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Regina v Reqeo [1998] SBHC 69; HC-CC 096 of 1993 (17 July 1998)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 96 of 1993

REGINA

-V-

ADACHI REQEO

(Lungole-Awich J.)

Hearing: Ended 3rd June 1998
Judgment: 17th July 1998

J. Faga for the Crown
Mrs. M. Samuel for Accused

JUDGMENT

LUNGOLE-AWICH J.: The accused, Mr. Adachi Reqeo, 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. Reqeo’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. Reqeo 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.

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.PK1 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 Accused.

The charges against the accused, in the exact wording are these:

"Count 1: Statement of Offence

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: Statement of Offence

Conversion, contrary to section 271(1)(c)(ii) of the Penal Code.

Particulars 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.

Count 3: Statement of Offence

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 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: Statement of Offence

Larceny by servant, contrary to 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 of guilty, during 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.

Count Four.

It is made clear here that the offence admitted by the accused 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.R 71 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 Three Counts.

The remaining three counts, 1, 2 and 3 which 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 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 All Counts.

The returns, of air-tickets sold, of cargo tickets 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.

Accused’s defence to all the three counts has been that he was not 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.

Events leading to charge in count 3 are a little different. After accused had gone on leave in December, 1991, Wilson 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, PW1, whose duty included receiving returns and 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.

Accused’s defence is of course that those other people who had access 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 till in circumstances that only accused could take responsibility for. I reject accused’s defence in respect of the remainder, the sum of $311.128 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.

It seems to me that a principal magistrate could have tried this 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
At the High Court,
Honiara.

Sam Lungole-Awich
JUDGE
High Court of Solomon Islands.