IN THE HIGH COURT OF SIERRA LEONE CRIMINAL DIVISION

THE STATE VS SANTIGIE ABU BAI KALOKOH

Thursday, 29th January, 2009. Before the Hon. Mrs. Justice M Sey.

CASE                         - CALLED

ACCUSED                 -  PRESENT

S.P. Sembalemba - for the State. C.F. Edwards - for the accused.

JUDGMENT

The accused Santigie Abu Bai Kalokoh is charged on a 2 Count Indictment with the offence of soliciting an advantage and accepting an advantage contrary to Section 8 (1) (b) of the Anti Corruption Act 2000 (as amended).

The statement of offence under Count 1 reads "soliciting" an advantage as an inducement, contrary to Section 8 (1) (b) of the Anti Corruption Act 2000 (as amended). The particulars of offence are that "Santigie Abu Bai Kalokoh on the 7th day of May 2008 at Freetown, in the Western Area of Sierra Leone, being a Public Officer attached to the Public Service Commission as Higher Executive Officer did solicit an advantage consisting of the sum Lel50,000.00 from Arthur Caulker and Raymond Bai Kamara, the said sum being an inducement to expedite an application from a purported sister of the said Arthur Caulker and Raymond

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Bai Kamara, The said...being an inducement to expidite an application from a purported sister of the said Arthur Caulker and Raymond Bai Kamara to secure enrolment as a nurse in the Ministry of Health and Sanitation.

The same wording is replicated in Count 2 except that the words "Accepting an advantage" and did accept an advantage are substituted for "Soliciting an advantage and "did solicit an advantage".

Section 8 (1) of the Anti Corruption Act 2000 provides that "any public officer who solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his..."

b. Expediting, delaying, hindering or preventing or having expedited, delayed, hindered or prevented the performance of an act, whether by himself or by any other public officer in his capacity as a Public Officer;....... Is guilty of an offence".

Pursuant to an application made by the Attorney-General and Minister of Justice, this court made an order on the 11th day of July, 2008 for the accused to be tried by Judge alone instead of the Judge and Jury in accordance with Section 144 (2) of the Criminal Procedure Act No.32 of 1965, as repealed and replaced by Section 3 of the Criminal Procedure Amendment Act, No.11 of 1981. As this Court is sitting both as the tribunal of fact and as the tribunal of law, it is mindful of the legal requirement that, in all criminal cases, it is the duty of the Prosecution to prove its case beyond all reasonable doubt. It bears the burden of proving beyond a reasonable doubt every element of the offence with which the accused is charged and that legal burden of proof lies upon the Prosecution throughout the trial; see WoolminetonvDPP (1935) AC 462 (HL).

"Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the Prosecution to prove the prisoner's guilt, subject (to the qualification involving the defence of insanity and to any Statutory exception). If at the end of and on the whole of the Justice M Sey/Ruling/Santigie Abu Bai Ka!okoh/ES

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case, there is a reasonable doubt, created by the evidence given either by the Prosecution or the prisoner, as to whether (the offence was committed by him), the Prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what he charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the Common Law of England and no attempt to whittle down can be entertained".

Even if the Court does not believe the version of events put forward by the defence the Court must give the accused the benefit of the doubt if the Prosecution has not proved its case beyond all reasonable doubt. In the event there is any doubt in my mind, as to the guilt or otherwise of the accused, in respect of any of the charges in the indictment, then I have a duty to acquit and discharge the accused of that charge or charges.

To prove their case the prosecution called four witnesses. PWS1 Arthur Caulker testified that he is a journalist reporting for the Exclusive Newspaper. He said on the 7rh day of May 2008 he had received information and that he together with PW2 Raymond Bai Kamara approached the accused person at his office and told him PW1's sister is a nurse and that she lives in Makeni and that she wanted to be accredited a document for her to become a Civil Servant. PW1 said the accused told him that he was the right person but that it would take a long process, but to cut this matter short, he should come with a sum of Le200, 000.00. PW1 said he begged the accused to reduce the amount to Lel50, 000.00 to which the accused agreed and told him that he would give Le50, 000.00 to the Permanent Secretary at the Ministry of Health, another Le 50, 000.00 to other officials whose names he did not disclose and that the balance of Le 50, 000.00 he would use as transportation to expedite the process. PW1 said further that he told the accused he was going for the money and that he went for ten minutes and then came back with Raymond Caulker PW2 and one Yusuf who had given him the Le 150, 000.00. PW1 testified further that he gave the accused Le 150, 000.00, which he received and placed it on top of his table. He said the accused then took the Public Service Commission Application Form from his cabinet and gave it to him and said he should photocopy. He said he did so. Both the original Public Service Commission Justice M Sey/Ruling/Santigie Abu Bai Kalokoh/ES

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form and the photocopy were produced and tendered without objection and admitted as Exhibit A and B respectively.

PW1 said further that the accused also gave him a specimen form and told him that he should give it to the lady to follow "all the samples of information on this form". The specimen form, bearing the name of Memunatu Kirow with a photograph attached thereto, was produced and tendered without objection and admitted as Exhibit C.

PW1 was cross examined by Counsel for the accused as to what happened to the money. He said he took the money from the table and gave it to the rightful owner. He said Anti Corruption Commission asked him for the money but he did not produce it at the Anti Corruption Office. He maintained that he gave the accused money.

PW2 Raymond Bai Kamara's evidence was similar to that of PW1 in respect of the information they had received, the fact that the accused asked them for Le 150, 000.00 and gave them two types of forms. However, there was inconsistency between the evidence of PW1 and PW2 as to how the money was removed from the accused. PW1 stated that he took the money from the table where the accused had placed it. When cross examined on this point PW1 said:-

"The documents were handed over to me after he had received the money. He turned his back to me. The money was on the table. When he turned back, I did not look at him. At the time he was giving me the documents the money was on the table. After he had handed over the documents to me, I took the money. He didn't notice that the money was gone".

PW2, on the other hand, stated hat PW1 snatched the money from the hands of the accused after he had received it. PW2 said:-

"Upon our arrival at the office of Mr Kalokoh, Yusuf Sesay was having a camera phone which was used to snap the process while Arthur Caulker was handing over the money to Mr Kalokoh. When Arthur Caulker

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was handing over the money to Mr Kalokoh, he had his hands resting on the office table attempting to receive the money from Arthur Caulker. The money was quickly snatched away by Arthur Caulker and at that moment Yusuf Sesay snapped the process".(Underlining mine) Under cross-examination the defence put it to the witness that they entrapped the accused. I shall return to that issue of entrapment later when dealing with the defence.

PW3 was Albert Martin Bockarie, the Permanent Secretary attached to the Public Service Commission at No 30 Gloucester Street. He identified the accused as one of his support staff at the Public Service Commission. He said the accused was a Higher Executive Officer in charge of Ministry of Health to handle matters relating to the appointment of Nurses including State Registered Nurses (SRN) and Maternal Child Aides. PW3 testified that when the Public Service Commission advertised vacancies the Commission issues out Form 8 (i.e. exhibit A) and every applicant wanting to access employment goes to the Commission for the Public Service Commission Form 8. He said there is no fee charged for this Form and it is issued free of charge. When shown exhibit A. PW3 confirmed that it was the Application Form he was referring to as Form 8. He further stated that Form 8 and other forms are all in his office under lock and key. He said he issues them intermittently when vacancies occur and the applicants access these Form through the Staff Superintendent Mrs Isatou Conteh who in turn would pass the Forms to the accused. He said that in respect of senior positions the Forms are passed directly to him and he issues them. PW3 was not cross-examined by Counsel for the accused.

PW4 was Musa Jamiru Bala Jawara, an Investigation Officer of the Anti Corruption Commission. He narrated what he did by way of investigation into the allegation he received from PW1, of soliciting and accepting an advantage, made against the accused. PW4 tendered in evidence the recorded interview of the accused as Exhibit D. Under Cross examination PW4 said that when he went to the office of Justice M Sey/Ruling/Santigie Abu Bai Kalokoh/ES

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the accused he did not explain to him about the word "soliciting". He said he was not aware that PW1 had gone to Mr Kalokoh's office to trap him. He also said PW1 did not give him Lel50, 000.00 and he agreed that no Lel50, 000.00 was found in Mr Kalokoh's office. He said he had asked PW1 for the money and that PW1 had said he had collected the money from the accused person. When it was put to him that the word "soliciting" is a technical word he said "of course the word "soliciting" is a very technical word.

At the close of the prosecution case the accused gave evidence on oath . He testified that on the 7th day of May 2008 he was employed by the Public Service Commission and whilst he was in his office he had cause to see PW1 and PW2. He said he had returned from prayers and he was told they were waiting for him. He said that was the first day he met them and that they introduced themselves when they entered into his office. He further testified that Raymond (PW2) told him that he got information that he should assist him in getting an Application Form which is Public Service Commission Form 8 and that at the same time he was to process the Form for him. The accused said that he told PW2 that he was not in "the capacity of giving out that Form neither for it to be processed because these Application Forms are under lock and key with the Secretary of the Commission and that he could not help. He said that secondly, he told him that the Public Service Commission was not in operation since 26th September 2007. He further testified that he patiently explained to them that the Public Service Commission only gives out that Form when there is a vacancy advertised and so they should go to the Ministry to get the Application Form processed for them. He said on giving them all the information, PW1 got annoyed and he went out of his office and left PW2 in his office. The accused said Raymond asked him if he had ever been involved in a government problem and he said "no" and Raymond then told him that "today he is going to change my place of sleeping" He said before Raymond told him that no offer or money was made to him. He said later on Arthur (PW1) returned to his office with three gentlemen and they introduced themselves as Anti Corruption Officers and they told him that he was under arrest. He said he asked them what happened because he did not know the cause of his arrest and they said that he had received Le 150, 000.00 from Arthur Caulker Justice M Sey/Ruling/Santigie Abu Bai Kalokoh/ES

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and that he should search himself. He said he had Le 1, 700.00 with him and he put it on his desk together with his phone. He said his office was searched but nothing was found.

On being shown exhibits A, B and C the accused said these are Application Forms issued to applicant when there are vacancies from any Ministries. He said these Forms are usually obtained from any Ministry as far as Civil Servants are concerned. He said that when his office was searched he does not know whether documents were taken from his office.

When he was shown exhibit D, the accused said he signed that statement at the tail end. He said he was intimidated. He said he made the statement at the Anti Corruption Commission Office. He said the officer did not explain to him what he meant by "solicited" and that he just answered question 6 in the affirmative. He said he did not receive the sum of Lel50, 000.00 from Arthur Caulker and that he did not tell Arthur he was going to complete the Form to expedite things.

Under cross examination, the accused agreed with PW3 as to what he said about the procedure or how Public Service Commission Forms are obtained. He agreed that there is no fee charged for the processing of the Forms. He also agreed to make a statement at the Anti Corruption Office but said he did not read the statement before signing it. He said that even though he signed the statement he still maintained that he was intimidated by Arthur Caulker and the Anti Corruption Officers who made threats to him at the time he was in the office. He said they had told him that he would not sleep in his house and that he would sleep some where else for five days. He said he did not understand the word "solicit" because it is a technical word. He said he asked the Anti Corruption Officers at the time and they told him he should not ask them anything. When questioned about his level of education the accused said it is 'O' Level and 'A' Level. In answer to a question from his Counsel during re-examination, the accused said the time the statement was obtained from him was around 7.35 P.M. and that he signed it but did not write down the bit about "certify that it is true and correct".

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In his closing address to the Court, Defence Counsel Mr. C F Edwards submitted that the word "soliciting" has not been proved by the Prosecution. He said it is a technical language which to an ordinary man will carry a different meaning. He also submitted that PW1 and PW2 were agent's provocateur and the conduct of the accused cannot therefore amount to soliciting. He referred to Exhibit D and he submitted that even though the accused admitted in question 6 that he "solicited" the word was not explained to him.

Counsel further submitted that from the totality of the evidence it is a case of entrapment and that the accused cannot be found guilty of the offences as charged. Counsel submitted further that the prosecution has woefully failed to prove the ingredient or accepting an advantage. He said Arthur Caulker himself said that he took back the money and so there is no acceptance of an advantage. Counsel referred to the testimony of PW4 and he submitted that a search was conducted but nothing was found and that there has been no exhibit that the accused solicited and received the sum of Lel50, 000.00. Counsel submitted that no photograph was produced before the Court to show and prove that the accused did receive and he was snapped.

On Count 1, for the offence of soliciting an advantage as an inducement under Section 8 (1) (b) of the Anti Corruption Act 2000 (as amended the Prosecution must prove the following ingredients beyond reasonable doubt:-

a. The accused must be a Public Officer;

b. He must solicit an advantage

c. The advantage must be an inducement to or reward for or otherwise on account of his expediting the performance of an act.....in his capacity as a Public Officer.

As to whether the accused was a Public Officer, PW3 testified that the accused was one of his Support Staff employed as Higher Executive Officer at the Public Service Commission. His evidence was corroborated by the accused's own testimony on his answers to questions 13, 14, 15, 16, and 17 in Exhibit D.

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With regards to the element of soliciting an advantage, I have carefully perused Exhibit D and I believe that all the admissions the accused made in it are true. I do not accept the story put forward by the accused that he was intimidated by PW1 and PW2 as well as by the Anti Corruption Officers. I do not believe they made any threats to him ....believe that he gave the interviewer voluntarily and of his own free will. I do not believe his testimony that he did not understand this word "solicit" and that when he asked the Anti Corruption Officers at the time they told him to should not ask them anything. I have examined the answer the accused gave to question 6 in Exhibit D and I believe that admission as true. For ease of reference I would reproduce it here under Viz:-

"Ans: Indeed I solicited the sum of one hundred and fifty thousand leones from them in order to assist their relative to secure the Public Service Commission (PSC) Form 8 which will enable the relative to be enrolled at the Ministry of Health and Sanitation".

It is pertinent to note that the accused did not object to the tendering of Exhibit D by the Prosecution at the trial. It is also in evidence that he was duly cautioned by PW4 and that he signed on each question and answers sheet in Exhibit D. I find it strange that, by virtue of the accused's qualifications of '0' and 'A' Levels and the fact of his holding the post of Higher Executive Officer in the Public Service Commission, the accused could not understand the word ''soliciting". I do not accept his version of events. Rather, I believe his evidence of PW1 Arthur Caulker and PW2 Raymond Bai Kamara in respect of Count 1.

Learned defence Counsel submitted that they had acted as "agent provocateur" and that they entrapped the accused. It is a well known principle that entrapment does not exist as a substantive defence in English Law. In R v Sang (1980) AC 402, Lord Diplock at P432, noted that "many crimes are committed by one person at the instigation of others. The fact that the Counsellor or procurer is a policeman or a police informer, although it may be of relevance in mitigation of penalty for the offence, cannot affect the guilt of the principal offender: "both the physical Justice M Sey/Ruling/Santigie Abu Bai Kalokoh/ES

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element (actus reus) and the mental element (mens rea) of the offence with which he is charged are present in this case".

A further point of principle was noted by the House of Lords in the case of Regina V Loosely (2001) UKHL 53. Lord Hoffman stated that:-

"Entrapment occurs when an agent of the state - usually a law enforcement informer (officer or controlled informer) -causes someone to commit an offence in order that he may be prosecuted".

Judging from the definition in Regina V Loosley, I believe and hold as a matter of fact that PW1 and PW2 had not entrapped the accused. The evidence does not show that they were police officers or controlled informers of the police. Even if they had approached the accused as “agent provocateur" (as alleged by the defence) that, to my mind, did not diminish the criminality of the conduct of the accused or weaker the probative value of the evidence. It has not been shown from the totality of the evidence adduced that they incited or in stigated th e accused person to solicit the advantage. He named his initial price of Le200, 000.00 and eventually consented to the sum of Le150, 000.00. I find as a matter of fact that he even went on to explain to PW1 and PW2 how he was going to use the amount. Furthermore, in his answer to question 8 in Exhibit D he narrated as follows:-

"That I will give the Clerks at the Ministry of Health and Sanitation Le50,000.00, my transportation fee Le50,000.00 and the remaining Le50,000.00 for payment to official involved in processing the Public Service Commission Form 8".

On the whole, I hold that the prosecution has proved its case beyond all reasonable doubt in respect of Count 1 in the indictment. I thus find the accused guilty on Count 1 and convict him accordingly on Count 1.

With regards to Count 2, i.e. accepting an advantage as an inducement contrary to Section 8 (1) (b) of the Anti Corruption Act 2000 (as amended). I have my doubts at to the guilt of the accused. This is due mainly to the inconsistencies I

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had earlier on referred to in the evidence of PW1 and PW2. The question for determination is whether or not the accused accepted an advantage?

I have perused the legal definition of the word "accept" and it means "to receive with consent". I also looked up the word "receive" and it means "voluntarily to take from another what is offered". From the evidence adduced, I am of the considered opinion that the accused did not take the money from PW1 in the true sense of the word "accept". PW1 states that the accused took the money and placed it on the table but that he later took the money and returned it to the owner Yusuf Sesay. In my considered judgment, the act of accepting an advantage was not complete. Perhaps it would have been prudent for PW1 and PW2 to have left the money with the accused and wait for the Anti Corruption Officers to have retrieved it from him. Had that option been pursued there would have been no doubt in my mind that the accused had accepted an advantage as an inducement. As it is, I would give the accused person the benefit of the doubt since the Prosecution has failed to satisfy me that it has proved the case in respect of Count 2 beyond all reasonable doubt.

For all the foregoing reasons I find the accused not guilty on Count 2 and I hereby acquit and discharge him on Count 2.

Hon. Justice Mary Sey 29 JANUARY 2009

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