BY ROMINAH FAKA
Court has decided not to acquit Solomon Islands Tobacco’s general manager Darren John Corby of the charge he is facing.
The company and Mr John Corby are accused of illegally advertising a new cigarette product, Pall Mall Blast, in August last year.
Defence had applied for John Corby to be acquitted.
In delivering the ruling on Tuesday this week, principal magistrate Emily Vagibule Pakoa granted Prosecution’s application to discharge the defendant from the charge, and also prosecution is at liberty to reinstate subsequent proceedings.
Right of appeal within 14 days after the ruling is made is applied.
John Corby is charged with one count of restriction on advertisement of Tobacco Product, contrary to section 4 (3) of the Tobacco Control Act 2010.
In the previous hearing, defence told court full disclosures had been received from prosecution. However, defence said it was waiting for a response from the Director of Public Prosecutions (DPP) regarding a letter it had sent.
The matter was adjourned for March 17 to allow time for DPP to respond to the letter.
On March 7 an urgent application was filed for the matter to be relisted at an earlier date, since the DPP had made a response to the letter.
Court directed that the matter be relisted on March 10 and further noted two of the order sought – the first being, a full acquittal on the defendant in light of the charge, and the second order was for such further or other orders court shall deem fit.
On March 10 DPP told court of its position to withdraw the current charge against the defendant, under section 190 (2) (b) (ii) of the Criminal Procedure Code (CPC).
Prosecution’s reason for withdrawal was firstly, lack of sufficient evidence against the defendant and secondly, the legal issue of authorised officers.
Crown said there should be correct mandated people specified under the Tobacco Act to do the investigation.
The Act is very clear that under section 8, only individual appointed by the Minister and gazetted as authorised officers can enforce provisions of the Tobacco Control Act, which currently we do not have a gazetted authorised officers that section 8 of the Tobacco Act required.
The police officers are not automatically considered authorised officers unless specifically appointed and issued with the identity cards by Permanent Secretary of the Ministry of Health. This section however, limits the police capacity to act under the Act without formal designation.
In delivering the ruling, court said that the powers of the DPP are outlined under section 91 of the Constitution, hence, as far as the court is concerned the decision taken in light of section 190 (2) (b) (ii) of the CPC falls under the ambit of its powers.
In response defence said court has the discretion to withdraw the charge under section 190 (2) (b) (i) of CPC. Defence emphasised its intention to apply for an acquittal and supported its assertion on the facts – that after perusing the disclosures, it is clear that should the matter proceed to trial, the offence would not be known to law under section 4 of the Tobacco Control Act 2010.
Defence added that the charges were laid on the penalty section rendering the charge as defective. Also, the charges were laid against the defendant in a personal capacity as opposed to being laid against the corporation.
For these reasons, defence sought for a full acquittal of the defendant.
Explaining its decision, firstly regarding the issue of defective charges, court highlighted the case of Manai v Regina as starting point and to look at the provisions of section 117 to 120 (a) (i)-(iii) of the Criminal Procedural Code (CPC).
As per interpretation of the charge, court said there was no ambiguity in the wording of the charge which should cause prejudice on defence’s part, as it is clear and simple as to the actions the defendant is alleged to have committed.
Furthermore, in the event that a charge is found to be defective either in substance or in form, section 201 of the Criminal Procedural Court gives the court the discretion to order for the alteration of the charge, either by way of amendment of the charge or by substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case.
With respect to the charge laid against the defendant on his personal capacity as an individual, as opposed to it being laid against the Corporation, court referenced section 38 of the Tobacco Control Act 2010 which states;
38 (1) if a body corporate commits an offence under this Act, every officer of the body corporate commits the same offence unless the officer proves that-
- The offence was committed without the officer’s consent or connivance; and
- The officer exercised all due diligence or care to prevent the commission of the offence as the officer ought to have exercised, having regard to the nature of the officer’s function in that capacity and to all the circumstances.
(2) in this section, “officer” means-
(a) a director, secretary or executive officer of the body corporate;
(b) a receiver or a receiver and manager of property of the body corporate or any other authorized person who enters into possession or assumes control of property of the body corporate for the purpose of enforcing any charges;
(c) an official manager or deputy official manager of the body corporate;
(d)a liquidator of the body corporate;
(e) a trustee or other person administering a compromise or arrangement made between the body corporate and another person; or
(f) any other person who, by whatever name called and whether or not director of the body corporate, is concerned or takes part in the management of the body corporate.
Court is of the view that in the event a corporation is charged with any offence under the Tobacco Control Act, an officer alleged to be directly involved in the alleged action is also liable to be charged alongside the corporation.
Subsection 2 defines officers as director, secretary, executive officer of the body corporate. In this case the defendant role as General Manger falls within the definition under subsection 2.
Prosecution alleged on August 31, 2024, the Solomon Islands Tobacco Company Limited (SITCO) held a product launch event at Cowboys’ Grill Bar and Restaurant, Kukum, Honiara.
They were introducing their new product, Pall Mall Blast, and various business agents and representatives attended the event.
It was further alleged that during the launching, company officers did a presentation during the launch, the promotional staffs conducted promotional activities, including a detailed slide presentation and promotional video footage highlighting key features of the Pall Mall Blast product.
The presentation allegedly focused on the unique qualities of Pall Mall Blast, particularly its berry menthol flavour capsule, which distinguishes it from other tobacco products in the market.
The Tobacco Control Act 2010 prohibits advertising or promotion of any tobacco product.
On December 10, 2024 the defendant (General Manager of SITCO) was invited to the NCID Rove Police Head Quarter and the allegation was put to him and he was arrested. On the same date police issued him with bail.
Silverio Lepe of Sol-Law Lawyers represents the defendant while Jonathan Auga is prosecuting.
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