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State v Alim [2014] PGNC 113; N5739 (24 September 2014)

N5739

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 725 OF 2012

THE STATE

-V-

MOHAMAD ABDUL ALIM

Waigani: Salika, DCJ.
2014: 16th & 22nd April
06th May
17th July
23rd & 26th September

DECISION ON SENTENCE

PRACTICE & PROCEDURE – Criminal Law – bribery charge –sentences for bribery

Counsel:
Mr. D. Sopane, for the State
Mr. D. Koeget, for the Prisoner

26th September, 2014

I. SALIKA, DCJ: The prisoner was convicted after a trial with one count of bribery under Section 97 B (1) of the Criminal Code.

2. The facts are that on 9th February, 2012, Police conducted a raid on the premises of an internet cafe at Gordons owned by Desh Besh Enterprises Limited which was managed by the prisoner. During the raid, computer hardware and accessories, passports and work permits were confiscated.

3. The prisoner was also taken in for questioning but released minus the computer hard drives and accessories, the passports and work permits.

4. A month later, the prisoner's passport was released to him by Superintendant Mark Yangen. When the prisoner inquired of the computer hardware and accessories, he was told they were with Senior Constable Fiona Kakarere. Yangen gave the prisoner Kakarere's mobile phone number for him to contact her regarding the confiscated items.

5. The prisoner contacted Fiona Kakarere for the release of the computer hard drives and accessories and from then on started offering money for the release of those items.

6. In the end, the prisoner took K10,000.00 to give to Fiona Kakarere and Bruce Tatamasi. Upon receipt of the K10,000.00, Remmy Jogioba arrested the prisoner and charged him with bribery under s. 97 B (1) (b) of the Criminal Code.

7. The offer of the K10,000.00 was received by Kakarere and Tatamasi. The K10,000.00 was to be split, K5,000.00 each between Kakarere and Tatamasi. The two (2) Police Officers pretended to accept the K10,000.00, because they had arranged for Jogioba to effect the arrest once the money was delivered. This plan was executed to perfection. The prisoner was thus convicted of bribery.

8. The issue is what sentence the Court should impose on the prisoner. The offence of bribery carries a penalty of a fine at the discretion of the Courts or imprisonment for a term not exceeding seven (7) years or both.

9. The Court may also invoke s. 19 of the Criminal Code to impose a lesser term than the maximum prescribed.

10. The prisoner is from Angargara Village of the Mymensingh District of Dhakha Province, Bangladesh. He came to Papua New Guinea in February, 2006 to take up a Bachelor of Electrical Engineering course at The University of Technology in Lae, Morobe Province. The study arrangement was made by his uncle Mr. Wahid, the owner and a Director of Desh Besh Enterprises Limited.

11. He completed the Electrical Engineering course and graduated with a Bachelors Degree in the field. He left Lae and came to Port Moresby to live with his uncle after graduating.

12. In 2009, he enrolled at The University of Papua New Guinea to take up Masters, in Business Administration and graduated in that field on 30th March, 2012. He now has plans to do a doctorate in that field as well. The prisoner has done well in so far as extending his education is concerned and still aims to do better. He could be an asset to the country into the future.

13. He is currently employed by his uncle at Desh Besh Enterprises as a Business Development Manager from November, 2011 up to now. He is on a salary of K3, 200.00 per fortnightly. On top of his salary, he is provided food, accommodation and a vehicle. In summary, he is well looked after.

14. He has no health issues except for the occasional malaria he often suffers from. He does not smoke and does not take alcohol. This is probably because he is a Muslim.

15. His father is now deceased but his mother is still alive and is in her 60s. His marriage at his home country has been arranged and he now plans to go and marry from his home country.

16. Bribing a Police officer is a serious crime. In this case, your act of giving K10,000.00 to Police officers in the hope that you would get back the computer hard drives and accessories was bribery. Bribery is a crime. In this case, the giving of K10,000.00 was to influence the actions of the Police officers to release those items. In other words, you gave them the money to influence their conduct.

17. The computer hard drives and its accessories were confiscated in the normal course of police duties. If they were clear, they would and should be returned to the owner. The Police should have checked these exhibits as soon as possible to avoid any unnecessary delays and anxiety. To keep the items at the Police Station from February, 2012 to April, 2012 was too long a time. In this case the prisoner was not charged for ay offence when he was released. The Police in this case, Fiona Kakarere was meant to check the hard drives and detect any music piracy or check for any indecent pornographic material. If there was none than, the items should have been returned as soon as possible.

18. As it turned out, the prisoner was charged but the information was struck out for want of a police file. This was done in August 2012, a period of seven (7) months with no results and an unproductive confiscation of items. This conviction therefore arises out of a valueless raid.

19. The prisoner, however, ought to have had a bit of patience and not try to act in the way that he did. He simply fell for what he thought would be an easy way out and was too gullible. He underestimated Kakarere.

20. The prisoner is 29 years old now. He does have a bright future in Papua New Guinea if he abides by this Country's Laws. He is better off in Papua New Guinea. He will loose everything if he was to be deported. I think he can be a better person if he is given another chance. This is his first offence of bribery. I only hope it is his last as well. I do not consider him to be a threat to the citizens of this country or the country.

21. He has no prior convictions and he has never been in trouble before. I consider that there is also some element of blame to the members of the police force. In the circumstances in the exercise of Courts discretion, I impose a sentence of two (2) years imprisonment but I will suspend all of that on the following conditions:

a) you pay a fine of K20,000.00

b) the K10,000.00 bribery money be converted as part payment of the fine and that his bail of K1,500.00 be also converted to pay the fine. The balance of K8,500.00 is to be paid forthwith today by 4:00pm.

c) the prisoner is to be of good behaviour for twelve (12) months from today's date.

d) any further charges you are convicted of in future will render your deportation from this country.
__________________________________________________________
Public Prosecutor: Lawyer for the State
Koeget Lawyers: Lawyer for the Prisoner