[1999] PNGLR 18

PAPUA NEW GUINEA

[national court of justice]

in the matter of section 616 of the criminal code act (chapter 262); and

in the matter of the investment promotion act 1992 (as amended)

INVESTMENT PROMOTION AUTHORITY

V

GETRUDE MARIKA

waigani: los j
18 February; 4 March 1999

Constitutional Law - Right to silence – Activities civil in nature made criminal offence under Investment Promotion Act - Persons investigated must be informed of their rights.

Criminal Law - Prohibited activities need not be continuous to constitute offence.

Promotion of Business - Citizens not immune from prosecution under Investment Promotion Act.

Facts

The applicant seeks leave under s 616 of the Criminal Code to lay an information against the respondent for breaches of the provisions of the Investment Promotion Act (the Act). It is said that the breach was that she was a director in a company, namely Wamena Trading Pty Limited, which participated in the business activities reserved only for the citizens of Papua New Guinea. 

Lawyer for the applicant challenged the assertion that the respondent was a director and secondly, the status of Wamena Trading has since changed from that of foreign company to a national company and finally the issue that the respondent is a national and therefore should not be charged.

Held

1.	The procedure to lay an information against the respondent for breaches of the provisions of the Investment Promotion Act is accepted by the Supreme Court in application by Investment Promotion Authority v Palpal Seoul Pty Ltd and Other – SCR 13 of 1997 where the court said: "We consider that for the constitutional and many of the policy considerations we have discussed, it is not intended that prosecution under the Investment Promotion Act operate differently. Leave must be obtained at the National Court to lay charges. This we think harmonises the provisions of the Criminal Code and the Investment Promotion Act. The only question is whether a prosecution by the authority must be by way of indictment. We think not because charges laid by way indictment must be for purely criminal offences and crimes. Offences under Investment Promotion Act arise from the activities, which are civil in nature. In our view charges under the Investment Promotion Act must therefore be laid by way of information with leave in accordance with Order 3 Rule 5, 6 and 8."

2.	It was submitted by the respondent’s lawyer that information relating to the respondent being a director of Wamena Trading should not be accepted by the Court because it was received in breach of the right to silence. An affidavit sworn and signed by the respondent on 17 December 1998 contains questions and answers purportedly recorded by Reynold Pus, Chairman of the Securities Commission of Papua New Guinea (SCPNG), which are damaging to her. Surely if the interview was meant to be a part of an investigation and any answers given were to be relied on to lay an information, the respondent should have been warned. That although the activities under scrutiny by the Investment Promotion Authority are civil in nature, a ‘suffering’ for breach under s 41 of the Act is penal in nature so the protection under s 37(10) of the Constitution must apply unless the right of silence is suspended in a similar manner as done to other constitutional rights, see s 2(2) of the Act. 

3.	The issue relating to change of circumstances are that the respondent is no longer a director and that Wamena Trading is also no longer a foreign company. The argument seem to be that breach of s 41 of the Act can only occur if the acts alleged to constitute breaches are continuous and present. It was considered that this argument runs against the basics of criminal law. For instance an act constituting stealing need not be continuous. An act constituting wilful murder occurs once. However, it was considered that the fact of non-continuous may be relevant to a penalty for breaches under the Act.

4.	The provisions of the Act exist to protect her and many citizens of this country and so if she flouts the provision of the Act she is not helping herself and the rest of the citizens. Section 1 of the Act sets out the purpose of the Act. Section 1(a) says:

1.	The purpose of this Act are

(a)	to promote and facilitate investment in the country by citizens and foreign investors; ....

(e)	to promote investments which will materially benefit the country and its people;

5.	Leave granted to lay an information against the respondent.

Papua New Guinea cases cited

Investment Promotion Authority v Palpal Seoul Pty Ltd and Other – SCR 13 of 1997.

Counsel

T Goledu, for applicant.
N Kubak, for respondent.

4 March 1999

Los j. The Investment Promotion Authority (IPA) seeks leave under s 616 of the Criminal Code to lay an information against the respondent for breaches of the provisions of the Investment Promotion Act (the Act). This procedure was accepted by the Supreme Court in application by Investment Promotion Authority v Palpal Seoul Pty Ltd and Other – SCR 13 of 1997 where the court said:

"We consider that for the constitutional and many of the policy considerations we have discussed, it is not intended that prosecution under the Investment Promotion Act operate differently. Leave must be obtained at the National Court to lay charges. This we think harmonises the provisions of the Criminal Code and the Investment Promotion Act. The only question is whether a prosecution by the authority must be by way of indictment. We think not because charges laid by way indictment must be for purely criminal offences and crimes. Offences under Investment Promotion Act arise from the activities which are civil in nature. In our view charges under the Investment Promotion Act must therefore be laid by way of information with leave in accordance with Order 3 Rule 5, 6 and 8."

It is said that the breach was that she was a director in a company, namely Wamena Trading Pty Limited, which participated in the business activities reserved only for the citizens of Papua New Guinea.

Mr Kubak has challenged the assertion that the respondent was a director. Secondly he raised the issue that was raised in two previous proceedings before me (OS number 717 & 718 of 1998) that is the status of Wamena Trading has since changed from that of foreign company to a national company. Third, which is closely tied to the second issue, is that the respondent is a national and therefore leave should not be granted for a prosecution against her.

Mr Kubak submitted that the information relating to the respondent being a director of Wamena Trading should not be accepted by the Court because it was received in breach of the right to silence. He argued that the respondent was not warned that whatever she said might become evidence against her. An affidavit sworn and signed by the respondent on 17 December 1998 contains questions and answers purportedly recorded by Reynold Pus, Chairman of the Securities Commission of Papua New Guinea (SCPNG), which are damaging to her. Surely if the interview was meant to be a part of an investigation and any answers given were to be relied on to lay an information, the respondent should have been warned. I consider that although the activities under scrutiny by the Investment Promotion Authority are civil in nature, a ‘suffering’ for breach under s 41 of the Act is penal in nature so the protection under s 37(10) of the Constitution must apply unless the right of silence is suspended in a similar manner as done to other constitutional rights, see s 2(2) of the Act. I order therefore that her answers not be relied on. However, for the purpose of leave the affidavits by other persons and the respondent’s own affidavit sworn on 10 February give sufficient information.

The second issue relate to change of circumstances. The changes are that the respondent is no longer a director and that Wamena Trading is also no longer a foreign company. I addressed those issues in the two previous cases. The argument seem to be that breach of s 41 of the Act can only occur if the acts alleged to constitute breaches are continuous and present. I consider this argument to run against the basics of criminal law. For instance an act constituting stealing need not be continuous. An act constituting wilful murder occurs once. But I consider that the fact of non-continuous may be relevant to a penalty for breaches under the Act.

In relation to the next issue, it was impliedly suggested that no leave should be granted to prosecute the respondent because she is a citizen. At the outset I state that it is clear from her affidavit that she was innocently used without realizing what consequences she might face. But to suggest that she should not be prosecuted because she is a citizen is not correct. The provisions of the Act exist to protect her and many citizens of this country and so if she flouts the provision of the Act she is not helping herself and the rest of the citizens. Section 1 of the Act sets out the purpose of the Act. Section 1(a) says:

2.	The purpose of this Act are

(b)	to promote and facilitate investment in the country by citizens and foreign investors; ….

(f)	to promote investments which will materially benefit the country and its people;

These provisions seek to implement and enforce many of the constitutional provisions relating the National Goals and Directive Principles. In fact the desires to protect and advance the commercial interests of the citizens are so much that some of the constitutional rights are suspended for the purpose of this Act. That is true in relation to freedom of searches in s 44, freedom of employment and freedom of right to privacy in ss 48 and 49 of the Constitution.

The respondent did not intend any harm nor did she play any major role but these are all matters of mitigation. However as far as breaches are concerned, I grant the applicant leave to lay an information.

Lawyer for the applicant: Investment Promotion Authority Lawyer.
Lawyer for the respondent: Kubak Lawyers.