Regina v Thien [2010] SBHC 125; HCSI-CRC 218 of 2009 (18 March 2010)

HIGH COURT OF SOLOMON ISLANDS
(Palmer CJ.)

Criminal Appeal Case Number 218 of 2009

REGINA

V

UHLA THIEN

Hearing: 18th March 2010
Sentence: 18th March 2010

Ms. Christensen for the Comptroller of Customs
Mr. Steve Barlow for Uhla Thien

Palmer CJ.

On 23rd July 2009, this court convicted Mr. Thien and imposed the following penalties:

(i) Count 2: Impose a penalty of $200.00 and order that all the goods be forfeited to the Government;

(ii) Count 3: Impose a penalty of $626,103.00;

(iii) Count 4: Impose a penalty of $2,451.00 and order that the CDs and DVDS be forfeited and to be destroyed forthwith.

The total penalty imposed was $628,754.00 payable in 30 days with an in default order of 12 months imprisonment.

Mr. Thien has paid the penalties imposed in respect of counts 2 and 4. He has not paid the penalty of $626,103.00.

On 18 September 2009, the Registrar issued a summons to show cause under section 29 of the Penal Code as to why a warrant of commitment should not be issued against him for failing to pay the penalty imposed within the time stated. The matter came before this court for hearing on 25 September 2009. Directions were then issued to enable Counsel to file relevant material in support of his client's case. In the meantime, an appeal was lodged by Mr. Thien against sentence imposed by the court. The matter was then adjourned to allow leave to appeal by Mr. Thien. That process took the rest of the year.

On Friday 4th December, the Acting President of the Court Appeal, Mr. Justice Goldsbrough sitting as a single Justice of Appeal, granted leave for Mr. Thien to appeal to the Court of Appeal. That appeal was heard on 28 January 2010. Judgement was delivered on 12 March in which the appeals against conviction and sentence were dismissed.

This matter has been deferred until today for the defendant to show cause why he should not be sent to prison for failing to pay the penalty imposed by this court.

In his submissions before this court and the Court of Appeal the defendant revealed that he had relied on the assurances of his employer to pay his fine. According to his submissions and affidavit filed 17 March 2010, his employer has abandoned him.

I have listened carefully to his lawyer, Mr. Barlow in what he has to say on his behalf regarding his personal circumstances in the matter, his attempts to have the fines paid and his intentions to pay the fines. He has asked for an extension of time to do so. In the period since his conviction in July 2009 however, he has not paid any further fines. This is a period of almost 8 months. While noting his desire, attempts to hold a job or enter into business, and intentions to do so, it is clear he is not able to do so. Granting any further extension therefore is simply not feasible or open in this instance.

In his submissions before this court, Mr. Barlow seeks to argue that the court is not functus officio re the penalty of 12 months imprisonment in lieu of payment of the fine. He argues that the court has jurisdiction to consider a period of suspension, or a reduction in the default period of 12 months. He went into great lengths in his submissions as to why the default period should be suspended or reduced. Those arguments however are premised on the submission that this court is not functus officio the orders made on 23rd July 2009.

This issue however in my view is quite straightforward. The orders of the court, of 23 July 2009 imposed fines with specific default periods of 12 months. While I note submissions of Mr. Barlow that there is a discretion of the court under sections 253 or 254 of the Customs and Excise Act regarding the default period, the issue of discretion no longer applies in this hearing for it had been exercised by the court on 23 July 2009, the court being convinced that this was a blatant case of offending by the two defendants. In other jurisdictions much longer periods of imprisonment would have been imposed; in this jurisdiction it is limited to a maximum of only 12 months.

To that extent, the extensive submissions on suspension and reduction have little relevance. But even assuming for one moment, (which is denied) that this court has jurisdiction, I am equally not satisfied that it has been made out that the default period should be suspended either in its entirety or partially, or reduced. The facts and circumstances of the offence and the position of this defendant as a captain can only lead to a clear inference that there was complicity in the offending and that he knew or must be deemed to have known what was going on. The Court of Appeal in its judgement[1] correctly pointed out that this was no casual affair. As captain he had duty to find out and ensure that there was no contraband on his boat.

I have pointed out that the law on this type of offence is deliberately worded to penalise heavily those involved in this type of activity. The scale of the offence is substantial, both in terms of value and quantity. I do not need to repeat what I said in R. v. Hisham Bin Abdullah[2] ("Abdullah's Case") regarding the huge profits and benefits that can be attained if not detected. These laws are intended to make clear that it is not worth taking such risks. And where one is caught they will face the consequences of the penalty stipulated in the legislation. I can only reiterate what I said in Abdullah's Case that where others are implicated, and there is material including names and addresses of persons to whom the smuggled goods were addressed, due consideration must be given as to whether those persons should also be charged or not. Section 267 of the Customs and Excise Act expressly provides that;

"In any prosecution or any proceedings for the recovery or enforcement of any penalty under the customs laws, where direct oral evidence of a fact would be admissible, any statement contained in any marking made, impressed or otherwise contained in or upon any goods or their wrappings or containers, shall be admissible as evidence of that fact."

To a certain extent the sense of injustice of selective prosecution in this instance should not be unheeded. I won't say more on this for that is something for others to look into, if it has not been considered.

I note the personal circumstances and hardships of his family but as I pointed out in Abdullah's Case, those are matters which he should have weighed carefully before venturing into this activity.

In terms of his period of time spent in the country, this has not been in vain or futile for he has been accorded his full rights as a defendant under the laws of this country including a special sitting just to have his appeal heard disposed off quickly.

I order that he will serve the period for which he has defaulted in his payment. This is the sum of $626,103.00 which works out using thirty days in a month to 358 days in prison.

Orders of the Court:

1. In default of payment of the penalty of $626,103.00, Uhla Thien is ordered to serve 358 days in prison.
   

The Court.

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^[1] Uhla Thien v. Reginam CRAC 14 of 2009, 12 March 2010, see para. 28 at page 8.
^[2] R. v. Hisham Bin Abdullah CRC 218 of 2009, 14 December 2009