Director of Public Prosecutions v Benebig [2014] SBHC 124; HCSI-CC 50 of 2014 (15 September 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

DIRECTOR OF PUBLIC PROSECUTIONS
Claimant

AND:

JACQUES RAYMOND MARIE JOSEPH BENEBIG

1st Defendant

AND:

ROSE MARIE BENITA KABAR EP BENEBIG

2nd Defendant

Ms. F. Joel for the Claimant.
Mr. M. Tagini for the 1st and 2nd Defendants.

Date of hearing: 29 August 2014.
Date of Judgment: 15 September 2014.

RULING
Apaniai, PJ:

1. This is an application by the Director of Public Prosecutions ("Applicant") under section 10(1) of the Currency Act 2009 ("Act") for forfeiture of the whole of 10,000 Euros brought into Solomon Islands by the 1st and 2nd Defendants on 18 February 2014. The Defendants did not declare the Money on arrival. Under section 3(1) of the Act, a person entering or leaving Solomon Islands with a "minimum amount" must declare the "minimum amount". Under section 16(2) of the Act, the "minimum amount" is $50,000.00 (Solomon Islands dollars). As a result, the 10,000 Euros were taken by the Director of Immigration who currently has custody of them.
   
2. The facts giving rise to the application are not seriously disputed. They are set out below.
   
3. On 18 February 2014 the Defendants arrived at Henderson Airport, Honiara, on board A Solomon Airlines Flight from Vanuatu. They came in on tourist visas. They had in their possession at the time of their arrival 10,000 Euros which was equivalent to $89,126.56 (Solomon Island dollars). They did not declare the 10,000 Euros upon their arrival.
   
4. At an interview held on 19 February 2014 between officers of the Immigration Department and the Defendants at Mendana Hotel in Honiara, the Defendants admitted that they had brought in the 10,000 Euros with intention to buy, and did buy, local artifacts for sale in New Caledonia.
   
5. Upon the Defendants' admission, the Director of Immigration detained the Money under section 7 of the Act. The Defendants were then charged with two offences, namely, failing to declare the 10,000 Euros contrary to sections 3(3) and 6(2) of the Act and false declaration contrary to section 212(a) of the Customs & Excise Act (Cap. 121).
   
6. It is also an offence under section 9(2)(b) of the Immigration Act (Cap. 60) for a person who enters Solomon Islands on a visitor's visa to engage in any form of business while in Solomon Islands. The Defendants have entered Solomon Islands on visitors' visas.
   
7. It is clear that the 10,000 Euros was brought into Solomon Islands for use in unlawful conduct in breach of section 10(2)(b) of the Act.
   
8. At the trial of the two offences on 3 March 2014 at the Magistrates Court in Honiara, the Defendants pleaded guilty to both counts and were fined a total of $32,000.00 (Solomon dollars), which they paid. The Defendants have left Solomon Islands but the 10,000 Euros are still under detention with the Director of Immigration.
   
9. The purpose of this application is to seek a formal order of forfeiture of the 10,000 Euros under section 10(1) of the Act.
   
10. Section 6(1) of the Act authorises an authorised officer to seize currency if he has reasonable grounds to suspect that the currency is:
    

[a] recoverable currency;

[b] intended for use by a person in unlawful conduct; of,

[c] undeclared currency, intended for use in unlawful conduct.

11. The term "recoverable currency" is defined in section 2 of the Act to mean currency that is obtained through unlawful conduct and the term "unlawful conduct" is defined to mean "conduct that is unlawful or an offence under the law of Solomon Islands ..."
    
12. The Defendants have admitted that they brought in the 10,000 Euros to buy artefacts for sale in New Caledonia. It is unlawful for a person who enters the country on tourist visa to carry on business in Solomon Islands. There can be no dispute therefore that the 10,000 Euros was intended for use by the Defendants in unlawful conduct. Furthermore, there can be no dispute that that the 10,000 Euros was undeclared currency which is intended for use in unlawful conduct.
    
13. Section 7 of the Act authorises the officer to detain the seized currency for up to 72 hours subject to further extension of the time by order of a Judge.
    
14. Section 10(1) of the Act then authorises the officer to apply for the forfeiture of the whole or part of the detained currency. Under section 10(2), the Judge may order forfeiture if he is satisfied that the currency is recoverable currency or the currency is intended for use in unlawful conduct. I am satisfied that the 10,000 Euros was intended by the Defendants to buy, and they did use the 10,000 Euros to buy, local artefact for sale in New Caledonia. This is unlawful conduct.
    
15. Mr. Tagini of counsel for the Defendants submitted that there was a mistake of fact in that the Defendants have entered Solomon Islands with only 5,000 Euros each. I understand Mr. Tagini to be saying that the amount brought into Solomon Islands, if divided between the Defendants, was below the amount which the law required the Defendant to declare. He submits that the Defendants were not, and should not have been found, guilty of the charges in the Magistrates Court.
    
16. Unfortunately, that submission is now not available to the Defendants. The time to make that submission is at the trial in the Magistrates Court. They pleaded guilty to the charges. They were fined $32,000.00, which they paid. That settles the matter.
    
17. Mr. Tagini also submits that leniency should be shown to the Defendants because they have already paid a total fine of $32,000.00. I understand Mr. Tagini to be saying that the $32,000.00 which the Defendants have paid as fines should be deducted from the $89,126.56 referred to in paragraph 3 above.
    
18. Again, I cannot accept that submission. The Defendants were, on their own admission, found guilty of two offences in the Magistrates Court. These offences were failure to declare the Money to an authorised officer and false declaration to an authorised officer. Section 3(3) of the Act allows the court to impose one or more of the following penalties where a person commits any of those two offences. The penalties are a fine not exceeding 500,000 units; imprisonment for a term not exceeding 5 years; and, an order for forfeiture of the currency under section 10 of the Act.
    
19. A fine has been imposed and in my view the criteria for forfeiting the 10,000 Euros has also been satisfied. It follows that the 10,000 Euros should also be forfeited.
    
20. Accordingly, the application is granted; the 10,000 Euros is forfeited; and, the parties to meet their own costs.
    

THE COURT

_________________________
James Apaniai
Puisne Judge.