R v Kong [2021] SBMC 2; Criminal Case 237 of 2021 (28 April 2021)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 237 of 2021

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: LAI TZY KONG

Police Constable Abel Maelanga for Police Prosecutions

Mr John Taupongi for the Defence

Date of Sentencing submissions: 22^nd of April 2021

Date of Sentence: 28^th of April 2021

SENTENCE

Back-ground

1. Mr Lai Tzy Kong, you were initially charged with one count of Assault Causing Actual Bodily Harm (ACABH), an offence contrary to section 245 of the Penal Code. Following a proposal sent by your lawyer, the charge was amended to that of Common Assault.
2. Upon arraignment on the 19^th of April 2021, a guilty plea was entered on your part. The matter was further adjourned to allow both the Prosecutions and your lawyer, to work on the agreed facts, and the sentencing and mitigation submissions.
3. On the 23^rd of April, the set of agreed facts was filed along with the submissions for sentencing and mitigation.
4. I proceeded further into entering conviction against you, based on your admission through the agreed facts.

Law/ maximum penalty

5. The offence of Common Assault, is contrary to section 244 of the Penal Code, and it carries a maximum penalty of 1 year imprisonment.
6. Maximum penalties, in my view, are prime indicators of how serious an offence is. This view is supported by the remarks made in the case of Regina v Kemakeza, where his Lordship, Chief Justice Sir Albert Rocky Palmer states, and I quote:

“The level of the seriousness of offences is reflected on a prima facie basis by what the law imposes as the maximum penalty imposed. The more serious an offence, the greater the maximum penalty imposed^[1]”.

Agreed facts

7. Briefly from the facts, I note both you and the victim, are employed by the same Company, that is, the Solomon Islands Resources Limited (SIR). On the day in question, facts stated that you invited the victim into your office, purposely for the two of you to have a discussion. I also note that the offending had arose from allegations relating to your wife.
8. You became angry when the victim kept on denying the allegations, that you ended up doing the actions that has led you to court today, and the past few days.

Affidavit filed by Defence

9. In support of the submissions made on your behalf, your lawyer, Mr Taupongi, has also filed an affidavit containing the all the evidence that might assist on your part.
10. I then raised the issue that the affidavit was not in due form, with reference to the ruling delivered by the Chief Magistrate, Emma Garo, in the bail application of Mr Mostyn Maenu’u Junior, Criminal case 350 of 2020.
11. In response, Mr Taupongi submitted, that he is not aware of any changes to the form in which affidavits are to be prepared. He further states that so long as it clearly points out the name and address of the person preparing the affidavit and so long as the certificate for compliance is attached, the requirements would be deemed as fulfilled. In his opinion, any forms relevant to the Criminal Jurisdiction, must be clearly pointed out in the Criminal Procedure Code.
12. There were no views shared on the part of Police Prosecutions in this regard and I do not know if the Prosecutor had even picked the issue in question. Rule 14.1 of the Civil Procedure Rules 2007, under Chapter 14: Sworn Statements, states the following:

“In any Act or Regulations a reference to an affidavit includes a sworn statement^[2]”.

13. A simple definition to the word any, would mean: “one or some indiscriminately of any kind^[3]”. Interestingly, the word indiscriminate, means: “not marked by careful distinction^[4]”.
14. Hence, it would be correct to say that any reference to an affidavit including sworn statements would all be the same, whether in relation to any Acts or Regulations that are both Criminal and Civil in nature.
15. This would explain as to why Ms Rachel Olutimayin, who currently holds the post of Director of Public Prosecutions, concedes to the fact that the affidavit she filed to rebut the bail application of Mr Mostyn Maenu’u Junior, was not in due form or appears to be defective in nature^[5].
16. Rule 14.9 of the Civil Procedure Rules 2007 clearly states that a sworn statement must be substantially in accordance with the form in Schedule 2 and made in first person. Schedule 2, comprises of FORM 18 r 13.6, FORM 19 r 13.51, FORM 20 r 14.9 as well as other forms relating to how evidence is sworn^[6]. In this regard, FORM 20 r 14.9, would be the preferred form under the Civil Procedure Rules 2007 with reference to rules 14.1 and 14.9 of the Civil Procedure rules 2007. I need not emphasis on the fact that the Civil Procedure Rules 2007 now replaces the High Court Civil Procedure Rules 1976, since I expect both Counsel for the Defence and Prosecutions to be already well versed with the forms and amendments referred to.
17. Hence it is with the greatest respect for the views shared by Mr Taupongi and the findings reached, that I will not accept the affidavit filed on your behalf and further point, that it is not in due form.

Sentencing submission by Prosecutions

18. In terms of the sentencing submissions filed in this regard, Prosecutions started by pointing out their duty in relation to passing of sentences. Reference was also made word by word to the agreed facts tender by both parties.
19. In their view, the following are the aggravating features involved:
    1. The maximum penalty, which is one (1) year imprisonment;
    2. The act done; and
    100. The pain suffered by the victim, resulting from the assault.
20. The only mitigating factors which Prosecutions identified, are that of no previous convictions and the fact that the Accused, Mr Kong is under medication.
21. Two cases were cited in support of the submissions made.

Submissions by the Defence for sentencing

22. The submissions by the Defence in this regard, covers the agreed facts, sentencing principles to be considered, aggravating and mitigating factors, as well as the sentence in which the court should consider imposing on you.

Analysis

23. From what is currently available before me, I do agree with Mr Taupongi, when he referred to the types of sentences available to this court, at paragraph 7.1 of his written submission.
24. While I acknowledge that this case is not the first of its kind, I am always mindful of the need for each case to be dealt with based on their own set of facts and circumstances. I note that there are a number of factors highlighted to explain why you ended up doing what you did. It was in Mr Taupongi’s written sentencing submission, that parts of the agreed facts were made clear to me.
25. Mr Taupongi points out the fact that you were provoked into doing what you did. While provocation is not an excuse in this regard, I have been asked to consider the back-ground of this offending.
26. Furthermore, I was also asked to consider your previous good character, both here in the Solomon Islands, and back in Malaysia. While there is no evidence of any previous convictions back in Malaysia, I will pay due consideration to your clean record here in the Solomon Islands, given that nothing of the contrary has been submitted.
27. The early guilty plea which was entered on the 19^th of April 2021, was also highlighted in your favour.
28. The final factors can be combined to reflect the personal circumstances that you are already faced with, that is you being the bread winner for your family and the fact that you are suffering from medical implications.
29. I sympathize with you for the problems you have encountered, both with your co-worker and your family, as a human being I understand the stress you encountered, but always bear in mind, the need to be mindful and careful in how you decide to handle things.
30. I hope your conviction, in one way or the other, has been taken as a lesson that will not only punish you for your wrong doing, but to also rehabilitate you.
31. I concur with the remarks uttered in the case of Joel Likilia & Allen Kokolabu v R, where his Lordship, Chief Justice Ward, as he was then, stated:

“Sentencing is not a process that follows exact mathematical rules. Circumstances and people vary and it is undesirable to consider such comparisons as more than a very imprecise guide^[7]”.

32. While I acknowledge the references being made to previous cases, which I believe would be helpful in minimizing or avoiding objectionable disparity, I am also of the view that cases be determined based on the facts and circumstances relevant to them.
33. As always, this court will strongly advocate on the need for both specific and general deterrence, rehabilitation, retribution and prevention.
34. With the circumstances at hand I see that the appropriate sentence would fall under, either a bound over sentence, or a sentence of fine. In determining which sentence would be appropriate, I must ensure that both the sentence and circumstances involved, be proportionate to each other.
35. Having weighed the entirety of this matter, and the suggestions submitted by both prosecutions, and Defence, I strongly believe, that the appropriate sentence I should impose, to ensure sentiments of both specific and general deterrence, rehabilitation, retribution and prevention, are sent out to both you and the general public, is that of a fine.
36. Hence, with the relevant deductions made to reflect the mitigating factors, as well as having paid due consideration to the aggravating factors involved, I now order as follows:

ORDER:

(i) For the offence of Common Assault, contrary to section 244 of the Penal Code, a fine of SBD $700.00, which is due by the 30^th of April 2021.
(ii) In default of payment, 40 days imprisonment, as per the penalties and Miscellaneous Amendment Act 2009.
(iii) Right of appeal applies to any party aggrieved in this regard, within 14 days from today.

Dated this 28^th day of April 2021.

____________

THE COURT

Emily Z Vagibule

---

^[1] [2008] SBHC 41; HCSI-CRC 467 of 2007 (3 September 2008), paragraph 19.
^[2] Rule 14.1, Civil Procedue Rules 2007
^[3] Merriam-Webster, https://www.merriam-webster.com/dictionary/any. 27^th of April 2021.
^[4] Merriam-Webster, https://www.merriam-webster.com/dictionary/indiscriminate. 27th of April 2021.
^[5] Ruling on bail, (Unrep R v Mostyn Maenu’u Junior), 14^th October 2020.
^[6] Schedule 2, Civil Procedure Rules 2007.
^[7] [1998/89] SILR