#header-inner img {margin: 0 auto !important; #header-inner {text-align: Center ;} Fiji Coupfourpointfive: Chaudhry facing fewer charges

Wednesday, July 25, 2012

Chaudhry facing fewer charges

The High Court has quashed five of the counts of money laundering against the Fiji Labour Party leader and former prime minister, Mahendra Chaudhry, so he will now only face three counts of breach of the Exchange Control Act. 

Chaudhry's four counts of making false statements in his income tax returns are permanently stayed for an abuse of process arising from the same conduct being time barred under the Income Tax Act.

It appears Chaudhry fully complied with the Fiji Revenue Customs Authority's assessment in 2004 on the donated funds and paid his outstanding taxes.

Chaudhry v State [2012] FJHC 1229; HAM034.2011 (25 July 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION


Crim. Misc. Case No: HAM034 of 2011


BETWEEN:


MAHENDRA PAL CHAUDHRY
Applicant


AND:


THE STATE
Respondent


Date of Hearing: 12 September 2011
Date of Ruling: 25 July 2012


Counsel: Mr. P. Williams QC and Ms H. Phillips for Applicant
Mr. C. Grossman QC, Ms E. Yang, Ms N. Tikoisuva and Ms S. Naidu for State
RULING


[1] The applicant is charged with three counts of breach of the Exchange Control Act, five counts of money laundering and four counts of making false statements in his income tax returns. By way of a motion supported by an affidavit, he seeks two pre-trial orders. The first is an order for a stay of prosecution on the ground of abuse of process. The second is an order to quash the Information for not disclosing an offence.


The Charges


[2] The applicant is charged with the following offences:
FIRST COUNT


Statement of Offence
FAILURE TO SURRENDER FOREIGN CURRENCY: Contrary to section 4 of the Exchange Control Act (Cap.211) and section 1 of Part II of the Fifth Schedule of the Exchange Control Act (Cap.211).
Particulars of Offence
MAHENDRA PAL CHAUDHRY s/o Ram Gopal Chaudhry, between the 1st day of November 2000 and the 23rd day of July 2010, both dates inclusive, at Suva in the Central Division, being a resident in Fiji entitled to sell foreign currency but not being an authorised dealer however being required by law to offer it for sale to an authorised dealer, retained the sum of $1.5 million Australian dollars for his own use and benefit, without the consent of the Governor of the Reserve Bank of Fiji.
SECOND COUNT


Statement of Offence
DEALING IN FOREIGN CURRENCY OTHERWISE THAN WITH AN AUTHORISED DEALER WITHOUT PERMISSION: Contrary to section 3 of the Exchange Control Act (Cap.211) and section 1 of Part II of the Fifth Schedule of the Exchange Control Act (Cap.211).
Particulars of Offence
MAHENDRA PAL CHAUDHRY s/o Ram Gopal Chaudhry, between the 1st day of November 2000 and the 23rd day of July 2010, both dates inclusive, at Suva in the Central Division, being a resident in Fiji but not being an authorised dealier, did lend Australian dollars amounting to a sum of $1.5 million to persons otherwise than an authorised dealer, namely the Financial Institutions in Australia and New Zealand as listed in the Annexure marked "A", without the permission of the Governor of the Reserve Bank of Fiji.

 
THIRD COUNT


Statement of Offence
FAILURE TO COLLECT DEBTS: contrary to section 26(1)(a) of the Exchange Control Act (Cap.211) and section 1 of Part II of the Fifth Schedule of the Exchange Control Act (Cap.211).
Particulars of Offence
MAHENDRA PAL CHAUDHRY s/o Ram Gopal Chaudhry, between the 1st day of November 2000 and the 23rd day of July 2010, both dates inclusive, at Suva in the Central, being a resident in Fiji having the right to receive a sum of $1.5 million Australian dollars from the Financial Institutions in Australia and New Zealand as listed in the Annexure marked "A", caused the delay of payment of the said sum, in whole or in part, to himself by authorising the continual re-investment of the said sum together with interest acquired back into the said Financial Institutions without the permission of the Governor of the Reserve Bank of Fiji.
FOURTH COUNT


Statement of Offence
MONEY LAUNDERING: Contrary to section 69(1), (2)(a), (3)(b), and (4) of the Proceeds of Crime Act.
Particulars of Offence
MAHENDRA PAL CHAUDHRY s/o Ram Gopal Chaudhry, between the 1st day of November 2000 and the 16th day of June 2004, both dates inclusive, at Suva in the Central Division, disposed of money that was proceeds of crime, namely a sum of $1.5 million Australian dollars held in various Financial Institutions in Australia and New Zealand as listed in the Annexure marked "A", and he knows or ought reasonably to know that the money derived directly from some form of unlawful activity.


FIFTH COUNT


Statement of Offence
MONEY LAUNDERING: contrary to section 69(1), (2)(a), (3)(b), and (4) of the Proceeds of Crime Act.
Particulars of Offence
MAHENDRA PAL CHAUDHRY s/o Ram Gopal Chaudhry, between the 22nd day of February 2001 and the 26th day of February 2001, both dates inclusive, at Suva in the Central Division, disposed of money that was proceeds of crime, namely a sum of $400,000 Australian dollars held in the Commonwealth Bank of Australia Cash Management Call Account Number 2245 1008 8252 into the Commonwealth Managed Investment Fund Balanced Fund Account number 39920061, and he knows or ought reasonably to know that the money derived directly from some form of unlawful activity.
SIXTH COUNT


Statement of Offence
MONEY LAUNDERING: Contrary to section 69(1), (2)(a), (3)(b), and (4) of the Proceeds of Crime Act.
Particulars of Offence
MAHENDRA PAL CHAUDHRY s/o Ram Gopal Chaudhry, on the 17th day of September 2002, at Suva in the Central Division, disposed of money that was proceeds of crime, namely a sum of $469,000 Australian dollars held in the Commonwealth Bank of Australia Cash Management Call Account Number 2245 1008 8252 into the Perpetual Investment Management Limited Perpetual Monthly Income Fund, and he knows or ought reasonably to know that the money derived directly from some form of unlawful activity.
SEVENTH COUNT


Statement of Offence
MONEY LAUNDERING: Contrary to section 69(1), (2)(a), (3)(b), and (4) of the Proceeds of Crime Act.
Particulars of Offence
MAHENDRA PAL CHAUDHRY s/o Ram Gopal Chaudhry, on the 19th day of September 2002, at Suva in the Central Division, disposed of money that was proceeds of crime, namely a sum of $378,979.18 Australian dollars held in the Commonwealth Managed Investment Fund Balanced Fund Account Number 39920061 into the Commonwealth Bank of Australia Cash Management Call Account Number 2245 1008 8252, and he knows or ought reasonably to know that the money derived directly from some form of unlawful activity.
EIGHTH COUNT


Statement of Offence
MONEY LAUNDERING: Contrary to section 69(1), (2)(a), (3)(b), and (4) of the Proceeds of Crime Act.
Particulars of Offence
MAHENDRA PAL CHAUDHRY s/o Ram Gopal Chaudhry, on the 25th day of November 2002, at Suva in the Central Division, engaged, directly or indirectly, in a transaction involving money that was proceeds of crime, namely by making a gift of a sum of $50,000 Australian dollars held in the Commonwealth Bank of Australia Cash Management Call Account Number 2245 1008 8252 to his daughter who was a resident in Australia at the material time, and he knows or ought reasonably to know that the money derived directly from some form of unlawful activity.
NINETH COUNT


Statement of offence
MAKING A FALSE STATEMENT IN AN INCOME TAX RETURN: Contrary to section 121(b) and section 47 of the Penal Code Act (Cap. 17).
Particulars of Offence
MAHENDRA PAL CHAUDHRY s/o Ram Gopal Chaudhry, on the 28th day of May 2002, at Suva in the Central Division, knowingly and wilfully made a statement which was false in a material particular in that he failed to declare that he had received income from investments he held in Australia and New Zealand during the relevant period in his Fiji Islands Revenue and Customs Authority Annual Income Tax Return Form B for the year ending 31st December 2000 made under the Income Tax Act (Cap. 201).
TENTH COUNT


Statement of Offence
MAKING A FALSE STATEMENT IN AN INCOME TAX RETURN: Contrary to section 121(b) and section 47 of the Penal Code Act (Cap. 17).
Particulars of Offence
MAHENDRA PAL CHAUDHRY s/o Ram Gopal Chaudhry, on the 29th day of May 2003, at Suva in the Central Division, knowingly and wilfully made a statement which was false in a material particular in that he failed to declare that he had received income from investments he held in Australia and New Zealand during the relevant period in his Fiji Islands Revenue and Customs Authority Annual Income Tax Return Form B for the year ending 31st December 2001 made under the Income Tax Act (Cap.201).
ELEVENTH COUNT



Statement of Offence
MAKING A FALSE STATEMENT IN AN INCOME TAX RETURN: Contrary to section 121(b) and section 47 of the Penal Code Act (Cap.17).
Particulars of Offence
MAHENDRA PAL CHAUDHRY s/o Ram Gopal Chaudhry on the 11th day of February 2003, at Suva in the Central Division, knowingly and wilfully made a statement which was false in a material particular in that he failed to declare that he had received income from investments he held in Australia and New Zealand during the relevant period in his Fiji Islands Revenue and Customs Authority Annual Income Tax Return Form B for the year ending 31st December 2002 made under the Income Tax Act (Cap.201).


TWELFTH COUNT


Statement of Offence
MAKING A FALSE STATEMENT IN AN INCOME TAX RETURN: Contrary to section 121(b) and section 47 of the Penal Code Act (Cap.17).
Particulars of Offence
MAHENDRA PAL CHAUDHRY s/o Ram Gopal Chaudhry, on the 15th day of March 2004, at Suva in the Central Division, knowingly and wilfully made a statement which was false in a material particular in that he failed to declare that he had received income from investments he held in Australia and New Zealand during the relevant period in his Fiji Islands Revenue and Customs Authority Annual Income Tax Return Form B for the year ending 31st December 2003 made under the Income Tax Act (Cap.201).


Factual Background


[3] In his affidavit, the applicant does not dispute the basic facts upon which the charges have been founded. In 1999, the applicant was elected the Prime Minister of Fiji. In 2000, he was held hostage for 56 days by George Speight and extremists who staged a coup at the Parliament complex. After his release, the applicant went to Australia for medical treatment for injuries sustained during the captivity. Despite a pronouncement by the court that the coup was unlawful, the applicant did not return to power. Subsequently, fresh elections took place in 2001. Laisenia Qarase became the new Prime Minister of Fiji. The applicant remained a member of the Parliament.


[4] The applicant says that after the political upheaval in 2000, the Australian government offered him and his immediate family members, permanent residency visas. It appears that the applicant did not take on the Australian residency offer. After his medical treatment in Australia, he went to India. While in India, he received donations from certain individuals and institutions. The applicant has annexed to his affidavit a reference dated 12 October 2004 from an institution called Delhi Study Group, which gives some insight of the original source of the funds the applicant received. The reference reads:
"This is to confirm that funds were collected in New Delhi and other parts of India, including NRI's (Non-Resident Indians) to assist Hon'ble Mahendra Pal Chaudhry, Former Prime Minister of Fiji in 2000-2002.
The funds were intended to solely assist Hon'ble Chaudhry and his family members to establish residence in another country following the political upheaval in Fiji in May 2000, in which his life and those of his family members were threatened by terrorist elements in Fiji.
Hon Chaudhry is very popular and is held in high regard by the people of India. It was the wish to the people of India to provide Hon'ble Chaudhry financial and physical security at a time when he was bravely defending the democratic and human rights of his people. The funds collect were sent to Hon'ble Chaudhry through assistance provided by the government of India between 2000 and 2002."


[5] The donated funds were deposited into the personal bank account held by the applicant in Australia. In paragraph 33 of his affidavit, the applicant states:
"As these funds from India had no connection with Fiji and were for a specific purpose and that was for my personal use and benefit, I retained them in Australia and paid non-resident withholding tax and also did not declare them in Fiji as I believed that it was not income and not declarable as such."


[6] By 2004, the Fiji Islands Revenue & Customs Authority (FIRCA) got involved. FIRCA wrote to the applicant's accountant inquiring about the source of the funds in the Australian bank account. The applicant says after consulting his accountant, he decided to disclose the income generated as interests from the funds and pay taxes in Fiji. The applicant amended his tax returns and paid his outstanding taxes to FIRCA. FIRCA elected not to initiate any proceedings against the applicant after he complied with Fiji's tax laws.


[7] In 2005, the issue of the applicant's Australian funds was raised in the Fijian Parliament by the then Prime Minister, Laisenia Qarase. The parliamentary proceedings have no relevance to the current applications, except that the controversy regarding the source of those funds was never resolved.


[8] After the military coup in 2006, the applicant returned to the political arena as the Minister of Finance in the interim government of Fiji. The applicant says, what followed after his ministerial appointment, was a trial by media. The applicant says he later found out that a former editor of the Fiji Sun obtained his confidential tax details from FIRCA and released it to Victor Lal, a former Fiji journalist residing overseas. Victor Lal published those details in anti-government websites.


[9] After months of media speculation, on 23 February 2008, the Fiji Times named the applicant to be the Minister involved in the tax probe. The applicant further says that he has sued the Fiji Times for defamation in respect of those publications. In the defamation proceedings, the Fiji Times is being represented by the law firm, Munro Leys. The same law firm was also an adviser to the Reserve Bank of Fiji. The applicant says a senior partner of the law firm rendered an opinion to the Reserve Bank of Fiji stating that the applicant has breached the Exchange Control Act by retaining the donated funds in Australia. The applicant believes that the legal practitioner concerned proffered his opinion to the Reserve Bank without declaring his interest in acting for the Fiji Times in the defamation proceedings brought by the applicant.


[10] On 24 February 2008, the applicant wrote to the Prime Minister, Voreqe Bainimarama expressing concerns about the publication of his private tax affairs by the local media organizations. On 28 February 2008, the Prime Minister replied to the applicant as follows:
"Dear Minister
Thank you for your 24th February, 2008 letter giving me the opportunity to take any necessary steps to clear the air in respect of the allegations made against you regarding your personal financial affairs.
The RFMF has written to me today stating that a decisive and transparent process must be undertaken in respect of the allegations against you to mitigate the political and subsequent negative security impact.
In the interest of transparency and good governance, this matter requires an immediate and effective response from the Government. I have, therefore decided to act by setting up an independent inquiry made up of primary non-locals. However, I want to make it clear that at this point there is no acceptance on our part that you have committed any offence or impropriety. You are entitled to every presumption of innocence.
I propose the following options in resepct of the inquiry:
Option 1
(a) As agreed you go on leave;
(b) You allow an independent team made up of primarily non-locals appointed by me to access your tax files with FIRCA;
(c) The independent team has specific terms of reference primarily to establish whether all legal requirements were met when FIRCA discharged its duties;
(d) The independent team is mobilized by 3rd March and completes its inquiry by 8th March.
(e) The findings of the inquiry vis-à-vis the terms of reference is made public.
Option 2
(1) As agreed, you go on leave;
(2) In the event you disagree to give access to your files to an independent team, I will recommend to His Excellency the President to establish a Commission under the Commission of Inquiry Act ('Inquiry');
(3) The Inquiry will have specific terms of reference primarily to establish whether all legal requirements were met when FIRCA discharged its duties;
(4) The Inquiry is mobilized by 3rd March and is tasked to complete its Inquiry by 8th March;
(5) The Inquiry presents its findings to the President and the findings are subsequently made public.
I wish to reiterate that this exercise is essential to demonstrate my Government's adherence to transparency and good governance and to once and for all bring this matter to a close, which I am sure you would agree, is in the best interest of all.
In closing, I want to recognize how personally painful the current allegations must be for you. I recognize that you have played a major role in the development of Fiji, this being a cause to which you have dedicated your life.
I look forward to your response by tomorrow morning.
Yours sincerely
JV Bainimarama
Prime Minister"


[11] On 29 February 2008, the applicant advised the Prime Minister in writing that he opted to go with Option 1. A committee was set up to conduct an inquiry on paper. The Government appointed an Australian corporate lawyer, an Australian accountant and a former Fijian politician as members. The terms of reference for the inquiry were:
1. To establish whether the tax assessment by FIRCA in respect of Mahendra Pal Chaudhry between 2000 and 2006 was carried out in accordance with the Income Tax Act and any other relevant tax laws of Fiji;
2. To establish whether there were any breaches of the Exchange Control Act by Mahendra Pal Chaudhry between 2000 and 2006 in relation to the tax assessment carried out by FIRCA as set out in paragraph (1).


[12] On 10 March 2008, the findings of the inquiry were published in a 14-page report. In summary, the inquiry could not establish any breach of the laws by the applicant in relation to the donated funds he received from India and retained in Australia.


[13] On 11 March 2008, the Attorney General gave a press statement in which he highlighted the findings of the inquiry.


[14] On 12 March 2008, the Prime Minister officially informed the applicant of the findings of the inquiry. In his letter, the Prime Minister wrote:
"Given the findings of the Team, this matter is now no longer an issue as far as I and the Government are concerned."


[15] The applicant resumed his ministerial duties, after the inquiry was concluded.


[16] It appears that while the Government had accepted the findings of the inquiry, the Reserve Bank of Fiji was not satisfied with the matter. In 2009, the Reserve Bank of Fiji obtained two separate legal opinions from two Australian barristers. Both barristers expressed opinions that the applicant breached the Exchange Control Act (Fiji) by retaining the donated funds in Australia.


[17] On 23 October 2009, the Reserve Bank of Fiji notified the applicant in writing that he has breached the provisions of the Exchange Control Act by retaining the donated funds in Australia. The Reserve Bank further notified the applicant to have the funds remitted to Fiji within 30 days or face legal proceedings.


[18] On 18 November 2009, the applicant responded in writing by asking the Reserve Bank to supply him in detail the circumstances giving rise to the breaches of the Exchange Control Act. It appears that the matter was referred to the police for criminal investigations, after the Reserve Bank received the applicant's respond.


[19] On 23 July 2010, the Director of Public Prosecutions filed the current criminal charges against the applicant.


Discretion to stay proceedings


[20] The power to stay a prosecution by a superior court is derived from the English common law. In Connelly v DPP [1964] 2 All ER 401 at 406 Lord Reid said '...there must always be a residual discretion to prevent anything which savours of abuse of process.' The bounds of that discretion were later laid down by Lord Salmon in DPP v Humphrys [1976] 2 All ER 497 at 527-528:
"... a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene."


[21] Similar views were expressed on the ambit of the discretion to stay a prosecution by Lord Diplock in Hunter v Chief Constable of West Midlands [1981] 3 All ER 727 at 729:
"... this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people."


[22] The circumstances which may give rise to abuse of process may vary in each case. Abuse may arise from the methods used to investigate the offence (R v Heston-Francois [1984] 1 All ER 785). It may arise on the allegation that the accused is being prosecuted more than once for what is in effect the same offence (Connelly v DPP, supra). It may arise from misuse of the process of the court to escape statutory time limits (R v Brentford Justices, ex p Wong [1981] 1 All ER 884). A more common circumstance is prejudice arising from delay in prosecution (R v Derby Crown Court, ex p Brooks (1985) 80 Cr. App. R 164.)


[23] More recently, in Moti v The Queen [2011] HCA 50 (7 December 2011) the High Court of Australia summarized the governing principles at paragraph 10:
"Both submissions were advanced under the rubric of "abuse of process" and sought to engage the well-established rule that in both civil and criminal proceedings "Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process." As four members of this Court said in Batistatos v Roads and Traffic Authority (NSW) "what amounts to abuse of court process is insusceptible of a formulation comprising closed categories." In Ridgeway v The Queen, Gaudron J stated that the power extended to proceedings that are "instituted for an improper purpose", "seriously and unfairly burdensome, prejudicial or damaging" and "productive of serious and unjustified trouble and harassment." In Williams v Spautz the plurality distinguished between "abuse of process in the sense of proceedings instituted and maintained for an improper purpose" and "abuse of process that precluded a fair trial." In Rogers v The Queen, McHugh J concluded that, although the categories of abuse of process are not closed, many such cases can be identified as falling into one of three categories: "(1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute."


[24] These principles must be borne in mind before the exceptional step of staying a prosecution is taken.


Promise not to prosecute


[25] The first circumstance that the applicant relies upon to establish abuse of process is that the Prime Minister and the Attorney General publicly endorsed the findings of an independent inquiry and cleared him of any culpability in respect of the donated funds.


[26] An accused is entitled to a stay of prosecution if he is being prosecuted after a promise has been made to him that no prosecution will be brought against him (R v Croydon Justices ex parte Dean [1993] QB 769).


[27] In the Hong Kong case of Chu Piu-wing v. Attorney-General [1984] HKLR 411, McMullin VP said at pp 417-418:
"We think there is a clear public interest to be observed in holding officials of the State to promises made by them in full understanding of what is entailed by the bargain."


[28] In R v Abu Hamza [2007] 1 Cr. App. R. 27, the English Court of Appeal considered the issue of abuse of process on the basis of breach of an undertaking not to prosecute. The Court said at paragraph 50:
"... circumstances can exist where it will be an abuse of process to prosecute a man for conduct in respect of which he has been given an assurance that no prosecution will be brought. It is by no means easy to define a test for those circumstances other than to say that they must be such as to render the proposed prosecution an affront to justice."


[28] The Court went on to say that:
"Only in rare circumstances will it be offensive to justice to give effect to [the public interest that those who are reasonably suspected of criminal conduct should be brought to trial]. Such circumstances can arise if the police, who are carrying out a criminal investigation, give an unequivocal assurance that a suspect will not be prosecuted and the suspect, in reliance on that undertaking, acts to his detriment"


[30] In State v Peceli Vuniwa HAC 31 of 2005 the accused was charged with treason with others. One of the overt acts alleged in the treason charge was that the accused incited murder of a police officer. Before the commencement of trial, the accused pleaded guilty to lesser charges of wrongful confinement and abduction as part of a plea bargain with the Director of Public Prosecutions that the serious charge of treason will be dropped and that he would be absolved of criminal responsibility for all other coup-related matters pending or in the future. After the accused had served his sentence for the lesser offences, the DPP charged him with murder of the police officer that formed part of the overt act for treason. Shameem J, after reviewing the English cases on prosecutorial abuse of the process, summarized the principles as follows:
"In summary the principles in relation to this limb of the inherent jurisdiction to stay proceedings for abuse of the process can be summarized by asking the following questions:
1. Did the prosecution make an undertaking to the accused and/or his counsel that a charge would not be instituted or proceeded with?


2. Did the accused accept that undertaking?


3. What was the lapse of time between the undertaking and the revocation?


4. Was there in fact a revocation?


5. Was the accused prejudiced by the change in the prosecution's position?


6. Has the accused shown, on a balance of probabilities that the prosecution is an abuse of the court's process because it is a breach of an undertaking?


7. Is the abuse so unfair and wrong that the prosecution should not be allowed to proceed?"


[31] These authorities suggest that it is not likely to constitute an abuse of process with a prosecution unless there has been:
(a) an unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted; and
(b) the defendant has acted on the representation to his detriment.


[32] The charges against the applicant have been brought by the DPP. On the facts of this case, there is no explicit bargain between the DPP and the applicant in relation to the donated funds he received. The applicant's contention is that the Prime Minister's statement "this matter is now no longer an issue as far as I and the Government are concerned" constitutes a representation that he is absolved from any prosecution in the future in relation to the donated funds.


[33] Even if this Court gives a generous interpretation to the Prime Minister's statement, there is no basis to conclude that the statement could give rise to a reasonable belief that the applicant would not be prosecuted in future for any offence arising from the donated funds. From the government's point of view, serious allegations surfaced in the public domain against one of their senior cabinet ministers. The Prime Minister decided, and quite rightly so, to set an inquiry team to investigate the allegations. The applicant was asked to step down from his ministerial portfolio pending the inquiry as a matter of transparency and good governance. After the inquiry was conducted and the findings published, the applicant was re-instated to his ministerial portfolio. So the statement made to the applicant by the Prime Minister after the inquiry, was part of the bargain that the applicant would retain his ministerial portfolio, if the inquiry team cleared him of any breach of Fiji's laws in relation to the donated funds. There is no doubt that that bargain was kept by the Prime Minister after the findings of the inquiry were published.


[34] But the Prime Minister never suggested in his correspondences to the applicant or to the public at large that he would enforce the findings of the inquiry on the Reserve Bank or the DPP. To do so would have been interfering with the independence of these institutions and contrary to good governance.


Reliance on legal opinions to investigate and charge


[35] The second circumstance relied upon by the applicant is framed as follows: "legal opinions of Messrs Kos QC and Smith prejudiced against Applicant and misused by prosecution."


[36] Counsel for the applicant submits that these legal opinions cannot amount to evidence of guilt against the applicant. Counsel contends that abuse of process arose when the DPP applied for production and inspections of documents in possession of FIRCA in relation to the funds held by the applicant in Australia by annexing these opinions to the affidavit of ASP Puran Lal. Counsel further submits that these legal opinions were tainted by involvement of the law firm, Munro Leys acting in conflict of interest in advising the Reserve Bank that the applicant is in breach of the Exchange Control Act.


[37] There is no suggestion that the prosecution relies on the legal opinions to prove the charges against the applicant. If such a position is taken by the prosecution at trial, then the applicant has a right to object and the Court will have to rule on the admissibility. At this stage, it is not the function of this Court to decide on the merits of the charges. The merits of the charges can only be determined at trial, after the Court has heard evidence led by the prosecution. Of course, the applicant also has a right to lead evidence, but he is not obliged to prove anything. The burden of proof remains on the prosecution throughout the trial.


[38] In my judgment, the mere annexing of the legal opinions to ASP Lal's affidavit in a pre-charge application is not an abuse of the process. The documents that were obtained from FIRCA by ASP Lal could have been obtained by the Commissioner of Police, without an order from the Court. By making an application to the Court, the police investigation of the matter was made transparent and subject to judicial accountability. Furthermore, it is not unlawful for the agents of the State to rely on legal opinions to investigate an alleged crime or to charge an accused for an alleged crime.


[39] Stay cannot be a remedy for grievance that the applicant has against a private law firm acting in a conflict of interest. In any event, the applicant has not been able to establish before this Court that the law firm, Munro Leys acted in conflict of interest in advising the Reserve Bank that he has breached the Exchange Control Act by retaining the donated funds in Australia.


Search of law firm


[40] The third circumstance relied upon by the applicant is a search of the law office of the applicant's son, Rajendra Chaudhry. The applicant contends that the search was unlawful because the warrant was issued by a Justice of Peace and not by a Magistrate as required by the Exchange Control Act.


[41] It is clear from the current charges that the criminal investigations were not confined to the potential breaches of the Exchange Control Act, and therefore, the police was not restricted to the provisions of that Act only during their investigations. So it was not unlawful for the police to conduct a search on a warrant issued by a Justice of Peace. In any event, nothing incriminating against the applicant was seized from Rajendra Chaudhry's law office. In fact, the applicant accepts that nothing was seized as a result of the search.


Procedure for search under the Exchange Control Act


[42] The fourth circumstance relied upon by the applicant is framed as follows: "The significance of the lack of Ministerial consent in respect of the taking of enforcement actions in respect of alleged breaches of the Exchange Control Act." The applicant contends that the State has failed to produce any evidence the Minister of Finance had given authority to the police to apply for a search warrant against him, as required by section 39(4) of the Exchange Control Act.


[43] This submission assumes that the criminal investigation against the applicant was confined to the potential breaches of the Exchange Control Act, and therefore, the powers of search and seizure were restricted to that Act. The documents pertaining to the donated funds were obtained from FIRCA by the police, after the DPP applied for and was granted an order by this Court under the Proceeds of Crime Act. Apart from the alleged exchange control breaches, the applicant is also charged under the Penal Code and the Proceeds of Crime Act.


[44] It must be borne in mind that the applicant himself was the Minister of Finance when the allegations against him surfaced. There cannot be an abuse of process by the police electing one lawful procedure when there are other procedures available in the course of criminal investigation, to obtain evidence. Once the documents were obtained under the Proceeds of Crime Act, there was no need to invoke the provisions of the Exchange Control Act in relation to search and seizure. To do so would have been a fruitless exercise.


Statutory time bar


[45] The fifth circumstance is that the State endeavouring to defeat statutory time bar. This circumstance is confined to the charges of making a false statement in tax returns. The applicant contends that the bringing of charges of false statement under the Penal Code is a blatant endeavour by the prosecution to avoid the statute bar under the Income Tax Act and is in itself an abuse of process.


[46] In Vakalalabure v The State CAV0003 of 2004S, the Supreme Court, after considering cases from England, Australia and New Zealand on the effect of time bar on prosecution, summarized the principles as follows:
"These decisions are applicable where the conduct could be prosecuted under different sections of the same Act but the time limit for a prosecution under one section has expired. They establish the following propositions relevant to this case:
(1) The effect of such an Act is that the same conduct cannot be prosecuted under another section to avoid the time bar.


(2) A prosecution can be brought under a different section for independent conduct which was not merely part of the conduct which constituted the time barred offence.


(3) The appropriate charge depends on the predominant facts of the case.


(4) In those cases the indecent assaults, or acts of indecency charged, were the acts of unlawful sexual intercourse, or attempted unlawful sexual intercourse, and the former could not be proved without proving the latter."


[47] At paragraph 34, the Supreme Court said:
"This analysis suggests that the objection sustained in Regina v J and Saraswati v The Queen should not depend on the offences being created by the same statute, although the objection will be easier to sustain where that is the case."


[48] Making a false tax return is an offence under the Income Tax Act (s. 95(1). The offence is punishable with a fine or 6 months imprisonment. Sections 3(1) and (4) gives the Commissioner of Inland Revenue the discretion to prosecute under the Income Tax Act. Section 100(1) provides that any prosecution under the Act may be instituted within 3 years after the final determination of the amount of tax covered by the assessment.


[49] The particulars alleged in the charges of making a false statement are that the applicant knowingly and wilfully made a statement which was false in a material particular in that he failed to declare that he had received income from investments held in Australia and New Zealand.


[50] There is no doubt that the conduct alleged in the current charges could also have been prosecuted under the Income Tax Act. The final assessment on the tax to be paid on the income generated from the donated funds was made by FIRCA in 2004. The applicant fully complied with FIRCA's assessment and paid his outstanding taxes. The Commissioner of Inland Revenue in his discretion elected not to prosecute the applicant. There is no suggestion that the applicant in 2004 was in a position of influence to deflect any prosecution against him. After 2007, the offence of making a false tax return under the Income Tax Act was time barred. So by the time the applicant was charged in July 2010, he could not be prosecuted for making a false tax return under the Income Tax Act.


[51] It is clear that the charges of making a false statement under the Penal Code is based on the same facts that constitute an offence of making a false return under the Income Tax Act. Prove of the former requires prove of the latter.


[52] The maximum penalty for making a false statement under the Penal Code is 2 years imprisonment. So it is not only that the applicant is charged with an offence based on a time barred conduct, he is now exposed to a more serious punishment under the Penal Code. In these circumstances, it is manifestly unfair and is in itself an abuse of the process to charge the applicant for making a false statement under the Penal Code and to expose him to a more serious punishment, when the same conduct attracting a lesser punishment under the Income Tax Act is time barred.


[53] In relation to the tax return charges, the applicant advanced further submissions that double jeopardy attached to those charges, after he paid his outstanding taxes in 2004. Double jeopardy can only arise if an accused is charged with an offence which is either the same, or is substantially the same, as one in respect of which he has been acquitted (Connelly v DPP). The applicant was never charged or prosecuted for making false tax return. Nor has he been tried of a charge of making false tax return. In these circumstances, a plea of double jeopardy is unavailable to the applicant on the basis that he has paid his outstanding taxes without judicial intervention.


Jurisdiction to try money laundering charges


[54] The applicant's final objection concerns the money laundering charges. It is the applicant's contention that there is no jurisdiction to try him for money laundering because at the time the offences were allegedly committed, the definition of property under the Proceeds of Crime Act was not extended to properties overseas.


[55] Section 69(3)(b) of the Proceeds of Crime Act defines money laundering as follows:
"A person shall be taken to engage in money laundering if, and only if:
(b) the person receives, possesses, conceals, uses, disposes of or brings into Fiji any money, or other property, that are proceeds of crime;
and the person knows, or ought reasonably to know, that the money or other property is derived or realised, directly or indirectly, from some form of unlawful activity."


[56] The unlawful conduct alleged in the charges is that the applicant disposed of money that was proceeds of crime. Section 69(3)(b) of the Act describes the unlawful conduct as "disposes of or brings into Fiji any money, or other property, that are proceeds of crime".


[57] The charges allege that the monies were disposed of in Australia and New Zealand while section 69(3)(b) clearly confines the unlawful conduct of disposal of money or other property to Fiji. In other words, the act of disposal must occur in Fiji and not abroad, if the money laundering charges are to be sustained. But the applicant's contention goes further than this. All money laundering charges pre-dates the amendment to the definition of the word 'property' following a decision by Shameem J in State v Manoj Kumar & anr HAM0019 of 2003S, in which her Ladyship declined to grant a restraining order in respect to alleged tainted monies held in a bank account in New Zealand because the original definition of property under the Act was restricted to property located in Fiji. The Act was amended, and since 1 September 2005, the definition of property included property abroad. The question now is whether the amended definition has a retrospective operation?


[58] In earlier cases such as State v Volivale Criminal Case No.HAC030(A) of 2005 (2 June 2009 and Toga v State HAR002.2009, this Court considered the principles governing retrospective operation of penal statutes.


[59] In State v Volivale, the Court said at paragraph 10:
"It has been a long standing principle in common law that statutes dealing with jurisdiction and procedure are, if they relate to the inflictions of penalties, strictly construed. Compliance with procedural provisions will be stringently exacted from those proceedings against the person liable to be sentenced (R v. Jones, exp. Daunton [1963] 1 WLR 270, R v. Clarkson [1961] 1 WLR 348).
If there is any ambiguity or doubt it will, as usual, be resolved in the favour of the accused (R v. Bullock [1964] 1 QB 481."


[60] In Toga v The State, the Court said at paragraph 10:
"The fundamental principle is that an amendment to a criminal statute should not be given a retrospective operation, unless there is clear legislative intention to do so, and that the amendment is favourable to the accused."


[61] If the applicant was charged before 1 September 2005, he could have relied on the original definition of property to advance his jurisdictional objection. In that regard the amendment is not favourable but is prejudicial to the applicant. Further, the Parliament did not intend to make the amendment retrospective. The amendment came into effect in 2005, and the intention of the Parliament is, to give jurisdiction to the courts in Fiji over properties abroad, which did not exist previously. The courts in Fiji does not have jurisdiction over money laundering offences allegedly committed before 1 September 2005, in relation to properties abroad. In my judgment, the money laundering charges are null and void for want of jurisdiction.


Result


[62] The charges of making a false statement in an income tax return under the Penal Code (counts 9-12) are permanently stayed for an abuse of process arising from the same conduct being time barred under the Income Tax Act.


[63] The money laundering charges (counts 4-8) are quashed on the ground that the Court has no jurisdiction to try those charges.


[64] No abuse of process has been established in relation to the charges under the Exchange Control Act.


[65] The trial will proceed on counts 1-3 only.


[66] The applications are allowed to this extent.
Daniel Goundar
JUDGE

49 comments:

Anonymous said...

The thief is still guilty in our eyes - he was hiding millions from us poor Indo-Fijians. I want to know if his children hold permament residency in Australia?

Anonymous said...

Very smart chor chodotree
Taking millions from poor country like India god will burn u in hell beta ripiss

Radiolucas said...

"The question now is whether the amended definition has a retrospective operation? "

But I thought that retrospective law, imagined decree and fanciful whim-of-those-that-issue-the-paycheck was the first tool of the regime?

Aiyaz! Wake up! Time for another Napkin Decree!

Anonymous said...

So now we know why Nazhat Shameem has been quiet lately -- too busy drafting Goundar's decision.

Anonymous said...

All of the legal mumbo-jumbo here cannot hide the fact that this is abuse of process by the state and double jeopardy.

Anonymous said...

The Goundar/Shameem opinion notwithstanding, the case against Mahendra Pal Chaudhry is an obvious abuse of process with respect to the Exchange Control Act. 

On 29 February 2008, MPC advised the Prime Minister in writing that he opted to go with the PM's Option 1. The government set up a committee to conduct an inquiry. Amongst the terms of reference for the inquiry was to establish whether MPC had breached the Exchange Control Act between 2000 and 2006 in relation to the tax assessment carried out by FIRCA.

On 10 March 2008, the committee published the findings of its inquiry, which could not establish any breach of the laws by MPC in relation to the donated funds he received from India and retained in Australia.

On 11 March 2008, the Attorney General gave a press statement in which he highlighted the findings of the inquiry. 

On 12 March 2008, the Prime Minister officially informed MPC of the findings of the inquiry. In his letter, the Prime Minister wrote: "Given the findings of the Team, this matter is now no longer an issue as far as I and the Government are concerned."

The Reserve Bank of Fiji is a government entity. As such, its authority is encompassed by the PM's sweeping statement of closure.

I'm no fan of MPC, but I also hate to see injustice. Having decided the matter closed as a matter of political convenience, the government cannot consider the case reopened again for its political convenience. To do so is clearly abuse of process.

Anonymous said...

Chodo is a Chorro thats all im saying? A bad apple will make the
rest of good one a suspect.So throw
out this macafaka and forget about
it?

Anonymous said...

MPC lied so many times to LQ and the SDL party in parliament about the money. I don't know if we can believe him. Beta will fight his case and firstly state that IG is illegal. I feel for the poor indian farmers who sacrificed so much for MPC and FLP. Its time for MPC to sacrifice now for the poor farmers. That is eat cassava and black tea at naboro for the next 12 months. Gods delays are not his denials.

Anonymous said...

This case exemplifies the nonsentical nature of "Exchagne Control' regulations. Get rid of them and the Fiji $ and investment will rise as Maggie Thatcher did to the UK pound when she scarapped labour's 'controls'.

Anonymous said...

If MPC is sent to Naboro, it won't be because of his use of the money donated in India. After all, the regime earlier pronounced the matter closed. No, it will be solely for the purpose of preventing MPC from holding office, in a bald attempt to negate his political influence.

Anyone who supports such an end isn't interested in justice so much as unfettered power.

s/ Dakuwaqa

Anonymous said...

Guys, this was MPC's money given to him for his use and nobody else's. He is still a very popular political leader. From this court decision, it is clear that the case is an attempt to silence him because of his political base which has not diminished in any way. One should do a survey on the ground to realise this. FLP is stronger than ever.

Anonymous said...

3 assessors in Qarase FHL case to deliberate verdict on Monday. Looking forward to see how this pans out. Coup 4.5 can we start polling on this this one?

I say not guilty by assessors but court will over rule and say guilty and he goes in for 6 yrs.

Vutu Lucky said...

Lighter charges for Chodor as he was the one that signed FRank's leave pay that amounted to hundreds of thousands.

kite flyer said...

Chaudhry faces fewer charges?
He should not face any charges.
As the former PM he should have immunity from criminal prosecution.
That's the "logic" behind the proposed immunity in the new constitution. PM , coup leaders, are above the law as it applies to the common citizen.
if people can overthrow governments illegally and get away with it, what's the big deal if chaudhry did what he is said to have done - put some money in his own pocket which allegedly did not belong to him?

Anonymous said...

throw him to naboro so he gets a taste of sausages his son rajen got in parliament during the 2000 coup.

clear cut said...

@ Anonymous July 26, 2012 9:44 AM

Qarase will be found guilty of abuse of office by the assesors. It's a clear cut case. I doubt he will be imprisoned though.His case has to be made an example to other public servants. Tupou Draunidalo is still wet behind the ears and her arguments were ridiculous.

mark manning said...

Perhaps Chaudhry has done a deal with the Devil, Frank Bainimarama or Aiyaz Sayed khaiyum !
Or is the Regime trying to have his name cleared and Mr.qarase's muddied so he can contest the already rigged Elections in 2014 ?
Or is Chaudhry innocent of any wrong doing altogether ?

Mahen 'champion of the poor' chor'dhry said...

To Anonymous 9:10 AM:

You must be kidding that money was given to MPC.
You must be related to MPC.
You say he he is still a very popular – yes, among peasant-minded idiots like you.
If gawar, bekoof (backward, silly) FLP supporters want Chaudhry, they can have him.
But that does not hide the fact that MPC is a corrupt, thieving, lying, hypocrtical nepotistic politician.
MPC 'Fiji ke Robin Hood' pretended to champion the poor while, using his position to line his pockets with $3m and gift his beti $50k.
He railed against nepotism but appointed beta Rajen to a govt job and in-law sachida to senate.
Claimed FLP is democratic but suspended or disciplined anyone who questioned his corrupt, nepotistic ways.
Surrounded himself with party idiots too scared to challenge him.

We did not elect MPC to go around with begging bowl in hand collecting funds for himself and his

This man is nothing but a big time bhikari (beggar) and conmen.

MPC should be given a gold medal for his cunning, and using his position in the FLP for his personal gain and to advantage his family.

If FLP supporters are so dumb, stupid and blind as to still support MPC, than they deserve him.

Gali Glai me shor hai, chaudhry khandan chor hai!

Anonymous said...

Despite the best efforts of some fine legal minds (who shall remain anonymous)... PM Qarase will be matyred by the idiots in charge Nazhaat and Aiyazz! Go ahead and do it!!! He will be the Mandela of the Pacific.

He already had the people's vote, now wrongful imprisonment will win him their hearts! From all walks of Fiji. Do it, Aiyaz and Nazhaat!

Kemuni na kai viti lialia lewe ni mataivalu, ni sarasara tikoga ni yavu tamata veilecayaki. Ena qai lewai kemuni kei ira na luvemuni na Kalou

Anonymous said...

talk about corruption clean up. Baini's new restaraunt just opened at the old regal theatre. fully funded by a CHinese milionaire. and a new house for immigration director at namadi bought by another chinese millionaire...lolz.

Anonymous said...

Saturday, July 7, 2007
Lawyers Petition, give the CJ his Job Back
From the letters to the editors column of the Fiji Daily Post. Why it is important for the lawyers to petition the president on behalf of CJ Fatiaki.

Lawyers’ petition
7-Jul-2007

Sir,

THE petition instigated by Hemendra Nagin and supported by the vast majority of Fiji’s legal fraternity is not an exercise in futility as misunderstood by Bainimarama.
To the contrary, the petition to be handed to President Iloilo later this week addresses fundamental constitutional Presidential fiduciary duties which as expected, Bainimarama and his advisors fail to appreciate.
President Iloilo pursuant to Section 85 of the Constitution is vested with the executive authority of the State of the Fiji.
Section 86 makes him Head of State and confers upon him the symbol of unity.
Section 87 invests upon him the rank of Commander in Chief of the Fiji Military Forces making Bainimarama his subordinate.
President Iloilo suspended Fatiaki CJ on 06/01/07 pursuant to section 138(3)(a)(i) of the Constitution.
This Friday marks 6 months since Fatiaki’s suspension, yet no formal charges have materialised.
The petition calls upon President Iloilo’s fiduciary duties pursuant to section 138(4) of the Constitution, whereby he can revoke the suspension at any time.
It is uncertain whether any allegation(s) of misbehaviour has been referred to a tribunal because A-G Aiyaz Sayed Khaiyum, continually faces great difficulty in attracting credible jurists to sit on the tribunal given Fiji’s political status.
Be that as it may, it is an undisputed fact that President Iloilo ordered Fatiaki’s suspension pending a tribunal’s finding, which after six months have not only failed to materialise, but Fatiaki himself is still kept in the dark as to the specific charges against him.
President Iloilo’s response to the petition will reveal Fiji’s true political state and the legitimacy of his presidency.
Bainimarama’s obtuse remark referred to above is premised on his willingness to resort to terror, bullying tactics and rule Fiji by the gun, whereas the Petition on the other hand seeks legal redress and exhorts President Iloilo to faithfully carry out his Presidential fiduciary duties in accordance with the Constitution and rule of law.
Should President Iloilo remain steadfast and true to his constitutional Presidential duties, then he should accept the petition, revoke the suspension and reinstate Fatiaki forthwith pursuant to section 138(4) of the Constitution.
Furthermore, he should terminate all investigations into the allegations against Fatiaki.
However, if President Iloilo wavers and rejects the petition because of Bainimarama’s influence, then he cannot be said to properly fulfilling his Presidential fiduciary duties in accordance with the Constitution and rule of law.
Either response by President Iloilo to the petition would have achieved its purpose because it will clearly show to the international community Fiji’s true political status.
I, for one support the petition and call for Fatiaki’s reinstatement forthwith and call upon all right thinking citizens of Fiji and the international community to support the petition as well.
As I had stated previously, the petition is not an exercise in futility as misunderstood by Bainimarama and his advisors, but rather something akin to Martin Luther’s 95 thesis nailed to the Wittenberg Church door and need I remind you of what transpired from the nailing of the thesis/petition?




Tui Savu,
Townsville,

Anonymous said...

Dakuwaqa,

RBF is a seperate entity and can proceed charges against MPC. What PM or AG say is one thing, its the courts that decide.

M not an IG or MPC supporter

Anonymous said...

Annon 7.42

Its ok for UK to ease exchange controls but not small open economies like Fiji. Ask any economist and they will say the same thing. If we ease exchange controls, the rich will move their money and the poor will suffer as we will have to devalue as our foreign reserves will plunge.

For developed economies, they can easily borrow in the international market.

Pacific in the Media said...

editor,
please allow me to ask S.Fuli (FT 26/7)3 brief questions? should every tourist and every local be seeing things in fiji with the same eyes? Is there any room in Fiji for a difference of opinion of how people see things?
Or, is that not allowed in Fiji today?
sincerely,
rajend naidu
sydney

Anonymous said...

Chaudary may have banked the money from India but no one mentions the money collectd in Australia, NZ etc? Where has those funds gone to wasn't it supposed to be used to help the farmers and those who had to fed and housed, those that left Vanua Levu and ended up in Lautoka?

Anonymous said...

Rajen naidu,

Pls not everyone sees what u see. I agree with Fuli in today's fiji times.

Anonymous said...

Annon 7.42 Anonymous said...

"Cannot abolish Exchange Controls as we are too small and the rich would withdraw their money". All the controlling mafias of countries like Fiji say that. Not true - the investment would start to pour IN when the red tape is abolished. There is a thing called 'Market Forces'. The red tape ony employs phalanges of civil servants, accountants and lawyers which we do not need and greatly deters investors.

Anonymous said...

PM Qarase's lawyer makes valiant closing
Today PM Qarase's legal defence team made their closing submission at the Suva High Court.


There was pin drop silence in the court as Tupou Draunidalo, lead defence counsel outlined the lack of evidence presented by the highly paid FICAC persecuting lawyer, flash QC from Hong Kong, Michael Blanchflower.

...

http://ratuwalesi.blogspot.com/

rajend naidu said...

@ Anonymous 3.21PM.
Absolutely! That's my point - not everyone should see what I see or for that matter what anyone else sees. That's why you can agree with Fuli. I disagree with both Fuli and with you. You go ahead and see what you want to see but don't give yourselves the right to think only what you see is right and others are wrong. If you read what's posted on this site you will have noticed many people don't see what u see.

Anonymous said...

@Rajen Naidu,

The world is not just about you, why can you not learn to let others have their opinions.

Far too much self promotion.

Warlord said...

Just shows how incompetent the Judicial system is in Fiji right now. First it was Laisenia Qarase, now Chaudhry. who will be next?

mark manning said...

@ Rajend 420 p.m.
I see !

Anonymous said...

Fiji court annuls charges against Mahendra Chaudhry
PTI
Melbourne, July 25, 2012
First Published: 16:22 IST(25/7/2012)
Last Updated: 16:30 IST(25/7/2012)
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A Fiji court has thrown out money laundering charges against former Indian-origin premier Mahendra Chaudhry, who was ousted in a 2000 military coup, but he will still face trial on allegations that he violated foreign exchange laws.

Chaudhry, who became the first ethnic Indian to become
Fiji's Prime Minister in 1999, will now only face three counts of breach of the foreign exchange control law, reports from Fiji said.

Justice Daniel Goundar of the high court also set a pre-trial conference for August 13. Chaudhry has reportedly pleaded not guilty to the charges.

Chaudhry faced 12 charges for allegedly giving false information to tax authorities about his bank accounts in Australia.

he high court accepted the argument by Chaudhry's lawyer that it did not have jurisdiction over the foreign accounts, and annulled five charges of money laundering, a report on Fijivillage.com said.

Another four counts of making false tax returns were dropped as the three-year time limit for prosecution had expired. After 2007, the offence of making a false tax return under the Income Tax Act was time barred.

This leaves three counts of foreign exchange violation against Chaudhry. The breach of foreign exchange charges stem from his alleged failure to declare his accounts to the Reserve Bank of Fiji.

The leader of the Fiji Labour Party defeated long-time leader Sitiveni Rabuka in 1999 to become Fiji's first ethnic Indian Prime Minister. But, a year later, he and was taken hostage along with his cabinet in a military coup.

He was released after 56 days in captivity during which he and his cabinet were sacked

Anonymous said...

WHAT THE HELL IS GOING ON HERE MAHN....HOW CAN WE CHARGE LAISENIA QARASE WHILE HE IS THE ELECTED PRIME MINISTER FROM THE PEOPLE.... ITS SIMPLE AS IF YOU TELLING YOUR DAD TO GO TO BUY SUGAR FORM THE SUPERMARKET RAHTER HE TELLING TO GO....THIS UNBELIEVABLE...WHAT A ROTTEN GOVT....GO TO HELLL ALL OF YOU...YOUR TIME IS COUNTED...COME 2014


EX ARMY

rajend naidu said...

@ Anonymous 4.26PM
When have I stopped anyone from expressing his or her opinion? I haven't done that. I just expressed my own opinion and you and Fuli and others attack me like I am some kind of hated dictator
. But that's okay. That's your right. But by the same token I have the right to defend myself against the kind of rubbish that you throw at me. Don't chicken out now! Let's continue to argue our case. I am happy to have my views judged even by intellectually suspect people.

Anonymous said...

Annon 3.40om

Market forces is ok when all things are normal. Investment in fiji is not influenced by exchange controls but more so by other factors: cost of doing business, regulatory requirement, cost of utilities, dealing with different agencies, etc.

UK and fiji are on different leagues and the financial market is more developes there and has depth.

Anonymous said...

At rajen naidu,

For god's sake, come to Fiji and see for yourself. Why should we listen or agree to you when you are disagreeing to an opinion by someone who visited fiji. That's his views. Hope you took your medicine today.

Anonymous said...

Chaudhry supporters say Qarase is a crook and Qarase supporters say MFC is a crook. Don't you all see a pattern here?

This would be so funny if the two of them weren't trying to get back in power and rob everyone blind again.

Anonymous said...

Anonymous 1:55, I have to agree with Dakuwaqa and Anonymous 2:24. The Prime Minister assured Chaudhry in writing that his government considered the matter closed. Relying on that assurance, Chaudhry acted in good faith in a way otherwise detrimental to his self-interests. The RBF isn't independent from Fiji's government. It's managed by a board of directors appointed by the Minister for Finance. The regime can't have it both ways.

Anonymous said...

Annon 4.54am

Thanks for your response. To a lay man, what you say looks absolutely right. Howeever, The PM does not have the power to pardon or sentance people. The court does. Ask a lawyer.

Anonymous said...

Sorry, Anonymous 7:05, but you miss the point. Whether it was proper or not isn't really relevant. What is relevant is that the PM gave such assurances on behalf of the state, and Chaudhry relied on those assurances to his own detriment. The government cannot have it both ways. For the state to bring such charges now is clearly abuse of process. The proper course would be for the court to dismiss the charges.

Anonymous said...

'Chaudhry supporters say Qarase is a crook and Qarase supporters say MFC is a crook. Don't you all see a pattern here?'

Yes, I see a pattern -- regime supporters seeking to sew disunity amongst the opposition with insinuations of corruption, all the while saying nothing of the brazen corruption, tyranny and treason of the regime.

It is a pattern of avoidance and prevarication in support of treason.

s/ Dakuwaqa

Anonymous said...

ChoorDhry you are done. Pack your bags and be ready for your stay at Naboro. Oh sorry no need to pack bag eh you are not going to China. It is only to Naboro where you will be provided with clothing. hehehehehe

Anonymous said...

Annon 8.15.

Thanks for your view point. Let's agree to disagree.

Anonymous said...

@ s/Dakuwaqa 8:28 AM

The fact that LQ & MPC to date have remained at the top of their respective parties sais a lot to support your view.

rajend naidu said...

@ Anonymous
Mark Manning says " I see!"
Do you know why he sees?
Because he is not a blockhead!

Sa Yawa said...

@ 11.59a.m. July 26

Please don't ever compare laisenia qarase to Nelson Mandela - they're as different as chalk and cheese.

Some fine legal minds eh? And they couldn't defend qarase? Why?

Anonymous said...

Fijian ex-PM on bank charges

by: Luke Le Grand
From: The Australian
July 28, 2012 12:00AM

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A FORMER Fijian prime minister will face three charges over financial dealings he undertook without first gaining permission from the governor of the Reserve Bank of Fiji.

The High Court of Fiji has agreed to allow state prosecutors to pursue charges against Mahendra Pal Chaudhry after it was alleged he hid $1.5 million worth of donations in Australian and New Zealand bank accounts.

However, Justice David Goundar this week dismissed five counts of money laundering and four counts of tax fraud.

The case has stirred controversy, with accusations that the proceedings have been orchestrated by the ruling junta under Commodore Frank Bainimarama to marginalise Mr Chaudhry and his Fijian Labour Party.

But Mr Chaudhry also faces accusations from within his traditional voter base of rampant nepotism as well as hoarding donation money intended to relieve poverty in marginalised Indo-Fijian communities.
The most influential people in Sport

As Fiji's first prime minister of Indian descent, Mr Chaudhry held office for a year before he and his multi-racial cabinet were ousted in the coup led by Fijian nationalist George Speight in May 2000.

Mr Chaudhry fled to Australia, where he was treated for injuries he suffered while he was being held captive for 56 days during the failed coup.

He then set out on a world tour and persuaded wealthy backers in India to donate large sums of money.

During the hearing, the High Court was told some of this money went into various accounts and investment funds of the Commonwealth Bank of Australia.

In 2004, the source of the money was investigated by the Fiji Islands Revenue & Customs Authority and Mr Chaudhry was ordered to pay back taxes on it.

Mr Chaudhry was investigated by FIRCA again in 2008 but was not found guilty of any wrongdoing.

But after receiving separate briefings from two Australian barristers, the Reserve Bank of Fiji initiated proceedings against him in July 2010.

The ruling of the High Court of Fiji leaves the way clear for further legal action to be taken against the embattled politician.

Anonymous said...

Rajen naidu

Are u planning to stand for the next elections in 2014? U will have my vote. Pls stand for fLP.