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Vanuatu Ombudsman's Reports |
REPUBLIC OF VANUATU
OFFICE OF THE OMBUDSMAN
REPORT
REGARDING PASSPORTS
ISSUED TO THE FAMILY OF JIAN PENG CHEN
6 February 1998
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TABLE OF CONTENTS
PREAMBLE
1. INTRODUCTION
2. JURISDICTION
3. PRELIMINARY REPORT
4. SCOPE OF REPORT
5. RELEVANT LAWS
Citizenship is a Prerequisite to Obtaining an Ordinary Passport
'Honorary Citizenships' and passports for honorary citizens
Principal Passport Officer
Legal basis for the issue of Diplomatic and Official passports
Paragraphs 9.7 and 9.15 of the Vanuatu Public Service Manual
Penal Code [CAP 135]
Conspiracy
False Pretence
Dishonestly Obtaining Property
Complicity
6. CHRONOLOGY OF FACTS WITH COMMENTARY
22 November 1996-16 January 1997 2 payments for 'the good and well being of the people of Vanuatu.'
Mr. Vohor appoints Mr. Chen as 'Vanuatu’s Honorary Consul to Macau',
Mr. Larry Yu, international man of mystery and Vanuatu’s Honorary Consul to Cambodia
12-23 March 1997 - Mr. Chen visits Vanuatu with his associates to pick up passports and gives gifts
26 March - 30 May 1997 Mr. Tabiusu asks Mr. Chen for gifts and gets some
April/May 1997 Mr. Jimmy goes to Hong Kong and Macau
25 June-5 July 1997: Mr. Chen and his associates’ second trip to Vanuatu to pick up Vanuatu ordinary passports
Mr. Chen and his associates third trip to Vanuatu to receive more passports
Conclusion
7. REVIEW OF THE REPLIES TO THE PRELIMINARY REPORT
Mr. Albert Kao:
Mr. Larry Yu:
Mr. Willy Jimmy:
Mr. George Manuiri:
Mr. Roy Mickey Joy:
Mr. Manwo Kepoue:
Mr. Sylvestre Meltetake:
Mr. Sam Bruno:
Mr. Japheth Tavoa:
Harborview Restaurant:
8. FINDINGS OF MISCONDUCT
Finding No. 1: Mr. Jian Peng Chen has no status as Vanuatu’s Honorary Consul
Finding No. 2: Mr. Jimmy’s actions as Minister of Foreign Affairs in allowing diplomatic passport D000026 to be issued to Mr.
Jian Peng Chen was illegal and improper
Finding No. 3: The Council of Ministers do not make law.
Finding No. 4: The Diplomatic Passports given to Mr. Jian Peng Chen D000026 is void ab initio (from the date of issue).
Finding No. 5: Mr Vohor, Mr. Jimmy, Mr. Sali, Mr. Tabiusu, and Mr. Bell all acted in an illegal and improper manner by helping the
Chen family receive ordinary passports and as such breached the principles of the constitutional Leadership Code by debasing the
value of Vanuatu citizenship.
Mr. Vohor
Mr. Jimmy
Mr. Sali
Mr. Tabiusu
Mr. Bell
Conclusion
Finding No. 6: The Ordinary Passports issued to the members of the Chen family are void ab initio.
Finding No. 7: All money and property received by Mr. Vohor, Mr. Jimmy, Mr. Tabiusu,
Mr. Maniuri and Mr. Joy violated paragraphs 9.7 and 9.15(c) of the Vanuatu Public Service Manual.
Finding No. 8: Conspiracy
Finding No. 9: False Pretences
Finding No. 10: Property Dishonestly Obtained and Complicity
9. Recommendations
Recommendation No. 1: Mr. Jian Peng Chen has no status as Vanuatu's Honorary Consul or
right to possess Vanuatu passports.
Recommendation No. 2: Referral to the Police and Public Prosecutor because of the likelihood criminal offences were committed by Mr.
Chen.
Recommendation No. 3: The Chen matter will be referred to the Public Prosecutor and the Police Commissioner pursuant to Section 25(1)
of the Ombudsman Act regarding the actions of Mr. Vohor, Mr. Jimmy, Mr. Tabiusu, Mr. Sali and Mr. Bell.
Recommendation No. 4: Mr. Vohor should resign and never again hold public office.
Recommendation No. 5: Mr. Jimmy should never again hold public office.
Recommendation No. 6: Mr. Tabiusu, Mr. Sali and Mr. Bell should never again hold public office.
Recommendation No. 7: Mr. Vohor, Mr. Jimmy, Mr. Sali, Mr. Joy, Mr. Maniuri, and Mr. Tabiusu should turn over or reimburse to the people
of Vanuatu all property received in contradiction of Paragraphs 9.7 and 9.15(c) of the Public Service Manual.
Recommendation No. 8: The Council of Ministers should review the laws of Vanuatu and the
powers that the Council of Ministers have under the laws of Vanuatu.
7. TABLE OF CONTENTS TO APPENDICES
1. Council of Ministers criteria for selecting Honorary Council.
2. Copies of two receipts issued by Mr. Kao to Mr. Chen for $US100,000 and HK$500,000.
3. Mr. Vohor’s certificate appointing Mr. Chen.
4. Mr. Tabiusu’s letter to Mr. Kao requesting a television and video set.
5. Mr. Kao’s letter to Mr. Roberts.
6. Mr. Kao's letter to Mr. Tari explaining the US$100,000 and HK$500,000.
7. Copies of Larry Yu’s Marshall Islands Passport.
8. Mr. Yu’s Identity Card.
9. A copy of Mr. Yu’s void Diplomatic passport.
10. A series of letters relating to Mr. Yu written by Prime Minister Vohor and Foreign
Affairs Minister Jimmy.
11. A copy of Mr. Jimmy’s letter requiring the issuance of Diplomatic Passports to Mr. Chen
and Mr. Zha Fan Chen.
12. Diplomatic Passport D000026.
13. Mr. Salwai's letter to then Prime Minister Korman regarding Council of Ministers
Decision 144 of 1994.
14. Council of Ministers Paper attempting to revise the Diplomatic and Official Passports Act.
15. Letter from Mr. Tabiusu requesting a fax machine and mobile phone.
16. Letter from Mr. Tabiusu’s request for security badges (butches).
17. Letter from Mr. Tabiusu’s request for football uniforms.
18. Letter from Mr. Tabiusu’s request to enter into business with Mr. Chen
19. Letter from Mr. Tabiusu requesting computers.
20. Letter from Mr. Tabiusu thanking Mr. Chen for financing for a photocopy machine.
21. Letter from Mr. Tabiusu requesting personal and home goods from
22. Deposit slip of Mr. Vohor dated 1 July 1997.
23. Letter dated 1 July 1997 between Mr. Vohor and Chairman of Citizenship Commission.
24. Letter from John Mark Bell to Sergeant Teitoka.
25. Airplane tickets and receipts of Willy Jimmy.
26. Letter from Mr. Chen to Mr. Sali.
27. Letter from Sylvestre Meltetake to John Mark Bell.
28. Receipt for Mr. Vohor's currency exchange dated 13 August 1997.
29. Receipt for Mr. Vohor's currency exchange dated 14 August 1997.
30. Receipt for Mr. Vohor's currency exchange dated 18 August 1997.
31. Airplane tickets for Mr. Soksok, Mr. Maliu, and Mr. Bruno.
32. Receipt for Mr. Soksok, Mr. Maliu, and Mr. Bruno’s airplane tickets.
33. Airplane tickets for Mr. Bell.
34. Receipt for Mr. Bell’s airplane tickets.
---------------------------------
PREAMBLE
Ephesians 4v18
This report is concerned with the conduct of leaders sworn to protect Vanuatu and act in the best interests of Vanuatu. This report outlines how a foreigner with money can improperly influence those sworn to protect our country.
Although our office still has not discovered the full extent of the money paid by foreigners to our Vanuatu Leaders, we have made significant inroads and in fact discovered some payments improperly made by foreigners and accepted by Vanuatu Leaders.
You might ask what the foreigners believed they were buying or did in fact buy with for their money and where did the money go.
As to where the money went, we do not entirely know. Small amounts went for trips and hotel accommodations. But there are rumours, which have not been denied, of large amounts of money given to high level leaders. There are receipts of large amounts of money given for the 'good and well being of the people of Vanuatu.' To be sure, this money and other money has not vanished into thin air. Instead, this money remains hidden from our office, and hidden from you the people to whom it belongs.
Many foreigners seek passports and citizenship from countries such as ours and other developing countries. Foreigners use these passports and citizenship as a way to leave their country, they sometimes seek to illegally live in the country in which they have bought a passport, and they sometimes misuse a Vanuatu purchased passport to evade the laws of their homeland.
Detailed below is the process by which one foreigner obtained Vanuatu passports for himself and his 10 family members. This foreigner passed around some money and then walked into Vanuatu and received rights due only to citizens of this country; he received 18 ordinary passports and two diplomatic passports.
1.1 This Report is about the events that led to a citizen of the People’s Republic of China ('PRC') Jian Peng Chen (PRC passport number 142530089) obtaining Vanuatu passports for himself and his ten family members and/or friends all PRC citizens in July/August 1997.
1.2 In Vanuatu, only Vanuatu citizens are entitled under the law to hold Vanuatu passports. Citizenship is acquired in Vanuatu by birth, indigenous ancestry or by naturalization. To become a naturalized citizen a person must have lived in Vanuatu continuously for the previous ten years. Mr. Chen and his 11 associates did not live continuously in Vanuatu for the previous ten years. Therefore, they should not have been issued with Vanuatu passports. My enquiry was to find out how, despite the legal position being absolutely clear, these PRC citizens came to be given passports.
1.3 In addition, on 23 March 1997 Mr. Chen also received a Vanuatu diplomatic passport. This apparently was because the Prime Minister, Rt. Hon Serge Vohor, on 23 January 1997, had purported to appoint Mr. Chen as Vanuatu’s Honorary Consul to Macau. Mr. Chen should not have received a diplomatic passport because:
(a) Honorary Consuls are not included in schedule 1 of the Diplomatic and Official Passports Act [CAP 179] which lists the only people who are entitled to them; and
(b) Even if Honorary Consuls were entitled to hold a diplomatic passport Mr. Chen did not qualify because his appointment was ineffective. This was because the receiving nation Portugal (Macau is a colony of Portugal) had not approved Mr. Chen’s appointment. Approval from the receiving country is a requirement of the Council of Ministers in their own criteria for appointment of honorary consuls and is consistent with international law on the subject (discussed below at 5.16 - 5.23).
1.4 The persons at the centre of these unlawful series of events are:
∑ the current Prime Minister Rt. Hon Serge Vohor
∑ the former Finance and Foreign Affairs Minister Hon Willie Jimmy
∑ the former Secretary General of the Council of Ministers Mr. Noel Tabiusu
∑ Mr. Peter Sali, a political secretary appointed by and working for Mr. Jimmy
∑ the former Principal Immigration Officer, Mr. John Mark Bell
1.5 As will be seen from the facts recorded in this report it appears that Mr. Vohor was the prime mover in securing passports for Mr. Chen and his colleagues. Mr. Jimmy appears to have 'turned a blind eye' and allowed what happened to occur and obtain certain benefits along the way. Messrs. Tabiusu, Sali and Bell were willing lieutenants in carrying out the wishes of their political masters Messrs. Vohor and Jimmy.
1.6 Mr Vohor received 4 payments totalling US$60,000 that coincide exactly with the dates of his meetings with Mr Chen. Documents annexed as proof to this report were shown to the Prime Minister and he was unable to satisfactorily explain to the Ombudsman in a face to face meeting where they came from. Mr Jimmy received trip to Australia and other property as did Peter Sali. John Mark Bell, the former Principal Immigration Officer, without any attempt to stop illegal issue of passports went ahead and issued them. These men all appear to have committed criminal offences and for that reason I have, amongst other things, recommended their criminal prosecution.
2 JURISDICTION
2.1 Pursuant to Article 62 of the Constitution and Sections 14 and 16 of the Ombudsman Act No. 14 of 1995 ('Act') I have jurisdiction to enquire into the conduct of certain public bodies or persons on receiving a complaint or on my own initiative. I have determined that this complaint regarding passports issued to the Chen family falls within my jurisdiction.
3. PRELIMINARY REPORT
3.1 On or about 5 December 1997, I issued and circulated a confidential and secret preliminary version of this public report. The full preliminary report was sent to:
1. Albert Kao*,
2. Willie Jimmy*,
3. Noel Tabiusu,
4. Larry Yu *,
5. Sai Hung Chan,
6. Zhu Pei,
7. Jian Peng Chen,
8. Peter Sali,
9. John Mark Bell,
10. Vidal Soksok,
11. Rialuth S. Vohor.
3.2 A partial preliminary report was sent to
12. Japheth Tavoa *,
13. George Maniuri*,
14. Roy Mickey Joy *,
15. Sylvestre Meltetake,
16. Pakoa Fred,
17. Alfred Maliu,
18. Sam Bruno*,
19. Harbourview Restaurant*,
20. Manwo Kepoue *,
21. Christopher Emelee.
Those persons marked with an '*' exercised their constitutional right to reply to the preliminary report. The other people did not reply and must be assumed to agree with the report where it concerns them. Copies of the replies are annexed to this report. They are also set out in further detail in section 7 below.
4. SCOPE OF REPORT
4.1 The scope of this report is to find out:
(a) how 12 citizens of the Peoples Republic of China came to Vanuatu and left with passports;
(b) whether there was any lawful basis for receiving the passports under the law of Vanuatu;
(c) if the issued passports are still valid;
(d) if there was anything exchanged for the granting of these passports;
(e) if Government Officials breached the Leadership Code in granting these passports;
(f) if Government Officials committed crimes by issuing these passports.
5 RELEVANT LAWS
Citizenship is a Prerequisite to Obtaining an Ordinary Passport
5.1 CAP 108 Section 3 of the Passport Act states:
(1) A citizen of the Republic of Vanuatu shall be issued with a passport if he makes application either himself or by his parent or lawful guardian to the Principal Passport Officer on the prescribed for.
(2) An applicant for a passport under subsection (1) shall provide such evidence of his entitlement to citizenship as may be prescribed.
(emphasis added)
5.2 S12 of the Citizenship Act provides the machinery for adult persons to apply for citizenship by naturalization. S 12(2) provides 8 conditions that all have to be met before a person can obtain citizenship by naturalization. Of these 8 conditions, three of these are that the applicant:
∑ must have been resident in Vanuatu continuously for at least 10 years before making the application (s 12(2)(a) and also article 12 of the Constitution); and
∑ intends to continue to reside in Vanuatu (s 12(2)(b)); and
∑ must renounce any previous citizenship (s 12(2)(h) and article 13 of the Constitution - avoidance of dual nationality).
5.3 If a person cannot satisfy these above three basic conditions, together with the other five, a person cannot become a citizen of the Republic of Vanuatu. This is the reason why Mr. Chen and his associates were not legally able to become Vanuatu citizens and thus were not entitled to be issued with Vanuatu passports.
5.4 It is also to be noted that the People’s Republic of China, like Vanuatu, does not recognize dual nationality. I can only assume that Mr. Chen and his associates proposed renouncing their PRC citizenships.
'Honorary Citizenships' and passports for honorary citizens
5.5 A person can be conferred honorary citizenship, as an honour, by the President under s 20 of the Citizenship Act which states:
The President may on advice of the Prime Minister confer honorary citizenship on any person with such privileges or exemptions as may be prescribed.
5.6 It is important to understand that conferral of honorary citizenship is not the same as granting of citizenship by naturalization. It is a very different thing. The purpose of it is a nation’s recognition of a person’s special and unique contribution to that country. Honorary citizenship is not something that is applied for or can be bought but rather it is conferred (i.e.: given or awarded)
5.7 For example, a catholic bishop after his term in Vanuatu, who was recognized to have been a great churchman contributing to religion in Vanuatu, may be conferred this honour by the President on advice from the Prime Minister. Perhaps a volunteer doctor who has worked in the outer islands for many years caring for the sick might be another example. It is an honour that is granted rarely and to exceptional people who have contributed to the country.
5.8 This conferral of honorary citizenship however does not mean that the recipient is then able to obtain travel documents based on that honour conferred on them - it is symbolic and not something creating substantive legal rights. This is confirmed by the dictionary definition of the word 'honorary' in the Oxford English Dictionary (6th ed) as follows:
a. 1. Conferred as an honour (without the usual requirements, functions, etc.; honorary DEGREE). 2. Holding honorary title or position; ~ secretary treasurer, etc., (serving without pay). 3. (Of obligation) depending on honour, not legally enforceable.
5.9 It is similar to the honorary degrees that are granted by universities to people who have made significant contributions to the World in some field. The president of South Africa, Mr. Nelson Mandela is a good example. He has received many honorary degrees from universities but that does not mean he can go and teach or lecture in universities on a professional or collegial basis. Father Walter Lini, Minister for Justice, got also granted an honorary degree from the U.S.P., but this does not mean he can go and teach there.
5.10 If honorary citizenships were to confer substantive legal rights then it would make a nonsense both of the honour and Vanuatu’s non recognition of dual nationality. Article 13 of the Constitution states:
The Republic of Vanuatu does not recognize dual nationality. Any citizen of Vanuatu who is or becomes a citizen of another state shall cease to be a citizen of Vanuatu unless he renounces that other citizenship within 3 months of acquiring Vanuatu citizenship or that other citizenship, as the case may be, or such longer period as Parliament may prescribe, except that in the case of a person under the age of 18 years the period of renunciation shall be 3 months after he has reached the age of 18 years.
5.11 If honorary citizenship did grant substantive rights, such as the ability to apply for a passport, that person who had been conferred the honour of honorary citizenship by the President would have to renounce their own citizenship or lose the honour conferred on him or her. Obviously, that is a nonsensical scenario and the true purpose of honorary citizenship is, as explained above in paragraphs 5.6-5.9, an honour and nothing more. As such any passports issued to honorary citizens are without basis in law, are unconstitutional and therefore null and void ab initio (no good from the beginning).
5.12 The above legal analysis of honorary citizenship was confirmed by the Attorney General to the Ombudsman during the course of an earlier enquiry.
Principal Passport Officer
5.13 It is to be noted that the officer responsible under Vanuatu law for the issue of passports in Vanuatu is the Principal Passport Officer. For many years it has been the practice that the Principal Immigration Officer has to act as the Principal Passport Officer and issue passports. The Principal Immigration Officer has no legal right or ability to issue Vanuatu passports. The Principal Passport Officer is the only person legally able to issue Vanuatu passports.
5.14 There is no legal barrier to the Principal Immigration Officer doing this job and also holding the post of Principal Passport Officer. They are however two separate posts. Under Vanuatu law the Principal Passport Officer is appointed by the Minister of Home Affairs (Section 2 of the Passports Act) and the Principal Immigration Officer is appointed by the Police Commissioner or Police Service Commission. However, it appears that since independence there has been no appointment of a Principal Passport Officer by any Minister of Home Affairs.
5.15 The consequence of this is that until a Principal Passport Officer is appointed no Vanuatu passports can be issued to anyone. Mr. Bell, like all previous Principal Immigration Officers before him, had no legal ability to issue any passports let alone to Mr. Chen and his associates.
Legal basis for the issue of Diplomatic and Official passports
5.16 Section 2 of the Diplomatic and Official Passports Act states:
(1) Subject to the provisions of this Act, an officer authorized in that behalf by the Minister may issue Vanuatu diplomatic and official passports.
(2) Diplomatic and official passports shall be issued in the name of the Minister responsible for the foreign affairs of the Republic of Vanuatu and shall be in such forms as are prescribed by the Minister.
(3) No fee shall be charged for the issue of diplomatic and official passports.
It is worth noting that there is no power for the Foreign Affairs Minister to issue diplomatic or official passports. The Minister’s power is restricted to appointing the officer from the Foreign Affairs Department who is to issue these passports.
5.17 Schedule 1 of the Act specifies exhaustively the only people to whom diplomatic passports can be issued. This schedules provide as follows:
Schedule 1
(Section 1)
CATEGORIES OF PERSONS ENTITLED TO DIPLOMATIC PASSPORTS
The President of the Republic
The Prime Minister
The Speaker of Parliament
Government Ministers
Vanuatu Ambassadors
Vanuatu High Commissioners
Foreign Affairs personnel: Diplomatic and consular staff
Leader of a delegation or sole Vanuatu representative at international conference or bilateral or multilateral negotiations.
Diplomatic couriers
Persons in respect of whom the Minister considers exceptional circumstances apply
Spouses of persons granted Diplomatic Passports provided they are travelling on duty at Government expense.
5.18 On the face of the schedule 1, for a person designated 'Honorary Consul' or Trade Commissioner' there is no prima facie legal basis to issue such persons with a diplomatic passport or official passport. On that basis one must consider whether these classes of person fall within either 'Foreign Affairs personnel: diplomatic and consular staff' or 'Persons in respect of whom the Minister considers exceptional circumstances apply.'
5.19 The first possibility is to consider whether 'consular staff' referred to in the 'Foreign Affairs personnel' category includes the position of 'Honorary Consuls'. The Ombudsman’s received legal opinion is that 'Honorary Consuls' are not included. This is because 'consular staff' must be 'personnel' of the Foreign Affairs Ministry. The word 'personnel' is not defined in the Act. The Oxford English Dictionary (6th ed) defines the word at page 825 as follows:
Body of persons employed in public undertaking, armed forces, factory, office, etc.
5.20 Accordingly, 'consular staff' as used in schedule 1 of the Act are persons that are in a relationship of employment with Vanuatu’s Foreign Affairs Ministry. This would include a paid Consul and paid consular staff who are employed through the Department of Foreign Affairs. This interpretation is consistent with the balance of the categories in schedule 1. All those other persons mentioned (with the exception of spouses) are in a relationship of employment with the Government or Republic of Vanuatu.
5.21 Consistent with the above interpretation the Consular Relations Act [Cap 200], which adopts the Vienna Convention on Consular Relations (24/04/63), makes no reference to the issue of diplomatic passports for Honorary Consuls.
5.22 Finally, in terms of their appointments, honorary consuls do not become effective appointments until the receiving State, in this case Portugal, approve the appointment. The purpose of an honorary consul is to assist citizens of the sending nation who live in the receiving nation. Therefore the honorary consul is normally a person from the sending nation (i.e. knows the official languages, customs and governmental systems of the sending nation, here Vanuatu) who has some standing in the receiving nation. This practice of an appointment not being final until there is approval from the receiving nation is common throughout the World as a matter of international law and diplomatic protocol. The Council of Ministers criteria lists this as item 1. A copy of the COM criteria is annexed as '1'.
5.23 It appears as if the Council of Ministers Decision 144 of 1994 was an attempt at adding Honorary Consuls to the list of individuals entitled to Diplomatic Passports. Unfortunately, the Council of Ministers do not have the power to make laws. Article 16 of the Constitution grants the power to make law to Parliament. Article 47 of the Constitution grants to the judiciary the authority to resolve disputes in accordance with the law. Thus, any decision by the Council of Ministers making or interpreting the Diplomatic and Official Passports Act is invalid and illegal.
Paragraphs 9.7 and 9.15 of the Vanuatu Public Service Manual
5.24 Paragraph 9.7 concerns the receipt of gifts by Vanuatu Officials. Paragraph 9.7 states:
All officers are prohibited from receiving gifts or presents in the course or as a result of their duties or by virtue of their official position, whether in the shape of money, goods, free services, passages or other benefits.
5.25 Paragraph 9.15 concerns the conduct to which Vanuatu Officials mast conform to regarding public affairs. Paragraph 9.15(c) states that Public Officers:
should not conduct themselves in such a way as to bring their office or the service into disrepute, or in such a way as to create a conflict, or the appearance of a conflict between their private interest and their public duty.
Penal Code [CAP 135]
5.26 Set out below are four offences under the Penal Code. The reason these have been included is that it is possible that the facts as they are revealed may constitute criminal offending by one or more of the persons involved.
Conspiracy
5.27 CAP 135 Section 29 of the Penal Code defines a conspiracy to have occurred when there is:
An agreement, express or implied, between two or more persons to do an act which, if done, even by the person, would constitute a criminal offence.
False Pretence
5.28 CAP 135 Section 124 of the Penal Code states that:
Every person obtains by false pretences who, by a false preteens, that is to say, any representation made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact and which the person making it knows to be false, or does not believe to be true with intent to defraud, either directly or indirectly, obtains possession of or title to anything capable of being stolen or procures anything capable of being delivered to any person other than himself.
(Emphasis added)
Dishonestly Obtaining Property
5.29 Section 131 of the Penal Code, it is an offence to dishonestly obtain property. This offence is as follows:
No person shall receive anything obtained by any offence, or by any act wherever committed which, if committed within the Republic would constitute an offence, knowing that thing to have been dishonestly obtained.
Complicity
5.30 A person cannot assist another in committing a crime. S 30 of the Penal Code makes this an offence as follows:
Any person who aids, counsels or procures the commission of a criminal offence shall be guilty as an accomplice and may be charged and convicted as a principal offender.
6 CHRONOLOGY OF FACTS WITH COMMENTARY
22 November 1996-16 January 1997 2 payments for 'the good and well being of the people of Vanuatu.'; US$100,000 and HK$500,000
6.1 On 22 November 1996, Jian Peng Chen paid a cheque totalling US$100,000 (11,700,000 Vatu) to a Mr. Albert Kao in Hong Kong. Mr. Kao was born on 9 January 1948 in Taipei, Taiwan and is a British citizen (UK passport 500043895, issued 19.05.93). Mr. Kao at this time was allegedly the Consul for the Republic of the Seychelles in Hong Kong. Additionally, Mr. Kao has been stated to be in the business of the selling residency permits. It is worthy of noting that, on 16 May 1997, Mr. Jimmy, the former Foreign Affairs Minister, on the instruction of Prime Minister Vohor, purported to appoint Mr. Kao as Honorary Consul for Vanuatu in Hong Kong. Mr. Kao was also issued with a diplomatic passport on 15 May 1997 even though the People’s Republic of China have never approved his appointment.
6.2 According to Mr. Chen’s interpreter, Mr. Sai Hung CHAN ('Mr. Chan') (British National Overseas citizen, passport 612038239, issued 26.06.95 at Hong Kong, born 14.06.36), Mr. Chen’s US$100,000 payment was to be used for 'the good and well being of the people of Vanuatu.'
6.3 On 16 January 1997, Mr. Chen issued another receipt to Mr. Kao for $HK500,000 (7,750,000 Vatu). Again, according to Mr. Chan, this amount was to be used for 'the good and well being of the people of Vanuatu.' Copies of two receipts issued by Mr. Kao to Mr. Chen for the $US100,000 and HK$500,000 are annexed as '2'. The Department of Foreign Affairs’ book keeper states that the money from these receipts from Mr. Kao have not been received by his Department.
Prime Minister Vohor appoints Mr. Chen as 'Vanuatu’s Honorary Consul to Macau',
6.4 On 23 January 1997, a certificate was issued by Mr. Vohor to Mr. Chen. This certificate proclaimed Mr. Chen to be Honorary Consul to Macau and was issued by Mr. Vohor 'by virtue of the powers vested in [him] as Prime Minister'. The Ombudsman is unaware of what powers Mr. Vohor refers to. Additionally, Mr. Chen has not received required approval from the country of Portugal. Annexed as '3' is a true copy of Mr. Vohor’s certificate appointing Mr. Chen.
6.5 On 4 March 1997, Mr. Tabiusu, former Secretary General for the Council of Ministers, wrote a letter to Mr. Kao requesting a television and video player. Mr. Kao states he did not send these items. In the letter, Mr. Tabiusu states that he was 'co-ordinating your staying in Vanuatu in such a way that you all will be enjoyed'. It strongly appears that Mr. Tabiusu was asking for the TV and video in exchange for helping Mr. Chen in his efforts to obtain Vanuatu passports. Annexed as '4' is a copy of Mr. Tabiusu’s letter to Mr. Kao. It was illegal for Mr. Tabiusu to ask for or receive gifts from Mr. Kao. Please see paragraphs 9.7 and 9.15(c) of the Public Service Manual (refer to sections 5.24-5.25 and 7.23-7.27 of this report).
6.6 On 5 March 1997 Mr. Kao wrote to Mr. G Roberts Australia’s Vice-Consul for Hong Kong for the purpose of obtaining transit visas in Australia for Mr. Chen and his delegation. The significance of these two events is that it appears to show that Mr. Kao was acting as either Mr. Chen’s representative or agent or as Prime Minister Vohor’s representative or agent. Annexed as '5' is Mr. Kao’s letter to Mr. Roberts. Mr. Kao states he was not acting as Mr. Chen or Mr. Vohor’s agent at the time of this trip, but rather he was acting as an Honorary Consul. If Mr. Kao was in fact working as an Honorary Consul on behalf of Vanuatu and not an agent, the question again arises:
'What happened to the money US$100,000 and HK$500,000 Mr. Kao collected from Mr. Chen, that Mr. Chen gave 'for the good of Vanuatu.?'
Mr. Kao has only explained where the money given for the good of Vanuatu went in the vaguest of detail. Annexed here as '6' is Mr. Kao’s accounting of Mr. Chen’s money supposedly earmarked for the good of our country.
Mr. Larry Yu, international man of mystery and Vanuatu’s Honorary Consul to Cambodia
6.7 Mr. Larry Yu was mentioned as a member of the Chen delegation which arrived n Vanuatu in March of 1997. Mr. Yu is a man with an international background. Mr. Yu was born in the People’s Republic of China. Mr. Yu holds a Marshall Islands passport (018240 issued on 20.05.96 and identification certificate 04 211990 issued on 20.07.96 on his first arrival in the Marshall Islands!). Copies of his Marshall Islands passport and identity card are annexed as '7' and '8'.
6.8 Mr. Yu is reported to be the director of a Hong Kong based company called NCI International which is an investment and immigration services business. Also, it appears as if Mr. Yu is in some way employed by Mr. Kao.
6.9 On 10 April 1997, then Foreign Affairs Minister, Willie Jimmy, in compliance with the Prime Ministers recommendations, appointed Mr. Yu as Trade Commissioner to Cambodia. On or about the same day Mr. Yu was issued with an Official Vanuatu passport numbered X000556. Presently, Mr. Yu’s Diplomatic passport is considered void by the Department of Foreign Affairs. A copy of Mr. Yu’s void Diplomatic passport is annexed here as '9'. A series of letters relating to Mr. Yu written by Prime Minister Vohor and Foreign Affairs Minister Jimmy are annexed as '10'. He appears to have been connected with Mr. J.P. Chen, Mr. Kao and a separate investigation is being conducted on this matter.
12-23 March 1997 - Mr. Chen visits Vanuatu with his associates to pick up passports and gives gifts
6.10 On 12 March 1997, Mr. Chen and his delegation arrived in Vanuatu. Apparently they were introduced to the Prime Minister by Mr. Kao, the purported Hong Kong Honorary Consul. During this trip, the Chen delegation stayed at the Meridian Hotel until 23 March 1997.
6.11 On 13 March 1997, Mr. Chen met with Prime Minister Vohor and later the same day with Mr. Jimmy. Although Mr. Chen has never made an investment in Vanuatu, he was introduced to Mr. Vohor and Mr. Jimmy, then Foreign Affairs Minister, as a potential new investor in Vanuatu.
6.12 On 14 March 1997, Jian Peng Chen was in Port Vila and received a Vanuatu Diplomatic Passport numbered D000026. According to the Diplomatic Passport Register, another PRC national, Mr. Zha Fan CHEN, was also to be issued a Vanuatu diplomatic passport numbered D000027 on the same day. Mr. Zha Fan was apparently the 'first secretary to the Honorary Consul to Macau'. Mr. Jimmy, in the course of his normal practice, directed by letter the Chief Protocol Officer, Japheth Tavoa, to issue these passports. Chen Zha Fan’s passport was never issued and remains at Foreign Affairs. Annexed as '11' is a copy of Mr. Jimmy’s letter requiring issue of diplomatic passports to Mr. Chen and Mr. Zha Fan Chen. A Copy of passport D000026 is annexed as '12'.
6.13 Mr. Tavoa cites Council of Ministers’ Decision No. 144 of 1994 as authority for issuing Honorary Consuls passports. Although Mr. Tavoa's mistake in obeying the Council of Ministers Decision may be understandable, this report wishes to make the following point clear, the Council of Ministers ('COM')cannot make law. This power is reserved to Parliament. The Council of Ministers cannot interpret law. This power is reserved to the courts. Thus, when the Council of Ministers revised the schedules contained in the Diplomatic and Official Passport Act it was of no legal affect. A copy of a letter from then Secretary General for the Council of Ministers, Charlot Salwai, issued to then Prime Minister, Maxime Korman, is annexed here as '13'. A copy of the Council of Ministers Paper revising the Diplomatic and Official Passports Act is annexed here as '14'.
6.14 On 21 March 1997, Noel Tabiusu wrote to Mr. Chen and asked for a fax machine and mobile telephone. According to Mr. Chan, Mr. Tabiusu would later receive the fax machine, but not the mobile telephone. Via Mickey Joy (the Acting Director of the Department of Industry) (who was returning from Hong Kong), Mr. Tabiusu physically received this fax machine. On the same day Mr. Tabiusu also requested badges for security personnel at the Prime Minister’s Office. These badges were never received. A copy of these two letters are annexed as '15' and '16' printed from a computer disk that was handed in to the Ombudsman’s Office. It was illegal for Mr. Tabiusu to receive gifts: see paragraph 9.7 and 9.15(c) of the Public Service Manual (refer to sections 5.24-5.25 and 8.23-8.27 of this report).
6.15 On 23 March 1997, the Chen delegation left Vanuatu.
26 March - 30 May 1997 Mr. Tabiusu (Sec Gen to COM) asks Mr. Chen for gifts and gets some
6.16 On 26 March 1997, Mr. Tabiusu requested 2 sets of football uniforms from Mr. Chen. According to Mr. Chan, these uniforms were never sent. Mr. Tabiusu’s request for football uniforms is annexed here as '17' and has been printed from a computer disk that was handed in to the Ombudsman’s Office.
6.17 On 15 April 1997, Mr. Tabiusu wrote to Mr. Chen expressing the desire to become partners with Mr. Chen in a Vanuatu cigarette import/export business. According to Mr. Chan, Mr. Chen had no plans to enter into a business arrangement with Mr. Tabiusu. A copy of Mr. Tabiusu’s letter requesting to become involved in business with Mr. Chen is annexed here, via a computer disk that was handed in to the Ombudsman’s Office, as '18'.
6.18 On 15 April 1997, Mr. Tabiusu also requested two computers from Mr. Chen. According to Mr. Chan, Mr. Chen never sent these computers. A copy of the letter from Mr. Tabiusu requesting computers is annexed as '19' which was found in a computer disk handed in to our office.
6.19 On 16 May 1997, Mr. Tabiusu wrote to Mr. Chen in order to thank him for the financing of a photocopier. A copy of the letter from Mr. Tabiusu thanking Mr. Chen is annexed as '20' and was found in a computer disk handed into our Office. It was illegal for Mr. Tabiusu to ask for and/or to accept gifts from Mr. Chen.
6.20 On 30 May 1997, Mr. Tabiusu requested from Mr. Chen a stereo tape recorder, a bicycle, some cold weather clothes, and a sewing machine. According to Mr. Chan, Mr. Chen provided the stereo tape recorder, and sewing machine, but did not provide the bicycle or cold weather clothes. A copy of Mr. Tabiusu’s letter requesting a tape recorder, bicycle, cold weather clothes and sewing machine is annexed as '21'. It was illegal for Mr. Tabiusu to accept gifts from Mr. Chen.
April/May 1997 Mr. Jimmy goes to Hong Kong and Macau
6.21 In late April to early May 1997, Mr. Jimmy, Peter Sali, Mr. Roy Mickey Joy, Acting Director of Industries, and Mr. Georges Maniuri, the Director of the National Planning Office, travelled to Hong Kong and Macau. According to Messrs. Joy and Sali this delegation from Vanuatu met with both Mr. Kao and Mr. Chen during this trip. Mr. Jimmy states he took this trip as Minister of Foreign Affairs, responsible for Vanuatu Foreign Missions abroad. Mr. Maniuri and Mr. Joy state the purpose of the trip to Macau was so that Mr. Jimmy could be shown 'the new premises of the Vanuatu Trade Commission', and an inauguration date for the offices could be discussed. Mr. Joy also states the trip was taken by the invitation of Mr. Kao and Mr. Chen.
6.22 Mr. Chen and Mr. Jimmy met during this trip and discussed the two receipts of money paid 'in order for him to be appointed as Honorary Consul for Vanuatu in Macau' (page 1 of Mr. Jimmy’s Response) issued from Mr. Chen to Mr. Kao. Mr. Jimmy was also shown the Consular Commission Certificate appointing Mr. Chen as Honorary Consul.
6.23 During this trip the accommodations of Mr. Jimmy, Mr. Sali, Mr. Maniuri and Mr. Joy were paid for by Mr. Kao and Mr. Chen. However, it should be noted Mr. Manuiri does not recall how his hotel bill was paid. Again these benefits are against the law as contained in the Public Service Manual.
6.24 Mr. Joy stated that Mr. Jimmy and Mr. Sali also received a video camera and video cassette each from either Mr. Chen or Mr. Kao, and that these gifts were based on their 'seniority as Senior Vanuatu Government Officials.' Mr. Sali also admitted that during this same trip he and Mr. Jimmy, while in Hong Kong, received a television set each from Mr. Kao or Mr. Chen. The receipt of television sets by Mr. Jimmy and Mr. Sali was confirmed by Mr. Maniuri, however, Mr. Manuiri does not recall if these items were gifts or purchases on the part of Mr. Jimmy and Mr. Sali. All of these gifts which were received were illegal.
6.25 Mr. Jimmy states whatever the nature of gifts, 'whether it be Television set, Video camera, video tapes, video cassettes, mobile phones, etc., if they are given genuinely without conditions, I don’t see how this could be treated as compromising our positions....' Also, Mr. Jimmy states that, 'according to Vanuatu culture and tradition, if someone brought a gift to you and if you refuse it, it would be disrespectful and shameful to whoever is bringing such gifts. Therefore, by accepting the gift, it does not necessarily mean that our position had been compromised in any way whatsoever.' (page 2 of Mr. Jimmy’s 'Response C'). This explanation is nonsense. Mr. Jimmy broke the law by receiving these gifts. I note also that Mr. Jimmy did not deny having kept the gifts as his own personal property even though they were received when he was supposedly representing the people of Vanuatu.
6.26 Mr. Joy states that it is tradition and customary that visitors to Asia as guests are given some gifts as a token of appreciation and friendship. Mr. Joy continues to state that every Ni-Vanuatu who has travelled to Asia has received gifts as tokens of appreciation and friendship. (page 2 of Mr. Joy’s 'Response E') If what Mr. Joy states is true, then there have been many more breaches of the Public Service Manual than the ones mentioned in this report.
6.27 Sometime between 10 May and 24 May 1997, Mr. Sali was seen by Mr. Christopher Emelee, the Honorary Consul of New Zealand, gambling at the Palm’s Casino. On this night, Mr. Sali was allegedly gambling with more than US$70,000. Records from the Palms Casino indicate Mr. Sali gambled 991,000 Vatu (approximately US$9,500) in May 1997 and 432,000 Vatu (approximately US$4,000) in June 1997. Also on this night, Mr. Sali’s driver allegedly took US$3,000 from Mr. Sali while at the casino. These facts are mentioned here because of the proximity in time to Mr. Sali's trip to Macau where he received some gifts from Mr. Chen.
25 June-5 July 1997: Mr. Chen and his associates’ second trip to Vanuatu to pick up Vanuatu ordinary passports
6.28 On 25 June 1997, Mr. Chen and his delegation again visited Port Vila. The Chen delegation stayed at Le Lagoon during this trip. Mr. Chen’s driver during this trip was Noel Faionalave, who at the time was employed by with the Prime Ministers Office, according to Mr. Chan.
6.29 On approximately 26 June 1997, Mr. Faionalave was in PM Vohor’s office repairing his air conditioner. At this time, Mr. Faionalave said he saw Mr. Vohor with a briefcase containing U.S. Dollars and VT5,000 notes. Mr. Vohor showed Mr. Faionalave the briefcase of money and joked to Mr. Faionalave about how much Mr. Faionalave wanted. Mr. Faionalave states he has never seen so much money in his life. Because of the proximity in time to Mr. Chen’s arrival the Ombudsman’s Office is of the opinion that the briefcase of money is likely to be an important factor in the stream of events leading to the issuance of the Chen passports.
6.30 Mr. Faionalave was subsequently dismissed by the Prime Minister’s Office. It is possible that the statement concerning the briefcase of money was made in retaliation for the firing. However, Mr. Chen has given gifts to many lower level government officials, so it would seem consistent with the character of Mr. Chen to also give money to Mr. Vohor, or bigger gifts in accordance with the right status of the person. If Mr. Chen gave a few thousand dollars to lower ranking officers, it can be expected that proportionate gifts were given to the highest authority in the country, the Prime Minister. As Mr. Vohor has never responded to our correspondence or our preliminary reports precise details of this event at present remain unknown. Still, our office has learned that on 1 July 1997, Mr. Vohor made a deposit of US$15,000 (1,664,400 Vatu), seeming to confirm Faionalave’s version of events. Annexed here as '22' is a copy of Mr. Vohor’s deposit slip dated 1 July 1997. Mr. Vohor is also a public servant like the others mentioned in this report, thus receipt of any money gifts by him is illegal.
6.31 On 1 July 1997, Mr. Chen received a second Diplomatic passport numbered D000032, according to the Diplomatic Passport Register. However, the Department of Foreign Affairs never turned this passport over to Mr. Chen and is still in possession of D000032.
6.32 On 1 July 1997, a letter purportedly written by PM Vohor was sent to Manwo Kepoue, the ostensible Chairman of the Citizenship[1]. This letter stated that the Chen family is to receive Honorary Citizenship and that ordinary passports are then to be issued to them. This letter is unsigned and contains the reference notation: CM/PMO/pm/1/8/28/RSV:ml/97. According to Mr. Sali, Mr. Vohor wrote or authorized this letter to be written on behalf of the Chen family. A copy of this letter is annexed as '23'. Mr. Kepoue states that he never received this letter and that he only learned of the existence of this letter after the Ombudsman enquiry was commenced. Additionally, Mr. Kepoue points out that it is very strange that this letter was not signed by Mr. Vohor. (see Mr. Kepoue’s 'Response F')
6.33 On 2 July 1997, John Mark Bell, Principal Immigration Officer (purportedly appointed by Foreign Affairs Minister Jimmy refer 5.13-5.15 above), directed Sergeant Teitoka Salali by letter to prepare passports for the Chen family. This letter states that Mr. Bell was directed to prepare these passports as a result of telephone instructions from both Noel Tabiusu (Secretary to Mr. Vohor) and Peter Sali (Secretary to Mr. Jimmy, then the Finance Minister) to do so. Finally, this letter states that the Honorary Citizenship applications were to be approved on 9 July 1997. Interestingly however, no citizenship certificates were ever issued to the Chen delegation. A copy of this letter is annexed as '24'.
6.34 On 2 July 1997, Mr. Chen and his associates, despite not even having Vanuatu citizenship (of any form regular or irregular) received the following Vanuatu ordinary passports:
6.35 On approximately 4 July 1997, Mr. Bell says that he and Mr. Sali met Mr. Chen and Mr. Chan at the Windsor Hotel. While at the Windsor, Mr. Bell says that Mr. Chan gave to Mr. Sali an envelope containing airline tickets. Mr. Chan confirms Mr. Bell’s version of events with the exception that the envelope contained money for airline tickets to Australia and not actual airline tickets. Mr. Chan states Mr. Chen gave Mr. Sali approximately 120,000 Vatu so that Mr. Jimmy, Mr. Sali and another person could have a Australian holiday. Mr. Jimmy admits to receiving an envelope containing an airline ticket but without any cash.
6.36 What appears to have happened is that the envelope Mr. Chan gave to Mr. Sali for then Finance Jimmy contained both airline tickets and money. Sometime between 4 and 8 July 1997, Air Vanuatu issued ticket no 218 4200061640 in the name of Hon Willie Jimmy for a return trip to Sydney travelling business class. In the ticket under the box headed 'Form of payment' reference is made to Mr. Jimmy’s ticket being paid by an exchange of three other airplane tickets numbered:
218 24000108702
218 24000108703
218 24000108705
These three tickets were issued for economy flights on Air Vanuatu between Brisbane and Sydney on 3 July 1997 to the following three persons:
Ms. Shu Pei (Chen delegation member who received a passport, see 6.34 & 6.48)
Mr. Sai Hung Chan (Mr. Jian Peng Chen’s interpreter)
Mr. Jian Peng Chen
6.37 The total value of these tickets were vt56,700 (VT18.900 each). These three tickets were used to pay for a portion of Mr. Jimmy’s return trip to Sydney which cost a total of VT112,400. The balance of VT55,700 for Mr. Jimmy’s ticket appears then to have been then paid out of the Vt120,000 that Mr. Chan states was in the envelope given to Mr. Sali by Mr. Chen. This would have left Mr. Jimmy spending money of VT64,300 for his 4 day trip to Sydney. Copies of the airline tickets for Mr. Chen, Mr. Chan and Ms Pei together with a copy of Mr. Jimmy’s ticket are annexed as '25'. The reader’s attention is directed to the numbers appearing in the bottom of each of the Chen delegation tickets and the fact that those same numbers correspond to the box marked 'Form of payment' in the bottom right hand side of Mr. Jimmy’s ticket. It was illegal for Mr. Jimmy to receive the gifts of money and/or airline tickets: see paragraph 9.7 and 9.15(c) of the Public Service Manual (refer to sections 5.24-5.25 and 7.23-7.27 of this report).
6.38 On 5 July 1997, Mr. Chen and his delegation left Vanuatu.
Mr. Chen and his associates third trip to Vanuatu to receive more passports
6.39 On 1 August 1997, Mr. Sali received a facsimile from Mr. Chen. This fax requested Mr. Sali to arrange accommodation for the Chen delegation for a third trip to Vanuatu. At this time, Mr. Sali was employed with the Ministry of Finance. Additionally, Mr. Sali states that he was ordered by Mr. Jimmy to take care of the Chen delegation. Mr. Jimmy states that directing his staff to assist Mr. Chen in August of 1997 'was an act done in good faith or to reciprocate to Mr. Chen ' for the accommodation Mr. Jimmy was given during his visit to Hong Kong. Mr. Jimmy claims this assistance was not done in connection with passports. As of 1 August 1997, Mr. Jimmy was Minister of Finance, not Minister of Foreign Affairs. A copy of the fax from Mr. Chen to Mr. Sali is annexed here as '26'.
6.40 On 5 August 1997, Mr. Bell received a memorandum from Sylvestre Meltetake of the Protocol Division of the Department of Foreign Affairs. This memorandum requested the Immigration Department to assist with the Chen delegation’s arrival. A copy of the letter from Mr. Meltetake to Mr. Bell is annexed here as '27'. According to Mr. Meltetake, this was a standard request made to facilitate the entry permit or tourist visa of Overseas Representatives and Diplomats as per instructions issued by Foreign Affairs.
6.41 On 11 August 1997, Mr. Chen and his delegation again returned to Vanuatu. Per Mr. Jimmy’s instructions, Mr. Sali picked up the Chen delegation at the airport in a car taken from Foreign Affairs and drove Mr. Chen to the Windsor Hotel. Mr. Sali says that, during the drive to the Windsor Hotel, Mr. Chen told him that the purpose of this trip was to obtain passports.
6.42 During this August 1997 trip, Mr. Chen met with PM Vohor, Minister Jimmy, Mr. Sali, Mr. Bell and Mr. Alfred Maliu, second secretary to the new Foreign Affairs Minister Vidal Soksok. That the Chen delegation was again seeking passports is curious because one month earlier the Chen delegation had already received passports. Additionally, during this trip, Mr. Chen and his delegation had dinner at Harborview Restaurant with Mr. Tabiusu, Mr. Vohor, Mr. Jimmy, Mr. Sali and Protocol Officers from Foreign Affairs. Mr. Jimmy states that he recalled having met Mr. Chen as a potential new foreign investor interested in Vanuatu.
6.43 While acting as Mr. Chen's chauffeur, and after personally explaining the requirement that a person must reside in Vanuatu for 10 years, Mr. Sali states he took Mr. Chen to meet Mr. Bell for further discussion regarding passports. During the Chens' trip, Mr. Sali states that he and Mr. Bell had contact on a daily basis.
6.44 On approximately 13 August 1997, a meeting took place between Mr. Chen, Mr. Chan (Mr. Chen’s interpreter), PM Vohor, Mr. Tabiusu, and Mr. Sali. This meeting took place in the office of Mr. Tabiusu. The subject of this meeting was whether or not it was possible for Mr. Chen to receive Vanuatu passports. PM Vohor stated that he would recommend to Manwo Kepoue that the Chen family receive honorary citizenship and that when they are approved they could return to Vanuatu and collect passports. It is to be noted that Mr. Vohor had arranged for honorary citizenships to issued to certain other persons earlier in 1997 - namely, Yu Wai Keung (in January), I.P.Pang (in January), Pei Chao Hsu (in February), Ming Tsung Hsu (in February), Hsiang-Yuan Hsu (in February), Ho-Chin Liu (in February), Jae Yong (Richard) Jung (in April), Owen Zhang (in June), Hui Sor (in June), Ton Hong (in June) and Jun Shi (in August). According to Mr. Sali, he informed Mr. Jimmy of the meeting, and that Mr. Jimmy was aware of the subject matter of this August meeting. According to Mr. Tabiusu, the Prime Minister aided Mr. Chen in receiving citizenship.
6.45 On the same day, 13 August 1997, Mr. Vohor, via a third party, changed US$10,000 into 1,126,500 Vatu. Annexed as '28' is the receipt of this transaction.
6.46 On 14 August 1997, Mr. Vohor, via a third party, changed another US$10,000 into 1,092,877 Vatu. Annexed as '29' is the receipt of this transaction.
6.47 Later on the afternoon of 14 August 1997, a second meeting took place between Mr. Vohor and Mr. Chen only. When Mr. Sali informed Mr. Jimmy of this meeting, according to Mr. Sali, Mr. Jimmy just laughed. Additionally, according to Mr. Sali, after this meeting, Pakoa Fred, another political secretary in Mr. Jimmy's Ministry of Finance, became the driver for the Chen delegation. Mr. Pakoa Fred is now seen driving a new bus which the Ombudsman understands was purchased for him by Mr. Jimmy.
6.48 On 14 August 1997, the following members of the Chen delegation also received passports:
This was done without the prior issue of honorary citizenships. It is unknown why the players in this matter decided not to follow through with Mr. Vohor’s idea but perhaps there was a concern that Mr. Vohor may find it difficult to convince the president to confer honorary citizenships to such a large group of people at one time.
6.49 At the time of this issuance, Immigration cancelled and collected the following duplicative passports issued to Chen family members on 2 July 1997 (refer 6.33):
6.50 To clarify which passports are presently issued to the Chen delegation, it should be noted that of the 19 ordinary passports issued to the Chen family on 2 July 1997 and 14 August 1997, only 12 still remain presently issued. The following ordinary passports still remain in the hands of the Chen family:
1. A005070 - Chen, Jian Peng - issued on 2 July 1997
2. A005071 - Xu, Yuan - issued on 2 July 1997
3. A005072 - Chen, Xue Lan - issued on 2 July 1997
4. A005074 - Chen, Xiao Qing - issued on 2 July 1997
5. A005376 - Chen, Xiao Yi - issued on 14 August 1997
6. A005377 - Chen, Yi - issued on 14 August 1997
7. A005378 - Shu, Pei - issued on 14 August 1997
8. A005379 - Luo, Wei Jun - issued on 14 August 1997
9. A005080 - Chen, Shi Fan - issued on 14 August 1997
10. A005381 - Chen, Shi Yuan - issued on 14 August 1997
11. A005382 - Lee, Run Lin - issued on 14 August 1997
12. A005383 - He, Shaoling - issued on 14 August 1997
6.51 It should be noted that the passport applications for Run Lin Lee, and Shaoling He were processed on 18 September 1997, however, they received passports on 14 August 1997. According to Sgt. Salali these two applications were not immediately processed because they were of a 'suspicious' nature.
6.52 On 17 August 1997 Mr. Chen and his delegation left Vanuatu.
6.53 On 18 August 1997, Mr. Vohor, via a third party, changed US$30,000 into 3,375,000 Vatu. Annexed as '30' is a copy of the receipt regarding this transaction. Regarding the currency exchanges dated 13,14 and 18 August 1997, PM Vohor states that this money was earmarked for the UMP Congress in Tanna and that the source of these funds was secret. Further Mr Vohor stated to the Ombudsman that grave relationship problems with other countries would be created if the names of these well known UMP supporters were revealed. PM Vohor stated that these monies were used to pay for the ships Sairaka and MV Killian to got to the August Congress. I find this an unsatisfactory explanation.
Conclusion
6.54 None of the above are citizens of Vanuatu. As such none of them should have been issued with passports. The Principal Immigration Officer, Mr. Jean Mark Bell, had no legal authority to issue passports in Vanuatu and therefore should not have issued them even if the Chen delegation held Vanuatu citizenship. According to Mr. Chan, Mr. Chen reportedly intended to return all Vanuatu Passports in November 1997. However, the passports have yet to arrive.
6.55 After the matter of passport sales became an issue for the Immigration Department and one that had come to the public’s knowledge it appears that Mr. Chen took steps to 'assist' the Foreign Affairs Ministry to 'investigate' the issue of a passport sales. Mr. Chan states that Mr. Chen purchased airline tickets for new Minister of Foreign Affairs Vidal Soksok, his wife, his Secretary Alfred Maliu, and Mr. Sam Bruno to travel to Hong Kong. These airline tickets were to Sydney and then onto Hong Kong leaving 3 September 1997 and returning 13 September 1997. It appears that the true purpose is likely to have been to continue the scheme that had been started with Mr. Vohor and the former Foreign Affairs Minister Jimmy.
6.56 Mr. Bruno states the purpose of visiting Hong Kong was to visit the consulate and meet with 400 investors who had registered their names with the Vanuatu Consulate in Hong Kong. Specifically, Mr. Bruno states that after Ms. Wendy Himford was terminated as the Honorary Consul (General Consul) to Hong Kong, the information on the investors was lost. So, Mr. Chen arranged the trip to assist the above officials in finding the investors. Mr. Bruno described the investments as overseas foreign investment opportunities that Vanuatu could seek to enter. (See Mr. Bruno’s 'Response H')
6.57 These tickets were paid for by cheques from the Harbourview Restaurant a Chinese restaurant in Port Vila. Mr. Chan, when asked about why the Harbourview Restaurant had paid cheques for these airline tickets, stated that Mr. Chen had paid money into a bank account that one of the owners of the Harbourview Restaurant held in Hong Kong. Presumably, money had been transferred from that account in Hong Kong to the Harbourview account in Port Vila and then used to pay for Messrs. Soksok, Maliu and Sam’s tickets. These tickets were not used possibly because of the publicity the issue of passport sales was starting to receive. Copies of the tickets of Messrs. Maliu and Soksok are annexed as '31'. A copy of the receipt for payment of these tickets issued to Harbourview Restaurant is annexed as '32'. According to Mr. Sam the tickets were purchased through Harborview because there is not any ticket agents for Air Vanuatu in Hong Kong. Harborview Restaurant has denied any knowledge of the reasons behind the issuance of the checks. Instead, Harborview claims they were merely a conduit for the money, and that all amounts were fronted by Mr. Chen. Again, these proposed benefits were illegal.
6.58 Mr. Chan also states that Mr. Chen purchased an airline ticket for John Mark Bell, the Principal Immigration Officer to visit Macau on or about 16 September. The purpose of this trip was described by Mr. Chan to be for investigation and vacation. Information concerning this trip was provided to the Police Commissioner and Mr. Bell was stopped from leaving on this trip so that he could assist the Police and Ombudsman with their enquiries. Again the payment for this ticket came via the Harbourview Restaurant. A copy of the ticket purchased by Mr. Chen is annexed as '33'. A copy of the receipt issued to Harbourview Restaurant is annexed as '34'. Again, the payment of Mr. Bell's ticket would have constituted an illegal benefit. Since then Mr Bell has been sent with the peace force to Papua New Guinea.
7 REVIEW OF THE REPLIES TO THE PRELIMINARY REPORT
7.1 After being given 15 days to reply to the contents in of this report. The following are summaries of the replies which were returned to our office.
Mr. Albert Kao:
7.2 Mr. Kao's reply suffers badly from Mr. Kao's inability to write in English fluently. However, it appears that Mr. Kao states he was not acting as Mr. Chen or Mr. Vohor’s agent at the time of the March 1997 trip, but rather he was acting as an Honorary Consul. If Mr. Kao was in fact working as an Honorary Consul on behalf of Vanuatu and not an agent, the question at this time again arises, 'What happened to the US$100,000 and HK$500,000 Mr. Kao collected from Mr. Chen, that Mr. Chen gave 'for the good of Vanuatu.?' Mr. Kao has only explained where the money given for the good of Vanuatu went in the vaguest of detail. Annexed here as '6' is Mr. Kao’s explanation Mr. Chen’s money supposedly earmarked for the good of our country. Mr. Kao’s entire response is annexed here as 'Response A'
Mr. Larry Yu:
7.3 Larry Yu responded to our Preliminary Report by stating that he is a legal citizen of the Marshall Islands. Mr. Yu indicated that he is employed by Mr. Kao. Mr. Yu corrected our report stating that he is the Trade Commissioner of Vanuatu in Cambodia. Finally, Mr. Yu pointed out that he and Mr. Kao are interested in Vanuatu because of its favourable tax structure and low labour costs. Mr. Yu’s entire response is annexed here as 'Response B'
Mr. Willy Jimmy:
7.4 In his response, Mr. Jimmy confirmed that Mr. Yu’s appointment was in compliance with the Prime Minister’s recommendations, nothing else. Mr. Jimmy states he met Mr. Chen as a new investor in Vanuatu. Mr. Jimmy comments that the release of the Diplomatic Passport to Mr. Chen was normal practice following his appointment as Honorary Consul to Macau. Mr. Jimmy states he took his trip to Hong Kong in his capacity as Minister of Foreign Affairs, responsible for Vanuatu Foreign Missions abroad. Mr. Jimmy states that it was during this trip that Mr. Chen showed Mr. Jimmy the Consular Commission Certificate appointing Mr. Chen as Honorary Consul, and the two receipts of money 'paid in order for him to be appointed as Honorary Consul for Vanuatu in Macau'(annex '2')
7.5 Mr. Jimmy states that directing his staff to assist Mr. Chen in August of 1997 was an 'act done in good faith or to reciprocate' to Mr. Chen for the accommodations Mr. Jimmy was given during his visit to Hong Kong, and these acts were not done in connection with passports. Also, Mr. Jimmy states that, 'according to Vanuatu culture and tradition, if someone brought a gift to you and if you refuse it, it would be disrespectful and shameful to whoever is bringing such gifts. Therefore, by accepting the gift, it does not necessarily mean that our position had been compromised in any way whatsoever.' Mr. Jimmy also states that whatever the nature of gifts, 'whether it be Television set, Video camera, video tapes, video cassettes, mobile phones, etc., if they are given genuinely without conditions, I don't see how this could be treated as compromising our positions.' Mr. Jimmy did admit to receiving an envelope containing airline tickets. Mr. Jimmy’s entire response is annexed here as 'Response C'.
Mr. George Manuiri:
7.6 Mr. Manuiri states the purpose of the trip to Macau was so that Mr. Jimmy could be shown the premises of the Vanuatu Trade Commission and a inauguration date could be set. Mr. Manuiri does not recall his hotel room being paid by Mr. Chen, and goes on to state that this position is pure speculation by the office of the Ombudsman. Yet Mr Maniurii does not know who paid his hotel bill. Mr. Maniuri’s entire response is annexed here as 'Response D'.
Mr. Roy Mickey Joy:
7.7 Mr. Joy states the purpose of the trip to Macau was so that Mr. Jimmy could be shown the premises of the Vanuatu Trade Commission and an inauguration date could be set. Mr. Joy states the trip was taken upon the invitation of Mr. Kao and Mr. Chen. Mr. Joy states the hotel bills were settled by Mr. Kao after the Vanuatu delegation had left for Australia. Mr. Joy states that it is tradition and customary that visitors to Asia as guests are given some gifts as a token of appreciation and friendship. Mr. Joy continues to state that every Ni-Vanuatu who has travelled to Asia has received gifts as tokens of appreciation and friendship. Mr. Joy’s entire response is annexed here as 'Response E'.
Mr. Manwo Kepoue:
7.8 Mr. Kepoue states that he never received Mr. Vohor's letter to him about the Chens and that he only learned of the existence of this letter after the Ombudsman enquiry was commenced. Additionally, Mr. Kepoue points out that it is very strange that this letter was not signed by Mr. Vohor. Mr. Kepoue’s entire response is annexed here as 'Response F'.
Mr. Sylvestre Meltetake, public servant in the Foreign Affairs Department
7.9 According to Mr. Meltetake, his letter to Mr. Bell regarding Mr. Chen's August visit was a standard request made to facilitate the entry permit or tourist visa made on behalf of the Vanuatu Government to assist Overseas representatives and Diplomats as per instructions issued by Foreign Affairs. Mr. Meltetake’s entire response is annexed here as 'Response G'.
Mr. Sam Bruno, political appointee in Foreign Affairs Ministry
7.10 Mr. Bruno states the purpose to visiting Hong Kong was to visit the consulate and meet with 400 investors who had registered their names with the Vanuatu Consulate in Hong Kong. Specifically, Mr. Bruno states that after Ms. Wendy Himford was terminated as the Honorary Consul (General Consul) to Hong Kong, the information on the investors was lost. So, Mr. Chen arranged the trip to assist the above officials in finding the investors. Mr. Bruno described the investments as overseas foreign investment opportunities that Vanuatu could seek to enter. According to Mr. Sam, the tickets were purchased through Harborview because there is not any ticket agents for Air Vanuatu in Hong Kong. Mr. Bruno’s entire response is annexed here as 'Response H'.
Mr. Japheth Tavoa public servant in the Foreign Affairs Department
7.11 Mr. Tavoa states in his response to our Preliminary Report, that he only issued the Diplomatic Passport to Mr. Chen because Honorary Consuls were included in a revised Schedule to the Diplomatic and Official Passports Act. The Council of Ministers made this revision on 1 December 1994. Mr. Tavoa's entire response is annexed here as 'Response I'.
Harbourview Restaurant, private business
7.12 Harborview Restaurant has denied any knowledge of the reasons behind the issuance of the checks. Instead, Harborview claims they were merely a conduit for the money, and that all amounts were fronted by Mr. Chen. Harbourview’s entire response is annexed here as 'Response J'.
Mr Serge Vohor Prime Minister of the Republic of Vanuatu
7.13 Mr Vohor gave the Ombudsman an oral reply that the money exchanged on 13, 14 and 18 August 1997 was money for the UMP Congress in Tanna. Mr Vohor refused to reveal the source of the funding as he said it could create grave relationship problems with other countries. However, Mr Vohor alleged that these monies were used to rent ships Sairaka and MV Killian which were used for the Tanna Congress.
7.14 Mr Vohor stated that he would not as UMP Party President, have accepted to do something wrong for the sake of the party.
7.15 Mr Vohor alleged that the first time he became aware of passport problems was when Mr Jimmy came out publicly with his accusations. Mr Vohor then stated that he was the one who initiated the enquiry and provided our office additional funding for the enquiry.
7.16 Mr Vohor stated that he met with Mr Chen in August 1997 because Mr Chen was a potential investor in a Tobacco factory.
7.17 Finally, Mr Vohor stated to me that Mr Tari his Second Secretary, wrote to Mr Chen indicating that it was not possible to give him passports. The Prime Minister was unable to produce a copy of this letter he alleges was sent.\\7.18 Because Mr Vohor’s responses were oral the Ombudsman recorded these in a letter confirming the points of discussion on the Chen matter. This appears as 'Response K'.
8 FINDINGS OF MISCONDUCT
Finding No. 1: Mr. Jian Peng Chen has no status as Vanuatu’s Honorary Consul
8.1 Mr. Chen was never approved by Portugal to be Honorary Consul for Vanuatu in Macau. This is contrary the Council of Ministers’ 'Criteria to be Considered in the Selection of Honorary Consuls of the Republic of Vanuatu' (refer annexure 1, item 1). Mr. Chen is not the Honorary Consul to Macau. There is no such thing.
8.2 According to events as they actually happened, the purpose of this purported appointment was to allow PM Vohor and Minister Jimmy with the help of others to unlawfully and improperly issue Mr. Jian Peng Chen with a diplomatic passport and Mr. Chen and his delegation with ordinary passports. Mr. Chen and his delegation, in turn, appear to have started or attempted to start a business in the sale of Vanuatu passports.
8.3 It should be noted here that PM Vohor, Mr. Chen, Mr. Chan and Ms. Pei have all been given preliminary reports with requests to respond to the same. However, to date none of these individuals have responded.
8.4 Former Minister Jimmy stated that the issuance of passports to Mr. Chen followed normal practice of the Foreign Affairs Ministry following the appointment of an Honorary Consul. If this is so, it is most concerning because the procedure Mr. Jimmy has referred to is illegal. Unfortunately, Mr. Jimmy still fails to realize two points:
(a) Mr. Chen was never Honorary Consul because he was never approved as such by Portugal.
(b) Honorary Consuls are not entitled to Diplomatic Passports under the laws of Vanuatu.
Finding No. 2: Former Minister Jimmy’s actions as Minister of Foreign Affairs in allowing diplomatic passport D000026 to be issued to Mr. Jian Peng Chen was illegal and improper.
8.5 For reasons which should be plain now (refer legal position 5.16-5.23 above), Jian Peng Chen should not have been issued with a diplomatic passport. Mr. Chen did not qualify for a diplomatic passport. The law does not properly provide for Honorary Consuls to receive diplomatic passports (see Finding No. 3 below). And even if the law did so provide, Jian Peng Chen has never been correctly appointed as Honorary Consul because he has never been approved by Portugal. Thus, Mr. Jimmy as Minister of Foreign Affairs acted illegally and improperly and when allowing Jian Peng Chen to be issued with a diplomatic passport.
8.6 Mr. Jimmy responded to this aspect of the Preliminary Report of the Ombudsman by reference to his earlier position that he was only following normal practice concerning an appointment of Honorary Consuls abroad. Again, Mr. Jimmy still fails to realize two points:
(a) Mr. Chen was never Honorary Consul because he was never approved as such by Portugal.
(b) Honorary Consuls are not entitled to Diplomatic Passports under the laws of Vanuatu.
Finding No. 3: The Council of Ministers do not make law.
8.7 When Mr. Tavoa issued Mr. Chen a Diplomatic Passport, as per the directions of Mr. Jimmy, he was following an order that had no effect and was illegal. The Constitution, via Article 16, grants the power to make laws to Parliament. The Judiciary has the power to resolve disputes according to law, via Article 47 of the Constitution. The Council of Ministers simply has no power to create, interpret or revise the Diplomatic and Official Passports Act. Thus, Council of Ministers Decision 144 of 1994 (see annex 11A and 11B) is improper and should not have been passed or subsequently followed by Mr. Tavoa.
Finding No. 4: The Diplomatic Passport given to Mr. Jian Peng Chen D000026 is void ab initio (from the date of issue).
8.8 Honorary Consuls are not persons entitled under Vanuatu law to receive Vanuatu Diplomatic Passports. No mention was made of exceptional circumstances relating to Jian Peng Chen. Indeed, Jian Peng Chen was never even properly appointed as Honorary Consul. Thus, Jian Peng Chen should never have been given a Vanuatu Diplomatic Passports. In my opinion the Diplomatic Passport of Jian Peng Chen is invalid and null and void ab initio (from the date of issue).
8.9 Mr. Jimmy again stated his position regarding this point. Mr. Jimmy stated that all passports are issued for a 5 year term, and that the duration of a passport is for the entire 5 years, unless appointments are terminated prior to the expiration of 5 years as is in the case of the official and diplomatic passport holders. Mr. Jimmy's position appears contrary to the laws of Vanuatu.
Finding No. 5: PM Vohor, former Minister Jimmy, Mr. Sali, Mr. Tabiusu (former Sec Gen of COM), and Mr. Bell (former Principal Immigration Officer)all acted in an illegal and improper manner by helping the Chen family receive ordinary passports and as such breached the principles of the constitutional Leadership Code by debasing the value of Vanuatu citizenship.
Prime Minister Mr. Vohor
8.10 Mr. Vohor should not have assisted the Chen family in obtaining ordinary passports. The Chen family were not citizens of Vanuatu and had no rightful claim to Vanuatu Citizenship. Mr. Vohor knew the Chen family were not citizens of Vanuatu but through letters, certificates and face to face meetings assisted them in obtaining Vanuatu passports. Mr. Vohor gave unconstitutional and illegal and access to Vanuatu citizenship to people who were not entitled to it and therefore demeaned his position of Prime Minister. Furthermore, by allowing easy illegal access to Vanuatu passports to people barely identified, undoubtedly, Mr. Vohor has given Vanuatu a bad name.
8.11 Countries which sell their citizenships have had international consequences such as threats to be expelled from the Commonwealth (CHECK). Furthermore, this easy granting of passports renders the Vanuatu passport suspicious to overseas authorities and ni-Vanuatu might find themselves in the future examined more thoroughly when they travel overseas, as no one will know whether they are genuine ni-Vanuatu or people who bought their passports without checks. Mr. Vohor’s action has diminished respect for and confidence in the integrity of the Government of the Republic of Vanuatu.
8.12 If Mr. Vohor received some money from Mr. Chen as it appears he did (refer to 6.30, 6.45, 6.46, and 6.53), he has put himself in a position of conflict of interest as outlined in 66.c.1(a) and has obtained personal gain breaching article 66(2) of the Constitution and he may also have committed criminal offences.
Mr. Jimmy, former Foreign Affairs Minister and then Finance Minister
8.13 Mr. Jimmy points out that it was the Prime Minister who directed Vidal Soksok, present Minister of Foreign Affairs to issue the Chen family ordinary passports in July and August 1997. Unfortunately, Mr. Jimmy has missed the point. Foreign Affairs is not responsible for Ordinary Passports, Foreign Affairs is responsible for Diplomatic Passports. Mr. Chen received Diplomatic Passport D000026 while Mr. Jimmy was still Minister of Foreign Affairs on 14 March 1997.
8.14 Additionally, Mr. Jimmy claims he was not in any way involved in the improper issuance of ordinary passports to the Chen family. However, Mr. Jimmy’s right hand man, Peter Sali, was continually at the Immigration Office by his own admission. Mr. Sali also informed Mr. Jimmy of meetings that he attended involving PM Vohor, Mr. Tabiusu, Mr. Chen and himself where the issuance of passports was the subject matter. Furthermore, Mr. Jimmy received plane tickets to Australia from Mr. Chen. In my opinion the circumstantial evidence (the plane tickets) and the admissions from his 3rd Secretary, Mr. Sali, point strongly to Mr. Jimmy's involvement with the issuance of both ordinary and diplomatic passports to Mr. Chen and his family.
8.15 With knowledge that the Chen family were attempting to obtain passports without the prerequisite Vanuatu Citizenship, Mr. Jimmy, as a Government Minister, had the responsibility to the Vanuatu People to attempt to stop the Chen family from acquiring passports in July of 1997 and August of 1997. Instead, Mr. Jimmy accepted money and/or tickets to go to Australia for a vacation from Mr. Chen. Through conversations with his lieutenant, Peter Sali, Mr. Jimmy knew the Chen family were not citizens of Vanuatu but still he acted illegally and did not attempt to stop the issuance of passports.
8.16 Mr. Jimmy states that conversations between Mr. Chen and Mr. Sali 'does not necessarily reflect any agreement I may have on matter being discussed.' It should be noted that Mr. Sali position was that he was to report to Mr. Jimmy, which he did, regarding passport meetings between Mr. Vohor, Mr. Tabiusu and Mr. Chen. Indeed, Mr. Sali was directed by Mr. Jimmy to chauffeur Mr. Chen around Port Vila in August 1997, as 'a good faith act or act of reciprocity.' Mr. Jimmy's statement shows the he thinks the People of Vanuatu and the Ombudsman's Office are fools. Mr. Jimmy is a very experienced and worldly politician. I consider that he knew very well what was going on. To try to suggest otherwise is unbelievable.
8.17 Mr. Willie Jimmy, by receiving a gift of at least airplane tickets or money, placed himself in a conflict of interest and that may have affected the fair exercise of his public or official duties. Because Mr. Jimmy failed to take a stand on behalf of Vanuatu he to has breached the Leadership Code the Constitution. In short, Mr. Jimmy was offered and accepted a bribe to break Vanuatu's laws. Like Mr. Vohor, he may be liable under the criminal law also.
Mr. Sali, political appointee of former Finance Minister Willie Jimmy
8.18 Mr. Sali was employed with the Ministry of Finance as a political secretary for Mr. Jimmy at the time the Chen’s were obtaining ordinary passports. In August 1997, the Chen family told Mr. Sali that the sole purpose of their trip to Vanuatu was to obtain passports. Mr. Sali had knowledge of Immigration laws from his prior employment with the Department of Foreign Affairs. Still, instead of attempting to stop the Chen family from receiving passports as improper and illegal, Mr. Sali drove the Chen family around town, accepted holiday trips to Australia from the Chen family, and obeyed orders from his superiors which he knew were contrary to the law. Mr. Sali knew the Chen family were not citizens of Vanuatu but allowed them to be issued passports. Furthermore, he has not explained why he had so much money to gamble with in May 1997.
Mr. Tabiusu, former Secretary General of the Council of Ministers
8.19 Mr. Tabiusu, the then secretary of the Council of Ministers, was aware that the Chen family did not have the perquisites to obtaining Vanuatu passports. Indeed, meetings between Mr. Chen, Mr. Vohor, and Mr. Sali took place in front of Mr. Tabiusu and in Mr. Tabiusu’s own office. Mr. Tabiusu did not try to stop the illegal acquisition of passports. Instead, Mr. Tabiusu asked Mr. Chen for presents. Mr. Tabiusu received a fax machine, a photocopier, two sewing machines, and a stereo tape player from the same Mr. Chen who presently has 13 improperly and illegally issued Vanuatu Passports. Mr. Tabiusu knew the Chen family were not citizens of Vanuatu but still assisted them in obtaining passports.
Mr. Bell
8.20 Mr. Bell was the Principal Immigration Officer at the time the Chen family received his passports. Although his position might not have been correct under the law as a Passport Officer, he had customary duty of issuing passports. Thus, Mr. Bell was the last line of defence between proper issuance of passports and improper issuance of passports. As the keeper of this last line of defence, Mr. Bell shirked and breached his duties under CAP 108 Section 3 of the Passport Act and allowed a total of 18 passports to be issued to the Chen family on 2 separate occasions. Some of these passports were subsequently collected by the Immigration Office, but only once the Chen family had the replacement passports they sought. The Chen family were not citizens of Vanuatu but Mr. Bell illegally issued them with passports.
Conclusion
8.21 All these men were corrupted and acted corruptly. As such I am left with the view that they all fell far below the standards expected of the Leadership Code in Vanuatu’s Constitution. They made private gain in conflict with and at the expense of their duties as public officers and leaders of the people of Vanuatu. Their actions may amount to criminal offences which are detailed in Findings 8 to 10 below.
Finding No. 6: The Ordinary Passports issued to the members of the Chen family are void ab initio.
8.22 Vanuatu passports are only to be given to citizens of Vanuatu under CAP 108 Section 3 of the Passport Act (refer 5.1-5.4). None of the Chen family are citizens of Vanuatu. Thus, when members of the Chen family received Vanuatu passports via Mr. Bell this was an improper issuance. As the issuance of Vanuatu passports to the Chen family was improper, any passport issued to the Chen family is void ab initio (from the beginning) and should be treated as such by Vanuatu.
Finding No. 7: All money and property received by PM Vohor, Mr. Jimmy, Mr. Tabiusu, Mr. Maniuri and Mr. Joy violated paragraphs 9.7 and 9.15(c) of the Vanuatu Public Service Manual.
8.23 According to Paragraph 9.7 of the Vanuatu Public Service Staff Manual, officers are prohibited from receiving gifts as a result of their official duties.
8.24 Mr. Chen would not have given Mr. Vohor money were he not the Prime Minister. Mr. Chen would not have given Mr. Jimmy money and/or gifts were he not at the time Minister of Foreign Affairs or Minister of Finance. Mr. Chen would not have given Mr. Sali or Mr. Tabiusu presents were they not the right hand men of Mr. Vohor and Mr. Jimmy. Finally, Mr. Chen would not have paid for the May 1997 Hong Kong and Macau hotel accommodations of Mr. Sali, Mr. Maniuri of Mr. Joy were they not travelling with the then Minister of Foreign Affairs, Mr. Jimmy.
8.25 If Mr. Chen did not give money or presents to you or I, it was because you and I did not assist him in obtaining a passport. Mr. Chen only gave money and presents to Government Officials who were linked to or assisted him in obtaining passports. These same Government Officials were prohibited from receiving the gifts of Mr. Chen by paragraph 9.7 of the Vanuatu Public Service Staff Manual. Still, they ignored the staff manual and accepted the gifts.
8.26 By accepting the gifts of Mr. Chen and helping Mr. Chen and his family illegally obtain passports, PM Vohor, former Minister Jimmy, Mr. Sali, and Mr. Tabiusu conducted themselves in such a way as to create a conflict between their private interest and their public duty. Their private interest was the receipt of gifts from Mr. Chen. Their public duty was to prohibit, not assist, Mr. Chen in obtaining passports.
8.27 Mr. Vohor, Mr. Jimmy, Mr. Sali, Mr. Tabiusu, Mr. Maniuri, and Mr. Joy violated the Vanuatu Public Service Staff Manual which clearly outlined their duty not to receive gifts as a result of their official position or act in such a way as to create a conflict of interests. Mr. Vohor, Mr. Jimmy, Mr. Tabiusu and Mr. Sali also placed themselves in a conflict of interest by aiding Mr. Chen. This conduct is prohibited by 9.15(c) of the Public Service Manual.
Finding No. 8: Conspiracy
8.28 On approximately 26 June 1997, Mr. Vohor was seen with a briefcase containing U.S. Dollars and VT 5,000 notes. The briefcase was seen immediately after the Chen delegation arrived in Vanuatu (to receive passports on 2 July 1997). This could be a factor indicating a conspiracy between Mr. Chen and PM. Vohor.
8.29 On approximately 13 August 1997 in the morning, Mr. Vohor met with Mr. Tabiusu, Mr. Sali and Mr. Chen for the express purpose of obtaining passports for Mr. Chen and his family. According to Mr. Sali, Mr. Vohor also met with Mr. Chen by himself later this same day. Since Mr. Chen’s stated purpose for visiting Vanuatu in August 1997 was to obtain passports, and since Mr. Sali admitted passports were the sole issue in the meeting on the morning of 13 August 1997, we can assume all meetings between Mr. Vohor and Mr. Chen were related to obtaining passports. Mr Vohor’s explanation about the tobacco factory may or may not have happened; if it did, it was clearly a side issue
8.30 Mr. Vohor has purportedly written a letter dated 1 July 1997, directing Mr. Chen and his family to be issued with passports and citizenship. Additionally, along with Mr. Sali, Mr. Tabiusu (Mr. Vohor’s Secretary) verbally directed Mr. Bell to issue passports to the Chen family. This was the same day that Mr. Vohor deposited US$15,000 into his bank account.
8.31 The subject matter of the meetings between Mr. Vohor and Mr. Chen and the actions of Mr. Sali and Mr. Tabiusu indicate the existence of a conspiracy to illegally and improperly obtain passports.
8.32 According to Mr. Sali, Mr. Jimmy was informed of the content and number of meetings between Mr. Vohor and Mr. Chen but he merely laughed. Mr. Jimmy through Peter Sali has also been given money from Mr. Chan on behalf of Mr. Chen himself. Mr. Chan has admitted that this transaction, as alleged by Mr. Bell, did in fact take place. Additionally, Mr. Chan stated Mr. Chen provided this money so that Mr. Jimmy and Mr. Sali could take an Australian vacation.
8.33 The admitted money and ticket transaction occurring at the Windsor Hotel on or about 4 July 1997 between Mr. Sali and Mr. Chan, that took place on behalf of Mr. Chen and Mr. Jimmy, also presents evidence as to the existence of a conspiracy to unlawfully obtain passports.
8.34 From the evidence thus far collected, it appears that there was a conspiracy between Mr. Chen, Mr. Jimmy and Mr. Vohor. It also appears as Mr. Tabiusu, Mr. Sali, Mr. Bell, Mr. Kao, and Mr. Chan aided the above parties in carrying out this conspiracy by carrying out orders and transmitting information. Thus, they are also likely conspirators themselves.
8.35 Mr. Jimmy states in his response to our Preliminary Report he was not aware of or involved in any 'conspiracy meeting' with Mr. Vohor Mr. Jimmy and Mr. Chen. Our report never mentioned a meeting between these three individuals. Instead, the Preliminary Report stated that Mr. Jimmy was informed through Mr. Sali about the subject of meetings between Mr. Vohor, Mr. Tabiusu, Mr. Chen and Mr. Sali. Further, according to Mr. Sali, Mr. Jimmy merely laughed when he was told of the meeting. It is surprising that Mr. Jimmy has denied a meeting that the preliminary report did not allege, but his denial appears to suggest that the three men did meet for some other purpose. If they did it would be of interest to know what was discussed.
Finding No. 9: False Pretences
8.36 Mr. Chen and his family obtained passports in part because of a letter from Mr. Vohor directing that the Chen family receive Honorary Citizenship and ordinary passports from the Principal Passport Officer (refer annexure '23' and paragraph 6.32). Mr. Chen also obtained passports allegedly because of verbal statements from Mr. Sali and Mr. Tabiusu made to Mr. Bell. These statements to Mr. Bell repeated the position of Prime Minister Vohor and the Prime Minister’s Office that Mr. Chen was in fact authorized to receive ordinary passports (refer 6.32).
8.37 Mr. Chen and his family never obtained the appropriate prerequisites to obtaining passports, namely citizenship. For this reason, the letter from Mr. Vohor and the statements by Mr. Tabiusu and Mr. Sali were false. The false letter and statements can only have been made with the intent that Mr. Chen and his family receive passports. As a result of these statements and letters of assurance to Mr. Bell, the Chen family received 18 Vanuatu Passports on two separate occasions. Because property in the form of Vanuatu Passports was obtained through knowingly false statements and letters, the crime of false pretences may have been committed by Messrs. Vohor, Sali, Tabiusu and Bell.
8.38 In the Ombudsman's view, Mr. Chen, Mr. Vohor, Mr. Tabiusu and Mr. Sali are all individuals who could be investigated and possibly charged in the Ombudsman’s view the crime of false pretence, conspiracy to commit false pretence and any one or more of them could, in the alternative, be charged with complicity (refer 5.30) to commit the crime of false pretences. It should be noted that the wording of dishonestly obtaining property allows for not only the person who receives the property but those who 'procure' it to also be charged (refer bolded portion of s 124 of the Penal Code set out above at 5.28 - 'or procures anything capable of being delivered to any person other than himself')
Finding No. 10: Property Dishonestly Obtained and Complicity
8.39 Mr. Jimmy and Mr. Sali received money from Mr. Chen for a holiday in Australia (refer 6.34-6.36). As this money appears to have been given for no other reason than the fact that Mr. Chen was to obtain passports, it appears that Mr. Jimmy and Mr. Sali also obtained property dishonestly. The men could also be charged as accomplices for assisting Mr. Chen for dishonestly obtaining the passports under s 30 of the Penal Code (refer 5.29-5.30).
8.40 Mr. Jimmy states that our view that he may have committed a criminal offence 'contains suspicions and assumption on the part of the Ombudsman..' However, our suspicions and assumptions are backed up by paper trails and interviews. Mr. Sali admitted to our office that he was given airline tickets by Mr. Chan to be used by Mr. Jimmy. Mr. Chan admitted to our office that he gave Mr. Sali money for a trip to Australia for Mr. Jimmy. Additionally, when researching the invoice for Mr. Jimmy’s trip to Australia, it became clear that Mr. Jimmy’s Australia business class airline ticket to Sydney Australia was at least partially paid for by airline tickets of Mr. Chen, Mr. Chan and Ms. Pei. Mr. Jimmy admits he got the airline ticket. These receipts are annexed as '25'.
8.41 Although the source of Mr. Vohor’s briefcase full of money is presently unknown. If the briefcase is related to Mr. Chen and his receipt of Vanuatu passports, then it is likely property which was dishonestly obtained or may be further evidence of the complicity of Mr. Vohor. If the currency exchanges of 13, 14 and 18 of August 1997 are also linked to Mr. Chen, then these transactions are likely evidence of complicity or obtaining property dishonestly by Mr. Vohor
8.42 Mr. Vohor has been given a Preliminary Report but has failed to respond. In fact, Mr. Vohor has been sent a reminder letter of our office’s desire to hear his response, yet still our office has not heard from Mr. Vohor.
8.43 Mr. Tabiusu repeatedly asked for items of personal property from Mr. Chen (refer 6.16-6.20). Mr. Tabiusu repeatedly received items of personal property from Mr. Chen. According to Mr. Chan, Mr. Tabiusu received a fax, a sewing machine, a generator, Television, video cassette recorder, stereo, perfume, and photocopier from Mr. Chen. Mr. Tabiusu was Mr. Vohor’s Secretary and because Mr. Tabiusu was present at meetings with Mr. Chen where it was discussed that he would receive passports he knew what was occurring and sought to make some material advantage for himself. Mr. Tabiusu also directed Mr. Bell to issue the Chen delegation with passports. It appears that the gifts received by Mr. Tabiusu were items of property obtained because of Mr. Tabiusu’s assistance to Mr. Chen in obtaining passports. Thus, the items of property obtained by Mr. Tabiusu from Mr. Chen are items of property dishonestly obtained.
8.44 Mr. Tabiusu and Mr. Bell likewise could be investigated and possibly charged as accomplices for the illegal obtaining of the passports by Mr. Chen.
9. Recommendations
Recommendation No. 1: Mr. Jian Peng Chen has no status as Vanuatu's Honorary Consul or right to possess Vanuatu passports.
9.1 Mr. Chen has not fulfilled the requirements necessary to become Honorary Consul. Thus, Mr. Chen's appointment as Vanuatu's Honorary Consul to Macau should be confirmed as void.
9.2 Because Mr. Chen has illegally obtained 13 Vanuatu Passports (12 ordinary passports and 1 diplomatic passport) for he and his family, he should return these passports to Vanuatu immediately. Additionally, the Immigration Department should take steps to declare these passports void, and notify the Macau Department of Immigration of the void status of these passports.
Recommendation No. 2:: Referral to the Police and Public Prosecutor because of the likelihood criminal offences were committed by Mr. Chen.
9.3 Because it appears that there may well have been criminal offences committed by Mr. Chen and his family in relation to the issuance of passports, the Ombudsman's Off ice is referring this matter to the Police Commissioner and the Public Prosecutor. The Ombudsman is required by Section 25(1) of the Ombudsman Act to do this. Section 25(1) states:
If the Ombudsman after due enquiry, is of the opinion that the commencement of criminal proceedings or disciplinary action is justified against the person involved in the subject matter of his enquiry, including any enquiry into the conduct of a leader under Chapter 10 (Leadership Code) of the Constitution, he should refer the matter to the Appropriate Authority[2] including all relevant supporting documents.
9.4 It will then be over to the police to investigate the matter further and for charges to be laid by the Public Prosecutor if he considers this appropriate after consideration of the information in this report and the result of the Police investigations.
Recommendation No. 3: The Chen matter will be referred to the Public Prosecutor and the Police Commissioner pursuant to Section 25(1) of the Ombudsman Act regarding the actions of Mr. Vohor, Mr. Jimmy, Mr. Tabiusu, Mr. Sali and Mr. Bell .
9.5 Because it appears that there may well have been criminal offences committed by Mr. Vohor, Mr. Jimmy, Mr. Tabiusu, Mr. Sali and Mr. Bell and his family in relation to the issuance of passports, the Ombudsman's Office is referring this matter to the Police Commissioner and the Public Prosecutor. The Ombudsman is required by Section 25(1) of the Ombudsman Act to do this. Section 25(1) states:
If the Ombudsman after due enquiry, is of the opinion that the commencement of criminal proceedings or disciplinary action is justified against the person involved in the subject matter of his enquiry, including any enquiry into the conduct of a leader under Chapter 10 (Leadership Code) of the Constitution, he should refer the matter to the Appropriate Authority[3] including all relevant supporting documents.
9.6 It will then be over to the police to investigate the matter further and for charges to be laid by the Public Prosecutor if he considers this appropriate after consideration of the information in this report and the result of the Police investigations.
Recommendation No. 4: Mr. Vohor should resign and never again hold public office.
9.7 Mr. Vohor wilfully breached the Leadership Code by assisting Mr. Chen and his Family in obtaining passports, receiving money, and improperly issuing Mr. Chen a Consular Certificate. Because Mr. Vohor has again proven that he cannot conform his conduct to that required of Leaders under the Constitution, he should immediately resign and never again hold Public Office.
Recommendation No. 5: Mr. Jimmy should never again hold public office.
9.8 Mr. Jimmy wilfully breached the Leadership Code by assisting Mr. Chen and his family in obtaining passports in return for money and/or property. Because Mr. Jimmy has again proven that he cannot conform his conduct to that required of Leaders under the Constitution, he should never again hold public office.
Recommendation No. 6: Mr. Tabiusu, Mr. Sali and Mr. Bell should never again hold public office.
9.9 Mr. Sali, Mr. Tabiusu and Mr. Bell all wilfully breached the Leadership Code by assisting Mr. Chen and his family in obtaining passports against the laws of Vanuatu. All three of these individuals have proven that they cannot conform their conduct to that required of Leaders under the Constitution. Thus, they should never again hold any position within the Vanuatu Government.
9.10 At the time of this report, Mr. Tabiusu and Mr. Sali are not employed with the Vanuatu Government. In the future, they should not seek or receive any positions of employment with the government of Vanuatu.
9.11 Mr. Bell still presently holds a government position. Mr. Bell should resign or be terminated from this position because he has proven that he cannot uphold or enforce the laws of Vanuatu as he is required to do.
Recommendation No. 7: Mr. Vohor, Mr. Jimmy, Mr. Sali, Mr. Joy, Mr. Maniuri, and Mr. Tabiusu should turn over or reimburse to the people of Vanuatu all property received in contradiction of Paragraphs 9.7 and 9.15(c) of the Public Service Manual.
9.12 Mr. Vohor appears to have received large amounts of money from Mr. Chen. Mr. Vohor never attempted to respond to our Preliminary Report containing mention of the briefcase filled with money, thus we have assumed these facts to be correct. A bank account deposit slip dated 1 July 1997, in the amount of US$15,000(1,664,400 Vatu) confirms that Mr. Vohor received some large amounts of money. Additionally, bank records indicate Mr. Vohor received US$50,000 (approximately 6,000,000 Vatu) during August of 1997 when Mr. Chen was in Vanuatu for the third time in 1997. Mr. Vohor should turn over to Vanuatu all money and property he received as a result of his association with Mr. Chen.
9.13 Mr. Jimmy received electronic equipment, hotel accommodations, and airplane tickets (possibly including money) as a result of his relationship to Mr. Chen. Mr. Jimmy should turn over to Vanuatu all money and property he received as a result of his association with Mr. Chen.
9.14 Mr. Sali received electronic equipment and hotel accommodations as a result of his relationship with Mr. Chen. Mr. Sali should turn over to Vanuatu all property and money he received as a result of his association with Mr. Chen.
9.15 Mr. Tabiusu received: a fax machine, a photocopier, stereo tape recorder, and a sewing machine as a result of his association with Mr. Chen. All items and money Mr. Tabiusu received as a result of his association with Mr. Chen should be turned over to the people of Vanuatu.
9.16 Mr. Maniuri and Mr. Joy received hotel accommodations from Mr. Chen. Mr. Maniuri and Mr. Joy should reimburse the people of Vanuatu the value of these hotel accommodations.
Recommendation No. 8: The Council of Ministers should review the laws of Vanuatu and the powers that the Council of Ministers have under the laws of Vanuatu.
9.17 Decision No. 144 of 1994 by the Council of Ministers was an improper attempt to create or revise the law of Vanuatu. It needs to be stated here that the Council of Ministers cannot make law or revise law. Making law is a function exclusively reserved for Parliament unless otherwise granted. Decision No. 144 of 1994 is void and should be cancelled by the present Council of Ministers.
9.18 All present and future members of the Council of Ministers should know that they are not able to, by themselves, create law.
PASA TOSUSU
DIRECTOR OF INVESTIGATIONS FOR
Marie-Noelle FERRIEUX PATTERSON
OMBUDSMAN OF THE REPUBLIC OF VANUATU
7 TABLE OF CONTENTS TO APPENDICES
1. Council of Ministers criteria for selecting Honorary Council.
2. Copies of two receipts issued by Mr. Kao to Mr. Chen for $US100,000 and HK$500,000.
3. Mr. Vohor’s certificate appointing Mr. Chen.
4. Mr. Tabiusu’s letter to Mr. Kao requesting a television and video set.
5. Mr. Kao’s letter to Mr. Roberts.
6. Mr. Kao's letter to Mr. Tari explaining the US$100,000 and HK$500,000.
7. Copies of Larry Yu’s Marshall Islands Passport.
8. Mr. Yu’s Identity Card.
9. A copy of Mr. Yu’s void Diplomatic passport.
10. A series of letters relating to Mr. Yu written by Prime Minister Vohor and Foreign Affairs Minister Jimmy.
11. A copy of Mr. Jimmy’s letter requiring the issuance of Diplomatic Passports to Mr. Chen and Mr. Zha Fan Chen.
12. Diplomatic Passport D000026.
13,. Mr. Salwai's letter to then Prime Minister Korman regarding Council of Ministers Decision 144 of 1994.
14. Council of Ministers Paper attempting to revise the Diplomatic and Official Passports Act.
15. Letter from Mr. Tabiusu requesting a fax machine and mobile phone.
16. Letter from Mr. Tabiusu’s request for security badges (butches).
17. Letter from Mr. Tabiusu’s request for football uniforms.
18. Letter from Mr. Tabiusu’s request to enter into business with Mr. Chen
19. Letter from Mr. Tabiusu requesting computers.
20. Letter from Mr. Tabiusu thanking Mr. Chen for financing for a photocopy machine.
21. Letter from Mr. Tabiusu requesting personal and home goods from Mr. Chen.
22. Deposit slip of Mr. Vohor dated 1 July 1997.
23. Letter dated 1 July 1997 between Mr. Vohor and Chairman of Citizenship Commission.
24. Letter from John Mark Bell to Sergeant Teitoka.
25. Airplane tickets and receipts of Willy Jimmy.
26. Letter from Mr. Chen to Mr. Sali.
27. Letter from Sylvestre Meltetake to John Mark Bell.
28. Receipt for Mr. Vohor's currency exchange dated 13 August 1997.
29. Receipt for Mr. Vohor's currency exchange dated 14 August 1997.
30. Receipt for Mr. Vohor's currency exchange dated 18 August 1997.
31. Airplane tickets for Mr. Soksok, Mr. Maliu, and Mr. Bruno.
32. Receipt for Mr. Soksok, Mr. Maliu, and Mr. Bruno’s airplane tickets.
33. Airplane tickets for Mr. Bell.
34. Receipt for Mr. Bell’s airplane tickets.
TABLE OF CONTENTS TO RESPONSES
1. Mr. Albert Kao..............................................................................Response A
2. Mr. Larry Yu.................................................................................Response B
3. Mr. Willy Jimmy............................................................................Response C
4. Mr. George Manuiri.......................................................................Response D
5. Mr. Roy Mickey Joy......................................................................Response E
6. Mr. Manwo Kepoue......................................................................Response F
7. Mr. Sylvestre Meltetake.................................................................Response G
8. Mr. Sam Bruno.............................................................................Response H
9. Harbourview Restaurant...............................................................Response I
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[1] There is nothing to show that Mr. Kepoue was the chairman of the Citizenship Commission. In fact, the Ombudsman’s Office has
not seen any letter or notice appointing him to this post. He therefore holds no official position.
[2] Section 1 of the Ombudsman Act defines "Appropriate Authority" to mean in the case of an offense against the Public Service Act or regulations, the Department Head. In the case of an offense against the Penal Code, or any law prohibiting acts or commissions or constituting criminal offenses, the Commissioner of Police or the Public Prosecutor.
[3] Section 1 of the Ombudsman Act defines "Appropriate Authority" to mean in the case of an offense against the Public Service Act or regulations, the Department Head. In the case of an offense against the Penal Code, or any law prohibiting acts or commissions or constituting criminal offenses, the Commissioner of Police or the Public Prosecutor.
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URL: http://www.paclii.org/vu/other/ombudsman/1998/3.html