State v Bola [2005] FJHC 236; HAC0029S.2005S (22 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No. HAC0029 of 2005S

STATE

-v-

EMINONI BOLA

Hearing: 15th – 18th August 2005
Sentence: 22nd August 2005

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

SENTENCE

Eminoni Bola you have been found guilty, after a trial, of the offence of abuse of office. On the 15th of December 2003, you were the Manager, Compliance and Investigations at the Immigration Department and you personally went to the Nausori Airport to ensure that Hon Keung Lam was not refused entry into Fiji. You usurped the authority of the Immigration Officer on duty, and you acted in breach of immigration regulations for your own personal motives. You were motivated by your friendship with the local sponsors of Mr. Lam, one Jason Zhong and one Diane Yuen.

The sponsors were your friends and you had received donations from them, for your church.

The abuse of your office in this circumstance was a serious matter. All public officers are expected to operate a level playing field. We do not have different rules for our friends and relatives. Nor do we show favour to some members of the public because they have given us donations to our church or community. The “who you know” culture leads to unfairness, lack of uniformity in public service conduct, and creates a sense of injustice in those who have no powerful friends in high office.

Other cases of abuse of office, Humphrey Kamsoon Chang, Beni Naiveli and Tomasi Kubunavanua set a tariff of suspended sentences of between 9 months and 2 years imprisonment. The sentences appear to have been suspended because the courts recognize that the effects on a senior public servant of a conviction, is devastating. It means the end of a long, and often respected career in the public service, often with the loss of pension benefits.

In this case also, I do not believe that a custodial sentence is an appropriate sentence. I say this for several reasons.

Firstly, Hon Keung Lam was to receive a visa anyway. Both the Minister and the Director Immigration had in writing, agreed that if the passport of this visitor was genuine he should be given a visa. So your act did not involve a disobedience of their instructions, nor did you approve a visa against the rules and regulations.

Secondly, you did not personally benefit from this transaction. You were motivated by personal motives but that did not include any money paid to you personally.

Thirdly, you did in fact conduct a thorough investigation into the passport of Mr. Lam and it was only when you were satisfied that his credentials were genuine that you recommended his entry.

These matters together with your long service to the Public Service, and the mitigation made by counsel including your family circumstances, persuade me that this is not a case for a sentence of imprisonment. In particular, I have heard the evidence of your three character witnesses. One was your son Captain Bola, and the other two were pastors of the Christian Outreach Church. I accept their evidence that you had led an otherwise honourable life and that you are dedicated to your family, your church and your community.

This is not a case for a conditional discharge. Discharges are only appropriate where the offender is not morally blameworthy, or where there has been only a technical breach of the law. This case falls into neither category. Your sentence must carry with it a measure of accountability, to reflect society’s disapproval of people who misuse their public office. For this reason also, I consider a suspended sentence to be inadequate.

I therefore sentence you to community work. You have consented to such an order. Section 3(2)(c) of the Community Work Act provides that where the offence is punishable by a term of imprisonment of up to 2 years imprisonment, the court may order community work from 20 hours to 200 hours under the supervision of the appropriate probation officer.

I order that you perform 100 hours, under the supervision of the Probation Officer, Suva. You must report to him/her within 72 hours of this sentence. The 100 hours must be performed within 6 months. A report of your performance must be submitted to me on an interim basis after the service of 50 hours, and finally after 100 hours. A breach of this order makes you liable to prosecution and/or the cancellation of this sentence. I also order that you pay a fine of $2,000.00 which you must pay within 28 days. I consider that you have the means to pay this amount having heard from counsel on your income and benefits. If you do not pay within the 28 day period, you must serve a term of imprisonment for 3 months. A copy of this sentence is to be given to the Probation Office today.

Nazhat Shameem
JUDGE

At Suva
22nd August 2005