N5673

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 152 OF 2011

BETWEEN:

SAKURA MARINE PRODUCTS
LTD
First Plaintiff

AND:

CHIAN HUAN CHOON
Second Plaintiff

AND:

ARNOLD SAKURA
Third Plaintiff

AND:

NOAH TAIA
First Defendant

AND:

DENNIS YEHILOMO
Second Defendant

AND:

NATIONAL FISHERIES AUTHORITY
Third Defendant

Waigani: Hartshorn J.
2013: June 18th,
2014: January 29th

Trial – Malicious Prosecution

Cases cited:

Mahara Ignote v. Abraham Hualupmomi and the State [1996] PNGLR 308
Justin Tkatchenko v. National Capital District Commission (2002) N2196
Pius Nui v. Mas Tanda (2004) N2765
Titus Wambun v. Inspector D Yasmsombi (2009) N3787
William Yamo Kapi v. Kambang Holdings Ltd (2011) N4451

Counsel:

Mr. J. Sirigoi, for the Plaintiffs
Mr. F. Kuvi, for the Defendants

29th January, 2014

1. HARTSHORN J: This is a claim for malicious prosecution. The first plaintiff, a seafood company and the second and third plaintiffs who respectively are an employee and the owner of the first plaintiff, allege that the defendants, in commencing and prosecuting various proceedings pursuant to the Fisheries Management Act in the District Court against the plaintiffs, which proceedings were either dismissed or withdrawn, are liable for the tort of malicious prosecution. The defendants deny the claim.

2. The elements of the tort of malicious prosecution are that:

a) the defendant is responsible for the institution of proceedings against the plaintiff;

b) the defendant has instituted the proceedings without reasonable and probable cause;

c) the defendant was motivated by malice or some other improper purpose; and

d) the criminal proceedings have been resolved in favour of the plaintiff:

Mahara Ignote v. Abraham Hualupmomi and the State [1996] PNGLR 308, Justin Tkatchenko v. National Capital District Commission (2002) N2196, Pius Nui v. Mas Tanda (2004) N2765, Titus Wambun v. Inspector D Yasmsombi (2009) N3787 and William Yano Kapi v. Kambang Holdings Ltd (2011) N4451.

Institution of proceedings

3. As to the first element:

a) four charges were brought by the third defendant against the second plaintiff – DC 28/08 – 31/08. They were dismissed on 3rd March 2009. For these charges the first element is satisfied in respect of the third defendant against the second plaintiff.

b) four charges were brought by the second defendant against the second plaintiff (two charges) and the first plaintiff (two charges) - DC 26, 27, 36 and 37/08. These charges were dismissed on 12th February 2010. For these charges the first element is satisfied in respect of the second defendant against the second and first plaintiffs.

c) two charges were brought by the second defendant against the third plaintiff – CIR 32/08 and 33/08. They were both withdrawn on 25th February 2011. For these charges the first element is satisfied in respect of the second defendant against the third plaintiff.

d) in the affidavit of the first defendant dated 16th May 2013, he deposes that "We arrested the Second and Third plaintiff….", and then further on, "Our efforts to secure a conviction…..". To my mind this is sufficient for the first defendant to be regarded as being responsible for the institution of the charges against the second and third plaintiffs': Kapi v. Kambang (supra). 

Whether without reasonable and probable cause

4. This element requires the plaintiffs to prove that there was no good reason for the defendants' to institute the various proceedings. Specifically, the plaintiffs' must prove either or both of two things: that the defendants' did not honestly believe that the plaintiffs' were guilty of the offences or that if the defendants' did hold such a belief, it was not based on reasonable grounds: Kapi v. Kambang (supra).

5. The plaintiffs' contend that the defendants' did not honestly believe that the plaintiffs' were guilty of the various offences under the Fisheries Management Act or that if they did hold such a belief, it was not based on reasonable grounds as the third plaintiff is a citizen and the first plaintiff is a company owned by citizens one of whom is the third plaintiff; at all times the third plaintiff held all relevant licences and approvals from the third defendant to export certain seafood products, the second plaintiff was employed by the first plaintiff as its General Manager and has the necessary work permit and the Managing Director of the third defendant had granted approval to Maretz Resources to move Beche de Mer product to the first plaintiff on two occasions in March 2008.

6. The defendants' contend that there was evidence of Beche de Mer product being below the minimum dry size of 10 cm at the first plaintiff's premises. This is pursuant to the evidence of Iga Penny. This evidence though concerns the charges laid in respect of events that occurred in April and June 2008 and does not concern the events that occurred in November and December 2007. There is also evidence from the first defendant which is enlightening. By deposing that "We arrested the Second plaintiff and Third plaintiff and confiscated the products….", the first defendant involves himself in the events that occurred in April and June 2008. This is also admitted in the statement of agreed and disputed facts. The first defendant then deposes as to those events, "There was no other reason for our actions except to carry out our duties to protect the marine resources of this country from foreign exploitation." By this does the first defendant mean that the reason for their actions was not to check for undersized seafood product?

7. Against this evidence, is the evidence of the third plaintiff who deposes that the Beche de Mer product was inspected by a Provincial Fisheries Officer in Daru and that the Officer had recommended approval to the Managing Director of the third defendant as the product was all of allowable size.

8. As to the charges laid against the second plaintiff in respect of the events that occurred in November and December 2007, given the evidence concerning the second plaintiff's valid work permit, the status of the first plaintiff, the licences and approvals held by the third plaintiff, about which matters the officers of the third defendant should have been aware, and the lack of evidence that the licences and approvals were forged, I find that the first and the third defendant (by its officers) did not honestly believe the second plaintiff was guilty of the offences or that if the first and the third defendant (by its officers) did hold such a belief, it was not based on reasonable grounds.

9. As to the charges laid against all three defendants in respect of the events that occurred in April and June 2008, again given the evidence as to the second plaintiff's valid work permit, the status of the first plaintiff, the licences and approvals held by the third plaintiff including the two approvals in regard to Beche de Mer from Daru, about which matters the officers of the third defendant should have been aware, the lack of evidence that the licences and approvals were forged, the evidence of the third plaintiff as to the inspections in Daru, and the evidence of the first defendant where he deposes, "There was no other reason for our actions except to carry out our duties to protect the marine resources of this country from foreign exploitation.", I find that the first and second defendants' and the third defendant (by its officers), did not honestly believe that all three plaintiffs were guilty of the offences or that if they did so belief, such belief was not based on reasonable grounds.

Whether malice or improper purpose

10. The plaintiffs' contend that the actions of the defendants' in charging the plaintiffs' with the various offences were malicious or were motivated by some other improper purpose. The evidence relied upon is that of Mr. Ben Metta and the second plaintiff which was given in the District Court proceedings.

11. The evidence of Mr. Metta in DC 25, 26, 24, and 35/08 is amongst others, that on 12th June 2009, the first defendant in the course of driving him around, threatened to arrest him and lock him up in Police cells unless he agreed to give evidence against the second plaintiff and the third plaintiff in the District Court proceedings. Mr. Metta also deposes that the first defendant telephoned him on 25th June 2009 and told him to give evidence against the second plaintiff. Mr. Metta was upset with the first plaintiff's actions and he made a statement to the police, which is in evidence. The first plaintiff was subsequently charged by the police. There is also evidence of Mr. Metta against the first defendant but this is hearsay evidence.

12. The evidence of the second plaintiff in DC 26, 27, 34 and 35/08 is amongst others, that in August 2007, the first defendant telephoned him and requested K 6,000 but the second plaintiff refused the request. Further, between September 2007 and April 2008 the first defendant frequently attended at the first plaintiff's premises at Erima and requested the second plaintiff to give him money, which the second plaintiff always refused.

13. The plaintiffs further contend that the evidence of Mr. Metta and the second plaintiff should be believed as none of this evidence was challenged or disputed by the first defendant in the District Court proceedings and the first defendant did not give evidence to dispute the allegations made against him by Mr. Metta and the second plaintiff. Further, counsel for the defendants did not object to the evidence of Mr. Metta being admitted into evidence in this proceeding and it is not disputed that the first defendant was arrested by the police for attempting to coerce Mr. Metta into giving false evidence.

14. The defendants' contend that malice has not been shown. The only allegation is that the first defendant solicited money but that evidence is not corroborated apart from hearsay evidence. Further, the first defendant was not the informant and did not lay the charges - the second defendant did. Also there is no nexus between the first defendant and the second and third defendants.

15. As to the evidence of Mr. Metta, it is the case that he made a complaint and a statement to the police about the actions of the first defendant. The statement was made 19 days after he states that he was coerced and 7 days after the phone call for him to give evidence. To my mind, this is not the action of someone who is being untruthful, especially when the complaint is against a "tambu" or in law as the first defendant deposes. Given the above I am inclined to believe the evidence of Mr. Metta.

16. As to the evidence of the second plaintiff, although the only corroborative evidence is hearsay, again, his evidence was not disputed or contradicted in the District Court. As to the evidence of the first defendant, he questions why he would request or demand money from the second plaintiff if the second plaintiff says he is not the owner of the first plaintiff. Is the court to infer from this that if the first defendant thought that the second plaintiff was the owner, the first defendant would request or demand money? Again, I am inclined to accept the evidence of the second plaintiff.

17. As to the first defendant not being the informant, as I referred to above, the first defendant deposes that "We arrested the second and third plaintiff…", and then further on, "Our efforts to secure a conviction….", are sufficient for the first defendant to be regarded as being responsible for the institution of the charges against the second and third plaintiffs': Kapi v. Kambang (supra). Further, I note that the first defendant was a prosecution witness in the first District Court hearing, attended at the first plaintiff's premises and investigated the case.

18. As to their not being any nexus between the defendants, I am satisfied that the first and second defendant's worked together and were involved in all of the charges laid. Further, they are both officers of the third defendant.

19. I also take into account some of the considerations to which I referred in determining whether there was a good reason for the defendants to institute the proceedings. These are that the third plaintiff is a citizen and the first plaintiff is a company owned by citizens one of whom is the third plaintiff, the second plaintiff's valid work permit and the licences and approvals held by the third plaintiff, about which matters the offices of the third defendant should have been aware. When these considerations are taken into account together with the evidence of Mr. Metta and the second plaintiff, and in the absence of evidence that the plaintiffs' committed the offence with which they were charged, I am satisfied that the plaintiffs' have shown that the actions of the first and second defendants' and the third defendant (by its officers), in charging the plaintiffs' were malicious, or were motivated by some other purpose, namely to disrupt or hinder the business and employment of the plaintiffs' and to harass the second plaintiff because of the refusal of the second plaintiff to accede to the demands of the first defendant for money.

Fourth element

20. It is not disputed that all of the proceedings have been resolved in favour of the plaintiffs. Two of the charges were withdrawn and the rest were dismissed.

In conclusion, I am satisfied to the requisite standard that the plaintiffs' have established the four elements of the tort of malicious prosecution against the defendants. Consequently judgment is entered for the plaintiffs, against the defendants, with damages to be assessed. The defendants' shall pay the plaintiffs' costs of and incidental to the proceeding.

_____________________________________________________________Sirigoi Lawyers: Lawyers for the Plaintiffs 
Elemi Lawyers: Lawyers for the Defendants