Regina v Samani [2012] SBHC 17; HCSI-CRC 104 of 2011 (26 January 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

V

FLICKSON SAMANI

Dates of hearing: 18th, 21st – 25th, 28th – 30th November, 1st and 5th December 2011.
Date of Judgment: 26th January 2012.

Mr. Naigulevu for the Crown.
Ms. Wagavonovono and Mr. Gray for the accused.

JUDGMENT

Apaniai, PJ:

Introduction:

1. The accused, Flickson Samani, is charged with 1 count of larceny as an employee contrary to section 273(b)(i) of the Penal Code and 1 count of abuse of office contrary to section 96(1) of the Penal Code. The charges are as follows:-
   

Count 1: Statement of offence.

Larceny as an employee, contrary to section 273(b)(i) of the Penal Code.

Particulars of offence.

That Flickson Samani of Malaita Province between 21st of November 2007 and the 13th of April 2010 in Solomon Islands Flickson Samani was a person employed in the public service of Her Majesty and steal money, namely $2,790.00, and such money was taken into possession by him by virtue of his employment.

Count 2: Statement of offence.

Abuse of office, contrary to section 96 of the Penal Code.

Particulars of offence.

That on divers dates between the 21st of November 2007 and the 13th of April 2010 in the Solomon Islands Flickson Samani was a person employed in the public service did in abuse of the authority of his office an arbitrary act prejudicial to the rights of another.

2. The accused has pleaded not guilty to both charges and so I remind myself that the burden is on the prosecution to prove each and every element of these offences beyond reasonable doubt.
   

Non-disputed facts:

3. The following facts have been conceded, or are not seriously disputed, by the accused:
   

[1] The accused was an employee of the Solomon Island Government ("SIG"). He was employed as a first class magistrate at the Central Magistrates Court in Honiara. He was appointed as a first class magistrate by the Legal & Judicial Services Commission on 25th January 2007. He had held that position up to, and including, the time of the alleged offences.

[2] In 2008 and 2009, the accused went on court circuits to the following provincial centers, namely, Tulagi in central Islands province, Tingoa in Rennell & Bellona Province and Buala in Isabel province.

[3] There was one circuit made to Tulagi in September 2008. There was also one circuit to Tingoa and that was around November 2008. In regards to Buala, there were two circuits. The first was in December 2008 and the second towards the end of March and early April 2009.

[4] During these circuits, the accused had collected fines from persons whom he had convicted of various criminal offences in those provincial centers.

[5] At Tingoa, the accused had collected a total fine of $380.00 from the following persons, namely, Apollos Baiabe who was fined $50.00, George Taikona who was fined $30.00, Leslie Puia who was fined $80.00, Jimmy Noah who was fined $70.00 and Jerry Maitaki who was fined $150.00.

[6] At Tulagi, the accused had also collected a total fine of $1,320.00 from the following persons, namely, Philip Bisa who was fined $150.00, Bruno Sale who was fined $50.00, Richard Kolo ($40.00), Billy Kole ($40.00), Rose Kapu ($50.00), Michael Kela who was fined $200.00, Randol Devu who was fined $50.00, Prince Paikai who was fined $70.00, Junior Vagi who was fined $200.00, Stephen Kuali who was fined $150.00, Lynnette Tafui who was fined $150.00, Alban Tivara who was fined $60.00, Michael Manebona who was fined $50.00 and Harry Poipoi who was fined $60.00.

[7] At the first circuit to Buala, the accused had collected a total fine of $460.00 from the following persons, namely, Edmond Hillary who was fined $50.00, Eddie Iru ($60.00), Levi Riumono ($80.00), Christian Vagi ($50.00), Allan Belo who was fined $10.00, Henry Muti who was fined $50.00, Samuel Zae who was fined $50.00, Adrian Posnanski who was fined $50.00, Rodney Leva who was fined $20.00 and Aaron Oirodo who was fined $40.00.

[8] At the second circuit to Buala, the accused had collected a total fine of $630.00 from the following persons, namely, Simon Tuti who was fined $100.00, Oradi Ataban who was fined $50.00, Habru Tapiru who was fined $50.00, Stephen Koili who was fined $20.00, Michael Pule who was fined $50.00, Samson Riumana who was fined $50.00, Edward Hiromono who was fined $30.00, Elina Hiropuhi who was fined $30.00, Jenny Ragoso who was fined $50.00, Roseti Naeri who was fined $50.00, John Fagano who was fined $30.00, Frazer Bako who was fined $60.00 and James Ringo who was fined 60.00.

[9] The total amount of fines collected by the accused during these four court circuits was $2,790.00.

[10] Since returning from these circuits, the accused should have, but had not, retired the $2,790.00 to Rufina Hughie ("Rufina"), who was the revenue officer at the Central Magistrate Court.

[11] The accused had paid the sum of $2,790.00 to Rufina at midday on Monday 12th April 2010.

The law on Larceny:

4. The offence of larceny by servant is defined under section 273(b)(i) of the Penal Code which provides as follows:-
   

"Any person who being employed in the public service of Her Majesty, steals any chattel, money or valuable security belonging to or in the possession of Her Majesty or entrusted to or received or taken into possession by such person by virtue of his employment is guilty of a felony and shall be liable for imprisonment for 14 years."

5. The elements of the offence of larceny under section 273(b)(i) which the Crown must prove in this case are:-
   

[a] The accused was employed in the public service of Her Majesty (ie, by the Solomon Island Government ('SIG'));

[b] By virtue of that employment, the accused had been entrusted with or had received or had taken into his possession the sum of $2,790.00;

[c] The $2,790.00 belonged to the SIG; and,

[d] The accused had stolen the $2,790.00.

6. Section 258(1) of the Penal Code defines the word "steal" as follows:-
   

"A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes or carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof."

7. Hence, in order to prove that the accused had stolen the $2,790.00, the Crown must further prove:-
   

[a] That the $2,790.00 was taken without the consent of the SIG;

[b] That the taking was fraudulent and without a claim of right made in good faith; and,

[c] That, at the time of the taking, the accused had the intention to permanently deprive the SIG of the $2,790.00.

The Crown's case:

8. The Crown's argument in relation to the question whether the accused had "taken" the $2,790.00 is that the "taking", for the purposes of "stealing" under s. 258(1) of the PC, occurred at the time when the accused received fines forming part of the $2,790.00 from some of the convicted persons as well as from the police officers who gave him the money after having collected them from the rest of the convicted persons.
   
9. That argument, as I understand, is based on the proposition that the accused had no authority to collect fines because he was not formally appointed as a revenue clerk in accordance with the SIG Financial Instructions ("FI"). Because he had no authority, says the Crown, his receiving of the fines from those persons and from the police officers was fraudulent and without any claim of right. The Crown's argument, as I understand, goes on further to say that, because the accused had no authority to collect the fines, his taking or receiving of the fines from those persons or from the police officers, as well as the fact that he had kept the money for a long time without retiring it to Rufina, is evidence that the accused had the intention to deprive the SIG permanently of the $2,790.00.
   
10. Because the Crown's case in relation to the larceny charge is premised on the above proposition, if I find that the accused had authority to collect the fines, the Crown case in relation to the larceny charge must fail in its entirety. If I find that the accused had no authority, then I must proceed further to determine whether the accused did "steal" the $2,790.00 within the meaning of that expression as defined in s. 258(1) of the PC.
    

The accused's case:

11. The accused admits that he was a SIG employee; that he had collected fines totaling $2,790.00 from the persons whom he had convicted during the court circuits to Tingoa, Tulagi and Buala and from police officers who had collected those fines from those persons; that he had collected those fines in his capacity as a magistrate; and that the $2,790.00 belonged to the SIG.
    
12. However, he says that while he concedes that he was not formally appointed as a revenue clerk pursuant to the FI, s.73 of the Magistrates Courts Act gave him the authority to collect fines. As such, he had not committed any offence when he collected the fines from the convicted persons or from the police officers.
    
13. The accused further argues that even if he was not authorized under s.73 to collect fines, he cannot be guilty of larceny for having collected the fines because it had been a practice for magistrates to collect fines when travelling on court circuits.
    
14. I must say that I do not agree with that argument. If the practice of collecting fines by magistrates while on court circuits is unprocedural, the continuation of such unprocedural practice does not make the practice procedural. It remains unprocedural. This argument is rejected.
    

Did the accused have authority to collect fines?

15. As to the issue whether the accused had authority to collect fines, I am satisfied that the accused had authority to collect fines. It is not disputed that the accused had not been formally appointed as a revenue clerk in accordance with the FI and therefore he had no authority under the FI to collect fines. However, his authority to collect fines is not conferred under the FI but under the proviso to s. 73 as read with s. 75 of the Magistrates Courts Act ("Cap. 20").
    
16. Section 73 authorizes court clerks to demand and collect fees and costs payable in relation to all criminal and civil matters in the Magistrate Court. Section 75 extends that authority to include the authority to collect fines and penalties imposed by a magistrate exercising his jurisdiction.
    
17. The proviso to s. 73 allows a "Magistrate" exercising the relevant jurisdiction to demand and collect fees and costs which (by virtue of s.75, includes fines and penalties) in the absence of the court clerk. The Crown argues, however, that those provisions should be interpreted as giving authority to magistrates to collect fines only in exceptional situations. The Crown says that this must be the intention of Parliament.
    
18. I do not agree with that interpretation. There is nothing in sections 73 or 75 of the Magistrates Courts Act which supports such interpretation. The principles of statutory interpretation in this jurisdiction are clear. Words are to be given their natural and ordinary meaning. If the words have a natural and ordinary meaning then the words should be given that meaning. The intent and purpose of the legislature is expressed in those words[1]. The words of the proviso to section 73 are clear. Under that proviso, Magistrates are authorized to collect fines. The accused was a magistrate at the time he collected the fines. He was entitled to do so.
    

Accused not guilty of Larceny.

19. The collection of the $2,790.00 by the accused was therefore proper and did not amount to "stealing" as submitted by the Crown. The Crown's submission must therefore fail and I find the accused not guilty of larceny. Accordingly, the accused is acquitted of the charge of larceny as a servant.
    

Abuse of office – Crown's case.

20. In regards to the charge of abuse of office, it is alleged that the accused had abused his office as magistrate when he held onto the fines which he had collected for approximately 19 months without retiring them to the revenue collector, Ms Rufina, and that in doing so he had prejudiced the rights of Ms. Rufina as a revenue collector as well as the rights of the SIG as owner of the monies.
    

The law on abuse of office:

21. Abuse of office is an offence under section 96(1) of the PC. That section provides as follows:
    

"Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another, is guilty of a misdemeanor."

22. The elements of that offence are:
    

[a] the accused was employed in the public service;

[b] the accused did, or directed to be done, an arbitrary act;

[c] in doing that act, or directing it to be done, the accused had abused his office;

[d] the act had prejudiced the rights of another.

Accused's case:

23. The accused does not deny that he was a magistrate and was therefore a person employed in the public service. He also does not deny that he had held onto the $2,790.00 for approximately 19 months and that the $2,790.00 was money that belonged to the SIG.
    
24. His case is simply that he had forgotten about the money and it was only when clearing his office on the 10th April 2010 for use by the CLAC justices that he saw the money and realized he had not yet retired the money and had immediately done so upon that realization. In other words, the accused denies that he had committed an arbitrary act or that he had abused his office.
    
25. In Naiveli v The State[2], the Fiji Supreme Court had had the opportunity to interpret s.111 of the Fiji Penal Code which is identical to s. 96(1) of the PC. The court said:-
    

"Central to the commission of an offence under s.111 is the doing or directing to be done an arbitrary act "in abuse of the authority" of the accused's office. What differentiates something done in abuse of office from something not done in abuse of office in many cases will be the state of mind of the accused. An act done or direction given which is otherwise within the power of an officer of the public service will constitute an abuse of office if it is done or given maliciously with intention of causing loss or harm to another, or with the intention of conferring some advantage or benefit on the officer."

26. In other words, the state of mind of the accused is important in determining whether there was abuse of office. The questions to ask in the present case are what was the state of mind of the accused when he held on to the money? Did he hold onto the money maliciously with intention of causing harm or loss to another person or with intention of conferring some advantage or benefit to himself? These are matters which the Crown must prove beyond reasonable doubt.
    
27. I have heard the accused's explanation as to why he had held onto the money since September 2008. I must say that I find the accused's explanation unconvincing. The accused had collected $380.00 as fines during his circuit to Tingoa in September 2008. On his return, he says, he placed the money in his draw in his office and had simply forgotten about it. Likewise, he says the $1,320.00 he collected during his circuit to Tulagi in November 2008 was also placed in his office after his return and, again, he had simply forgotten about the money. The same applies to the total fine monies of $1,090.00 he collected from his two circuits to Buala in December 2008 and March/April 2009. His explanation is that he put all these monies in an envelope and placed them in the draw in his office and had simply forgotten about them. I find it difficult to accept the accused's explanations. Any person in his right mind would have regarded the need to retire such money as a matter of importance and urgency so as to avoid any loss of the monies while in his possession. In any event, the accused was always in his office during that period and would have seen those monies each time he came to his office. Is he saying that he had never opened his draw at any time since September 2008 and that the first time he opened the draw was on the 10th April 2010? If so then I must say I simply do not believe him.
    
28. In this case, I am satisfied that the accused knew that the $2,790.00 belonged to the SIG. He also knew that he was supposed to have retired the money to Rufina when he arrived back with the money from the court circuits. He knew that he was not supposed to have held onto the money or put it in his draw for such a long time as he did in this case. I find it difficult to accept the truth of his explanation that the reason he did not retire the money was because of forgetfulness. I am satisfied that the accused had held onto the $2,790.00 maliciously to deprive the SIG of its use.
    
29. The next question is whether his actions had prejudiced the rights of others. The Crown says that the rights of Rufina and the SIG were prejudiced.
    
30. In my view, Rufina's rights were not prejudiced by the accused's conduct. The accused is charged for conduct which occurred prior to the 10th April 2010. Rufina was given the money on that date. Prior to that date, she knew nothing about the money and never handled the money. Whatever was done with the money prior to 10th April 2010 did not affect her.
    
31. I am, however, satisfied that the rights of the SIG were prejudiced by the conduct of the accused in not releasing the money to the SIG for those 19 months. The SIG was the owner of the money. It was entitled to the use of the money during the 19 months period. The accused had denied the SIG of the use of its money during that period. The accused is therefore guilty of prejudicing the rights of the SIG in not releasing the money to the SIG.
    

Verdict:

32. The findings of the court are as follows:-
    

Count 1 – Larceny as an employee contrary to section 273(b)(i) of the Penal Code, the accused is not guilty and he is accordingly acquitted.

Count 2 – Abuse of office contrary to section 96 of the Penal Code, the accused is guilty and he is accordingly convicted.

THE COURT

JAMES APANIAI
PUISNE JUDGE

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^[1] Re Application by the Minister for Western Provincial Affairs [1983] SILR 141.
^[2] [1994] FJCA 29 (Paclii).