a pure question of law. The point is that some offences of this kind can be found to be uncertain in international law on human rights and fundamental freedoms. The Hong Kong Court of Final Appeal case of Shum Kwok Sher v. HKSAR [2002] HKCFA 27; [2002] 5 HKCFAR 381 is cited in support.
  4. I have read Shum Kwok Sher per Bokhary P.J. The case decided unanimously that the common law offence of misconduct in a public office, correctly defined, was not "uncertain" or "arbitrary" in terms of Article 9 of International Covenant on Civil and Political rights. In this case the statutory section was much more precise than the old common law offence.
  5. In order that there may be a right of appeal on a question of law, a ground of appeal must be raised, which is, in the opinion of the court, a question of law, and the right cannot be obtained merely by raising a ground which the grounds of appeal or the submission of counsel at any later stage describe as a question of law. Before a right of appeal on a question of law can be demanded or asserted, a question of law alone must have arisen in the appellate proceedings and remained undetermined. Where the court has decided that there was no such point of law alone, this decision cannot be reviewed at any subsequent sitting of the court: R v. Hinds (1962) 46 Cr. App. R. 327.
  6. I am firmly of the view that no point of law as argued on behalf of Mr Patel arises. Shum Kwok Sher is not an authority in support of this argument. There is no such point of law alone in this appeal. It is not arguable that this is a case where an appeal on law alone arises as of right.
  7. The other points of appeal are that on the particular elements of the offence there was no evidence to be left to the assessors upon which the tribunal of fact, the learned judge, could have convicted Mr Patel. At this stage all I need say is that those are arguable grounds of appeal.
  8. So I give leave to appeal against conviction on these grounds. I also consider that it is appropriate to give leave to appeal on sentence.

Should Mr Patel be granted bail pending appeal?


  1. I have set out the principles that regulate my jurisdiction to grant bail pending appeal in bail applications in Taimur Ali v. The State and Brian Singh v. The State. I do not intend to repeat them here. In deciding on chances of success I must not and do not decide any of the issues on the appeal.
  2. In respect of the supervisory argument based on Lautabui and Others the threshold for granting leave is crossed. But there will be consideration on the appeal as to how far, if at all, what is essentially a supervisory judgment is a precedent other than on the facts of the individual case in which it is pronounced. In my opinion the chances of success are moderate at best and the high threshold for bail is not reached.
  3. Nor do I think the chances of success are any better with regard to other supervisory grounds such an alleged failure to explain correctly the applicable standard of proof.
  4. As to questions of fact having read the summing up to the assessors this is a case where it is arguable that there was enough evidence to be left to the assessors at the "no case" stage. Thereafter Fiji criminal law leaves conviction on the finding of various facts not to a jury but to the trial judge. Opinion of assessors provides an input into the decision making process but if the learned judge properly self directs and finds the facts on evidence upon which the tribunal of fact could have convicted, the system in Fiji is that the learned judge is bound to convict in such circumstances.
  5. There is also the point that in Fiji a robust but fair criteria upon which appeals must be decided remains the law. The absence of any change on the 1907 Criminal Appeal Act framework must be taken to mean that the legislature continues to hold the view that framework is appropriate for Fiji in contemporary circumstances. In respect of verdicts of guilty the appeal court can only consider the verdict unreasonable where the appeal court considers that the verdict was "obviously and palpably wrong". See R v. Hancox 8 Cr. App. R. 193.
  6. In my opinion there are sufficient counter arguments on the facts of Mr Patel's conviction so that his chances of success on factual matters are well short of exceptional as is required by the authorities.
  7. Mr Reynolds urges upon me that the learned judge directed the assessors correctly on one point but that in convicting he did not apply the relevant principle correctly in his written judgment in respect of Mr Patel. The point is that Mr Naidu's claim that Mr Mau told him that it was Mr Patel who directed that the clock be purchased from a subsidiary of his principal company cannot be evidence against Mr Patel. The point is well taken. But it only would be decisive in the absence of compelling evidence of a circumstantial nature that the person commanding the purchase in defiance of laid down procedures was the Chairman who was Mr Patel. It is my opinion that on this point the chances of success are well short of exceptional.

Bail pending appeal in short sentences


  1. The 36th Edition of Archbold says this about the position prior to the passing of the Bail Act.

"In R v. Tarran, The Times, December 16, 1947, bail was granted in view of the fact that owing to the length of the transcript of shorthand notes the appeal would probably not be heard until the end or after the expiration of the sentence. See also R v. West and Others [1948] 1 KB 709; 32 Cr.App.R.152"


In my view the practice prior to the Bail Act, was clearly that bail pending appeal would be granted if the appeal was not likely to be heard until after the expiration of the custodial sentence imposed by the lower court.


  1. The object of the Bail Act was not to change the principles upon which bail pending appeal was granted at common law but to codify them in a way that rationally presented the whole corpus of rules. This brings me to section 17(3)(b) and (c) of the Bail Act. They say the court must take into account:-

"(b) the likely time before the appeal hearing;


(c) the proportion of the original sentence which will have been served by the applicant when the appeal is heard."


  1. I do not think this adds anything to the pre Bail Act position discussed above. The first step is to work out when the appeal will be heard. This is a matter able to be influenced by the Court of Appeal. In this case I am told that the trial judge's note will be ready very shortly. If so and I direct expedition and an early hearing. It is very likely that this case will be heard in the session of the Court of Appeal commencing in August 2011. If judgment is accorded priority it should be available around mid September 2011. By that time Mr Patel will have served 4 ½ months of his 12 month sentence. So this is not a case where Mr Patel, if he is acquitted on appeal, will have served all or even a high proportion of his sentence of 12 months imprisonment by the time when the result of the appeal can be expected. The common law has always regarded time in custody pending a successful appeal as an incident of citizenship. In the Taimur Ali and Others case where there was an acquittal on appeal very recently, the four wrongly convicted men spent 9 months in prison pending the result of their appeal.
  2. If there are exceptional chances of success bail pending appeal will be granted whether or not it is a short sentence. This is a short to medium sentence of imprisonment and the chances of success are not exceptional. In the result considering and taking into account sections 17(3) (a)(b) and (c) as well as pre Bail Act practice, my decision is that there should not be bail pending appeal.

The effect of age and chronic conditions such as coronary artery disease and diabetes


  1. Mr Patel is 71 years of age and I have read the report of Dr Ram Raju of Nadi Fiji and that of Emeritus Professor John R Turtle who lives near Sydney, Australia. I accept all that they say. That includes what they say about diabetes and cardio vascular disease. I accept that stress increases the risk of deteriorations in these conditions. I also accept from Dr Brian Harrisberg of Sydney that he would like to operate upon his cataracts as soon as possible.
  2. I am personally sympathetic to anyone having to endure trials and then imprisonment when they are getting older and suffer from these conditions. At least in modern times monitoring and checkups and medication can maintain stability and prolong life for many years. As I observed recently in the Brian Singh case the prison authorities in Fiji arrange for emergency attendance at hospitals and clinics when there is a health crisis. They also allow attendance at private clinics or the Colonial War Memorial Hospital if monitoring and adjustments in medication are a requirement for persons such as Mr Patel.
  3. However my duty is to apply the law relevant to the matters that come before me. I explained the principles in my bail pending appeal ruling in the case of Brian Singh. For these reasons while generally sympathetic, I must rule that the medical matters raised concerning Mr Patel do not affect the position in respect of granting bail pending appeal.
  4. I conclude on all these considerations by refusing bail pending appeal.

Application for leave to appeal against conviction and sentence of Tevita Peni Mau


  1. I have heard succinct but comprehensive submissions from Mr Sharma in support of leave being granted to Tevita Peni Mau with regard to his intended appeal against conviction and sentence.
  2. I have read the proposed notice of appeal which proposes fifteen grounds of appeal. There is a ground based on what Mr Justice Goundar summed up to the assessors. There are numerous complaints concerning Justice Goundar's findings of fact after the assessors had delivered a unanimous opinion of "guilty". The same complaints are made also in respect of Mr Justice Goundar's summing up to the jury. There are a number of complaints re the sentence which is claimed to be too harsh and excessive and wrong in principle. Further it is alleged that it was wrong in principle not to suspend Mr Mau's sentence.
  3. I need say more than that. I am satisfied that some of the grounds are arguable. I therefore give leave to appeal against conviction and sentence generally.

Application by Mr Mau for bail pending appeal


  1. It is true that the custodial sentence in respect of Mr Mau is 9 months imprisonment as opposed to 12 months in the case of Mr Patel.
  2. It is likely as explained above that judgment will be handed down on or about the second week of September 2011. By that time Mr Mau will have served about one half of his sentence. If that programme is met it will not be a case where Mr Mau will have completed his sentence of 9 months imprisonment before the appeal is heard and judgment handed down. In so deciding this matter I follow the principles discussed above in respect of Mr Patel's bail pending appeal application.
  3. In section 17 of the Bail Act the reference is to "the original sentence". In my view this means the sentence pronounced by the learned judge at first instance. It cannot mean the sentence to be served allowing for the possibility that remission of one third will be earned by the good behavior of the applicant for leave.
  4. None of the grounds of appeal advanced by Mr Mau against conviction, while arguable reach the high level that would make this case an exceptional one where bail should be granted pending appeal. Without quotation I refer to my earlier ruling in the case of Taimur Ali and Others dated 9th September 2010 and Brian Singh dated 15th December 2010. I apply the principles that are set out in these cases. This is a case where bail pending appeal should not be granted.

ORDERS AND DIRECTIONS


  1. I conclude this ruling by ordering and directing as follows:

William R. Marshall
Resident Justice of Appeal

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJCA/2011/30.html