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THE BELIZE TIMES (vii)
16 FEB
2014
Penner admitted after the fact that the person for whom he signed the application for was not Won Hong Kim.
For reasons which follow, we are of the view that this email amounts to a confession statement which is admissible in a court of law by virtue of the Electronic Evidence Act and which can be used against the maker, Elvin Penner, at a criminal trial.
7th February, 2014 Mr. Allen Whylie Commissioner of Police Belmopan City Belize Dear Commissioner, Re: Investigation & Prosecution of Hon. Elvin Penner As you will know, for some time now, the nation’s eyes have been rivetted on the ongoing police investigation into the issuance of Belizean Nationality Certificate No. 28577/13 dated the 22nd April, 2013 to South Korean Won Hong Kim, and the issuance of Belize Passport P 0246777 issued to the said Won Hong Kim on the 9t11 day of September, 2013. We have been instructed by the Leader of Opposition, Honourable Francis Fonseca to write to you on this matter of national importance. This measure is taken having regard to the fact that five months have passed and the investigation continues. This poses grave concern to our client, who has a constitutional responsibility to, among other things, ensure that the rule of law is upheld in this country. In this regard, we commend to you the pronouncements of the Privy Council in a case from Trinidad & Tobago, that: “The rule of law requires that, subject to any immunity or exemption provided by law, the criminal law of the land should apply to all alike. A person is not to be singled out for adverse treatment because he or she holds a high and dignified office of state, but nor can the holding of such an office excuse conduct which would lead to the prosecution of one not holding such an office. The maintenance of public confidence in the administration of justice requires that it be, and be seen to be, even-handed.” Sharma v Brown (DPP), Virgil (Asst. Commissioner of Police) & Paul (Commissioner of Police) {2006} UKPC 57. It is our considered view, which we detail hereunder, that there is more than prima facie evidence which presently exists and for which criminal charges at this stage, ought to be brought against Hon Elvin Penner for commission of an offence under the Passport Act. Because the offence under the Passports Act is a summary offence, it is important that the necessary steps be taken to initiate criminal proceedings before the expiry of the six months limitation period in March, 2014. The Background Government Press Release As you will know as well, on the Thursday the 19th day of September, 2013, no less than the Office of the Prime Minister of Belize, by way of press release, announced that Hon. Elvin Penner was being forced to resign as a Minister of State in the current Administration as a result of Penner’s failure to “discharge his responsibilities with either the due judgment and balance, or the scrupulous regard for appearances, which the Prime Minister demands of all his Ministers.” In the same press release, the Office of the Prime Minister informed that an investigation was to be conducted into the circumstances surrounding the issuance of a Belize passport to a South Korean national: for ease of reference kindly find press release enclosed. Penner’s email to the media Hon. Elvin Penner, for his part, on the 27th day of September, 2013 sent an email to all media outlet. We have been able to obtain a copy of the said email sent to the news director of channel 5 and enclose a copy herein for ease of reference. In the said email, Hon. Penner sought to explain his role in the issuance of the passport to the South Korean national for which he was fired from Cabinet. Penner explained, in relevant parts, that: “What I do know is that a [sic) Asian person whom I have known through business trips, even before I entered politics, came to me for a signature so he could get his passport. He also mention that he needed it urgently since he was about to go on a trip and was more than willing to pay the regular one day service fee. The picture on the nationality document he presented to me, the Korean passport that he had with him and the passport size pictures that I also signed did not raise any suspicion since they were all of the same person, the person I knew as Mr. Kim. Wanting to help a business person I made sure that everything was in order on the application form and personally went with him to the passport office to see to it that he would get proper attention and would get his passport the same day. Now having seen the picture who is said to be Wonhong Kim on the news, who has been detained in Taiwan for some time now, it has become clear to me that the person for whom I signed the application for could never have been Mr. Wonhong Kim.” The statement reveals several important facts: (i) That an Asian friend of Penner came to him wanting a passport recommendation [legally referred to as Form 3-B Declaration of Recommender for Belize Passport Application]; (ii) Penner accompanied this Asian friend to the Nationality and Immigration Department to assist him in getting the passport the same day; (iii) Penner states that he made sure everything was in order on the application form; (iv) The name of the applicant on the form was Won Hong Kim; (v) Penner signed the passport recommendation declaration form on the 3rd September, 2013 verifying that he knew the applicant for three years: see Form 3-B enclosed as well; (vi) Won Hong Kim was not the person who accompanied Penner at the Immigration & Nationality Department.
Prime Minister’s statement in the House Then at a House of Representatives Meeting on the same Friday the 27th September, 2013, the Prime Minister stated: “With respect to the Nationality Section of the department the situation is completely different. It is the Minister who signs the nationality certificate. He doesn’t issue the passport but he signs the nationality certificate. In this case the nationality certificate that was involved in the whole chain of events that saw this South Korean national obtains the Belize passport. That nationality certificate was signed by Hon. Penner. Therefore, how are you going to look at the officers in the Nationality Section. They didn’t do anything except to provide the file in the normal course when the Minister calls for the file. They didn’t have to sign the nationality certificate. That is the reason why there is no focus on the Nationality Section in a way that can see the suspension of any of the officers there. In other words, who has had to fall on their sword with respect to nationality is the Minister of State and this administration will not in fact preside over a process where public officers are made to take the fall for the actions of politicians.” “The distinction as I said with respect to the Passport Section is that absent anything that the Minister had to do. There were requirements that they needed to follow and it appears from the investigation so far that those requirement weren’t completely followed.” “Hon. Penner signed this nationality certificate on the 9th of September. That certificate was dated 22nd of April. Hon. Penner said that he signed the certificate without dating it- something that I often do and so the question of who backed dated that certificate remains very much in issue.” “There can be no question in my mind of charging the Minister or the ex-Minister in any criminal way because on the face of it all appeared to be in order with respect to the nationality certificate, absent this issue of the date. Whether you believe him or not that he didn’t put in the date of April 22nd you will never be able to establish that in fact he didn’t.” “The thing is that what you can’t prove is very much in issue. What was eminently provable and what was obvious was enough for me to do what the duties of my office and what my commitment to the people of this country required me to do which is to get rid of Hon. Penner. I did so with a heavy heart. He is a colleague and there is no doubt that his actions have brought shame to this administration and he is paying the price. “ “What we would not do is try to cover over the actions of any minister.” ‘’Mr. Speaker, I will again apologize to the people of this country because one of my ministers has let down his colleagues, has let down the Cabinet and has let down the country.” [Extract taken from Channel 7 news of September 27th, 2013]. While the Prime Minister flatly rules out the possibility of criminal charges against Penner, he revealed that Penner signed the nationality certificate for Won Hong Kim on the 9th September, 2013, but the certificate was backed dated to the 22nd April, 2013. And it was this same nationality certificate that was used as the basis for the passport application of the person (purportedly impersonating Won Hong Kim) who accompanied Penner to the Immigration and Nationality Department. Thus, if Penner, by his own admission, had checked to see all the documents were in order, he would have noted that the nationality certificate he signed on the 9th September, 2013 was back-dated (by someone with obvious criminal intent). Interview given by Minister of Immigration to Jules Vasquez Then on the 2nd day of October, 2013, the Minister of Immigration, Senator Godwin Hulse gave an in depth interview with channel 7’s Jules Vasquez (a copy of which is enclosed) in which he revealed, most fundamentally, that Won Hong Kim never set foot in Belize. The Law Having considered the above, we now consider whether any offences would have been committed under the Belize Nationality Act or the Passports Act. Commission of offence under the Belize Nationality Act? By section 22 of the Belize Nationality Act, it is an offence for “Any person who, for the purpose of procuring anything to be done or not to be done under this Act, makes any statement which he knows to be false in a material particular commits an offence and shall, on conviction after summary trial before a magistrate, be liable to imprisonment for a term not exceeding twelve months.” It is a condition precedent, as required by section 10 of the Belize Nationality Act, that a person (amongst other things) must have been ordinarily resident in Belize for a period of five years immediately before applying for Belize Nationality. But Minister of Immigration Hulse confirmed that Won Hong Kim never set foot in Belize. Accordingly, section 22 would have been contravened in respect of the issuance of Belizean Nationality Certificate No. 28577/13 dated the 22nd April, 2013 to South Korean Won Hong Kim. Admittedly, there will be difficulty in pursuing criminal charges against any person in respect of the commission of this offence since (it is understood), no Belize Nationality Application file and supporting documents can be found at the Nationality & Immigration Department. Commission of offence under the Passports Act? Section 3(1)(h) of the Passports Act states that: “(1) Every person who, in respect of every passport(h) without having actual knowledge of the applicant for a passport, makes any declaration verifying the declaration of such applicant, or Continued on page 17