Regina v Andresen [1997] SBHC 101; HCSI-CRC 37 of 1996 (23 May 1997)

IN HIGH COURT OF SOLOMN ISLANDS

Criminal Case No. 37 of 1996

REGINA

-v-

EDMOND ANDRESEN

High Court of Solomon Islands
(Muria, CJ.)
Criminal Case No. 37 of 1996

Hearing: 28, 29 & 30 April 1996
Judgment: 23rd May 1997

DPP for Crown
A. Radclyffe for Defendant

MURIA. CJ: The defendant Edmond Andresen has been charged with seven counts of offences of misconduct in office contrary to the provisions of the Leadership Code (Further Provisions) Act as well as the Constitution. At the commencement of the proceedings and before the defendant’s pleas were taken the learned Director of Public Prosecutions withdrew counts 2 and 3. The Court therefore discharged the defendant on those two counts. The defendant pleaded Not Guilty to the remaining counts 1, 4, 5, 6 and 7.

I feel that for ease of reference, it is necessary to set out the charges standing against the defendant. I do so hereunder:

Count 1: Statement of Offence

Use of Office for personal benefit, contrary to section 8(1) of the Leadership Code (Further Provisions) Act

Particulars of Offence

EDMOND ANDRESEN, on 6 October 1994, in Honiara, being a Member of Parliament and person to whom Section 93 of the Constitution applies, misconducted himself when he accepted on behalf of himself from ROBERT GOH through GOH & PARTNERS a benefit, to wit, the use of hire Car Reg. No. A2202 by reason of his official position.

Count 4: Statement of Offence

Acceptance of benefit, contrary to section 14(1) (c) of the Leadership Code (Further Provisions) Act.

Particulars of Offence

EDMOND ANDRESEN, on 6 October, 1994, in Honiara, being a leader misconducted himself when he accepted a benefit or advantage, to wit, the use of hire car Reg. No A2202 from ROBERT GOH through GOH & PARTNERS, as such benefit or advantage was not a memento of a ceremony or social occasion attended by the said EDMOND ANDRESEN.

Count 5: Statement of Offence

Acceptance of benefit, contrary to section 14(1) (c) of the Leadership Code (Further Provisions) Act

Particulars of Offence

EDMOND ANDRESEN, on 7 October 1994, in Honiara, being a leader, misconducted himself when he accepted a benefit or advantage, to wit, the use of hire car Reg. No. A1956 from ROBERT GOH through GOH & PARTNERS, as such benefit such benefit or advantage was not a memento of a ceremony or social occasion attended by the said EDMOND ANDRESEN.

Count 6: Statement of Offence

Acceptance of benefit, contrary to section 14(1) (c) of the Leadership Code (Further Provisions) Act

Particulars of Offence

EDMOND ANDRESEN, on 10 October 1994 in Honiara, being a leader, misconducted himself when he accepted a benefit or advantage, to wit, the use of hire car Reg. No. A2766 from ROBERT GOH through GOH and PARTNERS, as such benefit or advantage was not a memento of a ceremony or social occasion attended by the said EDMOND ANDRESEN.

Count 7: Statement of Offence

Allowing integrity to be called in question, contrary to section 94(1) (c) of the constitution as read with Section 24(1) of the Leadership Code (Further Provisions) Act

Particulars of Offence

EDMOND ANDRESEN, between and 6 October and 10 October 1994, in Honiara, being a member of Parliament and person to whom Section 93 of the Constitution applies misconducted himself by allowing his integrity to be called in question, when he accepted the use of hire Cars Reg Nos. A2202, A 1956 and A2766 from ROBERT GOH through GOH and PARTNERS.

The prosecutions called seven witnesses. The defendant gave evidence on his own behalf.

Facts not in dispute.

At the conclusion of the evidence, the following facts have been found not to be in dispute. The defendant was and still is a leader, being a Member of Parliament and a Minister of the Government. In the period up to 3rd October 1994 the defendant was the Minister for Agriculture & Fisheries in the National Coalition Partnership (NCP) Government. The Prime Minister then was the Hon. Francis Billy Hilly. The defendant is now the Minister for Police & National Security.

On the 3rd October 1994, the defendant tendered his letter of resignation as a Minister in the NCP Government to His Excellency The Governor General who accepted his resignation on 4th October 1994 (See Exhibits 3 & 4). Not only that it was the defendant who resigned from the NCP Government but also other Ministers did the same. Consequently, the Hon. F. B. Hilly did not enjoy the majority support in the House and led to his resignation which he announced on the floor of Parliament soon thereafter.

It is also not in dispute that three days after the defendant resigned he was given on 6th October 1994 the use of a hired car Reg. No. A2202 which was hired by and paid for by Goh & Partners from Kosol Rental Car at the cost of $219.00 (See Exhibit 5). The Reg. No. hire-car A2202 was returned the next day 7th October 1994. On that same day the defendant was given the use of another hire-car Reg. No. A 1956 which was hired by Goh & Partners from Avis for three days at cost of $3,270.00 (See Exhibit 1). That hire-car was returned on 10th October 1994 on which date another hire-car Reg. No. A2766 was again given to the defendant to use. This car was also hired by Goh & Partners from Avis at the cost of $6,782.00 and it was not returned until 11th November 1994 (See Exhibit 2).

It is also not in dispute in this case that the defendant joined the opposition to form the new Government and that he was appointed a Minister in the new Government on 9th November 1994 retaining the portfolio of Agriculture and fisheries. He was subsequently given other ministerial portfolios, the latest he now holds as Minister for Police and National Security.

The defendant was a very close friend to Robert Goh, one of the principal partners in the firm Goh & Partners, for a very long time. It is also not disputed that upon resigning from the NCP Government, the defendant’s Government vehicle G2327 was taken away from him by officers in the Ministry of Transport, Works and Utilities.

The above undisputed facts also show the background of this case. Needless to add that the political wrangling among those elected leaders in the House then also resulted in a Constitutional Crisis which rocked this country at the time. Fortunately, that crisis had been resolved through the courts, in the matter of Francis Billy Hilly & Others -v- Moses Puibangara Pitakaka and S. S. Mamaloni Civil Case No. 229 of 1994.

The case against the defendant.

In dealing with the prosecution’s case against the defendant, I shall consider each charge that has been brought against the defendant. I bear in mind that the onus is on the prosecution to prove their case against the defendant. The standard of proof in cases of this nature had been recognized to be that of a standard higher than the usual standard in civil cases. In Regina -v- Geoffrey Siapu Crim. Case No. 34 of 1992 (unreported), this court stated:

“The Act therefore, in my view, envisages that the standard of proof in cases of misconduct in office is one which is not as high as the criminal standard of proof beyond reasonable doubt but one which is nevertheless requiring a higher standard of proof than the usual civil standard of proof, namely on the balance of probabilities. In other words, the court must be reasonably satisfied of the truth of the allegations brought against the leader bearing in mind the nature and gravity of the charge and the possible adverse consequences that the leader would be subjected to”

In other words, the standard of proof must be close to that applicable in a criminal case. That is the standard which I must apply also in this case. With that in mind I now turn to the case against the defendant as contained in each of the charges brought against him.

Count 1

Under this count the defendant is charged for the offence of using his office for personal benefit. I have already set out the particulars of the charge. However it would be useful to refer to the words of section 8(1) of the Leadership Code (Further Provisions) Act which creates the offence. Section 8(1) is as follows:

“8. (1) Any leader who directly or indirectly asks for or accepts, on behalf of himself or any associate of his, any benefit in relation to any action in the course of his official duties (whether such action has already been taken, is continuing or is to be taken in the future) or by reason of his official position, is guilty of misconduct in office:

Provided that this section shall not be construed so as to apply to any request made by a Leader for the payment of travel or subsistence expenses to which he may be entitled as a result of his carrying out his official duties or for the receipt by him of proper remuneration”.

8. (2) Subsection (1) shall include the case of a Leader, who, except in the course of and for the purpose of his official duties or his official position, uses or allows his name or his official position to be used for the benefit of himself or any other person.

The defendant is here charged with the offence of accepting on behalf of himself from Robert Goh a benefit, to wit, the use of hire-car Reg. No. A2202 by reason of his official position. There can be no doubt that the use of a hire-car provided at the expense of another person is a benefit as indeed was the case here. The question which must be asked is: Did the defendant actually accept the use of the hire-car by reason of his official position? In other words, did he use his office to gain the benefit here complained of, namely, the use of a hire-car? The keynote to the offence faced by the defendant here is in the words “by reason of his official position”. It will be noted that the defendant is not charged with accepting benefit through the use of his office as a Minister but rather as a Member of Parliament. He is also not charged with accepting a benefit in relation to any action in the course of his official duties.

The position must therefore be that the prosecution must prove that the defendant actually accepted the use of the hire-car Reg. No. A2202 by reason of his official position and not necessarily in relation to any action in the course of his official duties. As far as the defendant’s official position is concerned, that must be his position as a Member of Parliament. In his defence the defendant said in evidence in court that he accepted the use of the hire-car not by reason of his official position but rather by reason of his friendship with Mr. Robert Goh who felt sorry for him, seeing him walking on foot up and down East Kola Road after he resigned from the NCP Government and having had his Government Vehicle taken away from him. In my judgment, as the charge stands against the defendant, for the offence to be made out, the prosecution must prove that the defendant actually used his official position as a Member of Parliament to secure the personal benefit alleged to have been accepted, namely the use of the hire-car.

The evidence here relied upon by the prosecution came from Betsy Kuma who said that she received instructions from her boss, Mr. Robert Goh, to raise an Order to hire a car from Kosol Rental Car for the defendant. She did what she was instructed to do and the car Reg. A2202 was obtained on hire and given to the defendant to use. The cost of the hire of that car was $219.00 which was paid by Goh & Partners by cheque as shown by Exhibit 7. The amount shown in that cheque was $302.00 which comprised of $83.00 in respect of another invoice and $219.00 in respect of the hire of the car Reg. No. A2202. It will be noted that the cheque for the payment of $302.00 was not that of Mr. Robert Goh but of Goh & Partners and it was signed not by Mr. Goh but by the company’s accountant and another employee of the company. No evidence was given by Betsy Kuma to show that the car was hired for the defendant because he as a Member of Parliament which was his official position at the time and of course, still is.

The learned Director sought to rely on Mr. Ezekiel Alebua’s evidence. Unfortunately, Mr. Alebua’s evidence concerns on the discussions between himself and Mr. Goh and how Mr. Goh was said to have offered him $100,000 to resign from the NCP Government. Mr. Alebua mentioned that in his discussions with Mr. Goh, he (Mr. Goh) said that he had already taken care of the other Ministers such as Honourable Maetia and Honourable Walter Talu. Mr. Goh’s discussions with Alebua centered around the private sector’s dissatisfaction on the Government’s Policy on Forestry and taxation matters. At best, Mr. Alebua’s evidence is simply evidence of the fact that he had conversation with Mr. Goh. His evidence is of no value to the charge against this defendant. In fact, Mr. Alebua’s evidence did not bear directly upon the defendant.

The learned Director asked the Court to imply that Mr. Alebua’s evidence bears relevance to the charge against the defendant. In the political arena such a course of action may well be perfectly acceptable. But in a court of law, such a course of action must be strictly guarded against, particularly in a criminal trial or a trial of a criminal nature, such as the present case. I am not prepared to venture into such assumption in this case.

The only evidence before the court showing the reason for the use of the hire car Reg. No. A2202 came from the defendant himself to which I have already referred. There is absolutely no evidence linking the defendant’s official position and the use of the hire-car. Put another way, there is no evidence to establish to the satisfaction of this court that the use of the hire car Reg. A2202 was by reason of his leadership position as a Member of Parliament. Unless there is evidence to the contrary this court is only left with the explanation by the defendant for the use of the hire car Reg. No. A2202. It may not be the best explanation for the acceptance of the use of the hire-car Reg. No. A2202. But that does not add any weight either to the prosecution case and it is for the prosecution to establish their case to the reasonable satisfaction of the court.

On the evidence before the court on this charge, I am left with a doubt. I therefore cannot be reasonably satisfied that elements of the offence charging the defendant in court had been made out and I must give him the benefit of that doubt. The defendant is found not guilty of count 1 and I acquit him of that charge.

Count 4

This count charges the defendant with the offence of accepting benefit contrary to section 14(1) (c) of the Leadership Code (Further Provisions) Act. This section is provided as follows:

“14(1) Any leader who, or whose spouse or child under eighteen -

a) ........................

b) ........................

c) accepts any gift or other benefit or advantage, from any person, company, corporation or incorporated association.

is guilty of misconduct in office.”

Under subsection (1) any gift, benefit or advantage accepted by a Leader would amount to a misconduct in office except for those situations mentioned in subsection (2) which is in the following terms:

“(2) Subsection (1) shall not apply to -

(a) a gift from his spouse or children;

(b) a loan or transaction in the nature of a loan which has been obtained or entered into on the same or similar terms as may be applied to other borrowers;

(c) any gift not exceeding fifty dollars in value, or any other minor benefit or advantage, where such gift, benefit or advantage is clearly intended to be a momento of a ceremony or social occasion attended by the Leader or where such benefit or advantage falls within accepted standards of hospitality:

Provided that the provisions of this subsection shall not be construed as relieving a Leader from complying with the provisions of section 5 in relation to such loan, franchise or gift.

The defendant was and still is as I have already stated, a Leader by virtue of his position as a Member of Parliament. Indeed the evidence clearly shows that he accepted a benefit or an advantage which is the use of a hire car Reg. No. A2202. Is there anything else that the prosecution needs to prove here to establish the charge against the defendant under subsection (1) (c) of section 14? I think so. The prosecution must prove that the benefit or advantage was not intended to be a memento of a ceremony or social occasion attended by the defendant or that it was not within accepted standard of hospitality. In other words the exceptions specified in subsection (2) remain with the prosecution to establish by evidence. The burden does not shift to the defendant to show that the benefit or advantage he received had innocent explanations.

It is argued by Mr. Radclyffe that although the High Court had already dealt with this provision in R -v- Musuota, Criminal Case No. 41 of 1996 this case should be distinguished from that of Musuota where Awich J held that- there must be same element of dishonesty to be established in the offence created under section 14(1) (c). That Mr. Radclyffe argued is reading words into the section that are not there. I accept that this case must be distinguished from that of Musuota but only in so far as their respective personal circumstances are concerned. However in so far as their status under which they were charged and brought before this court, I make no distinction between them. They are leaders and Members of Parliament. They were both Ministers in the NCP Government, who both resigned from that Government and joined the opposition to form the new Government. They both faced charges relating to accepting benefit or advantage from the same person namely Robert Goh through Goh & Partners

In so far as the offence under section 14(1) (c) is concerned, in my view, it is complete when a Leader accepts a benefit or advantage which is not intended to be a memento of a ceremony or social occasion attended by the Leader or when it is not within accepted standards of hospitality. The mischief sought to prevent is having leaders unjustly enriching themselves through benefits received from their leadership role beyond their normal remuneration to which they are already entitled. Honest leaders, of course, would not accept extra benefit or advantage beyond their remuneration. Honesty and integrity in leadership is what we are about here and whether or not dishonesty is necessarily to be read into the offence under section 14(1) (c) is a matter that will now be decided by the Court of Appeal, now that an appeal on the question has been lodged by Mr. Musuota to the Court of Appeal. For my part I am content to decide this case on the evidence before the court. Parliament it enacted provisions such as section 14(1) (c) which simply makes it a misconduct in office to accept gifts valued more than $50.00 or benefits or advantages which are not intended to be mementos or which are not within accepted standards of hospitality.

As far as the evidence is concerned, the prosecution has established that the benefits received by the defendant in this case are not mementos of a ceremony or social occasion nor are they minor benefits. The total costs of the hire of the three cars was $10,271.00 which cannot be said to be minor. Are they then benefits within accepted standard of hospitality? The prosecution contended that the benefits received by the defendant were not within “accepted standard of hospitality” and that they were grossly excessive. Mr. Radclyffe, on the other hand, argued that the benefit received by the defendant might or might not be “minor” but the court must take into account the long standing friendship between the defendant and Mr. Goh which goes back to the early 1980’s long before the defendant joined politics.

It is true that the court must also take into account the close friendship relation between the defendant and Mr. Goh when considering the status of the benefits received by the defendant in this case. But it is also correct that the court must not lose sight of the status of the defendant as well as the nature of the benefit received. In other words the close friendship tie between the defendant and Mr. Goh must be weighted against the status of the defendant and the nature of the gifts or benefits he received.

The defendant has not disputed receiving the benefit of the use of the hire-cars. The question of whether this is within “accepted standards of hospitality” is a question of fact. The only evidence in this regard is that from Betsy Kuma who said that she received instructions from her boss to arrange for the hire of the vehicles for the defendant. She made the arrangement with Kosol Rental Car and Avis. The cars were provided at the expenses of Goh & Partners. There is no other evidence to suggest that this was a standard gesture of hospitality usually provided by Goh & Partners to persons other than their employees nor is there any evidence that Member of Parliament are usually treated with the free use of hired cars at the expense of friends or some other persons.

I have thought long and hard on this charge and having considered the evidence I come to the conclusion that the prosecution has satisfied the court the charge against the defendant has been made out. I am so satisfied and I find the defendant guilty on the fourth count.

Counts 5 and 6

I turn now to counts 5 & 6 of the charge against the defendant. These charges are similar to the charge in count 4 except that in count 5, the benefit complained of is the acceptance of the use of hire car Reg. No. A 1956 and in count 6, the benefit complained of is the acceptance of the use of hire-car Reg. No. A2766.

The evidence relied upon by the prosecution to establish these charges are the same as those that have already been discussed. I therefore need not repeat what I have already said on those evidence. It must however be noted that the defendant has not disputed that he accepted the use of hire-cars Reg. Nos. A 1956 and A2766 and that he accepted the use of those hire-car for the reasons which I have already mentioned in relation to count 4.

As to whether the acceptance of the use of those hire cars are within accepted standards of hospitality, all I can say is that, although section 14(2) does not define what is the “accepted standard of hospitality”, the provision of a free use of hire cars at the expense of another cannot be easily regarded as within accepted standard of hospitality. I said “easily” because the circumstances surrounding the giving and acceptance of the benefits must be looked at. It may be easily understood and accepted for an employer to hire cars for the use of an employee who is expected to carry out some tasks for his or her employer. Such a practice is not uncommon in an employment relationship. In the present case the justification for the acceptance of the use of the hire cars relied upon by the defendant is the close friendship between the defendant and Mr. Goh. Of course not all benefits received from a friend are prohibited. A clear example would be a nominal xmas present or an invitation to a New Year’s Dinner or a birthday present can be considered as within accepted standard of hospitality.

However as I have said earlier, the occasion and nature of the benefits are matters which must be borne in mind when ascertaining whether the benefits offered and accepted are within accepted standard of hospitality.

In the present case, like the fourth count, the weight of the evidence is largely in favour of the position submitted by the learned Director of Public Prosecution. It was not a minor gift nor was it within accepted standard of hospitality. The acceptance of the benefits of the use of hired cars Reg. Nos. A 1956 in count 5 and A2766 in count 6 therefore amount to misconduct in office.

I feel the only point that needs to be reiterated is that the gravamen of the offence under section 14(1) lies in the fact of acceptance of a gift or benefit or advantage outside the exceptions mentioned in subsection (2) of that section. The words used are clear and unambiguous. The test is really a subjective one and there is no need to put a gloss on the language used in the provisions of that section.

Having considered the evidence I come to the conclusion that the defendant is guilty of the offences in counts 5 & 6 and I convict him.

Count 7

This count charges the defendant with the offence of misconduct in office by allowing his integrity to be called in to question when he accepted the use of hire cars Reg. Nos. A2202, A 1956 and A2766. The charge is brought pursuant to section 94(1) (c) of the constitution as read with section 24(1) of the Leadership Code Commission (Further Provisions) Act. The provisions of section 94(1) (c) of the constitution are set out as follows:

“s94. (1) A Person to whom this Chapter applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not -

(c) to allow his integrity to be called to question”,

and section 24(1) of the Leadership Code Commission (Further Provisions) Act is as follows:

“s24. (1) Any Leader convicted of misconduct in office shall be liable to a fine of one thousand dollars or imprisonment for one year or both such fine or imprisonment”

The submission by the learned Director of Public Prosecution is that the test here is that of a “public perception” of what the defendant had done, namely, the acceptance of three hired cars by the defendant for his use at the expenses of Mr. Goh through Goh & Partners. Further be added that the transactions were not open and that they were done following the defendant resignation from the NCP Government. Then followed was the complaint to the Leadership Code Commission against the defendant in respect of those transactions. These factors, argued the learned Director, goes to establish that the defendant was “taken care of” for resigning from the NCP Government.

Mr. Radclyffe on the other hand submitted that the test to apply must be the “reasonable man” test, that is would a reasonable person view the defendant’s conduct in this case as demeaning his integrity? This is basically saying that the test is an objective one. In other words, it is the test of a “public perception” of the integrity of leader concerned.

I think the test suggested by the learned Director is the same basically to that proposed by counsel for defendant. They are both expressions of an objective test which in my view is the proper test to be applied under section 94(1) (c) of the Constitution. I would prefer to express the test in this way: Were the conduct of the defendant in this case, namely, accepting the use of hire cars Reg. Nos. A2202, A 1956 and A2766 from Mr. Goh through Goh and Partners shortly after resigning from the NCP Government and immediately before joining the opposition to form the new government such as would reasonably lead an ordinary and prudent man to conclude that such conduct would allow the defendant’s integrity to be called into question? The answer to that question is to be determined from the evidence before the court and in the light of section 94(1) of the Constitution which spells out the duties and responsibilities of a leader. Thus in determining whether or not a leader has allowed his integrity to be called into question the conduct of a leader both in his public or official life and his private life must also be borne in mind.

It must also be noted that section 94 of the Constitution is specifically designed to impose duties and obligations on a leader to so conduct himself or herself as not to do any of the things mentioned in subsection (1) of that section, one of which is not to allow his integrity to be called into question. That is the purpose of section 94. Thus a purposive approach is also necessary together with the evidence when considering the question of whether or not a leader allows his integrity to be called into question.

To return to the facts of this case, I must assess the evidence as presented to the court together with the duties and obligations imposed by section 94 of the Constitution and for which those duties and obligations are imposed on the defendant as a leader. This wholesome approach is necessary for the proper consideration of a case such as this in view of the test I set out earlier.

This court is being asked to determine within the general language of section 94(1)(c) whether an ordinary man of the public would reasonably conclude that the defendant had allowed his integrity to be called into question by reason of his conduct in this case. This is no easy task for the court as was recognised by Awich J in R -v- Musuota when he said:

“Unfortunately the Leadership Code (Further Provisions) Act has omitted to first state that allowing integrity to be called into question is an offence and secondly to state the details of what acts or omission or conducts amount to the offence of allowing Integrity to be called into question. It may not be easy to enumerate all such acts and conducts, but a guide would suffice; the acts or conducts could be enumerated or examples could be given from which the court could interpret ejusdem generis. As it is, it is left to the court to decide what the public would view as amounting to calling integrity into question. It should be the public through Parliament to tell the court what the court should look for when deciding which acts or conducts will lead to the public questioning the integrity of a leader”.

Despite this difficulty, the court must do its best in the discharge of its judicial functions and determine whether or not the prosecution has established the guilty of the defendant. In this case the evidence shows and it is not disputed that the defendant prior to the hiring of the cars the defendant visited Mr. Goh on a number of occasions as confirmed by Betsy Kuma who was the person instructed by Mr. Goh to arrange for the hiring of the cars for the defendant. It was within that period that the defendant resigned from the NCP Government. Three days after his resignation from the NCP Government, he was given on 6/10/94 the hire car Reg. No. A2202 rented for him from Kosol by Mr. Goh and paid for by Goh and Partners. That hire car was unserviceable due to accident and so the defendant was again was given the use of another hire car, Reg. No. A1956 this time from Avis for three days from 7th - 10th October 1994. Again that vehicle was hired by Mr. Goh through Goh and Partners for the use of the defendant. The third car hired by Mr. Goh for the defendant was the car Reg. No. A2766 also from Avis for the period 10th October 1994. The total cost of the three hire cars was $10,271.00 which was paid by Goh and Partners.

It is common knowledge that it was not only the defendant who resigned from the NCP Government. There were also other Ministers who did the same. However this case is being dealt with solely on the basis of the evidence against this defendant before the court.

On 9th November 1994 the defendant was appointed Minister in the new Government whom he had joined. He retained the same portfolio as he previously held under the NCP Government. After his appointment as Minister for Agriculture and Fisheries in the new Government, he was given a new Government Vehicle. The Avis hire car Reg. No. A2766 was returned on 11th November 1994 two days after he was appointment Minister in the new Government.

It must be pointed out that, as was done in R -v- Francis Orodani, Criminal Case No. 39 of 199 (HC) (Judgment given 20th November 1996), it is not an offence for a member of Parliament to change political support even if for the reason that he is being offered a Ministerial port folio by the other side of the house. Whether or not that is a good reason for a switch of political support is of no concern to the court. That is the business of the electorate.

However it is the business of the court to determine, where a Member of Parliament being a leader is charged with an offence arising out of his conduct, whether or not he is guilty of misconduct in office. For the defendant in this case, his conduct complained of is that be allowed his integrity as a leader to be called into question.

I have considered the evidence in this case most anxiously and circumstances surrounding the conduct of the defendant as a whole. Having done so and applying the test set out earlier in relation to this charge, I come to the inevitable conclusion that the defendant by his conduct of accepting the benefit of the free use of the three hire cars at the expense of Goh and Partners at total cost of $10,271.00 had allowed his integrity to be called into question. That is a misconduct in office as provided under section 94(1)(c) as read with section 24(1) of the Leadership Code (Further Provisions) Act and the prosecution has discharged the onus of proving the guilty of the defendant under that charge. The defendant is accordingly found guilty and is convicted on count 7

Order: Count 1 Acquitted

Count 4 Guilty

Count 5 Guilty

Count 6 Guilty

Count 7 Guilty

(GJB Muria)
CHIEF JUSTICE