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Republic v Samasoni [1999] KIHC 41; HCCrC 09.99 (17 November 1999)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrC 9/99

THE REPUBLIC

versus

TIPUTA SAMASONI

Ms P Tebao for the Republic
Mr B Berina for the Accused

Date of Hearing: 15, 16 November 1999

JUDGMENT

The accused has pleaded not guilty to the following 4 counts brought under the Foreign Investment Act 1985.

Count 1

Statement of Offence

Carrying on business in Kiribati without a valid certificate of registration issued by the Foreign Investment Commission contrary to section 18(1) of the Foreign Investment act, No. 3 of 1985.

Particulars of Offence

Tiputa Samasoni, on or about August 1996 carried on business in Kiribati, by installing a computerised accounting system programme for the Betio Shipyard and receiving a total of $1,400.00 for his services, without having a valid certificate of registration issued by the Foreign Investment Commission.

Count 2

Statement of Offence

Carrying on business in Kiribati without a valid certificate of registration issued by the foreign Investment Commission contrary to section 18(1) of the Foreign Investment Act No. 3 of 1985.

Particulars of Offence

Tiputa Samasoni, during August 1998 carried on business in Kiribati, by installing a computerised accounting programme for the Betio Shipyard and receiving a total of $550.00 for his services, without having a valid certificate of registration issued by the Foreign Investment Commission.

Count 3

Statement of Offence

Carrying on business in Kiribati without a valid certificate of registration issued by the Foreign Investment Commission contrary to section 18(1) of the Foreign Investment Act No. 3 of 1985.

Particulars of Offence

Tiputa Samasoni, during November 1996 carried on business in Kiribati, by installing a computerised accounting programme for the Atoll Seaweed Co. Ltd and receiving a total of $1,500.00 for his services, without having a valid certificate of registration issued by the Foreign Investment Commission.

Count 4

Statement of Offence

Carrying on business in Kiribati without a valid certificate of registration issued by the Foreign Investment Commission contrary to section 18(1) of the Foreign Investment Act No. 3 of 1985.

Particulars of Offence

Tiputa Samasoni, during April 1997 carried on business in Kiribati, by installing a computerised payroll system and General Ledger programme for the Abamakoro Trading Co. Ltd and receiving a total of $1,500.00 for his services, without having a valid certificate of registration issued by the Foreign Investment Commission.

The prosecution called 6 witnesses to prove the following facts, which were not challenged by the accused.

The accused is a Tuvalu citizen who came to work in Kiribati in 1995 as a computer consultant, employed by the Development Bank of Kiribati. His work permit was extended until the 30th September 1998. He remained in the country until the 22nd December 1998, when he obtained another work permit as a foreign investor to carry out his enterprise of "TS Computing", a business specialising in automation of accounting systems, designing database programmes and computer support services. The Foreign Investment Commission approved his foreign investment project on the 6th July 1998 and confirmed this approval on the 4th September 1998. However, notwithstanding such approval, he was advised that he could not commence operation until the Foreign Investment Commission registration and licence certificates were issued. Those certificates were issued on the 1st December 1998.

However, while the accused was employed by the Development Bank of Kiribati, since 1995 and before he was granted approval to conduct business as a foreign investor, he carried on business for the following organisations, charged them money for his services, and received payment.

Betio Shipyard

In 1996, the accused installed their accounting system and trained some of the accounts staff. The job took about 3 months to complete. The first part-payment claimed for his service was $150.00 and the second was $1,250.00. He installed a second programme in August 1998 for the Shipyard's pay roll system, for which he charged $550.00.

Atoll Seaweed Co. Ltd

During November 1996, the accused installed an accounting programme for Atoll Seaweed in their computer system and trained some of the staff. This work took about 3 weeks to complete. He charged $1,500.00 for his service.

Abamakoro Trading Co. Ltd

In April 1997, the accused installed a payroll system and General Ledger programme into Abamakoro's computer system. The work took about one month to complete. His charge was $1,500.

In his cautioned statement, the accused admitted carrying out and charging for the above computer related services prior to the approval of the Foreign Investment Commission, and that he knew it was illegal to charge for them. He said that he did the work because those organisations desperately needed his help.

At the close of the case for the prosecution I found that a prima facie case had been established. In accordance with section 256 of the Criminal Procedure Code Cap. 17, I explained to the accused the options open to him and he elected not to give evidence nor call any evidence.

I remind myself that the burden of proof beyond reasonable doubt remains on the prosecution from first to last. It must prove the charge, and each element of the charge, beyond a reasonable doubt and if it fails to do so then the accused is entitled to be acquitted. There is never any onus on the accused to prove his innocence.

The accused has been charged under section 18 of the Foreign Investment Act 1985 which provides as follows:

18(1) No person or foreign enterprise shall carry or continue to carry on business in Kiribati without a valid certificate of registration issued under section 16 of this Act.

(2) Any person who or foreign enterprise which contravenes the provisions of subsection (1) of this section commits an offence and shall be liable on conviction to a fine of $10,000.

(3) Where a foreign enterprise is a corporation and such foreign enterprise commits an offence under this section an officer, director or agent of the foreign enterprise who directed, authorised assented to, acquiesced in, or participated in, the commission of the offence is a party to and commits the offence and is liable on conviction to the punishment provided for the offence under this section.

(4) In addition to any fine imposed pursuant to subsection (2) of this section the Court may order the forfeiture of all or any of the assets of a person or foreign enterprise in Kiribati to the Republic.

Section 16, which provides for the issue of a certificate of registration, is in the following terms:

16. On receipt of the information set out in section 14 and on the Commission being satisfied as to its correctness the Commission shall subject to the payment of a prescribed fee issue to the foreign enterprise a certificate of registration in the prescribed form of the foreign investment for which approval has been granted.
    

Thus, to satisfy its onus in the present case, the prosecution must prove that the accused carried on a business without a valid Certificate of Registration of Foreign Investment.

I am satisfied that the facts prove beyond a reasonable doubt that the accused provided the services mentioned in the indictment; that he charged and received payment for them and that at the time that he did the work he was not in possession of the necessary certificate of registration.

Indeed, the evidence is not disputed by the accused. What he contends is that such evidence does not establish that he was carrying on a business within the meaning of the Foreign Investment Act 1985.

Section 2 of the Act, which is the interpretation section, provides the following definitions:

"business" includes any profession, trade, occupation, manufacture, industry or undertaking carried on for pecuniary gain;

"carrying on business" means carrying on an economic activity pursuant to the objects of an enterprise and includes:

(a) establishing or using a share transfer or share registration office; and

(b) administering, managing or otherwise dealing with property, both real and personal, as an agent legal personal representative or trustee and whether by an employee, agent or other representative or otherwise; and

(c) maintaining an agent or other representative for the purpose of soliciting or procuring business whether or not such agent or representative is continuously resident in Kiribati; and

(d) maintaining an office, agency or branch in Kiribati, and shall specifically not include:

(e) aid and development products negotiated, arranged or contracted by or through the Government of Kiribati, and an enterprise shall not be regarded as carrying on business by reason solely that it:

(f) maintains a bank account;

(g) secures or collects any of its debts or enforces its rights in regard to any securities relating to any such debts; or

(h) conducts a transaction which is completed within a period of 31 days not being one of a number of similar transactions in a series; or

(i) collects information or undertakes a feasibility study and "to carry on business" has a similar meaning;

"enterprise" means any person, natural or corporate or body or association of persons engaged or proposing to become engaged in the carrying on of business.

It is argued for the accused that he was not carrying on business within that definition but was merely hired on a part-time basis to do the various jobs. The evidence fails to establish, so the argument goes, that in doing those jobs the accused was carrying on an economic activity pursuant to the objects of an enterprise.

I have not been referred to any case law on the point. I would not imagine there to be any, because in my view the definitions mentioned are quite clear.

The facts place the accused's occupation squarely within the broad definition of "business", a definition which, incidentally, is not exhaustive.

It can be seen from the definition of "carrying on business" that the words "an economic activity pursuant to the objects of an enterprise" are just another way of saying "business". Such words are simply referring to an economic activity, such as charging and receiving money, connected with the objects (or aims) of a person etc. engaged or proposing to become engaged in the carrying on of a business.

The fact that the accused had a permanent job at the times he provided the services mentioned does not lead to the conclusion that he was not carrying on a business. Nor is it relevant that he did not make a great deal of money and that there were only a few occasions. The facts prove beyond a reasonable doubt that on the occasions alleged, the accused carried on an occupation for pecuniary gain, constituting a "business" within the meaning of the Act, and that he did so without a certificate of registration as required by the Act.

There are two other matters that should be mentioned, although they were not put in issue. I am satisfied on the evidence that the accused was a foreign enterprise as defined in section 2 and that the business he carried on was a foreign investment for which a certificate of registration was necessary.

I find the accused guilty on all 4 counts and he is convicted accordingly.

THE HON R B LUSSICK
CHIEF JUSTICE
(18 NOVEMBER 1999)

SENTENCE

The accused is currently carrying on business as a foreign enterprise.

The amounts earned by the accused over the time that he was engaged in business without a certificate of registration were not excessive, the total sum earned being in fact $4,950.

I think it goes strongly to the accused's favour that the charges resulted from his own admissions made to the Foreign Investment Commission. He has never attempted to deny any of the facts associated with the prosecution. Why the matter proceeded as a defended matter was for the High Court to decide on a point of law.

I think in the circumstances that in respect of each offence a fine is called for which is not heavy but sufficient to ensure that the accused does not profit from his crimes.

In respect of each of the 4 offences an appropriate fine is $1,250 on each offence, a total of $5,000.

On each of the 4 charges you are convicted and fined $1,250 on each charge to be paid by 4 pm on the 5th January 2000 in default of payment 1 month's imprisonment on each charge. That's a total fine of $5,000. If it is not paid by the 5th January 2000 you will spend 4 months in prison.

THE HON R B LUSSICK
Chief Justice
(17/11/99)