Republic v Loo [2012] KIHC 17; Criminal Case 42 of 2011 (15 June 2012)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 42 OF 2011

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

LOMI LOO
ACCUSED

Before: Hon Chief Justice Sir John Muria

14 March 2012

Ms Tewiia Tawita for Prosecution
Ms Botika Maitinnara for Accused

JUDGMENT

Muria CJ: The accused Lomi Loo has been charged with six counts of offences under Customs Act and the Penal Code. The offences arose out of a shipment of a Container No. PDLU 3203501 from Pacific General Hardware Company in Fiji to Neo Tec Enterprises in Kiribati. The accused has been jointly charged with his co-accused Edward Narayan ('Eddie') who had been found by the Court to have no case to answer and had been acquitted. The accused Lomi Loo pleaded not guilty to all the charges. I shall refer to the accused as 'Lomi' in this judgment.

Brief Fact Background

It would be useful to refer to the brief background of this case. The accused Lomi met one Rajnesh Prasad ('Rajnesh') who is said to be the owner of the business in Pacific General Hardware in Lautoka, Fiji three years ago. At that meeting, they decided to do business with one another whereby Rajnesh would send a container of goods to Lomi in Tarawa, Kiribati. Subsequently, in or about 17 November 2010 Pacific General Hardware Ltd shipped the Container No. PDLU 3203501 to Neotech Enterprises. The Invoice and Bill of Lading documents in relation to the shipment were sent by Pacific General Hardware Limited to Neotech Enterprises with attention of Lomi, in Tarawa.

The Invoice dated 17 November 2010 (Exhibit 1(b)) shows: 100 x 50 kg bags Pig Weaner Pellet; 100 x 50 kgs bags Pig Grower Pellet; 280 x 25 kgs bags Pig Grower/Weaner; 100 x 50 kg bags CSR Sugar; 250 Cartons x 20 grams of Twisties; 20 only Assorted Tyres and 4 Carton & Sacks of Assorted PVC Pipe Fittings.

The Container arrived in Tarawa some time between 1 and 10 December 2010 on board the 'Southern Pasifika'. The shipper was Pacific General Hardware and Consignee was Neotech Enterprises. The goods in the container were declared as per the Invoice dated 17 November 2010.

Some time before 10 December 2010, Rajnesh came to Kiribati. On 10 December 2010, Lomi, Eddie and Rajnesh went to the customs Office and asked for the release of the cargoes in the Container. On that same day, two Customs Officers, Karaiti Kirara (PW1) and Teem Kotimwa (PW2) made a further check on the goods in the Container and discovered that inside the PIG GROWER bags were not pig food but rather, bags of sugar. A total of 475 bags of sugar had been put inside pig food and Punjas flour bags. These are the undeclared goods in the container and not in the Invoice.

Following the inspection, discovery and assessment of the undeclared goods (bags of sugar) duties were paid in the sum of $3,271.80, the receipt of which was issued in the name of Neotech Enterprises (Receipt No. 861732).

The Evidence

The prosecution called nine (9) witnesses. The defence called the accused, Lomi Loo.

The Assistant Customs Officer Karaiti Kirara (PW1) gave evidence that on 10 December 2010, which was a public holiday, Lomi Loo ("Lomi"), Edward Narayan ("Eddie") and Rajnesh Prasad ("Rajnesh") came to the Customs Office for purpose of releasing the goods in the container. With PW1 on the first inspection of the Container were Teem Kotimwa (PW2) and two other Customs officers. Armed with the three documents, Invoice No. 08862/2010, Bill of Lading No. SKP 027SUVCRW 005 and Import Entry, the customs Officers inspected the goods in the Container.

PW1 confirmed that the 100 bags of 50 kg sugar, four (4) bags of PVC fittings and 250 cartons of twisties matched the items in the Invoice and the Import entry form. Those goods were allowed to be released. The container was then closed at the request of Lomi, Eddie and Rajnesh. Later in the afternoon, Lomi asked the Customs officers to reopen the container for inspection, which was done.

PW1 stated that at that second inspection the Pig Grower bags were discovered to have bags of sugar in them, and not pig food. PW1 stated that following the discovery of the hidden goods that Lomi, Eddie and Rajnesh became afraid and made offers of assistance of $1,000.00 to the Customs officers, Karaiti and Teem, a saloon car and alcohol. PW1 further stated that Lomi, Eddie and Rajnesh took him and PW2 in a car to Bairiki with the idea of putting pressure and demands on them to help the three men escape their responsibility for the concealed goods.

Teem Kotimwa (PW2) gave evidence in the same manner as PW1. According to PW2, when they opened the container the second time, they saw what looked like re-packing of the goods. It was then that Rajnesh asked the Customs officers for help.

Kautebiri Kobuti (PW3), was the Customd Agent who cleared the Container for Neotech Enterprises. Anwe Nauta (PW4) was the Customs officer who signed off the Import Entry Form. Katarina Tokitebwa (PW5) was the Cashier who received and receipted the duty paid by the three in respect of the goods discovered. The receipt was issued in the name of Lomi's business Neotech. PW5 confirmed that the person who actually paid the duty was the "other person" who accompanied Eddie and Lomi. That other person was Rajnesh.

Iaokiri Koreaua (PW6) who was Acting Comptroller of Customs then, gave evidence of the three, Lomi, Eddie and Rajnesh, going to visit him and asking him for "administrative" help to resolve the matter out of Court. In particular, Lomi asked PW6 to help him because he had children. PW6 told the Court that the new assessment of customs duty was based on the re-packaging of the items found in the pig grower bags.

Karuaki Taubo (PW7) gave evidence also and said that Lomi approached him and offered to sell him sugar. He said that Lomi showed him the Invoices for the items in the container. PW7 declined to buy sugar from Lomi.

Kimoiona Merang (PW8) also gave evidence and told the Court that he was a businessman and that in December 2010 he and his family hosted a dinner for Eddie and his friend, Rajnesh. At that dinner Eddie introduced Rajnesh to PW8. At the dinner, Rajnesh offered to sell some of the goods that were coming in the container to PW8. Rajnesh showed the pictures of the items to PW8 who then noticed that the pictures of the pig grower bags transparently revealed bags of sugar in them. He refused Rajnesh's offer. As a former customs officer he would not accept Rajnesh's offer. Rajnesh confirmed to PW8 that the goods in the container belonged to him.

Senior Constable Ritang Teunaika (PW9) took the Caution Statement from Lomi. The caution statement was admitted in evidence with no objection.

The accused, Lomi, gave evidence on his own behalf. He said that he met Rajnesh in Fiji and said that he (Rajnesh) wanted to do business with him. Rajnesh told Lomi that he would be sending a container of goods to Tarawa and that he wanted Lomi to be his salesman in Kiribati. Rajnesh also advised Lomi that he would send the relevant documents through TSKL and that he would come himself to Kiribati and take care of all the costs involved. Lomi confirmed that the documents arrived via TSKL and that Rajnesh did come to Tarawa in early December.

After the discovery of the undeclared goods, and duty was assessed, Eddie, Rajnesh and himself (Lomi) went to the Customs Office to pay the duty. It was Rajnesh who actually paid the duty. This evidence confirms what PW5's evidence. The Receipt for the payment was issued in the name of Neotech.

Charges

The charge in Count 1 is that of knowingly evading payment of import duty contrary to section 107 of the Customs Act. There is in this offence the element of an intention to evade payment of duty by the person who is obliged to pay the duty. Thus, unless there is evidence to establish that the accused, Lomi, was the person obliged to pay the import duty and that he intended to evade payment of that duty, and did in fact evaded payment of the duty, he cannot be said to be knowingly evading payment of import duty.

The evidence in this case does not show that Lomi ordered the goods in the Container in question. In fact the evidence points conclusively on Rajnesh as the person responsible for bringing the goods into Kiribati. Having done so, he came specifically from Fiji to Kiribati to see that the goods arrived. He forwarded documents on the container and goods to Lomi. He had the means to pay the import duty and did in fact pay the duties on the declared goods as well as on the undeclared goods.

The evidence shows that Lomi was in effect the person to do the marketing or selling of the goods for Rajnesh. The packing of the goods were done in Fiji by Rajnesh or his company. Lomi had no part in the way the goods were packed in the Container while in Fiji. There is no evidence to suggest otherwise.

On the evidence before the Court, the accused, Lomi, cannot be said to be knowingly evading payment of import duty in this case. I find him, therefore, not guilty on Count 1.

With regard to Count 2 – concealing goods under customs control – the evidence speaks the same line as that mentioned in relation to Count 1. The goods, on the evidence before the Court, landed in Kiribati having already been packed in Fiji, in the container number PDLU 3203501. There is absolutely no evidence to show that Lomi knew about the bags of sugar inside the pig grower bags. The invoice sent by Rajnesh to Lomi for the purpose of clearing the container with the goods inside did not show that the pig grower bags contained sugar in them. The evidence showed that the discovery of the sugar in the pig grower bags was made here in Tarawa.

Consistent with his story that he did not know about the bags of sugar in the pig grower bags, Lomi only tried to sell the 100 bags of sugar as stated in the invoice to PW7. The only evidence that showed the pig grower bags containing bags of sugar came from PW8 whose evidence points to Rajnesh as the person who knew about the sugar inside the pig grower bags. It was Rajnesh who showed the photos of the pig grower bags to PW8. The pictures transparently revealed the bags of sugar inside the pig grower bags.

There is no evidence to demonstrate that Lomi concealed or had any part in the concealing of the goods concerned. The prosecution failed to establish this offence against the accused beyond reasonable doubt. I find the accused also not guilty of Count 2.

I deal with Counts 3, 5 and 6 together. Count 3 charges the accused with knowingly making false or misleading statement to Customs officers. The only evidence regarding delivering a statement regarding the goods in the Container to Karaiti (Customs Officer) came from PW3, the Customs Agent. He was the person who filled in the Import Entry form and delivered it together with the Invoice and Bill of Lading to Karaiti before 10 December 2010. No misleading statement was given by the accused to Karaiti on 10 December 2010. There is, therefore, no evidence to support a finding of guilt against the accused on this charge. I find him not guilty of Count 3 also.

Counts 5 (demanding property on forged documents) and 6 (uttering a forged document) are simply unsustainable. The prosecution leveled these charges against the accused and yet never led a stint of evidence to support them. This is bad prosecution practice. I find the accused not guilty of these two counts.

I turn to Count 4. This count relates to taking the two Customs officer, Karaiti and Teem from Betio to Bairiki wharf at night on 10 December 2010. The accused, Lomi, agreed he was the driver of the vehicle in which the two Customs officers together with Eddie and Rajnesh were. The two Customs officers were given lift and were supposed to be dropped off at their homes. Instead they were driven to Bairiki wharf.

On the way and at Bairiki wharf, according to Teem's evidence, Lomi was talking to Karaiti in Kiribati language. Rajnesh wanted more time to talk to the Customs officers with a view to obtaining their assistance and so instructed Lomi to drive all the way to Bairiki wharf. At Bairiki wharf, the "3 guys" continued to talk, to the two Customs officers asking them for help.

Although both Karaiti and Teem said that they were afraid, there was no evidence of any threat of violence on the part of the "3 guys". The evidence of Teem is that they decided to find ways to run away from the "3 guys" because they were fed up with the "3 guys" continuous asking for help.

Asked by Counsel for the accused if they thought of reporting to the near-by police station in Bairiki about the threat or intimidation from the "3 guys" the two customs officers said that they did not.

On the evidence, the Court is satisfied that no intimidation or threat exerted on the two Customs officers at Bairiki wharf on 10 December 2010. The evidence shows more of a continuous insistence of asking for help from the two Customs officers who got fed up and decided to escape from the"3 guys", Eddie, Lomi and Rajnesh.

The Court cannot, on the evidence before the Court, be satisfied beyond reasonable doubt that the charge of intimidation of Customs officers is made out against the accused, Lomi. I find him not guilty of Count 4.

In passing, I wish to observe that from the evidence before the Court, it must have been obvious to the investigation authorities that the main person at the centre of this case was Rajnesh Prasad. Yet he was allowed to leave the jurisdiction of this country. The two accused, Edward Narayan and Lomi Loo, were nothing more than conduits used by Rajnesh Prasad to do his biddings in Kiribati. It is hoped that the responsible authorities would be more vigilant so as not to allow such characters escape the arms of the law of the country.

The prosecution failed in this case to prove beyond reasonable doubt the charges brought against the accused on Counts 1-6. He is therefore found not guilty of all the charges and he is acquitted.

VERDICT: Not Guilty.
The accused Lomi Loo is acquitted on all Counts.

Dated the 15th day of June 2012

SIR JOHN MURIA
Chief Justice