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Fiji Independent Commission Against Corruption [FICAC] v Rizvi - Judgment [2012] FJHC 1214; HAC003.2010 (25 June 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 03 OF 2010

BETWEEN:

FIJI INDEPENDENT COMMISSION AGAINST
CORRUPTION [FICAC]

AND:

1. FURQAN AHMAD RIZVI
2. JOSEVA SEROA UTOVOU

Counsels: Mr. R. Aslam and Ms. T. Waqabaca for FICAC
1st Accused in Person
Mr. A. Naco for the 2nd Accused

Date of Trial: 18th – 21st June 2012
Date of Summing Up: 22nd June 2012
Date of Judgment: 25th June 2012
Date of Sentence Hearing: 26th June 2012
Date of Sentence: 27th June 2012

JUDGMENT

1. The trial commenced on 18th and concluded on 22nd June 2012. All three assessors unanimously found the Accused not guilty to the charge.
   
2. I adjourned till Monday to consider my judgment.
   
3. Section 203 (1) of the Criminal Procedure Decree makes provision for the assessors.
   

"Trials before the High Court shall be by a judge sitting with assessors as provided in this part."

4. Section 237 states as follows:
   

"(1) When the case for the prosecution and the defence is closed, the judge shall sum up and shall then require each of the assessors to state their opinion orally, and shall record each opinion.

(2) Notwithstanding the provisions of section 142 (1) and subject to sub-section (2) where the judge's summing up of the evidence under the provisions of subsection (1) is on record, it shall not be necessary for any judgment (other than the decision of the court which shall not be necessary for any judgment (other than the decision of the court which shall be written down) to be given, or for any such judgment (if given) –

(a) To be written down; or

(b) To follow any of the procedure laid down in section 141; or

(c) To contain or include any of the matters prescribed by section 142.

(3) When the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be –

(a) Written down; and

(b) Pronounced in open court"

As per the above section the trial judge should make the final decision. In other words ultimate responsibilities all lie with the trial judge to decide after evaluating all the evidence before Court.

5. In Joseph v The King (Privy Council) [1948] Appeal Case 215:
   

"The learned Chief Justice does not appear to have brought his own mind to bear on the question of the guilt or innocence of the accused. He left the appreciation of evidence to the assessors, and accepted their conclusion as the verdict of a jury which bound him, instead of regarding it merely as an opinion which might help him in arriving at his own conclusion. The appellant was entitled to be tried by the judge and he has not been so tried and, in the circumstances, the only course open to the Board was to advise His Majesty to allow the appeal and quash the conviction and sentence."

6. In Ram Dulare, Chandar Bhan and Permal Naidu v Reginam [1955] 5 FLR 1, the Court of Appeal held:
   

"It is clear that the legislature has given a trial judge the widest powers to accept or reject the opinions of sitting with him. These powers are discretionary. From the terms of the judgment, the learned trial judge made it quite clear why he came to his decision in this case and why it was that he unable to accept the opinion of the assessors.

In our opinion learned counsel for the appellants is confusing the functions of the assessors with those of a jury in a trial. In the case of the King v. Joseph 1948, Appeal Cases 215 the Privy Council pointed out that the assessors have no power to try or to convict and their duty is to offer opinions which might help the trial judge. The responsibility of arriving at a decision and of giving judgment in a trial by the Supreme Court sitting with assessors is that of the trial judge and the trial judge alone and in the terms of the Criminal Procedure Code, section 308, he is not bound to follow the opinion of the assessors."

(emphasis added)

7. In Sakiusa Rokonabete v The State Criminal Appeal No AAU0048/05, the Court of Appeal observed:
   

"In Fiji, the assessors are not the sole judges of fact. The judge is the sole judge of fact in respect of guilt and the assessors are there only to offer their opinions bases on their views of the facts."

8. In Setevano v. The State [1999] FJA 3 at 5, the Court of Appeal stressed that the reasons of the presiding trial judge:
   

"must be cogent and they should be clearly stated. In our view they must also be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial."

9. I direct myself in accordance with the law and the evidence which I discussed in my summing up to the assessors.
   
10. The Deputy Commissioner of Fiji Independent Commission Against Corruption (FICAC) had preferred a charge under Section 4 (1) (a) of the Prevention of Bribery Promulgation 2007 against the Accused, Furqan Ahmad Rizvi.
    
11. It should be noted that this Accused was represented by a Counsel at the beginning stage of this case but when the trial was to be taken up this Accused opted to defend himself. This Accused agreed to certain facts of the case and admitted to series of documents through his Counsel. Before the trial commenced the Accused was asked whether he is accepting those facts and documents. He signed the same agreed facts and documents and submitted to Court that he had not changed his stance.
    
12. I have discussed the elements of the said charge extensively in my Summing Up to the Assessors.
    
13. The Prosecutor called four witnesses to prove the case for the Prosecution. The Accused chose to remain silent and opted not to call any witnesses on his behalf.
    
14. The Accused claims that he is experienced in importing of motor vehicle spare parts and he is in the trade for a considerable period of time.
    
15. The Accused admitted to Court that he paid $200 to the Customs Officer, on the 3/8/2009 when he came to examine the container at his yard at Malolo, Nadi.
    
16. In this case the Customs Officer is also charged and he stood as the 2nd Accused. In the halfway he had pleaded guilty to the charge and his case was severed from this Trial. The Assessors were properly cautioned about this issue. In fact the Assessors were not informed of the stance taken by the 2nd Accused. Further summing of facts was not put to the 2nd Accused and there is no decision taken regarding the plea of guilty of the 2nd Accused.
    
17. The Counsel for the 2nd Accused when the case was proceeding against both Accused Persons asked the first witness whether SPA can be paid to a Customs Officer. He categorically said, unless a Customs Officer is authorized by the Customs and Ministry of Finance he cannot collect any payment from the importer. This Accused (Furqan Ahmad Rizvi) did not ask anything about SPA from the relevant Customs witnesses.
    
18. In this case there is no SPA was issued to the said Customs Officer (2nd Accused) but it was issued subsequently by Mr. Winston Rounds for $1060.08 and the same was paid by the Accused.
    
19. The Accused did not question or suggested anything to the first and second witnesses. To the third witness he asked "if a Customs Officer ask me $200.00 should I give or not" then the witness who is a Senior Customs Officer Mr. Winston Rounds answered and said, "If the value is less than $500.00 the officer will go back to his office and raise a SPA. The duty should be paid to the cashier at the Customs division. Customs Officer who is inspecting is not authorized to collect any money from the importer".
    
20. In this case the container in question was not fully examined by the Customs Officer (2nd Accused). The importer, the 1st Accused had paid $200.00 and the Customs Officer had given the clearance and left the place. This clearly shows that the money paid was not a SPA but bribe.
    
21. Considering all above factors and the facts I analyzed in my Summing Up I am of the view that the Prosecutor had proved the case for the Prosecution beyond reasonable doubt.
    
22. Accordingly I reject the verdict of the assessors and find the Accused Furqan Ahmad Rizvi guilty to the charge and convict him under section 4 (1) (a) of the Prevention of Bribery Promulgation No. 12 of 2007.
    

S. Thurairaja
Judge

At Lautoka
25th June 2012

Solicitors: The Office of the Fiji Independence Commission Against Corruption for the Prosecution

1st Accused In Person

Naco Chambers for the 2nd Accused