Fiji Independent Commission Against Corruption v Mau [2011] FJHC 209; HAC089.2010 (12 April 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC089 of 2010

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

V

1. TEVITA PENI MAU
2. MAHENDRA MOTIBHAI PATEL
   

Hearing: 14 March – 6 April 2011
Summing up: 11 April 2011
Judgment: 12 April 2011

Counsel: Mr. N. Marasinghe & Ms S. Sanmorgan for FICAC
Mr. D. Sharma for 1st Accused
Mr. H. Nagin for 2nd Accused

JUDGMENT

[1] The majority opinions of the assessors are that the first accused is guilty of abuse of office as charged on count 1. The unanimous opinions of the assessors are that the second accused is not guilty of abuse of office as charged on count 2.

[2] I adjourned overnight to consider my verdict. Under our system of criminal justice, the assessors express opinions, but the trial judge gives the verdict. I have regard to the opinions of the assessors, but I am not bound by their opinions. The ultimate responsibility lies with me as the trial judge to evaluate all the evidence, make my own findings of fact and reach my own conclusion as to whether the charges against the accused persons have been proved beyond reasonable doubt by the prosecution.

[3] I direct myself in accordance with the law and the evidence contained in my summing up.

[4] Both accused persons are charged with one count each of abuse of office. The offence of abuse of office requires proof of the following elements:

1. The accused was employed in the public service;
   
2. He did an arbitrary act;
   
3. He acted in abuse of authority of his office;
   
4. The act was prejudicial to the rights of another.
   

[5] It is not in dispute that at the relevant period, both accused persons were employed in the public service. The remaining elements are in dispute.

[6] Albeit the accused persons are separately charged, the charges involve a common subject matter, that is, the manner in which an exterior clock was purchased by Post Fiji Limited from Motibhai & Company Limited.

[7] It is not in dispute that Post Fiji Limited purchased an external Seiko clock for $75,000 from Motibhai & Company Limited. The first accused was the managing director of Post Fiji Limited while the second accused was the chairman of the Board of Directors for Post Fiji Limited when the clock was purchased. The second accused is also the chairman of Motibhai & Company Limited. These are undisputed facts.

[8] The arbitrary act alleged against the first accused is that he approved the purchase of the clock without calling for tenders. The prosecution led evidence that the procedures at Post Fiji Limited required tenders to be called for any purchase exceeding $10,000 in value. The clock was purchased for $75,000 without calling for tenders. The prosecution submits that the first accused acted unreasonably, despotically, in accordance with his wishes by not calling for tenders.

[9] The first accused admits that tenders were not called for the purchase of the clock. In his caution interview and in his evidence, the first accused said that the purchase of the clock was part of the capital expenditure for the second phase renovation of the GPO building that was approved by the Board of Directors on 2 April 2003. He said that since the Board had approved the capital expenditure and that the clock was being purchased from the approved capital expenditure fund, there was no need to call for tenders.

[10] The evidence led by the prosecution is that when the first accused presented the Board Paper 30/2003, to seek the Board's approval for a further capital expenditure of $800,000 for the GPO renovation, there is no mention of a clock. The clock only appears in the Board Papers after June 2003, by which time local purchase order had already been issued to Motibhai & Company Limited to supply the clock.

[11] It is apparent from the Board Paper 30/2003 that the purchase of the clock from Motibhai & Company Limited was not approved by the Board of Directors on 2 April 2003. The first accused obviously knew that the Board had not approved the purchase of any clock on 2 April 2003. I also find that the first accused did not have an honest and reasonable but mistaken belief that the purchase of the clock was part of a capital expenditure approved by the Board.

[12] I accept the evidence of the procurement officer, Luke Narara that the Logistics Management Procedures contained in the Post Fiji Corporate Governance Manual applied to the purchase of the clock. It does not matter that the Manual was not approved by the Board of Directors or the Ministry of Public Enterprises. What matters is that the procedures were accepted to be applicable at the relevant period.

[13] I am further satisfied that the exceptions for the tender procedures did not apply in this case. I do not think the need to install the clock before the South Pacific Games or the fact that Prouds was the sole agent for Seiko clock in Fiji were circumstances to justify deviating from the tender procedures. I feel sure that the first accused acted despotically by not calling for tenders for the purchase of the clock.

[14] In his caution interview, the first accused denied any knowledge of the existence of the Manual that contained the tender procedures. The evidence of Susana Naiwasetawa is that on 8 April 2003 the first accused himself issued a circular to all the staff to understand the Manual. I find the denial of knowledge of existence of the Manual was a deliberate lie.

[15] Whether the first accused acted with an improper motive depends on acceptance of Adish Naidu's evidence. Naidu's evidence is that the first accused told him that the second accused wanted to supply the clock. The first accused denies saying this to Naidu. Naidu's evidence proves the motive of the first accused.

[16] I approach Naidu's evidence with caution. He is a witness who may have some purposes of his own to serve. Naidu was the supervising architect for the renovations of the GPO building. He had budgeted $75,000 for an exterior clock in his working cost summary document dated 10 April 2003 and had calculated 9.05% fee on that amount. He had been in contact with Motibhai & Company Limited since December 2002 for an exterior clock. He had made previous statements that conflict with his evidence in court.

[17] I observed the demeanour of Naidu when he gave evidence. In my mind there is no doubt that Naidu gave truthful evidence in court. I find that the inconsistencies arising from his previous out of court statement are immaterial and insignificant.

[18] Naidu felt obliged to follow the suggestions of the first accused. For Naidu, both accused persons were senior executives of Post Fiji Limited. Naidu was given the project after his tender was approved by Post Fiji Limited. There was a working relationship between Naidu and the senior executives of Post Fiji Limited. When the first accused said to him that the second accused wanted to supply the clock, Naidu felt obliged to comply with the suggestion. He facilitated the clock from Motibhai & Company Limited because in his mind that is what both accused persons wanted him to do.

[19] The motive of the first accused is clear. He wanted to confer a favour to the chairman of the Board of Directors and I feel sure that this was his motive when he deviated from the tender procedures, to approve the purchase of the clock for $75,000 from Motibhai & Company Limited.

[20] I accept the evidence of Narara that the interests of Post Fiji Limited were placed at a disadvantage by the first accused. Post Fiji Limited was denied an opportunity to consider other sources of an external clock and the procurement office was denied of its responsibility to purchase the clock using proper procedures.

[21] I am satisfied of the guilt of the first accused beyond reasonable doubt and I convict him on count 1.

[22] The second accused is charged with abuse of office for a personal gain, which makes his charge a felony.

[23] The arbitrary act alleged against the second accused is that he authorized the purchase of a clock from Motibhai & Company Limited in which he has a significant financial interest without declaring his interest to Post Fiji Limited.

[24] The prosecution relies on the evidence of Naidu to prove that the second accused approved the purchase of the clock from Motibhai & Company Limited. The second accused in his evidence denies telling Naidu that he wanted to supply the clock. He said that he was not aware that the clock was being purchased from Motibhai & Company Limited until he saw the Board Paper 35/2003 in June 2003. He said that by this time the decision to purchase the clock from Motibhai & Company was already made by Post Fiji Limited.

[25] The second accused gave evidence of his good character which of course is relevant to his credibility and to the likelihood of his having committed the alleged offence at all. I have had significant regard to the fact that the second accused bears good character. I also bear in mind that all persons who hold senior executive positions in government entities will be persons of good character. The good character evidence in my judgment does give the second accused an advantage when it comes to assessing his credibility over that of the prosecution witnesses. But the good character evidence has not created a doubt in my mind in this case either on credibility or on the likelihood.

[26] As I have said earlier, Naidu felt obliged to comply with the suggestions of the senior executives of Post Fiji Limited because he was given the tender for the renovation of the GPO building. He struck to me as a genuine and honest witness although he appears to be a person who pleased others.

[27] I accept Naidu's evidence that the second accused expressed a desire to supply the clock and that he directed Naidu to one Bhupendra Patel of Motibhai & Company Limited. I find the second accused's evidence that he only came to know that the clock had been purchased from Motibhai & Company Limited in June 2003 implausible.

[28] I accept the evidence of Powell that she was made to feel powerless when she questioned the second accused about the clock in a Board meeting. Her question and the second accused's response were not recorded in the minutes although she had requested that the issue raised by her be recorded.

[29] I accept the evidence of Kamikamica that the second accused told him that the clock was a gift. I find this to be a deliberate lie by the second accused to suppress the truth.

[30] I feel sure that the second accused directed the purchase of the clock for Post Fiji Limited from Motibhai & Company Limited. Naidu may have gained from the purchase by calculating a fee on $75,000, but on the second accused's own admission in court, Motibhai & Company Limited also made a profit of $1600. The issue is not how much profit was made, but that the second accused intended to make profit at the expense of Post Fiji Limited.

[31] It is not necessary for the prosecution to prove that the second accused has a significant financial interest in Motibhai & Company Limited. On the evidence before me I feel sure that the second accused is the controlling mind of Motibhai & Company Limited, him being the chairman of the company and one of the signatories to the company's bank account.

[32] I feel sure that the second accused deviated from the rules which required him to declare his interest when he authorized the purchase of the clock from Motibhai & Company Limited. The second accused said he had given a general notice of his interest in Motibhai & Company Limited in the first Board meeting of Post Fiji Limited. I accept that the second accused had made a general disclosure of his interest in Motibhai & Company Limited, but this general disclosure did not absolve him from his duty to declare his interest when he directed Naidu to purchase the clock from Motibhai & Company Limited.

[33] I feel sure that the second accused was motivated by corporate greed to increase his personal wealth by authorizing the purchase of the clock from Motibhai & Company Limited.

[34] I feel sure that the second accused personally gained from the transaction between Post Fiji Limited and Motibhai & Company Limited. It is irrelevant that Post Fiji Limited received a quality clock or had not lost anything from the transaction. The issue is whether the second accused benefitted from the transaction by putting the interests of Post Fiji Limited at a disadvantage. I feel sure that the interests of Post Fiji Limited were put at a disadvantage by the second accused.

[35] I am satisfied of the guilt of the second accused beyond reasonable doubt and I convict him on count 2.

Daniel Goundar
JUDGE

At Suva
12 April 2011

Solicitors:
Fiji Independent Commission Against Corruption for Prosecution
Messrs. R. Patel Lawyers for 1st Accused
Messrs. Sherani & Co. for 2nd Accused