Republic v Yu - Judgment [2013] KIHC 13; Criminal Case 34-12 (4 March 2013)

IN THE HIGH COURT OF KIRIBATI 2013

CRIMINAL CASE NO. 34 OF 2012

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

WENJUNG YU
1ST ACCUSED

TETAAKE HOU
2ND ACCUSED

Before: Hon Chief Justice Sir John Muria

28 & 29 February & 4 March 2013

Ms Pauline Beiatau for Prosecution
Ms Taoing Taoaba for Accused

JUDGMENT

Muria CJ: The accused Wenjing Yu, has been charged with the Offence of failing to report currency exceeding the equivalent of $5,000.00 when leaving Kiribati, contrary to section 115(A) of the Proceeds of Crime Act. He pleaded not guilty to the charge.

On 19/3/12 according to Exhibit 1, the accused was to board a flight FJ230 at Bonriki International Airport. The accused was at the Departure Lounge, as with other passengers departing that day, checking in his luggages. At the Departure Lounge was Kaara Kannangaki whom I shall refer to as "Kaara" (PW1), an Immigration Officer on duty that day. Among his duties were checking and clearing outward passengers. He distributed Departure Forms to departing passengers. The Immigration Officer ran out of IMMIGRATION DEPARTURE FORM (and it is not disputed) and so he used the Immigration Arrival Form which he issued to outgoing passengers including the accused, crossing out the word "Arrival" at the top of the Form and writing thereon "Departure" in its place. The section on the Form where visiting passenger to fill in the purpose of visit was also crossed out.

One Tetaake, an I-Kiribati woman who was said to be the wife of the owner of Fair Price Company, came to Kaara and collected the Form on behalf of the accused. She filled in the form on behalf of the accused (there is no dispute that she did so on behalf of the accused). This Form is Exhibit 1. This was the Immigration Arrival Form, where the word "Arrival" was crossed out and instead the word "Departure" was written in the Heading of the Form. At the "Date of Arrival" in the body of the Form the word "arrival" was also crossed out and replaced with the word "departure." All the details of a departing passenger were filled in by Tetaake on behalf of the Accused.

The section in the Departure Form to declare being in possession of currency equivalent to AUD $5,000.00 was not on the Form for the accused to declare whether he had in his possession "currency of $5,000.00". Provision was also made, though handwritten, for the accused to indicate "Yes" or "No".

Having filled the Form, Tetaake gave the Form to the Immigration Officer (Kaara) together with the accused's Passport. Tetaake indicated on behalf of the accused that he had no money equivalent of $5,000.00 in his possession. The "No" was circled. Kaara then stamped the Passport and gave it back to Tetaake to give it to the accused. The Departure Stamp can be seen from a page in the accused's Passport bearing the date "19 MAR 2012". Beretekira (PW2) who works for Civil Aviation was one of the four officers on duty at the Screening Room at Bonriki Airport on 19 March 2012. At the screening room a sum of money equivalent to more than AUD$5,000.00 was discovered in the accused's possession. The accused was not permitted to leave the country. He was taken to the Police Station, arrested and interviewed.

The prosecution evidence came from six witnesses: Kaara Kannangaki (Immigration Officer) Beretekira (Civil Aviation Security), Boata Tierata (Police Constable), Tabuaki Naititi (Customs Officer), Teaberua Taamite (Police Constable) and Taatoa Niito (Police Constable). The accused did not give evidence, although he did at the voir dire. No witness was called by the defence.

On the evidence before the Court, I am satisfied so that I am sure of the following:

1. The accused was leaving Kiribati and was due to fly out on Flight FJ230 on 19/3/12.
   
2. With the assistance of one Tetaake, the accused checked in at the Departure Lounge at Bonriki International Airport on 19/3/12.
   
3. The Immigration Desk at the Airport ran out of "Departure Form" and so had to resort to using the Arrival Form with the necessary modification including crossing out the word "Arrival" and writing thereon the "Departure".
   
4. The accused was given one of those such Form and filled on his behalf by Tetaake with all the necessary details for departing passenger (accused).
   
5. The accused indicated in the Form, through Tetaake, that he had no money equivalent to AUD$5000.00 in his possession.
   
6. At the screening room at the Departure Section, at the Airport, the sums of US$4,000 and AUD$4935.00 were discovered in the accused's possession. The amounts comprised as follows:
   

USD 3,000 in $100 Notes

USD 1,000 in $20 Notes

AUD 4,500 in $100 Notes

AUD 400 in $50 Notes

AUD 20 in $20 Note

AUD 10 in $10 Note

AUD 5 in $5 Note

7. The amounts of US$4,000 and AUD$4,935, the total of which exceeds AUD $5,000.00 had not been declared by the accused.
   

Then there is the fact that the accused did not deny having in his possession the amounts of money in USD and AUD discovered in his possession. The only explanation for having the amounts of money in his possession was that they were his salary. According to Boata's evidence, it was Mr. Hou (the accused's boss) who offered explanation for the money, saying that the money was the accused's salary.

Ms Beiatau submitted that the offence is an absolute one with strict liability. If the accused had the money in excess of the equivalent of $5,000, either he declared it or not. If he failed to do so, the offence is made out. Intention is irrelevant argued Counsel.

As to the use of Prescribed Form, Counsel submitted that the Form used by the Immigration Official at the Airport on that day still falls within the meaning of prescribed form as stipulated under section 115A of the Act. In any case, Ms Beiatau submitted, the failure by the accused to declare the amount in excess the equivalent $5,000 completes the offence.

On behalf of the accused on the other hand, Ms Taoaba argued that the use of prescribed form is an element of the offence and must be satisfied. Failure by the Immigration Authority to use the prescribed form means that one of the elements of the offence has not been satisfied and so the accused must be acquitted.

Ms Taoaba agreed that the offence is a strict liability offence. Nevertheless, Counsel submitted that the Form filled in by Tetaake on behalf of the accused was not a prescribed form and so that element of the offence has not been made out.

It is also obvious that at no time did the defence dispute the fact that the accused had in his possession, as he was about to leave the country, USD4,000 and AUD4,935. The defence case is simply that the declaration must be made by the accused on a prescribed form. In the absence of such form, the accused cannot be guilty of failing to make the declaration as required by section 115A of the Act. Section 115A(1) of the Act states as follows:

"(1) A person leaving or entering Kiribati with an amount of cash (in any currency) exceeding the equivalent of $5000 (or such higher amount as may be prescribed by regulation for this section) shall, immediately before leaving or entering Kiribati, as the case may be, declare such amount in the prescribed form to an authorised officer stationed at the port of departure or arrival.

The language of the provision admits no doubt that the offence is one of strict liability. As such no mens rea is required to be established. The concession by Ms Taoaba that the offence is an absolute one is therefore proper.

On the argument regarding the use of the prescribed form, I am not attracted to the argument proferred by Counsel for the accused. In my view, the offence under section 115A(1) is committed when the accused fails to declare that he has in his possession currency exceeding the equivalent of $5,000. The prescribed form is simply the means by which the reporting is to be made to the authorized Officer at the point of departure or arrival.

The requirement is to declare the amount and that must be made in the prescribed form which in the Departure Form used by passengers departing the country. There is a section in that prescribed Departure Form where the outgoing passenger must declare if he/she has in his/her possession currency exceeding the equivalent of $5,000.00. In this case it was perfectly proper for Kaara to use the Arrival Form, crossed out the word "Arrival" and to write "Departure" in its place and used it for the purpose of asking the accused if he had currency in excess of $5,000 in his possession.

To accept the argument of Counsel for the accused would mean that, if the accused was leaving Kiribati with a million dollars in his possession he needed not report or declare it since the Immigration Authority ran out of Immigration Departure Form. To accord Section 115A(1) with such an interpretation would, in my view, be preposterous since it would defeat the whole purpose of the law under that section.

On the evidence before the Court, I am satisfied so that I am sure that the accused contravened section 115A(1) of the Act. That is an offence. I find him guilty of the offence of failing to declare currency exceeding the equivalent of $5,000 as charged and I convict him.

Dated the 7th day of March 2013

SIR JOHN MURIA
Chief Justice