Commercial Crime

General Overview and Trends

Commercial crimes in Fiji encompass various illegal activities within the business and commerce sectors. These crimes can have significant economic implications, undermine trust in the market, and harm businesses and individuals. Commercial crimes are often driven by financial motives and involve deceit, fraud, corruption, and other unlawful activities.

Commercial crimes are often referred to as white collar crimes and are financially motivated, nonviolent crime committed by businesses and government professionals which can be devastating to you personally and can put your position or business at risk.

Legal Framework and Scope

In Fiji, commercial crimes are primarily addressed under the Crimes Act 2009, Financial Transactions Reporting Act 2004, Proceeds of Crime Act 1997, Cybercrime Act 2021 and other relevant legislation which cover a wide range of offences related to fraudulent activities, dishonesty, and financial misconduct in commercial transactions. The Fiji Police Force, Fiji Independent Commission Against Corruption (FICAC), Office of the Director of Public Prosecutions and other enforcement agencies are responsible for investigating and prosecuting commercial crimes. Additionally, the Reserve Bank of Fiji regulates financial institutions and plays a role in combating money laundering and financial crimes.

Liability

Individuals or entities involved in commercial crimes can face legal liability in Fiji. Liability may extend to both natural persons and corporate entities, depending on their involvement, intent, and responsibility in committing the offence.

Specific Offences

Fraud

Legal Framework and Scope

Fraud is primarily addressed under the Crimes Act 2009, encompassing a range of deceptive practices such as deceit, misrepresentation, forgery, obtaining property through deception, general dishonesty, gaining a benefit through false pretenses, and other fraudulent activities. Reported cases include fraud against employers, internet banking fraud, and the use of counterfeit payment instruments like cheques for purchases.

Instances of business email compromise have notably led to significant financial losses for local businesses, with funds often being transferred to overseas bank accounts, making them inaccessible for laundering within Fiji. Internet advance fee fraud and scams are prevalent, resulting in local victims losing money to perpetrators located abroad.

Enforcement

The Fiji Police Force, FICAC, Financial Intelligence Unit and ODPP are responsible for investigating and prosecuting fraud cases.

Sanctions

Penalties for fraud can include imprisonment, fines, or both, depending on the severity of the offence. The most prevalent offences involving fraudulent conduct and white-collar crimes with their penalties are:

Obtaining property by deception – section 317 of the Crimes Act 2009

Maximum Penalty: 10 years imprisonment

Tariff: 2 to 5 years imprisonment with the minimum being reserved for minor spontaneous cases with little deception. The higher end of the tariff is recommended for serious, well planned and cynical operations.

Obtaining a financial advantage by deception – section 318 of the Crimes Act 2009

Maximum Penalty: 10 years imprisonment

Tariff: 2 to 5 years imprisonment

General dishonesty – obtaining a gain – section 323 of the Crimes Act 2009

Maximum Penalty: 5 years imprisonment

General dishonesty – causing a loss – section 324 of the Crimes Act 2009

Maximum Penalty: 5 years imprisonment

Tariff: the tariff for causing a loss under section 324 is from a suspended sentence to 4 years with suspended sentences to be passed for very small losses caused unwittingly. Causing a loss when proved in conjunction with a generating corruption offence will attract the higher tariff of 4 to 5 years.

Corruption including Bribery

Legal Framework and Scope

Corruption and bribery offences in Fiji are covered by the Crimes Act 2009 and Prevention of Bribery Act 2007.

These offences involve offering, giving, receiving, or soliciting bribes or engaging in corrupt practices in business or public sector transactions. Such acts undermine fair competition, public trust, and the integrity of commercial activities.

Enforcement

The Fiji Independent Commission against Corruption (FICAC) is the primary authority responsible for investigating and prosecuting corruption-related offences in Fiji.

Sanctions

Penalties for corruption and bribery can include imprisonment, fines, or both, depending on the nature and gravity of the offence.

These are outlined below:

Bribery – section 4 of the Prevention of Bribery Act
Bribery for giving assistance in regard to contracts – section 5 of the Prevention of Bribery Act
Bribery for procuring withdrawal of tenders – section 6 of the Prevention of Bribery Act
Bribery in relation to auctions – section 7 of the Prevention of Bribery Act
Bribery of public servants by persons having dealings with public bodies – section 8 of the Prevention of Bribery Act

Maximum Penalty: section 12 of the Prevention of Bribery Act provides the maximum penalty for all the bribery related offences:

General Offences (excluding Section 3 offences)

On conviction on indictment:

Section 10 offence: Fine of $100,000 and imprisonment for 10 years
Section 5 or 6 offence: Fine of $500,000 and imprisonment for 10 years
Any other offence under this part: Fine of $8,000,000 and imprisonment for 7 years

On summary conviction:

Section 10 offence: Fine of $500,000 and imprisonment for 3 years
Any other offence under this part: Fine of $100,000 and imprisonment for 3 years
Additionally, the court will order the offender to pay the amount or value of any advantage received to the specified person or public body

Offences under Section 3:

On conviction: Fine of $100,000 and imprisonment for 1 year
The offender will also be ordered to pay the government the amount or value of the advantage received, as directed by the court

Additional Penalty for Section 10(1)(b) Offences:

The court may order the offender to pay the government
A sum not exceeding the amount of unexplained pecuniary resources.
A sum not exceeding the value of unexplained property
This order can be enforced like a High Court civil judgment

Receiving a Corrupt Benefit section 137 of the Crimes Act

Maximum Penalty: 5 years imprisonment

Tariff: there is no set tariff but courts usually pick a starting point of 30 months

Money Laundering

Legal Framework and Scope

Money laundering offences in Fiji are primarily addressed under the Proceeds of Crime Act 1997. Money laundering involves engaging in financial transactions to conceal the origins of illegally obtained money. This crime typically aims to legitimise proceeds from illegal activities by making them appear as legitimate funds. The crimes that provide threat for money laundering in Fiji are:

Tax evasion, tax fraud and related offences
Drug related offences (import, cultivation, manufacture, trafficking)
Corruption, bribery and related offences
Robbery and theft
Fraud & forgery including cybercrime
Environmental crime

While environmental crime, in particular, illegal fishing, generates substantial illicit proceeds for offenders, much of these funds are laundered in foreign jurisdictions.

Other criminal activities that generate small to very small threats for money laundering in Fiji include human trafficking, privacy and copyright offences, counterfeiting and piracy of products.

Enforcement

The Financial Intelligence Unit and relevant enforcement agencies are responsible for investigating and prosecuting money laundering and breaches of financial sanctions. They work in cooperation with other domestic and international law enforcement agencies to enforce these laws.

Sanctions

Penalties for money laundering and breach of financial sanctions can include imprisonment, fines, seizure of assets, and other regulatory measures.

Money Laundering – section 69 of the Proceeds of Crime Act 1997 defines money laundering as:

Engaging in transactions with proceeds of crime
Handling, concealing, or using proceeds of crime
Concealing the origin of illicit money or property
Assisting others in these activities

Knowledge Requirement: the person must know or reasonably should know the money or property is from unlawful activity.

Proof Requirement: does not require proof of the underlying serious offence.

Maximum Penalty: if the offender is a natural person, a fine not exceeding $120,000 or imprisonment for a term not exceeding 20 years or both or if the offender is a body corporate, a fine not exceeding $600,000.

Tariff: the Supreme Court in Shyam v The State [2022] FJSC 40; CAV0024.2019 (26 August 2022) has set the tariff between 5 to 12 years imprisonment which was also confirmed by the Court of Appeal in Naidu v State [2023] FJCA 108; AAU93.2018 (14 June 2023).

Embezzlement

This refers to the misappropriation or theft of funds or assets entrusted to someone’s care, often involving employees or individuals in positions of trust within an organisation.

Section 303 of the Crimes Act 2009 defines embezzlement by a post office officer as a summary offence if they steal or embezzle a postal packet in transit. The penalties are:

(a) If the packet contains chattel, money, or valuable security: imprisonment for 10 years.

(b) In all other cases: imprisonment for 5 years.

For embezzlement of postal packets, the following definitions apply under section 304 of the Crimes Act 2009:

(a) A postal packet is considered to be in transmission from the time it is delivered to a post office until it is delivered to or collected by the recipient.

(b) Delivering a postal packet to a letter carrier or authorised person for the post is considered a delivery to a post office.

(c) Delivering a postal packet to the recipient’s house, office, or authorised person is considered delivery to the recipient.

Counterfeiting

Counterfeiting involves the production or distribution of counterfeit goods or forged documents, such as counterfeit currency, fake brand-name products, or falsified identification documents.

Section 163 of the Crimes Act 2009 provides definitions for terms used in the context of coins and currency notes

Copper coin: includes coins made of any metal or mixed metal that are not gold or silver.

Current coin: defined as a coin that has been minted in an approved Mint in a Commonwealth country or is legally in circulation by proclamation or otherwise in any Commonwealth country or foreign country.

Resembling current coin: a coin intended to resemble or pass for a current coin is deemed to resemble that coin.

False or counterfeit coin: a current coin that has been altered to resemble a coin of higher denomination (gilt, silvered, etc.) is considered false or counterfeit.

Currency note: includes any note used as legal tender in Fiji or any other country.

Section 164 of the Crimes Act 2009 addresses counterfeiting. A person commits an indictable offence if they falsely make or counterfeit any coin resembling a current coin or any currency note used in Fiji or any other country. The penalties are:

(a) For a currency note or a coin resembling a gold or silver coin: life imprisonment.

(b) For a coin resembling a copper coin: imprisonment for 7 years.

The offence is considered complete even if the counterfeit note or coin is unfinished, imperfect, or unfit for use.

Section 165 of the Crimes Act 2009 defines offences related to altering coins to resemble or pass for higher denomination coins.

Offences:

Gilding, silvering, or coloring any coin to resemble a current gold or silver coin.
Modifying metals fit for coining into false coins resembling current gold or silver coins.
Gilding or coloring a current silver coin to resemble a current gold coin.
Filing or altering current silver or copper coins to resemble current gold or silver coins.

Penalty: imprisonment for life

Section 166 of the Crimes Act 2009 outlines offences related to counterfeit coins and currency notes.

Section 166(1) offence: tendering, uttering, or presenting counterfeit coins or currency notes in a transaction, knowing they are counterfeit.

Penalty: imprisonment for 5 years

Section 166(2) offence: as above, plus possessing more counterfeit money at the time or committing the same act within 10 days.

Penalty: imprisonment for 2 years

Section 166(3) offence: possessing three or more counterfeit coins or currency notes, knowing they are counterfeit, with intent to use them.

Penalty: imprisonment for 5 years

Section 167 of the Crimes Act 2009 addresses importing and exporting counterfeit currency.

Offence: importing, receiving, exporting, or placing counterfeit coins or currency notes on a vessel for export, knowing they are counterfeit, without lawful authority.

Penalty: imprisonment for 7 years

Note: this section does not affect existing customs laws on coin and note importation.

Section 168 of the Crimes Act 2009 makes it a summary offence to possess implements for counterfeiting coins or currency notes, or to engage in activities related to counterfeiting them.

Penalty: imprisonment for 7 years

Section 169 of the Crimes Act 2009 simplifies the process of proving that a coin or currency note is counterfeit by allowing any credible witness to provide evidence of its falsity.

Section 174 of the Crimes Act 2009 allows a written report in the form of an affidavit from a qualified expert in coins, bank notes, or currency notes to be used as evidence in cases where a person is charged with an offence related to counterfeiting.

Section 175 of the Crimes Act 2009 mandates the forfeiture of seized forged bank notes, currency notes, counterfeit coins, or tools used for forgery upon delivery to the Minister or authorized person, as ordered by the court.

Drug Related Offences

Marijuana cultivation and trafficking remain significant sources of illicit income in Fiji. Rural farmers outside of Viti Levu, the main island, grow marijuana to supplement their agricultural earnings. Profits from marijuana sales are typically spent on consumer goods. Fiji also serves as a transit point for drugs from the US and South America destined for Australia and New Zealand. Recent reports indicate an uptick in intercepted cocaine and meth shipments in Fijian waters, reflecting an increase in both quantity and value. Much of the money associated with imported hard drugs is sent abroad to suppliers and international crime syndicates. Locally, there is a growing trend in cocaine and methamphetamine use, fueled in part by traffickers using these drugs as payment to local contacts who then distribute them within Fiji. This cycle contributes to the illicit flow of funds within the country.

For the offences and penalties related to drug offences under the Illicit Drugs Control Act 2004, please refer to our Criminal Law product.

Cybercrime

The Cybercrime Act 2021 came into force in Fiji on 14 November 2022. After its commencement, sections 336 to 346 of the Crimes Act which deal with computer offences are repealed. The Cybercrime Act 2021 deals with offences like computer hacking, identity theft and online fraud. The tariffs for offences under the Cybercrime Act 2021 are yet to be established by the courts in Fiji. However, their maximum penalties are:

Unauthorised access to computer systems – section 5 of the Cybercrime Act 2021

Maximum Penalty: in the case of an individual, a fine not exceeding $10,000 or imprisonment for a term not exceeding 5 years or both. In the case of a body corporate, a fine not exceeding $50,000.

Unauthorised interception of computer data or computer systems – section 6 of the Cybercrime Act

Maximum Penalty: in the case of an individual, a fine not exceeding $50,000 or imprisonment for a term not exceeding 10 years or both and in the case of a body corporate, a fine not exceeding $100,000.

Unauthorised acts in relation to computer data or computer systems – section 7 of the Cybercrime Act

Unlawful supply or possession of computer system or other device, or computer data or computer program – section 8 of the Cybercrime Act

Computer related forgery – section 9 of the Cybercrime Act

Maximum Penalty: in the case of an individual, a fine not exceeding $10,000 or imprisonment for a term not exceeding 5 years or both and in the case of a body corporate, a fine not exceeding $50,000.

Computer related extortion and fraud – section 10 of the Cybercrime Act

Identity theft – section 11 of the Cybercrime Act

Theft of telecommunication services – section 12 of the Cybercrime Act

Disclosure during an investigation – section 13 of the Cybercrime Act

Failure to provide assistance – section 14 of the Cybercrime Act

Maximum Penalty: in the case of an individual, a fine not exceeding $5,000 or imprisonment for a term not exceeding 2 years or both and in the case of a body corporate, a fine not exceeding $50,000.

Frequently Asked Questions

When can corporate entities, shareholders, directors and senior executives be held liable for commercial crimes in Fiji?

In Fiji, corporate entities, shareholders, directors, and senior executives can be held liable for commercial crimes under certain circumstances. The specific liability and legal responsibility can vary based on the nature of the offence and the provisions of the relevant laws.

Some situations in which these individuals may be held liable for commercial crimes:

Vicarious Liability

Corporate entities can be held vicariously liable for the actions of their employees or agents if those individuals commit commercial crimes in the course of their employment or agency. The principle of vicarious liability holds the corporate entity responsible for the wrongful acts of its employees or agents, even if the entity itself did not directly engage in the criminal conduct.

Directors and Senior Executives

Directors and senior executives may be personally liable if they are found to be directly involved in or have knowledge of the commission of a commercial crime. They have a duty to act in the best interests of the company and to ensure compliance with applicable laws and regulations. If they participate in, authorize, or fail to prevent fraudulent activities or financial misconduct, they may be held accountable.

Regulatory Offences

Corporate entities, shareholders, directors, and senior executives can be held liable for regulatory offences related to commercial activities. These offences may include failure to comply with reporting and disclosure requirements, breach of corporate governance obligations, or violation of specific industry regulations.

Knowing Participation or Consent

Individuals who knowingly participate in or facilitate commercial crimes, such as fraud or money laundering, can be held individually liable. This includes individuals who provide assistance, advice, or resources that enable the commission of the offence.

It is important to note that liability for commercial crimes can be complex, and specific legal advice should be sought to understand the potential liability in a particular situation. It is recommended for corporate entities, shareholders, directors, and senior executives to ensure they have appropriate internal controls, compliance programs, and legal counsel to mitigate the risk of commercial crimes and to address any legal obligations they may have.

Can corporate entities be held criminally liable?

In Fiji, corporate entities can be held criminally liable under the Crimes Act of 2009. The Crimes Act sets out various offences for which corporations can be held responsible. These offences include but are not limited to fraud, bribery, corruption, money laundering, environmental crimes, and occupational health and safety violations.

Under Part 8 of the Crimes Act, sections 51 to 62 which deal with corporate criminal responsibility, a corporation can be deemed criminally liable for offences committed by its employees, agents, or officers if it can be established that the offence was committed with the corporation’s consent, connivance, or attributable to its neglect. This means that if an individual within the corporation commits a criminal offence while acting within the scope of their employment or authority, the corporation itself can be held accountable.

Are there any proactive compliance requirements corporate entities must meet to prevent corruption, both in general and for particular industries?

General Compliance Requirements

Prevention of Corruption: Corporate entities in Fiji are expected to establish internal controls, policies, and procedures to prevent corruption. This includes adopting measures to detect and prevent bribery, kickbacks, embezzlement, and other corrupt practices.

Bribery Offences: Companies must ensure compliance with anti-bribery laws. Offering, giving, receiving, or soliciting bribes, both domestically and internationally, are criminal offences. Companies should have policies in place to prohibit bribery and provide training to employees on ethical conduct.

Record-Keeping: Maintaining accurate financial records is essential. Companies are required to keep proper books and records that fairly reflect their financial transactions. These records should be retained for a specified period, typically several years, as mandated by relevant laws.

Whistleblower Protection: It is encouraged for corporate entities to establish mechanisms to encourage employees and stakeholders to report any suspicions of corruption or unethical behavior. Protecting whistleblowers from retaliation is an important aspect of compliance.

Industry-Specific Requirements

Certain industries may have additional compliance requirements in Fiji. For example:

Financial Sector: Banks, financial institutions, and other entities in the financial sector are subject to regulatory frameworks. These regulations aim to prevent money laundering and the financing of illegal activities.

Public Procurement: Entities involved in public procurement are expected to adhere to transparent and fair processes. Compliance requirements may include competitive bidding, disclosure of conflicts of interest, and the use of standard procurement procedures.

Are the payment and receipt of facilitation payments criminal offences? If so, are there any exceptions?

In Fiji, the payment and receipt of facilitation payments are generally considered criminal offences. Facilitation payments, also known as “grease payments” or “facilitating payments,” are small bribes given to expedite or secure routine government actions or services that a person or business is legally entitled to receive. These payments are typically made to low-level officials to ensure the performance of their duties or to obtain preferential treatment.

The Prevention of Bribery Act 2007 criminalizes various forms of corruption, including the offering, giving, receiving, or soliciting of bribes. This act applies to both public and private sector bribery offences. Under the Act, facilitation payments are generally considered illegal, as they involve giving or receiving a bribe. There are no explicit exceptions or provisions that specifically exempt facilitation payments from being considered criminal offences in Fiji.

Commercial Crime