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Fiji Independent Commission Against Corruption [FICAC] v Rizvi [2012] FJHC 1191; HAC003.2010 (27 June 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 03 OF 2010 [FICAC]

BETWEEN:

FIJI INDEPENDENT COMMISSION AGAINST
CORRUPTION [FICAC]

AND:

1. FURQAN AHMAD RIZVI

2. JOSEVA SEROA UTOVOU

Counsels: Mr. R. Aslam and Ms. T. Waqabaca for FICAC
1st Accused in Person
Mr. A. Naco for the 2nd Accused

Date of Trial: 18th – 21st June 2012
Date of Summing Up: 22nd June 2012
Date of Judgment: 25th June 2012
Date of Sentencing Hearing: 26th June 2012
Date of Sentence: 27th June 2012

SENTENCE

1. The 1st and 2nd Accused Persons were charged under section 4 (1) (a) and 4 (2) (a) of the Prevention of Bribery Promulgation respectively for giving and taking bribe of $200.00.

2. When the trial was proceeding the 2nd Accused informed the Court through his Counsel that he wants to change his plea when the plea was taken he pleaded guilty to the charge, accordingly he was found guilty and convicted as charged.

3. Trial against the 1st Accused severed and continued. At the end of the trial the Court found him guilty and convicted as charged.

4. According to the evidence available before the Court, the 1st Accused was a businessman who imports used vehicle spare parts. On the 3rd August 2009 he had imported a container load of spare parts. The 2nd Accused is a Customs Officer who was assigned to examine the container 100%. The container was allowed to be taken to the yard of the 1st Accused at Malolo, Nadi. The 2nd Accused also travelled with them to Malolo, Nadi. There he opened the container and pulled out and examined a part of spares and left the container open and left the place after obtaining $200.00 from the 1st Accused. Both Accused Persons admitted the money transaction. The 1st Accused says he gave the money. The 2nd Accused submits he accepted the money. The container was seized by the FICAC and subjected for a re-valuation then the importer, 1st Accused was asked to pay $1060.08 duty in addition to his previous duty.

5. Maximum sentence is prescribed under section 12 (1) (a) (iii) of the Prevention of Bribery Promulgation as fine of $500,000 and to imprisonment for 7 years.

6. In FICAC v Niraj Singh (2010) FJHC 94 Justice Fernando imposed 8 months imprisonment and a fine of $200 after the Accused pleaded guilty to the charges at the High Court.

7. In FICAC –v- Lean and Zhao (2010) FJHC 50 Justice Temo imposed 1 year imprisonment.

8. The preamble of the Prevention of Bribery Promulgation 2007 states as follows:

"IN exercise of the powers conferred upon the Interim Government and upon the exercise of my own deliberate judgment as President of the Republic Of the Fiji Islands as to what is in the best interest and good for the beloved peoples of the Fiji Islands, and by the executive authority of the State in accordance with Section 85 of the Constitution and all such other powers as may appertain, and with the approval of Cabinet., I, Josefa Iloilovatu Uluivuda, President of the Republic of the Fiji Islands, hereby make this Promulgations-

TO MAKE FURTHER AND BETTER PROVISIONS FOR THE PREVENTION OF BRIBERY, CORRUPTION, ELECTORAL FRAUD AND MISCONDUCT IN PUBLIC OFFICE AND FOR PURPOSES NECESSARY THERETO OR CONNECTED THEREWITH" (emphasis added)

9. The acts of the first accused do not only portray a wrong message to the striving ethical businessman of this country but it also intrudes the ethical standards of the business sector. This point is eloquently discussed in Rex v Marius Mahase (CRI/T 2004) the Lesotho High Court said:

"I need to repeat what was submitted by Crown Counsel Mr. Woker for the crown and to emphasize that the approach to zero tolerance in this kind of crime is called for. For one of the factors to consider, is the deterrence effect such crimes have on the economy by making the poor suffer and injury to the moral fibre of the governmental functionaries and the community in general. It is not for nothing that the crime of bribery is called a scourge.

"... the cancer called bribery on the economy of a country"

"It undermines economic growth, discourages foreign investments amongst other reduces optimal utilization of limited resources for infrastructure, public service and anti-poverty programmes".

10. Considering all above factors I commence that the sentence of the 1st Accused at 2 years imprisonment.

11. Aggravating factors of the 1st Accused:

1. Evaded the duty payable to the State.
2. Breach of trust.

100. This sort of conduct makes the genuine importers uncomfortable.
     

Considering above aggravating factors I increase your sentence by 3 months. Now your sentence is 2 years and 3 months.

12. Considering the mitigating circumstances of the 1st Accused:

1. You claim you are married and has a schooling child;
2. You are the sole breadwinner;

100. You claim because of the case you lost all your business;

4. In your mitigation submission you say as, "I'm very sorry for what I have done and sincerely apologize to Court everything that has happened";
5. Your brief period in remand custody.
   

Considering all above mitigating circumstances I reduce your sentence by 5 months. Now your sentence is 22 months.

13. The Customs department is one of the sensitive departments of any country. They can cause good or bad influence to the economy of the country. The 2nd Accused is a Customs Officer with 18 years of service. Considering all factors before the Court I commence the sentence at 2 years imprisonment.

14. Aggravating factors of the 2nd Accused:

1. Betrayal of trust as an employee of the Customs.
2. Brought disrepute to the Customs officers and the Public Servants at large.

100. Your conduct caused loss of revenue to the State.

4. Makes serious effect on the economy of the country.
   

Considering all above factors I increase your sentence by 4 months. Now your sentence is 2 years and 4 months.

15. Mitigating circumstances of the 2nd Accused:

1. You have pleaded guilty (almost at the end of the prosecution case);
2. You claim you are a first offender;

100. You are married and have two schooling children;

4. You are the sole breadwinner of your family;
5. Your Pastor claims you are with good character and you are presently struggling to provide daily needs of your family.
   

Considering all above mitigating factors I reduce your sentence by 10 months. Now your sentence is 18 months imprisonment.

16. The law considers this offence as serious offence and imposing fine is mandatory. Hence I impose a fine of $2000.00 in default 6 months and 20 days imprisonment on the 1st and 2nd Accused Persons.

17. Both of you are pleading the Court the sentence to be suspended. Considering the nature of the offence, Bribery is cancerous to our society which will completely ruin our country, hence this Court is not inclined to impose a non custodial sentence.

18. Anyhow considering the nature of the offence and your mitigating circumstances I act under section 26 (1) of the Sentencing & Penalties Decree and impose the following sentence:

1st Accused - You are imposed of 22 months. You will be serving 10 months in prison and the balance 12 months will be suspended for a period of 3 years.

2nd Accused - You are sentenced to 18 months. You will be serving 6 months in prison and the balance 12 months will be suspended for a period of 3 years.

19. Both Accused Persons are given one month to pay the fine. If the fine is not paid default sentence will be implemented consecutive to the substantive sentence.

20. This case will be mentioned on the 3/8/2012 to check the payment of the fine.

21. Summary:

1st Accused - You are sentenced to 22 months imprisonment. You Will be serving 10 months and the balance 12 months are suspended for a period of 3 years. In addition to above you are imposed a fine of $2000.00 in default 6 months and 20 days imprisonment. (Default sentence will be implemented consecutive to the substantive sentence).

2nd Accused - You are sentenced to 18 months imprisonment. You will be serving 6 months and the balance 12 months are suspended for a period of 3 years. In addition to above you are imposed a fine of $2000.00 in default 6 months and 20 days imprisonment. (Default sentence will be implemented consecutive to the substantive sentence).

22. 30 days to appeal to the Court of Appeal.

S. Thurairaja
Judge

At Lautoka
25th June 2012

Solicitors: The Office of the Fiji Independence Commission Against Corruption for the Prosecution

1st Accused In Person

Naco Chambers for the 2nd Accused