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Regina v Kaliuae [2010] SBHC 25; HCSI-CRC 413 of 2006 (8 June 2010)

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)

Criminal Case No: 413 of 2006

REGINA

V

JOHN MAETIA KALIUAE & CLEMENT ROJUMANA

Date of Hearing: 14th Dec 2009, 28th May 2010
Date of Judgment: 8th June 2010

For Crown: Ms. R. Olutimayin
For 1st Accused: Mr. E. Cade
For 2nd Accused: Ms. L. McSpedden

JUDGMENT

Naqiolevu J:

The First and Second accused are charged with the first 25 counts of Official Corruption contrary to Section 91 (a) of the Penal Code. The second accused is charged with the 10 remaining counts of Official Corruption contrary to Section 91 (a) of the Penal Code.

THE LAW

Section 91 (a) Penal Code

"Any person who,

(a) being employed in the Public Service, and being charged with the performance of any duty by virtue of such employment, corruptly asks for, solicits, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him in the discharge of the duties of his office".

CROWNS CASE

1.

a. The crowns case is premised on the fact that the First Accused Mr. Rojumana is charged with the 25 counts of Official Corruption contrary to Section 91 (a) of the Penal Code, while the Second Accused Mr. Maetia is charged with a total of 35 counts. Both accused are jointly charged on counts 1 – 25 while Mr. Maetia stands alone in counts 26 – 35.

b. At the relevant time Mr. Rojumana was the Minister for Home and Ecclesiastical Affairs and therefore Minister responsible for SI Citizenship Commission. In particular he had a direct role to play in appeals from decisions of the Citizenship Commission at the relevant time.

c. The crown alleges of the first 25 charges against the two accused that while both were employed in the Public Service as Minister for Home and Ecclesiastical Affairs and Chairman of the Citizenship Commission respectively, and in the discharge of their duties they corruptly granted SI citizenship to 25 Chinese persons. Counts 26 – 35 against Mr. Maetia are based on the premise that he corruptly asked for and received for himself money from a number of Chinese nationals.

Elements of the Offence

2. The crown submit the elements of the offence in relation of the first 25 counts are:

a) the accused committed the offence

b) between the 23rd May 2003 to the 22nd July 2003

c) being employed in the Public Service

d) charged with the performance of a duty

e) by virtue of the said employment

f) did corruptly obtain a benefit (SI Citizenship) for the 25 persons named in counts 1 – 25

g) on account of a thing already done by them in the discharge of the duties of their offices.

3. The crown lead evidence of several witnesses, including statements of some tendered by counsels and several documentary exhibits. A number of other documents were marked for identification but were not tendered as exhibit.
Defence Submission

First Accused

4. Counsel for the first accused assert the elements of the offence as set out by the crown are misstated, and that the elements are as set out in CartersCriminal Law of Queensland which refer to the Queensland section which is in almost identical terms to section 91 of the Penal Code of Solomon Islands.

Elements of the Offence

(1) being employed in the Public Service or being the holder of any public office

(2) being charged by virtue of such employment or office with the performance of any duty, not being a duty totally of the administration of justice.

(3) corruptly

(4) asks for, receives, or obtained, or agrees or attempts to receive or obtain

(5) any property or benefit of any kind

(6) for himself or any other person

(7) on account of anything already done or omitted to be done, or to be afterward done or omitted to be done

(8) by the person in the discharge of the duties of the person’s offence

5. Counsel assert in each of these 24 counts the crowns case is fatally and fundamentally flawed and that the counts as pleaded by the crown are incapable of establishing the offence at law.

6. Counsel assert as pleaded in the information, in each of the 24 counts, (counts 1 – 22 and counts 24 – 25) it is an essential element that the accused obtained a benefit for another, namely SI Citizenship. The crown has not made out this essential element in any of the 24 counts.

7. In relation to count 23 which alleges that Mr. Rojumana received money. As there is no evidence that he either directly or indirectly received money in return for a grant of citizenship there is no evidence that could support on conviction on count 23.

8. Counsel assert the Citizenship Act as it applied in 2003 provided for citizenship to be bestowed by naturalization

Section 7 (7) provide

"A person to whom a Certificate of Naturalization is issued become naturalized as a citizen with effect from the date stated in the Certificate. The Act was amended in 1997 repealing the then Section 12 which provided "If the Minister is satisfied that the applicant is or may be entitled to become a citizen he may grant a certificate stating that the person is or may be entitled to become a citizen by virtue of a provision specified in the certificate.

9. Counsel assert this was the basis for the Section 12(2) certificate, and once the new section was enacted, there was no place for a certificate under Section 12 (2) as the new section provide:

"An applicant whose application has been refused by the Commission may within 30 days from the date of notification of the Commission’s decision, appeal in writing to the Minister in the manner prescribed by the regulations.

(2) In determining the appeal, the Minister shall take into consideration the Commission’s reasons for the decision and where he disagrees with such decision he shall inform the Commission in writing of his reasons for such disagreement.

10. Counsel assert that is an irrefutable conclusion at law having regard to the legislation that it is the issuing of the prescribed certificate that grants citizenship. And where the evidence relied upon for granting of citizenship is a Section 12 (2) certificate only or where there is neither a Section 12 (2) certificate nor any other certification, there has been no obtaining of Solomon Islands Citizenship.

11. Counsel submit the following counts where certificate relied on by the crown as Sections 12 (2) certificate alone are:-

Count 1 - (Cen Bihong)

Count 5 - (Deng Xiu Ying)

Count 11 - (Luo Bai Rui)

Count 12 - (Luo Wei Wei)

Count 14 - (Tang Dong Liang)

Count 16 - (Yang Jiang Qung)

Count 17 - (Yi Hue Lei)

Count 18 - (Yi Juay Liang)

Count 19 - (Yu Cei Mei)

Count 20 - (Yu Wen Con)

Count 25 - (Zhou Zheng Wei)

12. No certificate of any kind purposely to grant citizenship were tendered in respect of Count 9 Jian Yard and Count 23 Xia Da Hung. And only unsigned Section 12 (2) certificates were marked for identification in respect of Count 12. Wou Wei Wei and Count 17 Yi Hu Lei.

13. Counsel assert a crucial element has not been made out in these counts. It is submitted that there was no citizenship obtained in the counts set out in the submission and there ought to be verdicts of Not Guilty in respect of Counts 1, 5, 9, 11, 12, 14, 16, 17, 18, 19, 20, 23 and 25. In any event none of the Section 12 (2) certificates were tendered by the Crown, although they were marked for identification. Documents which are not tendered do not form part of the evidence in the case and cannot be used to found a conviction.

14. On the issue of the certificate of naturalization, the section which is the applicable law at the time of the alleged offence, is silent as to any prescribed form of the certificate of naturalization. It is the issuing of the certificate which grants citizenship. There is no legislative power conferred on the Minister in this regard and there is no requirement in the Section for anyone in particular to issue the certificate.

15. Counsel assert the crown has not handed out any evidence as to what is the prescribed form under section 7 (6) of the Act or as to any prescribed form under the new section 12. In this regard the Crown cannot prove that the Certificate of Naturalization upon which it relies as granting citizenship are in prescribed form in accordance with the Act. The issuing, in the prescribed form is the only way that citizenship can be granted by naturalization, in the absence of this evidence the crown must fail in respect of these counts.

16. Counsel assert, of the remaining, counts there are documents styled "Certificate of Naturalization" in evidence which appear to be the certificate purportedly issued pursuant to Section 7 of the Citizenship Act, and relied upon by the crown as evidence of the granting of citizenship and relate to individual counts as follows: Count 2 not tendered, Count 3 not tendered, and Count 4, 6, 7, 8, 10, 13, 15, 21, 22 and 24. Documents not tendered cannot be relied upon as evidence, the Section 7(7) certificate in Count 2 and 3 were not tendered hence they cannot be relied upon, accordingly there ought to be verdict of Not Guilty in these counts. Where Section 7(7) Certificates of Naturalization are relied upon by the Crown, being Counts 4, 6, 7, 8, 10, 13, 15, 21, 22 and 24 there ought to be verdicts of Not Guilty.

17. Counsel on the issue of the accused signature being forged as clear from the evidence of Helen Riropo at trial and the assertion of Rojumana in his record of interview, exhibit "87" that a number of Certificate of Naturalization which purportedly bear his signature are forged. The Certificate of Naturalization which bear forgery of the accused signature are Count 2 Chen Quan Yaw, Count 3 Chen Lieng, Count 10 Li Pei Yen, Count 24 Zhen Quan, Count 22, Zhen Hi Mei, count 24, Zhen Ring Sheng. Accordingly these are additional reasons why there ought be verdicts of Not Guilty in these counts where Section 7(7) of Certificate of Naturalization are relied upon by the crown, but which bear a forgery of the accused signature by Counts 2, 3, 10, 21, 22 and 24.

DEFENCE SUBMISSION– Second Accused

Counts 1 – 25 – 26 – 34

18. Counsel for the second accused submit the Crown Prosecutor in her opening expanded the elements to be proved and appear to have included particularizations. The elements to be proved on Counts 1 – 25 are

a) the defendants – Mr. C. Rojumana and Mr. J. Maetia

b) between the 23rd May 2003 and 22nd July 2003

c) being employed in the Public Service and charged with the performance of a duty by virtue of such employment

d) did corruptly obtain a benefit (SI Citizenship) for 25 named persons

e) on account of a thing already done by them in the discharge of the duties of their office

The elements of the offence as set out by the crown are misstated and that the elements as set out in Carters Criminal Law of Queensland which refer to the Queensland Section which is identical in terms of Sections 91 of the Penal Code.

19. Counsel assert in each of the 24 counts the crowns case is fatally and fundamentally flawed and that the counts as pleaded by the crown are incapable of establishing the offence at law.

20. Counsel assert in each of the 24 counts, it is an essential element that the accused obtained a benefit for another, namely SI Citizenship. The contention that the obtaining of citizenship in the context of this case cannot constitute the "Obtaining of a Benefit for himself or another". Within the meaning of section 91 of the Penal Code. What is said is that this element, framed in the way that the crown has put its information, on essential element not made out.

21. The Citizenship Act as it applied in 2003 provided for citizenship to be bestowed by naturalization.

Section 7 (7) provide

"A person to whom a certificate of naturalization is issued becomes naturalized as a citizen with effect from the date stated in the certificate".

The Act was amended in 1997 repealing the old Section 12 which provided.

"If the Minister is satisfied that the applicant is or may be entitled to become a citizen he may grant a certificate stating that the person is or may be entitled to become a citizen by virtue of a provision specified in the certificate".

22. This, counsel assert was the basis for the Section 12 (2) certificate. Once the new section was enacted, there was no place for a certificate under Section 12 (2) as the new section provide: Section 12 (1).

"An applicant whose application has been refused by the Commission may within 30 days from the date of notification of the Commissions’ decision, appeal in writing to the Minister in the manner prescribed by the regulations."

(2) "In determining the appeal, the Minister shall take into consideration the Commissions’ reasons for the decision and where the Minister disagrees with such decision he shall inform the Commission in writing of his reasons for such disagreement.

23. Counsel assert, it is the issuing of the prescribed certificate that grants citizenship, thus it is said that in those counts where evidence relied upon for the granting of the citizenship is a Section 12 (2) Certificate only, or where there is no Section 12 (2) certificate nor any other certification, there has been no obtaining of SI Citizenships

24. Counsel submit the following are the counts where the certificates relied on by the crown are Sections 12 (2) certificates alone. It is of note that none of those certificates are tendered in evidence, and thus they cannot be taken into account in themselves as proof of citizenship:-

Count 1, (Chen Bihong), Count 3 (Chen hiar), Count 5 C (Deng Xiu Yin), Count 9 (Jian Yen), Count 11 Chu Bai Ru, Count 12 (Lowei Wei) Count 14 (Tan Dong Hang), Count 16 (Yang Jiang Qing), Count 19 (Yi Hu Hei), Count 18 Cyi Juag Liang), Count 19 (Yu Cui Mei), Count 20 (Yellen Con), Count 25 (Zhole Zeng Wei).

25. A crucial element has not been made out in these counts, it is submitted there was no citizenship obtained in the counts set out in paragraph 19 of the submission and there ought to be a verdict of Not Guilty in respect of each count, 1, 3, 5, 9, 11, 12, 14, 16, 17, 18, 19, 20 and 25.

26. Counsel submit it is important to note that counts 26 – 35 which are alleged at against Mr Maetia alone are also brought under Section 91 (a) of the Code and that there, the crown sets out the elements to be proved in a different manner. It is the difference which highlighted what is submitted is a fundamental element in the particularization of Count 1-25.

27. Counsel submit the elements to be proved on counts 26-35, are the accused:

a) Dates between 23rd May – 23rd July 2003

b) Being employed in the Public Service and charged with the performance of a duty by virtue of such employment.

c) did corruptly asked for or received for himself money from a number of Chinese persons.

d) on account of a thing already done by him in the discharge of his duties.

28. Counsel assert that each of those counts must fail since the granting of Solomon Island Citizenship is expressed to be an essential element and for the reasons set out above such citizenship is not shown to have been granted.

29. Further counsel assert that the entire evidence of the trial in regard to these counts is to the effect that the thing done or to be done was not citizenship in any event, but issue of Solomon Island Passports. There was no valid Citizenship issued, merely invalid documents which were used to gain passport. The delivering or provision of passport not having been relied on by the crown as the thing to be done, the crown case is doomed in these counts.

ASSESSMENT OF EVIDENCE

30. Counts 1 – 25. Elements –

First and Second Accused

The court consider the elements of the offence of Official Corruption is clearly the accused being employed in the Public Service, and charged by virtue of such, employment with the performance of any duty, "corruptly asks for", "receives", or "obtain" or agree or attempts to receive or obtain any property or benefit of any kind for himself or "another person", on account of anything already done or omitted to be done or to be done although done or omitted to be done, by the person in the discharge of the duties or the persons office.

31. The crown case essentially is that the two accused had obtained a benefit for the 25 Chinese Nationals Citizenship. The offence is clearly the obtaining of the "benefit" for the Chinese Nationals, the benefit being the Citizenship Certificate. The court consider the critical word is the "obtaining of a benefit".

32. The court is of the view the issue to be considered is "the benefit", and more importantly was the benefit obtained. The Collins English Dictionary defined obtain to mean "to gain possession off, "acquire" or "get". The Oxford English dictionary makes it even clearer by defining it and "take or be given something". The critical element that must be fulfilled is clearly the "obtaining" and "receiving of a benefit" in order to fulfill this essential element.

33. The court is fortified by the principle of law enunciated by Fatiaki J, in the case of STATE-v-Aisake, where His Lordship quoted Jesuratnam J in the case of STATE-v-Humphrey Chang([1]), where in dismissing the charge of Official Corruption and upholding a submission of "no case to answer, in the trial in the High Court of Fiji said at P2 of his ruling.

"An examination of S.106(a) reveals that there are two parts or elements in the definition of the offence. The first part deals with the obtaining of property or "benefit from" some person and the second part sets out the quid pro quo or "consideration" on account of which the property or "benefit is obtained". When these two elements are proved the corrupt act is made out."

"From the foregoing it is clear that before an accused can be called upon to make a defence to a charge of Official Corruption it is incumbent on the prosecution to produce credible evidence to show not only that the accused "received" some property or "benefit" but also that the "benefit" or "property was received" ‘on account of’ or in consideration for something done by the accused in the discharge of his duties". Underlining mine.

It is clear that some property or "benefit" "must be received" by the beneficiary before the element is complete.

34. The crowns case is based on the certificate being issued under Section 7 (7) of the Citizenship Act.

Section 7 provide:

"A person to whom a certificate of naturalization is used becomes naturalized as a citizen with effect from the date stated in the certificate". The Act was amended in 1997 repealing the then Section 12 which provide

"If the Minister is satisfied that the applicant is or may be entitled to become a citizen he may grant a certificate stating that the person is or may be entitled to become a citizen by virtue of a provision specified in the certificate.

35. It seems to me when the legislation was amended the only way a certificate can be granted is by certificate of naturalization. It is the "issuing of the prescribed certificate" that grants citizenship, and where the evidence relied upon for the granting of citizenship is a section 12 (2) certificate only or where there is neither a section 12 (2) certificate nor any other certification, there has been no obtaining of Solomon Islands Citizenship, as required as an essential element in the first 25 counts.

36. The counts where the certificate relied on by the crown as section12(2) certificate alone are:-

Count 1 Chen Bihong

Count 5 Deng Xiu Ying

Count 11 Huo Bai Ru

Count 12 Luo Wei Wei

Count 14 Tang Dong Liang

Count 16 Yang Jian Qing

Count 17 Yi Hue Lei

Count 18 Yi Juan Ling

Count 19 Yu Chi Mei

Count 20 Yu Wen Cen

Count 25 Zhong Zheng Wei

In relation to Count 9 Jian Yong and Count 23 Xia Da Huan, no certificate of any kind purposely to grant citizenship were tendered and only an unsigned Section 12 (2) certificate were tendered for identification in respect of Count 12. Luo Wei Wei and Count 17 Yi Hu Lei.

37. The court consider no evidence was presented that Rojumana received money directly or indirectly in return for a grant of citizenship. There is no evidence to support a conviction.

38. The court consider as none of the S. 12 (2) certificate were tendered by the crown, although they were marked for identification, documents not tendered do not form part of the evidence in the trial and cannot be used to find a conviction.

39. Count 26 – 35 – Second Accused

ELEMENTS

The counts in which the second accused is charged with are found under Section 91 (a) of the Penal Code. The elements of the offence are, the accused between the 23rd of May and 23rd July 2003, being employed in the Public Service and charged with the performance of a duty by virtue of such employment, did corruptly asked for and receive for himself money from a number of Chinese persons on account of a thing to be done.

40. The crowns case is that the accused approached the main Chinese witnesses who own business and their workers or relatives who make up the second group. The main witnesses acted as agent for their employees and relatives. The accused asked the main witnesses for money and received money from them to arrange citizenship.

41. The three main witnesses for the crown, Jason Shiju Yee (CW 11), (Hong Ma (CW15) and Andrew Deng (CW24) told the court how they were approached by the accused and asked if they knew any one who wanted to become a citizen and told them he could do it for them. They told the court that he told them how much it would cost to arrange it. The accused came back to them a few times to give application forms, collect supporting documents, talk about application letters, give citizenship certificate for signature, and collect money and foods.

42. Crown witness Yi Hi Lei in his evidence told the court the accused approached him and asked if he knew anyone who wanted Solomon Island citizenship and responded by saying yes. The witnesses when asked; Did he tell you how much it involved. He said that the application form fee, approval fee, application for passport is about $5,000, and his consultant fee round about 4 – 5 thousand dollars. Total is about $10,000([2]). The witness told the court "I told him to arrange everything then, after that I can pay him. If nothing happens I will not give him anything". He told the court he did not give any money because the accused did not bring back any certificate or passport.

43. Crown witness Xia Da Hong (CW22) told the court that the local man who approached him told him his name is John, but did not give his surname. The local man asked if he knew anyone who wanted Solomon Island Citizenship and he said yes. The witness in response to the question, if he paid any money for the application said, "yes", but can’t remember how much. When asked who did he pay the money to, he responded, John and he further said he paid the man John, once or twice or three times. The witness confirmed what he said in his police statement of how much he paid John but cannot now remember the amount.

44. The witness seem evasive and refused to remember vital information he had given in his record of interview, even when his memory was refreshed from the statement. ([3]) The witness in his evidence told the court that John gave him some coloured citizenship certificate for his brother and he sent it to China. He further said he used the certificate to apply for Solomon Island citizenship for him. His brother was in China when he applied for Solomon Islands citizenship.

45. Crown witness Ci Shon Song, said Kun Da Hung acted for him and told the court that he arranged for SI citizenship. He said that the same local man John did it for him. The witness in response to the crowns counsel said, that when John gave him the two documents he asked for money but cannot remember how much. The witness told the court that John gave him coloured citizenship certificates for Ci and he gave them to Ci. He used the certificate to apply for SI citizenship for Ci.

46. Crown witness 22 also acted for Suan Rong Jian reluctantly mentioned the names of Suan Rong Jiang. The witness told the court that the same local man arranged for Suan R Jiang citizenship including her 3 children. He testified that he asked this person how much it was going to cost, and told including everything, about $7000 - $8000. He further testified that he paid the person the money and confirmed the money came from the person who asked him to apply([4]).

47. Suan Roy Jiang testified that a man named Da who runs a fast food arranged SI citizenship for her and her children, she paid him $20,000, but he later gave back some money.

48. Crown witness 24, Andrew Deng acted as agent for the family Guo Qing Zhen, Li Pei Xian and 2 children. The witness was granted immunity from prosecution at his own request. He testified that the accused approached him and asked if he knew anyone who wanted SI Citizenship. He then told Quo Zhen and his wife and they told him to apply for them. The accused told him that it would cost $30,000 for the family.

49. Crown Witness 24 gave evidence that when the accused asked him for the money he called Quo Zhen to bring the money and he came from Auki and he gave the money to the accused in his presence at the back office of his shop. Zhen, the accused testified, brought the money on two occasions and the accused gave the citizenship certificate and passports for Quo Zhen and his family. CW24 when questioned further by the crown counsel whether the said Zheng gave the money to the accused, said yes, he testified he was at the shop at the time and he confirmed that the amount he saw was $7,000. The witness further testified that Zhen gave a further $3000 when the matter was completed, this also took place at the shop. The accused then gave four passports to Zhen.

50. Quo Zhen also testified as CW20 that when he applied for citizenship he gave $7000 to a local man who Andrew told him who he was, but did not know him. He testified he went into Andrew’s office and gave the money to the man([5]) Quo Qing told the court that after he gave the $7000 to the local man, the man gave Andrew 8 forms for him, his wife and children to fill and put their thumb prints([6]). The witness when further asked, you told the court you received SI passports in 2003 and told the court that he got them at Andrew’s shop, which was given to him by a local man, and confirmed that it was the same man who gave him the passport to which he gave $3000, and that was the second time he saw the local man([7]).

51. Crown witness 24 Andrew Deng acted as agent for Yu Wen Can and told the court that the accused came into his shop and asked him if he knew anyone who wanted citizenship. He answered yes and told the accused to arrange for some of his families. Yu Wen Can Jackson is one of them. The accused brought the application form and taught him how to apply it. He testified that apart from the one thousand three hundred dollars, he gave a further five thousand seven hundred for the approval fee, however he cannot remember if a receipt was given([8])

52. The witness further testified that the accused gave him citizenship application for Jackson and after some time the accused brought 2 citizenship certificate for Jackson to sign and put his thumb print and further brought a SI Passport for Jackson and to which the accused asked for $5,300 for the passport which he paid([9])

53. Crown witness 16 told the court his uncle Andrew Deng arranged his SI Citizenship and passport, he had not lived in SI for 10 years when his uncle applied for him. His uncle told him to put his signature on the application form and signature and thumb prints on the 2 citizenship form.

54. Crown witness 24 arranged for the SI Citizenship and passports for Yang Jian Qun and Den Xiu Ying. He testified that when the accused asked him if he knew people who wanted SI citizenship he gave the names of these two, to which the accused gave him application form for them to complete. He testified that when the citizenship was given to him the accused asked for $4,300 for approval fee ([10]), the approval fee and service fee. He testified that the $4,300 was for Yang and Deng([11]).

55. Crown witness Chen Sung Wo (Frankie) testified that he acted on behalf of Luo Wei Wei and Zhen Hui Xia and others. He told the court that one John approached him and asked him if he knew anyone who wanted SI citizenship. The person John did not give him his second name, just said John. He told the court he gave the name of 6 people and John sent a man called David to give him 6 application forms for 6 people. He completed the forms and gave them back to John and gave $3,000 for 6 application forms to David. The accused told him citizenship and passport was going to cost $20,000 per person, but after consultation with his family they agreed to pay $8,000 per person. He testified he did not pay the $8,000. However despite getting police and medical clearance which he gave to John, the citizenship certificates were not given.

56. Crown witness Luo Wei Wei, Zhou Zhong Wei and Ling Yi Yang testified that Frankie asked them to sign the citizenship forms which they did. They did not ask anyone to apply for citizenship for them and no one told them they were applying for citizenship. They further did not ask for anyone to apply or write letter on their behalf.

57. Crown witness Jason Shyi Yeo arrange SI citizenship for Yu Chui Mei. He testified that a local man had introduced himself as Maetia, approached him and asked if he knew anyone who wanted SI citizenship. He told the local man to arrange citizenship for his wife and Maetia told him it would cost $10,000 and he agreed to pay as a middle mans fee. He paid $5000 to Maetia([12]) Yu Cui Mei testified that her husband arranged for her SI citizenship through a local man who came to their shop and she described the man as not too tall, a bit fat with specs.

58. BURDEN OF PROOF

Conclusion/Reasons

59. The court is of the view that the critical element to be fulfilled in relation to the first 25 counts, with the exception of count 23 in relation to the two accused are "the accused "obtained a benefit" for another, "namely SI citizenship. Section 7 (7) of the Citizenship Act, provide a person to whom a certificate of nationalization is "issued" becomes naturalized as a citizen with effect from the date stated in the certificate. The Act was amended in 1997 repealing Section 12 of the Act which gave the power to the Minister if he is satisfied that a person is entitled to become a citizen he may grant a certificate stating the person is or "maybe entitled" to become a citizen by virtue of the "provision specified in the certificate".

60. The court is of the opinion that this is quite clear and the basis for the Section 12 (2) Certificate. However once the new section was enacted there is no place for a certificate under Section 12 (2) as the new section provide for an applicant who has been refused by the Commission may appeal to the Minister in writing in the "manner prescribed" by the "regulation". The Minister in determining the appeal shall take into consideration the commissions reasons for the decision and where he disagree with such decision he shall inform the commission in writing for such disagreement.

61. The court consider the evidence of crown witness Mr Kwalai, where he stated that the Section 12 Certificate to which former Ministers had continued to rely would not be valid right of citizenship. The only grant of citizenship would be by certificate of naturalization. Clearly it is only the issuing of the certificate of naturalization in the prescribed forms that grants citizenship.

61. The court is of the view that a crucial element of the obtaining of SI citizenship upon which the crown relies on in relation to counts 1 – 25 has not been fulfilled. Clearly there has been no obtaining of SI citizenship of the various counts in which a certificate under Section 12 (2) of the Citizenship Act. Further as none of the certificate, purporting to grant certificate, albeit not in compliance with the law of this country, received and marked for identification only and not tendered do not form part of the evidence in the case and cannot be used to found a conviction.

62. The court furthermore consider the failure by the crown to prove the form of the Certificate of Naturalization on the 24 counts to be important. It is clear after the repeal of Section 12 (2), the mechanisms set out under Section 7 was the only means for the certification or granting of citizenship. Section 7 (6) prescribed when the certificate shall come to be issued to the applicant and to any person who "will also become a citizen", a certificate of naturalization in the prescribed form. It is clear that as far as Section 7 (7) of the Certificate of Naturalization, the sections applicable at the time of the alleged offences is silent as to any prescribed form of the certificate of naturalization.

63. It is clearly the issuing of the certificate that grants citizenship, and there is no Legislative power conferred on the Minister to grant such citizenship. Further there is no requirement in the section for anyone in particular to issue such certificate. The crown has not tendered or handed evidence as to what is the prescribed form under Sections 7 (6) or as to any prescribed forms under the new section 12. The court is of the view that the crown cannot prove that the Certificates of Naturalization upon which it relies as granting citizenship are in accordance with the law of this country. The crown is further unable to refer any content of any Act, Code, Regulation, Order, Schedule or other Legislative instrument which prescribes the form of the certificate referred to in Section 7 (7). Clearly the court cannot on any basis conclude that the certificate relied on by the crown are in the prescribed form.

64. The court is of the view that the main issue of the Certificate is equally important to sustain the element of the charge. It is clear that not one of the section 12 (2) Certificate were in the envelope were ever given or handed over to the persons named in them. The certificates were contained in two envelopes which were retained by the Minister and later given by him to Mr Kwalai with a request that the contents in the envelope be dealt with. Clearly if the certificate were retained and however not given to the persons named in them means that they were "not issued" with the meaning of section 7 (7) of the Citizenship Act and because they were not issued they were not valid grant of citizenship and cannot fulfill the element.

ELEMENTS

65. Elements of Offence – Counts 26 – 35 – Second Accused

The elements which the crown is required to prove or sustain the charges in relation to these counts are:

The accused between the date 23rd May and 22nd July 2003, being employed in the Public Service, and charged with the performance of a duty by virtue of such employment, "did corruptly" ask for, solicits, receive or obtain for himself money from a number of Chinese nationals. On account of a thing already done by him or to be done by him in the discharge of his duties.

66. The crown relied on the same evidence produced to support elements on count 1 to 25 in counts 26 – 35. It is the evidence of the crown that two groups of witnesses testified in support of the elements. The main Chinese witnesses who own businesses and their workers and relatives who make up the second group. The evidence is clear that the main witnesses were approached by the accused and they acted as agents for their families and employees.

Assessment of Evidence

67. The evidence clearly reveal that three of the main witnesses who came to full proof are Jason Shiju Yee (PW11), Hong Ma (PW15) and Andrew Deng (PW24) who told the court how they were approached by the accused and asked if they knew anyone who wanted to become a citizen and said how he could do it for them. The witnesses told the court how much it would cost to arrange it, he came back to them a few times to give application forms, collect supporting documents, talk about appeal letters, give citizenship certificate for signing and thumb printing and collect money and food items.

68. The two of the main Chinese witnesses who did not come up to full proof for the crown in respect of the accused full names are Kun Da Hung (PW22) who told the court that he was approached by a John who is not in court today and Chow Sung Wo (Frankie) (PW19) who testified that he was approached by a John who did not tell him his second name, and the same John asked them for money to arrange citizenship certificate, and later brought back citizenship certificates and passports.

69. The evidence of (PW13) Ci Shen Song reveal that she gave money to a Da who runs a fast food shop to arrange his citizenship. Suan Rong (PW9) told the court that he gave money to Da who runs a fast food shop to arrange citizenship, she testified that Da told her the money was for a local man who will arrange her citizenship. Yang Jiang Suing told the court that Andrew Dang arranged for his wife’s citizenship and Quo Qing Zhen said he gave money to a local man in Andrew’s shop to arrange citizenship for him, his wife and two children.

70. The court is of the view that in relation to count 26, Yi Hi Hei (PW 15) Hong Ma’s evidence confirm that Lei is his brother’s son and the accused approached him and asked him if he knew anyone who wanted SI citizenship and said yes. The witness in response to the question, "Did he tell you how much it involved said, "the application form approval fee, application for passport fee is about $5,000 and the consultant fee, run to about 4 – 5 thousand dollars, the total being about $10,000. He testified that he told the accused to arrange everything, then after that he can pay him, if nothing happens, he will not give anything([13]). He told the court he did not give the accused any money because he did not bring back any certificate or passport. The court has no reason to doubt this witness testimony and his demeanor was someone who spoke the truth and he clearly knew and identified the accused.

71. The evidence of (PW22) while testifying that a local man approached him and gave his name as John but did not give his surname. The witness seem to be selective in what he can remember occurred. He confirmed that what he stated in his statement how much he paid the accused for his brothers application, but cannot remember now. The witness despite having his statement read to him maintains he cannot remember it now([14]).

72. Crown witness Andrew Deng Zu Au testified that he acted as agent for Guo Quing Zhen, and Li Pei Xian and the two children. He was granted immunity from prosecutions and testified that the accused approached him and asked if he knew anyone who wanted SI Citizenship, he said yes then told Zuo Zhen and his wife and they told him to apply for them. He testified that the accused told him it would cost $30,000 for the family. The witness further testified that when the accused asked for the money he called Quo Zhen to bring the money, who then came from Auki and gave the money to the accused in his presence. Zhen brought the money to the accused on few occasion. The accused then gave SI citizenship certificate and passport for Quo Zhen and his family.

73. The testimony of Quo Zhen (CW20) is that he gave seven thousand dollars to a local man, whose name was given by Andrew. He told the court he gave the money personally to the local man in Andrew’s office, he further testified that he was supposed to give the money to Andrew but then he gave it directly to that man([15]).

74. The testimony of Andrew Deng (CW24) is that he acted for Yu Wen Can and when asked by the accused if he knew anyone who wanted citizenship and arrange with the accused for citizenship for Can and his family. The accused brought the application forms and taught him how to complete it. He further testified apart from the one thousand two hundred dollars for Jackson’s application, he later gave accused five thousand seven hundred dollars for the approval fee, and cannot remember if he was given a receipt([16]). The witness (CW12) testified that the accused gave him a citizenship application form for Jackson and after some time brought 2 citizenship certificates for Jackson to sign and put his thumb print and finally brought a SI passport for Jackson. The accused asked him for $5,300 for the passport which he paid([17]).

75. The testimony of CW24 in relation to Yang Jiang Quing and Deng Xiu Ying is similar to the other Chinese nationals and when approached by the accused, if he knew of anyone who wanted citizenship, he gave these two names, and the accused gave him application forms to complete. The witness testified that the accused asked for $4,300 for approval fee([18]), and the money was for approval and service fee. The witness told the court that the $4300 was in relation to the application of Yang and Deng([19]).

76. Crown witness Chow Sung Wo (Frankie) acted on behalf of Luo Wei Wei Zhn Hu Xia and others and the pattern of approaching and asking for anyone who require citizenship and is followed. The witness testified that a man named John, who did not tell him his second name, upon being asked give name of six people. The man John then sent a man called David to give him 6 application forms for the people. He told the court he completed the form and gave them back to John and gave $3000 for the application forms through the man David. The witness testified that John told him citizenship and passport was going to cost $20,000 per person, but after consultation with his family they agreed to pay only $8000, he did not get the $8000.

77. The testimony of Luo Wei Wei, Zhou Zhen Wei and Ling Yi Juan is that Frankie told them to sign the certificate forms and they did. They confirm they could not ask for anyone to help them and no one told them they would applying for citizenship. Frankie then took them for police clearance and medical check. Frankie told the court that John sent two SI passports. The evidence of PW23 Zhen Chow Sau Chen (Frankie’s sister) is that Frankie gave her two passports for the two people she applied for, she placed the passports in a drawer, however in cross examination she said she did not know how the passports got inside the drawer.

78. The evidence of PW11 Jason Shiji Yen who arranged for Yu Cui Mei citizenship is that a local man who introduced himself as Maetia approached him and asked if he knew anyone who wanted SI citizenship. He told the court that he told the man to arrange citizenship for his wife. Maetia then told him it would cost $10,000 and he agreed to pay $10,000 as a middle man’s fees, he then paid $5000 to Maetia. He further confirmed that they had agreed to the sum of $10,000 as a middle man’s fee([20]). The witness said he gave Maetia documents in support of his wife’s application, he then gave the completed forms which was tendered.

DEFENCE WITNESS

79. The accused called a witness in his defence Mr Willy Fafanua, who testified that a Toto, Simon Chan and Andrew Deng were responsible for the offences. He said that he saw Andrew Deng giving money to Toto in exchange for citizenship certificates for Chinese people, they were contained in a yellow envelope. The witness testified that he saw that happen more than once but did not tell anyone until he testified in court. The witness further testified that he knew the accused did not commit the offence and under cross-examination agreed that the offence were serious and knew the accused was facing prosecution but never told police that an innocent man was charged or that he saw someone practicing the accused signature. It is clear the witness testimony is a recent invention, and the court is not persuaded that he is a truthful witness having observed his demeanor.

ACCUSED DOCK STATEMENT

80. The accused made a statement from the dock wherein he put himself forward as a man of good character who would be unlikely to commit a criminal offence. He denied his signature on the certificates of naturalization and referred to the fact that CW Deng and others were engaged in a forgery enterprise. He stated that someone else posed for him. It is not in my character to go around begging for money. He said that he is a dignified Ex Minister and top politician and claim it is an arranged crime which Deng is responsible for.

BURDEN OF PROOF

81. The burden of proof of the accused person guilt beyond reasonable doubt rests upon the prosecutions and remains there throughout the trial. The prosecution must prove beyond reasonable doubt that the accused are guilty of the offence which they are charged with. If I have doubt and the doubt is a reasonable doubt as to whether the accused are guilty of the offence, having taking into consideration all the essential elements of the offence, it is my duty to give the accused the benefit of the doubt to find them not guilty on one or all the counts of the charges. But if upon consideration of all the evidence taken together at the end of the trial the arguments of counsel and the charge, I am satisfied that the accused has been proven guilty beyond reasonable doubt it is my duty to convict the accused.

IMMUNITY PROSECUTION WITNESS

82. The court in considering the crown’s prosecution witness 24 witness evidence and the grant of immunity by the crown. The court noted at the beginning of his testimony and prior to the immunity. The witness demeanor remains the same, he was willing to give his evidence truthfully without restraint. The witness testified that he was asked to tell the truth according to law and clearly that is what he proceeded to do. Refer to Wells J in the case of R-v-Gream([21]), where His Honour said, "A condition achieved, must, in my judgment, be the display, by the accused of bona fides at all relevant time".

83. It is clear the issue for this court to determine is whether the crown has proved its case beyond reasonable doubt that the accused is the person referred to by various Chinese workers as the man identified as "John" and that he asked for and received money corruptly for a thing to be done, or done in the future.

84. The evidence of CW11 is important as he testified that a local man who introduced himself as Maetia approached him, introduced himself and ask if he knew anyone who wanted to have SI citizenship. He further testified that he agreed with the accused to pay the sum of $10,000 as middle man’s fee, to which they agreed.

85. The evidence of CW11 tend to support crown witness 24 Andrew Deng’s testimony who had arranged citizenship for the Can family when the accused brought the various forms and taught him how to complete it. The accused had attended his shop on several occasion and the witness clearly recognized him.

86. The court consider the evidence of CW15 further tend to support the evidence of CW11 and CW24 as he was also approached and asked if he knew anyone who wanted SI citizenship and was told by the accused how much it would cost to arrange it. The witness further recognized him as the accused came back several times to give application forms, collect supporting documents, talk about letter of appeal and give citizenship certificate and collect money and food.

Identification of the Accused

87. The testimony of CW15 Hong Ma is important as he told the court that the accused approached him and asked if he knew anyone who wanted SI citizenship and when asked, did he tell you how much involved? He said for the application fee, appeal fee, application for passport is round about $5,000, the consultant fee is around about $4,000 - $5,000, the total around $10,000. However he did not give any money as the accused did not bring back any certificate or passport.

88. The court is of the opinion that the evidence of the main Chinese nationals seem to link the method of approach by the accused and the purpose of approaching them. They are asked if they knew anyone who require SI citizenship and when the persons confirm their desire and an agreement reached and how it was to be put in place. The witnesses positively identified the accused as the person who approached them, and money was exchanged for the service.

89. In considering the various witnesses evidence as to the identity of the accused. The court take into consideration the Turnbull principle and must warn itself of the importance of the principle. The various crown witnesses have had more than one to two encounter with the accused. The encounter with the witness is not a "fleeting" glance but a meeting and discussion over period of time.

ISSUE OF PASSPORTS

90. The court is of the view in relation to the passports issued to the individual is not indicative of whether the persons granted the passports was in accordance with the law made a citizen of Solomon Islands by law. Clearly the issuing of the passports is performed by a separate agency and by separate individuals, which simply means that the individual bearer holds a passport which they may or may not be entitled to.

91. The court is of the opinion that the crown has proved its case beyond reasonable doubt and all the essential elements as required to prove its case has been fulfilled in relation to counts 26 to 35.

The court in the circumstance find in the following:

Counts 1 – 22, 24, 25
First and Second accused are acquitted of the charges.

Count 23, the first accused is acquitted of the charge given there is no evidence against him that could sustain a conviction. The second accused is acquitted given he is further charged on the same facts under count 27.

Counts 26, 27, 28, 29, 30, 31, 32, 34, 35
The Second Accused is found guilty as charged.

Count: 33 – Not Guilty

ORDER

I will now consider any submission in mitigation on behalf of the accused, and for the crown to address the court on appropriate sentence.

THE COURT

^[1] [1993] FJHC 35 Criminal Case No. 8 of 1991
^[2] D16 – 4049 – 4053 P.30
^[3] D20 – 4071 – 4088 P.49
^[4] D20 4071 – 4088 P. 12
^[5] D19 4065 – 4069, P 8-9
^[6] D19 4065 – 4069, P 11-12
^[7] D19 4065 – 4069, P 13-14
^[8] D22 4093 – 4102, P 13
^[9] D22 4093 – 4102, P13
^[10] D21 4089 – 4092 P23
^[11] D22 40389 – 4092 P3-4
^[12] D14 4039 – 4043 P24
^[13] D16 4049 – 4053, P30
^[14] D20 4971 – 4088, P7
^[15] D19 4065-4069 P8-9
^[16] D22 4093-4102 P12
^[17] D22 4093-4102 P12
^[18] D21 4089-4092 P23
^[19] D22 4089 – 4092, P24
^[20] D14 4039 – 4043, P24
^[21] (1983) 9 A Crim R, 200