State v Singh [2005] FJHC 433; HAC0020.2005 (23 November 2005)

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Counsel: Mr. R. Gibson & Ms L. Lagilevu – for State
Mr. D. Sharma & Mr. N. Lajendra – for Accused

Near the conclusion of the Prosecution case and by consent I granted leave to the State to amend its information. This was the 5^th such amendment. The amended information in its final form is attached as Appendix 1. The Prosecution then closed its case. The accused through his counsel made an application that there was no case to answer.

Throughout 2002 and 2003 the accused Mr. Brijan Singh was the Permanent Secretary for Labour, Industrial Relations and Productivity. (“The Ministry”).

In that capacity he was invited by the International Labour Organization to attend three conferences. These are the subject of the 3 counts in the information. As a public servant the accused has the obligations and benefits described in certain General Orders and Public Service Circulars. In accordance with one such document (Public Service Circular 32 of 1988) (Ex.1 page 11) he can be permitted to travel by air in business class when going overseas on official duty.

Mr. Singh was granted permission by Cabinet to attend these conferences. His air travel arrangements were made in the usual Ministry fashion and bookings obtained in his permitted class of travel. The Government paid for travel in business class. Mr. Singh did not travel in that class but changed his booking to an economy one and kept the cash difference between the cost of that fare and his actual economy class fare. He has been charged with three counts of false pretence contrary to Section 309(a) of the Penal Code, Cap. 17. The Crown case has proceeded on the basis that between the named dates the accused:

“with intent to defraud caused the Government of the Republic of the Fiji Islands to pay the sum of $8,739.00 (Count 1), $4,311.00 (Count 2) and $9,724.00 (Count 3) for the use or benefit of the said Brijan Singh and Hunts Travel Service Limited by falsely pretending that the said Brijan Singh intended to travel on a business class air ticket ...to Geneva (Count 1), to Jakarta (Count 2), to Geneva (Count 3), which pretence the said Brijan Singh knew to be false or did not believe to be true.”

There is an unfettered discretion to discharge an accused at the conclusion of the Prosecution Case. The most common argument is that the evidence is insufficient or unsafe to justify a trial. I remind myself of the settled law recently detailed in The State v Raj and Pal, HAC0019 of 2005, pages 3 and 4.

In this application the defence rely on an argument that the charges do not constitute an offence. The applicant points to the definition of a false pretence contained at Section 308 of the Penal Code:

“any representation made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false, or does not believe to be true, is a false pretence”.

It is then submitted that the State have identified a false pretence with a future intention (i.e.) that the accused “intended to travel on a business class air ticket”. It is submitted that no representation on the accused’s behalf to do something in the future amounts to a false pretence. [cf the High Court of Australia in the King v Greene [1949] HCA 55; [1949] 79 CLR 353 per Dixon J para.7 and R v Dent [1955] 2 ALL ER 806 and in Fiji the decision of my learned sister Justice Shameem in Ramesh Chand v The State, Criminal Appeal No. HAA0003 of 2004 (Suva)].

As the offending representations described by the State in the particulars of the offence are neither false in the past or present sense but rather may be false in the future, this is not sufficient it is submitted to constitute a false pretence. Accordingly, as the charges do not constitute an offence counsel submits it would not be fair to put the accused to his defence.

At common law it was not a crime to deceive another into departing with his or her property. However, an individual who cheated by using false weights or measures which were known as “public tokens” was guilty of an indictable offence. The “cheat” was punished because such a crime was of a public nature and the possession and use of the false tokens indicated a general desire to defraud.

The common law sanction proved insufficient and was extended from the use of false tokens to the use of counterfeit letters made out in another man’s name or the use of imaginary tokens in order to obtain goods.

The crime consisted in the use of some real visible mark or thing such as a key or a ring or writings in the name of a third person “whereby some additional credit may be gained by the party using it”.

In England the statutory offence shortly described as “false pretence” was introduced in 1757 by 30 GEO 2 c 24 in order “to protect the weaker part of mankind”. It was subsequently extended by 52 GEO 111 c 64 in 1812 so as to include the obtaining of goods and money. In substance the crime described in our Section 309(a) of the Penal Code, Cap. 17 is the crime created by the Statutes of 1757 and 1812:

“All persons who knowingly and designedly, by false pretence or pretences, shall obtain from any person or persons, money, goods, ware or mechanizes, with intent to cheat or defraud any person or persons of the same....shall be deemed offences” (emphasis added).

This historical context is important for two reasons. First because it emphasizes that the original offence only served to criminalize those pretences that were actually false in a present or past sense. Secondly unlike other jurisdictions Fiji has not amended its false pretences offence to include future promises or representations.

Most other commonwealth jurisdictions have long since extended the definition of false pretences to include future promises and or representations partly based in the past and or the future to cure this very difficulty. For example the New Zealand Crimes Act 1961 Section 245 description of what constitutes a false pretence reads:

(b) A representation in the form of a promise which the promisor intends not to perform.

It was this very subject that occupied the minds of the High Court of Australia in the case primarily relied upon by the accused in this application that is Greene v The King [1949] HCA 55; [1949] 79 CLR 353.

The position of Green is succinctly stated in two passages from the judgment of Dixon J paragraphs 7 and 11.

“7. From that time forward the law has been that no representation, express or implied, as to the existence of an intention on the part of the prisoner to do something in the future amounts to a pretence for the purposes of the crime of false pretence....

This general principle was accepted by my sister Justice Shameem in Chand (supra).

It appears these original English statues have been the subject of much debate as various Judges endeavoured to create exceptions to the hard and fast rule that the false pretence must be of a past or present fact. Justice Dixon speaks of one such exception that might be applicable here again at para.7 later in the passage he observes:

“But a contract or promise as to a future act or future conduct may itself be based upon or accompanied by a false statement as to a past fact or present state of things and if by means of a false statement the prisoner obtains the property it would form a foundation for a charge of false pretences notwithstanding the contract or promise. Some difficulty appears to have been felt about an inducement consisting partly of a false promise as to future conduct and partly of a false representation of past or present fact. But it was decided that a false representation of existing fact though united with a false promise would sustain an indictment for false pretences if money or property was thereby obtained (R v Bates and Pugh (1848) 3 Cox CC 201; R v Fry (1858)”.

However, in New South Wales provision was expressly made to cover such obtaining in whole or part by a promise (cf Section 179 Crimes Act 1900). Even then further judicial intervention was required to settle the position (R v Thorland [1884] NSWLawRp 76; [1884] 5 LR (NSW) 412). And a further statutory amendment was required. (cf Section 182 Criminal Act 1900).

The exception described by Justice Dixon was in part relied on here by the State. It is submitted there is enough evidence to leave to the assessors that the expressed intention to travel in business class made at the outset of the booking process was false. It is said that this false pretence continued along the date frame, which is wide enough to cover the entire period from the Cabinet permission to travel through to journeys end and deposit of the cash from the airfare difference.

However, the particulars contained in the information in their fifth amendment still reflect the State’s case as it was presented in Court that the false pretence was of future conduct.

It is alleged the accused falsely pretended that between the named dates he “intended” to travel in a business class fare and that was a pretence known to be false. However, the history of the offence, the unamended Fijian description of false pretence and the judgments of Greene, Dent and Chand (supra) make it clear that it is indispensable to the charge that the representation really relates to a past or existing state of fact that is false. A representation about a future intention is not a false pretence.

In these applications whether the words used or conduct of the accused are reasonably capable of bearing the meaning attributed to them by the prosecutor is a question for the Judge [Rosensan (1917) 12 Cr.App.R. 236].

I have prepared a brief synopsis of the essential documents relating to each count at Appendix 2. Even if I were to accept, which I don’t, that a representation about a future intention may be a false pretence because the temporal nature of the representation may change at some point between the dates named in the information [(ie) the representation may cease to be one about a future intention and become one of a false representation of past or present fact] that does not assist the State’s case.

Firstly, because I find the particulars of the information as framed do not create an offence known to Fiji Law.

Secondly, as demonstrated by the analysis of the essential documents produced in Exhibit 1 the State cannot prove the particulars on which they seek to rely. The phrase used to describe the false pretence is that Mr. Singh “intended to travel business class”. That can only mean that the false pretence is said to have crystallized at some point before the travel had been undertaken and that there was a link between that pretence and the payment of the monies. In terms of the dates supplied that cannot be so. In each case the money was paid after the travel had been taken.

In Count 1 the travel commenced on the 28^th of May, Government’s payment to Hunts Travel was the 11^th of June and payment to Mr. Singh on the 28^th of June, four days after he returned home.

In Count 2, which varies slightly from the other counts in that it related to payment of an upgrade as opposed to an outright purchase of a business class ticket. The invoice was raised on the 20^th of February, two days after the travel was undertaken. Government’s payment to Hunts Travel was on the 11^th of March and the payment to Mr. Singh on the 7^th of April, a month and a half after his return from the journey.

In Count 3 the LPO was issued on the 22^nd of May, the invoice on the 23^rd of May, payment by the Government on the 20^th of June to Hunts Travel. During the course of travel but payment to Mr. Singh was not until the 17^th of July, long after the journey was completed.

Accordingly, at no time can the State bring the particulars of offence that Mr. Singh falsely pretended he “intended to travel on a business class” up to proof as Hunts were paid after travel commenced and Mr. Singh had completed the travel before Hunts Travel was paid or he received his payment of the cash difference after the travel was completed.

The State may have been able to present a case saying that the false pretence was that the said Brijan Singh actually travelled in economy class when permitted to travel in a business class air ticket and kept the difference. However, on their fifth amendment of the information the State did not pursue their case in this way. I find the words used in the information are not reasonably capable of bearing the meaning now attributed to them by the prosecutor.

For the State to establish this charge it has to prove three elements and for the purposes of this discussion the second element that the accused obtained the possession, ownership or benefit of something by means of a ”false pretence” is relevant. That is there must be a direct link between the use of a false pretence and the obtaining of the possession, ownership or benefit. Apart from my earlier conclusion that there is no direct link between the use of a “crystallized” false pretence and the obtaining of the money the State faced yet another difficulty.

For the State to prove its case there has to be some safe evidence that the false pretence caused the money to be paid. I find on the basis of the State’s evidence at the close of the Prosecution case that there is no safe evidence about causation.

What caused this payment to be made was in fact an invitation from the ILO an approval by Cabinet, Mr. Singh’s permission to travel in business class on official duty as of right, the raising of a local purchase order, the presentation of an invoice and the payment of that money.

Mr. Singh was always permitted to travel in business class. So the State was always liable for that expense.

The State are bound by the way they have framed the information. The State have led evidence that the cause of the payment was a usual Government process. There is, however, no evidence of a direct link between the use of a false pretence and the obtaining of the cash difference. Indeed the amounts claimed in the particulars are for the full sum of the invoiced business class travel not the lesser retained difference.

Finally, I return to the original thinking of the English draftsmen. The crime of false pretence was developed to protect the “weak minded” from cheats. It was to stop these spoilers from getting more for their light-weighted tokens than was actually due to them. It was to stop the so-called blind beggar from claiming alms when he could see. The offence was used to stop forgery or the false application of seals on dubious documents to obtain some advantage for the fraudster. It was always in the mind of these law makers and the Judges interpreting the law ever since that a representation about future intent could not be the subject of a false pretence. A false pretence was rather grounded in an actual past or present falsehood.

In circumstances where a public servant has quibbled over his entitlements perhaps the sanction of the criminal law as it presently stands in Fiji is too inefficient and it may be prudent to pursue Public Service Discipline for such abuses rather than criminal charges.

The State have not made an application under Section 182 of the Criminal Procedure Code that I consider leaving to the assessors and the Court an option that the accused be charged for three alternate offences of stealing.

That would involve yet another amendment to the information, the re-opening of the Prosecution case by the calling of evidence essentially to satisfy Section 259 of the Penal Code and then the opportunity for the accused to cross examine those recalled witnesses.

In this case I have decided that justice would not be served by such an approach. There have been unacceptable delays in proceeding with this case. I accept the accused has lost his job. I accept the accused has in any event repaid the cash difference between the business class and economy class fares. I also observe that the State has had ample opportunity to perfect its information and counts but has not done so.

Accordingly, while giving this option my consideration for these reasons I will not leave the case open to an offence of stealing.

In conclusion I grant the application by the accused under Section 293 of the Criminal Procedure Code and declare there is no case to answer on any count.

	LPO	INVOICE	TICKET DATE	TRAVEL DATE	PAYMENT HUNTS	PAYMENT SINGH
Count 1 Doc. No.	14	21	22	22	23	24
Date	24/05	28/05	28/05	28/05	11/06	28/06

Count 2 Doc. No.	34 & 35	37	36	36	38 & 39	41
Date	ILO Order 17/02 Upgrade Letter 19/02	20/02 (upgrade)	17/02	18/02	11/03	07/04

Count 3 Doc. No.	63	66	68	68	72	74
Date	22/05	23/05	23/05	27/05	20/06	17/7

High Court of Fiji

State v Singh [2005] FJHC 433; HAC0020.2005 (23 November 2005)