Unreported National Court Decisions
N631
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
M.P. 134 OF 1987.
FRANCIS SIA
V
THE STATE
Waigani
King AJ
28-29 October 1987
KING AJ:  This is an application pursuant to s. 23 of the Bail Act (Ch. 340) by Francis Sia (“the applicant) who seeks permission to leave this country to go to Singapore where he intends to undergo abdominal surgery for the removal of stones from his gallbladder.
It is convenient at the outset to set forth the relevant provisions of s. 23. which are as follows:
23(1)  Where for urgent personal reasons or by reason of his occupation a person granted bail in relation to a proceeding wishes to leave the country for a temporary period before the commencement or conclusion of that proceeding, he may, after reasonable notice to the other party, apply to the National or Supreme Court for permission to do so.
(2)      Permission shall not be granted under subsection (1) unless the court is satisfied that the person will return to Papua New Guinea for the proceeding
(3)      A permission granted under this section may be subject to conditions.
The applicant has been granted bail, and thus satisfies that requirement of s. 23(1). There is no doubt that he wishes to leave the country so that requirement, if it be correct to call it a requirement, is also satisfied. The application is not put on the basis that the applicant’s occupation is the reason for his wishing to leave, but on the basis that the proposed surgery in Singapore is an urgent personal reason. The State opposes the application on the basis that there is no urgency involved in the applicant’s having the surgery, and on the basis that it is unlikely that if he goes to Singapore, he will return here, or put another way, that the Court should not be satisfied that he will return here for the hearing of the charges against him. Those charges are, broadly put, two counts of fraud involving sums of money totaling about K45,000.
The grounds upon which the State opposes the application as just stated define the issues before me and I shall briefly outline the relevant evidence as I see it.
In two well drafted and lucid affidavits sworn by the applicant it emerges that he is a married man with one child and that his wife is now four months pregnant; that he and his wife are the effective owners of a company which employs a substantial work force in Kavieng and owns substantial and valuable heavy machinery and equipment; and that it has ordered more equipment of that kind. It also emerges that whilst in Singapore, apparently on business, in September this year the applicant was diagnosed as having a swollen liver owing to blood borne malaria parasites and two gallstones in his gallbladder which caused severe pain and might rupture with potentially fatal consequences, and that arrangements were made for surgery to remove the stones in Singapore on 30 October 1987 i.e. today. It also emerged that the applicant proposed to take his wife to Singapore to assist him in his recovery and to take his child because in the absence of him and his wife there would be no-one to look after the child. An affidavit of Dr. Danomira of Boroko, including a written report was also relied on, the effect of which was that Dr. Danomira agreed that surgery was urgently required and that although it could be carried out here superior medical facilities were available in Singapore and the doctors there were conversant with the applicant’s history and condition so that it was preferable, or at least appropriate, that the surgery take place there.
Both the Applicant and Dr. Danomira where cross examined on their affidavits.
The applicant’s oral evidence, so far as material, was that he was a Malaysian citizen; that he could have had surgery in Singapore in September but took the risk of returning to Kavieng to deal with an important shipment of logs; that he knew he would now in any event not be able to undergo the planned surgery at the end of this month; that he wanted to return to Kavieng for about two weeks to make arrangements for the continuance of his company’s operations then go to Singapore and return after the surgery and convalescence; that he had reduced his prescribed medication to try to make it last longer because he believed some of the tablets were not available in this country; that he knew he and his company were being further investigated and that further charges were a possibility; that his company had been in business for less than a year; and that he knew that his company’s contract whereby its logging operations were carried out was liable to concellation. I should perhaps also mention that the question of whether he could be extradited to Papua New Guinea from Singapore or Malaysia was touched on in his oral evidence but understandably, since it is really a question of law on the facts at the time extradition is sought, his evidence was not definite or useful in that regard.
Dr. Danomira said in his oral evidence that there were general surgeons in Port Moresby who could perform the surgery; that it was elective surgery although in this case it should be done as soon as practicable; however at this stage there were no complications; that the required surgery was successfully performed in Port Moresby; that whilst the drugs the applicant was taking were treating or containing the problem rather than curing it, those which were not available in this country could probably be obtained or adequately substituted for by other drugs; and that the applicant did not need to be accompanied to Singapore by his wife.
Finally the state called Detective Sgt - Major Micah Anaiwe who has been concerned in the investigation of the affairs of the applicant and his company for some time and who said that whilst the laying of further charges must await the completion of the inquiries, it was to his mind likely that further charges would follow. He also said that the applicant’s company had a foreign judgment against it in the sum of K1.5 million which had been registered in this country and that the company also had a substantial taxation liability outstanding and that in his opinion the company’s future was “very limited”.
I should say immediately that I sympathize with the applicant’s desire, as a foreigner, to undergo major surgery in another country where medical facilities are conceded to be superior to those here. My desire in similar circumstances, with no disrespect to the medical practitioners and facilities here, would probably be the same. But it is obvious that the applicant is not in a position to make a free choice. He must bring himself within s. 23 of the Bail Act (supra).
It is also obvious that he has every incentive to leave this country and never return, and that his plans, if given effect to, would give him the opportunity to do that in company with his whole family. In those circumstances his application demands the closest scrutiny and I do not think it with stands such scrutiny.
If his condition were regarded by him as serious, it is odd that he did not remain in Singapore for immediate surgery no matter what his business commitments, and odd that he did not bring this application early enough to enable him to keep the appointment for surgery today if it were successful. If he had any real desire to undergo surgery as quickly as possible, it is also odd that he has not by now made arrangements for the continuance of his business so that he could leave forthwith if this application were to succeed. I find it a curiosity also that if his condition is severe, he should of his own accord reduce the medication which is giving him relief. I would have expected him to take steps to procure suitable alternative drugs or have the unavailable drugs imported from say Singapore rather than reduce the dosage. In all those circumstances, and having regard also to Dr. Danomira’s evidence that the surgery can be and is in fact successfully performed in Port Moresby, I am not persuaded that the surgery is either “urgent” or a “reason” for leaving this country.
That alone would defeat the application before me, but I am not persuaded that if he left the applicant would return here and would also refuse the application pursuant to s. 23(2). In this regard I am not impressed by his first affidavit which tries to show by reference to his company’s valuable machinery and assets that he has a vital stake in this country and would thus, as a matter of strong probability, return. The affidavits, as I have said, were all well drawn. If the applicant owned real estate here or the machinery and assets were unencumbered the affidavits would have said so. Since the applicant’s company has been in business less than a year it is almost inevitable that the machinery etc would be subject to leases or encumbrances. If the applicant is imprisoned or if his company’s business evaporates or is greatly reduced, or even if the cash flow is affected as for example by execution of judgments for foreign debts or taxation liabilities, the machinery and assets may well be seized or repossessed. They hardly constitute a bond between the applicant and this country.
Finally, to the extent that it is relevant, I should mention that it was stated by Mr. Boyce who appeared for the State, and accepted by the applicant’s counsel, Mr. Kua, that there would in fact be great uncertainty about whether the applicant could be extradited from Malaysia if he went there, as he could not be prevented from doing in view of his citizenship, from Singapore. I would have refused the application even if that were not so but it serves only to fortify me in my view.
It remains only to mention a few incidental matters lest it be thought they were not taken into account. First, I was referred to Ex Parte Smedley (1978) PNGLR 156 and Re Stephen Mark McMillan (1980) PNGLR 158. The latter decision in my view settles the law but does not compel a decision in favour of the applicant. Secodly, I considered whether permission might be granted on onerous conditions, viz that cash bail well in excess of the K45,000 the subject of the existing charges be paid and that the applicant’s wife and child remain here, Dr. Danomira having said the applicant could travel to Singapore, have the surgery and return by himself. This possibility was raised in argument and I have decided against it in any event, but it was made academic when the applicant’s counsel informed me that he could raise only K10,000 or thereabouts in cash. A “cash condition” of the type contemplated could therefore not have been satisfied by the applicant, and of course, as was pointed out by Mr. Boyce, if he left the country and failed to return his wife and child could not be kept here for very long. Thirdly, I accepted the submission of Mr. Kua that no substantial significance could be placed on the prospect of additional charges, which were only a possibility. Ex Parte Smedley (supra) shows that they can be a relevant factor, but I think they are of little relevance unless they are imminent and I have placed no substantial reliance on the possibility of further charges in this case. My decision would have been the same had there been no evidence of them.
The application is refused. Each part is to pay his and its own costs of the application.
Lawyer for the Applicant: Mr. Kua
Lawyer for the State: Mr. Boyce