Regina v Kii [2007] SBHC 137; HCSI-CC 231 of 2006 (31 October 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 231 of 2006

REGINA

-v-

LUCIAN KII

(Mwanesalua, J)

Hearing: 22nd, 23rd, 24th, 26th, 29th, 30th and 31st October 2007
Judgment: 31st October 2007

Mr. Nicholas H. Mirou for the Crown
Mr. Darcy O’Shea for the Accused

EX TEMPORE JUDGMENT

Mwanesalua, J:

Charles: The accused, Mr. Lucian Kii, was charged with one count of obtaining money by false pretence and one count of official corruption, contrary to sections 308 and 91(a) of the Penal Code respectively. He pleaded not guilty upon his arraignment. The burden is thus on the prosecution to prove his guilt beyond reasonable doubt on both counts.

Elements of offence in this case under section 308:

(1) that the accused made a false pretence of a fact in writing to the government;

(2) that he knew such pretence was false;

(3) that he obtained the $680,000.00 by such false pretence; and

(4) that he had an intention to defraud.

Element of offence in this case under section 91(a):

(1) that the accused was employed in the Public Service;

(2) that he was charged with the performance of a duty;

(3) that he corruptly obtained the $680,000.00 for himself;

(4) on account of anything done in the discharge of his duty.

The Prosecution Case:

That the accused was a Permanent Secretary. That he obtained a cheque of $680,000.00 and deposited it into his account with ANZ Bank. That the claim of $126,485.00 he made was false and he received $680,000.00. That he had no right to lodge any claim on behalf of landowners over Lela Beach Resort.

Facts proved on Evidence:

(1) That the accused was employed in the Public Service as Permanent Secretary for the Ministry of National Unity, Reconciliation and Peace in 2001. Among other things, the Ministry was responsible for dealing with lost property claims and the payment of cheques from a government loan from EXIM Bank to successful claimants. He signed these cheques and later countersigned by Permanent Secretary of Finance.

(2) He was married to Hilda Kii (with Surname Padavera before marriage). Mrs. Hilda Kii was the sister of Seremana (deceased) who was Bruno Nana’s wife. Mr. and Mrs. Kii’s family had close ties to Mr. and Mrs. Nana’s family. Among other things, the accused and his wife made contributions to a customary transfer (supu) of Leal Beach land from Bruno Nana to his sons named Albino Damusi (deceased), Francis Perogolo, Michael Liliau and Terry Tada(deceased) which was later registered in their names. There was evidence that the accused and his wife were authorized to clear and build their house on a plot of this land. They cleared the plot but could not build on it due to the ethnic tension on Guadalcanal.

(3) Prior to the death of Jerry Tada in 1999, the accused and Jerry Tada designed Lela Beach Resort. They jointly lodged a project proposal to the Government to fund the Resort. The government gave $75,000.00 to cover the costs of materials and labour for the Resort. The accused personally contributed $2,000.00 to cover the cost of bricks for the toilet block for the Resort. Electricity and water connection costs were covered by the funding from the Government.

(4) There was no evidence from the prosecution that the loses relating to Lela Beach Resort, as set out in section A in the attachment to the accused’s claim (Exhibit P5) were false. The loses amounted to $75,000.00 which was equivalent to the funding which the accused and Jerry Tada applied for and obtained from the government. There was evidence that the accused and his wife left their personal belongings in Mr. and Mrs. Nana’s house and were lost during the tension. There was no evidence from the prosecution to prove that the accused did not lose land and personal property at Kakabona during the tension;

(5) There was evidence that two other claims were made in the name of the accused as contained in documents D1 and D2. The claim in D1 was made in relation to a firearms attack on the accused’s family home at Naha on the night of 8 April 2001. The accused’s wife, his children and relatives were in the house at the time of the attack. There was no loss of life during the shooting apart from Mrs. Hilda Kii receiving superficial injuries and trauma. The compensation claim for this incident was $250,000.00. The third claim was as set out in Exhibit D3 in the sum of $1,030,900.00. The total claim by the accused was $1,307,385.00. It was the evidence of the accused that the relevant committee merely approved $680,000.00 of his total claim. He received this amount by cheque and deposited the same into his account with the ANZ Bank on 25 July 2001.

(6) Out of this $680,000.00, and excluding other small payments to family members of Bruno Nana:

Bruno Nana himself received	$40,000.00
Michael Tohina received	$50,000.00
Michael Liliau received	$27,000.00
Mrs. Rebecca Tade received	$16,000.00
School fees of Bruno’s daughters	$15,000.00
Total	$148,000.00

(7) The claim for compensation in respect of Lela Beach Resort (Exhibit 2) was lodged by Michael Tohina. Mr. Tohina knew that his claim was still pending decision by the time he received $50,000.00 from the accused.

(8) Conclusion:

There was no evidence to prove any of the element of the offence, contrary to section 308 in count 1. There was only evidence to prove the first element in the offence contrary to section 9(a). This evidence was that the accused was employed in the Public Service. There was no evidence to prove the remaining elements of that offence.

(9) Verdict:

Mr. Lucian Kii is acquitted of obtaining money by false pretence and official corruption accordingly.

Francis Mwanesalua
Puisne Judge