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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. HAA 010 OF 2011
BETWEEN:
GYAN DEO
AND:
STATE
Counsel: Mr. A Sen - for the Appellant
Mr. M Kaisamy - for the State
Date of Hearing: 4th July 2011
Date of Judgment: 6th July 2011
JUDGMENT
1. The Accused Appellant was originally charged in the Magistrates Court on the following counts.
Case No. 194/11
FIRST COUNT
Statement of Offence
RECEIVING A CORRUPTING BENEFIT: Contrary to section 137 (I) (a) (ii) of the Crimes Decree 2009.
Particulars of Offence
GYAN DEO s/o BARAM DEO on the 17th day of March 2011 at Labasa in the Northern Division, being a public official received for himself without lawful authority or reasonable excuse, a benefit of $100.00 from Jenny Whan, with the receipt of the said benefit ending to influence public official such as Gyan Deo himself in the exercise of his official duties as a public official.
Case No. 195/11
COUNT 1
Statement of Offence
RECEIVING A CORRUPTING BENEFIT: Contrary to section 137 (I) (a) (ii) of the Crimes Decree 2009.
Particulars of Offence
GYAN DEO s/o BARAM DEO on the 12th day of March 2011 at Labasa in the Northern Division, being a public official received for himself without lawful authority or reasonable excuse, a benefit of $50.00 from Kuoping Ku, with the receipt of the said benefit ending to influence public official such as Gyan Deo himself in the exercise of his official duties as a public official.
COUNT 2
Statement of Offence
RECEIVING A CORRUPTING BENEFIT: Contrary to section 137 (I) (a) (ii) of the Crimes Decree 2009.
Particulars of Offence
GYAN DEO s/o BARAM DEO on the 22nd day of March 2011 at Labasa in the Northern Division, being a public official received for himself without lawful authority or reasonable excuse, a benefit of $40.00 from Kuoping Ku, with the receipt of the said benefit ending to influence public official such as Gyan Deo himself in the exercise of his official duties as a public official.
COUNT 3
Statement of Offence
RECEIVING A CORRUPTING BENEFIT: Contrary to section 137 (I) (a) (ii) of the Crimes Decree 2009.
Particulars of Offence
GYAN DEO s/o BARAM DEO on the 16th day of March 2011 at Labasa in the Northern Division, being a public official received for himself without lawful authority or reasonable excuse, a benefit of $40.00 from Kuoping Ku, with the receipt of the said benefit ending to influence public official such as Gyan Deo himself in the exercise of his official duties as a public official.
COUNT 4
Statement of Offence
RECEIVING A CORRUPTING BENEFIT: Contrary to section 137 (I) (a) (ii) of the Crimes Decree 2009.
Particulars of Offence
GYAN DEO s/o BARAM DEO on the 18th day of March 2011 at Labasa in the Northern Division, being a public official received for himself without lawful authority or reasonable excuse, a benefit of $35.00 from Kuoping Ku, with the receipt of the said benefit ending to influence public official such as Gyan Deo himself in the exercise of his official duties as a public official.
COUNT 5
Statement of Offence
RECEIVING A CORRUPTING BENEFIT: Contrary to section 137 (I) (a) (ii) of the Crimes Decree 2009.
Particulars of Offence
GYAN DEO s/o BARAM DEO on the 22nd day of March 2011 at Labasa in the Northern Division, being a public official received for himself without lawful authority or reasonable excuse, a benefit of $35.00 from Kuoping Ku, with the receipt of the said benefit ending to influence public official such as Gyan Deo himself in the exercise of his official duties as a public official.
COUNT 6
Statement of Offence
RECEIVING A CORRUPTING BENEFIT: Contrary to section 137 (I) (a) (ii) of the Crimes Decree 2009.
Particulars of Offence
GYAN DEO s/o BARAM DEO on the 25th day of March 2011 at Labasa in the Northern Division, being a public official received for himself without lawful authority or reasonable excuse, a benefit of $70.00 from Kuoping Ku, with the receipt of the said benefit ending to influence public official such as Gyan Deo himself in the exercise of his official duties as a public official.
2. When both cases were been taken up on 30/3/2011 the Accused Appellant pleaded guilty to all counts and admitted the summary of facts.
3. The learned Magistrate had consolidated both 194/11 and 195/11 together and passed one sentence. It was delivered on 4th April 2011.
4. The learned Magistrate had imposed 40 months imprisonment with 2 years 6 months non parole period. Being aggrieved with the sentence the Accused Appellant preferred an appeal against the conviction and the sentence.
5. Counsel for the Appellant submitted following grounds of appeal.
i) That the Learned Trial Magistrate erred in law in convicting the appellant when the particulars of the offence did not constitute an offence in law.
ii) That the Learned magistrate erred in law in convicting the appellant when the summary of facts outlined was inconsistent with the offence.
iii) That the sentence imposed by the Learned Magistrate is harsh and excessive.
c) Charge is wrong and not provided relevant information to the Accused, therefore he is challenging the conviction. Namely Section 137 (1) (b) was not mention, it is fatal error.
d) Particulars of offence is not clear.
e) Summary of facts did not give sufficient details of the offence.
f) The charge is vague and unlawful.
g) Regarding the sentence the Appellant submitted
ii) benefit obtained was small
iii) no aggravating factors
iv) Court may consider a suspended sentence or a short custodial sentence.
7. State Counsel submitted that the information is sufficient and the Accused Appellant was not mislead by the information regarding the sentence. Further the Accused Appellant was given a reasonable sentence since the Accused Appellant was a police officer, the sentence should be deterrent.
8. Considering the first ground of appeal "that the particulars of the offence did not constitute an offence in law".
9. Charges was reproduced in the first paragraph of this Judgment. It says the Accused Appellant received a corrupt benefit punishable under Section 137 (1) (a) (ii) of the Crimes Decree 2009.
10. Section 58 of the Crimes Decree deals with the charges and information. It states as follows:
"Every charge or information shall contain:
"Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence".
12. Section 61 of the Criminal Procedure Decree states as follows.
13. Section 122 (a) of the Criminal Procedure Code in similar to pursuant Section 61 in the Criminal Procedure Decree.
14. In State v Humphrey Chang Cr. Case No. 8 of 1991 Jesuratnam J made a ruling on no case to answer as follows.
"An examination of S.106 (a) reveals that there are two parts or elements in the definition of the offence. The first part deals with the obtaining of property or benefit from some person and the second part sets out the quid pro quo or consideration on account of which the property or benefit is obtained. When these two elements are proved the corrupt act is made out."
In this case State v Chang (1991) FJHC 57, the Court found the Accused guilty under Section 111 of the Penal Code for misdemenour.
15. In Isireli Leweniqila & 5 Others v State (2004) HAM 031/04S. Her Ladyship Shameem J decided that "without referring to this rule, application for 'further and better particulars' frequently made in civil proceedings is misconceived in criminal proceeding. "The only question is whether the charges and the disclosed statements give to the defence sufficient information with sufficient particularity to meet their unchanged prosecution case".
16. In Ram Sami v State (1999) 45 FLR 70 Fatiaki J stated;
"On a charge of Criminal trespass in which accused is alleged to have by night entered the complainant's compound without lawful excuse, there is no statutory requirement that the statement offences should also refer to any particular subsection or paragraph of the section charged, although it is highly desirable that it do so if relevant".
17. Similarly in Mudaliar v State Criminal Appeal No. AAU0032 of 2006 the Court of Appeal said:
"The purpose of providing particulars is to ensure an accused person knows the nature of the allegation against him. Slavishly following the forms in the second schedule may fail to achieve that purpose..."
18. In Skipper v R [1979] FJCA 6, the Court of Appeal considered the circumstances in which a conviction based on a defective charge will be set aside. The Court said:
"A line of cases has now established that, if it is clear that no embarrassment or prejudice was caused by an omission to state the required particulars correctly, the proviso would be applied and the appeal would be dismissed. It is sufficient to cite instances in R v McVitie 44 CAR 201; R v Power 66 CAR 159; R v Yule CAR 229 and R v Miller and Hanomer (1959) Crim. L.R. 50, Clifford Nelson [1949] CthArbRp 419; 65 CAR 119 in another case and further reference will be made to it."
19. Skipper is a case where the accused was convicted on a charge that specified a wrong section of the statute creating the offence. The Court of Appeal held that the defect was not a basic defect in the proceedings but was an irregularity. The Court applied the proviso that no substantial miscarriage of justice has occurred and dismissed the ground of appeal.
20. In Tavurunaqiwa v State (2009) FJHC 198 Justice Goundar referred to McVitie (1960) 44 Cr. App. R. 201. I quote from His Lordship's judgment as follows:
"A more relevant authority on the point of law is the decision of the English Court of Criminal Appeal in McVitie (1960) 44 Cr. Ap. R. 201. McVitie was followed by the Court of Appeal in Skipper. In McVitie the indictment charging the accused with possession of explosives omitted the word "knowingly" from the particulars of offence, which was an essential ingredient of the offence in the statute creating the offence. On appeal the Court of Criminal Appeal said:
"It is conceded that the appellant was in no way embarrassed by the omission in question. He admitted that he knew that he had explosives in his possession, and he certainly did not prove, even on a balance of probabilities, that he had them for any lawful purpose. But he says that he was tried on an indictment which was not merely defective but bad, since it disclosed no offence, and this must be a substantial miscarriage of justice precluding the application of the proviso.
Section 3 of the Indictments Act, 1915, provides as follows:
(1) Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.
Rule 4(3) of the rules contained in the first Schedule to the Act provides that "The statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence" and rule 4(4) of the same rules provides: "After the statement of the offence, particulars of such offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary."
The indictment in the present case conformed to these provisions, save only in one respect. If the words in section 3, "necessary for giving reasonable information, "import an objective test (which we think they do) then the word "knowingly" should have been included in the particulars. In our opinion this did not make the indictment a bad indictment, but simply a defective or imperfect one. A bad indictment would be one disclosing no offence known to the law, for example, where it was laid under a statute which had been repealed and not re-enacted. In the present case the indictment described the offence with complete accuracy in the "Statement of Offence." Only the particulars, which merely elaborate the "Statement of Offence", were incomplete. The question of applying the proviso is to be considered, therefore, not upon the basis that the indictment disclosed no known offence but that it described a known offence with incomplete particulars."
Later in the judgment, the Court of Criminal Appeal said:
"In the present case it is clear that no embarrassment or prejudice was caused to the appellant by the omission of the word "knowingly" from the particulars, or from the arraignment. He had been properly charged in the first place, and properly committed for trial, and the Attorney-General's fiat was in proper form. If the word "knowingly" had been in the particulars and the chairman had said to the jury: "You must be satisfied that McVitie knew that there were explosive substances in the paper bag in the car," he would inevitably have gone on to say – as, indeed, he did – "but McVitie admits he had this knowledge." This essential ingredient of the offence was therefore established, despite the omission of the word in question. The present case is, therefore, a clear where no substantial miscarriage of justice has occurred, and the court accordingly applied the proviso and dismissed the appeal."
McVitie establishes the principle that an omission to particularize an essential of the offence in the charge makes it defective but not bad. The question to be asked on an appeal against conviction arising from a defective charge is whether the accused was embarrassed or prejudiced by the defect. On appeal, while a defective charge cannot be cured, the court, however, can apply the proviso to dismiss the appeal if the accused was not embarrassed or prejudiced by the defect. However, the proviso cannot be applied if the defect is a fundamental error rendering the entire proceeding a nullity (Serupepeli Cerevakawalu v State Criminal Appeal No. AAU0024 of 2001S)."
21. In Shekar & Shankar v State Criminal Appeal No. AAU0056 of 2004, the Court of Appeal made the following observations about the purpose of a charge:
"The purpose of the charge is to ensure that the accused person knows the offence with which he is being charged. Whilst the particulars should be as informative as is reasonably practicable, it is not necessary slavishly to follow the section in the Act."
22. Considering Section 58 & 61 which governs the charges and information the test is whether the Accused is given reasonable details of the charge leveled against him.
23. Considering decided cases in Fiji and other similar jurisdiction it is clear that the Accused should be given reasonable details of the charge against him. In simple term the Accused should clearly identify and understand the charges leveled against him. There should not be any ambiguity in the details of charges against him. This Court is of the view if the Accused is given the name of the offence (if provided by the law) or the relevant section is sufficient. Providing more details will be helpful to the Accused but it is not mandatory.
24. The question to be asked is, as correctly quoted by Goundar J in Tavurunaqiwa (supra) "Whether the appellant was embarrassed a prejudicial by the defect in charge."
25. In this case the Accused Appellant is a police officer. It can be presumed that he had better knowledge of the offences than others because the law is taught to them and they do practice Crimes Decree day to day.
26. Considering the charge as mentioned in the first paragraph, this Court is convinced that Accused is given reasonable and sufficient details of the offence. Therefore the first ground of appeal fails on its own merits.
27. The Accused Appellant submitted that he was not represented by a Counsel and he was locked up in the police cell for 4 days therefore his plea is equivocal.
28. Considering the proceeding at the Magistrates Court dated 30/03/2011, the Accused Appellant was given the right to have his Counsel. He opted to defend himself.
29. When the charge was read and explained, the Accused Appellant had understood the charge and pleaded guilty to all counts. The learned Magistrate had satisfied himself that the Accused neither induced nor forced to plead guilty. Thereafter the learned Magistrate had convicted the Accused Appellant for the charges leveled against him.
30. The Accused Appellant had not raised the issue of detention in the police and use of any force on him. This is the first time he is raising this issue. Even now the Accused Appellant did not submit that he was assaulted or threatened. The only complaint is that he was detained 'in communicado'.
31. Considering all material before the Court regarding this issue, the Court is of the view that the plea is unequivocal and the conviction of the learned Magistrate is acceptable.
32. The Accused appellant had two cases before the Magistrate of Labasa. Those were bearing numbers 194/11 & 195/11. When matter was taken up, the Accused Appellant pleaded guilty to both cases. The Learned Magistrate consolidated both cases and delivered a single sentencing order.
33. It will be appropriate to see the charges against the Accused Appellant. In 194/11 Accused Appellant was charged under section 137(1) (a) (ii) of Crimes Decree for "RECEIVING A CORRUPTING BENEFIT." According to the particulars he had received $100 from Jenny Wang, Accused Appellant had admitted the summary of facts. As per summary of facts the Accused Appellant was attached to the Police station of Labasa as a Police Officer. He was entrusted to do an investigation against a business woman Ms. Wang, who is involved in Scrap Metal business without proper licence. The Accused Appellant had demanded $100 from her to not to take any lawful action against her. After making telephone calls he had received the said $100. The business woman made a complained to the Commissioner of Police, that was investigated and Accused Appellant was arrested. He had admitted in the caution interview that he had received the money for his own benefit because he was facing financial difficulties.
34. In the other case 195/11, the Accused Appellant was charged with 6 counts of similar offence namely RECEIVING A CORRUPTING BENEFIT, punishable under section 137 (1) (a) (ii) of the Crimes Decree. In this case the Accused Appellant had received money from Kuoping Ku on six occasions on
| 12/3/2011 | - | $ 50.00 |
| 22/3/2011 | - | $ 40.00 |
| 16/3/2011 | - | $ 40.00 |
| 18/3/2011 | - | $ 35.00 |
| 22/3/2011 | - | $ 35.00 |
| 25/3/2011 | - | $ 70.00 |
| Total | $270.00 | |
It is revealed from the admitted summary of facts, the Accused Appellant had received $270 cash and $40 worth of drinks from Kuoping Ku who is farmer in Labasa. As per the summary of facts the Accused Appellant was entrusted with an investigation and he had demanded and obtained money for his own frolic. It appears in certain occasions he made witnesses to pay his entry fees to night club and drinks.
35. Considering the grounds of appeal on sentence, the Counsel submitted that the sentence is excessive. The Accused Appellant is a first offender, there is no aggravating factor. He may be given a suspended sentence if not a short sharp custodial sentence.
36. Section 137 of the Crimes Decree prescribes a maximum sentence upto 5 years imprisonment. The Learned Magistrate had considered relevant case authorities for the tariff for this offence and commenced the sentenced at 30 months. It is very much within the tariff. Since there is no illegality this Court also accepts the commencement of the sentencing.
37. The Accused Appellant had submitted that the amount he received was small and the sentence is excessive.
38. Police men not only in Fiji, world wide has a recognition and acceptance among the public. In fact, in most of the places they are accepted as guardians of the public. They stand among the people and protect them. Therefore the position as a police officer makes the Accused Appellant a special person. Even though he is in government service he is different from other public servants.
39. In the society a medical practitioner (doctor) is accepted on service at all 24 hours similarly the police officer also accepted as police officer at all times. Section 17 (2) of the Police Act (Cap 85) states as follows:
"17 (2) Every police officer shall be deemed to be on duty at all times and may at any time be detailed for in any part of Fiji."
40. The Accused Appellant being member of such a noble service, involved in corrupt practice cannot be condoned. The Learned magistrate had considered this factor as an aggravating factor.
41. The Trial Magistrate had imposed 20 months each to six counts and made it to run concurrently. For the charge in the other case Magistrate had imposed 20 months and made it to run consecutive to the earlier sentence. In total the Accused Appellant was imposed of imprisonment of 40 months. The Magistrate acted under Section 18(1) of the Sentencing & Penalties Decree and imposed 30 months as non-parole period.
42. The Accused appellant claims he is a first offender and he was not given discount in sentencing. Trial Judges consider the facts of each case and decide whether the Accused should be given a discount or not. When it comes to persons in Government Service almost everyone will not have any previous conviction. This is very particular to the police service. Considering the position of the Accused Appellant, the way the benefit is obtain and the reasons had made the Magistrate to not to consider to give any discount on the Accused Appellant. Considering all facts this Court also agrees with that decision.
43. The Counsel for the Accused Appellant submitted that Accused appellant may be given a short custodial sentence if not a suspended sentence.
44. Considering the nature of the offence and the way it is committed, the court is of the view that the Learned Magistrate is very reasonable in sentencing the Accused Appellant. He had considered all necessary factors before he come to his own conclusion. Therefore this court finds no reason to interfere with the sentence imposed by the Magistrate on the Accused Appellant.
45. Considering all materials before the Court, the Court is of the view that the conviction of the Accused Appellant is lawful and the sentence is reasonable, therefore, this Court upholds the conviction and accepts the sentence.
46. I am satisfied that there is no substantial miscarriage of Justice has occurred. Therefore the Court dismiss the appeal accordingly.
47. Appeal dismissed.
........................................
S. Thurairaja
JUDGE
At Labasa
6 July 2011
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