Regina v Ofai [1990] SBHC 49; HC-CRC 11 of 1990 (1 October 1990)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 11 of 1990

REGINA

-v-

OFAI AND FIVE OTHERS

High Court of Solomon Islands
(WARD C.J.)

Hearing: 13 - 17, 20, 21, 22 and 30 August 1990
Judgment: 1 October 1990
Sentence: 1 October 1990

DPP for Prosecution
A. Radclyffe for the First Accused
T. Kama for the Second and Sixth Accused
P. Watts for the Third and Fourth Accused
J. Remobatu for the Fifth Accused

WARD CJ: The first accused in this case, George Ofai, was the chief purchasing officer for Solomon Taiyo Ltd and the prosecution case is that during 1988 and 1989 he wrote L.P.Os to various traders in Honiara for goods which were then passed to the remaining defendants. In order to do so, he had to write the LPOs as if they were normal orders from Taiyo and he was originally charged with 49 counts of forgery. Of those counts, he has pleaded guilty to some and there has been no evidence on others. As a result, the Court now needs to consider only 17 counts against him. Each of the remaining accused faces one charge of receiving stolen property, the property being the materials purchased with the LPOs.

It is convenient to deal with Ofai first and then to go on to consider the remaining accused.

The procedure for the issue of LPOs in Solomon Taiyo Ltd was explained by the prosecution witnesses. In brief terms, as the procedure is not in dispute, an order would be placed by an officer in one of the stations outside Honiara. That order would be transmitted to Taiyo in Honiara usually by way of an internal order but sometimes by other means. Ofai would then raise an LPO and obtain the goods which were sent back to the base that ordered them.

It is admitted that the LPO relating to each of the remaining charges was written and signed by Ofai and used to obtain the goods described in it.

The evidence of forgery depends on two witnesses, Gora and Jack. Mr Radclyffe, for the first accused, has commented on the manner in which two gave their evidence. Neither witness used any books and, on being presented with an LPO, told the court whether or not they had seen it or dealt with it. In a case such as this, that is unsatisfactory but I felt both these witnesses were honest. In their evidence, they, more than once, gave evidence that was favourable to the first accused. However, I have considered each count and, where the evidence against the first accused depends solely on their recall unsupported by any other evidence or consideration, I do not feel the count has been proved to the required standard.

The forty-ninth prosecution witness, James Baldwin Gora, is the workshop supervisor for Noro Base and, as such, is in charge of ordering all materials for Noro Base and some items for the catcher boats. All the counts remaining for consideration relate to orders from Noro and he was asked about each LPO in turn and he told the Court whether or not he had ordered the items.

The fiftieth prosecution witness, Paul Jack, is a purchasing officer with Taiyo in Honiara and was a subordinate of Ofai. He was responsible, amongst other duties, for arranging the loading of heavy stores. Thus he was asked about a number of the items and whether he had dealt with them.

In addition to these witnesses, the police gave evidence of interviews under caution with the accused.

The accused Ofai elected to remain silent and call no evidence.

It is necessary to go through each count separately.

Count 3 was for a large order for brass nuts and washers, ostensibly for Noro workshop. Gora stated he did not order or receive them. This is a large and unusual order and I am satisfied that, as workshop supervisor, he would have remembered it if it had been made.

Count 8 is an order for two freezers. Gora stated he did not order or receive them. On the other hand Jack stated there were many orders for freezers from Noro at that time. Despite the accused's admission to the police and the evidence of Atu, I am not sure this refers to the same freezer and I cannot be satisfied to the required standard that these were not properly ordered and delivered and the first accused is acquitted on count 8.

Count 11 refers to an order for parts for an Izuzu truck. Gora told the court he did put in that order and did receive the items. The first accused is acquitted on this count.
Count 15 refers to cement ordered for the smoking factory. Gora stated that such orders may have been made by the manager of the smoking factory. A number is quoted on the LPO which comes from the internal order book. The witness explained that, if he looked at that book, he could say whether he ordered it or not. No such book was produced. I cannot be satisfied on this count and the first accused is acquitted on this count.

Count 16 refers to an order for battery acid which Gora stated came through him and he received it. The first accused is acquitted on this count.

Count 22 refers to an order for louvre frames. Neither Gora nor Jack knew anything of this order.

Mr Radclyffe objects to the documentary evidence here because it consists of photocopies. The twenty-sixth prosecution witness, Henry Suri, worked at Bowman and he recalled the transaction. He told the court that the LPO was written by the first accused and presented by him. I am satisfied this was the case. However, there was evidence of building work at Noro base at this time involving similar materials. I cannot be satisfied Gora could recall this specific order. The first accused is acquitted on this count.

Count 24 relates to an order for battery acid and roofing iron. The witness from Tongs Trading who supplied the items referred to the first accused presenting the invoice and the goods being collected by someone else in a yellow or blue three ton truck. The LPO shows them as an order for Noro base but Mr Gora was not asked about these items. I cannot be satisfied, therefore, they were not ordered and delivered properly. The first accused is acquitted.

Count 25 is also an order from Tongs Trading the next day. Gora did not make this order or receive it. The order was for nails and masonite. The latter was 40 sheets which is a substantial order but I cannot be sure it was unusual enough or big enough for Gora to recall. The first accused is acquitted.

Count 32 was a very large order of nails and washers. Gora was not asked about the invoice. There is no other evidence of whether it is a proper order or not. The first accused is acquitted.

Counts 33 and 34 relate to orders from Tongs Trading made on the same day. They were written on the same day by the first accused and were collected by someone else in a blue or yellow truck. Count 33 is an order for 80 sheets of roofing iron and count 34 is for 40 sheets. Gora stated he had not placed those orders. They were the type of supplies Jack would have dealt with and he does not recall them either. I feel satisfied that such large consecutive orders would have been recalled and I am satisfied the first accused made such orders and they were not genuine.

Count 36 is an even larger order for roofing iron made 2 days later. Neither Ofai nor Jack recalled it. I feel they would have done so if it was genuine.

Count 37 refers to masonite and roofing iron. It was picked up by somebody else in a pick-up truck. Neither Gora nor Jack recall this order but I am not satisfied it is of such a size or type that they would necessarily do so and the first accused is acquitted on this count.

Count 38 involves a substantial amount of roofing iron. Gora told the court he did not make the order and Jack does not recall it. I am not satisfied they would have recalled such an order and the first is acquitted.

Count 40 refers to 20 sheets of masonite. When asked about this by the police the accused admitted giving the items to another person.

Count 45 refers to a clutch pump. This is an unusual item and I feel Gora would have recalled it if he had made the order. He told the court he did not and I accept that evidence.

Count 46 was an order for petrol and oil. The evidence of the nineteenth prosecution witness was that it was ordered by the first accused and collected by the second accused. However, he agreed he had earlier been unable to say to the police who had collected this order and I do not feel I can rely on his evidence on this point. Gora did not make the order. However, no evidence was led as to whether such an amount of petrol was an unusual order for a catcher boat and so I cannot be satisfied Gora would have recalled it and the first accused is acquitted.

On the facts, I am satisfied beyond reasonable doubt on the remaining counts, i.e. 3, 33, 34, 36, 40 and 45 that the accused did write these LPOs as alleged with the intent that they should be treated as genuine. That is forgery and he is convicted on these counts.

I now pass to the remaining defendants. Much of the evidence did not relate to them specifically. In each case, they were interviewed under caution by the police and frequently asked about their co-accused. I remind myself that each is entitled to separate consideration of the evidence that relates to him. Any admission in the statements under caution are evidence only against the maker of the statement and not against any other person referred to.

It is also clear that in each case, it is not possible necessarily to identify specific items to specific LPOs proved. The court may still be satisfied from the general nature of the goods, their receipt and retention or disposal that they were stolen goods. Equally, some of the items in the counts may not be proved to be stolen goods but, if some are proved, the accused may still be convicted on the count as a whole.

The second accused faces one charge of receiving stolen property which charges him with receiving a number of items between 1st January and 30th August 1989. Some of those items have not been proved to have been stolen but the court is entitled to convict on this count if it finds some only of those items have been stolen. It is necessary for the prosecution to prove beyond reasonable doubt that the items received were stolen and that, at the time he received them, the accused knew they were stolen.

The prosecution case here is that, whilst some of the items may be proved directly to be stolen, this is really a case where the circumstances are such that it is clear these are the items obtained by false LPOs and that the accused clearly demonstrated by his actions that he knew they were stolen at the time.

A number of witnesses told the court that they had been working for the second accused and, instead of cash, he paid them with sheets of masonite or roofing iron. The third prosecution witness described being paid with cement and wire. The sixth prosecution witness was living in a house owned by the father of the second accused and a considerable amount of building material was stored there. When the police were investigating the case, they went to that house and recovered 47 sheets of roofing iron, and various other items I do not need to list here. Similarly at a building site nearby they received more and one of the sheets was marked Solomon Taiyo. Other property was received elsewhere. I do not need to go into it in detail. I accept the police evidence of the receiving of these items.

When the second accused was seen by the police, he admitted possessing most of the items and that he bought them from the first accused.

He explained it -

"Q28 Who actually is George Ofai?

A28 George Ofai works for Solomon Taiyo and he is from Malaita.

Q29 Do you personally known to George Ofai?

A29 I did not personally known to George Ofai but only knew him when he sold those materials to me.

Q30 Where are the receipts that George Ofai gave to you when you buy those materials from him?

A30 He did not give any receipt to me.

Q31 What did George Ofai usually tell you when he sold those materials to you?

A31 He told me that there won't be any problem even tho I got every materials from him.

Q32 How many times did George Ofai sell every materials to you?

A32 It was several times and I hardly remember how many times.

Q33 Where did he usually meet you to sell every materials?

A33 Any place where he meets me. He can sell the materials to me. I remembered that at one time he caught up with me on the ship and many times he usually came up to our house at Mbokonavera 1.

Q34 In such a way that George Ofai just sell those materials to at any place, don't you suspect that this mounts up to stealing?

A34 I was suspecting that G. Ofai has been using Solomon Taiyo LPOs for purchasing the materials before selling them to me. I asked him about it but he said that there won't be any trouble and if there is anything wrong he himself will fix it."

Later he said:

"How I started to get those things from George Ofai was that sometimes in April 1989 Mr Paul Wale who was employed by Solomon Taiyo met me at Point Cruz wharf, when my ship was anchored there. Paul told me this story that he was telling me that he has a good person who can sell something cheap to him. He asked me if I want that person then we must give some money to Paul Wale and he will give the money to George Ofai. During that time I did not give any money to Paul Wale.

Within three weeks the said Paul Wale asked me that I must give some money to him and tell him which materials I like. After three weeks I gave $1000.00 to Paul Wale following his story to me. After I gave the $1000.00 Paul went and gave the money to his friend. When he returned he asked me to go with him and collect roofing irons from Tongs Trading at Ranadi. Thats my first time I ordered materials for myself without seeing Paul Wale's friend.

After Paul and I have loaded the roofing iron at the wharf he told me that he will identify me to his friend. I was afraid and wanted to refuse him but he insisted that it will be okay so that the next time I want some more things, then I can see him right away.

In the evening when Paul and I were staying on the ship, George Ofai came and Paul identified me to him. So thats the first time I saw George Ofai and knew him.

The second time, I saw George Ofai on the road and placed my second order. So I asked him about what he was doing was okay or not and I told him that if things does not worked out okay then I don't want to involve but he said that he's the only main person in it. And he also said that if anything goes wrong then its going to be his boss Nakata and him to resolve. Then I asked him about the police side but he said that police will be difficult for them to know. This will be only known by those in the Office.

It was from that, that I thought things are okay so I continued on purchasing from him. That time, I gave $600.00 for my order. Tho my story was that. I still doubt and suspected that he's story was not true to me."

He elected to give evidence on oath and he called his father as a witness. In his evidence, the second accused said that he bought all these items for a proper price. He suggested he paid $35000 to Ofai for them. He insisted that he only bought them because he was told that the Manager of Taiyo, Mr Nakado, had authorised it. He was asked by the prosecutor why he had not told this to the police and he said he did not think, because it was the first time he was interviewed.

I do not repeat his evidence here. I am satisfied beyond any doubt he was not speaking the truth in court. From his evidence as a whole, it is clear he knew perfectly well that this was an improper arrangement with Ofai. I do not believe he thought this was authorised by Nakado and I do not believe he paid the sums he claimed His explanation of this and his answers in cross-examination show he knew perfectly well this was an illegal arrangement and that the goods he bought from the first accused were stolen. He could never explain why Solomon Taiyo Limited should be selling these items.

His father gave evidence that conflicted in some ways with the answers given to the police by his son in that he claimed some of the recovered items were his. I do not believe him on that. His evidence showed clearly that he believed there was something wrong with these transactions at the time and he questioned another man about it but was told Nakado had authorised it.

This accused was not represented. At the end of the case he placed written submissions before the court. I have considered his case carefully and I am satisfied beyond any doubt that the items recovered by the police were stolen goods and that the accused knew full well at the time he received them that they were stolen. He is convicted as charged on count 50.

The third accused, Kalisto Waleofena is similarly charged on one count of receiving a number of items which were taken into his possession over a period of time. I do not need to detail the evidence against him. I accept the evidence of the prosecution witnesses who gave him money to purchase items. Once the police investigation started he gave some of the items to another man to hide. These items were recovered by the police as were some items from this accused's house.

The accused was seen by the police and admitted the offence. In court he gave evidence on oath and stated that he received the goods as payment by Ofai for timber he was cutting. He disputed the evidence of the witnesses who said they bought items from him. In each case I preferred their evidence and I did not believe this accused in court. I am satisfied his answers to the police were truthful. He is convicted as charged on count 51.

The fourth accused, Francis Waleani, is similarly charged with a single count of receiving. One prosecution witness referred to giving this accused money and receiving masonite in return and another to a pump the accused referred to in his interview under caution. He also made clear admissions to the police.

He gave evidence on oath as to how he placed orders with the first accused and, although the price was never discussed and he was never told it would be cheaper, he felt it was a normal sale of items owned by Ofai. He never realised there was anything wrong.

I do not believe the accused. I am satisfied beyond doubt he knew these items were stolen from Taiyo when he received them and he is convicted as charged on count 52.

The fifth accused, Paul Waleliofala, was a supervisor in Noro at the time. He was interviewed by the police and told how he contacted Ofai because he heard that he was using Solomon Taiyo Ltd LPOs for personal items for other people. He asked Ofai to do the same for him and ordered a number of items, largely of food.

He did not give evidence or call witnesses. I have considered and accept the evidence of the police officers who conducted that interview. I am satisfied beyond any doubt it was a truthful account of this accused's involvement and he is guilty of receiving. He is convicted as charged on count 53.

The last accused, the sixth accused, worked for the Shell Company in Honiara as installation manager. When the police were investigating the case against the first accused, they recovered a substantial amount of material from the accused's house on Vavaya Ridge, from a storage area used by this accused in Ranadi and from an office on the Shell premises. He was seen by the police and interviewed under caution. In that interview he made no admissions of knowledge that these items were stolen. He denied any knowledge of some of the items and claimed honest possession of others.

He did not give evidence in court and called one witness who described a purchase of some cartons of nails by this accused. That evidence, which I accept, gives some support to this accused's explanation of innocent possession.

The prosecution base their case on recent possession. The thirty-first prosecution witness described taking roofing iron from Tongs Trading on the instructions of the second accused and delivering it to the storage area at Ranadi. The owner of the site at Ranadi also described how this accused kept property there although he did not see it delivered.

Later the police recovered a substantial quantity of material from that place which included a sheet of roofing iron marked Solomon Taiyo and also from Vavaya ridge when two sheets were similarly marked.

They also went to the Shell depot where they recovered a few items from a storeroom to which this accused and one other man, the forty-first prosecution witness, hold the keys, according to that witness. When asked by the police, the accused said any employee had access to the store. I accept the evidence of the forty-first prosecution witness on this matter.

I have considered all the evidence relating to this accused. I am satisfied beyond any doubt that the items in his possession were held by him knowingly and that they were stolen goods. I am equally satisfied that this accused knew at the time he received them that they were so stolen. He is convicted on count 54.

SENTENCE

It has been stated by counsel for the first accused that this was a large scale fraud in Solomon Islands. I must agree. The first accused has been convicted of disposing of property worth more than $55,000. Suggestion has been made of far more but I sentence on that sum only.

Ofai - I accept that you started this as the result of a suggestion by others and then succumbed to the temptation to continue. I also accept that the money you actually received was probably not very great.

However, you were in a position of considerable trust. You held a senior position and were entrusted with very valuable property. Anyone in that position must expect at times to be faced with temptation but his employer and the public in general are entitled to expect him to resist such temptation. Any person who, placed in a position of trust, breaches that trust must expect to go to prison. Your case is no exception.

In deciding how long the sentence should be, I bear in mind the position you held in the company as a measure of the seriousness of the breach and I also bear in mind the repetition of the offence over a long period. Without you it could never have occurred.

On the other hand, I bear in mind your admission to many of the charges and your co-operation with the police. I treat you as a person of hitherto good character and I accept you will suffer over and above the actual punishment in that you are unlikely to secure such a good position with any other company in the future. By these dishonest acts you have thrown away a great deal and you and your family will suffer hardship as a result.

I look to the totality of the sentence and do not distinguish individual forgeries.

On each count you will go to prison for three years concurrent. That is on each of counts 3, 20, 23, 26, 27, 30, 31, 33, 34, 36, 39, 41, 43, 45, 47 and 49 you will be sentenced to 3 years imprisonment concurrent. That is three years in all.

The remaining accused are all charged with receiving. For such an offence all must go to prison. I have stated before that, if it was not for receivers, many crimes would not pay. It is the knowledge that stolen property can be sold to others that makes theft and similar offences pay.

In all your cases with the exception of the sixth accused, I consider you actively canvassed these goods from the first accused. Some of you have suggested the fifth accused was the person who initiated all this and Mr Remobatu appears to accept that. I am not sure I can take the view that affects the issue very much. All of you were clearly willing and anxious to be involved.

Buka (A2)-You were a fortunate young man. You were already in a position of great responsibility, despite your youth, in your father's company. You had the benefit of your father's hard work and industry in the past and his clear affection and trust in you now. Yet greed drove you to become deeply involved in these offences. I am satisfied you were more involved than any of the other receivers. Very considerable values of material were involved and passed through your hands.

I allow for all the matters you have submitted to me. I allow for your previous good character and your age. I also allow for the harm this will do to you and your father's reputation. At the same time, I feel you are likely, at the end, to be able to continue in your present work.

The least sentence appropriate to your case is one of nine months imprisonment.

Waleofena (A3)-In your case, you were clearly happy to succumb to the temptation of easy profit. The amounts you received were not high on the evidence and I allow for that but they were still very substantial. I also allow for your previous good character. You were an older man than some of the other accused and should have known better.

Six months imprisonment.

Waleani (A4)-I treat you as being of good character and young. It has been suggested that prison may affect you adversely by the association with known criminals. I cannot consider that in a case such as this because you must go to prison. The amount you received was a little less than the others but even allowing for that and the other matters urged I see no reason to differentiate.

Six months imprisonment.

Waleliofala (A5)-You were an employee of the company and it appears you accept you made the first approach. However, I accept your initial approach was for food supplies and was not high in value. However, having succeeded in that you were willing to take a far more substantial amount. In those circumstances, and treating you as a person of good character, I feel I need not differentiate.

Six months imprisonment.

Alisae (A6)-Your case is different.

I have no evidence you approached the first accused yourself. It seems you were dealing through the second accused and it is not clear what was your final intention with this property. In your favour it could be considered you were storing it for the second accused although it could also be suggested on the evidence you were involved personally and deeply. I feel I must take the construction most favourable to you.

At the same time, you were an older and better educated man. You above all should have known what you were doing. By this act you have thrown away an excellent job and probably forfeited your chances of another in the future. In all those circumstances I feel I can distinguish your case.

Four months imprisonment.

(F.G.R. Ward)
CHIEF JUSTICE