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State v Chaudhry - Ruling (No case to answer) [2014] FJHC 288; HAC137.2010 (3 April 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 137 of 2010

BETWEEN:

THE STATE

AND:

MAHENDRA PAL CHAUDHRY

BEFORE : HON. MR. JUSTICE PAUL MADIGAN

Counsel : Mr. P. Bodor Q.C. with Mr. M. Hutchings for the
applicant
Mr. C. Grossman S.C, Q.C. with Ms. E. Yang &
Mr. M. Korovou for the State

Dates of submissions: 2 April 2014
Date of Ruling: 3April 2014

RULING
(No case to answer)

1. At the close of the prosecution case counsel for the accused makes application that there be no case to answer for his client.
   
2. I remind myself of the requirement to give but brief reasons as stated in SisaKalisoqo CA 52 of 1984.
   
3. The thrust of the application is that the accused was not served with a direction from the Reserve Bank of Fiji, in terms of s.39(3) of the Exchange Control Act ("ECA") which section also states that no person shall be convicted in the absence of such direction.
   
4. Mr.Bodor submits that a letter purporting to so direct the accused coming from the Reserve Bank's solicitors, Messrs.Siwatibau& Sloan was not a proper direction because it wasn't the direction of the "competent authority".
   
5. The Reserve bank is agent for the Government in respect of the ECA by s.48 of the Reserve Bank of Fiji Act which states that the Bank "shall exercise, as agent for the Government, such powers or functions under any law for the time being in force relating to exchange control and the regulation of financial institutions in Fiji as may be delegated to it by the Minister".
   
6. Section 39(2) of the ECA state that:
   

"(2) - any directions given under any provision of this Act –

(a) may be either general or special; and

(b) may be revoked or varied subsequent directions; and

(c) shall be given to such persons and in such manner as the competent authority thinks appropriate and, if so given, shall be valid for all purposes".

7. The fact that the Bank as agent for the competent authority saw fit to instruct their solicitors to demand from the accused, Mr.Chaudhry, that he repatriate his funds and that he provide details of all accounts held abroad is a direction from the Bank "in such manner as the competent authority (ie the Bank) thinks appropriate". (my emphasis)
   
8. By the solicitor's letter of 23 October, the accused became fully aware of the Reserve Bank's "requirements" and whether that is a "direction" or not is a matter of semantics.
   
9. The applicant's further submissions relating to residence and extra-territoriality are without merit.
   
10. All essential elements of the offences are established by the agreed facts and I find that there is a case to answer on each count.
    

P.K. Madigan
Judge

At Suva
3 April 2014