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Police v Van Dung [2019] WSDC 13 (1 November 2019)

IN THE DISTRICT COURT OF SAMOA
Police v Van Dung [2019] WSDC 13 (01 November 2019)


Case name:
Police v Van Dung


Citation:


Decision date:
01 November 2019


Parties:
POLICE (Informant) v TRAN VAN DUNG, male of Vietnam (Defendant)


Hearing date(s):
04 October 2019


File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Mata’utia Raymond Schuster


On appeal from:


Order:
On the evidence, I find that the prosecution has discharged the burden of proof beyond a reasonable doubt and the accused is therefore guilty of the charge.


Representation:
I. Atoa for the Informant
A. Su’a & R. Schuster for the Defendant


Catchwords:
Bribery


Words and phrases:
“corruption and bribery of a law enforcement officer”


Legislation cited:
Crimes Act 2013, ss. 132; 137(2);
Crimes Act 1961 (NZ), ss. 103(1); 103(2); 104; 104(2).


Cases cited:
Field v R SC3/2011; [2011] NZSC 129;
Police v Timai [1999] WSSC 49.


Summary of decision:

IN THE DISTRICT COURT OF SAMOA


HELD AT MULINUU


BETWEEN:


P O L I C E


Informant


AND:


TRAN VAN DUNG, male of Vietnam.


Defendant


Counsels: I. Atoa for the Informant
A. Su’a and R. Schuster for the defendant


Hearing: 4th October 2019
Decision: 1st November 2019


RESERVED DECISION

  1. The accused is charged that “... at Apia Police Headquarters on 22nd day of July 2019, corruptly gave a bribe, namely $50ST, to Constable Vaivai Laulu, with intent to inlfluence the law enforcement officer in respect of an act done by him in his official capacity to assist the accused in his visitation to his alleged wife” pursuant to section 137(2) of the Crimes Act 2013 (hereinafter referred to as the Act).

The Law

  1. Section 137(2) of the Act provides:
  2. The prosecution must prove that the payment would have been made corruptly if the accused had known or believed that the payment of monies was done because it would influence Constable Vaivali Laulu to do or omit to do an act in his official capacity as a police officer, that is, to allow the accused to see his wife in custody knowing that it was against police protocol.
  3. It appears that Mr Su’a does not dispute the identity of the accused as well as the fact that the accused gave monies to a police officer Vaivali Laulu. What Mr Su’a challenges is that the accused did not pay monies with the intention to influence Vaivali Laulu but only as a trivial token gift for cigarettes and food and it was only done after the accused had seen his wife.
  4. The prosecution called seven (7) witnesses: Angelo Chan Mow (IT Manager for Samoa Police), Roy Wong Lee, Inspector Eneliko Taeu, Constable Pisa Seia, Constable Ziggy Pula, Superintendant Norman Tuafale and Corporal Valaauina Tuamu.

Angelo Chan Mow

  1. Angelo Chan Mow testified as to the security video footage showing the incarceration and a meeting between the accused, Corporal Valaauina and Constable Vaivali Laulu. The video footage was not disputed by Mr Su’a and tendered by consent as Exhibit P1.

Roy Wong Lee

  1. Roy Wong Lee is a 26 year old male of Alafua, married and attends the National University of Samoa. Roy’s wife works at Prince Mart Roy testified that on 22 July 2019, he was instructed by the owner of Prince Marts and Dirco Mr Lee to accompany him to Fagalii Airport to pick up a Vietnamese person. Mr Su’a does not dispute the date stated in the charge.
  2. Roy testified that about 2pm they arrived at Fagalii Airport and picked up the Vietnamese male whom he identified as the accused and proceeded straight to the Apia Police Headquarters for the accused to see his wife. At the Police Station, Roy testified [page 7 of Transcript]:
  3. Roy asked the Police lady at reception and he was told they could not see the accused’s wife as she was being interviewed. Roy testified they were told to come back at 6pm and bring some food for the wife of the accused. The accused was then dropped off at Dircos Hotel at Matautu.
  4. Roy testified before 6pm, he and Mr Lee picked up the accused bought food and returned to the Police station. As they entered, Roy testified that the accused kept asking him [page 9 Transcript bold my emphasis]:
  5. A Police officer came and advised them that they cannot allow any meeting as the wife was detained for 24 hours and only after can any visitors be allowed. Despite this, the accused insisted to see his wife and continued to wait outside reception area. Roy testified that not long after, they were told to go into the CID office and another officer came to collect the food. Roy told this officer [page 10 Transcript]:
  6. They returned to the reception area but the accused kept pleading with Roy [page 11 Transcript]:
  7. Roy testified as they again waited outside the reception area, another high ranking officer came and said for the accused to come with him. The accused left for about 5 to 10 minutes. The accused returned and as they were about to leave, the same high ranking police officer came and told them to wait for 10 minutes. Not long after, they received instructions for the accused to come in again and Roy waited outside. It did not take long the accused returned and they went and dropped him off at Dirco’s.
  8. Under cross examination, Roy testified that he understood that the accused wanted to pay money to release his wife and take her to Pago [page 14 Transcript]:

Inspector Eneliko Taeu

  1. Inspector Taeu testified that he was charged with interviewing the accused on 26 July 2019. The caution statement was not disputed by Mr Su’a and tenderd by consent as Exhibit P2. Under cross examination, Inspector Taeu agreed that only the Commissioned Officer in charge can consider a request to visit any person in police custody.
  2. The accused relevant answers are noted below in detail and will come back to it later in this judgment:

Constable Pisa Sei’a

  1. Constable Pisa Sei’a testified that he was one of the officers who attended to Faleolo Police post to transport the accused wife to Apia on the 21 July 2019. Whilst the wife of the accused was being interviewed on 22 July 2019, Constable Pisa was instructed by the CID Officer in Charge (OIC) to come and collect clothes and food at reception area for the accused wife brought by the accused. He was also instructed to inform the accused that he cannot talk to his wife that day.
  2. Constable Pisa further testified as he was conversing with the accused and a Samoan male he was with, the CID OIC called to him and instructed to take the accused in the CID office and to take a copy of the accused passport. A copy of the passport was tendered without objection by Mr Su’a as Exhibit P3. Constable Pisa recalls that the accused was asking to see his wife but he advised him he cannot.
  3. As they left the CID office returning to the reception area Constable Pisa recalls [page 28 Transcript]:
  4. On the way out, Constable Pisa handed the food to Constable Vaivali Laulu to take to the accused wife. At the reception area, Constable Pisa recalls the Samoan man informing him that the accused was willing to pay money to release his wife [page 29 Transcript]:
  5. Constable Pisa left and returned to the General Policing area and informed Corporal Valaauina in charge of the accused wife’s investigation that the accused was insisting to see his wife. Present during this time was Constable Vaivali Laulu.
  6. Upon the arrival of the Commissioned Officer Norman Tuafale, Sargeat Valaauina informed the CO that the accused wanted to see his wife whilst Constable Vaivali, lady Constable Ziggy Pula and I were present.
  7. Whilst Constable Pisa was leaving the area, Corporal Valaauina called to him to get the accused the CO has allowed for him to see his wife. Constable Pisa then collected the accused from the reception area and on their way to see his wife, observed the accused reach for his wallet and he assumed that the accused was about to give him money. He immediately stopped him and told him it is not allowed.
  8. The accused then met his wife in the presence of the CO, Corporal Valaauina, Constable Vaivali and Constable Ziggy. The accused then left the office afte that. However, as Constable Pisa was returning to the CID section, Corporal Valaauina called him again and asked if the accused had left. Constable Pisa was asked to tell the accused to come back as the CID CO has allowed for him to see his wife but only for 5 minutes.
  9. Constable Pisa was instructed to take the accused inside interview room 1 and to remain present during the meeting with his wife for only 5 minutes.
  10. Constable Pisa testified that the accused wife returned to the watchouse after the meeting with the accused. He recalls about 5 to 10 minutes later, he came out to have a smoke and noticed the accused, Corporal Valaauina and Constable Vaivali inside a fenced area behind the police building.
  11. Under cross examination, Constable Pisa was adamant that the accused was clear about the payment of $5000 in order to release his wife. He further clarified that the chain of command is that any request to visit any person in custody has to go through the Investigating Officer and the IO to the CO. Constable Pisa denied that acceptance of any monies or cigarettes is prohibited under the regulations of the ministry.

Constable Ziggy Pula

  1. Constable Ziggy Pula is a female officer with seven years with the Ministry of Police. Constable Ziggy testified that on 22 July 2019 she was instructed by Superintendant Samuelu Afamasaga to assist with the investigation of the accused wife. She was involved in the interview of the accused wife.
  2. At the completion of the interview, Constable Ziggy was awaiting the arrival of the CO for the evening shift Superintendant Norman Tuafale to sign the charging paper work for the accused’s wife. As they were waiting, Constable Vaivali Laulu walked in with food for the accused’s wife from the accused.
  3. After the accused wife was processed, Constable Ziggy was accompanying her to the watchouse jail when Constable Vaivali called her from the steps outside while the accused was standing at the bottom. Constable Vaivali called out that the poor man wanted to see his wife [page 46 of Transcript]:
  4. Constable Ziggy then informed the CO Tuafale as to the accused’s request. The CO Tuafale said to bring the accused just to hug but no talk. After the accused hugged his wife, Constable Ziggy then transferred her to the watchhouse jail.

Superintendant Norman Tuafale

  1. Superintendant Norman Tuafale has 20 years experience and is in charge of the Police Forensics section. On the 22 July 2019, Tuafale was CO from 6pm till the morning of the following day. He was up-dated by Corporal Valaauina as to the accused wife’s case.
  2. Subsequently, he was advised by Constable Ziggy that there was a male outside requesting to see the female. CO Tuafale asked Valaauina and called the CID OC to get the consent and was advised by the CID OC just to meet but no conversation.
  3. Mr Su’a did not cross examine CO Tuafale.

Corporal Valaauina Tuamu

  1. Corporal Valaauina is a 39 years old male testified that he was in charge of the investigation of the accused’s wife. Towards the end of the day on 22 July 2019, he was advised that the accused was outside and the husband of the Vietnamese lady under investigation. Valaauina went to the front reception and informed them that it was not allowed due to the investigation. He then returned to continue the interview of the accused’s wife.
  2. After the interview, Valaauina and Constable Ziggy waited for CO Tuafale to arrive to complete the paper work for detainment of the accused’s wife.
  3. Once CO Tuafale arrived, Valaauina testified that he informed him of the case and to complete the paper work. It was during Valaauina’s reporting to CO Tuafale that Constable Ziggy entered and advised that the accused was outside and he just wanted to see his wife and then go. It was during this time Valaauina noticed that Constable Vaivali left the area.
  4. CO Tuafale instructed for the accused to come but only to hug and no conversation. After the accused met his wife, Valaauina took the wife to the custody area. As he was returning, CO Tuafale told him to contact CID CO Samuelu whether the accused could talk to his wife. Valaauina contacted CID CO Samuelu and was given the approval for the accused to talk to his wife but only for 5 minutes
  5. Valaauina contacted Constable Ziggy to bring the accused’s wife to an interview room to meet her husband. He also instructed Constable Pisa to be present in the interview room and to monitor the 5 minutes time limit.
  6. Valaauina then escorted with Constable Ziggy the accused wife back to the custody area and went outside. As he made his way out, he met Constable Vaivali and the accused standing outside. Constable Vaivali told him that the accused wanted to smoke and they proceeded to the caged area behind the police building. It was there that the accused asked if he could come back later to bring clothes for his wife. Corporal Valaauina advised the accused that he cannot as they would need to obtain consent from the CO again and he would have to come back the next day.
  7. It was then that the accused got out his wallet and gave him $10 tala and also money to Constable Vaivali. Corporal Valaauina rejected and said to the accused [page 57 of Transcript]:
  8. Exhibit P1 was played and Corporal Valaauina went through verifying his oral testimony with the video. Under cross examination, Corporal Valaauina was asked whether it was appropriate to receive monies by police for cigarettes. Corporal Valaauina responded that it was not appropriate particularly when from someone connected to an accused person.
  9. Corporal Valaauina was asked by the court as to the accused’s caution statement and the assertions he made as to police officers asking money from the accused and one police officer snatching his wallet from him as they were outside with Constable Vaivali. Corproal Valaauina denied that no such thing happened.
  10. Upon the prosecution closing its case, Mr Su’a advised the court that the accused elected not to give evidence.

Discussion

  1. The facts are straight forward and uncontested for the most part by the accused except for the evidence of Constable Pisa as to $5000 the Samoan man (Roy Wong Lee) suggested to him that the accused wanted to pay in order to release his wife. The question for the court is what inference or inferences can the court draw from the facts as to the intention of the accused relating to the payment of $50ST the accused does not contest that he made to Constable Vaivali Laulu.
  2. The prosecutions case is that the accused corruptly paid monies in connection with acts done by Vaivali Laulu in his capacity as a law enforcement officer. The prosecution submits that the only intention the accused had or with reckless indifference was to bribe police to get his wife released from custody of police and return with her to Pago.
  3. Section 132 of the Act defines the term “bribe” as “... any money, valuable consideration, office, or employment, or any benefit, whether direct or indirect; ...”.
  4. The wording is similar to section 104 of the Crimes Act 1961 of New Zealand (hereinafter referred to as “CANZ1961”). The court is indebted to Mr Su’a for a copy of Field v R SC3/2011; [2011] NZSC 129. In this case, Field was a Member of Parliament in New Zealand and was charged under section 103(1) of the NZCA1961 for accepting services from Thailand nationals in exchange for Mr Fields assistance in their immigration application to New Zealand.
  5. In a judgment delivered by Justice William Young, the court stated in paragraph 18 that:
  6. Although section 103(2) was not the charging section in Field v R, Jutice Young in paragraph 20 and 21 made the distinction that section 103(1) applies to the single concept of “corruptly” applicable to acts “to be done” or “had been done”. Section 103(2), however, only applies to where the act to influence must precede the relevant official act:
  7. S103(2) is the equivalent offending provision to section 104(2) of the NZCA1961 as to acts of corruption and bribery relating to law enforcement officers and in turn the latter the equivalent of section 137(2) of the Act. In paragraph 66, Justice Young went on to define in context the extent of the term “corruption” to mean:
  8. There is a more significant distinction between section 104(2) of the NZCA1961 and section 137(2) of the Act. The term “corruptly” is defined in the Samoan Act where it is not in the New Zealand legislation:
  9. The term “reckless” was discussed in the judgment of Wilson J in Police v Timai [1999] WSSC 49 (13 May 1999) which is distinguished on the facts and charge of indecent assault:
  10. The prosecution would therefore have to show that the accused either knew that the bribe would influence the person bribed or that the accused couldn’t care less whether the bribe influenced the person or not disregarding any risks flowing from such actions.
  11. The prosecution rely on the accused caution statement, the testimony of Roy Wong Lee and Constable Pisa Sei’a as to the intention of the accused to influence Constable Vaivali Laulu. The accused caution statement is in conflict with the evidence of Corproarl Valaauina so far as Mr Su’a suggests that the accused only gave money as he was enticed by police to give money. The fact that the accused relying on his caution statement as to facts in support of such a contention does not of itself make the suggestion truthful. It would still have to be considered in totality of the evidence and be scrutinized as to its credibility and reliability.
  12. Corproal Valaauina denied that at no time did a police officer suggest to the accused to give them smoke and money. There was no other evidence to support the accused statement that a police officer hand signaled to give money, snatched his wallet and took money from it outside where the smoking area was located. The video clearly showed there was no such behavior as described by the accused in his caution statement inside three minutes from the time they entered the smoking area to when the accused was observed leaving.
  13. Inspector Taeu testified that the accused responded he paid monies because for a long time whilst he waited police would not let him see his wife. Roy Wong Lee further testified that the accused was adamant prior to arriving at the police station as to paying monies to police so that his wife could be released and that they would return to Pago.
  14. Mr Su’a submits that the “... act of giving by the accused has to be interpreted more narrowly in the sense that it does not criminalize gratuities and that what was given is de-minimis.” Mr Su’a further submits that the only reasonable and logical inference that can be drawn from the facts to challenge the accused intention to corruptly influence is that it was police who asked the accused for money; the accused offered and paid monies only after seeing his wife; and that the amount given was trivial.
  15. Mr Su’a further submits that the definition of “corruptly” in section 132 of the Act should not apply to section 137(2) of the offending particularly the “reckless” element. Mr Su’a does not offer any authorities in support of his contention and I therefore take no regard of it.
  16. It must be noted that although in Field v R, Justice Young made the distinction between substantial benefits and unexceptional token gifts the latter forming a de-minimis defense, Justice Young did not rule out the fact that trivial gifts can still be a bribe done so with the intention to influence. In paragraph 59 of the judgment, Justice Young stated:
  17. The same can be said of persons who intend to offer monies or rewards as benefits for officials in return for things to be done in an official capacity as is alleged in this case.
  18. Justice Young in Field v R found that gratuities is not included as an offence in section 103(2) NZCA1961 as well as the finding that section 103(2) relating to those who provide or offer bribes must logically precede the relevant official act. Section 103(2) is the same model as section 137(2) of the Act. However, I am of the view that the definition of the term “corruptly” in the Act which includes both knowledge or “recklessness” element encompasses an act “done” or “to be done” notwithstanding.
  19. I find no reason to disbelieve or doubt the evidence of Roy Wong Lee, Constable Pisa, Inspector Taeu and Corporal Valaauina as to the intention of the accused to influence police so that he can see his wife and perhaps also to facilitate release and transport of his wife to American Samoa to avoid prosecution. The accused made his intentions known to Roy several times that he would pay money to see his wife and must have known that Roy would communicate that to the law enforcement officers. He had no regard as to any consequnes or took a “couldn’t care less attitude” as evidenced from Question 28 that he did not care as to how much money was taken only that he wanted to see his wife. Roy did communicate the accused offer to Constable Pisa although he never testified to an amount of $5000 Tala.
  20. I accept Constable Ziggy Pula’s evidence in that Constable Vaivali must have been aware of the accused eagerness to pay money to see his wife for him to be standing with the accused at the steps in full view of the area where the accused wife was being interviewed and accompanied by Constable Ziggy to the holding cell. Mr Su’a did not dispute that Constable Vaivali called out to Constable Pula that the accused wanted to see his wife. This set in motion the request to the CO Norman Tuafale to consider and grant the request.
  21. I find the accused caution statement to be self serving given its conflict with the evidence of Corproal Valaauina and Exhibit P1 the video footage. There was no hand signal observed from both Corporal Valaauina and Constable Vaivali suggesting they wanted money as well as any snatching of a wallet. The accused behavior as observed in the video footage was consistent with Roy’s evidence and Constable Pisa of the accused eagerness to pay monies. The accused immediately upon entering the caged smoking area proceeded to reach into his pocket and commenced offering monies to Corporal Valaauina and Constable Vaivali.

Conclusion

  1. On the evidence, I find that the prosecution has discharged the burden of proof beyond a reasonable doubt and the accused is therefore guilty of the charge.

DCJ SCHUSTER

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