Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Chow v Regina [2014] SBHC 70; HCSI-CRC 92 of 2014 (30 June 2014)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 92 of 2014

MARY FON LUN CHOW

V

REGINA

Ms M. Bird for Appellant
Ms. N.T .Kesaka for Respondent

Date of Hearing: 24 June 2014
Date of Judgment: 30 June 2014

JUDGMENT

1. Mwanesalua J: This is an appeal by Ms Mary Fon Lun Chow, the Appellant, against her conviction for three counts of perjury on 18 March, 2014, by the Central Magistrate's Court in Honiara. On 8 April 2014, the Appellant was sentenced to 12 months imprisonment for each count. Counts 2 and 3 were ordered to be served concurrently. But the total sentence of 24 months imprisonment was suspended in full under section 44 of the Penal Code.
   
2. The re-amended grounds of appeal are that: The learned Magistrate made a mistake in failing to discuss the four counts of perjury against the Appellant in his judgment of 18 March 2014; None of the four charges against the Appellant were withdrawn by the Respondent; the Learned Magistrate failed to decide the fourth count of perjury; the Learned Magistrate made a mistake in not specifying the three charges for which the Appellant was convicted, from the four charges she was charged; The Learned Magistrate made a mistake in failing to address the defence of honest mistake according to law; the Learned Magistrate made a mistake in not taking into account and for not considering the effect of section 102 (3) of the Penal Code on all four charges against the Appellant; the Evidence given by the Respondent in the Magistrate Court does not constitute an offence or offences in law under section 102 (1) and (2) of the Penal Code; and that the Learned Magistrate could not be seen as impartial in the trial as the Learned Magistrate's family and the Complainant, Ms Podarua's family have a long standing family relationships with each other.
   
3. The orders sought by the Appellant are that: The conviction by the Magistrate Court of 18 March 2014 be quashed; this court substitute an order of acquittal of the Appellant; and the sentence pronounced by the Magistrate Court on the 8 April 2014 be set aside.
   
4. The four charges laid against the Appellant at the Central Magistrates' Court and three of which she was convicted are these:
   

Count 1. Perjury, Contrary to Section 102 (1) of the Penal Code.

Particulars of the Offence

That Ms Mary Fon Lun Chow was sworn in as a witness on 27th of July 2010 in Civil proceeding No. 125 of 2010 to with she wilfully makes a statement claiming that no written and signed Tenancy Agreement existed which knows to be false.

Count 2. Perjury, Contrary to Section 102 (2) of the Penal Code.

Particulars of the Offence

That Ms Mary Fon Lun Chow wilfully made a sworn statement dated 9 April 2010, for the purpose of judicial proceeding namely Civil Proceeding No. 125 of 2010, between Mary Chow and Aggie Podarua which statement she knew to be false.

Count 3. Perjury, Contrary to Section 102 (2) of the Penal Code.

Particulars of the Offence

That Ms Mary Fon Lun Chow wilfully made a sworn statement dated 14th May 2010, for purposes of a judicial proceeding namely civil proceeding No. 125 of 2010, between Mary Chow and Aggie Podarua which statement she knew to be false.

Count 4. Perjury, contrary to section 102 (2) of the Penal Code.

Particulars of Offence

That Ms Mary Fon Lun Chow wilfully made a sworn statement dated 17th May 2010, for the purpose of a judicial proceeding namely Civil Case No. 125 of 2010, between Mary Chow and Aggie Podarua which statements she know to be false.

5. The Appellant pleaded not guilty to all the four counts laid against her. Her counsel made a no case to answer submission at the close of the prosecution evidence. The Learned Magistrate ruled that the Appellant had cases to answer in counts 1, 2, and 3 but made no mention or reference to count 4 in his ruling.
   
6. The Appellant was subsequent convicted of counts 1, 2 and 3, and sentenced her to 12 months imprisonment on each count to be served concurrently. The effective total sentence of 24 months imprisonment was wholly suspended under section 44 of the Penal Code
   
7. The Appellant appeals to this court against her convictions, by a re-amended appeal filed on 20 May, 2014. It has 9 grounds of appeal in all. They include that the Learned Magistrate erred in failing to discuss the 4 counts of perjury in his judgment of 18 March 2014; That none of the 4 counts was withdrawn; it is clear from the judgment, that the Learned Magistrate failed to discuss the evidence of the Appellant and the Respondent on each of the charges against the Appellant; that the evidence given by the Respondent does not constitute an offence or offences in law under section 102 (1) and (2) of the Penal Code, and that the Learned Magistrate was not impartial, as his family and the Complainant's family have a long family relationship with each other.
   
8. This case has been previous heard in a judicial proceeding for the purpose of deciding the relevant issues of fact and law in it. The Learned Magistrate heard witness testimony and witness sworn statements to consider his decision.
   
9. In addition to the matters raised by the Appellant in paragraph 7 above, the Learned Magistrate failed to point out the false statements in the sworn statements in relation to counts 2, 3, and 4 on which the Respondent had assigned perjuries. He failed to discuss the materiality of those false statements to the judicial proceeding. These shown statements were filed on 9 April 2010, 14 May 2010 and 16 May 2010 respectively. The complainant found her copy of the Agreement after the decision of Civil Case No. 125 of 2010 was delivered. That is to say, that it was not tendered as an exhibit during the trial in Civil Case No. 125 of 2010. There was no mention being made on count 4 in the ruling of the no case to answer submission. Since perjury is a misdemeanour, it is a requirement in law for there to be a conviction. That is the falsity of the statements on which perjury were assigned in relation to counts 2, 3 and 4 must be corroborated. The Learned Magistrate did not point to any such corroborative evidence in support of counts 2 and 3. There is corroborative evidence in support of count 1, but there is evidence of a long term relationship between the family of the Learned Magistrate and family of the Complainant. This raises question of impartiality of the Learned Magistrate in hearing the case.
   

I will accordingly quash the Appellant of her convictions and sentences, and order that the case be remitted to the Magistrates court for fresh trial by another magistrate. Order accordingly.

THE COURT