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Regina v Sing [2018] SBMC 4; Criminal Case 535 of 2016 (12 February 2018)

IN THE CENTRAL MAGISTRATE’S COURT
OF SOLOMON ISLANDS


CRIMINAL JURISDICTION


Criminal Case No. 535 of 2016


REGINA


V


LOH JING SING, JOHN MAMIONG, CHARLES TAKULE & SKT WAVASAN (SI) LIMITED


Closing submissions: February 6, 2018
Judgment: February 12, 2018


Mr. P. Abe for the Prosecution
Mr. B. Kaehuna for the Defendants


JUDGMENT

  1. The four defendants, Loh Jing Sing, John Mamiong, Charles Takule and SKT Wavasan (SI) Limited were tried for the following immigration charges:

Facts


  1. The pertinent facts of the case based on the evidence unfolded during the trial are these. The defendants, Loh Jing Sing and Charles Takule are employees of the corporate defendant named SKT Wavasan (SI) Limited. Sing is employed as a Camp Manager looking after a logging camp in the Shortland Islands called Metuai. Takule is the Personal Officer and assisted Sing with the logging operation.
  2. Mamiong is one of the Directors of a land owners’ registered business entity. All the defendants were stationed at the Metuai logging camp before the 26th of July 2016 when they were arrested by the Royal Solomon Islands Police Force (RSIPF).
  3. The logging operation at Metuai commenced as a result of logging agreements entered into by three corporate entities. They were; Xiang Lin (SI) Limited, SKT Wavasan (SI) Limited (SKT) and Aleang Land Region Committee (ALRC).
  4. Xiang Lin is the licensee. It subcontracted[1] SKT Wavasan to carry out logging operations with its machineries in the approved designated concession areas. ALRC’s role on the other hand is a guarantor and is responsible to provide policing or security for SKT during the tenure of the logging operation.
  5. The logging operation started in 2015 after signing of the logging agreements.[2] However, during the course of the operation, the logging camp was raided by armed rogue Bougainvilleans where valuable properties and a large amount of money were stolen from the logging camp. This resulted in some Bougainvilleans came over to Shortland Islands to do voluntary awareness programs for purposes of monitoring and investigating the illegal activities carried out in the past by Bougainvilleans.
  6. During one of the awareness programs, ALRC as represented by Mamiong requested the awareness team to provide Bougainvilleans to work as securities for the logging operations. The team indicated its willingness to assist and hence, an arrangement was made with a Bougainvillean named David Kongkori to station four Bougainvilleans at the Metuai camp, purposely to monitor the situation.
  7. On 23rd July 2016, Mamiong, Takule with some other males went over to Bougainville by boat. They returned to the logging camp the same day with four Bougainvilleans. Mamiong straightaway accommodated them in a leaf house at a log pond located several hundred meters away from the logging camp. Mamiong and Takule knew very well they were not Solomon Islanders or non-citizens in other words and their presence at the Metaui log pond area was illegal since they did not have entry visa.
  8. Their unlawful presence at the camp was later communicated to the RSIPF. Hence, on 26th July 2016, RSIPF sent a team to the Metuai logging camp and carried out a raid, and arrested the four Bougainvilleans together with the defendants.
  9. The four Bougainvilleans were interviewed by the Immigration Authorities and were ordered to pay spot fines. Thereafter, they were deported to Bougainville.

Undisputed facts


  1. The following are the facts that are not contradicted or even disputed during the trial:
  2. As a result of my ruling under section 118 of the Evidence Act[3], I further admitted the following facts and give due weight to them accordingly:

Further admitted facts


(a) That the four Bougainvilleans were; Joe Kukusi, Lawrence Karimo, Alex Mino and Mathew Moi.

(b) That they were picked up on 23rd of July 2016 from Kagu, Bougainville, by Mamiong purposely to work as securities at the Metaui logging camp.

(c) Mamiong told one of them named Joe Kukusi, that the boss of the company wanted Bougainvilleans to work as security for the company.

(d) Mamiong accommodated them in a leaf house at the Metuai logging area.

(e) That according to Mathew Moi, he said “The Logging camp manager gave us a house and we stay in the camp as a security officer for the company.”[4]

(f) During the day, they worked for the Company’s lucas mill and worked as security for the company during the night.

(g) Some Shortland Islanders also worked there as security officers.

(h) The company provided them food.

(i) They were not in possession of any firearm whilst at the logging camp.

(j) They did not have any work permit whilst working at the Metuai logging camp area.

The Prosecution’s case


  1. The prosecution urged the Court to consider these Bougainvilleans or noncitizens were clandestinely transported without a visa from Bougainville which is in Papua New Guinea, and into the Shortland Islands in Solomon Islands.
  2. The logging company boat was used for that course and Mamiong and Takule went there to do the transportation of the Bougainvilleans. They were housed, fed and employed by Sing, Takule and Mamiong to further the interest of SKT. These three non-corporate defendants knew of their presence and actively facilitated their illegal staying for purposes of working as securities for SKT until their arrest. Thus, their actions amounted to the offences under sections 68 and 69 of the Immigration Act 2012.

The Defence’s case


  1. The defence on the other conceded to the presence of the Bougainvilleans at the Metuai logging camp area and the fact that they did not have a visa or work permit whilst in Solomon Islands. However, they respectively denied they harboured the Bougainvilleans. They said those Bougainvilleans came over to the logging camp purposely to do monitoring of the illegal activities recently carried out by rogue Bougainvilleans at the logging camp. That mission was authorised by the authorities from Bougainville and not for employment purposes by SKT as alleged by the prosecution.
  2. Further, the defence urged the Court to consider their presence in the Shortland Islands was part of the free movement for traditional activities as permitted under the 1989 Treaty between the government of Solomon Islands and Papua New Guinea. Thus, the defendants herein should not be criminally responsible for this.

Court’s assessment and findings


  1. Before I delve into the findings of the Court in relation to the charges, at the outset, I wish to briefly address the issue of free movement for traditional activities as encompassed under the 1989 Treaty between the government of Solomon Islands and Papua New Guinea. Unfortunately, the Immigration Act 2012 as the law regulating movements of foreigners into Solomon Islands does not recognise or makes special provisions for Bougainvilleans based on this arrangement. Unless, the Act is amended, any entry into Solomon Islands must comply with the provisions of this legal regime.
  2. Even if I accept the terms of this treaty may have some bearing on the movement of the four Bougainvilleans herein into Solomon Islands for any purported traditional activities, there is not any evidence that they were provided with any border crossing card as required under article 6 of the treaty so that their entry into Solomon Islands may be legitimised under that treaty.
  3. I therefore reject the submission that these Bougainvilleans are entitled to move freely into Solomon Islands without any visa and the implication that the defendants herein should be exempted from any criminal offence under the Immigration Act[5].
  4. The evidence has already before the Court. I do not need to regurgitate or repeat every single evidence put before me by the prosecution and defence, save to say that I have already considered them in their entity.
  5. I will first deal with the offence of harbouring.
  6. Section 68 (1) of the Immigration Act[6] states:

“68(1) A person must not harbour or assist another person whom the person knows, or has reasonable grounds to believe, is an unlawful non-citizen.”


  1. The Immigration Act[7] or even the Interpretations and General Provisions Act does not define ‘harbouring’ in the context of dealing with unlawful noncitizens. Hence, the Court has to look to other jurisdictions on how harbouring was defined when dealing with immigration cases.
  2. The experience of the courts in the United States of America for the definition of harbouring when dealing with undocumented citizens is very helpful given my inability to find any case law on the experience of other pacific countries on this issue.
  3. In the case of Susnjar v. U.S.,[8] the Court defined ‘harbouring’ to mean “to clandestinely shelter, succour and protect improperly admitted aliens.”
  4. In another case of U.S. v. Aguilar,[9] the Court defined harbouring to mean “to afford shelter to and does not require an intent to avoid detection.”
  5. In U.S. v. Costello,[10] referred to in the defence submission, Posner J, defined ‘harbouring’ to mean “providing (or offering) a known illegal alien a secure haven, a refuge to stay in which authorities are unlikely to be seeking him.”
  6. The definition of harbouring provided in those case laws when considering it in light of section 68 of the Immigration Act has the following elements that need to be proved:
  7. Since this is a statutory offence, the actus reus or actions of the defendants are crucial in proving whether or not they committed the offence.

Elements in contention


  1. In my view, the element of harbouring is the only contested element in the trial since all the other elements are not in contention.
  2. In order to find whether or not the defendants harboured the four Bougainvilleans, the Court will look at their respective actions particularly when these Bougainvilleans were present at Metuai.
  3. To prove this will largely come from the evidence of the four Bougainvilleans and the admissions of the defendants (if there is any).
  4. The effect of the admitted evidence[11] of Joe Kukusi shows that when Mamiong arrived at Bougainville, he said to him that the boss of the company wanted some Bougainvilleans to work as security for the company. He accompanied Mamiong and when he and the other three Bougainvilleans arrived, Mamiong accommodated them in a leaf house at the Metuai log pond. They worked for the company as lucas mill operators during the day and as securities during the night.
  5. The admitted evidence[12] of Lawrence Karimo established that the company provided them with food whilst at Metuai. The name of the company was not known or clarified in his statement.
  6. Alex Mino’s evidence also revealed that they were accommodated in a company’s leaf house and worked with the lucas mill during the day and as security during the night. They yet to receive any payment when they were apprehended by the RSIPF.
  7. Mathew Moi’s evidence established that the Camp Manager gave them a house and he and the other Bougainvilleans accommodated in that leaf house and worked as security officers for the company.
  8. In relation to the defendant, John Mamiong, the various evidence from the Bougainvilleans are self-explanatory. I have no hesitation to say that the evidence against him is clearly overwhelmed. He even admitted in his own sworn evidence during the trial that he is the proprietor of ALRC and when he arrived in Bougainville on the 23rd of July 2016, he himself asked for the Bougainvilleans to come to the Shortland Islands to work as security for the logging operation. When he brought them to Metuai, he accommodated them in a leaf house at the log pond area and provided them with food. He knew they were residing without a visa. They lived and moved around at the Metuai logging camp area under the safe haven provided by Mamiong until they were arrested by the RSIPF. In my view, his actions amount to harbouring of unlawful citizens.
  9. I find his denial of the allegation is so unconvincing against the weight of the contrary evidence offered by the prosecution. It also did not make sense and just time wasted. I find he is not a credible witness and therefore, I reject his explanations that he didn’t harbour the Bougainvilleans. Instead, I am satisfied with the prosecution’s evidence and convict him accordingly of the offence of harbouring unlawful noncitizens, contrary to section 68 (1) of the Immigration Act.
  10. In relation to Charles Takule, the evidence is that he is the Personal Officer of SKT and as he admitted, he was responsible for dialoguing between the people and the SKT on any issues affecting the operation of SKT. Following the raid by the rogue Bougainvilleans, SKT had threatened to stop its logging operation and will only continue unless there is assurance from the land owners that their security will be guaranteed during the logging operation.
  11. He was the one who accompanied Mamiong to Bougainville and returned with the Bougainvilleans. He said they went there for marketing purposes but his evidence is silent whether they ever bought some goods from the purported market trip. This is very suspicious.
  12. Those Bougainvilleans then worked as securities at the log pond.
  13. It is common understanding that he knew they were not Solomon Islanders when they were at Metuai and were without any visa. He also knew they were accommodated in a leaf house at the log pond vicinity used by SKT for storage of the felled logs. He was accommodated in the same house but in a different room to Mamiong at the logging camp. As a Personal Officer for the company, he did absolutely nothing to persuade Mamiong to return or deport the Bougainvilleans to their island due to their illegal status but silent it until they were arrested.
  14. The security services provided by the Bougainvilleans is for the benefit of the SKT’s following the raid and intrinsically inked with the interest of the logging operation. For the number of days they roamed and worked at the logging camp site was too enough to ring him a bell for him to protest or even to communicate to the lawful authority the illegal presence of the Bougainvilleans. By virtue of his position, he has an expected responsibility to oust them from the vicinity of the logging operation given their unlawful presence. He didn’t bother to do so despite his knowledge that he was one of those who accompanied them in the boat from Bougainville to the Shortland Islands and that they were illegally kept inside the vicinity of the logging operation. His conduct when closely scrutinised in a broader context was in support of their continued illegal presence at the logging camp as this was in reality what transpired on the ground at Metuai. That is the obvious inferences I draw from the overall tenor of his conduct and thus, I am satisfied that his actions amounted to harbouring of these unlawful four Bougainvilleans.
  15. I find the prosecution has also proved its case against Charles Takule against reasonable doubt and he is accordingly convicted as charged.
  16. In relation to Loh Jing Sing, the only evidence implicating him is from the admitted statement of Mathew Moi who in his evidence stated “The Logging camp manager gave us a house and we stay in the camp as a security officer for the company.” [13]
  17. He vigorously denied any knowledge whatsoever of the four Bougainvilleans of their arrival at the log pond area and only knew of their presence at the camp when they were arrested by the RSIPF. He denied being responsible for providing them food and accommodation whilst they were at the Metuai logging camp.
  18. I have listened to his explanations in court but found these to be in total contradiction to his evidence in his caution statement exhibited P4. That statement was agreed to by both the prosecution and the defence for the Court to admit against him.
  19. Thus, by agreeing to have it tendered by consent means it is now an uncontested evidence in court.
  20. In his answers to Q12 of his caution statement taken on 31/07/2016, he stated:

“The company gave foods to the Bougainvilleans.....The four Bougainvilleans security arrived on the 23rd July 2016 from Bougainville.”


  1. If that was his evidence he gave to police within 8 days (31/07/2016) after the arrival of the Bougainvilleans then his statement makes sense compared to his oral evidence in court. In my view, he knew very well the arrival of those Bougainvilleans at the log pond area since he was there the whole time managing and overseeing the logging operations at the Metuai logging camp and could easily see them roaming or working at the site of the logging camp. The reference to “company” in his statement must mean the company that employs him.
  2. Given his contradictions, I find he is an unreliable witness and one who tries to avoid any apportionment of blame. He is the Camp Manager of Metuai and hence, I am at loss to understand his explanations that he didn’t know of the presence of those Bougainvilleans even though they were operating the lucas mill at broad day light and were providing him security at the very location where he was accommodated the whole time before they were arrested by RSIPF. I find his explanations nonsensical and against logic. A person who is sick and bedridden, and spent all his time in a closed room would come up with such explanations like what he uttered in court.
  3. Instead, I believe and accept the statement made by Mathew Moi who stated the defendant, Sing also took part in the allocation or giving of the approval for them to accommodate in a house at the vicinity of the Metuai log pond area. There is only one Camp Manager at Metuai logging camp and who is none other, but the defendant, Sing.
  4. Moi was not mistaken of his position and said that it was him who also permitted them to accommodate in the leaf house at the log pond area whilst they were working as securities at the logging camp. Based on this finding, his action of allowing those non-citizens (who cross border by boat without any visa) to accommodate at the logging vicinity for the purposes of providing security for the logging operation amounts to harbouring of unlawful citizens.

  1. Therefore, I am satisfied of the evidence against him and convict him accordingly as charged.
  2. I now turn to the offence of employing unlawful non-citizen contrary to section 69 (1) of the Immigration Act[14] instituted against the defendant SKT Wavasan (SI) Limited.
  3. Section 69 (1) states:

“(1) A person must not employ, or continue to employ, a non-citizen unless -

(a) the non-citizen is an exempt person; or

(b) the non-citizen holds a visa with a condition authorising the non-citizen to work or take up employment in Solomon Islands and the employment is in accordance with the condition and any circumstances specified in relation to the condition.”


  1. To prove this, the Court must be satisfied with the evidence that the Bougainvilleans were employed by the defendant. Mamiong in his oral evidence admitted that his business entity was responsible for the employment of the securities for the logging operation.
  2. There is not any direct evidence from the prosecution that the four Bougainvilleans were employed by SKT to work as securities. There is not any written agreement or documentary evidence such as payslips, cheques etc... or any form of evidence akin to this, to establish this crucial aspect of the prosecution’s case. Takule and Sing denied employing the Bougainvilleans and said that it was ALRC that employed them to provide security for SKT.
  3. The admitted evidence of the four Bougainvilleans did not specify which company they were working for at the logging camp given that there were three corporate entities were involved or contracted in the logging operation. Their evidence were vague and unhelpful.
  4. The prosecution conceded that it relies only on the address of the letter dated 31/07/2016 from the Immigration Division written to SKT of the obligation to pay the spot fines for the four Bougainvilleans. This does not in any way concretely validated that SKT was the employer of the Bougainvilleans as the payment of the fines was done after the date of the offending and may be tantamount of reaching different interpretations and conclusions. It may be even accepted as the convenient mode of communication by the Immigration Division to the Bougainvilleans whilst they were in Solomon Islands.
  5. The Technology and Management Agreement or D2 clearly shows that ALRC is responsible for the employment of securities for the logging operation and this was the state of evidence maintained throughout the trial.
  6. The prosecution could have explored more its case in cross examination but unable to negate this evidence adduced by the defence. I cannot even draw any inferences to impute the defendant to this charge given the flimsy state of the prosecution’s evidence.
  7. Therefore, the defendant, SKT, must be given the benefit of the doubt and must be acquitted forthwith of the charge of employing unlawful non-citizens, contrary to section 69(1) of the Immigration Act[15].
  8. Order accordingly.
  9. 14 days right of appeal applies to any aggrieved party.

------------------------------------------------------------------------------------
THE COURT
Augustine Aulanga – Principal Magistrate

[1] D5
[2] D2 and D5
[3] 2009
[4] Paragraph 3 of his statement taken on 29/07/2016
[5] 2012
[6] Ibid
[7] Ibid
[8] 27 F2.d 223 (6th Cir.1928)
[9] [1989] USCA9 296; 883 F.2d 662 (9th Cir. 1989)
[10] 66 F. 3d 1040 (7th Cir.2012)
[11] Admitted under section 118 of the Evidence Act 2009
[12] Ibid
[13] See footnote 4 above
[14] 2012
[15] 2012

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