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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 92 of 2000
REGINA
v.
SOLOMON ISLANDS NATIONAL PROVIDENT FUND BOARD & OTHERS
High Court of Solomon Islands
(Palmer ACJ)
Hearing: 12/11 – 16/11/2001, 19/11 – 23/11/2001
Judgment: 28th November 2001
Director of Public Prosecutions (F. Mwanesalua) for the Crown
R.V. Hanson QC and J. Sullivan (Sol-Law) for the First Defendant
J. Moti & Chris Hapa (Motis Pacific Lawyers) for the Second, Third and Fourth Defendants
PALMER ACJ: This is an application of a Submission of No Case to answer by Counsels for the First Defendant and Second to Fourth Defendants in respect of the charges brought against the Defendants under the Penal Code (Cap. 26) (hereinafter referred to as “the PC”) and Insurance Act (Cap. 82) (hereinafter referred to as “the IA”). The Defendants have right to make such application under Section 269 of the Criminal Procedure Code (Cap. 7) (hereinafter referred to as “the CPC”) at close of the case for the prosecution. The Court can also on its own motion “if it finds that there is no evidence that the accused or any one of several accused committed the offence” record a finding of not guilty and dismiss the charges. The crucial words are “if it finds that there is no evidence”. This has been construed as applying to the situation where if the evidence adduced were accepted, whether a reasonable court would convict. The position in England has been set out succinctly in R. v. Galbraith (1981) 73 Cr. App. R. 124 where the Court of Appeal gave the following guidelines:
“(1) if there is no evidence that the crime alleged has been committed by the defendant there is no difficulty – the judge will stop the case.
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence:
(a) where the judge concludes that the prosecution evidence, taken at its highest is such that a jury properly directed could not properly convict on it, it is his duty on a submission being made to stop the case;
(b) where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’ reliability or other matters which are generally speaking within the jury’s province and where on one possible view of the facts there is evidence on which the jury could properly conclude that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”
The approach taken in other jurisdictions including Australia (see May v. O’Sullivan [1995] HCA 38; (1955) 92 CLR 654, 658 and Doney v. The Queen [1990] HCA 51; 171 CLR 207) Singapore (see Haw Hua Tau v. Public Prosecutor [1981] 3 All ER 14 (Privy Council) and Papua New Guinea (The State v. Roka Pep (No. 2) [1983] PNGLR 287 are all very similar to what has been summarized in R. v. Galbraith (1981) 73 Cr. App. R. 124. The test to be applied in Solomon Islands has actually been also succinctly set out in R. v. Lutu [1985/87] SILR 249 and R. v. Jeffrey Teava and Others (unreported HCSI Criminal Case No. 010 of 2000, 28/06/01, per Muria CJ) though the provision under which the submissions of no case to answer were invoked was section 197, applicable to the Magistrates Court. The correct section actually is section 269(1) of the Criminal Procedure Code (Cap. 7) (“CPC”). The test however remains essentially the same. If at close of prosecution case I find there is cogent evidence that would entitle me to enter a conviction then the submission of no case to answer must be dismissed. If on the other hand, I find no evidence, insufficient evidence or evidence that is so tenuous because of inherent weakness, vagueness, or inconsistency then the case must be stopped and the defendant acquitted.
Charges against the First Defendant
The first Defendant has been charged with two offences of uttering a forged document under Section 343(1) of the Penal Code.
“Count 1: Statement of Offence
Uttering forged document, contrary to section 343(1) of the Penal Code.
Particulars of Offence
SOLOMON ISLANDS NATIONAL PROVIDENT FUND BOARD, on 9 June 1997 in Honiara, knowingly and with intent to defraud, uttered a forged document, to wit an Insurance Feasibility Study Report purporting to be made by PACIFIC ACTUARIAL SOLUTIONS PTY LIMITED.
Count 2: Statement of Offence
Uttering forged document, contrary to section 343(1) of the Penal Code.
Particulars of Offence
SOLOMON ISLANDS NATIONAL PROVIDENT FUND BOARD, on or about 9 June 1997 in Honiara, knowingly and with intent to defraud, uttered a forged document, to wit an Excess of Loss Reinsurance Contract purporting to be made and signed by SOLOMONS MUTUAL INSURANCE LIMITED with LUXEMBOURG EUROPEAN REINSURANCE S.A.”
Elements of the Offence of Uttering with Intent to Defraud
The offence of uttering with intent to defraud is directly connected to the offence of forgery. There can be no uttering without the existence of a forged document. It is therefore an essential requirement in the offence of uttering that a forged document exists. Secondly, it is necessary to prove that the person charged did so knowing that the document was a forgery.
“343.-(1) Any person who knowingly and with intent to deceive or defraud utters any forged document, ...is guilty of an offence of the like degree (whether felony or misdemeanour) and shall be liable to the same punishment as if he himself had forged the document, ....”
Forgery is defined in Section 333(1) as “the making of a false document in order that it may be used as genuine....” A false document in turn is defined in Section 334:
“A document is false if the whole or any material part thereof purports to be made by or on behalf or on account of a person who did not make it nor authorize its making; or if, though made by or on behalf or on account of the person by whom or by whose authority it purports to have been made, the time or place of making, where either is material, or, in the case of a document identified by number or mark, the number of any distinguishing mark identifying the document is falsely stated therein; and in particular a document is false-
(a) if any material alteration, whether by addition, insertion, obliteration, erasure, removal, or otherwise, has been made therein; or
(b) if the whole or some material part of it purports to be made by or on behalf of a fictitious or deceased person; or
(c) if, though made in the name of an existing person, it is made by him or by his authority with the intention that it should pass as having been made by some person, real or fictitious, other than the person who made or authorized it.”
Thirdly, there must be intent to defraud. An intention to defraud involves two elements – (a) deceit or an intention to deceive or in some cases mere secrecy; (b) an intent to expose some person either to actual injury or to a risk of possible injury by means of that deceit secrecy – Panjuboe v. DPP [1985] SILR 122, 127 (Wood CJ). In summary therefore, the elements to be proved by prosecution are:
The Prosecution Case – Count 1 (the Feasibility Study)
Count 1 of Crown case relates to the uttering of an Insurance Feasibility Study Report (hereinafter referred to as “the Feasibility Study”). Crown alleges the Feasibility Study: (a) is a forged document because it is false in that it purports to be made by a person who did not make it nor authorize its making, or that it purports to be made by a fictitious person, Pacific Actuarial Solutions Pty Limited (hereinafter referred to as “PASPL”), an unincorporated entity, whereas it was in fact made by Sivakumaran, and was made in order to be used as genuine; (b) was uttered by Leslie Teama (“Teama”) by his delivery of it to Harry on 9 June 1997; (c) SINPF Board knew it was a false document; (d) SINPF Board (“the Board”) in uttering the document had an intention to defraud.
The First Defendant’s Case – Count 1
The first Defendant’s case is based on two submissions: (a) that the document uttered was not a forged document and (b) that there is no evidence to show that the Board intended to deceive and thereby defraud anyone.
Under paragraph (a) Mr. Hanson submits, unless the Feasibility Study was a forged document, a charge of uttering it must fail. Learned Counsel relies on R v. Dodge [1972] 1 QB 416 (CA), 419 –420 (Phillimore LJ), which held that a document which is genuine when created does not become a forged document by later being given to a third party, even if given with an intent to deceive the third party. Learned Counsel submits, Feasibility Study was created as a genuine document inter partes – a communication between Sivakumaran and the Board, they knew who wrote it and that it was intended to be acted upon as such (Exhibit 1 – Memorandum of Understanding and the evidence of PW1 – James Apaniai T50, 56-57). Tendering the document to Harry with intent to deceive would not make it into a forged document.
The second reason relied on under paragraph (a) was that a full and fair reading of the Feasibility Study as a whole reveals that the names PASPL and Mr. Sivakumaran are interchangeable, indicating either that the company is Sivakumaran’s trading name, or, though it bears the company name in places, he is the natural person who wrote it and this is not concealed [Ex. 18/1 pp. 5-6, 18/5 last 2 pages].
Under paragraph (b) he submits there is no evidence to suggest the Board or Teama knew that the Feasibility Study was a forged document in any relevant sense. They knew the author was Sivakumaran. Secondly, there could not possibly be intent to defraud as charged, by merely lodging the Feasibility Study with Kevis Harry (“Harry”), the Controller of Insurance at said time. Thirdly, the evidence adduced (the Feasibility Study in its entirety, see sworn evidence of the Crown’s own witness, Apaniai [T46, 50, 55 and 58] and a consideration of the Board minutes [Exhs. 2, 3, 4, 13, 15] ) show no intent to defraud on the part of the Board, in fact quite the opposite. Fourth, even if Teama somehow did give the Feasibility Study to Harry (which is denied), a consideration of the minutes of the Board show that although the Board delegated to Teama/Management the task of progressing the proposal, there is no resolution authorizing Teama to give the Feasibility Study to Harry. Apaniai denied such authority was given [T57]. The Board being the directing mind of first Accused and not Teama, there is simply no evidence by which criminal responsibility can be sheeted home to the Board.
Was the Feasibility Study [Ex. 18] a Forged Document?
The issue for determination on whether the document was a false document is whether it had been purported to be made by a person who did not make it nor authorize its making or that it was purported to be made by a fictitious person. It is obvious, Sivakumaran made the document. In order for the Feasibility Study to pass the test of “false document” it has to be shown by evidence that the document was purported to have been made by PAS Pty Ltd or authorized by it. Is there evidence? Respectfully the only evidence is the name printed on the top right hand corner of the FS. The learned Director submits that this portrays or conveys to Harry that the report was prepared by PAS Pty Ltd whereas it was not and therefore was a false document. I note the Vol. 1 of the FS which was presented to Harry did not expressly state or indicate who the author was. It is pertinent to note however that a company does not have a mind of its own. It has officers who perform its task. In this instance, it would have been obvious that there would have been someone to discharge the task of preparing the said document.
It is also important to bear in mind this evidence has been tested under cross-examination by Mr. Hanson and it is part of my duty to assess the cogency of that evidence insofar as it relates to the question whether it amounts to sufficient evidence for purposes of the submissions of no case to answer. In so doing I bear in mind this is only done so as to determine whether that piece of evidence is so tenuous in that it contains any inherent weakness, vagueness or inconsistency, that would justify putting the accused on his defence.
Under cross-examination, it became obvious that a full and fair reading of the FS would reveal that the names of PAS Pty Ltd, PAS (SI) Pty Ltd and Sivakumaran were used interchangeably and that he was the natural person who wrote the report. At page 5 of Vol. 1 paragraph 6, Sivakumaran was clearly identified together with PAS Pty Ltd:
“Mr. Siva (PAS Pty Ltd) in his capacity as advisor/management consultant would indeed be instrumental in the formation and management of the entire organization. He would be directly involved as an advisor and management consultant i.e which includes the management of day to day operations of the joint venture personnel within the system on a time shared basis.” [emphasis added]
At page 6, of Vol. 1, last paragraph, he was described as:
“Engage the services of Mr. Sivakumaran of PAS (SI) Pty Ltd as the advisor/management consultant to the joint venture company.” [emphasis added]
The directing mind and will of PAS Pty Ltd or PAS (SI) Pty Ltd, even though those companies were yet to be incorporated, was intended and clearly identified as Sivakumaran. Although Vol. 4 was not included in the list of documents presented to Harry on 9th June, there was ample evidence that would enable any enquiring mind to identify the person behind PAS Pty Ltd. It is also pertinent to note that the identity of shareholders and directors of any company registered under the Companies Act can easily be obtained from the Registrar of Companies Office. A search at the Companies Office would immediately reveal that such company had not been incorporated. The Table of Contents as well, at item 7.2, makes reference to the company profile, which would enable further identification of the person behind the name PAS Pty Ltd. Volume 4, contains detail of the company profile, in essence a reference to Sivakumaran. Had it been requested this information would have been obtained. There is no evidence to suggest Vol. 4 was deliberately withheld for any reason or that it was not available. Witness Apaniai gave clear evidence that in his capacity as the Secretary of NPF and Assistant General Manager (Administration) at no time was he fooled, unaware or confused about the identity of the author of the FS. Apaniai pointed out (T42, 43) that he had advised Sivakumaran initially to take out the shares in the proposed joint venture company in his personal name until incorporation of his company, as normally it would have taken him time to have his applications to the FIB and Registrar of Companies processed. This provided the explanation for the use of PAS Pty Ltd on the FS. It was obvious it used the intended or proposed company name or entity, which Sivakumaran intended to incorporate and operate under in Solomon Islands.
In so far as PAS Pty Ltd was a non-existent entity, yet to be incorporated, that has never been denied by the First Defendant or witness Apaniai. To say that it was therefore a figment of the imagination would be far from the truth. It was not so. They knew it was the proposed company, which Sivakumaran had intended to incorporate.
Further, there has been no evidence to show that the person who purportedly uttered the document made or sought to make any submissions or suggestions that would support the view that the document had been made by PAS Pty Ltd. There has also been no direct evidence adduced to show that it was intended that PAS Pty Ltd was the author or the person that produced the FS.
The crucial question thus must be asked, has it been shown that the FS was purported to have been made by PAS Pty Ltd or that authorized by it? Respectfully whilst there is evidence to support that contention, it had been so contradicted by Defence to the point it is so tenuous so as to justify requiring the First Defendant to come to its defence. In other words even if I am to accept that the FS had been purported to be made by PAS Pty Ltd, a non-existent entity, evidence had been adduced to the contrary which showed that the identity of the author of that document could have been discovered on enquiry and on a full and fair reading of the FS. The contention therefore that it had purportedly been made by a person who did not make it or by a non-existent entity must fail. Count 1 therefore should be dismissed at this point. Nevertheless for completeness sake I will address other issues raised.
That it may be used as a genuine document
This can shortly be dealt with. There is no dispute by the First Defendant that the document was intended to be used as a genuine document. It had been submitted for that very purpose that it be considered as such and acted upon where appropriate.
Was there an uttering by the First Defendant?
In my respectful view, there is evidence that the said document was dealt with or used by the First Defendant. Leslie Teama is the Chief Executive Officer (General Manager) of the NPF Board. He can qualify as one of the persons carrying out the will and mind of the Board [See Lennard’s Carrying Co Ltd v. Asiatic Petroleum Co Ltd [1915] AC 705 per Viscount Haldane LC at page 713 refers to a person “who is really the directing mind and will of the corporation, the very ego and center of the personality of the corporation....” In Tesco Supemarkets Ltd v. Nattrass [1971] UKHL 1; [1972] AC 153, this is referred to as “acting as the company and his mind which directs his acts is the mind of the company.... He is an embodiment of the company or one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company.” See also DPP v. Kent and Sussex Contractors Ltd and Another [1944] 1 All ER 119 at 123 per Viscount Caldecote LCJ where a General Manager is capable of acting or speaking as the company; HL Bolton (Engineering) Co Ltd v. TJ Graham & Sons Ltd [1957] 1 QB 159, at 172 (CA) Lord Denning LJ where his Lordship also acknowledges that directors and managers are capable of representing the directing mind and will of the company]. It is obvious from evidence before this Court that the Board had endorsed the proposed set up of an insurance company (Ex. 1, 2, 3, 4, 5, 6) including the preparation of the Feasibility Study. The set up of an insurance company entails processing applications to Foreign Investment Board (“FIB”) where foreign investors are involved, the Registrar of Companies (Companies Act [Cap. 175]) and the Controller of Insurance for registration as an Insurer under the Insurance Act (Cap. 82). Whilst there was no specific requirement to have a copy of the documents delivered to Harry, it was obviously done in anticipation that an application for registration would soon be made any way but more importantly for the purposes of getting his recommendation through to FIB (see T74, 75, 151, and Ex. 30, 41, 42, 43). In my respectful view he was acting consistent with the instructions and authority of the Board and that such actions are capable of being brought within that of the Bd and no one else. It cannot be said Teama was doing what he was doing for himself or in his personal capacity (see Ex. 2 resolution 1; Ex. 3 resolution 2, 5, 7, 10; and Ex. 4).
Did the First Defendant know that the document was a forged document?
In his submissions learned Counsel Mr. Hanson inquired if the learned Director Mr. Mwanesalua could indicate who was relied on as containing the requisite knowledge concerning the uttering of the forged document. Whilst this was not directly responded to, it is obvious from submissions of the learned Director he was relying on the knowledge of Teama. Mr. Mwanesalua submits it was a known fact not only to Teama as the Chief Executive Officer or General Manager of NPF but also to the Board and the Company Secretary, that PAS Pty Ltd was yet to be incorporated. Despite this, the Board proceeded with and endorsed the FS for purposes of using it to obtain the Insurance licence for SMI. They, including Teama, must be deemed to know therefore that the FS was a false document when it was uttered on 9th June 1997.
In contrast, the evidence adduced from witness Apaniai was that as far as the Board was concerned the FS was a genuine document produced for the use of the Board and was submitted as such. The originals had been submitted to the FIB as genuine documents and copies delivered to Harry. There was no intention to fool or deceive anybody. The Board was not deceived by the document as they were the ones that had initiated and authorized its preparation. They knew that PAS Pty Ltd was yet to be incorporated. They knew that once incorporated, it was the proposed company, which would hold the shares of Sivakumaran (T42, 43).
I accept there is evidence, which could be deemed or inferred as constituting the requisite guilty knowledge. However that has been rebutted by cogent evidence from Apaniai that as far as the Board was concerned the FS was a genuine document intended to be acted upon. As far as they were concerned it was not a false document or sought to be presented as such. They knew who it was made by, that whilst PAS Pty Ltd was yet to be incorporated, they knew it was the proposed or intended company of Sivakumaran and that there was no intention to perpetrate any lie on anyone by having its name included in the report. It was submitted as such and the details contained in that report were consistent with such view. On enquiry it would become obvious to anyone that PAS Pty Ltd was yet to be incorporated. Respectfully count 1 would also fail for that reason.
Was there intent to deceive and thereby defraud?
The learned Director seeks to submit there was intent to deceive and perpetrate a fraud on Harry by having him accept the FS on the basis that it had been made by PAS Pty Ltd. Unfortunately, I fail to see what difference that would make as it was still within Harry’s power to determine whether the necessary qualifications had been fulfilled as required in the definition of “actuary” under the IA. If PAS Pty Ltd did not qualify under the definition; it was open to him to reject the report. Respectfully, the evidence adduced showed that there was no intention to deceive or defraud Harry. The crucial Crown witness, Apaniai denies any intention on the part of the Bd or its Management to deceive or defraud anyone. There was no intention or suggestion raised to deceive or defraud FIB. The documents had been submitted as genuine documents for their consideration and also on that same basis to Harry.
There was also no secrecy involved about the delivery of those documents on said date. The Table of Contents in Vol. 1 of the FS showed clearly what documents were available. There was suggestion made that Vols. 4 and 5 were withheld and thereby deprived Harry of his right to consider any material part contained therein. Unfortunately, that is misconceived. Harry was not deprived of any document. True he was only given copy of Vol. 1 of the FS, but the Table of Contents contained all the necessary information available in the FS. He could have been provided with any materials if it had been requested. There is no evidence to suggest that any specific request was made for any of the matters specified in that report and there is no evidence to suggest that any part of the FS was deliberately withheld.
I am satisfied Count 1 must be dismissed.
Count 2 – (Excess of Loss Reinsurance Contract)
The same elements for proof apply to count 2.
Was the Excess of Loss Reinsurance Contract (“RC”) a forged document?
Evidence adduced was that at time of execution of the Excess of Loss Reinsurance Contract (“Reinsurance Contract”) between Luxembourg European Reinsurance S.A (“LURECO”) and Solomons Mutual Insurance Limited (“SMI”), the latter was not an incorporated company. This meant it could not validly execute any agreement in that capacity (New Borne v. Sensolid (Great Britain) Ltd [1953] 2 WLR 596). The effect therefore of any contract it purports to enter into is a nullity. Any suggestions therefore that it is a valid document must collapse. I am satisfied the document is capable of coming within the definition of a false document – as purporting to be made by a person (SMI) who did not make it nor authorize its making or purporting to be made by a fictitious person (non-existent entity) as defined in Section 334(1) of the Penal Code.
Was it intended to be used a genuine?
It is obvious this was the intention of the parties to the contract.
Was there uttering?
Respectfully, there is evidence on the part of Harry that it was uttered on or about 9th June 1997. He was grilled under cross-examination but remained firm that it was given to him by Teama on or about 9th June 1997. His evidence cannot be easily brushed aside at this point of time. It has not been rendered so tenuous under cross-examination. There is evidence to show that Teama as Chief Executive Officer (General Manager) was acting within the authority and in the capacity of the Bd as its mind and will (see Ex. 2 resolution 1; Ex. 3 resolution 2, 5, 7, 10; and Ex. 4). See Lennard’s Carrying Co Ltd v. Asiatic Petroleum Co Ltd [1915] AC 705 per Viscount Haldane LC at page 713 refers to a person “who is really the directing mind and will of the corporation, the very ego and center of the personality of the corporation....” In Tesco Supemarkets Ltd v. Nattrass [1971] UKHL 1; [1972] AC 153, this is referred to as “acting as the company and his mind which directs his acts is the mind of the company.... He is an embodiment of the company or one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company.” See also DPP v. Kent and Sussex Contractors Ltd and Another [1944] 1 All ER 119 at 123 per Viscount Caldecote LCJ where a General Manager is capable of acting or speaking as the company; HL Bolton (Engineering) Co Ltd v. TJ Graham & Sons Ltd [1957] 1 QB 159, at 172 (CA) Lord Denning LJ where his Lordship also acknowledges that directors and managers are capable of representing the directing mind and will of the company.
Did the Bd have an intent to deceive and thereby defraud?
This is a much more tricky question because it has not been denied by Harry that on 9th June 1997 at time of lodgment of the Reinsurance Contract, he was aware or ought to have been aware in any event, SMI was yet to be incorporated. He was obviously perturbed to find a Reinsurance Contract purportedly executed by SMI as an incorporated contract. Miltion Sibisopere had executed the Reinsurance Contract purportedly on behalf of the company on 5th June 1997 at Luxembourg. On or about 9th June a copy of said contract appears to have found itself into the hands of Teama who delivered a copy to Harry on or about said date. There is clear evidence before this court that by that time Harry was under immense pressure from his Permanent Secretary Gordon Darcy who was also Chairman of the NPF Board to make recommendation to FIB that approval be granted for SMI to commence insurance business in Solomon Islands (see T74, 75, 151, and Ex. 30, 41, 42, 43). There is evidence therefore that the document was given with intent to deceive and thereby to induce Harry to make a positive recommendation on said date when the document was presented to him.
Submission of no case to answer therefore must be over-ruled, I find prima facie case against the First Defendant.
THE COURT
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