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Penal Code (Cap. 26), PART XXXVIII S. 373 – Definitions and S. 377 – Sanctioning prosecutions Enforcement agency: All prosecutions for an offence under Penal Code, Part XXXVIII must first be sanctioned by the Director of Public Prosecutions. S. 374 (b) Investigating & Prosecuting Agency: Royal Solomon Islands Police S. 374 (c) Investigating & Prosecuting Agency: Royal Solomon Islands Police S. 375 Investigating Agency: Royal Solomon Islands Police Prosecuting Agency: Director of Public Prosecutions S. 383 (can have extra-territorial effect) I nvestigating Agency: Royal Solomon Islands Police S. Prosecuting Agency: Director of Public Prosecutions S. 384 (can have extra-territorial effect) Investigating and Prosecuting Agency: Royal Solomon Islands Police Companies Act 2009 S. 199(1) Investigating Agency: Royal Solomon Islands Police Prosecuting Agency: Director of Public Prosecutions title
S. 373 – Definitions and S. 377 – Sanctioning prosecutions
- “agents” and “principals” can be Government, quasi-government bodies or agencies or their employees (collectively “Government Agencies”) or private agencies, persons, or corporations.
- “Principal” also includes an employer (public or private).
S. 374 (b)
- A person is guilty of an offence if they:
- corruptly give or agree to give or offer
- any gift or consideration
- to any agent
- as an inducement or reward
- for doing or forbearing to do, or for having done or forborne to do any act or
- for showing or forbearing to show favour or disfavour to any person
- in relation to his principal’s affairs or business.
Defences
- the gift/consideration was not given “corruptly”[3];
- the gift/consideration was not given as an inducement or reward in the specified circumstances
S. 374 (c)
- A person is guilty of an offence if:
- they knowingly give to any agent;
- any receipt or other document;
- in respect of which the principal is interested;
- which contains any statement which is false or erroneous or defective in any material particular;
- which to the giver’s knowledge is intended to mislead the principal
Defences
- the accused lacks the requisite knowledge;
- the principal is not interested in the receipt/document;
- the gift/consideration was not given “corruptly”;
- the giver lacks the requisite intention to mislead.
S. 375 Extends the scope of s. 374 to :
- contracts or proposals for contracts with Government Agencies (collectively, “head contracts”); or
- sub-contracts or proposals for sub-contracts to execute work comprised in head contracts.
- By extending s. 374, to sub-contracts, an offence may arise in respect of contracts where neither party is a Government Agency.
S. 383 (can have extra-territorial effect) A person is guilty of an offence if:
- he conspires with another;
- to commit any felony[4]; or
- to do any act in any part of the world which if done in Solomon Islands would be a felony; and
- which is an offence under the laws in force in the place where it is proposed to be done
Defences All those available in respect of s.375 offences. S. 384 (can have extra-territorial effect) A person is guilty of an offence if:
- he conspires with another;
- to commit a misdemeanour[5]; or
- to do any act in any part of the world which if done in Solomon Islands would be a misdemeanour; and
- which is an offence under the laws in force in the place where it is proposed to be done.
Defences All those available in respect of s.374 offences. Companies Act 2009 S. 199(1) A person is guilty of an offence if he is knowingly a party to a company carrying on business for a fraudulent purpose[6]. Defences the accused lacks the requisite knowledge
S. 374 (b)
- Natural persons: Two years’ imprisonment or fine of SBD600.00 (USD75.00)
- Corporate offenders: Fine of SBD600.00 (USD75.00)
S. 374 (c)
- Natural persons: Up to two years’ imprisonment or fine of SBD600.00 (USD75.00)
- Corporate offenders: Fine of SBD600.00 (USD75.00)
S. 375
- Natural persons: Up to seven years’ imprisonment or fine of SBD1,000.00 (USD127.00).
- Corporate offenders: Fine of SBD1,000.00 (USD127.00)
S. 383 (can have extra-territorial effect)
- Natural persons: Up to seven years’ imprisonment.
S. 384 (can have extra-territorial effect)
- Natural persons: Up to two years’ imprisonment.
Companies Act 2009 S. 199(1) Natural person: Fine not exceeding SBD1000.00 (USD127.00) or up to 7 years imprisonment, or both.
| Contacts at Baker & McKenzie | |
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Mathieu Hanaut Partner, Sydney + 61 2 8922 5791 mathieu.hanaut@bakermckenzie.com |
[1] The information in this section is a summary only and does not constitute legal advice concerning the application or effect of the local laws of Solomon Islands. This summary has been prepared by Baker & McKenzie in conjunction with information provided by John Katahanas of Sol-law. [2] The Firm does not have an office in Solomon Islands. However, Mathieu Hanaut, based in the Firm’s Sydney office, has developed a specific capability advising clients in the Pacific Islands region (including Solomon Islands), for which the Firm has been awarded Band 1 in Chambers Asia Pacific 2015. In Solomon Islands, Mathieu and his team work closely with their preferred local law firm to provide appropriate local knowledge to the clients and assist their business or projects. [3] The gift/consideration is given “corruptly” where it is given with the intention of seducing an agent from the duty owed to his principal or for rewarding the forsaking of that duty in favour of another. The giving is not “corrupt” where the principal is known or reasonably believed to have assented. However, where the thing given or paid was given or paid to or received by a person in the employment of a Government Agency, by or from a person or agent of a person holding or seeking to obtain a contract from any Government Agency, the gift/consideration is deemed to have been paid or given and received corruptly as such inducement or reward as is mentioned Part XXXVIII, unless the contrary is proved (s.376). Note that the onus of proof is reversed. [4] For the purposes of this template, any offence under Penal Code, s. 375 or Companies Act 2009, s. 199(1) (see Item 8). [5] For the purposes of this template, any s. 374 offence. [6] Arguably, the giving/payment of corrupt gifts/payments is a fraudulent purpose. [7] This list is to be used as a guide only. It is intended to provide high level information regarding the primary laws in the specified countries in relation to ant-bribery and anti-corruption laws. Please refer to the relevant legislation for detailed information and to ensure that the information contained in this guide is up to date, and refer to the relevant Baker & McKenzie contact for the jurisdiction for specific advice.