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Panjuboe v Director of Public Prosecutions [1985] SBHC 22; [1985-1986] SILR 122 (5 December 1985)

1985-1986 SILR 122

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 39 of 1985

PANJUBOE

v

DIRECTOR OF PUBLIC PROSECUTIONS

High Court of Solomon Islands
(Wood C. J.)
Criminal Appeal Case No. 39 of 1985

4 December 1985 at Honiara
Judgment 5 December 1985

Criminal Law - false pretences - essential elements of “intent to defraud”.

Facts:

The appellant was convicted by the Magistrate’s Court (Central) of two counts of obtaining by false pretences c/s 301 of the Penal Code. The appellant appealed his conviction mainly on the ground that it was not proved that he had any intent to obtain by false pretences. The appellant admitted at trial that he was the Permanent Secretary of the Ministry of Finance and as such was a Director of Solair; that he instructed Local Purchase Orders to be prepared for the purchase of Solair tickets for himself; that such tickets were not issued, instead Miscellaneous Charges Orders were issued by Solair in favour of him and were credited to his own account with Solair; that the Public Service General Orders provide that passage at Government expense cannot be commuted into cash; and that he was acquainted with such General Orders. Despite his admissions, the appellant contended that he had done nothing wrong in that as a public servant he was entitled to air fares home every year for himself and his family and that he had no intention to defraud anyone.

Held:

1. Where “intent to defraud” occurs in the definition of a crime, at least two elements are essential; first, deceit or an intention to deceive or sometimes mere secrecy and second, actual or possible injury or an intent to expose someone to actual or potential injury by means of that deceit or secret. (Stephens’ History of the Criminal Law of England (1883) Vol. II at p. 121 followed).

2. The appellant caused the Government to payout to him money to which he knew he was not entitled, therefore the elements of fraud, i.e., deceit or secrecy and injury were met.

Accordingly, the appeal was dismissed.

Considered:

Stephens’ History of the Criminal Law of England (1883) Vol. II

John Muria for the Appellant
John Freeman for the Respondent

Wood CJ: The appellant was convicted by the Magistrates’ Court (Central) on November 19, 1985 on two counts of obtaining by false pretences c/s 301 of the Penal Code and sentenced to 9 months imprisonment on each count both sentences to run concurrently. He appealed against his convictions and sentences but at the hearing of the appeal Mr Muria only proceeded on the appeal against the convictions.

The particulars of the offences were that on May 18, 1983 with intent to defraud the appellant caused $1,260 to be paid into his own account with Solomon Islands Airways Limited (hereinafter referred to as “Solair”) by falsely pretending that he was personally entitled to the proceeds of miscellaneous charges orders obtained through the Solomon Islands Government’s local purchase order No. C40634. The second count was in similar terms concerning an incident on January 18, 1984 when the sum involved was $1,521 obtained on local purchase order No. C65319.

On the dates in question the appellant was the Permanent Secretary of the Ministry of Finance. At the outset in the Magistrates’ Court the appellant made substantial admissions under s.180A of the Criminal Procedure Code. Under that section the admission of any fact shall be conclusive evidence of the fact admitted. These admissions which I will record in full, as they set out the prosecution case, read as follows-

“(1) At all material times the accused was Permanent Secretary in the Ministry of Finance and as such a director of Solomon Islands Airways Limited (“Solair”).

(2) Local Purchase Orders were prepared on the accused’s instructions for the purchase of air tickets by the Solomon Islands Government for himself and his family to travel on annual leave from Honiara to Choiseul Bay and back by Solair as follows:

(a) on 7 April 1984, C40634 for $1260 (accused, wife and 6 children)

(b) on 12 January 1984, C65319 for $1521 (accused, wife and 8 children)

(3) Air tickets were not purchased, but Miscellaneous Charges Orders were issued in respect of those Local Purchase Orders by Solair in favour of the accused as follows:

(a) on 8 April 1983, for $1260 in all

(b) on 16 January 1984, for $1521 in all

(4) Those Miscellaneous Orders were credited to his own account PAJ 01 with Solair as follows:

(a) on 18 May 1983, $1260

(b) on 18 January 1984, $1521

(5) Immediately before those Miscellaneous Charges Orders were so credited, the balance in the accused’s account stood as follows:

(a) before 18 May 1983, at nil

(b) before 18 January 1984, at $94

(6) After those Miscellaneous Charges Orders were so credited, the accused’s account was debited with the following sums:

(a) (i) $377.95 on 18 May 1983 in favour of Pacific Car Rentals

(ii) $170 on 27 May 1983 in favour of the accused by cheque made out to Solair and cashed for him)

(iii) $712 on 14 June 1983 in favour of the accused (by cheque).

These payments reduced the balance in the account to $0.05

(b) (i) $78.22 on 20 January 1984 (in favour of Pacific Car Rentals

(ii) $550 on 23 January 1984 in favour of the accused (by cheque made out to Solair and cashed for him)

(iii) $94 on 1 February 1984 and $94 on 11 February 1984 (flight tickets from Honiara to Gizo and return in the name F. Panjuboe).

(iv) $650 on 16 February in favour of the accused (by cheque)

(v) $81 on 13 March 1984 (flight tickets for a child from Honiara to Munda and return).

(vi) $196 on 1 May 1984 (flight tickets for the accused’s daughter Grace from Honiara to Barora and return).

(vii) $40.50 on 22 May 1984 (flight ticket for the accused daughter Caroline from Munda to Honiara.)

(viii) $81 on 5 July 1984 (flight ticket for the accused’s sister Esther Lapovavini from Munda to Honiara).

These payments reduced the account (after all credits) to a debit balance of $281.72.

(7) (a) In 1983 the accused took no annual leave

(b) In 1984 the accused took the annual leave due him as follows:-

1982 - 17 days, as cash 1983 - 42 days, as cash

1984 - 42 days, as leave with 6 days ‘travelling’ time.

(8) By Public Service General Order P101, which applied at all material times to the accused, passages at Government expense cannot be commuted for cash.

There has at no time been any relaxation of this Rule (although at the relevant time it was possible to take cash instead of actual leave time).

(9) The accused was acquainted with General Orders as required by General Orders A108.

(10) On 23 January 1984 the accused wrote to Mr S. J. Wilkes of Solair in the following terms:

‘Dear Steve

I have booked 2 seats on Friday 27/1/84 morning flight to Gizo and with an open dated for return for my wife and me. In order for the tickets to be confirmed could you authorise “FOC tickets” for both as I am entitle to this privilege as a Director and this is in practice.

Would you also issue me a cheque of $550 from my account and given it to my daughter the bearer of this Note.

Thank you kindly. In case of doubt please ring me on telephone 22673.

Felix Panjuboe

(11) Tickets and cheque were issued to the accused as requested and the accused took his annual leave for 1984 on his wife’s home island of Simbo (flying by Solair from Honiara to Gizo and back)”.

In addition to the appellant’s admissions the prosecution called two witnesses who are employed by Solaire The first, Mr William Kutini, showed himself to be hostile to the prosecution case and after the learned Principal Magistrate had correctly directed himself as to how Mr Kutini’s evidence should be regarded he decided that he should look for “evidence outside of his testimony”. The second witness Mr Wilkes was found by the learned Principal Magistrate to be “completely honest and accurate in the evidence that he gave.” Mr Wilkes gave evidence concerning the letter received from the appellant referred to in admission No. 10, payments made to the appellant in 1984 out of his account and “free of charge” tickets issued to the appellant for flights on Solaire The only other witness was the appellant himself who whilst admitting all the facts in this case nevertheless contended that he had done nothing wrong. As a director of Solair he was entitled to “free of charges” flights and as a Government servant he was entitled to his air fares home each year for himself, wife and family. His defence was that he had no intention of defrauding anyone and was only doing what many others had done. In his judgment the learned Principal Magistrate when referring to the appellant's evidence had this to say–

“I could not accept, and do not accept, his protestations that, from first to last, he had done nothing wrong. I am satisfied so that I am sure that he was neither frank nor truthful in the evidence that he gave. He could not and did not seek to depart from the admissions made under s.180A. However, he attempted to explain away the inferences that would normally and properly be drawn from those admissions.”

The appellant has raised four grounds of appeal which all deal with the evidence and standard of proof required to obtain a conviction. In particular the appellant complains that it was not proved that he had any intent to obtain anything by false pretences. The learned Principal Magistrate dealt with the necessary intent to defraud as follows-

“There must of course be an intent to defraud. To defraud is to deprive by deceit - see Re London and Globe Finance Corporation [1903] UKLawRpCh 47; (1903) 1 Ch. 728. It is sufficient if anyone may be prejudiced by the fraud - see Welham v. DPP (1961) AC 103. I am satisfied so that I am sure that Mr Panjuboe had an intent to defraud in that he intended the Government to be prejudiced by the fraud in that he intended that they should payout to him, via the process described, money to which he was not entitled. It is also worth noting, and I am satisfied so that I am sure, that he intended that employees of Solair should be caused to act contrary to their duty, for it would have been their duty, not to be a party to this fraud had they known the true state of affairs, i.e. that Mr Panjuboe was not entitled to this money personally”.

Stephens’ History of the Criminal Law of England (1883) Vol. II 121 contains the following passage –

“There has always been a great reluctance amongst lawyers to attempt to define fraud, and this is not unnatural when we consider the number of different kinds of conduct to which the word is applied in connection with different branches of law, and especially in connection with the equitable branch of it. I shall not attempt to construct a definition which will meet every case which might be suggested, but there is little danger in saying that whenever the words “fraud” or “intent to defraud” or “fraudulently” occur in the definition of a crime two elements at least are essential to the commission of the crime; namely, first, deceit or an intention to deceive or in some cases mere secrecy: and, secondly either actual injury or possible injury or an intent to expose some person either to actual injury or to a risk of possible injury by means of that deceit or secrecy.”

At best from the appellant’s admissions and his own evidence Government has paid out and lost cash to which he was not entitled. He knew that he was not entitled to such money and kept the matter “secret”. The facts of this case clearly meet Stephens’ definition.

As the acting DPP has observed in each year, that is 1983 and 1984, the appellant caused LPO’s to be issued for air passages to which he was entitled and in both years ended with the cash proceeds to which on his own admission he was not entitled.

On May 18, 1983 $1260 raised by an LPO purchasing a miscellaneous charges order was paid into the appellant’s account with Solair and on the same day $377.95 was paid out of the account to pay for car rentals. 9 days later he draws out $170 of it as cash and on the 14th June a further $712 cash.

On January 18, 1984 $1521 was paid into the appellant’s Solair account and within two days $78.22 was paid for car rentals and three days later $550 by cash. By February l6 he received a further $650 by way of cash from his account. As the acting DPP has already said the appellant was using his Solair account as a bank account.

I can find no merit in this appeal. There was ample evidence before the learned Principal Magistrate to find as he did that the appellant was guilty on both counts of obtaining by false pretences c/s 301 of the Penal Code.

This appeal is dismissed.