Regina v Saungao [1997] SBHC 60; HC-CRC 030 of 1995 (18 July 1997)

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(LUNGOLE-AWICH, J): Introduction and Delay: The Accused, Mr Christopher Saungao, represented by learned counsel Mr P Tegavota, is employed in the Prison Service of Solomon Islands, as Controller of Prisons. He went on leave on 27.10.1993 and was asked to remain on leave indefinitely, presumably because investigations leading to him being charged in court were being carried out. He was committed by magistrate’s court only on 5.9.1995 and information for his trial at the High Court was filed only on 19.1.1996. Accused has continued to draw full salary, so in as far as income is concerned he was not disadvantaged. The same cannot be said about the government. However, accused must have suffered considerable anxiety about his employment.

The case was finally called up for trial at the High Court on 22.4.1996. Accused was absent, but his counsel was present. He applied for adjournment because accused was said to be seriously ill; his condition was expected to last for a long time. Adjournment was granted. Then on 17.6.1996 his case came up for trial. Accused was present. Learned Crown counsel Mr J Faga did not have witnesses in attendance. It seems that much of the work to bring witnesses to court is done by the office of the Director of Public Prosecutions instead of by the police. It is the duty of the police to assist crown counsel and ensure that witnesses are in attendance. Much of the good work of the police in investigating crime will be fruitless if the police neglects the last, but important bit of assisting counsel prosecuting the case, by bringing witnesses to court. It is an aspect of the process of justice which learned Director of Public Prosecutions may wish to discuss with the police. Crown counsel applied for adjournment which was granted upto 30.7.1996. On that day and the next 2 days, 6 witnesses attended and were heard in court. Adjournment was again granted so that crown counsel could look for more witnesses who he said were not in attendance. Both counsel were to consult and agree on a near date for continuation of trial. That did not happen soon. Counsel for accused informed the court that it was mainly because accused was ill for a long time. So the next continuation of trial took place only on 10.6.1997, some 11 months later. I hope that avoidable delays in the process of justice from investigation to trial shall be avoided in future. The consolation here, if it is consolation, is that accused has not lost any income from employment. The government has lost, but then it is the duty of the government to speed up investigation and ensure attendance of witnesses in court.

Accused was tried on amended information which charged 5 counts. Counts 1 and 3 are about using building materials belonging to government for his own benefit. The offence in count one is larceny; that in count 3 was misconduct in office by reason of conflict of interests. The same facts of appropriating building material were the subject of the two offences and charges. The better practice would be to charge the two counts based on the same facts, and therefore the same actus, in the alternative. Count 2 was about using government vehicle in private job, count 4 was about getting into love relationship with a subordinate and count 5 was about using government employees in private job. I set out the charges here for ease of reference.

Count 1	Statement of Offence Larceny, contrary to section 266 (b) (ii) of the Penal code. Particulars of Offence CHRISTOPHER SAUNGAO of S.I. Prison Service at Honiara in the Guadalcanal Province, between 1 June 1990 and December 1990 being then employed in the Public Service fraudulently applied to his own use and benefit 10 tins of paint, 3 bags of cement, 15 pieces of timber, 2 sheets of security wire, 10 bricks, 1 roll of cocoa wire, 1 cement sink, 16 kg of nails, 2 tins of tile glue, 2 length of PVC pipes and white toilet bowl, which had then been entrusted to him by virtue of his employment.
Count 2	Statement of Offence Misconduct in Office contrary to section 94 (1) of the Constitution as read with Section 24 (1) of the Leadership Code (Further Provisions) Act 1979. Particulars of Offence CHRISTOPHER SAUNGAO of SI Prison Service, at Honiara in the Guadalcanal Province, between 1 June 1990 and 31 December 1990 being the Controller of Prison and a person to whom section 93 of the Constitution applies, misconducted himself in office by allowing his integrity to be called into question when he directly or indirectly allowed Government vehicles to transport materials to his private house at Naha Housing Estate.
Count 3	Statement of Offence Misconduct in Office contrary to section 94 (1) (a) of the Constitution as read with section 24 (1) of the Leadership Code (Further Provisions) Act 1979. Particulars of Offence CHRISTOPHER SAUNGAO of SI Prison Service at Honiara in the Guadalcanal Province between 1 June 1990 and 31 December 1990, being the Controller of Prison and a person to whom section 93 of the Constitution applies, misconducted himself in office, when he placed himself in a position in which he has a conflict of interest in having proper control of government materials and his personal interest by using the same materials to repair his private house at Naha Housing Estate.
Count 4	Statement of Offence Misconduct in Office, contrary to section 94 (1) (b) of the Constitution as read with section 24 (1) of the Leadership Code (Further Provisions) Act 1979. Particulars of Offence CHRISTOPHER SAUNGAO of SI Prison Service, at Honiara in the Guadalcanal Province between 1 June 1993 and 31 December 1993, being the Controller of Prisons and a person to whom section 93 of the Constitution applies, misconducted himself in office by demeaning his office or position when he had love affair with ELLYNESS PATI who was his subordinate officer at the Prison Service.
Count 5	Statement of Offence Misconduct in Office to section 94(1) (a) of the Constitution as read with section 24 (1) of the Leadership Code (Further Provisions) Act 1979. Particulars of Offence CHRISTOPHER SAUNGAO of SI Prison Service at Honiara in the Guadalcanal Province between 1 June 1990 and 31 December 1990, being the Controller of Prisons and a person to whom section 93 of the Constitution applies, misconducted himself in office when he placed himself in a position in which the exercise of his official duties were compromised when he permitted government workers to work in his private house at Naha Housing Estate.

The Crown called 12 witnesses. Accused testified, but did not call witnesses. The central story relevant to counts 1,2,3 and 5, that emerged was this: Accused was, during the relevant period, June to December 1990, employed in the Prison Service as Controller of Prisons. Building works to improve or renovate prisons at Rove, Auki, Kira Kira, Gizo and Lata started in 1987 and was still going on during June to December 1990. Accused’s official residence at Kola Ridge was also being repaired. During the same period, within June to December 1990, when the work on his official residence was being done, accused had improvement and maintenance work done on his private house at Naha, Honiara. The people who did the work were employees in the Prison Service, employed on a two year contract; they were described as casual workers. They are prosecution witnesses Nos: PW3, PW5, PW7, PW8, PW9, PW10 and PW11.

The prosecution alleged and led evidence to prove that accused used government building materials in the work on his house, used government vehicles to transport the materials and workers and had government employees work on his house during official hours and after, government paid wages and for the over time work.

Accused’s case was that he did not use building materials belonging to government except for an old cement sink that he asked Sergeant Anthony Taopiri, PW6, to collect from old staff quarters that were being demolished, and 3 torn bags of cement that he asked to be retrieved from goods shed that had collapsed and materials got damaged on. He bought the rest of the materials he required from Atasi Company, LKP Hardwares, ITA, Bowmans and Concrete Industries. He got the money from savings he made when he was on courses in the UK, Japan and USA and a loan of $2,000 from Yee Bing Store. He also got payment of advance rent for 3 months being $1,800. If workers were paid for their work out of government funds, it was without his knowledge; his instruction was that only workers who would volunteer were to be taken to work on his house, and only after government working hours. He was officially allowed some privilege to use government vehicle because he was allocated one, and in any case his instruction was that his materials be bought and transported on government vehicle only when government materials were being bought and transported.

The prosecution’s case about count No. 4 was that accused who was Controller of Prisons was a superior of Ellyness Pati who was employed in the Prison Service. Between January 1993 and December 1993 accused had love relationship with Ellyness Pati. That was a demeaning conduct which constituted the offence of misconduct in office, as accused was a person regarded as a leader under section 93 of the Constitution. Accused admitted the relationship which he said started on 21.2.1992. He has now gone through customary marriage formality with her although they have not married in church and before a magistrate. He says that at the time, Ellyness was not his subordinate because she was not a member of staff in the Prison Service; she was employed in the Public Service as Revenue Collector, and posted to Tetere Prison.

The offence charged in count one is larceny under section 266 (b) (ii) of the Penal Code. The section states:

It is common ground that accused was employed in the Public Service. The prosecution’s evidence must prove the rest of the definition of the offence, and to such standard that the court is satisfied beyond reasonable doubt. So is there such evidence to show that the items of material enumerated in the particulars of count No.1 belonged to government and that the accused fraudulently, that is, dishonestly applied or disposed of them except for the Public Service?

I agree with the submission of Mr Tegavota that because of what Sergeant Timothy Feru, PW1, said in crossexamination a great deal of his evidence is hearsay. What he said about where the materials he issued were taken to is not proof. They might well have been taken to Kola Ridge for use on the official house. For the same reason, the use of official vehicle to transport them cannot be evidence. There is, however, the bit that he issued out the items namely, nails, cement, timber cocoa wire netting, security wire, “plenty of times” to John Mailanga, PW3, who signed for them and that Mailanga was on one occasion with James Malu, PW5, and Benui Ungia (not a witness). That is material evidence. Of the 12 witnesses who testified for the prosecutions, 5 stated that they worked at Naha, on the house of the accused. They are John Mailanga, Gaki Peseka, Tom Tobe, Huddy Peba, Leslie Refiue and Penuel Poungia. I have excluded James Malu because court declared him a hostile witness so he cannot be useful to the prosecution or defence. They variously did masonry work, floor tiling, plumbing, painting and carpentry work. All of them said that they worked during government working hours and sometimes after hours. Each worker mentioned items of material they collected from Rove Prison, although some items of material were already on site at Naha when some of them saw the material. In addition to the material the workers mentioned, the quarter master, Anthony Taopiri, PW6, himself said that he took some material belonging to government to accused’s house at Naha, although he also mentioned some which accused bought when accused went with him to shops; the money came from accused’s own pocket. I have added those items of material mentioned by the various witnesses as having come from Rove Prison; they are these:

The items of material were well described and in sequence of events which seemed natural. I am satisfied that they were obtained from government stock in the quantities variously described by the witnesses mentioned along side the items. The items, mentioned in the charge, which did not come out clearly in the evidence are security wires, roll of cocoa wire, tile glue and PVC pipes. I am not satisfied beyond reasonable doubt that they were taken from government stock. In fact there were items such as gravel, sand, copper wire and brush that were proved to the required standard to have come from government stock, but are not mentioned in the charges in count No. 1 and 3. I exclude them from consideration. Accused said that the cement sink was retrieved from the process of demolition and that 3 bags of cement were gathered from damaged stock. I give him the benefit of the doubt in view of the fact that there is no positive evidence that the cement sink would have not been thrown away as rubble and the 3 damaged bags might have been collected for use in government job. That subtracts from the list of building material belonging to government, 1 cement sink and 3 bags of cement. There is still 1 bag of cement on the list of government stock taken to accused’s house at Naha. There is ample evidence from the workers about the items of material I have stated above. Accused had no authority to use the material on his house. He applied them fraudulently to his benefit. He is guilty of larceny in respect of them. I convict him of that offence under section 266 (b) (ii) charged in count No. 1, but only for -

The total value of the building material was not given in the charge. It is a good practice to do so even if it is given only as an estimated value. That gives the court an idea of the loss involved. Accused may also wish to challenge the value for various reasons including mitigation of sentence reason.

The question of accused being entrusted with the chattels, the building material, did not arise because under section 266 (b) (ii) of the Penal Code even a person not entrusted commits the offence. Had it arisen, useful guide would have been found in the English cases of Regina -v- Grubb (1915) 11 Cr App R 153 and Regina -v- Ernest Morter (1927) 20 Cr App R 53. I would have concluded that the accused, Controller of Prisons, had control of the building material belonging to government in circumstances whereby he would be regarded as having been entrusted with them. Our laws on stealing and related dishonesty with property are codified in the Penal Code, Cap. 5 in the Laws of Solomon Islands. They were copied from the provisions in the English Larceny Act 1901, 1 Edw. 7, c.10 and are archaic. Several legal technicalities were encountered in England in the application of the Larceny Act 1901 and so, Theft Acts 1968 and 1978 were enacted to replace it. Need we wait until the technicalities encountered in England have been experienced in Solomon Islands before we change the laws on stealing?

The charge in count No. 3 of Misconduct in Office (by a leader) contrary to section 94 (1) (a) of the Constitution as read with section 24 (1) of the Leadership Code (Further Provisions) Act, 1979, is based on the same actus, the act of appropriating the items of building material in count No. 1. The Crown says it is larceny (in count No. 1) and misconduct by conflict of interests (in count No. 3). I do not see a situation of conflict of interests; I see the complete act of appropriation or misappropriation. Conflict of interest arises where for instance there is a bargain situation where the interest of the government, to be protected by the leader is on the one side and the leader’s private interest is on the other side. Example is where the leader is the supplier of goods for purchase by government or is a member of a tender board and a tenderer, and the leader does not declare his interest. The conflict is in the high price the leader would want for his goods and his duty to obtain the lowest price for government. In my view, conflict of interest falls short of outright stealing as it is in this case. Although it has been satisfactorily proved that the items of building materials I have named have been fraudulently appropriated from government by the accused, a leader in the Public Service, I cannot find him guilty of the offence of misconduct by reason of conflict of interests. Accordingly I acquit him of the offence under section 94 (1) (a) of the Constitution as read with section 24 (1) of the Leadership Code (Further Provisions) Act; and accordingly on count No. 3. Accused is discharged on that count.

The evidence to prove counts Nos. 2 and 5, alleging Misconduct in Office, by misusing government vehicle in private job, and having government employees work on private house respectively, are inseparable parts of the testimonies of the same witnesses. They are also the same witnesses upon whose testimonies the cases in counts Nos. 1 and 2 are based. Sergeant Taopiri said that he took material and government employees on government vehicle to accused’s private house at Naha where the workers were to work on the house. The workers themselves stated in their testimonies that they were transported on government vehicle together with some of the material they themselves loaded onto the vehicle on several occasions. I have already accepted their evidence as credit worthy and met the standard of beyond reasonable doubt.

Accused admitted that government vehicle was used to transport “his” material. His defence was that the use was incidental; he had given instruction that his building material be transported only when government building material was being transported. He also said that since he was allocated official vehicle for personal use, he had some privilege to use government vehicles. On the first point, the evidence does not support his explanation. The materials were collected from Rove Prison most of the time; not from shops. It was not just a situation where government vehicle on its way to government job picked and dropped accused’s material. Moreover, Taopiri’s testimony that he was acting on orders from the Controller, the accused, when Taopiri took workers to work during government working hours, is far more plausible. I concluded that accused instructed the use of government vehicle in his private job. On the second point, I can only say that authority to use one government vehicle does not confer authority to use other government vehicles.

Accused’s answer to the evidence that government employees worked on his house during government working hours and sometimes after, and were paid for the working hours and overtime was that, if the employees worked during official hours, then it was against his instruction to the supervising officer, Sergeant Taopiri. He said that his instruction was that Taopiri was to ask workers to volunteer and only to take workers who volunteered to work at accused’s house. In his testimony he agreed that the workers worked during government hours and after, and that they were paid by government, wages that included wages for the time they worked at his house. From the evidence I am able to conclude that he was aware that workers worked at his house during and after government hours and that it was on his instruction. On one occasion he took Huddy Peba, PW9, and Nelson to the house during working hours, on another he was present when Tom Tope, PW8, and others worked beyond government working hours. He promised to pay for the overtime, but to date he has not. That must be because he was aware that the overtime had been or would be paid for by government. There is ample evidence that satisfied the court beyond reasonable doubt that he deliberately used government workers to do renovation and improvement work on his private house at Naha.

Is using government vehicle without authority on one’s job an offence of allowing one’s integrity to be called in question under section 94 (1) (c) of the Constitution as read with section 24 (1) of the Leadership Code (Further Provisions) Act? I have added in the citation sub-section (c) because that is where the offence is stated. Mr Tegavota is right in his submission that the legislature has left the offence of allowing integrity to be called into question too wide. The offence would be more certain if circumstances giving rise to questioning integrity were stated in the legislation or at least examples of them were given. Courts would proceed with more accuracy. It must, however, be remembered that it is a rule of interpretation of statute that a statutory provision should not be interpreted as meaningless. I have dealt with the question of what amounts to allowing integrity to be called into question in the case of Regina -v- John Musuota Criminal Case No. 41 of 1996. The approach I prefer in interpreting what amounts to questioning integrity is that the acts or omissions be restrictively accepted as offensive enough so as to call integrity into question. The reason is that it is a penal legislation being interpreted. Integrity is the quality of being upright, honest. Is uprightness or honesty questioned when a leader uses government vehicle in relation to his building work? The answer is instant yes. So accused has allowed his integrity to be called into question contrary to section 94(1) (c) of the Constitution as read with section 24 (1) of the Leadership Code (Further Provisions) Act. If the answer were to be a hesitant yes; a borderline yes, I would have given accused the benefit of the ambivalence. Accused is found guilty and convicted of the offence of allowing integrity to be called into question contrary to section 94(1) (c) of the Constitution as read with section 24 (1) of the Leadership Code (Further Provisions) Act, and accordingly on count No. 2. A much clearer offence for the facts proved would be under subsection (2) of section 94 of the Constitution which states:

(2) In particular, a person to whom this chapter applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected, to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by the preceding subsection.

Does using government employees on one’s private building job constitute one of the two offences in section 94(1) (a) namely placing one’s self in a position of conflict of interests, or a position in which the fair exercise of one’s public duty or official duty might be compromised? Again I have to say that there is no conflict of interests here; it is a situation of direct misuse of government resources; the man - hours of the workers for which the government paid. It is not a question of conflicting benefits, claims or rights of the government on the one part and of the accused on the other. It is, however, probable that because accused has used workers in his private job, his authority over them or over the more senior subordinates who were aware of his misdeed, could be compromised. Accused might feel rather hesitant to discipline them if they do private work of their own during government working hours. He might also feel indebted to them generally because of the favour they have extended to him. The offence of misconduct by placing a leader in a position compromising his duty under section 94(1) (a) as read with section 24 (1) of the Leadership Code (Further Provisions) Act has been proved. I find accused guilty of it and convict him for the offence and therefore on count No. 5.

In regard to count No. 4, the charge of misconduct in office by reason of demeaning the leader’s self, by getting into love affair with Ellyness Pati, accused admitted that he became a boyfriend of Ellyness Pati on 21.2.1992. He, however, said that Miss Pati was not his (Controller of Prisons’) subordinate, she was employed in the Public Service as opposed to the Prison Service which he was the head of. I think that is being pedantic. Even if Miss Pati was not a staff of the Prison Service, she was posted as a revenue collector to Tetere Prison, an establishment in the Prison Service. Her day to day supervision would the responsibility of the Commander or Officer in Charge of Tetere Prison, who was a subordinate of the Controller of Prisons, the accused. The real difficulty in the case is whether a love affair which is a very private affair should be regarded as demeaning office of a leader to the extend that it may be regarded as an offence, especially in the absence of any clue in the legislation, and in the absence of evidence suggesting that occasions arose when accused’s office was demeaned because of the love relationship. Worse still it took so long to charge accused for that so that events between Miss Pati and him have brought into the case new dimensions. They have now got a child and are said to have gone through customary marriage formalities. They now live together. Is it fair to consider the criminality of the matter now with the possible disruption of the de facto marriage especially when there is a child? The case in count No. 4 is one in which if I were to commit myself to stating that it has been proved, I would exercise the court’s discretion under section 35 of the Penal Code, and without proceeding to convicting, make order dismissing the charge absolutely, without condition. In view of the facts I have stated above I do not think it will be expedient to inflict any punishment in regard to count No. 4. I accordingly make order dismissing the charge in count No. 4 absolutely. Accused is discharged on count No. 4.

The offence in count No. 1 of larceny by someone in the Public Service is intended to be treated as a serious offence. The maximum penalty provided for it is 14 years’ imprisonment. The offences of misconduct in office for which accused is convicted on counts 2 and 5 are not as serious; each is punishable with maximum of a fine of $1,000 or 1 year imprisonment or both. Maxima of course are reserved for the worst kind of the offences. The court has to consider the factors which make the offence as committed by an accused so bad, and of course the factors which mitigate and call for leniency. Those factors must include accused’s personal circumstances.

I first considered whether custodial sentence, that is sentence of imprisonment is appropriate for any of the convictions on counts Nos; 1, 2 and 5. Accused was the head of the Prisons Service so his conduct was a grave breach of trust, taking into account the fact that he should be the one ensuring that such abuse does not occur. He was responsible for disciplining if the abuse occurred. Given his position it was difficult for anybody in the Prison Service to report and get disciplinary step taken against him. Those facts would call for custodial sentences. The facts that can be taken into account against those are that: (1) accused is a first offender. Courts should be hesitant to send first offenders to prison, but that does not mean that if aggravating facts are bad a first offender should still not be sent to prison, (2) accused has served in the civil service, some 20 years with clean record. That must be some credit to him and cannot be taken lightly. In addition to the 2 factors he is a parent of 9 children some of whom are at school. I think in all the circumstances a custodial sentence is not the appropriate sentence.

In considering fine I have considered that the items of building material that accused took and has been convicted for do not seem to cost very large sum although it would not be said that they cost little money. I have also considered that the use of government vehicle and workers were part of the one dishonest transaction. I have further considered that it was in relation to only one house and that the whole dishonest escapade took no more than 2 weeks.

The fines must be paid in full in 30 days. Accused has right of appeal against both convictions and sentences. He has to give notice of appeal, if he wishes to appeal, in 30 days.

No D2 Loan Agreement Between Yee Bing Store and Christopher Saungao, dated 20th December 1990.

(a)	.......
(b)	being employed in the Public Service of Her Majesty -
	(i)
	(ii)	embezzles or in any manner fraudulently applies or disposes of for any purpose whatsoever except for the Public Service any chattel, money or valuable security entrusted to or received or taken into possession by him by virtue of his employment; or
(c)	...
is guilty of a felony, and shall be liable to imprisonment for fourteen years.

High Court of Solomon Islands

Regina v Saungao [1997] SBHC 60; HC-CRC 030 of 1995 (18 July 1997)