Police v Van Dung [2019] WSDC 14 (27 November 2019)

IN THE DISTRICT COURT OF SAMOA
Police v Van Dung [2019] WSDC 14 (27 November 2019)

Case name:	Police v Van Dung
Citation:	[2019] WSDC 14
Decision date:	27 November 2019
Parties:	POLICE (Informant) v TRAN VAN DUNG, male of Vietnam (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Mata’utia Raymond Schuster
On appeal from:
Order:
Representation:	V. Afoa for the Informant A. Su’a for the Defendant
Catchwords:	Bribery – corruption.
Words and phrases:
Legislation cited:	Crimes Act 2013, s. 137(2).
Cases cited:	Fields v R [2011] NZSC 129; National Prosecution Office v Stowers [2016] WSCA 6; Police v Samau, WSSC 12 November 2010 (unreported) Police v Feepo [2011] WSSC 123; Police v Tausili [2015] WSSC 70; R v Noone [2016] NZHC 2970.
Summary of decision:

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

TRAN VAN DUNG, male of Vietnam.

Defendant

Counsels: Ms Vaisala Afoa for the Informant

Mr Alexander Su’a for the Defendant

Submissions: 25th November 2019
Decision: 27th November 2019

SENTENCING

1. The accused was found guilty on 1 November 2019 following a defended hearing on 4^th October 2019 on one charge of corruptly bribing a law enforcement officer pursuant to section 137(2) of the Crimes Act 2013 (hereinafter referred to as the Act).

Facts

2. The facts are that the accused arrived via Fagalii Airport from American Samoa on 22 July 2019 at about 2pm. He came to Samoa to see his wife who was held in Police custody at the the Police Headquarters in Apia for alleged importation of illegal substances on her person at Faleolo International Airport on 21 July 2019. In his attempts to have immediate access to his wife, the accused paid monies of $50 Tala to a law enforcement officer Constable Vaivali Laulu despite being advised by Corporal Valaauina Tuamu it was not possible to see his wife as she was being investigated.
3. The accused was accompanied by Roy Wong Lee who picked him up from Fagalii. Roy testified that the accused was persistent in his pleas to him to pay monies to Police so that he can see his wife and get her released so that they can return to American Samoa. Constable Pisa Sei’a testified that the accused tried to pay him monies when he was instructed to accompany the accused to see Corporal Valaauina. The security video produced by the prosecution also showed the accused immediately after entering the enclosed smoking area trying to hand monies to Corporal Valaauina and Constable Vaivali Laulu. There appeared no gestures by Corporal Valaauina and Constable Laulu to the accused to prompt the payment of any monies as opposed to the accused caution statement that the police officers asked and made gestures to him to pay monies, one officer grabbing his wallet and removing monies.

The Law

4. Section 137(2) of the Act provides:
   • 137. Corruption and bribery of law enforcement officer – ........
   • (2) A person is liable to imprisonment for a term not exceeding 7 years who corruptly gives or offers or agrees to give any bribe to any person with intent to influence any law enforcement officer in respect of any act or omission by the law enforcement officer in his or her official capacity.

Personal circumstances of the accused

5. The accused is a 33 years old male and a citizen of Vietnam now residing in Leone, American Samoa since 2012. He is married to his second wife and have 3 children, 8 years and 2 years the third child recently born whilst awaiting his sentence. The accused is a businessman operating a small vegetable farm supplying shops, restaurants and hotels in American Samoa. He has three siblings: 2 older sisters and one younger brother. His parents are elderly in their 70s residing in Vietnam. One sister and the younger brother have been living in American Samoa since 2009 operating their own businesses.

Aggravating features of the offending

6. The offending carries a maximum penalty of seven (7) years imprisonment. The fact that an imprisonment term and the maximum of seven years clearly implies that Parliament considered this type of offending as serious and against the moral fabric of the administration of a democratic government. The Court of Appeal agreed with Justice Aitken in National Prosecution Office v Stowers [2016] WSCA 6 (19 February 2016) that:
   • “Bribery of law enforcement officers is a serious offence. It strikes at the heart of any system of law enforcement. It undermines public confidence in such systems and it breeds contempt for them. Corruption is utterly corrosive. There is always a risk that it will spread and for these reasons offenders can expect the court to take a very stern approach when sentencing those convicted for bribery charges.”
7. Unfortunately, I am unable to obtain Justice Aitkens sentencing remarks and the circumstances so far as the charge relating to the bribery of a law enforcement officer. The Court of Appeal, however, gave the Defendant Vaoita Stowers the benefit of the doubt given that she was a prisoner and in a vulnerable position as it was the “senior police officer who initiated the whole episode”. This was a special circumstance that warranted the court to take a different approach and dismissed the Attorney Generals appeal for a cumulative sentence.
8. Mr Su’a submits that the amount of $50 Tala is nothing compared to the amount in Fields v R [2011] NZSC 129 and R v Noone [2016] NZHC 2970 and constitutes a de minimis defense. Although the amount is a relevant factor to be taken into account as to the extent the accused was willing to commit the offense, it is the specific intent or reckless intent to corruptly bribe a law enforcement officer that is the primary factor to be considered.
9. The accused conduct was clearly deliberate and intentional. He travelled to Samoa at the earliest opportunity to find anyway to release from police custody, what was suggested during the course of the hearing, his wife. Mr Su’a now submits she is the sister of the accused wife the latter currently residing in American Samoa. The accused went immediately to the Police headquarters and on the way was asking Roy Wong Lee how to pay the Police monies for the release of “his wife”. He was persistent with his request to Roy as his medium of communication with the Samoan police officers. The accused so far as Constable Sei’a’s evidence is concerned even tried to offer monies to Constable Sei’a and finally caught on security camera offering monies to Corproral Tuamu and giving monies to Constable Vaivali Laulu.
10. There appears to be not many official corruption and bribery cases under section 35 of the repealed Crimes Ordinance 1961 and section 137 of the Act. However, there is a notable increase.
11. In Police v Feepo [2011] WSSC 123 (25 July 2011), Justice Nelson referred to previous cases in sentencing involving official corruption charges against two Ministry of Finance Officials:
    • I am mindful that the defendants appear for sentence not of charges of theft as a servant but official corruption. While official corruption is not an offence that has often arisen in the courts of this country there are precedents for it within jurisdiction. There was a case in the District Court a number of years ago of a Senior Sergeant of police who accepted a money bribe from a drug defendant. He was sentenced to 3 years imprisonment reduced from 4 years for mitigating factors in his favour. There was also the case of a defendant who tried to bribe two judges of the courts before whom he had cases and he received a penalty of 4 years imprisonment.
12. The Police v Feepo case is distinguished on the facts and that it was brought under subsection 1 of section 35 of the repealed Crimes Ordinance 1961 dealing with charges against officials for corrupt practices.
13. In Police v Tausili [2015] WSSC 70 (14 July 2015), the accused Senior Sargeant Atonio Tausili was convicted and sentenced to 5 month’s imprisonment for the charge of bribery for receiving a can of 3 pound corned beef from a possession of marijuana suspect. In return, Tausili instructed Constable Heta Wilson to “ensure the marijuana joints do not reach the office”. This case is to be distinguished as in the Feepo matter given the charge comes under subsection 1 of the Act dealing with officials who are charged for corrupt practices.
14. Notwithstanding that fact, there is a compelling need for the sentence to show deterrence and denounce such conduct from future like minded offenders. The manner in which the accused went about with ease and without regard to the consequences to offer and hand out monies to law enforcement officers as shown in the security video along with the ease of acceptance and the absence of protest from the conduct of Police officers poses the question as to how pervasive is this culture of corruption in the Samoa Police force. If there is and allowed to be overlooked, it will create an unwelcomed culture of favourtism and discrimination favouring the affluent and will become as Aitken J put it, “utterly corrosive”.
15. I am sympathetic as was Justice Slicer in Police v Samau WSSC 12 November 2010 (unreported) with Mr Su’a’s submissions that the accused not guilty plea must not be considered as an aggravating factor being an important principle of our criminal justice system requiring the prosecution to prove the charge. However, the accused right to challenge the charge also carries a responsibility to esure that there is a legal or reasonable defense to avoid deliberate abuse. In this case, I accept that the accused through counsel had a reasonable de minimis defense to raise.

Mitigating Factors

16. The accused shall be afforded the status of a first offender in this jurisdiction. Mr Su’a has outlined the accused background from Vietnam and desire to make personal sacrifices to seek greener pastures in a country not his own. He is a hard working family man providing for his wife, three children and parents in Vietnam. The accused had led a law abiding life until this matter.
17. Mr Su’a suggests that his client felt compelled to help his sister-in-law given her situation and an unfamiliar environment but in doing so had acted in an irrational manner out of his desire to help his wifes sister. I accept that this is a natural human reaction. However, it is never an excuse to turn a blind eye to the law. Official corruption is not particular to Samoa. It may be prevalent with a degree of tolerance in some countries perhaps more so Asia where the accused is originally from. It is not and should not be tolerated in this jurisdiction notwithstanding the absence, as in many of the Commonwealth countries, of an Ati Corruption Tribunal.
18. Mr Su’a further submits that the amount admitted by the accused is “unexceptional”. Given the limited number of previous cases on the matter, I cannot determine what is “out of the ordinary or usual amount” in such cases. Perhaps what Mr Su’a meant was that the amount was trivial in line with the case relied on R v Field. I accept the amount in isolation appears inconsequential compared to those involved in Police v Feepo, Police v Tausili and NPO v Vaoita Stowers in particular. However, the conduct of the accused and his insistence to have access to his sister in law draws a picture that he would have gone to much length financially to influence police in order to secure a favourable result for his sister in law.
19. The accused through counsel has expressed remorse given the consequnces of the offending now also affecting his wife, their new born child and their business in American Samoa. Mr Su’a submits that a monetary fine instead of a custodian sentence is appropriate given the offending is at the lower end of the gravity of such cases based on the amount involved.
20. Despite the offending conduct, it was fortunate for the accsued that he did not persist any further with his desired purpose to influence the release and attempt to abscond with his sister in law to American Samoa as expressed to Roy and avoid prosecution. The consequence of the corrupt bribe was therefore insignificant.
21. The prosecution submits three alternatives fitting of the circumstances of the offence in descending order:
    • (i) Custodial sentence with a starting point of 6 months; or
    • (ii) Serve a period of communuity service and supervision; or
    • (iii) A monetary fine not less than $5000 Tala.
22. Of the cases relied upon above as a guide for sentencing, only two fall within subsection 2 of section 137 of the Act, i.e., NPO v Stowers and the matter referred to in Justice Nelsons Police v Feepo matter of a defendant attempting to bribe two judges with cash not less than $2000 Tala. The latter sentenced to four years imprisonment and Stowers was already serving imprisonment term and the Court of Appeal dismissing the Attorney Generals appeal for cumulative prison sentence.

Conclusion

23. Taking into account all the factors referred to above, a sentence of imprisonment in this instance is in my respectful opinion not warranted. Nor do I consider a sentence of community service and supervision appropriate. I would think that public expense, time and effort of our public officials would be better served elsewhere than to attend to the supervision of the accused whose status is that of a visitor to this country. It is not in the interest of this state to expend for the reformation and rehabilitation of the accused.
24. I am of the opinion that a hefty monetary fine is appropriate as a deterrant and to send a stern message that this type of offending especially by any foreigner in this country will not be tolerated. The accused is convicted and fined $1000 Tala and $1000 Tala for police and prosecution costs to a total of $2000 Tala. This amount must be paid within 48 hours from receipt of this order. In default, the accused will serve an imprisonment term of 90 days less the time the accused was held in custody.
25. The accused is further ordered to immediately depart Samoa for American Samoa upon settlement of the amounts referred to above. It is further recommended by this court that the accused be declared a prohibited immigrant pursuant to section 29(1) and 30(1)(g) of the Immigration Act 2004 and remain a prohibited immigrant for a period of 24 months from the date of the order by the responsible Minister of Immigration should the Honourable Minister see fit and appropriate.

DCJ SCHUSTER