IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 738 of 2005

STATE

V

ANISH ALI s/o Karamat Ali

State: Ms L. Lagilevu
Defence: Mr T. Sharma

JUDGMENT

The accused has been charged for Official Corruption Contrary to Section 106(b) of the Penal Code Cap. 17.

Particulars of Offence are:

Anish Ali on 16th April 2003 corruptly gave or offered money to Viliame Vodo being a person employed in Public Service at Passport section of Immigration Department on account of his granting Fiji Visitors Visas to four Chinese Nationals.

The prosecution called four witnesses and the accused gave sworn evidence in his defence. Both parties have agreed to two matters of fact namely

1.	The complainant was a public servant employed by the Immigration Department at the time of offence.

2.	That the accused gave money to the complainant Viliame Vodo.

The issues before Court is

1.	Was the money given corruptly by the accused?

2.	What act or omission was to be carried out by Viliame Vodo in the course of his employment as a public servant?

‘Corruptly’ is defined in the case of Wellburn (1979) 69 Cr App Rep. 254 as "Purposefully doing an act which the law forbids as tending to corrupt."

The Prosecution evidence is that accused was an immigration agent who did visa and passport arrangements for clients. He frequented the Immigration Department and knew of the procedures and work involved.

The accused has said this was the 1st time he was doing a visa application. He had been a travel agent for some nine months at that time in 2003.

The accused also says the reasons for giving money only without forms was because the forms were already lodged by another person before him. Upon enquiry he was told by Vodo that application was made but the fees unpaid. Accused says Vodo asked for $800 when he went to the office. He had $260 which he paid and went to withdraw $600 from his ATM machine which he counted at the counter and handed it to Vodo within 5 minutes. He was to pick up the receipt next day.

The Prosecution witnesses say accused rang Vodo and told him he wanted business visa extension. Vodo said accused told him on phone that he "would bring in Chinese passports, fees and money to give me".

No amount was stated. When accused handed money and passport at counter, he was accosted by another officer and taken inside to the supervisor. Vodo had already told the supervisor about the phone call and accused’s proposed actions.

In his defence accused said he was only going to check if application had been lodged and was going with money and passports only. He also said it was $800 in police statement and not $700 as stated in his evidence in court. They also say the envelope was brown or white is unsure.

The colour of envelop is of minor significance when it’s agreed that money was handed to Vodo by accused.

As a travel agent the accused would have known that application forms are lodged with fees and no money is paid to any Government Department without taking a receipt for it. It is in evidence that visa extension charges would have been for lesser than the money paid.

I find it as a fact that $700 was handed to Vodo which was more than the required sum.

The accused has said he had written $240 on the envelope and when asked for more he went to withdraw balance from his ATM and brought back $560 for Vodo. This information was written on the envelope by accused.

The prosecution had the envelope and the money but this envelope was not produced in court as evidence.

The accused has produced his ATM statement which shows a withdrawal of $600 for his account on 16th April 2003 and from which he says he paid $560 to Vodo as per his request.

However, even if the envelop was produced; it would only show what the accused wrote on it and would not be evidence against Vodo. The fact that $700 was given to Vodo still remains true. As an agent the accused knew and ought to have known no money is given with passports without any applications filled out.

If applications were already made as alleged by defence, the accused would have asked for those forms before paying any money. The whole of the evidence indicates that the $700 with passports was given to Vodo to have the visas stamped. The amount of money for the application and the exact sum meant to be bribe money is not specified. But the sum paid is in excess and it’s obvious that the accused had corruptly paid the money to the immigration officer for him to stamp the visa with or without the application forms.

The defence further submits the immigration officer was not in the visa stamping section so it was not within the course of his employment to do the act for which money was given?

So far as the accused was concerned he was giving money to an Immigration Officer and expected stamped visa. He was not in a position to know that it was not within his power to approve and stamp visas.

The fact that accused expected Vodo to do an act or omit to do an act of stamping visa at his work as an immigration worker is sufficient to satisfy this section. I have considered all of defence submissions but none of it nor the inconsistencies are major which would exenorate his guilt.

It was unfortunate for the accused that he was questioned by the supervisor of Vodo and later handed to police.

Upon whole of evidence I am satisfied beyond reasonable doubt that the accused corruptly gave $700 to Vodo who was a public officer at Immigration Department to have his visas for four Chinese nationals be stamped without any application form.

The accused is found guilty as charged.

Dated this 28th day of April 2006.

Ajmal G Khan
RESIDENT MAGISTRATE