High Court of Fiji

(i) Acted upon a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.

[15] However, in this case, the Learned State Counsel has submitted, that both the conviction and sentence against the Appellant be quashed. The basis for this contention is that from the facts of the case, there was an implied contract entered between the Appellant, as a borrower, and the complainant, as a lender. Subsequently, there was a breach of this implied contract by the Appellant. The correct remedy for this breach was a civil action, instead of a criminal action. Civil Courts have the powers to enforce judgment debtor summons against defaulters.
[16] The State submits that the issue of borrowing money and making arrangements to pay is purely civil in nature and police intervention is not the appropriate forum to recover debts between a willing lender and borrower. The issue of not repaying the debt within the time frame stipulated does not amount to general dishonesty causing a loss. It amounts to contractual breach, whether implied or expressed, and the correct forum to recover the said money is through civil proceedings.
[17] I consider it appropriate to examine the above submission of the Respondent as a preliminary issue before dealing with the grounds of appeal raised by the Appellant. In this Appeal, although the Appellant is only challenging the sentence imposed by the Learned Magistrate, this Court, in its revisionary jurisdiction, can set aside the conviction if it is satisfied that the conviction is bad in law.
[18] Section 262 of the Criminal Procedure Act No. 43 of 2009 (“Criminal Procedure Act”) sets out the powers of the High Court on revision. The Section is re-produced below for ease of reference:

“262. — (1) In the case of any proceedings in a Magistrates Court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may —

(a) in the case of a convn, exe, exercise any of the powers conferred on it as a court of appeal by section 256 and 257; and

(b) in the casany order other ther than an order of acquittal, alter or reverse such order.

(2) No order under this section shall be made to the prejudice of an accused person unless he or she has had an opportunity of being heard either personally or by a lawyer in his or her defence.

(3) The High Court shall not impose a greater punishment for the offence, which in the opinion of the High Court the accused has committed, than might have been imposed by the court which imposed the original sentence.

(4) Nothing in this section shall be deemed to authorise the High Court to convert a finding of acquittal into one of conviction.

(5) Where an appeal lies from any finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.”

[19] In the case of State v. Ratuvou [2002] FJHC 140; HAA 60J of 2002S (2 August 2002); Her Ladyship Madam Justice Shameem held: “....This matter is before the High Court on an appeal against sentence. However the Court can, in its revisionary jurisdiction, quash convictions based on invalid charges.”
[20] The Appellant was convicted for General Dishonesty Causing a Loss, contrary to Section 324 (1) of the Crimes Act. The Section reads as follows:

“A person commits a summary offence if he or she does anything with the intention of dishonestly causing a loss to another person.”

[21] Therefore, in order for the prosecution to prove the charge of General Dishonesty Causing a Loss, they must establish beyond any reasonable doubt that;

(i) The accused;

(ii) On the specified day (in this case the 22 November 2012);

(iii) At Nasouri, in the Central Division;

(v) Obtained from Mikaele Vunituraga the sum of $11,000, but failed to pay back the said amount within the agreed period of two weeks (the relevant conduct);
(vi) With intention;
(vii) Of dishonestly causing loss to the said Mikaele Vunituraga.

[22] The term ‘intention’ has been defined at Section 19 of the Crimes Act to mean:

“(1) A person has intention with respect to conduct if he or she means to engage in that conduct.

(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.”

[23] Therefore, it must be proved by the prosecution that at the time of taking of the sum of $11,000 the Appellant intended to dishonestly cause loss to the complainant, Mikaele Vunituraga.

[24] The Summary of Facts filed in this case reads as follows:

“On the 6^th day of February, 2013, Mikaele Vunituraga [A-1] 36 years, self-employed of Lot 9 Dilkusha Road, Nausori reported that one Jona Robanakadavu [B-1] 45 years, self-employed of Naduru Road failed to return the $11,000.00 that he had borrowed.

On the 22^nd day of November 2012, [A-1] lent [B-1] $11,000.00 as [B-1] constantly asked for [A-1] to help him out with a loan. [A-1] lent the money to [B-1] because [B-1] had promised to return the whole sum in 2 weeks’ time. After the completion of the 2 weeks, [A-1] approached [B-1] and asked for the money owed to him but [B-1] stated that he needed more time. [A-1] agreed and gave [B-1] another week for the payment to be done. After the additional week [A-1] asked [B-1] to return the money, [B-1] made excuses of being unable to pay. [A-1] checked with [B-1] on many occasions and after [B-1] defaulted on many occasions, [A-1] reported the matter at the Nausori Police Station.

[B-1] was then located, arrested and interviewed under caution in which he admitted to taking the money in question (s) 25 to 30 and further stated that he is unable to pay back the amount because he could not afford to in question 38. [B-1] was then charged for General Dishonesty causing loss contrary to Section 324(2) of the Crimes Decree (Act) No. 44 of 2009. [B-1] was then bailed for the Nausori Magistrates Court on 25 September 2013. Full some has been paid to [A-1].”

[25] It is clear from the above Summary of Facts that the complainant had ‘lent’ the sum of $11,000.00 to the Appellant; and that the Appellant had ‘borrowed’ the said sum of money from the complainant. The use of the terms ‘lent’ and ‘burrowed’ clearly indicates that this was purely a loan transaction or a transaction of a civil nature. The Appellant is said to have promised to return the whole sum in 2 weeks’ time, but had failed to do so. Merely because the Appellant could not pay back the loan within the stipulated time period it does not mean that he intended to dishonestly cause loss to the complainant.

[26] Therefore, I agree with the views of the Learned State Counsel in this matter.

[27] Considering all the facts and circumstances of this case, I am of the opinion that the charge against the Appellant is invalid and as such the conviction is bad in law.

[28] In the circumstances, I exercise the revisionary jurisdiction of this Court under Section 262(1) of the Criminal Procedure Act to set aside the conviction and sentence imposed by the Learned Magistrate in Magistrate’s Court of Nausori and order that the Appellant be discharged from these proceedings forthwith.
Conclusion

[29] In the light of the above, this Appeal is allowed.

[30] The conviction and the sentence entered in the Magistrate’s Court of Nausori Criminal Case No. 531 of 2013 is set aside; and the Appellant is discharged.

Riyaz Hamza

JUDGE

HIGH COURT OF FIJI

At Suva
This 27^th Day of March 2018

Solicitors for the Appellant : Vaniqi Lawyers, Suva.

Solicitors for the Respondent : Office of the Director of Public Prosecutions, Nausori.