DC6021

PAPUA NEW GUINEA
[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

COM NO 1604-1605 OF 2019
CB NO 8093 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:

JOE KAMBIAN
[Defendant]

His worship Paul P. Nii

30 June 2021

COMMITTAL PROCEEDINGS: -Charges- False Pretense to Defraud -Section 404 (1)(a) – Misappropriation of Property-Section 383A(1)(a)- of the Criminal Code Act 1974, Chapter No. 262. Police HUB must deliver prima facie satisfactory evidence explaining to all the elements of the charges to commit the Defendant to stand trial in the National Court.

EVIDENCE: Lawful requirement for prima facie case-Existence of the fundamentals of the charges of False Pretense and Misappropriation of Property– Elements satisfied for Misappropriation of property-Element not satisfied for false Pretense. Evidence is fitting to commit the Defendant to stand trial in the National Court on one charge. There is satisfactory evidence on the elements of one charge for criminal purposes but not the other.

PNG Cases cited:

Akia v Francis [2016] PGNC 335; N6555  (24 August 2016)
Yarume v Euga [1996] PGNC 24;  N1476  (6 September 1996)
Police v Koka [2021] PGDC 53; DC6010 (31 May 2021)
State v IPuke (No 2)[2010] PGNC 32,

Overseas cases cited: 
Nil

References

Legislation
Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40
Cyber Crime Code Act 2016

Counsel
Police Prosecutor: 	Sgt Polon Koniu					For the Informant
Mr. Kolowei, 		Public Solicitor					For the Defendant

DECISION ON SUFFICIENCY OF EVIDENCE

30th June 2021

INTRODUCTION

NII, Paul Magistrate. This is my decision on whether a prima facie case is demonstrated within the connotation of Section 95(1) of the District Court Act 1963, after evidence in the Police Hand Up brief and Defense case is judiciously considered. On 27th June 2021, Mr Kolowei for the Defendant made an oral application for the court to consider their submission on insufficiency of evidence filed dated the 13th May 2021, and make a ruling. Police Prosecutor requested the court to pursue the police hand up brief that was tendered on 19th March 2021, and make a ruling and therefore now is my decision on committal.  

CHARGE
	
1.	Defendant is charged with one count each of False Pretense infringing Section 404 (1)(a) and Misappropriation of Property contravening Section 383 A(1)(a) of the Criminal Code Act 1974, Chapter No. 262. 

FACTS

2.	Police information states the Defendant is recognized as 52 years old of Longo village, Mendi, Southern Highlands Province. Police allege the Defendant submitted an expression of interest to the Immigration Ministry to provide uniforms for its staff. The Ministry then approved the Defendant’s interest letter and subsequently a cheque of K41, 250, was raised and made payable to the Defendant.

3.	 Police say Defendant nevertheless did not deliver the staff uniform and he delayed delivery for some time. Staff members when following up about the progress of the uniform delivery, the Defendant kept on advising them that the delivery of uniforms should be done anytime. However, after many attempts the Defendant presented no sign of delivery and hence an official complainant was lodged with police and he was subsequently arrested on 17th October 2019, for False Pretense infringing Section 404 (1)(a) and Misappropriation of Property contravening Section 383 A(1)(a) of the Criminal Code Act 1974, Chapter No. 262. 

ISSUE

4.	The main issue for deliberation by the court is whether a prima facie case is judiciously established and that is whether Police evidence in the Police file is sufficient to commit the Defendant.

THE LAW 

The Law on Committal Proceedings

5.	Sections 94 to 100 of the District Court Act 1963, delivers the reliable basis for Committal Proceedings. The court must be pleased that the elements of the charges are presentable so that the court will weigh each and every element to make a decision on evidence. 

6.	 In Akia –v- Francis the National court labels the committal hearing as  “is an administrative process” where evidence in the police file is assessed to make sure there is sufficient evidence matching each and all the elements of the allegation, otherwise the charge will be dismissed. Moreover, the central objective of committal court as confirmed in Yarume –v- Euga is to weigh the evidence and ascertain whether or not there is sufficient evidence to commit the Defendant. 

Whether evidence contained in the police hand up brief establishes a prima facie case to justify a trial proper in the National Court
	
The Laws in the Criminal Code that institutes the two (2) charges against the Defendant is characterized below:

a)			404.		Obtaining goods or credit by false pretence or   willfully false promise.

.
(1)	A person who by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud—
(a)	obtains from any other person any chattel, money or valuable security is guilty of a crime

Penalty:	Imprisonment for a term not exceeding one year.

b)			383.	Misappropriation of Property.

 (1)	A person who dishonestly applies to his own use or to the use of another person—
(a)	property belonging to another
is guilty of the crime of misappropriation of property.

ELEMENTS OF THE OFFENCE

7.	I have revealed in a case that I presided in Police v Medako that police must prove the elements of the allegation. In the current case, Police must meet the elements of the charges of False Pretense and Misappropriation of Property. The following are the elements of the respective charges:

404(1)(a).	Obtaining goods or credit by false pretence or wilfully false promise.

(1)	A person
(2)	who by a false pretence or
(3)	 wilfully false promise, or 
(4)	partly by a false pretence and
(5)	 partly by a wilfully false promise, and
(6)	 with intent to defraud
(7)	obtains from any other person
(8)	 any chattel, money or valuable security

383A(1)(a).	Misappropriation of property.

(1)	A person
(2)	who dishonestly applies
(3)	to his own use
(4)	or to the use of another person
(5)	property belonging to another

EVIDENCE

8.	Evidence plays an imperative role in the administration of criminal justice to ensure a just and fair decision is arrived at. Evidence enclosed in the Police Hand Up brief served dated 19th March 2020, must meet the elements of the two (2) charges against the Defendant. Evidence must prove the allegation and this is the principle in Police v Koka.

PROSECUTION CASE

9.	Police Prosecutor Sergeant Polon Koniu representing the Police asked the court to peruse the Police file and make a ruling and consequently for the purpose of this ruling, I will go through the police file that was served on 19th March 2021, and make a ruling on evidence. This file contains witness statements and other documentary evidence. 

Police evidence

i.	Detective Constable Alvis Mokun – His evidence is based on the identification of the accused at the land and physical planning office at Waigani, NCD, he is the police corroborator.

ii.	Detective Sergeant Susuve EPE-He is the investigation officer whose evidence is based on the initial investigations he conducted on the accused and the record of interviews and all the contents of the PHUD.

Civilian evidence

iii.	Jesse Pakalu-Secretary to the Minister for immigration and Boarder security Mr Petrus Thomas, who reported the matter on behalf of the office of Minister for the two offences. His evidence is based on what the allegation now before the court.

iv.	Philip Moya-Former secretary to the office of immigration and boarder securities Minister Petrus Thomas-His evidence is based on the submission and approval of the supply of the official staff uniforms for the Minister’s officer.

v.	 Lenna Hibi – she is the personal assistant to the office of the immigration and boarder securities Minister and her evidence include the check payment and the collection by the Defendant.

vi.	Joshua Tika-He is the assistant to the executive Secretary to the minister’s office whose evidence is based on the actual process and the initial lodging of the letter of interest to supply staff uniform by the Defendant and the payment of the cheque for the uniforms.

vii.	Robert Kaia-he is the media officer to the office of the immigration and boarder securities and Citizenship authority Ministry. His evidence includes the time when the Defendant came to the office to get measurement of the uniforms.

viii.	Leilani Ose- EO to the chief migration officer and her evidence includes the process of the uniforms.

ix.	Jeffery Jenny-Tailoring Supervisor of the Paradise Tailoring Company whose evidence is based on the day she was requested by the accused to go the immigration office to take measurement of the uniforms.

x.	Aser Wafi- He is a legal officer with BSP and his evidence is based on the search warrant which was served on BSP to search account relating to Block 52 investment limited.

xi.	Kenneth Movi- Enforcement officer of the legal and compliance office of IPA whose evidence is based on the search warrant which was served on IPA to retrieve information on the business records of the company owned by the Defendant.

xii.	Other documents to be considered by the court are:

a)	Letter of expression of interest by the Defendant to supply uniforms,
b)	Certificate of incorporation IPA
c)	Tax Payer registration certificate 
d)	Letters 
e)	Copy of cheque, quotations and Facebook messages.

DEFENSE CASE

10.	Defense case is funded on the submission on insufficiency of evidence filed on 13th May 2021. Defense submits that police have insufficient evidence to prove all the elements of the two allegations against the Defendant.

11.	On the charge of false Pretense under Section 404(1) of the Criminal Code Act, Defendant through Jeffery Kolowi of the office of Public Solicitor argues that the two elements of the charge were not established. Defendant says there was no evidence of deception or deliberate fraud. Defense submits that Prosecution only relies on false assumptions that Defendant defrauded. Defense says police witness were mistakenly represented about some existing state of facts is not sufficient for false pretense. Defendant argues that when he was applying for the contract of supplying uniforms, did so without any intention to defraud.

12.	Mr Kolowei for the Defendant strongly argues that Police have not established the elements of intention. The accused was not with the intention to defraud during the time of facilitating the contract of supplying the uniforms. The Defendant says he was executing a lawful contractual obligation and had no intention of stealing.

13.	Defendant further submits that as to the charge of Misappropriation of property Under Section 383A (1)(a) of the Criminal Code Act, Prosecution has failed to establish two(2) elements of the offence. Defense says, firstly there is no dishonesty because the Defendant at all-time acted in good faith which he had an agreement with the Paradise Tailoring Company and a Pilipino master cutter to do the job. Defendant says there is no element of fraudulent deal which he involved. Defendant also submits that there is no evidence to establish that the accused persons paid the moneys to themselves for their own use to the use of other purposes. Defendant says misappropriation is about unauthorized, improper or unlawful use of funds or other property for purposes other than that for which intended but in the current allegation against the Defendant, police have failed to establish evidence pointing on how the money has been unlawfully used. Defendant pointed to State v IPuke (No 2)[2010] PGNC 32, that police have failed to produce evidence that the money was used by the Defendant personally.

14.	Finally, Defendant submits that evidence obtained from Facebook is illegal because it is settled law that the monitoring is only to be authorized by the court through a specifically court order under strict and prescribed guidelines and supervision by the courts and also to admit into court evidence derived from mobile phones. Defendant says police did not comply with Section 33 of the Cyber Crime Act 2016, since they did not obtain the FB messages through a Search Warrant authorized by the District Courts and hence the evidence should not be considered. Defendant says there is no prima facie evidence on all two (2) charges provided that Prosecution failed to establish all the elements of the offence and the electronic evidence were obtained illegally without a search warrant. Defendant therefore submits that the two (2) allegations against the Defendant be dismissed as Police evidence is not sufficient enough to establish all elements of the offence.

CONSIDERATION OF EVIDENCE

Police evidence and Defense submission

15.	In the nut shell, police are alleging that Defendant was awarded a total of K41, 250 by the PNG Immigration and Citizen authority to provide official uniforms for its staff members, nevertheless, upon receipt of the money he did not deliver the uniform and therefore he was arrested for one count of False pretense and Misappropriation.  There are total of eleven (11) witnesses for the State, of the total, two are police witness and 9 from civilian or people who were employed in the victim organization. The evidence of Philip Moya and Lenna Hibi describes that the Defendant’s submission to the Ministry of Immigration and Border Security to supply uniform and its subsequent approval of payment to the Defendant. Other evidence of Joshua Tika, Robert Kaia and Leilani Ose all narrates to deeds leading to the payment to the Defendant. Defendant did not deny that he was not paid the money. At paragraph 44 of the Defendant’s submission, he emphasized that he had a contractual obligation to fulfill when he was paid the money and nothing else. I have evidence before me that the money was for the purchase of official uniforms for the Ministry of Immigration and Border Security. Did the Defendant supply the Uniform to the Ministry? If not then what happened to the money? Defendant stated at Paragraph 44 of his submission that he had a contractual obligation with the Defendant to supply uniforms. The money was paid by the Ministry to the Defendant for the services to deliver uniforms but it was not delivered and therefore the use of money is now in question. The owner or agents of the money are now querying as to what happened to their money.

16.	I appreciate the Submission by the Defendant that he did not put the money to his own use or to the use of another person. I also appreciate the submission that Defendant had no criminal intention when he got the money but did the Defendant put the money to its intended purpose. There is some progress for the use of the said money when Jenny Jeffery of Paradise Tailoring went to the victim Ministry to get measurements with staff members for the uniforms.  This means there was no criminal intention to mislead the Ministry and hence the initial use of the money was utilized but the final outcome is not.

17.	For the offence of FALSE PRETENSE, I have defined 8 elements. Police evidence must satisfy these elements. The elements of this offence must satisfy police eviednce. I am satisfied with the bank statements provided to this court by police that Defendant has been in delivering similar services to other customers such as Hela Provincial Government, NCDC, SH Provincial Government, Electoral Commission and many more and there are evidence of payments made by these organizations to the Defendant in huge amount of money. The question I need to ask is did the Defendant deliver to these organizations after payment? Am not interested in the answer but am concern about the Defendant’s history into the business of providing tailoring services and I am satisfied that Defendant has a reputation of providing tailoring services.

18.	Police have not provided evidence to support that Defendant has a representation of a present or past fact pertaining to his actions or state of mind at the time and prior to the commission of the allegation.  Moreover, Police have failed to produce evidence that Defendant’s representation at the time of the transaction or events leading to same was false. Lastly, Police have not stated in their evidence that Defendant had an intention to steal the money. Based on this, I find that there is insufficient evidence for the offence of False Pretense under Section 404(1)(a) of the Criminal Code Act.

19.	Online and Facebook documents-I have sighted Facebook messages between the Defendant and a representative from the victim organization. All evidence materials are guided by laws and regulations on how such documents be produced and obtained as evidence. In here I have evidence that Section 33(d) of the Cyber Crime Act 2016, was not utilized by police when Facebook messages were obtained. The Facebook massages were not obtained through a search warrant and this is illegal. Where a member of the Police suspects on reasonable grounds that electronic documents be obtained then a search warrant is needed so that it would authorize police to  copy the date or thing could be searched in documentary form and search the produced documents.  Therefore, I will refuse to accept the Facebook evidence containing communications between the Defendant and a representative from the victim’s organization. That does not disqualify the entire evidence in the Police file but only the Facebook communications. 

20.	Finally, I will rule on the evidence of MISAPPROPRIATION OF PROPERTY or simply the illegal use of property by the Defendant.  I have evidence that the Defendant says he did not dishonestly applies to his own use or to the use of another person money belonging to the Ministry of Immigration and Citizenship authority but where did the K41,250 go? Who used the money and for what purpose? When asked in the record of interview dated 10th October 2019, about what happened to the money, Defendant decided not to say anything. Moreover, when police asked the Defendant on whether he had delivered the uniforms or not, he also decided not to say anything.  At this point in time I am not well assisted when Defendant decided to remain silent. From the police statements, I am satisfied that a  cheque of K41,250, was raised to the Defendant to provide official uniforms but he did not provide any explanations as to what happened to the uniforms and also he did not provide any clear explanations  as to what happened to the money.  For these reasons, I have evidence to believe that the Defendant did not put the money to where it was intended for and subsequently did not deliver the uniforms. I am therefore satisfied that Defendant dishonestly applied money belong to the Ministry of Immigration and Citizenship authority to his own use or perhaps to the use of some other persons. Therefore there is sufficient evidence for the offence of Misappropriation of Property pursuant to Section 383A (1)(a) of the Criminal Code Act.

RULINGS

21.	Defendant is charged with two offences under the Criminal Code Act. He is charged for False Pretense under Section 404(1)(a) and Misappropriation of Property under Section 383A(1)(a) of the Criminal Code. I find that there is insufficient evidence to commit the Defendant for the charge of False Pretense. Moreover, I find that the Facebook evidence is illegal and not proper before this court and therefore this evidence is dismissed. However, I find sufficient evidence for the offence of Misappropriation of Property under section 383A(1)(a) of the Criminal Code Act. Defendant is on a court bail of K1000, preferably K500 for each charge. K500 for the dismissed charge will be refunded.

22.	ORDERS

23.	Defendant is committed to stand trial only on the charge of Misappropriation of Property under Section 383A(1)(a) of the Criminal Code Act.

24.	There is insufficient evidence for the charge of False Pretense pursuant to Section 404(1)(a) of the Criminal Code. This charge is dismissed.

25.	Defendant’s bail of K500 for the dismissed charge is refunded.

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Public Solicitor					For the defendant
Police Prosecutor					For the State