Police v Ah Him [2015] WSSC 135 (30 January 2015)

IN THE SUPREME COURT OF SAMOA
Police v Ah Him [2015] WSSC 135

Case name:	Police v Ah Him
Citation:	[2015] WSSC 135
Decision date:	30 January 2015
Parties:	The Police (Prosecution) Fa’asoi Su’a, male of Satapuala. (Defendant)
Hearing date(s):	12, 13 & 14 November 2014
File number(s):	S1853/14, S1854/14, S1855/14, S1856/14
Jurisdiction:	Criminal
Place of delivery:	Courthouse, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	S1855/14 - The evidence is clear, it was Salā who generated the false Invoice 4850 with intent that it be acted upon as genuine. Not the defendant. He may have been an accessory to the forgery but the evidence of that is thin and he was not charged with that offence. There is also no evidence he instructed Salā to do what she did. This charge is dismissed. S1854/14 - I am satisfied beyond reasonable doubt the defendant knew the document was a forgery and that it would be acted upon by Grand Ocean. It was obvious the invoice was on the letterhead of the Customs Agent. No reputable businessman let alone one as successful as the defendant would allow charges for his company to a third party to be placed on another entitys letterhead. Let alone the letterhead of a Customs Agent. I am of the view he saw the invoice but ignored it. Having received the Agents Invoice 5517 (“P-2”) on 31 January 2013 from Tarzan Savea he was well aware of the amount of duty payable. He would have seen even on a cursory inspection that “P-6” was for an obviously different figure. And total. Furthermore the document itself was contrary to his own instructions to his wife. The defendants evidence was he thought Salā would attach to the Agents Invoice the ABM invoice for services. No such invoice was attached. Again he could not have failed to notice that. The charge is proven beyond reasonable doubt. S1856/14 - By the same token this charge is also proven beyond reasonable doubt. S1853/14 – I am not satisfied the extent of the defendants obligation was to pay the entirety of the $62,454.50 to Savea. He was only obliged to meet on behalf of Grand Ocean the Agents fees and costs. This he did on 01 February 2013. This charge is dismissed. Defendant is remanded on bail to 23 February 2015 for probation report and for sentence.
Representation:	O Tagaloa for prosecution Defendant unrepresented
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

MUAGUTUTAGATA PETER AH HIM, male of Saleufi and Leififi.
Defendant

Counsel: L Su’a-Mailo and L Sio for prosecution
P Fepuleai for defendant

Hearing: 12, 13 & 14 November 2014

Submissions: 17 December 2014

Decision: 30 January 2015

DECISION OF NELSON J

1. Defendant faces a number of charges:
   • S1855/14: that between 01^st day of January 2013 and 31^st day of March 2013 at Saleufi, made a false document namely document number 4850 under the name of Savea Savelio with intent that it shall be used or acted upon as genuine, thereby commit forgery;
   • S1854/14: that between the 01^st day of January 2013 and 31^st day of March 2013 at Saleufi, knowing the document number 4850 under the name of Savea Savelio to be false, use the document as if it were genuine;
   • S1856/14 : that between 01^st day of January 2013 and 31^st day of March 2013 at Saleufi, with intent to defraud Grand Ocean Industries by false pretence, used a document number 4850 to cause or induce Grand Ocean Industries to make or execute valuable security namely a cheque in the amount of $62,454.50ST; and
   • S1853/14: that between 01^st day of January and 30^th day of June 2013 at Matafele, received a valuable security namely a cheque in the amount of $62,454.50 subject to an obligation to deal with it namely to pay Savea Savelio fees of $62,454.50 and fail to deal with it in accordance with such obligation or dishonestly deal with it in any manner.

Background

2. The complainant is Grand Ocean Industries (Samoa) Limited a Samoan company (hereinafter “Grand Ocean”). Pursuant to Business License Certificate No.240344/48404 for the year 2013 Grand Ocean was licensed to carry out the business of “Electrical installation.” Its business premises in accordance with the said Certificate was “Saleufi, Vaimauga-i-Sisifo.” That is also the business address of Apia Business Machines (“ABM”) a company owned and operated by the defendant and his wife Salā Ana Ah Him (“Salā”).
3. The defendant was a 10% shareholder in Grand Ocean the rest of the shares being held by two Chinese nationals resident in China. All three were directors the defendant being the onshore resident director.
4. The defendant set up the company and procured its business license. It began operating in late 2012 and because it was new and had no office, it used the ABM premises at Saleufi. A Ms Lirong Juan (aka “Li”) of Vaitele was the local company representative and according to her, its Marketing Manager. Juan was a longtime friend of the defendants wife.
5. The other player in this matter is M & L Customs Agency owned and operated by one Savea Savelio (“Savea”). ABM is a long time client of the Agency and it was clear from the evidence the relationship between Savea and the defendant is close. The Agency would normally pay all expenses incurred in clearing the defendants containers and be reimbursed by the defendant in due course.
6. In January 2013 two containers shipped from China by the Grand Ocean Chinese shareholders arrived in Apia. They were originally to be cleared by Island Freight Services. But a duty assessment of $180,000 on the containers was rejected by Grand Ocean. Consequently Ms Juan sought the defendants assistance.
7. The defendant rang Savea to clear the containers and sent him the relevant shipping documents. On 31 January 2013 Savea attended to preparation of the necessary paperwork (Exhibit “P-1” for the prosecution) and payment of a reassessed duty of $30,772. He then invoiced Grand Ocean via Invoice number 5517 produced as Exhibit “P-2” for the prosecution. Said invoice contained his fees and other handling costs and totaled $32,454.50 inclusive of duty. “P-2” was delivered by his employee Tarzan Savea to the defendant the same day.
8. As duty had been paid by Savea the containers were released and delivered to the defendants land at Taufusi on 31 January 2013. The following day 01 February 2013 the defendant settled Invoice 5517 by personal cheque number 359501 in the sum of $32,454.50 (Exhibit “P-4” for the prosecution). Savea accordingly marked his copy of Invoice 5517 “Pd, cheque # 359501, 1/2/13.” No doubt he thought at that juncture that was the end of the matter. It was not.

Prosecution Case

9. Savea’s further evidence was that some four days later the defendant requested a meeting about Invoice 5517. So Savea went to ABM. He was met by the defendants wife who showed him into the defendants office. The offices of the defendant and his wife face each other.
10. There the defendant explained that charges had been incurred by ABM for other attendances and storing the containers on his land. But the company would not accept an ABM invoice. He requested if these charges could be incorporated into Saveas invoice. Savea said he innocently agreed and added the following to the original of Invoice 5517 provided to him by the defendant:
    • “Special Service Charges $30,000”
    • (the amended invoice was produced as Exhibit “P-5” for the prosecution).
11. He wrote this on the line denoted ‘Attendance at Customs’ and not as part of his charge of $250. This increased the invoice cost by $30,000 but Savea denied altering the invoice total to $62,454.50. The defendant in his evidence said his wife made that alteration.
12. Lirong Juan who operates Grand Oceans Samoan bank account denied receiving the altered Invoice 5517 (“P-5”). She identified the invoice upon which payment was made as Invoice number 4850 from Savea Savelio. A copy of that document was produced as Exhibit “P-6” for the prosecution. It shows in the first line Customs duty not of the assessed amount of $30,772 but in the sum of $60,772. No mention therein of $30,000 for ABMs “special services” but obviously this was added to the assessed duty. “P-6” also represents that as being the duty paid by quoting the same Customs receipt number (R 2927) as Invoice 5517. In all other respects it is a mirror image of Invoice 5517. This document forms the core of the prosecution case.
13. Lirongs further testimony was Grand Ocean received and approved Invoice 4850 (“P-6”) in February 2013 and paid the defendant the $62,454.50 by cheque made out to “Cash” on 15 February 2013. She personally handed the cheque to the defendant at the Westpac Bank. Grand Oceans understanding was this was for payment of customs duty. She denied receiving Invoice 5517 either in its original (“P-2”) or amended (“P-5”) form. She likewise denied receiving any communication written or otherwise from the defendant, Salā Ah Him or ABM cancelling “P-6.”
14. In fact “P-6” is a bogus invoice. Saveas records disclosed that Invoice 4850 in the sum of $322.30 was in fact issued on 05 October 2011 to ABM for a shipment of stationery from New Zealand: see Exhibit “P-3” for the prosecution. The Invoice 4850 sent to Grand Ocean was manufactured by Mrs Ah Him. She candidly admitted this in her evidence. She said when she received Savea’s invoice (“P-2”) she also received instructions from the defendant to add on ABMs charges before forwarding to Grand Ocean. Her way of doing this was to photocopy Invoice 4850 from the stored records of ABM, using correction tape to effectively white out its details and substitute in its place the particulars of Invoice 5517. But increasing the duty charge by $30,000 to $60,772. She said however she did not intend for it to go to Grand Ocean. She was just “playing around (with it).......it was meant for my eyes only.” The doctored document was left on her desk and was mistakenly given by the defendant to Lirong. Her evidence is dealt with in more detail below.
15. The prosecution case is that the defendant either generated the false Invoice 4850 himself or was party to if not the principal who instructed his wife to make the false Invoice 4850 with the intent that it be acted upon as genuine by Grand Ocean. Further that knowing it was a false document he used it as if it were genuine by passing it to Lirong the companys local representative for payment. That with intent to defraud Grand Ocean by false pretence he used the fake Invoice 4850 to cause or induce Grand Ocean to issue a cheque for $62,454.50. A cheque which he cashed and applied to his own purposes. Furthermore that he was under an obligation to pay the said cheque to Savea Savelio but he did fail to deal with it in accordance with such obligation.

Defence Case

16. The defendant who is a member of Parliament said Lirong rang him for assistance with clearing the containers in January 2013. She met with him and handed over the shipping documents. He told her because Parliament was sitting he was busy but he would ask his wife for ABM to attend to the matter. He spoke to his wife and she agreed to assist but said ABM should be paid for its services. He assured her their bill would be met and requested that she please carry out the work expeditiously.
17. Unfortunately the issue of the defendant seeking the assistance of his wife and ABM to clear the containers was not put to Lirong in cross examination. Her evidence was it was the defendant she approached for help and all her dealings were with the defendant. She did not once mention the defendants wife or ABM as being the party engaged or considered responsible for clearing the containers. This proposition was never put to her by either counsel and arose for the first time in the defendants evidence.
18. Notwithstanding his request to his wife and her agreement for ABM “latou te handle ina le galuega” (to handle the matter) the defendants further relevant evidence was that he rang and engaged the services of Customs agent Savea Savelio. For which services Savea billed Grand Ocean $32,454.50 as per Invoice 5517 (“P-2”). A bill which he settled the next day 01 February 2013 by cheque drawn on his personal account as Grand Ocean had insufficient funds. In my assessment it is significant the defendant paid the bill out of his personal account and not ABMs business account. It militates against his argument that the job was an ABM one.
19. The defendant went on to say that the day he received “P-2” from Savea, he passed it on to his wife “e tilotilo i ai ma fai ai ana charges.” In his evidence in chief he explained this in the following manner:
    • “Dc lea ua e molimau mai faapea e sau loa ma tuu i lou toalua le invoice lea
    • Wit ona o la e fia fai ana charges
    • Dc o le a leisi mea na sosoo ai ina ua maea ona tuu i lou toalua?
    • Wit sa galue ai lea o Ana, o lo’u a la malamalamaaga o la e fai se invoice a le ABM, aua o le galuega o le galuega a le ABM. ........... O le ABM lea e responsible i le faiga o le galuega. Ia o lou a manatu o la e fai e Ana le invoice a le ABM e incorporate ma attach i le invoice lea.”
20. The problem with this evidence is a few days later he told Savea something different. Saveas uncontested evidence was that some four (4) days later the defendant told him Grand Ocean would not accept their invoice. Hence his request to Savea to amend his invoice to incorporate the ABM charges. From page 15 of Saveas evidence:
    • “Pros e ese mai la i lua fesootaiga ma Peter Ah Him i le aso lea na e taua talu ai, e iai se isi lua feso’otaiga ma Muagutu?
    • Wit fa’atoa ma toe fesootai lava ma Muagututagata i le aso lea sa valaau mai ai ia te a’u. Pe ua fa (4) aso talu ona maea ona fai le galuega. Sa valaau mai Muagututagata ia te a’u ou te alu atu.
    • Pros o lea e te taua ua 4 aso talu ona uma le galuega, o le a le galuega lea e te taua?
    • Wit o le galuega lea o le kiliaina i tua o containers ia e lua a le Grand Ocean, ua tuanai aso ia e 4 talu ona uma ona faia le galuega lea ma auina mai le matou siaki, sa vili mai loa Muagututagata ia te a’u ma faapea mai o lona fanua o lo’o iai containers i totonu ma isi galuega. Ae e le’o mafai ona taliaina se la invoice e le kamupani lea a le Grand Ocean. O galuega ia pei o charges ia o lona fanua o lo’o tuuina ai containers ia e lua. O lea sa vili mai loa ia a’u pe mafai ona ou oo atu i lona ofisa. Sa fa’apena loa ona ou alu atu i le ofisa o Muagututagata.”
21. The question that arises is how does the defendant go from an instruction to his wife on the day he received Saveas invoice to prepare and attach an ABM invoice for services rendered to an indication four days later that Grand Ocean would not accept an ABM invoice? Even though Savea is a potential accomplice, I have no reason to doubt his evidence and as noted it was not challenged in cross examination. There is also no evidence there was any communication between the defendant and Grand Ocean during these four days. This represents a clear inconsistency in the defendants evidence.
22. The defendants further evidence was that in the evening of 31 January 2013 Ms Juan came to ABM to uplift the invoice for services rendered. In the absence of his wife, he mistakenly picked up the doctored Invoice 4850 (“P-6”) that was lying on her desk. Without looking at it closely he gave it to Juan. This is how “P-6” came to be in the possession of Grand Ocean.
23. Unfortunately notwithstanding the significance of “P-6,” this evidence was not specifically put to Juan when she testified. But even if the evidence is accepted, it is difficult to believe an experienced businessman such as the defendant would without any real scrutiny deliver a $30,000 invoice to the clients representative. Particularly when he was a director/shareholder of the company being billed.
24. When his wife returned and discovered what he did, the defendant said she told him off. It was then determined the best course of action was to amend the Customs Agents invoice. Why that appeared the most appropriate action was never satisfactorily explained. The best the defendant could do was to say that at the time, he was “le mautonu.” One would have thought a simple phone call to Juan would have rectified the situation. She was after all a good friend of Mrs Ah Him and the defendant was a shareholder and director of the company. The confusion and mistake, if there was any, was easily resolvable.
25. The defendant explained this was the background to his meeting with Savea and amending Invoice 5517 to include the $30,000 ‘Special Service Charges.’ The amended invoice was then sent to Grand Ocean under cover of a letter dated 05 February 2013 signed by Salā Ah Him as Managing Director of ABM. The letter cancelled the false invoice 4850 (“P-6”) and attached the amended Invoice 5517 (“P-5”). It also attached an ABM invoice detailing the $30,000 ‘Special Service Charges.’ This itemized the extra services provided by ABM and its efforts to reduce the duty payable. It also referred to the many discussions with the Chinese shareholders. The latter was emphasised by the defendant as being difficult due to time difference and language barriers. Said efforts were however successful resulting in a savings of almost $150,000 to Grand Ocean. Additional to all that were charges for the secure storage of the containers on the defendants land. This correspondence was exhibited as Exhibit “D-1” for the defence.
26. As Lirong Juan denied receiving “D-1,” produced as Exhibit “D-2” for the defence was an entry from the relevant ABM delivery book (Exhibit “D-3”) aimed at establishing receiving of “D-1” by Lirong. The relevant entry is dated 07 February 2013 and the signature of the receiver is noted as “Lirong Zhang.” Lirong in her evidence agreed that was her signature but could not recall writing it or what she received. She consistently denied seeing or receiving “D-1”. There was however no evidence there were any other transactions involving ABM and Grand Ocean at the time.
27. The defendants wifes evidence was the whole matter began when the defendant returned from his trip to China in January 2013. Lirong referred to by her and her husband as “Ah Li” rang her about the high duty assessment for the two containers. She told her to call back when her husband was awake. Again this evidence must be disallowed because it was not specifically put to Lirong. As it could have and should have been.
28. Salā did however confirm her husbands request to her to please assist with clearing the containers. She said she agreed but on condition Grand Ocean paid because “Ua tele tele galuega ua e faia mo Grand Ocean e aafia atu ai ma matou, but e leai sou totogi o maua i le faiga o galuega a le Grand Ocean.”
29. Salā explained there were many services required in this matter. Ranging from numerous telephone calls to China at odd hours with Lirong assisting as a translator because of language difficulties, to arranging for a customs search of the containers for the purposes of revaluing its contents. Again these matters were not put to Lirong or to the Customs Department witness called by the prosecution.
30. On the issue of the invoices Salā accepted Saveas invoice “P-2” was placed on her desk by the defendant with instructions to add her charges. What she then did is explained at page 22 of her evidence:
    • “Wit yes that original invoice 5517, sau loa Muagutu tuu i luga o lau kesi and he said ia invoice na e fai ai tou charges. So what I did next because I was a bit confuse with the charges and everything poo fea o le a tuu iai le matou $30,000 o le matou service rendered. So I went and got a copy of an old invoice 4850 and I photocopy that, and I even got my girl to go and make some more copies sei taumafai ai le matou charge. I knew there was a lot of other things e tatau ona tuu i totonu for e.g. o le labour a tama sa tigaina e tapena le fanua, also the storage, aua o le storage ua uma ona talanoa mai Ah Li pe mafai ona keep container for 2 months i luga o le ma land lea na offer atu e Muagutu, ou fai atu yes we can do that, ae will still have to pay rent i le store ina o containers. O le mea la ua tupu ua tele mea charges e tatau ona add i luga. So I said to myself ia I’ll just see poo fea se mea e add iai ia maua lau $62,000, reimburse le $32,000 a Muagutu plus my charges. So I just squash that, it look good so I left it...........
    • Dc so e tago loa, o le a lau mea na fai?
    • Wit I photocopy because theres not a lot on that invoice, so I thought lea o le a ou tago e play around to see poo le a le ituaiga charge e charge ai Grand Ocean, because I have no experience charging o mea faapea. But the honest thing sa tatau ona fai o le fai o le invoice a le ABM latou ia. Like I said..
    • Dc e tago loa photocopy le 4850 invoice tuai lea, o le a lau mea na fai iai?
    • Wit ou tago loa add iai charges ia, I copied everyting from the 5517 onto the 4850 just to give me a clear picture o le a le ituaiga charge e charge ai Grand Ocean. Uma loa laia lea I left the ..
    • Dc o lea la ua e tago nei, o fea na lump iai charges a le ABM i totonu o le invoice lena 4850?
    • Wit I put it on the top where it says duty
    • Dc o lena ua e nofo tuu faatasi ma le ..
    • Wit ia, I deliberately put that because $30,000 plus the lump e faigofie na maua ai le total. It was meant for my eyes only.”

She placed the “new” Invoice 4850 (“P-6”) on her desk under a calculator and left for the day. This was on 31 January 2013.

31. The next day 01 February 2013 which she recalled was a Friday, she was shocked to discover the invoice “P-6” had disappeared. On inquiry the defendant told her he had given it to Ah Li the previous evening. So she rang Lirong advising her of the mistake. Lirong told her not to worry it was already sent to China for approval. Yet again these are critical matters which should have been specifically put to the witness Lirong Juan in cross examination but were not.
32. Her further testimony was she was upset by what had happened and said to the defendant “e sili na vili Taito (witness here is referring to Savea who also holds the title Taito) e soki le mea lea.” Again the question needs to be asked. Why the Customs agent was tasked with solving a problem of Salās making. And why the couple waited four days before taking action.
33. She confirmed the defendants evidence that Invoice 5517 (“P-2”) was amended by Savea to its “P-5” form by adding the ‘Special Service Charges’ of $30,000. Salā also confirmed she changed the invoice total accordingly.
34. Because she knew she had made a mistake she then set out to correct it. This she did by the “D-1” correspondence. Of this she said:
    • “Dc ae lei faia le malologa o le aoauli na ou faaalia atu ia te oe pepa ia o le D-1, e mafai oa e faamatala mai I le faamasinoga poo le a le mafuaaga na alai ona fai le tusi lena i le aso 05.02.13?
    • Wit na ou iloa loa ua ia le mea sese ua fai, ua uma foi lena ona sau o Taito toe insert i totonu ia charges a le ABM i le invoice, when I realise ua iai le mistake my intention was to amend that mistake, there was no intention e ave le 4850 to the Chinese people poo Grand Ocean. So, na uma loa ona talanoa Muagutu ma Taito ma insert matou charges i totonu o le 5517, I decide loa e sili ona fai lau tusi e faamatala atu ai le disregard le invoice lea 4850. So o le tusi lea na ou faia i le aso 5, lea na enclose ai le correct invoice number 5517 lea na amend by Savea Savelio le custom agent with ABM special charges for our services to Grand Ocean. Because ABM was asked to assist with the clearing and the storing of containers. I also apologise to the directors of Grand Ocean for this unfortunate confusion. O lou inexperience lava, I’ve never had to do an invoice to do with customs. We are stationery and office equipment people. So o le uiga lena o lau letter lea na fai on the 5^th of February 2013. O le letter lena na e attach ai le 4850 with the cancelled prefer correct invoice 5517. Na foi e attach ai ma le invoice 5517 and also my special charges a le ABM as per invoice 5517. O mea la na na ou tago loa tapena i le aso 5 o Fepuari, I did the drafting o letters ia e lua. And I gave it to my first secretary e tago sei type faalelei ona aumai lea ou te tago e toe edit ma ou saini ai loa lea ma ready e deliver i Vaitele.”
35. She went on to say she put “D-1” into a small white envelope addressed to the Directors of Grand Ocean, c/- Ah Li Sang. After which she rang Ah Li advising her about the correspondence. Again a critical piece of evidence that was not put to Ah Li in cross examination.
36. Salā said “D-1” was set to be delivered on 06 February. But Ah Li visited ABM after 4:00 pm on 07 February 2013. She was given “D-1” and she signed the delivery book thereby acknowledging receipt. Again this evidence was not put to Ah Li. But even if it were to be accepted by the court I find it strange that correspondence said by Salā to be important would lie undelivered in her office for almost 48 hours. And only handed to Ah Li when by chance she visited ABM.
37. The witness went on to lay blame for this whole “mix-up” at Ah Li’s doorstep. An extraordinary assertion given that it was not Ah Li who generated the fake Invoice 4850 upon which payment was made; neither was it Ah Li who asked the Customs Agent to amend his invoice to the company so that ABM could be paid for their “special services.” Further it was not Ah Li who made complaint to the Police, it was counsel for Grand Ocean acting on instructions from the other shareholders who by that stage had parted ways with the defendant.
38. The final witness for the defence was Salā’s secretary Talafa Sitafine. She confirmed she typed up the “D-1” covering letter and ABM invoice on 05 February 2013. Further that Lirong Juan personally uplifted “D-1” from Salās office and signed the “D-2” receipt for delivery. Salā and her share the same office space.

Analysis

39. The defence case suffers from numerous deficiencies. There were many relevant and crucial matters that were not put to the witnesses for the prosecution. It appeared to me that defence counsel was taken by surprise by many aspects of his clients sworn testimony. While there is no onus on a defendant to prove anything that burden being on the prosecution at all times, this did not assist the credibility of the defendant and his wife when the pendulum of evidence swayed their way.
40. Furthermore the defendants explanations were not only inconsistent but on critical matters were simply not plausible. His credibility is not assisted by the evidence of his wife who is a self-confessed forger. I do not for one second accept her explanation that she was “playing around” with Invoice 4850 or that it was meant “for my eyes only.” She is no naive clerk. Her and her husband have owned and operated a successful business in Apia for over 20 years. They are well aware of the practices of the trade, proper billing procedures and what is involved in clearing shipments from suppliers.
41. Neither do I accept the defendant was as ignorant as he claims when he handed the fake Invoice 4850 to Lirong Juan the Grand Ocean representative for payment. The issue of payment of ABM for their services was obviously important to Mr and Mrs Ah Him. This was no miniscule sum. It is stretching the bounds of credibility to say they would be so casual about something so significant.
42. Where the evidence conflicts I prefer the evidence for the prosecution. It is consistent clear and cogent. Salā used Saveas original Invoice 5517 (“P-2”) as a basis for drawing up the bogus Invoice 4850 (“P-6”) in order to camouflage therein ABM’s $30,000 fees for “special services.” The defendant became aware of this but still passed the fake invoice to Lirong knowing she would send it to China for approval. He did this because he knew as he told Savea that his partners would not approve such a charge if rendered by an ABM invoice. He settled the Agents account (“P-2”) because he was confident “P-6” would be passed for payment and he would be reimbursed. In the four days between “P-2” and “P-6” someone must have raised a red flag about the duty paid. That is the reasonable inference that can be drawn from the circumstances and the evidence. It therefore became necessary to have Savea amend his invoice from “P-2” to “P-5” to document the true state of affairs. Then counsel for Grand Ocean Mr Faaolesa Katopau, who was a witness for the prosecution, did suggest the amendment was made much later and only in response to enquiries from him on behalf of Grand Ocean. But that is not supported by the evidence of Savea Savelio. The court can only proceed on the basis of the evidence placed before it. Exhibit “D-1” for the defence was Salās part in attempting to conceal the subterfuge.
43. I am satisfied from the evidence of Salā’s secretary that “D-1” was received by Lirong Juan on 07 February 2013. But I surmise that by then, in the immortal words of Julius Caeser, the die was cast, “P-6” was enroute to if not already approved. The matter would probably never have come to light if the defendant and his fellow shareholders did not have a falling out precipitated as testified to by Katopau by disputes on other issues. That is why Ms Lirong denied receiving “D-1” even though she was forced to concede her signature in “D-2.” This is consistent with the evidence of Talafa who was the only defence witness with any veracity.

Decision

44. S1855/14 - The evidence is clear, it was Salā who generated the false Invoice 4850 with intent that it be acted upon as genuine. Not the defendant. He may have been an accessory to the forgery but the evidence of that is thin and he was not charged with that offence. There is also no evidence he instructed Salā to do what she did. This charge is dismissed.
45. S1854/14 - I am satisfied beyond reasonable doubt the defendant knew the document was a forgery and that it would be acted upon by Grand Ocean. It was obvious the invoice was on the letterhead of the Customs Agent. No reputable businessman let alone one as successful as the defendant would allow charges for his company to a third party to be placed on another entitys letterhead. Let alone the letterhead of a Customs Agent. I am of the view he saw the invoice but ignored it. Having received the Agents Invoice 5517 (“P-2”) on 31 January 2013 from Tarzan Savea he was well aware of the amount of duty payable. He would have seen even on a cursory inspection that “P-6” was for an obviously different figure. And total. Furthermore the document itself was contrary to his own instructions to his wife. The defendants evidence was he thought Salā would attach to the Agents Invoice the ABM invoice for services. No such invoice was attached. Again he could not have failed to notice that. The charge is proven beyond reasonable doubt.
46. S1856/14 - By the same token this charge is also proven beyond reasonable doubt.
47. S1853/14 – I am not satisfied the extent of the defendants obligation was to pay the entirety of the $62,454.50 to Savea. He was only obliged to meet on behalf of Grand Ocean the Agents fees and costs. This he did on 01 February 2013. This charge is dismissed.
48. Defendant is remanded on bail to 23 February 2015 for probation report and for sentence.
    

JUSTICE NELSON