DC4050

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE 
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]
Case reference number 4774-4775 of 2018
BETWEEN
Constable Potse Talil and Constable Alus Mockley
Informant

AND
TOMAI DAVID AND KEN PEKARUI
Defendant

Boroko:  L Wawun-Kuvi 

2018:  1,7 November, 5,7 December

CRIMINAL LAW- Summary Trial-Liquor Licencing Act-Selling liquor without licence, s 98 (1) (a)-Applicable licence for NCD-Whether licence transferrable? -Whether employees can be charged for selling without licence? 

CRIMINAL LAW- Liquor Licencing Act- Powers of Search- Whether police may enter into premises without a warrant on suspicion of selling liquor without a licence?

Cases Cited
Wia v Cragnolini [2008] PGNC 172; N3523
John Alex V Martin Golu [1983] PNGLR 117 

References
Liquor (Licencing) Act 1963 (Chapter 312) 
National Capital District Liquor Licensing Law 1984
Counsel
First Constable Bernard Kilei, for the Informant
Mr Samson Tolo, for the Defendants
7 December 2018
verdict
L Wawun-Kuvi Magistrate: 
[1]	On 8 October 2018, Tomai David and Ken Pekarui found themselves in somewhat of a predicament when police officers from the Special Services Division (SSD), mobile squad 20 fronted up at their beer shops.
[2]	The beer shops are located in the premises belonging to an elusive David Morris, the proprietor of Evito Investments. Attempts to locate and charge David Morris have proven to be futile as of the date of this decision.
[3]	Police officers then entered the respective stores to check for liquor. The basis for which was that they saw drunkards around the premises. Upon entry, police saw that liquor was in the premises and was stored in a manner that led them to reasonably believe that it was being sold. 
[4]	Tomai David and Ken Pekauri were then asked to produce their respective licences to sell and dispose of liquor. Both men produced 2016 and 2017 storekeepers licences granted to Evito Investments. The licences were issued under the Liquor (Licencing) Act, 1963.
[5]	The setup is such that there is one yard or property which belongs to Evito Investments. Within that yard or property are two different shops. One shop belongs to Tomai David’s employer and the other to Ken Pekauri’s.
[6]	On that date the National Capital District Commission (NCDC) Enforcement Unit were at the same location, imposing fencing regulations. Police then requested Officers from the Enforcement Unit to verify the licences. The Officers from NCDC perused the licences and stated that the licences were not issued by NCDC. Licences issued by NCDC display a unique symbol or marking that appears when a UV light is placed over it. The Defendants licences did not have such markings when the UV light was flashed over them.
[7]	Tomai David and Ken Pekauri were then arrested on suspicion of selling liquor without valid licence and were escorted to the Gordons Police Station. At the Station they were informed to locate the store owners and the proprietor David Morris. They were given 24 hours to do so.
[8]	After the lapse of the 24 hour deadline, police returned to 5 Mile Ridge and found Tomai David stocking up the store with alcohol. Both Tomai David and Ken Pekauri were then taken to Gordons Police Station. Both men were formally charged for selling liquor without licence.
[9]	Tomai David and Ken Pekarui say that they are employees and were only running the stores for their respective employers. Police agree that they are employees but contend that they were not supposed to be selling nonetheless.
Burden of Proof
[10]	In arriving at my verdict I, remind myself that the burden rests on the prosecution to prove the guilt of the defendants beyond reasonable doubt; and should there be any defences, justifications or excuses raised on the evidence it is for the prosecution to negate those issues; the defendants are at all times presumed innocent and have no duty to establish their innocence.
The Charge
[11]	Tomai David and Tomai Pekauri were charged as follows:
On the 9 October 2018 at 5 Mile Ridge, NCD in Papua New Guinea, Tomai David aged M/A of Alukambe Village, Komo/Magarima, Hela Province, did except as is expressly provided in the Liquor Licencing Act sell liquor to with 15 x SP Bottles, 10 x SP Green Cartons, 16 x 150ml Capitan Moresby, 19 x 150ml Warrior, 3 x blue ice cartons, without being licenced to do so under the Liquor Licensing Act” in contravention of section 98 (1) (a) of the Liquor Licencing Act, Chapter 312.
And
On 9 October 2018 at 5 Mile Ridge, NCD in Papua New Guinea, Ken Pekarui aged 21 of Koge Village, Hagen Central, Western Highlands Province, did except as is expressly provided in the Liquor Licencing Act sell liquor to with 28 x SP Bottles cartons, 10 x SP Green Cartons plus 8 loose, 3x Blue New Guinea Ice Cartons plus 8 loose cans, 2 x SP White cans plus 5 loose cans, 6 x 1125ml Captain Moresby, 1 x 750ml Captain Moresby, 14 x 375ml Captain Moresby, 2 x 150ml Captain Moresby, 7x 1125ml Warrior, 6 x 750ml Warrior, 1 x 375ml Warrior, 2 x 150ml Warrior, 15 x Kundu loose can, without being licenced to do so under the Liquor Licensing Act” in contravention of section of section 98 (1) (a) of the Liquor Licencing Act, Chapter 312.
Issues
The relevant issues for me to consider are:
1.	What is the applicable law?
2.	Whether the licence was current?
3.	Whether the licence was transferrable?
4.	Whether as employees Tomai David and Ken Pekarui are captured by the provisions of section 98 (1) (a) of the Liquor (Licencing) Act, 1963?
5.	Whether entry into premises was lawful?
What is the applicable law?
[12]	There appears to be an issue between what is the applicable licence that should be issued to traders of liquor in National Capital District. NCDC Enforcement and Police are of the view that the applicable licence should be the one that is issued by NCDC pursuant to the National Capital District Liquor Licensing Law 1984. 
[13]	However, this is contrary to their choice of legislation for the charging of the defendants. Both men have been charged under the Liquor (Licencing) Act, Chapter 312, which is the national licencing law which creates the Liquor Licensing Commission, a statutory body, quite separate to National Capital District Commission. 
[14]	The licence issued to Evito Investments was issued by the Liquor Licensing Commission. That is the licence the defendants possessed. 
[15]	Another law that governs the issuance of licence in NCD is the National Capital District (Delegated Committee) Regulation 1991. This law and the National Capital District Liquor Licensing Law 1984 were discussed in the case of Wia v Cragnolini [2008] PGNC 172; N3523. In Wia v Cragnolini His Honour Justice Cannings found that both laws regulate the sale and distribution of liquor in NCD. However he stated that the 1991 regulations have by implication repealed the 1984 law. 
[16]	In returning back to the present matter, the Liquor (Licencing) Act, Chapter 312 has not been repealed, as such there is nothing preventing the issuance and use of the licence to shop keepers and or owners of premises in NCD. Consequentially, Police and NCDC cannot say that the use of licences issued under the Liquor (Licencing) Act is not proper as the licences are issued under a valid law. 
[17]	As it stands there are three laws that govern the issuance of liquor licences in National Capital District.
[18]	Police have to mindful of the various laws that are applicable and charge accordingly.
[19]	I find that Evito Investments had a valid licence issued by a body empowered by the law to issue licences to trade liquor.
[20]	However, a separate issue arises, that being whether the National Capital District is a gazetted Licencing District for the purpose of the Liquor (Licensing) Act. S 4 of the Liquor (Licencing) Act 1963, provides that the Minister by National Gazette declares a Licencing District for the purpose of the Act. In the present case, the National Capital District was created well after the 1963 law. There is no gazettal notice declaring National Capital District as a Licensing District for the purpose of the Liquor (Licensing) Act.
[21]	Consequential effect one therefore could argue is twofold (1) Evito Investments and indeed the employers of the Defendants did not have the proper licences to trade within National Capital District and therefore were selling liquor illegally unbeknown to them. (2) The police have laid a charge for a law that is not applicable to NCD and therefore the information is defective.
[22]	S 4 is drafted in a manner that the Minister has discretion. It is left therefore to interpretation as to what the law actual means. And that is a matter that it left within the realms of the higher Courts to settle. 
[23]	For the present purpose, the licence that was issued by Evito Investment is proper.
Is the licence current?
[24]	The licence may be correct for the purpose of the charges however, the question is whether it was current on the date of presentation?
[25]	The licences issued under the Liquor (Licencing) Act are issued on an annual basis. The Act only states that the Commission sits once every 12 months to determine licences. The times and dates of the meeting are determined by the Chief Licencing Officer.
[26]	The licence once granted takes effect from the date of issue or the date stated on the licence and is renewed from year to year on application to the Liquor Licencing Commission.
[27]	There is no right of renewal to a licence holder.
[28]	The licence if not cancelled or becomes void remains in force until the last day of the month after the sittings of the Commission. So if the Commission sits in August, the licence would be valid up until 30 September. 
[29]	However, the Act is silent on what month the Commission sits annually but rather leaves it to the discretion of the Commissioner. 
[30]	In relation to the case on hand, a reasonable inference can be drawn from the licence exhibited as A and B issued to Evito Investment for the years 2016 and 2017 that the annual sittings are in September of each annual year. That being the month that both licences were issued in the years 2016 and 2017.
[31]	So therefore, the licence was current. Because s 29 (3) (b) states that expiration is on the last date of the month after the sittings. Police arrested the Defendants for selling liquor on 9 October 2018. The licence would have expired on 31 October.
Is the licence transferrable?
[32]	Although the licence is for the premises, the employers of Tomai David and Ken Pekarui have to have their own shop keepers licence to sell and dispose alcohol. They must apply jointly with Evito Investments as the occupants of the premises. Simply relying on Evitio Investments’ licence is not legal.
[33]	Therefore, in this case, although the licence issued to Evito was valid until 31 October 2018, the employers of Tomai David and Ken Pekarui did not have licence to trade.
[34]	The employers were therefore selling liquor illegally although on a licence premises.
Can employees being charged?
[35]	Pursuant to section 98 (2) of the Act, the charge of selling without a licence does not apply to an employee who sells or disposes of the liquor on a licenced premises on behalf of the licence holder. Simply put, police cannot charge an employee who was just doing his job.
[36]	More so, the evidence by the prosecution which was not challenged was that Tomai David and Ken Pekarui are not employees of Evito Investment but rather of other individuals who are leasing from Evitio Investment.
[37]	As it was not disputed that both Defendants were not the owners, they cannot be held liable for the failure of their employers for not obtaining the right licences. And in fact police should have charged the employers rather their employees.
Whether entry into premises was lawful?
[38]	There are two circumstances with two different procedures that allow for the entry of an Inspector or for a police officer to enter into premises that is selling liquor.
1.	Licenced Premises
Only an Inspector or a commissioned officer of the Police can demand entry and can enter into and search the premises at any time. If entry is refused or delayed the Inspector or commissioner officer of the police can break into the premises.
It is noted that entry is not automatic, meaning police cannot just simply break into the premises, they must first ask. 
2.	Unlicensed Premises
The entry into an unlicensed premise can only be gained by way of a search warrant obtained through an information from a commissioned officer of the police or by any other credible person.
[39]	In the present case police did not know whether the premises was licenced or not. Upon being informed by NCDC that it was not a licenced premises on that date and not having a commissioned officer present with them, the proper process was for them to obtain a search warrant or to go bring back a Commissioned Officer.
[40]	I find that the entry into the premises was therefore unlawful.
Whether a case may be sustained against Evito Investment or the Employers of the Defendants?
[41]	I answer in the negative. As the entry into the premises which led to the discovery of the alcohol was unlawful, any exhibits obtained therein cannot be admitted into evidence. In the absence of any other evidence, as it stands there is therefore no evidence showing that liquor was being kept on the premises.
[42]	I refer to and adopt the case of John Alex v Martin Golu [1983] PNGLR 117, the infamous “blue bag case”. In that case the defendant premise was searched without a search warrant. Inside the premises was found a blue bag. Inside the bag was marijuana. The magistrate admitted into evidence the bag although it was obtained illegally. The defendant filed an application to the National Court for enforcement of his rights under section 57 of the Constitution. The National Court found that where property was obtained unlawfully it should not be admitted and returned to its owner.
[43]	It must be noted that any enforcement of rights under section 57 can only be made by application to the National Court. 
[44]	I raise this issue only to outline the serious repercussions of police not complying with provisions of the law when conducting their duties. This is also done in the hope that the relevant bodies such as NCDC ensure that the enforcement of liquors laws are done correcting in accordance with legal processes.
Conclusion
[45]	As there is no other evidence establishing that there was alcohol kept on premises, which is the foundation of the charge, I find that the information has not been proved. The Defendants are acquitted of the charges against them.
[46]	It is a matter for NCDC and the police to follow the appropriate process to confiscate the items in the event the defendants, their employer or the proprietor do not have the appropriate licences or permits.
[47]	As to the issue by Mr Tolo that McGreggor Police Barracks is not a proper place to keep the alcohol. The Liquor Act gives power for police to store at any place deemed safe until it is brought to a District Court. 
Orders:
[48]	The Orders of the Court are as follows
1.	The Informations are dismissed
2.	 The defendants are acquitted.
3.	Bail is refunded.
4.	The exhibits are to be returned to the defendants.
Lawyer for the Informant Police Prosecution 
Lawyer for the Defendants Jerewai Lawyers