Republic v Anterea [1999] KIHC 36; HCCrC 13.98 (10 August 1999)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrC 13/98

THE REPUBLIC

versus

TOTENE ANTEREA

Mr D James for the Republic
Ms J Fleer for the Accused

Date of Hearing: 4, 8 June, 7 July, 4 August 1999

JUDGMENT

The accused, Totene Anterea, has pleaded not guilty to the following charge:

Statement of Offence

FRAUDULENT EVASION of import customs duties contrary to section 134(2)(f) of Customs Act 1993

Particulars of Offence

TOTENE ANTEREA on or about 23 May 1997 was knowingly concerned in a fraudulent evasion of import duties at Betio.

The Republic alleges that on or about 23 May 1997 the accused, an examining officer with Customs, deliberately certified as correct a bill of entry which he knew had understated the import duties payable on 3 motor vehicles, in order to assist the importer, George Langston, to evade payment of the proper duties. One of the vehicles was sold to the accused's wife. It is alleged that both the import levy and the import duty had been understated.

As regards the import levy, the measurements of the 3 vehicles in cubic metres, as shown on the bill of entry, were respectively 10.38, 10.38 and 9.152. The bill of entry incorrectly showed a total measurement of 20.75, whereas the correct total should have been 29.912. Each cubic metre carries an import levy of $25, so that the total import levy is arrived at by multiplying the total measurement by 25. The levy shown on the bill of entry is $519, whereas the correct levy should have been $747.80.

With respect to the import duty, the bill of entry shows the duty payable on the 3 vehicles as respectively $502.40, $502.40 and $500.00. The sum of those duties is wrongly stated as $1,004.80, whereas the correct total should have been $1,504.80. The allegation goes that the accused, as Examining Officer, signed the bill of entry as having been checked, and also signed as authorising officer for the release of the cars. As a result, it is alleged that an amount of $728.80 in import duty and levy was fraudulently evaded.

The first prosecution witness was Kautuna Kaitara, Comptroller of Customs. He testified that in 1997 the accused worked for Customs as an examining officer (longroom). An examining officer checks a bill of entry to see if the particulars are correct and, if so, signs it. In a situation where an examining officer had an interest in the goods, he could still examine the bill of entry. However, he could not also be involved as the release officer, which is a post held by a different person – a landing officer. In a very exceptional case where there were no other customs officers available, the examining officer might be able to certify the goods for release, but only on the authority of a Senior Examining Officer. The witness said that that requirement would have been known to the accused, not only because of his job description but because he had been a Customs officer for a long time. In 1997, the Senior Examining Officer to whom the accused reported was Tonganibeia Tamoa.

The witness examined the bill of entry in question (exhibit A1) and confirmed that the accused had signed it both as examining officer and release officer. He pointed out the errors in the import levy and import duty which have already been mentioned. As regards the import duty, the witness stated that the individual amounts of duty shown on the bill of entry are correct, but that the addition was wrong.

The third or last item on the bill of entry was a "Toyota Carina Sprinter". No allowance had been made on the document for the import levy and import duty chargeable on this vehicle, and that accounted for the difference between the total amount payable as shown on the bill of entry ($1,525.80, which included rent charge of $2) and the total amount that was in fact payable ($2,254.60). The witness said that this last item had already been listed on the document when it was examined by the accused and had not been written in later. He was able to say this because the handwriting was the same for all 3 items, and because there is written on the bill of entry under the heading "Total number of packages in words" the words "Three Units".

The witness also produced copies of 2 letters written by the accused to the Secretary of Finance and Economic Planning dated 25 July 1997 and 17 September 1997, both of which were copied to him (exhibits B and C). Those letters are worded as follows:

"25 July 1997

Secretary

Ministry of Finance and Economic Planning

BAIRIKI

Attention: Mr Bweitu

Dear Sir

SUSPECTED FRAUD – B/E 1887/97

Thank you for your letter Staff in Confidence dated 2 July 1997 just received today 2 July 1997.

In relation to the above caption, I understand that the said entry was signed by myself as B/E Examiner. It is my duty to check and sign such entries as to authorise the release of imported goods. In fact I was confounded to receive this confidential letter coming from your side without prior acknowledgment on the case at the first instance.

It seems to me that there has been an alleged attempt being set against me as it is seen in the rush conclusion of divulging the matter.

The anonymous informer should show some degree of sensibility by having a brief consultation on the matter in order to allow the importer to make the shortpayment right away. On the other hand the decision of the informer is purely an allegation on my part and on the part of the importer.

I admit however that the mistake occurred at the time I was fully occupied with many customers who rushed in with their entries to be signed at that last day of work. As we are all human machines, we are all vulnerable to such silly accidents. The cashier was not present at that time so I called on Miss Anee to assist the customer in receipting their payment before the cashier comes.

Would you kindly understand that I have no personal conspirational intention to make fraud to Government revenue. Such a case is purely an accident which has roots in carelessness.

To further clarify the case, stamping and signing of entries for the release of goods are can also be done by officers from the longroom. This only happens when there is no officer available at the landing.

In this particular case, I signed and stamped the aforementioned entry on the ground that no officers were available at the wharf. I felt obliged to do such duties because I am eligible to do so particularly at that rushing hour at four in the afternoon. On the other count I don't understand why was the last item not paid.

My only assumption was that the cashier did not have proper time to thoroughly work on the whole figures on each item. If the cashier did go through the whole proceeding carefully, should he/she discover the error, he/she would have instantly make appropriate corrections on the payment. Since then, it is my sole fault for not double checking this entry properly under such circumstances aforesaid.

However, realising that I am responsible for the entire mistake, I am more than willing to recover the amount of $728.82 involved in the shortpayment of duty and levy.

I acknowledge this obligation as a great lesson to me, and I believe that a mistake of this nature will never happen again on my part as B/E Examining Officer.

I hope this brief explanation on this case would meet to your satisfaction.

Ko rabwa.

(Sgd) Totene Anterea

EXAMINING OFFICER

cc Comptroller of Customs

BETIO"

"17 September 1997

Secretary for Finance & Economic Planning

Bairiki

Attention: IOTEBWA REDFERN

Dear Sir

RE: Suspension from duty on alleged Fraud Charges

Refer to your staff In Confidence letter dated September 3, 1997 relating to the above caption.

2. From the outset, it is rather disturbing to note that the reason for my suspension from duties was not stated in your aforementioned letter despite the explanations conveyed to you in my letter of July 25, 1997 in response to your earlier letter dated July 2, 1997 and whilst it is not within my sphere of discretion. I am further saddened for having not been given the least courtesy of an audience with you or the comptroller of customs on this decision that you have eventually reached. Needless to say, and for the purpose of the record and copied addresses, I should like to state and reiterate here and now the circumstances leading up to the alleged charge. A copy of my letter dated July 25, 1997 is attached for ease of reference but nevertheless, let me state as follows:-

2.1 First and foremost, the verification and receipting of payments are completely outside my area of jurisdiction as these are naturally handled by cashier. I might have erred in my calculations but it is important to note that every single item to be release was clearly identified on that B/E with their corresponding rates of duty and resulting error in my calculations could have been attributed to that rushing hour at four in the afternoon of the last day of work which no-one but myself attending to our ever demanding customers.

2.2 On the other hand, I don't have the least idea why was that last item not paid for. It may well be that rush hour may have also had psychological impact on the attending cashier hence the whole mis-verification and oversight as well.

2.3 On reflection though, it is dishearten to observe the case and swiftness with which this disciplinary action is imposed against me despite the existence of numerous other similar alleged charges, more serious than this, still pending decision. One such case in mind involves an officer who have never been suspended pending police investigation, or in the hand of AG's office, now seems to be a thing of the past!! If this can be done, why am I being victimised? This must not be misconstrued as a deliberate act to discredit my fellow working colleagues, but in the name of fairness, consistence and ethical professionalism.

2.4 There have also been occurrences in the past where incidences of shortpayments were belatedly discovered by internal auditing and importers are summoned to make the difference. And they do as they also do not hold conspirational intentions to defraud government. As for myself, that is not part of my professional ethics, very much unlike some of my fellow colleagues who have had their hands tarried with acts of duty evasion!

Having said all of the foregoing, although I am tempted to proclaim, disclose more, I would now contend myself to the decision now imposed on me (and my family) and let me ask you of one favour and that is, if and when police investigation are complete please let me know of the outcome and have it put before a court of law at the next immediate session.

I hope the gist of this letter is to clarify more things which I bestow in my heart, and should you need more, I am more than obliged to assist.

(Sgd) TOTENE ANTEREA

cc: Comptroller of Customs, Betio

Commissioner of Police, Betio

Permanent Secretary, PSO, Bairiki

Secretary, PSC, Bairiki

Auditor General, Bairiki

Chief Accountant, MFEP, Bairiki

Permanent Secretary, MESD, Bikenibeu"

The second prosecution witness was a woman named Borenga Tiikana, who was married to the accused at the time of the alleged offence but is now divorced. She testified that in 1997 she purchased a dark blue Toyota Sprinter car from George Langston. She borrowed the sum of $2,000 and gave it to her husband to buy the car.

The third witness for the prosecution was Tonganibeia Tamoa, who in 1997 was the Senior Examining Officer in charge of the longroom at Betio. He said that the accused used to work under his direction and that he had worked with the accused for just over 10 years. The witness testified that the accused was an examining officer in the longroom whose duty was to check and sign bills of entry. The actual release of the goods was done by the examining officer in the landing section. The two positions are performed by different persons. If circumstances arise where an examining officer has to also act as the release officer, for example where no other officer is available, then he, the witness, would need to be first informed. The witness said that it would not look good if the accused were to act as both examining officer and release officer and he thought that the accused knew that he should be informed if that was going to happen. The witness stated that in relation to the transaction in question, the accused did not ask his permission to act as release officer.

The witness produced a Job Description which sets out, amongst others, the duties of Senior Examining Officer (Longroom), Examining Officer (Longroom) and Examining Officer (Landing) (exhibit D).

The fourth prosecution witness was a man named Ueantabo Tatoa, who purchased one of the other motor vehicles mentioned in the bill of entry. He said that the wife of the accused purchased another of the vehicles and a person named Ntiua purchased the third. The witness paid George Langston $5,000 for the motor vehicle but one or two weeks later Langston asked for another $500. The witness said that he spoke to the accused and told him that he did not want to be the only one to pay an extra $500 but that the other two purchasers should also have to pay. The accused told him that he would "keep an eye out" for whether or not Langston was going to insist on the extra $500. The witness gave the $500 to the accused, not to Langston. His car was later released from Customs. He did not know what the accused did with his $500.

The fifth prosecution witness was Susan Tabutoa, a Customs Officer, who in May 1997 was an examining officer at the wharf with the duty of releasing cargo. Two Preventive Officers working with her also were able to release cargo. She said that if there were no officers at the wharf an officer from the office could sign and stamp the bill of entry to release the goods, but this was quite rare. The witness examined the bill of entry (exhibit A1) and stated that the round stamp on it with the words "OK to release" was a date stamp from the main office and was not the stamp used by the examining officer at the wharf. She recognised the signature on the stamp to be that of the accused.

In cross-examination, she agreed that a Preventive Officer had the same authority to release goods as herself.

The sixth and last witness for the prosecution was Ane Naunta, who joined the Customs Office in 1996. She is a Preventive Officer but also assists in the office as a cashier when the regular cashier is not available. She remembered a day when she was at her station in the computer room when the accused called her and told her she had a customer. She went to the cashier's office and picked up a bill of entry that was ready to be paid. The importer was standing on the public side of the counter. However, it was the accused who handed her the money to pay the duty. She did not know why the accused did this because usually it is the importer who pays the duty. She issued a receipt to the importer. She identified the bill of entry exhibit A1 as the one concerned in the transaction. She did not know at the time that the payment was not for the correct amount. The only check she made was to add the 3 figures representing respectively the total import duty, the rent charge and the total import levy.

In cross-examination, she said that she did not add up the individual import duties for the 3 vehicles because the bill of entry had been through other channels and should have been checked already. It also emerged from her answers in cross-examination that although the afternoon had been busy, when the importer George Langston had come to the counter there had been no other customers waiting, and that was why she had been at her station in the computer room. She also agreed that she was the one who had first discovered the underpayment of duty while carrying out a monthly check of the duty paid on bills of entry for the previous month. She said that it was rare to find a mistake, perhaps 2 per month.

When re-examined, she stated that Kautuna, the first witness, was in his office that afternoon. She did not know where was Tonganibeia, the third witness, but he was not in his office.

At the close of the case for the prosecution I found that a prima facie case had been established. In accordance with section 256 of the Criminal Procedure Cold Cap. 17, I explained to the accused the options open to him. He elected to remain silent and to call no evidence.

Before considering the evidence I must direct myself that the burden of proof beyond reasonable doubt remains upon the prosecution from first to last. The prosecution must prove the charge and each element of the charge beyond a reasonable doubt and if it fails to do so then the accused is entitled to be acquitted. There is never any onus on the accused to prove his innocence.

In order to discharge that burden of proof in the present case the prosecution must establish:

(i) that import customs duties have been evaded;

(ii) that such evasion was fraudulent; and

(iii) that the accused was knowingly concerned in such evasion.

There can be no doubt on the evidence that the prosecution have proved to the required standard the first-mentioned element of the charge. Indeed, the accused does not contest that duty was underpaid to the extent of $728.80.

The question then becomes: is it reasonably possible that the accused made an honest mistake in certifying the bill of entry as correct? If the answer is yes, then the prosecution have failed to prove the charge beyond a reasonable doubt. If the answer is no, then it follows that the evasion of duty was fraudulent and that the accused was knowingly concerned.

The bill of entry was filled out by the importer, George Langston. Even a quick glance at the document would reveal that the measurement of the third vehicle listed therein has been excluded from the total measurement used to calculate the amount of import levy to be paid. Similarly, it can be easily seen that the import duty for the same vehicle has not been included in the total duty to be paid. Two such elementary errors in the same document and in relation to the same vehicle must surely be very unusual. However, Langston is not on trial here, and I make no finding in respect of his involvement or otherwise.

The Customs officer who examined the bill of entry and signed it was the accused. As examining officer, it was primarily his responsibility to ensure that the particulars shown on the document were correct. In certifying that this was so he overlooked not one, but two discrepancies, and these were the same obviously incorrect additions that the importer had made.

In his letters to the Secretary of Finance (exhibits B and C) the accused sought to explain his omission as an honest mistake caused by the pressure of having to attend to many customers who were "rushing" to have their entries signed. In the letter exhibit C he puts it down to "an error in my calculations". The discrepancies in the bill of entry are so obvious that I cannot accept that anyone checking the figures by making calculations could possibly fail to detect them, especially if that person were an experienced examining officer with at least 10 years service in Customs.

The facts are in conflict with the explanation offered by the accused in his letters. The officer who was standing in for the cashier on that particular day gave sworn evidence that when the importer was at the counter there were no other customers waiting. Moreover, the bill of entry was not just one of a serious of documents that the accused claimed he had to deal with on that day. The evidence was clear that he had an interest in that particular transaction and had been involved in it from the very beginning. His wife had made arrangements to buy one of the cars being imported. In her evidence, she described the vehicle as a Toyota Sprinter, a description which corresponds to the third vehicle listed on the bill of entry, in respect of which no import levy or duty had been included in the total amount payable.

Apart from his wife's evidence, there was evidence from a purchaser of one of the other vehicles that he had not only discussed the importation of the cars with the accused but had given him money to pass on to the importer. There was also evidence that when the importer came to pay the duty it was not he, but the accused, who gave the money to the cashier. Finally, the accused himself acted as the release officer, and there was evidence from the Comptroller of Customs to say that he should not have done so without the authority of a senior officer, given the circumstances that he had an interest in the transaction and had already been involved as examining officer.

All of those facts were not contradicted and I am satisfied beyond a doubt that they are true. That being the case, it could not be mere coincidence that the accused came to certify as being correct a defective bill of entry that concerned a car his wife was buying, that he happened to be the one who handed the money for the duty to the cashier when the importer came to clear the goods, that he also happened to authorise the release of the cars, and that the cars came to be released without the proper duty being paid.

The answer to the question posed earlier must obviously be no, it is not reasonably possible that the accused made an honest mistake.

The only reasonable conclusion that can be drawn from the facts is that the accused was knowingly concerned in a fraudulent evasion of import customs duties. I am therefore satisfied that the prosecution have proved the charge beyond a reasonable doubt. The accused is found guilty and convicted accordingly.

THE HON R B LUSSICK
CHIEF JUSTICE
(06/08/99)

SENTENCE

I am told that the accused is 39 years old and has 3 children by a previous marriage. He has since re-married. He worked for Customs for 17 years and there is nothing to say that he has ever come under notice before. As a result of the present offence he has lost his job.

I take all of those circumstances into account. However, in considering an appropriate penalty I must also take into account that this is not merely another case of someone seeking to evade paying the proper customs duty. This case is much more serious than that. The accused was able to commit the offence by breaching the trust placed in him by his employers. He used his position as a Customs Examining Officer to falsely certify as correct a defective bill of entry which, he knew, failed to state duty amounting to $728.80. There can be no doubt that his reason for doing so was to gain a financial advantage for himself and/or his wife.

The High Court has said on previous occasions that in the case of a breach of trust a term of imprisonment is inevitable except in very exceptional cases or where the amount of money stolen is small. This is the message that the High Court must continue to send out. The present case is one to which neither of the exceptions mentioned applies. What the accused did was a straight forward breach of trust. I find nothing by way of mitigation that can be said in the accused's favour other than that after having been detected he offered to repay the duty which should have been paid in the first place.

Considering all the circumstances, I think the appropriate penalty must be one of imprisonment. The accused is convicted and sentenced to 6 months' imprisonment. I note that the accused is presently on a course of medication for angina and I direct that a copy of the report from the Ministry of Health dated 9 August 1999 be provided to the prison authorities.

THE HON R B LUSSICK
Chief Justice
(10/08/99)