HIGH HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 96 of 1993
REGINA
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v
ADACHI REQEO
High Court of Solomon Islands
Before: Lungole-Awich, J.
Criminal Case No. 96 of 1993
ring: Ended 3rd June 1998
Judgment:
17th July 1998
Mrs. M. Samuel for Accused
LUNGOLE-AWICH J.:
The accused, Mr. Adachi Raqeo, was employed at Seghe by the Seghe Lay
Training Centre, (SLTC), a religious institution,
in 1988. In 1990 he
became the officer who handled the business of Solomon Airlines under an
arrangement between
SLTC and Solomon Airlines. Under the arrangement,
SLTC was referred to as agent of Solomon Airlines, it received payments
described as commissions or fees, from the airline for services
rendered. Rageos's duties regarding the agency
was, to sell and issue
air-tickets, to receive cargo and collect freight charges for the cargo
and to charge
and collect payments for baggage which exceeded the limits
allowed to passengers; the baggage was referred to as excess
baggage. He
was to make periodic returns, which were periodic reports of
transactions, and he was to send the
returns together with cash payments
to Solomon Airlines every two weeks. Mr. Stereo was therefore
responsible
to SLTC as he was its employee and as SLTC was the actual
agent of Solomon Airlines. By practice, he was directly accountable
for
his sales and collections to Solomon Airlines.
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Some time in 1991 Reqeo sent return of transactions for the period
22.4.1991 to 8.5.1991 together with a letter,
exhibit No. PKI stating
that there was shortfall in cash of $420. He asked that the airline
deduct the sum from
commission payable to SLTC. He had not got authority
from SLTC for that. When the Airline wrote to the principal of SLTC
about the deduction, the principal refused to have payment due to
Airline deducted from commission of SLTC. The
Airline then reported the
matter to the police. Investigations were carried out and the four
charges on which
accused was arraigned were referred against him.
Charges Against the Accusspan>
The charges against thused, in the exact wording ding are these:
"Coot;Count 1: &&nsp;; Ssptemeat of
Offence:
 
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Conversion, contrary to section 271(1)(c)(ii) of the Penal Code.
Particulars of Offence
ADACHI REQEO,
between the 22nd of April 1991 and the 3rd of May
1991 at Seghe, Western Province, having solely received the sum of
$420.00 as payment of airfare tickets
on account of Solomon Airlines,
fraudulently converted the sum to his own use and benefit.
Count 2:
p; &nnsp;&
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Statement of Offence
Conversion, contrary ction 271(1)(c)(ii) of the the Penal Code.
Particulars of s of Offence
ADACHI REQEO,
between the 19th of September 1991 and the 17th of
October 1991 at Seghe, Western Province, having solely received the sum
of $164.00 as payment of airfare tickets
on the account of the Solomon
Airlines, fraudulently converted the same to his own use and benefit.
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Statement of Offence
Conversion, contrary to section 271(1)(c)(ii) of the Penal Code.
Particulars ofrs of Offence
ADACHI REQEO,
between the 22nd of April 1991 and the 31st of
December 1991 at Seghe, Western Province, having solely received $335.25
as payment for the Excess Baggage
tickets on account of Solomon
Airlines, fraudulently converted the same to his own and benefit.
Count 4:
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Statement of Offence
: 1">
Larceny by servant, contrary to seco section 266(a)(ii) of the Penal Code.
Particulars of Offence<
ADACHI REQEO,
between the 1st and 15th of August 1991, being a
servant of the Seghe Laying Training Centre at Seghe, Western Province,
stole a National
Bank of Solomon Islands Limited Cheque No. 135312
valued at $371.65 the property of Lay Training Centre."
Accused has pleaded guilty to Count 4 and I have accepted his plea of
guilty. It should not be regarded in any
way that my being aware of the
plea guilty of guilty, (luring the rest of the trial operated to
prejudice the
presumption of innocence of the accused in the rest of his
trial on the remaining three counts on which I entered pleas
of not
guilty In fact I regarded it as very strong indication that accused
admitted all that were true in the.
whole case
and denied the untrue parts, the prosecutions burden of proof was
therefore made that much more onerous.
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Imade clear here that the offence admitted by the accused aned and for
which he has been convicted on his plea
of guilty is larceny of cheque
leaf No. 135312, the property of his employer SLTC; not the theft of the
proceeds
of the cheque which is the sum of $371.65. The particulars of
the offence state that the offence was theft of the cheque,
although the
value of the cheque leaf stated therein was really the proceeds. Accused
paid back the proceeds
of $371.65 to SLTC. Had he been charged with
theft of the proceeds of the cheque (money) and were he to raise as
defence intention to refund the money, that would not have been a valid
defence to a charge of theft or conversion
of money - see Williams
and Williams -v- R (1953) 37 Cr.App.R71 and Allsop (1977) 64
CAR 29. It is to be noted that the term larceny which is used in s.266
of the Penal Code has been used interchangeably with theft all through,
Parts XXVI, XXVII, XXVIII and XXIX of the Code dealing with dishonesty
in relation to property.
The Remaining Threets.
The remaining thrunts, 1, 2 and 3 which went went on to full trial
charged the offences of conversion under s.271(1)(c)(ii)
of the Penal
Code. It was alleged that accused converted various sums of money he had
received for Solomon Airlines. In count 1, the sum
was $420, received
between 22.4.1991 to 3.5. 1991, for air-tickets. In count 2, the sum was
$164.20 received
between 19.9.1991 to 17.10.1991, in payment for
air-tickets. In count 3, the sum was $335.25 received between 22.4.1991
to 31.12.1991, in payment for excess baggage.
The essence of the offence of conversion, which wich was adopted in s.271 of
our Penal Code from the English Larceny Act of 1916, is that the
property had been received or was in the possession of the accused
lawfully and that he fraudulently converted it to his own use or to the
use of some other person. The most significant
element in conversion,
like in larceny, embezzlement and other related offences in the English
Larceny Act of
1916 and our Penal Code is the fraudulent intent. The
fraudulent intent is disclosed when one deals with the property of
another, without
that others consent and well knowing that it will
prejudice the interest of that other person. The point is explained in
great detail in the case of R -v-Williams cited above. An
important case from our Court of Appeal, on the point is Toritelia
-v- The Queen (1987) SILR 4.
Defence of Accused to Alnts.
The returns, of ickets sold, of cargo ticketickets and of payments for
excess baggage, and the actual receipts
(except one, receipt), show that
the accused collected payments for the tickets and receipts, the subject
of
all the three counts. The one receipt for excess baggage excepted is,
receipt No. 17466 dated 10. 10. 1991 signed by one
Lebo. It was for
$13.97 and is the subject of count 3. Accused raised that in
cross-examination. The prosecution
did not adduce evidence to show that
although Lebo signed the receipt, accused was the one who received the
money.
This being a criminal case I have to exclude the proceeds of that
receipt No. 17466 from count 3 because proof about who
received the
payment acknowledged by the receipt has not been to the standard of
beyond reasonable doubt.
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Accused’s defence to all the three c has been that he was not tnot the
only one who had access to the cash till.
In cross-examination on his
behalf, learned counsel, M. Samuel, got admission from prosecution
witness, PW4 Rev.
Steven Huka, that in accused's work, he was relieved
by Wilson Agiri and Clement Lebo whenever accused was not available
or
went on leave. From that, accused would like the court to accept that
those others were responsible for the
shortfalls of money, the subjects
of the three counts. I shall consider the defence together with the
evidence
on each count.
Count 1.
The evidence adduced to prove count 1 is this: Accused made return No.
1445, exhibit No.PK2 for ticket sales in
the period 22.4.1991 to
8.5.1991 and sent it together with a letter dated 8.5.1991, to Solomon
Airlines. The
letter stated that the cash sent had shortfall, being the
proceeds of 3 tickets. He accepted responsibility though he explained
that the shortfall came about in the process of returning money change
to customers. Firstly the explanation
is not probable. It is improbable
that mistakes in money changes given back to passengers would add to
exactly
the proceeds of 3 tickets. Secondly, that reason given to
Solomon Airlines is different from the reason advanced during
the trial.
I reject the explanation given by accused in as far as count 1 is
concerned. The evidence adduced
by the prosecution, considered against
the explanation advanced by the accused in cross-examination leads to
only one conclusion, that the explanation advanced is a lie. I find that
accused used the sum of $420 he had received for
Solomon Airlines for
his own purpose, knowing that his action was prejudicial to the right of
the Airline in
the money. The prosecution has proved the charge in count
1 beyond reasonable doubt. I enter verdict of guilty and convict
the
accused on count 1, of the offence of conversion of $420, under
s.271(1)(c)(ii) of the Penal Code.
Count 2.
Relevant to count 2 is this: Accused prepared return of transaction for
the period 19.9.1991 to 17.10.1991, it
is exhibit No.PK3. His
computation was that $1101 had been collected. He sent it to Solomon
Airlines together
with cash and an undated "NOTE", exhibit No.PK3, in
which he stated that there was "shortage" of $164.20.
There has been
error in his computation and counting of the cash; the shortfall was
actually $164.00, some 20
cents less than the sum stated in accused's
letter and in the charge. That second time accused did not state in his
letter the reason for the shortfall. From the evidence as a whole I have
taken it that his defence is that those
other people who had access, and
not him, the accused, were responsible for the shortfall. Again I find
that
the defence is highly improbable. The collection was for about 28
days only, accused was in charge, if in the 28 days he
noticed
shortfall, he would have inquired of whoever may have stood in his place
to assist during the 28 days.
If he did not get satisfactory answer, he
would have reported to SLTC authority. In any case, he was aware of the
shortfall when he prepared return, he never raised it with those other
people and he did not report it to SLTC authority.
I reject his defence
in respect of count 2. I enter a verdict of guilty to conversion of
$164, not conversion
of $164.20, and convict him on count 2 for the
offence of conversion under s.271(1)(c)(ii) of the Penal Code.
Count 3.
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Events leading to charge in count 3 are a little different. After fter
accused had gone on leave in December,
1991, Watson Agiri took over
accused's work of handling the business of Solomon Airlines. Rev. Huka,
as, the
principal, decided to go and check records and have proper
handing over to Agiri. In the process, he discovered receipts
Nos. 17453
to 17466 issued between 6.1.1991 to 30.10.1991. Most of them were not
dated. They are now exhibits
Nos. PK9 to PK21. They were issued in
acknowledgment of payments for excess baggage. The total sum in them was
$335.25. The rest of the record at Seghe showed that money for the
receipts had not been sent to Solomon Airlines, so
Rev. Huka wrote to
the Airline, forwarding the receipts. The Airline checked and there was
no record that money
acknowledged by the receipts had been received. The
officer who checked was Otto Kuper, PWI, whose duty included receiving
returns and money receiving money from agencies. I accept the evidence
that payments adding to the sum of $335.25,
the subject of count 3 were
received by the accused, but not received by Solomon Airlines.
Accuseefence is of course that those other people who had access cess as
well and not him, were responsible. I
accept that defence only in as far
as $13.97, the payment acknowledged by receipt No. 17466 dated
30.10.1991
is concerned. It was signed by Lebo and I consider that the
prosecution should have adduced further evidence to at least
show that
the cash was either handed over to accused or retained in the cash in
circumstances that only accused
could take responsibility for. I reject
accused's defence in respect of the remainder, the sum of $311. 28 for
the same reasons I have given about count 2. I find that accused
fraudulently converted the sum of $311.28, part of the
sum, the subject
of count 3. I enter verdict of guilty and convict accused on count 3, of
the offence of conversion
of $311.28, under, s.271(1)(c)(ii) of the
Penal Code.
General.
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It seems to me that a principal magistrate could have tried this cass case.
The charges are within the Jurisdiction
of principal magistrate, the
items of evidence are extensive, but not too complicated for a principal
magistrate
to deal with. Charging accused at the High Court has
contributed to the delay in the trial of the case as it had to first
go
through committal proceeding.
Delivered this 17th day of July 1998
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Sam Lungole-Awich
JUDGE
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