State v Bola [2005] FJHC 230; HAC0029D.2005S (17 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0029 of 2005S

STATE

v.

EMINONI BOLA

Hearing: 16th August 2005
Ruling: 17th August 2005

Counsel: Mr. D. Goundar for State
Mr. S. Valenitabua for Accused

RULING ON NO CASE TO ANSWER

Counsel for the Accused submits that there is no case for the Accused to answer. There is no dispute as to the legal test at this stage of the trial. The test is that there must be some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence. (Sisa Kalisoqo v. State Crim. App. No. 52 of 1984, State v. Mosese Tuisawau Crim. App. No. 14 of 1990).

The Accused is charged as follows:

Statement of Offence

ABUSE OF OFFICE: Contrary to section 111 of the Penal Code, Cap 17.

Particulars of Offence

EMINONI BOLA, on the 15th day of December 2003, at Suva in the Central Division, being employed in the Public Service as Manager Compliance and Investigations of the Fiji Immigration Department, in abuse of the authority of his office, did an arbitrary act, that is, personally going to the Nausori Airport to ensure Hon Keung Lam was granted tourist visa into Fiji, which act was prejudicial to the rights of Sepataia Lakepa, Assistant Immigration Officer, and the Fiji Immigration Department.

Section 111 of the Penal Code provides as follows:

“Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another, is guilty of a misdemeanour.

If the act is done or directed to be done for purpose of gain, he is guilty of a felony, and is liable to imprisonment for three years.

A prosecution for any offence under this or either of sections 109 or 110 shall not be instituted except by or with the sanction of the Director of Public Prosecutions.”

Both counsel agree that the offence has four ingredients. One, that the accused is employed in the public service, two, that he acted in abuse of the authority of his office, three, that his act was an arbitrary one, and four, that the act was prejudicial to the rights of another.

It is not in dispute, that on the 15th of December the Accused was employed in the public service. The remaining elements are in dispute. The facts led in the prosecution case are that one Hon Keung Lam was refused entry into Fiji in November 2003. He was deported. Representations were then made to the then Minister for Home Affairs, by one Diane Yeung, to lift restrictions on his travel, on the ground that he held a genuine Canadian passport and was a bona fide business visitor. The Minister instructed the Director Immigration to investigate, saying that if the passport was genuine, then Hon Keung Lam was entitled to enter as a citizen from a visa free/exempt country. The Director instructed the Accused to investigate. He discovered that the passport was a genuine one. The Director then lifted the travel restriction and directed that he could be given a 14 day visa.

On the 15th day of December 2003, Hon Keung Lam returned to the country, through the Nausori Airport. The shift supervisor at the immigration desk was Mr. Lakepa. Hon Keung Lam was referred to Mr. Lakepa because he was on the “watch list” on the computer. The Accused then approached Mr. Lakepa holding a brown file. He told Mr. Lakepa that Mr. Lam was to be allowed into the country. Mr. Lakepa looked at the file and saw some endorsements by Mr. Brown, the Director Immigration. The Accused told Mr. Lakepa to stamp Mr. Lam’s passport for 14 days. Mr. Lakepa did so. He asked Mr. Lam to give him his passport and tickets so they could hold them until the next day. However the Accused took them himself and the Accused and Mr. Lam left the arrivals hall together. Mr. Lakepa said that the Accused interfered with his work, but that he followed his instructions out of respect for his senior position.

The Accused was interviewed under caution. He made admissions as to his visit to the Airport but said that it was part of his job description to ensure that Mr. Lam would not “face the same situation that he faced at Nadi.” He also said he needed to be at the airport to ensure that the officers obeyed instructions and that he had been told to go personally by Jason and his wife, Diane Yuen. He then said that he had gone there as a friend of Jason’s.

There was cross-examination of Mr. Lakepa’s as to the basis of his decision to grant the visa, and the extent of his knowledge of the contents of the brown file.

The submission on behalf of the Accused is that the evidence discloses no arbitrary act, no act prejudicial to Mr. Lakepa, and no abuse of the authority of the Accused’s office.

Is there evidence on which the assessors might conclude that the Accused’s act was arbitrary? An arbitrary act is an autocratic act, an act not guided by the normal procedures but by the “whims and fancies” of the accused (Jesuratnam J in State v. Humphrey Kamsoon Chang Crim. Case No. 8/1991, Sadal J in Tomasi Kubunavanua v. the State Crim. Case No. 0004.1992L).

On the facts before the court, it is for the assessors to decide whether the Accused’s conduct in visiting the airport to facilitate Mr. Lam’s entry into Fiji, was an arbitrary act, or simply part of his responsibilities as an employee of the Immigration Department. Certainly, the conclusion the assessors reach will depend on their assessment of the evidence.

Similarly whether the act was in abuse of the authority of his office, or whether he was simply doing his job is a question for the assessors. The prosecution will argue that his visit was an unnecessary interference with the work of Mr. Lakepa, and an act motivated by the Accused’s association with Jason Zhong and his wife Diane Yuen. The defence will argue that he went to prevent a recurrence of the events of November in Nadi, when Mr. Lam was wrongly deported from Fiji. It will be for the assessors to make up their own minds on the issue. Certainly any personal motivation the Accused might have had for his visit to the airport, is relevant to the question of whether he acted in abuse of office. As the Supreme Court said in Beniamino Naiveli v. State CAV0001 of 1994:

“Central to the commission of an offence under s.111 is the doing or directing to be done of an arbitrary act “in abuse of the authority” of the accused’s office. What differentiates something done in abuse of office from something not done in abuse of office in many cases will be the state of mind of the accused. An act done or direction given which is otherwise within the power or authority of an officer of the public service, will constitute an abuse of office if it is done or given maliciously with the intention of causing loss or harm to another, or with the intention of conferring some advantage or benefit on the officer.”

Abuse of office, is a descendant of the common law offence of misconduct in a public office. Of that offence, Lord Widgery CJ said in R v. Llewellyn Jones (1967) 51 Cr. App. R. 4 that:

“If the registrar of a county court when exercising his power to order payment out of court money held on behalf of a beneficiary, were to make an order in expectation of some personal benefit which he hoped to obtain and in circumstances where, had it not been for the personal benefit, he would not have made the order, that would be an example of misconduct in a public office ...”

Certainly there is relevant and admissible evidence on the basis of which the assessors could conclude that the Accused acted in abuse of the authority of his office.

Finally, there is evidence that Mr. Lakepa’s interests and rights were prejudiced. He said in evidence that the Accused interfered with his duties and that he wanted to seize Mr. Lam’s travel documents but he was stopped from doing so by the Accused. He said that he issued the visa after checking the documents, but that he did so because the Accused instructed him to do so.

Whether or not the assessors accept his evidence of prejudice is a matter for them after they have been directed on the law.

I therefore consider that there is relevant and admissible evidence in respect of each ingredient of the offence. There is a case to answer.

Nazhat Shameem
JUDGE

At Suva
17th August 2005