Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Rukhmani v State [2008] FJHC 134; HAA056J.08S (4 July 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal Case No: HAA 056 of 2008

Between:

RUKHMANI
Appellant

And:

THE STATE
Respondent

Hearing: 27th June 2008
Judgment: 4th July 2008

Counsel: Mr. I. Khan for Appellant
Ms H. Tabete for State

JUDGMENT

The Appellant appeals against conviction and sentence. She was convicted, on the 1st of April 2008, on 7 counts of obtaining by false pretences contrary to section 309(a) of the Penal Code. She was sentenced to 18 months imprisonment.

The case was first called in the Suva Magistrates’ Court on the 13th of August 2007. Pleas were taken on the 24th of August 2007 and a hearing date set for the 15th of October 2007. There was then a change of counsel, and the trial eventually commenced on the 11th of March 2008.

The evidence from Shobna Singh was that in 2006, she was working as a sales assistant in Marks Street. In October 2006 she saw an advertisement in the Fiji Times, in the following terms:

"Australian gentleman Alex 48 yrs Greg 33 yrs Indian 38 yrs all seeking genuine Indian marriage partners single widow divorced. Send photo biodata phone contacts write to Box 1616 Nabua." She responded to the advertisement and received a telephone call from a Mr. Raj. He made arrangements to meet Shobna Singh at his office. The office was marked "Pacific Agency Marriage Consultant." She met Mr. Raj and gave him a set of her personal papers and those of her son.

Shobna Singh and Mr. Raj then spoke to each other on the telephone over October and November 2006. He suggested that she see the Appellant and returned her papers. Shobna Singh then contacted the Appellant, who asked for $15,000 as a first payment. Shobna Singh then paid her this money on the 7th of November 2006 "regarding the work", in the presence of Singh’s mother. No receipt was issued.

On the 15th of November, the Appellant asked for $25,000 saying she "needed some cash to show for my son." Singh withdrew $15,000 in cash and gave the Appellant the money. Again, no receipt was issued.

They continued to speak on the phone. Each time they spoke the Appellant told Shobna Singh that "the boy is about to come." The record then reads: "She was arranging both the marriage and migration." The Appellant asked for $7,000 more allegedly for Singh’s son’s school fees in Australia. Singh paid that money. In March, she paid $10,000 more. In total she paid the Appellant $64,000. Finally the Appellant told Singh that "the guy in Australia had an accident in April 2007." Shobna Singh began to ask for her money and finally reported the matter to the police. She tendered bank statement of her mother, Simla Wati, showed bank withdrawals in the amounts, and on the dates specified in the charge sheet.

In cross-examination Shobna Singh said that the Accused had told her that she was only passing the money on to one Ravindra James and one Adrian and that Singh knew that the Appellant was not running a marriage business nor a travel agency. She said that the money "would be shown to Immigration and refunded in a few weeks time." She said that the money was going to be passed to a third person and that the person who was to marry her was one "Adrian" who seemed like an elderly person. He had promised to marry Shobna Singh but never asked for money. She believed that the Appellant was arranging her marriage, and that $2000 was paid to her to lodge her visa application.

Simla Wati gave evidence that she withdrew money from her bank account to pay the Appellant, who was arranging for her daughter to go overseas. At page 11 of the record the following was recorded:

"Did Rukhmani say anything about anyone?

All she said was that she’s arranging everything and she knows everybody and will be able to arrange visa."

Under cross-examination she said she had paid the money to Rukhmani so her daughter could get marriage in Australia and settle there. The money was "for the purpose of obtain[ing] Australian residency."

The remaining evidence was that no visa application had been made at the Australian High Commission in the name of Shobna Singh. The Appellant was interviewed under caution and although she admitted receiving large sums of cash from Shobna Singh, she said that she was simply a collecting agent for Ravindra James. She denies making any representations to Singh.

The Appellant gave sworn evidence. She said that Ravindra James (now resident in Australia) had also promised to procure a visa for her, but had failed to do so. She was asked by James to take money from Shobna Singh and she agreed because James told her that he would not assist her to migrate if she did not. She collected the money and it would be picked up from one Jerry and one Prem Chandra. She complained about the scam in a letter to the Prime Minister’s Office in January 2008. She denied telling Singh and Simla Wati that it would take 4 weeks to arrange a visa, and denied telling them that "Adrian" was coming to Fiji in April.

Judgment was delivered on the 2nd of May 2008. After reviewing the evidence the learned Magistrate said that the elements of the offence were that the accused obtained possession of money, that she did so by a false pretence, and with an intention to defraud. She defined a false pretence as a "statement about a matter of present or past fact or a statement about a future event, or a statement about an existing intention, opinion, belief, knowledge or some other state of mind" which the person making it knows is false. She then said:

"In summary, the State must prove that the accused without justification or entitlement told a deliberate lie, intending that the complainant would believe it and thereby hand over or deliver something which he or she would not have done if the truth had been known."

She then rejected the evidence of the Appellant and said that she believed "the complainant Shobna and her mother that Rukhmani did hold herself out to be in a position to arrange a migration visa for Shobna and her son and arrange a husband for Shobna." She found that this was a conspiracy among several people to extract money for migration and that the Appellant’s role was to collect the money "for arranging visa and marriage." She then convicted the Appellant.

The Appellant appealed against conviction on several grounds. However, at the hearing of the appeal, he pursued one main ground. That is that the evidence disclosed a future promise and not a false pretence, and that when the learned Magistrate summed up the evidence she wrongly concluded that the Appellant had put herself out to Shobna Singh as a person who was in a position to arrange visas.

I have set out the evidence in some detail in this judgment because it was necessary to scrutinize the evidence to see what is that the Appellant was representing to Singh. The learned Magistrate clearly rejected the Appellant’s version of the evidence. But that was not enough. Was there evidence of a false pretence on the complainant’s version of the facts?

The first difficulty is the way in which the charges are drafted. The counts allege that the Appellant "with intent to defraud obtained ...... cash from one Shobna Singh d/o Santokh Singh was falsely pretending that she will arrange marriage and family migration visa to Australia for the said Shobna Singh d/o Santokh Singh."

If the evidence of Simla Wati is accepted (as indeed it was) the arrangement with the Appellant was to obtain visas and get married. At page 11 of the record she said that the Appellant told them that she "will be able to arrange visa."

Section 308 of the Penal Code provides: "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." The representation cannot be about a future intention. Therefore, at page 8 of her judgment, when the learned Magistrate said that a false pretence could be "a statement about a future event, or a statement about an existing intention", that was clearly an error in law.

A false pretence cannot be a statement of a future intention. So when I say that I will arrange a visa for you, that is not a false pretence. If however I say that I am currently making arrangements for a visa for you, that is a false pretence if it is not true, and I know it is not true.

In Mareca Duibana Bese v. State [2005] HAA 0060/05S, Winter J said that while a future promise is not on its own a false pretence, the facts of each individual case must be assessed to see whether there was an existing fact or misrepresentation. A falsehood "may come not only from the actual promise itself but that promise in combination with the subsequent actions of the accused and any subsequent excuse given for inaction." In that case a promise was made that visas would be obtained, but the accused made no arrangements, and pretended that she had sent all the documentation to one "James" in Australia for processing. The promise with the continuing course of conduct, constituted a false pretence.

The learned Magistrate found that the false pretence was a representation that the Appellant was in a position to obtain visas for the complainant and was, over a period of 5 months collecting money from her on that basis. At pages 5 and 6 of the record the Appellant is alleged to have said that the "boy" is about to come and that the Appellant "was arranging both the marriage and the migration." The evidence was that "Adrian" rang to speak to the complainant on the Appellant’s telephone number. The complainant believed that the Appellant was in the course of arranging a marriage for her with Adrian. As a matter of fact, the learned Magistrate accepted that there were no such arrangements. There was no visa application and no arranged marriage.

At page 11 of her judgment, the learned Magistrate set out what she considered to be the plan to which the Appellant was a party:

"First, the advertisement [Exhibit 1] to lure people like Shobna. Then the initial contact and meeting with an agent. Relevant documents are taken for lodgment with the Embassy. Reasonable amount of lodgment fee is taken. Then to show good faith the money and document are returned and the victim referred to Rukhmani who would carry on from there – that is collecting money for arranging visa and marriage. As an inducement a marriage partner is introduced. The pivotal role is played by Rukhmani."

The evidence as it was accepted by the learned Magistrate disclosed a continuing course of action which was part of a plan to obtain by false pretences. The false pretence was that the Appellant was in the process of making the necessary arrangements for visa and marriage.

The evidence then was capable of allowing the learned Magistrate to conclude that there was a misrepresentation of existing fact. That fact was that the Appellant was in the process of making arrangements for a visa and for an arranged marriage. The advertisement in the Fiji Times was a future promise. The complainant’s conversation was James was a future promise. However the complainant was told by the Appellant that she was in the process of making visa arrangements for her on the basis of which the complainant parted with her money. To give credibility to her false representation, the Appellant arranged for calls from "Adrian" to be made to the complainant on the Appellant’s telephone line. That was evidence that the Appellant was making such arrangements when in fact she was making no such arrangements.

Therefore although the learned Magistrate misdirected herself on the law, she correctly found that the Appellant had put herself out as a person who was in a position to obtain visas for the complainant. Indeed she could have gone further and found that the Appellant had falsely represented that she was already in the process of making those arrangements because on four different occasions the money was taken "to show the Immigration Department."

There was therefore evidence capable of basing a finding of guilt. The complainant clearly believed the Appellant to be in the process of applying for her visa, and she would not have parted with her money if she had known that no such application had been made. Section 309(a) of the Penal Code commences: "Any person who by any false pretence ......" There must be evidence on the reliance on the false pretence. It is clear from the record whether the complainant relied on the representations as to a continuing process, or on representations that a marriage would be arranged.

Thus although the learned Magistrate erred in her definition of the law, she correctly directed herself on the facts of the case, and found that there was a continuing course of conduct based on a belief that the Appellant was in a position to obtain visas and arrange the marriage. The defence was conducted, not on the basis that there was a future promise, but on the basis that there was no representation at all. The defence was that the Appellant was only a collecting agent for the real fraudsters. There was no prejudice arising from the lack of clarity in the charges and the prosecution case. This ground of appeal fails.

This was the only real ground of appeal pursued. However there is also an appeal against sentence.

The Appellant is 51 years old and in a de facto relationship. She has two grown up daughters and runs her own business as a tailor. She expressed remorse and said she did not benefit from the offences. She is a first offender.

The tariff for an offence under section 309 of the Penal Code is 18 months to 3 years. In Bese v. State (supra) HAA 060 of 2005, the appellant was a 52 year old woman who obtained $4549.00. A sentence of 18 months imprisonment was imposed on her on appeal.

In this case the Appellant extracted $64,000 from a credulous and desperate woman by a combination of promises and deception. Despite her previous good character, the 18 month term was entirely appropriate. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
4th July 2008