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Police v Temo [2024] WSDC 7 (20 December 2024)

IN THE DISTRICT COURT OF SAMOA
Police v Temo [2024] WSDC 7 (20 December 2024)

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

SU’A FAAVAE LOLI TEMO, a male of Papa, Sataua, Samoa

Defendant

Counsel: Sergeant Solofa for Prosecution
Ms J. Stowers for the Defendant

Decision: 20^th December 2024

RESERVED DECISION

1. What started out as a partnership for profit has now ended up before this court on a criminal charge of theft pursuant to section 161(1) and 165(b) of the Crimes Act 2013 of Samoa (hereinafter referred to as the Act).
2. The charge states:
   • That at Papa, Sataua on or between the 01^st April 2018 and the 30^th of November 2022, the abovenamed defendant of Papa, Sataua and Vaitele-fou, dishonestly took an engine 2D model valued at $30,000SAT, a gear box valued at $20,000SAT, a radiator valued at $1500SAT, 2 car batteries valued at $500SAT each, three (3) tyres valued at $800SAT each, bonnet valued at $500SAT, inner lights valued at $200SAT, light cables valued at $300SAT, cable valued at $50SAT, and two (2) plates numbers valued at $168SAT, to a total value of $56,118.00SAT with intent to deprive the owner, Seumanutafa Semiatu permanently of that property.
3. Sections 161(1)(b) and 165(b) stipulate:
   • 161. Theft or stealing – (1) Theft or stealing is the act of: (a) dishonestly taking any property with intent to deprive any owner permanently of that property or of any interest in that property; or
   • (b) dishonestly, using or dealing with any property with intent to deprive any owner permanently of that property or of any interest in that property after obtaining possession of, or control over, the property in whatever manner.
   • 165. Punishment of theft – A person who is convicted of theft is liable as follows:
   • (a) ...... or
   • (b) if the value of the property stolen exceeds $1,000, to imprisonment for a term not exceeding 7 years; or ...

The Issue

4. There is no doubt that in certain business relationships some actions may constitute criminal conduct where one partner with intent misuses his/her authority or control over assets, resources or finances for personal gain to the loss of the other. Such is the case alleged here.
5. The issue then is, do the facts substantiate a civil recourse or criminal intent? Have the prosecution proven that the defendant acted beyond a business agreement, had no intention of fulfilling the terms, had misused his authority or control over the vehicle and thereby dishonestly deprived the complainant of his property for the defendant’s own financial gain? There is no dispute that there was an agreement notwithstanding the lack of specific details as to profit sharing terms and maintenance cost. The latter two were the subject of much debate.

The Facts

6. The answer to the above question depends on what facts I accept according to the rules of evidence. The complainant says sometime in 2019 the defendant offered him, by oral agreement, to operate the bus for him as one of the defendants’ fleet of buses in Samoa. In turn, the complainant would make some money out of it. The complainant testified that the situation was ideal as the defendant represented that he had the resources to repair for any breakdown or parts replacement without cost to the complainant so long as there is a share of revenue. What that percentage of the revenue to be shared was not clear in the evidence suffice to say this was the expectation of the complainant.
7. Up to the date of filing the complaint, the complainant testified that he only received SAT$2,200 and this was in 2018. The bus was returned to him in 2022 without the engine and inter-connecting parts. There was visual damages to the body especially the front lights and fender, there were no inside lights and cable wires, the tyres were bald and towed with only 5 tyres.
8. The defendant does not dispute the ownership of the bus but disputes the charge and asserts that he did not benefit from the partnership. He testified in fact that he lost money by having to constantly repair the bus and replaced the whole engine. To recover his losses, he removed the new engine that he put in and towed what was left of the bus back to the complainant.
9. Saunoa Solia was a relative of the victim who had the bus for a year from 2017 to 2018. He testified that the bus was operative with minor repairs when Litisone took the bus on behalf of the defenant.
10. Litisone Tiitii Matau was a mechanic who worked for the defendant looking after four buses for the defendant. He testified that sometime in 2018, he went to Vailele and towed the bus to Vaitele. He noticed that the engine “leaked” and was choking. He replaced with second hand parts from other buses two pistons and two “silivi’s” and overhauled the engine. He was instructed by the defendant to repaint the bus.
11. Litisone further testified that the victim’s bus was with him for a whole year until he had a falling out with the defendant where the defendant took all his buses including the victims bus to be operated by his son “Pogesi”. The defendant would send monies to repair his buses when needed especially when Litisone could not get second hand parts. The monies from the buses he would pay the drivers and his wife would deposit the rest in the defendant’s bank account.
12. In relation to the whole engine, Litisone testified that he never replaced the engine of the victim’s bus with a new one.
13. Andrew Roached owned a mechanic shop at Faleula. He testified that the defendant’s son Pogesi called him sometime in April 2022 to repair the bus. The bus referred to, he came to find out, was the victim’s bus. He testified that the only thing wrong with the bus was the breaks that needed replacing. After repairing the breaks, the defendant took the bus but never settled his bill to date.
14. Sometime in 2022, the victim called the defendant about taking the bus back and he will fix what needs to be done. However, the defendant told him that all will be repaired before his arrival. In October 2022 when in Samoa, the victim met up with the defendant at Vaitele and was disappointed that the bus was painted a different colour without his knowledge. The bus was operational.
15. Sometime in November 2022, the victim went to Papa, Sataua, Savaii to meet with the defendant and to take possession of the bus. The defendant was not there and there was no bus. However, the victim saw the bus operational on the road.
16. The victim again went to Papa to see the defendant and the bus. This time the defendant was there and the bus. The defendant said that he had put a new engine in which the victim was never consulted about nor agreed to. The victim turned on the ignition and the bus was working. The defendant said to the victim that he would put everything in the bus and deliver it that day. That never happened.
17. The victim then went to Police for assistance. Constable Venu Nikisone and Constable Felauai Mamea testified that on 25 November 2022 they went to the defendant’s home to enquire about the victim’s complaint. The bus was under a mango tree and the engine was seen hanging from a branch of the mango tree. The defendant was present with other people trying to lower the engine unto the ground.
18. When asked about the ownership, the defendant did not dispute but only said that he wants to remove the name on the bus and the engine before he returned the bus. He then towed what was left of the bus to Falealupo using his truck.
19. The victim upon receipt of the bus noticed that the there was no engine, no gear box, the front guard was rusty, the tyres were worn and one wheel was missing in the rear, the front dashboard was removed, no batteries, the diesel tank leaked and all the wiring in the cabin was removed and leaving a mess.
20. The defendant elected to give evidence. He testified that he and the victim had an agreement that he would put to good use the defendants bus for he felt sympathetic he only had one and the defendant had four. The defendant never agreed that one of the terms about profit sharing was “se mea au se mea oe” only they would “faapaleni mulimuli” the running cost.
21. As to the replacing of the engine, the defendant testified that he informed the victim in Australia via phone sometime in 2020. This was not put to the victim in cross examination although the victim in response to my question testified that he was never advised that the engine was going to be replaced.
22. The defendant claimed that the victim was lying about the $2,200 that he never sent him any money nor did he take any money from the victim’s bus when Litisone was running the bus. This evidence is disregarded as Ms Stowers did not put this to the victim during cross examination.
23. I asked the defendant as to why he did not return the old engine with what was left of the bus. the defendant merely said it was at his house at Vaitele and the victim was welcomed to uplift from there.

Discussion

24. The law relating to the charge of theft is well settled in Samoa^[1]. Section 161(1)(b), the prosecution must prove beyond a reasonable doubt:
    1. The alleged accused
    2. Dishonestly used or dealt with any property
    3. With intent to deprive the owner permanently of the property or of any interest in the property; and
    4. Has obtained possession of or control over the property in whatever manner
25. The identity of the defendant was not in dispute and I find that the first element has been satisfied to the required standard.
26. The second element can be considered in both a civil or criminal hearing as to whether the defendant dishonestly used or dealt with the property. It is not disputed that the defendant used and dealt with the property. He however argues that it was a breach of an agreement by the complainant. The defendant testified that the repairs on the bus exceeded any revenue.
27. The defendant did not contest that the bus was operational for at least one year from 2018 to 2020 just before COVID. After COVID in 2022, there is evidence that was not contested that the bus was operational again. The victim testified that he received only $2,200 in 2018 even though the defendant denies having made any payment to the victim. Saunoa and Likisone testified about the repairs which were manageable and the usual wear and tear costs. Otherwise, the bus was fully operational at least for one year under Likisone who pays the bus drivers and deposits the rest into the defendant’s bank account.
28. Notwithstanding the verbal agreement whether it be “se mea au se mea oe” or “faapaleni mulimuli” the latter as claimed by the defendant, the question is did the defendant use or deal with the bus dishonestly? And if he did, at what point did this happen according to the evidence?
29. Other than the $2,200 in 2018, the defendant never communicated effectively with the victim about the use of the bus until 2022 when the victim came to Samoa. The limited communication that took place via phone caused more uncertainty than reassurance for the victim. Even if I grant to the defendant that he was operating the victims bus at a loss, the reasonable and honest man would have communicated that to the victim and opt to sever the agreement in an amicable fashion.
30. The absence of effective communication about the operation of the bus for a commercial purpose for at least a year is a telling reasonable inference that the defendant was using or dealing with the victim’s property in a manner outside of their agreement. Does this amount to dishonesty?
31. In a civil or criminal sense, doing otherwise than what was mutually agreed for the benefit of both parties is in my view leaning towards dishonesty. The terms of the agreement was not in great detail but the substance and purpose could not be denied – that the victim entrusted the bus to the defendant so that they both can benefit financially. The defendant agreed that he had the parts and expertise to provide running repairs to the bus so long as the victim entrusted that to him. The defendant started doing major repairs to the bus without the knowledge or consent of the victim as if he did not need to do so. Re-painting the bus and replacing the whole engine, gear box, etc., is clear using and dealing with the property outside of his authority.
32. I am satisfied that the prosecution have proven the second element to the required standard.
33. In relation to the third element, the undisputed evidence which includes the evidence of the defendant is that he removed the whole engine, gear box, radiator, batteries, number plate, etc., until it was only the skeleton of the bus that was returned to the victim at Falealupo and does not intend to return any part to the victim. The defendant merely claims that he was of the belief he was entitled to do so by virtue of his financial loss, that the engine and all parts related were his and the victim had breached the agreement by dispossessing him of the bus.
34. Alternatively, despite the fact that defense counsel did not argue mistaken belief or “colour of right”, the suggestion that he honestly thought it was properties owed to him for losses due to repairs of the bus constitutes a colour of right defense. The law in relation to colour of right is also well settled in Samoa^[2] and need not be repeated here. Simply put, colour of right is an alleged honest belief in a state of facts which, if it actually existed, would, as a matter of law, justify or excuse the act done or negate the mens rea for the offence.
35. Did the defendant honestly believe, because the victim breached the verbal agreement or that the defendant had incurred substantial repair costs, that he was entitled to withhold and deprive the properties the victim claims as dishonestly stolen?
36. The answer is no. The defendant did not act or behave in a manner that would lead me to such a conclusion that he was of the belief, even if mistaken, that he had a right to possession of the vehicle parts claimed by the victim. The defendant initiated the agreement where he would provide repairs and general wear and tear to the bus so that it could be included in his fleet of four (4) buses that were managed by Litisone. He operated the bus for at least one (1) year until 2022 when the victim sought for its return given he only received SAT$2,200. Sometime in late November 2022, after meeting with the victim days before, the defendant towed what was left of the bus back to the victim with only the cabin, 5 bald tyres, damaged headlight less the engine and all related parts, gear box, radiator, batteries and number plates. The name had been scrapped off from the side of the bus.
37. I am satisfied that the prosecution have proven the third element beyond a reasonable doubt.
38. As to the third element, there is again no dispute that the defendant has in his possession and control the properties claimed by the victim up to the date of this judgement. The evidence of the prosecution witnesses and that of the defendant himself confirms this. The defendant again relied on colour of right as the reason for his insistence to retain possession. I have rejected this on the reasons given above and I find that the prosecution have proven this element to the required standard.

Conclusion

39. As for the reasons given, the defendant is found guilty of the charge.

JUDGE MATA’UTIA RAYMOND SCHUSTER

^[1] Police v Zhong Shuiming [2017] WSDC 7 (19 May 2017); Police v Tavui [2013] WSSC 6 (22 February 2013)
^[2] Police v Toluono [2012] WSSC 12 (22 March 2012); Police v Kini [2016] WSSC 112 (15 July 2016); Police v Toala [2024] WSCA 4 (7 October 2024)