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FICAC v Matakitoga [2017] FJMC 30; Criminal Case 1812.2013 (28 February 2017)

IN THE MAGISTRATE’S COURT OF FIJI
AT SUVA

Criminal Case No. 1812/13

FICAC

-v-

MATAI MATAKITOGA

JUDGMENT

1. The accused in this case is charged with 3 counts of Theft Contrary to Section 291(1) of the Crimes Decree No. 44 of 2009 of properties belonged to Bio Security Authority of Fiji. The charges are as follows:
   

First Count

Theft: Contrary to Section 291(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence (b)

MATAI MATAKITOGA between 19^th day of March 2013 and 20^th day of March 2013 at Suva in the Central Division dishonestly appropriated property namely a table belonging to the Biosecurity Authority with intention of permanently depriving the Biosecurity Authority of the said property.

Second Count

Theft: Contrary to Section 291(1) of the Crimes No. 44 of 2009.

Particulars of Offence (b)

MATAI MATAKITOGA on or about 20^th day of March 2013 at Suva in the Central Division dishonestly appropriated property namely 5 tyres belonging to the Biosecurity Authority with intention of permanently depriving the Biosecurity Authority of the said property.

Third Count

Theft: Contrary to Section 291(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence (b)

MATAI MATAKITOGA on or about 27^th day of March 2013 at Suva in the Central Division dishonestly appropriated property namely 3 cabinets belonging to the Biosecurity Authority with intention of permanently depriving the Biosecurity Authority of the said property.

2. Following elements of the offence of Theft are required to be proved by the Prosecution beyond reasonable doubt.
   
   1. Dishonesty
   2. Appropriation
   100. Of Property
   4. Belonged to another
   5. With the intention of permanently deriving the other of that property.
      
3. The accused was the Chief Executive Officer of the Biosecurity Authority of

Fiji (hereinafter referred to as BAF) when he left BAF. During the material period he was the Manager Finance. The allegation against the accused is that he stole a table, 5 tyres and 3 cabinets belonging to the BA on 3 occasions, namely 19^th of March, 20^th of March and 27^th of March respectively.

4. On 19^th March 2013 the accused removed a table which was lying in the compound of BAF. On 20^th March he removed 5 tyres which were in the garage. He removed 3 cabinets which were lying in the compound on 27^th March.
   
5. The accused has not disputed the removal of these properties mentioned in 3 counts. Therefore (b) and (c) elements mentioned above are undisputed.
   
6. I shall now consider the defence of the accused.
   

The accused in his written submission has raised an objection with regard to the competency of the charge sheet. He says that the complainant entity has not been properly named in the charge sheet. The correct name of the complainant is Biosecurity Authority of Fiji Islands while the charge sheet mention as Biosecurity Authority. This is a baseless argument as the accused cannot be misled by this. The charge is sufficiently informative. Therefore this objection is refused.

7. The accused’s defence is that these properties in question are abandoned and do not belong to BAF. The predecessor of BAF is Quarantine Department. All movable properties belonged and managed by the Quarantine Department were vested to BAF by operation of law. The accused says that these properties are obsolete items of Quarantine Department. These properties were not accounted. The accused further says there was a disposal process in 2013. In the process the Corporate Services Unit decided to dispose these items. According to the accused he verbally spoke to the Manager Corporate Services and got his permission to remove. Accordingly the accused challenges the dishonest intention.
   
8. I shall now examine this defence. When the renovations of BAF building were completed old items had been replaced. These items had been auctioned and the accused had won the bid. Accordingly he had bought certain roofing items from the auction.
   

Therefore he knows what items were auctioned and what were not. If the Corporate Division of BAF wanted these items mentioned in the charge sheet to be disposed it should have been done at the auction. If the Corporate Division wanted to dispose it in another way then should have been done according to the procedure in writing.

9. It is the accused’s contention that these properties do not belong to BAF. However by operation of law all movable properties of Quarantine Department have been vested in BA of Fiji. Therefore their properties were in the possession of BA. No other proof is required to prove the ownership of these properties. This contention is untenable.
   
10. The property officer of BAF who gave evidence for the prosecution clearly said that there was a procedure for the BAF to dispose any item. These items were not disposed in that procedure. The accused did not dispute that there was a formal process of disposal of properties in BAF.
    
11. The property officer said that these items were scattered outside the storeroom since there was no place to keep them in. Therefore they had a space problem but they have not abandoned the properties. In cross examination of this officer the defence questioned about the value of these properties. He said that some items are valueless and some may be about 5 cents. It was obvious that he gave evidence with regard to the value with uncertainty. However its not the value for the property that matters. Value is measures to the owner’s point of view. Every time It is not the commercial value that is important. Something valueless in one’s point of view may be valuable to the owner or user when it’s use for him is concerned. Therefore the value of any property cannot overweigh or under weigh the act of theft.
    

These properties were kept amongst other properties. They have not been labelled to give any indication they have been disposed. The security officers who loaded these items to the accused vehicle said in evidence that items shown in the photographs which were tendered in evidence were complete when they were removed by the accused. Therefore the accused’s defence that these properties in questions were obsolete or abandoned cannot be accepted.

12. Written submissions of the defence says that a vital evidence of the prosecution with regard to the ownership of the property is the certificate of the Minister when there is a question pertaining to ownership. As I said before Prosecution has proved that these properties were in the possession of BA. The defence has not disputed that the movable properties of the Quarantine Department were vested in BA. Therefore a list of assets or Minister’s Certificate is not required.
    
13. The accused evidence which brought up his fall defence is inconsistent per se. while he says that these properties in question are obsolete items he says in cross examination that he does not know whether these properties are usable.
    

Q. Were these items to be used?

A. I don’t know.

Q. These tyres belonged to Quarantine

Department?

1. I don’t know.
   

Therefore the accused has not created any doubt with regard to Prosecution case.

14. As the accused knew that these items were not to be disposed in the process he had removed these items with dishonestly with intention of permanently depriving the BA of that property.
    
15. For the reasons adduced above this court is of the view that Prosecution has proved all the elements of the charges beyond reasonable doubt. Accordingly I find the accused guilty of all 3 counts of Theft Contrary to Section 291 of the Crimes Decree and enter a conviction accordingly.
    

28 Days to Appeal

PRIYANTHA LIYANAGE
RESIDENT MAGISTRATE, SUVA

On 28^th day of February 2017