Police v Ah Tran Thi [2020] WSDC 1 (27 January 2020)

DISTRICT COURT OF SAMOA
Police v Thi [2020] WSDC 1

Case name:	Police v Ah Tran Thi
Citation:	[2020] WSDC 1
Decision date:	27 January 2020
Parties:	POLICE v AH TRAN THI female of Vietnam
Hearing date(s):
File number(s):	D3156/19, D3157/19
Jurisdiction:	Criminal
Place of delivery:	District Court of Samoa
Judge(s):	Judge Loau Donald Kerslake
On appeal from:

Order:

- In relation to charge D3156//19 you are convicted and sentenced to three (3) months imprisonment less any time remanded in custody. - In respect of information D3157/19 which is the charge of corruptly offering a bribe in the amount of USD$50.00, I hereby convict and sentence you to one (1) month imprisonment to be served concurrently to the sentence above. - Upon serving your imprisonment term, you are further ordered to depart Samoa immediately upon your release. It is further recommended that once the accused completes her imprisonment term, she 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 36 months from the date of the order by the Honourable Minister of Immigration, should the Honourable Minister see it fit and appropriate to do so.

Representation:	I. Atoa for Prosecution A. Su’a for Defendant
Catchwords:	aggravating features of the offending – corruption and bribery –possession– mitigating features - sentence
Words and phrases:	“offering to give” and “actually giving”.
Legislation cited:	Crimes Act 2013 s137(2) Customs Act 2014 s91 schedule, 249(a) Narcotics Act 1967 s7, s18(b) Crimes Act of Fiji 2009 s134 Immigration Act 2004 s29(1), 30(g)
Cases cited:	National Prosecution Office v Stowers [2016] WSCA 6 (19 February 2016) Police v Tausili [2015] WSSC 70 (14 July 2015) State v Sharma [2018] FJMC 39 (19 March 2018)
	Kumar v State [2017] FJHC 953 (22 December 2017) Police v Dung [2019] (Unreported decision of the District Court, 27 November 2019) Police v Feepo [2011]WSSC 123 (25 July 2011) Fields v R [2011] NZSC 129 and R v Noone [2016] NZHC 2970.
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

AH TRAN THI female of Vietnam.
Defendant

Counsels:
I. Atoa for Prosecution
A. Su’a for Defendant

Submissions: 22^nd January 2020
Decision: 27^th January 2020

SENTENCING OF DCJ KERSLAKE

Introduction:

1. The accused appears for sentencing to two charges of corruption and bribery of law enforcement officers pursuant to section 137(2) of the Crimes Act 2013 (“the Act”) as follows:
   • (a) Information D3156/19 – That at Faleolo International Airport on the 21^st July 2019, the defendant corruptly offered to give a bribe, namely $1,000.00 USD to Police Inspector Papali’i Eneliko Taeu with intent to influence any law enforcement officer in respect of an act by the law enforcement in his official capacity; and
   • (b) Information D3157/19 – That at Faleolo International Airport on the 21^st July 2019, the defendant corruptly offered to give a bribe, namely $50.00 USD to Customs Officer Perenise Palemene with intent to influence any law enforcement officer in respect of an act by the law enforcement in his official capacity.

The Facts:

2. According to the Summary of Facts, the Accused is a 24-year-old Vietnamese national. On the 21^st July 2019 the accused was travelling to Samoa from Fiji. Her final destination was to be Pago Pago, American Samoa. Upon arriving at Faleolo Airport, a customs officer was suspicious of her behavior due to the manner in which she filled in her Arrival and Customs and Quarantine Declaration form. She was referred to Customs Officer Liliu Peni who performed a search of the accused suitcase and backpack. Another customs officer Perenise Palemene was also present. The search continued in an interview room. Tablets were discovered in both bags. Customs Officer Perenise Palemene left the room to take the tablets to be drug tested by other custom officials. Upon Perenise Palemene’s return, the accused attempted to offer him USD$50.00 in the presence of Liliu Peni. The accused held out her hand which had the USD$50.00 note in it and said the words “money for you”. This offer was also extended to Liliu Peni. Both customs officers declined the offer and explained to the accused that offering money to them was unlawful.
3. The Police were called and Police Inspector Papalii Eneliko Taeu Masipa’u and Police Corporal Nepa Camilla Papalii attended to the accused. After allowing the accused to talk to her husband via phone call, the accused turned to Police Inspector Masipa’u and said “please help me, I give you One Thousand US dollars (USD$1,000.00)”. Police Inspector Masipa’u declined the offer and said to the accused that this cannot be done as she had committed a serious crime for which she was liable for imprisonment.
4. In accordance with the Court record, the accused was subsequently charged with two (2) narcotic related charges of possession pursuant to section 7 and 18(b) the Narcotics Act 1967 and one (1) narcotic related charge of importation pursuant to section 91 schedule 1 and section 249(a) of the Customs Act 2014. The accused was also charged with two (2) counts of corruption and bribery of law enforcement officers pursuant to section 137(2) of the Crimes Act 2013.
5. As depicted in the summary of facts, the three (3) narcotics charges were withdrawn with leave by the prosecution and subsequently dismissed by the Supreme Court on the 16^th December 2019.
6. On the same day (16 December 2019), the accused changed her pleas of not guilty to guilty in respect of the remaining two (2) charges of corruption and bribery of law enforcement officers pursuant to section 137(2) of the Crimes Act 2013.

The Law:

7. Section 5 of the Sentencing Act 2016 sets out the purposes for which the Court may sentence the accused. These include:
   • (a) to hold the defendant accountable for harm done to the victim and the community by the offending;
   • (b) to promote in the defendant a sense of responsibility for, and an acknowledgment of, that harm;
   • (c) to provide for the interests of the victim of the offence;
   • (d) to denounce the conduct in which the defendant was involved;
   • (e) to deter the defendant or other persons from committing the same or a similar offence;
   • (f) to protect the community from the defendant;
   • (g) to assist in the defendant’s rehabilitation and reintegration.
8. Section 6 of the Sentencing Act 2016 sets out the principles of sentencing which the Court can take into account when delivering its sentence. These may include taking into account the gravity of the offending including the degree of culpability of the accused, the seriousness of the type of offence, the general desirability of consistency with appropriate sentencing levels for similar circumstances amount others.
9. In relation to the offence, section 137 (2) of the Act provides:
   • 137. Corruption and bribery of law enforcement officer – (1) ...
   • (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.
10. The Prosecution in their written submissions of 16^th January 2020 seeks to rely on a number of authorities which all point to an imprisonment term if the accused is convicted. This includes the Court of Appeal case of National Prosecution Office v Stowers [2016] WSCA 6 (19 February 2016) and the Supreme Court case of Police v Tausili [2015] WSSC 70 (14 July 2015).
11. In NPO v Stowers,^[1] the defendant was already in prison when she was charged for corruption and bribery of a law enforcement officer pursuant to section 137 (2) of the Act. Amounts of $1,000.00 and $3,500.00 tala were given to prison officers for escorting her in the public to carry out certain business dealings. The distinguishing factor between NPO v Stowers and the current case is that in NPO v Stowers, the defendant was in a vulnerable position as the prison officer was in a position of authority over her. The defendant in NPO v Stowers was sentenced to 18 months imprisonment for the bribery charges but that sentence was ordered to run concurrently with the prison term sentence she was serving and other sentences she received for offences committed at the same time.
12. In Police v Tausili,^[2] the defendant a police officer was charged under section 137(1) of the Act for bribery for accepting two (2) 3lbs cans of corn beef and upon conviction received an imprisonment sentence of 5 months. The sentencing starting point was ten (10) months.
13. Two cases from the Republic of Fiji are also referred to. These cases are State v Sharma [2018] FJMC 39 (19 March 2018) and Kumar v State [2017] FJHC 953 (22 December 2017). Section 134 of the Crimes Act of Fiji 2009 imposes a maximum 10 years term of imprisonment for bribery of public officials. Both cases involved bribing police officers on traffic duty. The sections of the Crime 2009 of Fiji as well as the facts of the above cases are distinguishable to the facts of the current matter and the relevant equivalent provisions in our Crimes Act 2013, especially in regards the maximum punishment for the offences. Perhaps the significance of why the Prosecution has quoted these two cases is to demonstrate that our neighbors to the south–west also take bribery of public officials very seriously as they have imposed imprisonment terms to charges of bribery of public officials pursuant to their relevant laws for what seems to be insignificant amounts. (i.e. In these two cases, the amounts involved were FJ$10.00 and FJ200.00).
14. Counsel for the accused seeks to rely on the most recent case of this Court in Police v Dung [2019] (Unreported decision of the District Court, 27 November 2019).^[3] In Dung^[4], His Honour Schuster DCJ convicted Mr. Dung for bribing a police officer with SAT$50.00 and fined him SAT$2,000.00 for police and prosecution costs to be paid within 48 hours where if in default he would serve a 90 days imprisonment term. He was also ordered to be declared a prohibited immigrant pursuant to section 29(1) and 30(1)(g) of the Immigration Act 2004 and to remain a prohibited immigrant for a period of 24 months from the date of the order.
15. Also discussed in Dung was the case of Police v Feepo [2011]WSSC 123 (25 July 2011) as well as the two New Zealand cases of Fields v R [2011] NZSC 129 and R v Noone [2016] NZHC 2970.^[5]
16. With the exception of the cases quoted from Fiji, all the above cases were considered by His Honour Schuster DCJ in his ruling in Dung. At paragraph 22 of his decision, Judge Schuster correctly stated that out of all the cases provided as a guide for sentencing, only two (2) cases fell within subsection 2 of section 137 of the Act. The first is NPO v Stowers and the second is the case referred to by Justice Nelson in Police v Feepo^[6] where a defendant attempted to bribe two judges with cash not less than $2,000.00 tala. The defendant in the latter case was sentenced to four (4) years imprisonment.^[7] To assist in my decision, I can now add the case of Dung to that list.

Personal circumstances of the accused:

17. The accused is originally from the Nghe An Province in Vietnam. She is married to another Vietnamese national who resides in American Samoa and operates a family business. The accused has lived with her husband in American Samoa since 2016. They have a young baby daughter who is currently in Vietnam living with the parents of the accused due to immigration issues which appears to prevent her from living in American Samoa. Her parents living in Vietnam are currently in their 50s. She also has two siblings living in Vietnam. Her parents and siblings are all employed. The accused was returning to American Samoa to be with her husband when the offending occurred.
18. I also mention at this point that a full body search was carried out on the accused when she was being questioned and searched by custom officials at the airport on 21 July 2019. It appears from the submissions of Counsel for the accused that she was also distressed at the time as she was in a foreign country and did not understand English very well. She was on the same day remanded in custody until she was released on bail on 2^nd August 2019.
19. Since being released on bail on 2^nd August 2019, the accused has been living at a local hotel whist awaiting the outcome of her criminal matter.

Aggravating features of the Offending:

20. The availability of imposing a maximum seven (7) year imprisonment term for the offence of bribery of law enforcement officers demonstrates the seriousness which parliament has placed on this particular type of offending and its intention to stamp it out of society. The Court of Appeal in NPO v Stowers agreed with Justice Aitken statement 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.”^[8]
21. I echo the agreement by the Court of Appeal to these words as any enforcement system which is compromised by a decay such as bribery will have difficulties in later eradicating that same decay.
22. I accept as an aggravating feature the fact that the accused attempted to bribe not one but two (2) different government officials during two separate occasions whilst being held at the Faleolo Airport. Firstly, she attempted her luck with the customs officials who refused her offer and later when alone with the Police Officers, she tried again. This illustrates some persistence by the accused to influence those investigating her matter to let her go. As stated by Schuster DCJ:
    • “Although the amount is a relevant factor to be taken into account as to the extent the accused was willing to commit the offence, it is the specific intent or reckless intent to corruptly bribe a law enforcement officer that is the primary factor to be considered”.^[9]
23. Credit should be given to those government officials who were not tempted by the offers. Instead, through their actions, they have managed to uphold the values and principles of integrity and honesty which guide their daily responsibilities as public servants.
24. I also accept as an aggravating feature of the offending the value of the bribes which the accused attempted to give. The first attempted bribe of USD$50.00 may seem insignificant. But coupled with another attempted bribe for USD$1,000.00 in my view really aggravates the offending. Counsel for the accused at paragraph 17 of his submissions states that the total amount in the current case is nothing compared to the amounts of bribery in the New Zealand cases of Fields v R [2011] NZSC 129 and R v Noone [2016] NZHC 2970. This may be correct, but the socio -economic standards in New Zealand are vastly different from Samoa. In fact, Counsel for the accused at paragraph 16 of his submissions properly concedes that the amount of the bribe of US$1,000.00 is a substantial amount. I agree. In a society like Samoa, it is a substantial amount. If we roughly convert these two amounts to Samoa Tala, the first amount would be more than ST$125.00 whilst the second would be more than SAT2,500.00 respectively.^[10] The total amount in this case is clearly distinguishable to the amount of ST$50.00 which Schuster DCJ dealt with in Dung.

Mitigating features:

25. The change of plea by the accused from not guilty to guilty once the narcotics charges were withdrawn and dismissed on 16^th December 2019 is a mitigating factor as it has saved the court and prosecution time and resources of having to call witnesses and hear evidence. I also take into account the previous good character of the accused as outlined by her counsel and that she is a first offender in our jurisdiction.^[11] I also accept through her counsel that she is remorseful for her actions in the offending and was perhaps acting out in desperation when she committed the offence. However, this is not a reasonable justification for violating the laws of a country which she is a visitor to. As alluded to by Schuster DCJ in Dung:
    • “Official corruption is not particular to Samoa. It may be prevalent with a degree of tolerance in some countries perhaps more so in 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 Anti- Corruption Tribunal”.
26. Counsel for the accused at paragraph 14 of his submissions when addressing the culpability of the offending appears to suggests that if it were not for the investigation into the narcotics charges which have now been withdrawn and dismissed, the circumstances which led to the accused offering the bribes would never have occurred. The fact that the narcotics charges were withdrawn and dismissed may be relevant to assessing the culpability of the offending as the narcotics investigation was the motivation which led to the current offending. However, it must also be noted that the main reason which prompted the search and subsequent investigation into the narcotics in the first place was the fact that the Arrival and Customs and Quarantine Declaration form had not been filled in properly by the accused, as well as her carrying what appeared to be suspicious bags of tablets which had not been properly declared. These actions by the accused prompted the custom officials to call the police which led to the charges being filed.
27. Counsel for the accused at paragraph 16 correctly alludes to the fact that section 137(2) does not differentiate between the acts of “offering to give” and “actually giving”. However, in his conclusions he implies that the action of “offering to give” is less serious than “actually giving”. In my humble opinion, the main difference in relation to the two acts boils down to the actions of the public officer who either accepts the offer or not. In other words, “offering to give” is a failed attempt to “actually give” because the public officer has rejected the bribe. Therefore, the first action is as serious as the second.

Conclusion:

28. Counsel for the accused seeks a monetary fine of no more than $500.00 tala as an appropriate sentence. The Prosecution seeks a term of imprisonment of four (4) months imprisonment.
29. After carefully considering all the factors referred to in the preceding paragraphs, a term of imprisonment cannot be avoided. In the circumstances of this case especially taking into account the amount of the bribe involved, an outcome other than a term of imprisonment will send the wrong message to society suggesting that any attempt to bribe a law enforcement officer for any amount up to USD$1,000.00 can be easily cured by a fine or other non- custodial penalty. A term of imprisonment will send a stern message and deter any person whether local or foreign from committing this type of offending in the future.
30. In sentencing, I take into account the totality principle and adopt charge D3156/19 which is the charge of corruptly offering a bribe in the amount of USD$1,000.00 as the lead charge. In consideration of the personal circumstances, the culpability of your offending as well as the aggravating factors, I take six (6) months imprisonment as the starting point. I deduct two (2) months for your guilty plea and a further one month for your remorse, prior good character and personal factors. Accordingly, in relation to charge D3156//19 you are convicted and sentenced to three (3) months imprisonment less any time remanded in custody.
31. In respect of information D3157/19 which is the charge of corruptly offering a bribe in the amount of USD$50.00, I hereby convict and sentence you to one (1) month imprisonment to be served concurrently to the sentence above.
32. Upon serving your imprisonment term, you are further ordered to depart Samoa immediately upon your release. It is further recommended that once the accused completes her imprisonment term, she 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 36 months from the date of the order by the Honourable Minister of Immigration, should the Honourable Minister see it fit and appropriate to do so.

JUDGE LOAU D KERSLAKE

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^[1] National Prosecution Office v Stowers [2016] WSCA 6 (19 February 2016)
^[2] Police v Tausili [2015] WSSC 70 (14 July 2015)
^[3] Police v Dung [2019] (Unreported decision of the District Court, 27 November 2019)
^[4] Ibid.
^[5] Ibid, para 8 and 18.
^[6] Police v Feepo [2011] WSSC 123 (25 July 2011)
^[7] Police v Dung [2019] (Unreported decision of the District Court, 27 November 2019) paragraph 22.
^[8] National Prosecution Office v Stowers [2016] WSCA 6 (19 February 2016) paragraph 21. Also referred to in Dung at paragraph 6.
^[9] Police v Dung [2019] (Unreported decision of the District Court, 27 November 2019), para 8.
^[10] The exchange rate for the SAT to US dollar in accordance with the Central Bank website https://www.cbs.gov.ws/index.php/statistics/exchange-rates/daily-exchange-rates/ for 19/07/2019 is – 1SAT is .3822 USD. This means that for every 1.00USD it will be the equivalent to SAT2.61 tala.
^[11] There is no report on any previous convictions from her home jurisdiction so in the absence of such a report she will be treated as a first offender in our jurisdiction.