N7231

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 24 OF 2017

THE STATE

V

KEVIN UNOBO
(No 1)

Waigani: Miviri AJ
2018: 30th April & 1st &3rd May

CRIMINAL LAW – Practice and Procedure – s383A Misappropriation CCA – trial – No case to answer – Question of law – Prima Facie – employee central Provincial Government – money for purchase of vehicles for Provincial Government – application to personal use – dishonesty – vehicle outboard motor & dingy –case to answer.
Facts
The accused bought a Toyota Land cruiser and a Yamaha outboard with dingy and used the properties even though it was Central Provincial Government who had purchased all. He was dishonest and applied the subject property to his use and to the use of another.

Held
Prima facie Case to answer on all three charges.
Application rejected. 

Cases Cited:
Pep re reservation of points of Law under section 21 Supreme Court Act, The State [1983] PNGLR 287
The State v Paul Kundi Rape, [1976] PNGLR 96

Counsel:

T. Aihi, for the State
R. Kolowe, for the Defence
					Ruling
3rd May, 2018

1.	MIVIRI AJ: This is the ruling on a no case submission made by the accused to stop his case on the three counts of misappropriation.

Background

2.	Accused was the liaison officer between the Central Provincial Administration and the office of the Governor of Central Province, then, Alphonse Moroi. Who was also the chairman of the Provincial Executive Council. It made a decision to purchase 9 Police vehicles for Police in Central Province for the 2012 General Elections. The total cost of the purchase from Ela Motors was K900, 000.00. The Provincial Administrator then, Manasseh Rapila implemented that decision.  A K700, 000.00 and a K19, 709. 38 cheques were raised and paid to Ela Motors Limited to supply the vehicles. The vehicles were bought but accused held back one of the vehicles registered number BDP 758 between the 1st and the 30th June 2012 dishonestly applied it to his own use. Also during the same period, he bought and dishonestly  applied to his own use a Yamaha 23 foot U boat Stern seat and a 40 horse power Yamaha enduro long shaft all properties of the Central Provincial Government.

3.	The three charges on the indictment invoked Section 383A of the Code which read:

“(1)	A person who dishonestly applies to his own use or to the use of another person-
(a)		Property belonging to another; or
(b)	Property belonging to him, which is in his possession or control (either solely or conjointly with another person) subject to trust, direction or condition or on account of any other person,
is guilty of a crime of misappropriation of property.
 (2) 	An offender guilty of the crime of misappropriation of property is liable to imprisonment for five years excerpt in any of the following cases when he is liable to imprisonment for ten years-
(a)	where the offender is a director of a company and the property dishonestly applied is company property;
(b)	where the offender is an employee and the property dishonestly applied is the property of his employer;
(c)	where the property dishonestly applied was subject to a trust, direction or condition;
(d)	(where the property dishonestly applied is of a value of K2000 or upwards. 
(3)	For the purposes of this section -
(a)	property includes money and all other property real or personal, legal or equitable including things in action and other tangible property; 
(b)	a person’s application of property maybe dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution thereof to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property;
(c)	a person’s application of property shall be taken not to be dishonest, except where the property came into possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps;
(d)	persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender’s application of the property, had control of it.
	Penalty: Imprisonment for a term not exceeding one year.
(4)………

4.	The first count related to a Toyota Land cruiser registered number BDP 758 and the Second related to a Yamaha 23 Foot U boat Stern seat and the third count related to a Yamaha 40 horsepower long shaft endure outboard motor. The allegation against all were that the accused dishonestly applied these properties to his own use or to the use of others and thereby breached the law set out above. 

State case

5.	The State case opened and comprised the following evidence tendered by consent and marked as exhibits; 

(i)	Record of interview undated in English State Exhibit S1

(ii)	Bank of PNG cheques, (a) cheque No. 134822 dated the 7th June 2012 value K 700, 000.00 Exhibit S2A and 2B back of cheque; (b) cheque No. 134823 dated the 7th June 2012 valued at K 19, 709. 38 exhibits S3A and S3B back of the cheque and Exhibit S3C statement dated 28th August 2013 of the witness Walis Imbal Provincial Treasurer Department of Finance and Treasury confirming these cheques.

(iii)	Certificate of registration of Business name dated the 26th February 2016 of Eno Transport Hire State Exhibit S4.

(iv)	Business name extract of Eno Transport Hire dated the 26th February 2016 bearing owners as Bura Maro and Kevin Unobo.

(v)	Police Photographer Samuel Koy statement dated the 5th May 2015 State exhibit S6 attaching 9 photographs of Exhibit S6A Yamaha 23 foot U boat Stern seat from the back, from the top down exhibit S6B, Type model and number of it Exhibit S6C, Exhibit S6D Toyota ten seater land cruiser registered number BDP 758 frontal view, Exhibit S6E the back view of the same vehicle, Exhibit S6F the chasis number of the said vehicle model HZJ78RJMRS engine 1HZ 4164 frame JT ERB71J300065812. Exhibit S6G photo of the Yamaha 40 horse power long shaft outboard motor. And Exhibit S6H frontal of that same outboard motor. And exhibit S6I is the particulars of this outboard motor Yamaha E40XMH 66TK L 1131673 C.

(vi)	Exhibit S7 are search warrant dated the 11th June 2014 directed to Ela Motors in respect of three invoices P46401, P46402, and P46403 which relates to the subject items purchased.

(vii)	Exhibit S7A is a return of that search warrant signed by Willard Stephen Legal Officer Ela Motors addressed to the Fraud Squad.

(viii)	Exhibit S8 is a search warrant dated the 1st December 2014 details of the Toyota Land cruiser held in the records of Ela Motors Branch Office Alotau as that is where it was ferried.

(ix)	Exhibit S9 is another search warrant dated the 25th June 2015 to check the details of the Toyota Land cruiser registered number BDP 758 at the Ela Motors head office.

(x)	Exhibit S10 is also a search warrant dated the 28th March 2014 to search Gebea village and surrounding cloudy bay LLG Abau for properties misappropriated.

(xi)	Exhibit S11 is a letter dated the 27th April 2012 to Honourable Alphonse Moroi requesting financial assistance dingy and outboard motor and is signed by Kevin Unobo.

(xii)	Exhibit S12 is the statement of Norman Ray who states that submissions were made and the Provincial Supply and Tenders Board deliberated on it and FF3 FF4 were signed off by Manasseh Rapila then provincial administrator to process the cheque.

(xiii)	Exhibit S13 is statement of Morgan Oasora confirming that four provincial number plates were allocated to vehicles which were purchased and these were PAD 853, PAD 854, PAD 855 & PAD 856. And he received the registration papers from Kevin Unobo and entered particulars in the asset registrar. He does not have Knowledge of record of BDP 758 ten seater white in colour and two outboard motors and banana boat.

(xiv)	Exhibit S14 is the statement of Michael Ligo dated the 23rd April 2014 he is the first secretary and advisor to Governor of Central Province honourable Kila Haoda. He went through the records and could not locate the letter Exhibit S11.

(xv)	Exhibit S15 is statement of Simon Ahur sales manager of Ela Motors Alotau. He acted in response to search warrant 05 of 2014 and gave details from the Ela Motors system that stock number TO511-248L was registered as BDP 758 the VIN number JTERB71J300065812 indicating that vehicle is not ENO transport and the stock was retrieved from Alotau. Vehicle was shipped from Alotau and picked up in Port Moresby.

(xvi)	 State exhibit S16A is the final invoice of Yamaha 40 horsepower enduro long shaft outboard model number E40XMHL-R, vin number is 66TK-1131673 price is receipt number NP410 is K 9, 709.38 and receipt number NP413 is 490.62 giving total K 10, 200.00.

(xvii)	Exhibit S16B is customer order form setting out the customer name as Provincial Government Central Free Mail bag Port Moresby and sets out the outboard set out in Exhibit S16A including the price paid. The second page of this exhibit confirms this out.

(xviii)	 Exhibit S16C is official receipt showing Central Provincial Government as customer of the Yamaha 40 horsepower long shaft deal reference as P46402 in the sum of K 9, 709.38.

(xix)	Exhibit S16D marine and power products delivery form confirms that delivery of the outboard motor set out in Exhibit S16C is received by Kevin Unobo from sales person Mase H Ray.

(xx)	Exhibit S16D is delivery in good order deal P46401, P46402, and P46403 all in good order.

(xxi)	Exhibit S16E is the quotation of the outboard motor obtained by Kevin Unobo dated the 13th July 2012.

(xxii)	Exhibit S17A is final invoice of Stock YA085-3499 is the 23foot U boat stern seat handgrip drain plug priced at K9, 090.91. K 10, 000 is paid receipt number NP 411. 

(xxiii)	Exhibit 17B is the customer Order form which has the customer name as Central Provincial Government. And it relates to the 23 foot U Boat stern seat handgrip drain plug.

(xxiv)	Exhibit 17C is official receipt dated the 8th June 2012 and this relates to the U boat in exhibits S17A and S17B.

(xxv)	And Exhibit S17C is marine and power products delivery form deals are P46401, P46402, and P46403 describing the unit as Outboard Motor.

(xxvi)	Exhibit S18 is the statement of the witness Api Kassman confirms the sale of Toyota Land Cruiser registered number BDP 758 chassis No. JTER71J300065812 Engine No IHZ-0701458 and that he was dealing with the Kevin Unobo representative from the provincial government. He sold about five to six Toyota Land Cruisers.

(xxvii)	Exhibit S18A is the final invoice relating to the subject vehicle shown out in Exhibit S18 priced at K124, 338.78 customer is Central Provincial Government.

(xxviii)	Exhibit S18B is customer deal pack setting out as Provincial Government Central Province including Exhibit S18C official receipt made out to Central Provincial Government.

(xxix)	The sworn oral evidence of Alphonse Moroi former governor Central Province confirms intent to purchase 10 police vehicles for the central Province Police which settled down to 9 vehicles. And directions which were given to Manasseh Rapila Provincial administrator to implement. Together with Pauline Lama finance manager Central Province there were five vehicles and cheque of K700, 000.00 and K 19, 709. 38 were raised and paid. This is confirmed by the Ela Motors sales personals, Mase Henao Ray, for marine Products and Api Kassman’s statement for the vehicle and the supporting documentary exhibits numbered out above. And there were four delivered in the evidence of Exhibit S13 Morgan Oasora. One of the vehicles is Toyota land cruiser white registered number BDP 758 which was in the possession of the accused Kevin Unobo taken off him by police investigator Senior Constable Loko Aniau.

Law

6.	The relevant and applicable law above involves dishonesty and application of the use of property. It is relevant to be guided by the principles laid out in the case of Wellington Balewa v The State [1988-89] PNGLR 496, which facts relate to the prisoner then paying K1979.00 for a dingy and a 15 horsepower Yamaha outboard motor that he paid for out of Milne Bay Provincial Government moneys. But he sent both properties to his wife’s village in Manus as a present to his wife. The integrated local purchase order (ILPOC) was questioned by accounts in Milne Bay and not paid. Ela Motors traced it and he got money from the Milne Bay disaster fund and settled it after a long period. And when he was retrenched he paid off the money to the Milne Bay Disaster fund.

No case submission Law
 
7.     The law on no case submission is that:

 “ when there is a submission of no case to answer at the close of the case for the prosecution, the question to be asked is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is a question of law, to be carefully distinguished from the question of fact to be asked at the close of all of the evidence namely whether the prosecution has proved its case beyond reasonable doubt”. Paul Kundi Rape, The State [1976] PNGLR 96 see also Roka Pep [1983] PNGLR 287.

Issues

8.     The issue posed therefore is, is there prima facie evidence that the accused was dishonest in respect of count 1? 

9.      Is there prima facie evidence that the accused was dishonest in respect of count 2?

10.      And is there prima facie evidence that the accused was dishonest in respect of count 3? 

11.      Is there prima facie evidence that the Toyota Land cruiser registered number BDP 758 was applied to his own use or that of another?

12.      Is there prima facie evidence that the accused applied the yamaha outboard and dingy to his own use or to the use of another?

Case to answer

13.      It is the ruling of the court that there is prima facie evidence that the accused was dishonest in the application of the Toyota Land cruiser registered number BDP 758 to his own use the property of the central Provincial Government.

14.      Secondly there is prima facie evidence that the accused dishonestly applied to his own use or the use of others the Yamaha 40 horse power outboard motor and the Yamaha 23 foot U Boat stern seat both the property of the Central Provincial Government.

15.       I point that this is not the time to decide the question of facts as that belongs at the end of the trial for and against. Here it is the findings of the court that the accused has a case to answer in respect of count one, two and three on the indictment. The Toyota Land cruiser was bought by Central Province Government money and accused was not authorized to use it for Eno Transport Hire. And further accused was not supposed to have the Yamaha enduro 40 horsepower outboard motor long shaft with his father in his village. He has a case to answer in respect of count 1, 2, and 3 on the indictment and so his application is dismissed.

Orders accordingly, 

Public Prosecutor:  Lawyer for the State
Public Solicitor    : Lawyer for Defence