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DON LIYER1SV
DIRECTOR-GENERAL OF THE COMMISSION TO INVESTIGATEALLEGATIONS OF BRIBERY AND CORRUPTION
COURT OF APPEALBALAPATABENDI, J.
BASNAYAKE, J.
CA 55/96
HC COLOMBO B/29097OCTOBER 20, 2005NOVEMBER 11,2005JANUARY 16, 2006
Bribery Act-sections 12, 19, 90, and 90(c) – Offence of bribery – Is it one ofstrict liability? – Should there be actus reus together with mens rea? – Bribery?- Donation to a community center? -Is it a bribe?
Held:
However laudable the purpose for which the money is to be finally utilized andwhatever his intentions were with regard to the use of the money, an offense iscommitted by a public servant under section 22 if he solicits or accepts anygratification for performing any official act.
APPEAL from the High Court of Colombo.
Case referred to:
(1) Rupasinghe v Attorney-General 1986 2 Sri LR 329.
Don Liyeris v Director-General of toe Commission to Investigate
Allegations of Bribery and Corruption fJaoato Bataoatabendi. J.)&
Dr. Ranjith Fernando with Deshanl JayathUaka and Amila Umayanganie for theaccused-appellant
Ms. M. Uyanage, Deputy Director-General of Bribery, the Bribery Commission.
February 27,2006
JAGATH BALAPATABENDI, J.
The accused-appellant was charged by an indictment as follows:
Count (1) that the accused-appellant on the 18.1.1996 whilstbeing the Chairman of the Homagama Pradeshiya Sabha did solicitfrom one Nalin Priyantha Perera a sum of Rs. 100,000/- as aninducement or gratification in order to grant approval for a BuildingPlan submitted to the said Pradeshiya Sabha, thereby committing anoffense punishable under section 22 of the Bribery Act.
Count (2) related to the corresponding charge under section 19(c)of the Bribery Act as amended.
Count (3) that the accused-appellant on the 20th January 1996whilst being the Chairman of the Homagama Pradeshiya Sabha didaccept from one Nalin Priyantha a sum of Rs. 10,000/- as aninducement or gratification in order to grant approval for a BuildingPlan submitted to the said Pradeshiya Sabha, thereby committing anoffence punishable under section 22 of the Bribery Act.
Count (4) related to the corresponding charge under section 19(c)of the Bribery Act as amended.
After conclusion of the trial the learned High Court Judge convictedthe accused-appellant on all 4 counts as charged and sentenced himto 2 years R.l. and suspended the term of imprisonment for 10 years.In addition a fine of Rs. 5000/- and in default of the fine 06 months Rlwas imposed.
This appeal is preferred against the said conviction and sentence.
Facts of the case in brief are as follows: The evidence of thewitness Nalin Priyantha Perera revealed that, a Building Plansubmitted to the Homagama Pradeshiya Sabha by the witness onbehalf of Nemico Industries had been rejected. When the witness
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made representations to the Chairman of the said Pradeshiya Sabhathe accused-appellant, had indicated that the approval of the BuildingPlan could be made if a donation of Rs.200,000/- is made to theconstruction of the Community Center in the area. Subsequently thewitness has agreed to pay Rs.100,000/- as a donation for theconstruction of the community center. Thereafter the witness hadlodged a complaint in the Bribery Commission and in consequence tothe said complaint a raid had been carried out by the Officers of theBribery Commission at the time the money (Rs.100,000/-) washanded over.
The witness has stated at page 37 as follows:-
at page 40 the witness had stated as follows:
At the trial the accused-appellant had made a dock statementmore or less admitting the facts stated by the Prosecution witnesses,and taken up a defence that the soliciting and accepting of the saidmoney was 'bona fide' without any intention that it was solicited andaccepted as a bribe or gratification. The witness Nalin Perera wasinformed by him that the donation was for the construction of thecommunity center.
CA
Don Lfyeris v Director-General of the Commission to investigate
Affeoations of Bribery and Corruption (Jaoath Balaoatabendi. J.)
89
The only ground of appeal urged by the Counsel for the accused-appellant was that the learned Trial Judge erred in law by coming toa conclusion that "however laudable the purpose for which the moneyis to be finally utilized/ and "what ever his intentions were with regardto the use of this money" an offence had been committed by a publicservant under section 22 of the Bribery Act if he solicits or accepts anygratification for performing any official act."
The contention of the Counsel for the accused-appellant was thatthe offence of bribery is not one of 'strict-liability' but requires the usualelements of any offence viz: the 'actus-reusf together with 'mense-rea'should be established together to complete the commission of suchan offence. The offence of bribery can only be committed by a personwho not only commits the ’actus-reus? but also does it with therequired1mens-rea' (corrupt intention).
Further he contended that the definition given for *bribery' inModern legal usage (2 edition) by Garner is: vThe corrupt payment,receipt, or solicitation of a private favour for official action of the bribe-taker (or bribe-giver). Also "a 'bribe' is a reward or favour given orpromised to a person in a position of trust in order that the person'sjudgment will be skewed of conduct corrupted in one's favour." Thus,he submitted that the learned High Court Judge had come to a findingthat section 22 of the Bribery Act contemplates a 'Strict liability* offenceand mere act or the *actus reus1 was sufficient enough to constitute anoffence under the section.
The contention of the Counsel for the Complainant-respondentwas that the interpretation given in the provisions of section 90 and90(c) of the Bribery Act constitutes the offence committed by theaccused-appellant. The witness Nalin Perera had stated that theaccused-appellant solicited a sum of Rs. 200,000/- and subsequentlybrought down to Rs. 100,000/- and accepted the same amount togrant an approval for the Building Plan; where he is not authorized bylaw or any other Regulations to solicit or to accept any money indischarge of an official act.
In support of her contention the Counsel cited the decision in thecase of Rupasinghe v Attorney-GeneraW.
Now I would like to examine the findings of the learned High CourtJudge in his judgment At the outset the learned High Court Judge
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after analysis of the evidence in the case has posed a question; viz"Can a public servant solicit or accept any money from any personwho comes to get an official act done however laudable the purposefor which the money is to be finally utilized? Clear answer to thisquestion is 'No'. According to the section 22 of the Bribery Act,soliciting any gratification for performing any official act is an offence."
The learned High Court Judge finally had come to a correctconclusion on analysis of evidence that the accused-appellantsolicited a sum of Rs. 100,000/- from the witness (Nalin Perera) forperforming an official act, to wit: – the approval of the Building Plan,whatever his intentions were with regard to use of this money.
So it is clear from the findings in the Judgment that the learnedHigh Court Judge had dealt with the question of 'mense-rea'.
Thus I do not agree with the contention of the Counsel for theaccused-appellant, that the above mentioned findings were incorrectin law.
Further, I would like to mention the remark he had made in hisJudgment, which I fully endorse that "in terms of the Bribery Actsection 22 soliciting and accepting money by a public servant from aperson who comes to get an official act done as an inducement forperforming an official act, is a bribe. If not public officers could become collecting agents for various charities and other organizationsfrom the public who come to them to get official work done by them."
For the reasons aforesaid, I am of the opinion that the findings ofthe learned High Court Judge in his Judgment were correct in law andon facts.
BASNAYAKE – I agree.
Appeal is dismissed.