Businessman failed to declare cash to Customs [1]
Monday, March 25, 2019 - 19:03. Updated on Tuesday, March 26, 2019 - 09:14.
A businessman of Asian origin, was convicted on a charge of failing to declare carrying over $10,000 pa’anga at Fua’amotu International Airport last year,
Mr Qian Xiyun a businessman in Longolongo was charged under section 97 of the Customs and Excise Management Act, in a one day trial on March 19.
Hon Mr Justice Cato dismissed two further charges of money laundering and bribery of government servants when he found there was no prima facie case. In a judgment on March 22, the judge said the events occurred on May 15, 2018 at the passport control booth at the departure lounge.
A customs officer was processing departing passengers for a flight to Fiji when the accused approached her after completing security screening by aviation officers. The accused handed the customs officer his passport and passenger departure card.
The accused then declared on his departure card that he was not carrying more than $10,000 pa’anga in cash, or its equivalent in foreign currency. Several requests of him by the officer as to whether he was carrying cash, to which he had responded that he was not, eventually revealing that he was in fact carrying on him and in his clothes a large sum of money in Tongan, U.S and other currencies.
The judge said this led the customs officer to consult a more senior officer for further questioning. Still, the accused said he was not carrying any more cash to her. The officer persisted in her questioning and the accused removed some more cash from his trousers.
A male officer was then called to assist in a search of the accused's body, after which a further large sum of money was located strapped to his leg.
In all, the judge was informed about $149,000 pa’anga equivalent was located in US, Tongan and other currencies.
Hon Mr Justice Cato said, during the course of the evidence, the more senior of the Tongan female customs' officers said that she had asked him about further money and he had pulled out wads of money and placed them on the table.
At one point, an airline staff asked the customs officer whether the accused could leave to get on the plane and she said the inquiry must be completed.
About this time, the customs officer said the accused had produced more money in his hand, which he held out and had asked that he go on the plane. She took this to amount to be a bribe. Although the more junior officer was present when this occurred, no evidence was led from her about whether this had occured, he said.
Dismissed
The judge in dimissing the bribery charges, said there was no express declaration to either officer that the money the accused pulled out of his pocket was intended for them as a bribe or could be taken by them personally.
“The more senior officer who gave evidence saw the accused’s action in this light, but it is for me to determine whether the evidence at its highest for the prosecution reaches a level where a properly directed jury could convict the accused beyond reasonable doubt of bribery. As I have said, only one customs' officer gave evidence about this, he said.
"I do not consider that the state of the evidence is such that a properly directed jury could draw an inference of a bribe being offered on the evidence placed before me."
“In addition, the production of money may have been no more than compliance with the request by customs to produce any further money he had. The statement of the accused to allow him to go on the plane could be inferred to be no more than an entreaty to customs to allow him to take his place so that he could travel.
“There was no evidence from the accused, in my view, from which a reasonably directed jury could beyond reasonable doubt infer that the production of the money was intended to be a bribe and offered as such,” said the judge.
No evidence
Similarly, the judge found no evidence in the money laundering charges and ruled no prima facie case.
He said the offence of money laundering under section 17(1) of the Money Laundering and Proceeds of Crimes Act arises if the person; acquires, possesses or uses property knowing or having reasonable grounds to believe or suspect that it is derived directly or indirectly from the commission of a serious offence.
"The Prosecution led no evidence as to the origin of the cash the accused carried with him when departing."
The judge said, the Prosecution endeavored to persuade him it could establish the derivation of the money as being the proceeds of a serious crime because the accused had made a false custom's declaration concerning the cash he was carrying, which exceeded the permissible amount namely $10,000.
"I reject that submission. The proceeds must be shown to have been deprived from a serious crime."
The fact that a declaration falsely conceals the currency in the hands of the departing passenger has nothing to do with the origin of the cash. For this reason, there is no prima facie case and the charge must be dismissed also, he said.
Guilty
Meanwhile, on the count of failure to declare carrying more than $10,000, the judge ruled that the prosecution was entitled to proceed as they did to prosecute the accused under section 97 of the Customs and Excise Management Act and, and there was no reason to set aside the accused's guilty plea.
The accused counsel, Clive Edward argued that the prosecution had not preceded under the appropriate legislation and that the accused had wrongly pleaded guilty to an offence that the Crown could not sustain in law.
In addition, he was not the counsel when that plea was entered.
The judge ruled the prosecution was entitled to proceed under this section.
He convicted the accused on failure to declare he was carrying over $10,000 pa'anga.
He is expected to be sentenced in April.