Yung Huang Fisherey Company Ltd v Attorney General [2017] SBHC 10; HCSI-CC 460 of 2005 (21 February 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case Number 460 of 2005; Civil Case Number 101 of 2009 and Civil Case Number 505 of 2005

Civil Case Number 460 of 2005

BETWEEN: YUNG HUANG FISHEREY COMPANY LIMITED - Claimant
AND: HWANG SHU FEN - 2^nd Claimant
AND: KAZUO NAGASAWA - 3^rd Claimant
AND: ATTORNEY-GENERAL - Defendant
(Representing the Commissioner of Inland Revenue)

Civil Case Number 101 of 2009

BETWEEN: KAZUO NGASAWA - 1^st Claimant

AND: HWANG SHU FEN - 2^nd Claimant
AND: YUNG HUANG FISHERY COMPANY LIMITED - 3^rd Claimant
AND: DAIWA MARINE INTERNATIONAL - 4^th Claimant
AND: SOLCO COMPANY LIMITED - 5^th Claimant
AND: DAIWA MARINE WORLD - 6^th Claimant
AND: YUNG HUANG MARINE - 7^th Claimant
AND: SOLGREEN ENTERPRISES LIMITED - 8^th Claimant
AND: YUNG HUANG FISHERY COMPANY (SI) LIMITED - 9^th Claimant
AND: SOLCO COMPANY LIMITED - (Japan) - 10^th Claimant

AND: ATTORNEY-GENERAL - Defendant
(Representing the Commissioner of Inland Revenue)

Civil Case Number 505 of 2005

BETWEEN: COMMISSIONER OF INLAND REVENUE - Claimant
AND: YUNG HUANG FISHERY COMPANY LIMITED - Defendant

Date of Hearing: 14^th February 2017.
Date of Ruling: 21^st February 2017.

Ms. L. D. Ramo for the Claimants
Mr. S. Banuve for the Defendants.

KENIAPISIA; PJ:

RULING

Issue 1 – Whether parts of sworn statement (ss) by Raj Virmani filed 05/10/2015 should not be admitted as evidence because they amounted to “statement of pinions”?

1. The ruling last week (13/02/17), Court accepted that parts of Raj’s ss – paragraphs 4, 6, 7, 8, 11 and 12 amounted to “statement of opinions”. This is because Raj was not present at the material time of the Distraint actions and other tax related investigations, Inland Revenue Division (“IRD”) made on Solgreen and its associated claimant companies in 2004/2005.
   
2. As senior audit investigator, much of what Raj said in 2015 in the ss were formed opinions upon reviewing and analysing of documentation on objections made by several of the claimants.
   
3. Being an audit investigator, Court is satisfied that this is an expert witness. This expert witness work on tax matters governed by relevant tax legislations. He would therefore have working knowledge about the procedures and processes of the relevant tax laws, as they affect objections, returns and assessments – matters this Court has heard evidence on.
   
4. Generally, statements of opinions are not admissible as evidence in a proceeding^[1]. This is why Counsel Ramo is objecting parts of Raj’s ss. But exceptions are also provided for in the same Act. One such exception is in Section 130 (1). It provides:
   

“ An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceedings”

5. Indeed the opinions expressed upon file review and analysis would greatly assist this Court in objections by the claimants. Objections are related to other facts/evidence on assessment and tax returns, which go to the heart of these proceedings. Court therefore admitted paragraphs 4, 6, 7, 8, 11 and 12 of the ss by Raj to be used as evidence and to be considered with other evidence by others in these proceedings.
   
6. After I made the above ruling last week (13/02/17) Counsel Ramo raised another issue. I adjourn to hear submissions next day.
   

Issue 2: Court should not admit the ss by Raj, because Raj is not available for cross-examination, even though Counsel Ramo had issued a notice to cross-examine this witness

7. Counsel Ramo says notice to cross examine was issued on 22/01/2017. At submissions Counsel also says that because witness is not available to be cross-examined, the ss is hearsay. As ss is hearsay and witness not available to be cross-examined, the ss by Raj should not be admitted for use as evidence.
   

Hearsay Evidence

8. Court can briefly dispose this argument off that the evidence by an expert is not Hear-say Evidence. It has credibility to it, because it is coming from an expert, upon review of documents and actions taken on specialized subject matters. And therefore the circumstances leading to what Raj says provide reasonable assurance that the statement is reliable (circumstances is that – an expert conducting a file review)^[2].
   

Witness not available to be cross-examined

9. Should the ss be excluded because witness is not available to be cross-examined? Counsel Ramo says from bar table that notice to cross examine was given on 25/1/17. No evidence on this but this would be less than 7 days before trial begun on 1/02/2017. Counsel Banuve says that Mr. Raj is not available in country (no evidence on this).
   
10. The way this case was prepared for trial was that evidences have come through ss and ss were included in agreed bundle of documents. Under Rule 13.6 the ss become evidence in the proceedings unless Court should rule that parts or whole of the evidence are not admissible.
    
11. It follows that I already ruled last week to admit Raj’s ss as evidence in these proceedings. I cannot detract from that, not to admit it again, just because Raj is not cross examined on his ss.
    
12. I will adjourn this trial for three months. Counsels are to explore the possibility of cross examining Raj on his ss by telephone, video or other ways. I grant leave for this under the Rules and counsels to liaise with Registrar to facilitate this.
    
13. Court will check every month on the progress. If after three months nothing eventuates, then Court will use Raj’s ss without cross –examination and give to it the appropriate weight in light of other evidences already before this Court.
    
14. Order accordingly.
    

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Section 128 of Evidence Act 2009 – (Act No. 12 of 2009)

^[2] Section 118 (1) (a) – Evidence Act 2009 (Act No 12 of 2009)