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State v Yopo [2021] PGNC 621; N9634 (31 December 2021)

N9634


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) 158 OF 2020


THE STATE


v


RICHARD YOPO


Waigani: Salika CJ
2021: 15th, 16th, 17th, 21st & 25th June, 31st December


CRIMINAL LAW – Practice and Procedure – Charge of Misappropriation of a motor vehicle – Asset misappropriation- Registration of motor vehicle in his own name - Instructed Ela Motors to register the vehicle in his own name – Whether the instruction was dishonest.


CRIMINAL LAW – Practice and Procedure – Bona fide claim of right – Mistake of fact.


Cases Cited:


State v Gabriel Ramoi [1993] PNGLR 390
State v Waik (2018) N7131
State v Francis Laumadava [1994] PNGLR 291


Counsel:


Ms H Roalakona and Ms S Mosoro, for the State.
Mr M Ipape, for the Accused.


31st December 2021


  1. SALIKA CJ: INTRODUCTION: The accused in this matter was charged that he from 27 August 2013 to 31 January 2020, in Port Moresby dishonestly applied to his own use and to the use of others, a Toyota 5 Door Land Cruiser motor vehicle, Registration No. BEA 793, valued at one hundred and twenty eight thousand five hundred and eighty kina and thirty nine toea (K123,589.39), the property of the National Airports Corporation Limited (NAC). The charge was laid under s. 383 A (1) (a) of the Criminal Code Act.
  2. The indictment was drafted, signed and presented by the Public Prosecutor pursuant to s. 526 of the Criminal Code Act on July 2020.

THE ALLEGATIONS


  1. The following allegations were made by the State:

“In 2013, the accused, Richard Yopo was employed by the National Airports Corporation (NAC) as the General Manager Business Strategic Unit.


As part of his employment contract for the position of General Manager Business Strategic Unit, NAC was to provide a motor vehicle for official and personal use.


On 28 August 2013, a payment of K128,580.39 was raised by NAC in ANZ cheque no. 012932 as payment to Ela Motors for the purchase of a motor vehicle, being a Toyota Five Door Land cruiser.


The vehicle was purchased and an official receipt was produced by Ela Motors of the purchase. Ela Motors then as per the accused instructions, wrote out the official receipt with the customer name, Ricks Hire Cars, despite Ricks Hire Cars not making the payment and not being the customer.


The accused upon receiving the motor vehicle, did not have it registered under the NAC Vehicle Fleet register rather immediately registered under his name with the Motor Vehicle Insurance Limited (MVIL). NAC despite purchasing the motor vehicle did not have records of the subject vehicle.”


  1. On arraignment, the accused denied the charge and a trial ensued.

ELEMENT OF THE OFFENCE


  1. Section 383 A (1) (a) provides:

“383A. MISAPPROPRIATION OF PROPERTY.

[122](1) A person who dishonestly applies to his own use or to the use of another person–

(a) property belonging to another;”

  1. The elements of the charge are:

ONUS OF PROOF


  1. The State is required to prove each and every element of the charge beyond reasonable doubt.

EVIDENCE


  1. In order to prove each and every element of the charge, the State called 8 witnesses and tendered numerous documents into evidence. The following documents were tendered into evidence:

The prosecution called 8 witnesses and tendered the following documents as part of its case:



No.
Name of Documents
Exhibit No.

1.
Copies of Search Warrants
A
2.
Copies of:
  1. Quotation 247953 from Ela Motors.
  2. Cheque Requisition Certificate by NAC dated 22/8/2013.
  3. Cheque raised dated 28.08.13.
  4. Official Receipt by Ela Motors YL 1718 made out to Ricks Hire Car.
B
3.
MVIL Registration Letter to IO dated 15.08.2019.
C
4.
Record of Interview with Accused.
D
5.
Copies of Quotation, Receipt from Ela Motors obtained under a Search Warrant.
E
6.
Copy of Company Extract for Rick Car Hire Limited.
F
7.
MVIL Certificate of Registration and CTP Insurance, Receipts and Photocopy of Drivers licence of Richard Yopo.
G
8.
Letter of Offer of Employment
H
9.
Copy of Contract of Employment
I

  1. The following witnesses gave oral evidence:

Timothy Gitua


(i) He was the arresting officer. He holds the rank of Chief Inspector and has been a police officer for 25 years. He is the Deputy Director of the National Fraud and Anti-Corruption Directorate of the Royal PNG Constabulary.

(ii) His evidence was that a complaint was lodged with the National Fraud and Anti-Corruption Directorate relating to the allegation of corruption in the NAC. He said a complaint against the accused was raised relating to the motor vehicle registration number BEA 793. As a result of the complaint, he started investigations into the allegations. He said he obtained search warrants for NAC, Ela Motors and Motor Vehicle Insurance Limited (MVIL) and obtained documents relating to the payment, purchase and registration of the subject motor vehicle. He said since the purchase of the motor vehicle, it has been in the custody and control of the accused.

(iii) This witness obtained statements from witnesses from NAC, Ela Motors and MVIL.

Gomara Gorua


(iv) This witness is a lawyer with Ela Motors and said the receipts done by Ela Motors to Ricks Hire Car was based on the customers instructions.

Delmay Bona


(v) The witness is the Company Secretary for MVIL and through her the certificate of registration and Compulsory Third Party (CTI) Insurance for the subject motor vehicle and said the Registration Number BEA 793 was based on sale documents from Ela Motors and that the MVIL records showed the registered owner to be Richard Yopo and has never been changed.

Joseph Kintau


(vi) Joseph Kintau was the former Managing Director of NAC. He recruited the accused as General Manager Special Business Unit on a Contract of Employment. Clause 11 of that Contract provided for NAC to provide a motor vehicle to him effectively on a 24-hour-7-days a week basis. In compliance with Clause 11 of the Schedule of the Employment Contract, the accused was provided a motor vehicle for official and after hour use. He was entitled to use the motor vehicle to drop off and pick up his children from school and do his grocery shopping with it. The witness said while the accused was entitled to the use of the motor vehicle due to his position and under the Employment Contract, he was not entitled to register the motor vehicle under his own name.

(vii) Mr Kintau said the motor vehicle purchased for the General Manager Special Business Unit was attached to the position as a tool for his trade and added that each senior management position had a motor vehicle allocated to that position. This meant when Mr Yopo left the position, the motor vehicle remains with the position Mr Yopo left. In other words, the motor vehicle remained the property of NAC. The vehicle was not his personal property.

Ephraim Wasem


(viii) Mr Wasem also a former Managing Director of NAC said the motor vehicle should remain the property of NAC because NAC purchased it. He also said there was the option of a novated lease to employees of NAC, but the arrangement here was not under such arrangement.

Walter Vele


(ix) Mr Vele was a former employee of NAC in the Managing Director’s office and later as a fleet officer and in the course of his duties, he found out that the subject motor vehicle was registered under Richard Yopo. He was responsible for registration of motor vehicles renewals and service. He said initially the vehicle was registered to NAC but he found out later that it was under Richard Yopo.

Clive Sipori


(x) This witness was required for cross-examination by the defence and his evidence was that he never received any payment from Mr Yopo or Ricks Hire Cars to NAC.
  1. That was the State’s evidence.

DEFENCE EVIDENCE


  1. After an unsuccessful no case submission, the defence called Mr Richard Yopo. Mr Yopo is a graduate in Accountancy from the University of Technology in Lae and is also a graduate with a Bachelor in Business Management from the Divine Word University. He worked with Chevron Niugini, Bank South Pacific (BSP) and Australia New Zealand Bank (ANZ) before joining the NAC. He said he was new to the Public Sector work for about two and half months when he was given the motor vehicle by a State witness.
  2. His evidence was that he was not involved in the purchase and registration of the motor vehicle from Ela Motors. He said the registration of the motor vehicle was done by the Office of the Managing Director. He further said the receipt from Ela Motors was fabricated in that Ricks Hire Car was incorporated in 2016 and the receipt was issued in 2013.
  3. The accused tendered into evidence a number of employment contracts with NAC. The accused conceded he kept the motor vehicle as he was responsible for servicing the subject motor vehicle. He said when he became the Managing Director of NAC, he inherited a company that was insolvent.

UNDISPUTED FACTS


  1. From all the evidence, the following facts emerged to be undisputed:
  2. For the purpose of the issues raised in this case, these are the relevant facts to consider and determine in my respectful view.
  3. The following issues arise in this case:
    1. For whose use was the motor vehicle purchased?
    2. Who is the owner of the motor vehicle registered as BEA 973?
    3. Who registered the motor vehicle BEA 973?
    4. Whether the accused dishonestly applied to his own use or use of another, the motor vehicle registration number BEA 973, property belonging to another.

DEALING WITH THE ISSUES


WHO PURCHASED THE SUBJECT MOTOR VEHICLE?


  1. There is no dispute that the NAC bought the motor vehicle which was then registered as BEA 973 after being purchased. The purchase price of the vehicle was K128,580.39 from the NAC’s ANZ Bank Account. All the paper work in relation to the transaction is part of Exhibit B in these proceedings.

FOR WHOSE USE WAS THE SUBJECT MOTOR VEHICLE PURCHASED?


  1. There is no dispute from the evidence that the motor vehicle was purchased as the official vehicle for the General Manager, Business Strategic Unit who at the material time was Mr Richard Yopo, for his official duties and for personal use to pick up and drop his children to and from school and for purposes of shopping. This was consistent with Item 11 of the Schedule of his Contract of Employment dated 3 May 2013. The evidence of Joseph Kintau is relevant in this regard. His evidence was that the accused was given access to the full use of the motor vehicle for official use and personal use and that he was entitled to take the motor vehicle, home park it and drop off children at school and buy groceries. He said having the car registered in his own name was not permitted and that the vehicle always remained the property of NAC and was to be used by the General Manager Strategic Business Unit of NAC.

WHO WAS THE OWNER OF THE MOTOR VEHICLE REGISTERED AS BEA 973?


  1. As discussed above, the vehicle was and is owned by the NAC and not Richard Yopo. The subject motor vehicle should have been registered in the name of NAC and not Richard Yopo. This is not in dispute.

WHO REGISTERED THE MOTOR VEHICLE?


  1. The vehicle in this case was purchased from Ela Motors in Port Moresby, the motor vehicle dealer dealing with Toyota brand of motor vehicles. The purchase document including invoices on the sale of the motor vehicle were then referred to the Motor Vehicle Insurance Limited (MVIL) for registration of the motor vehicle. Ela Motors had the motor vehicle registered under the name of Richard Yopo.

DID THE ACCUSED DISHONESTLY APPLY TO HIS OWN USE AND TO THE USE OF ANOTHER, MOTOR VEHICLE REGISTRATION NUMBER BEA 973, PROPERTY BELONGING TO ANOTHER?


  1. The vehicle registered as BEA 973 was registered by Ela Motors under Richard Yopo as the owner when in fact the motor vehicle ought to have been registered under NAC as its customer and owner. The customer however is identified in the Ela Motors invoices as RICKS HIRE CARS and the motor vehicle was registered under Richard Yopo as its owner. How the receipt was made out to Ricks Hire Cars and not to NAC is not known. There is no direct evidence of this. Ela Motors, through Mr Gomara Gorua said Ela Motors made out the invoice to Ricks Hire Cars as instructed by the Customer. The customer is NAC and not Ricks Hire Cars.
  2. Ricks Car Hire Limited is a company incorporated under the PNG Company Law and Ency Yopo is the sole shareholder while Richard Yopo is a Director of Ricks Car Hire. The company postal address is PO Box 471, Boroko, National Capital District. I note the evidence for Mr Yopo that Ricks Car Hire was incorporated later. Here we are dealing with Ricks Hire Cars.
  3. How Ricks Hire Cars became a player and a customer in relation to the purchase of the subject motor vehicle is not in evidence. The only common denominator between Ricks Hire Cars and Richard Yopo is that both have the same postal address, P O Box 471, Boroko 111. There is no other evidence of their connection. The question remains: How did Ricks Hire Cars get to be named as a customer in this transaction with Ela Motors. Ela Motors officers and Richard Yopo could not explain how this occurred. I note that Ricks Hire Cars, Ricks Car Hire and Richard Yopo all have the same postal address. Ricks Car Hire became an entity in 2016.
  4. The only relevant common factor in the saga is that the subject motor vehicle was registered under Richard Yopo as the owner of the motor vehicle from the time of its purchase to today, a period of nine years.
  5. Richard Yopo’s evidence was that he did not know how the vehicle was registered under his name. He said he was given the keys to the subject motor vehicle by Walter Vele in his office and was told by Walter Vele that his vehicle was parked at the NAC car park.
  6. He said he had played no part in invoicing and the payment of the cheque from NAC to Ela Motors. He said he never gave instruction to Ela Motors to write the receipt in the name of Ricks Hire Cars nor did he ask the subject motor vehicle to be registered under his name. He said this was all handled by NAC officers and Ela Motors.
  7. He said it defied all accounting standards for Ela Motors to issue a receipt to Ricks Hire Cars an entity that never existed at the material time in August 2013. He said the company he incorporated in 2016 was Ricks Car Hire Limited and not Ricks Hire Car.
  8. It was in 2014 when the MVIL registration was due, that he realized that the vehicle was registered under his name. He said that he believed that the subject motor vehicle was registered under his name because of discussions he had with Mr Kintau. He said in 2014, 2015, 2016 and 2017, the MVIL registration were done and paid for by NAC officers.
  9. The effect of the evidence of Joseph Kintau and Ephraim Wasem is that the subject motor vehicle always belonged to NAC and was attached to the office of the General Manager Special Business Unit. The accused said by accounting standards and protocols within the NAC office, the motor vehicle had reached its economic useful life of 5 years from time of purchase. He said in 2018, the vehicle had reached its 5-year life limit and so he decided to keep it with 3 other vehicles to support the APEC summit in 2018. The accused’s evidence on the economic use of the vehicle is irrelevant.
  10. It was not for the accused to keep the motor vehicle, rather it was for him to return the motor vehicle to NAC after the economic life of the motor vehicle was over so that replacement vehicle is purchased. He however has kept it up to today and treats it as his own property. The accused was aware of the fact that the motor vehicle always belonged to NAC yet he kept it and keeps on keeping it as his own. Not only did he keep it, he had always had it registered under his own name up to today. He knows the subject motor vehicle belongs to NAC and not him.

WAS HIS CONDUCT DISHONEST?


  1. The evidence before the Court is that he was entitled to the unlimited use of the motor vehicle under his terms and conditions of employment as General Manager Special Business Unit. There is no evidence he used the company’s subject motor vehicle for Ricks Hire Car or Ricks Car Hire business but that is not relevant.
  2. The motor vehicle was purchased by NAC for the accused’s official and personal use. The vehicle was registered under Richard Yopo and not NAC. How did the subject motor vehicle end up being registered under Richard Yopo? Richard Yopo said he did not have the vehicle registered. MVIL company secretary, Delmae Bona in her evidence said MVIL registered the motor vehicle BEA 793 based on documents from Ela Motors. The MVIL records show that the subject motor vehicle was registered to Richard Yopo from the time of purchase to today and has never changed. This means on record the vehicle registered as BEA 793 when purchased shows Richard Yopo as the owner. The true position was that the vehicle should have been registered under NAC as the owner. From the time of its purchase, the accused said he never registered the vehicle but officers from the Managing Director’s office had registered it. But in 2014, he became aware that the vehicle was registered in his name and not NAC. Did he do any thing or take steps to have his name removed and have the vehicle registered properly under NAC? No.
  3. The motor vehicle was bought in August 2013. From 2013 to today 2021, the motor vehicle has always been registered under Richard Yopo. That is a period of 8 years, 4 months. In those 8 years the accused paid for the renewal of the registration of the motor vehicle and maintained it as his own personal asset.
  4. The State urged the Court to consider the documentary evidence carefully. Ela Motors wrote out the receipt for the purchase of the motor vehicle to Ricks Hire Car in 2013 and had the motor vehicle registered under Richard Yopo. Ela Motors evidence is that when they register motor vehicles, it is done according to the instructions of the customer. The accused said the receipt made out to Ricks Hire Cars was the mistake of Ela Motors and not his. But the question is how and why Ela Motors would make out the receipt to Ricks Hire Car, an unknown entity to Ela Motors and NAC and its officers; unless they were instructed to do so. Ela Motors had received the K128,580.39 from NAC for the purchase of the subject motor vehicle and ordinarily they would write out the receipt to NAC as the purchaser of the motor vehicle, unless someone told them to make out the receipt to Ricks Hire Car. Similarly, Ela Motors should ordinarily have the motor vehicle registered under NAC as its owner, unless someone told them to register the motor vehicle in the name of Richard Yopo.
  5. How would Ela Motors know the connection between Ricks Hire Cars and Richard Yopo. Similarly, how would Ela Motors know the postal address: P O Box 471, Boroko, appearing on the Ela Motors receipt, to be the same postal address for Ricks Hire Cars or Ricks Car Hire on the company extract of the Company. The postal address used on the Employment Contract of Richard Yopo is P O Box 471, Boroko. The common denominator in the Ela Motors receipt to Ricks Hire Car, the company extract of Ricks Car Hire and the employment contract of Richard Yopo is the postal address: P O Box 471, Boroko. To me with respect, this is a critical piece of evidence that connects Ricks Hire Cars, Ricks Car Hire, Richard Yopo and Mr Yopo’s employment contract.

WAS SOMEONE FROM THE MANAGING DIRECTOR’S OFFICE INVOLVED IN INSTRUCTING ELA MOTORS?


  1. The officers that could be possibly involved from the Managing Director’s office in the registration of the subject motor vehicle would have been

However, there is no evidence any of these officers knew of Ricks Car Hire’s postal address or Ricks Hire Car’s postal address and Richard Yopo’s postal address. On that basis, I find none of the officers mentioned above had anything to do with instructing Ela Motors to write out the receipt to Ricks Hire Cars and to have the motor vehicle registered in the name of Richard Yopo. Why would they anyway?


WHO INSTRUCTED ELA MOTORS TO MAKE OUT THE RECEIPT TO RICKS HIRE CARS AND TO HAVE THE SUBJECT MOTOR VEHICLE REGISTERED UNDER RICHARD YOPO?


  1. I have dismissed any insinuations and suggestions that officers from the Managing Director’s office might have been involved in instructing Ela Motors to make out the receipt in the name of Ricks Hire Cars and to have the motor vehicle registered in the name of Richard Yopo. I found they had nothing to do with these.
  2. The only person who knows the details of Ricks Hire Cars or Ricks Car Hire and PO Box 471, Boroko, is the accused himself. All that information is only privy to him. Is it not unreasonable to point all fingers at him? No; is my answer. I therefore find that the accused, Richard Yopo, instructed Ela Motors to make out the receipt in the name of Ricks Hire Cars with the common postal address of P O Box 471 and instructed Ela Motors to register the motor vehicle under his own name from the time of purchase to today. How he did that is not known. This Court can only infer from all the evidence that the accused gave the instructions and with respect the inference is not unreasonable.

DO THE ACCUSED’S ACTIONS AMOUNT TO MISAPPROPRIATION OF THE PROPERTY?


  1. The element of the offence under s. 383 A (1) as alluded to earlier are:
  2. The onus is on the State to prove each and every element of the offence beyond reasonable doubt. In that regard, elements (ii), and (v) are not disputed. The dates the offence was allegedly committed is not disputed and is therefore proved beyond reasonable doubt. It is not disputed that the motor vehicle registration number BEA 793 was registered under Richard Yopo. It should have been registered in the name of NAC. It is not disputed that the vehicle belongs to NAC and not Richard Yopo. In that regard, element (v) of the offence is proved beyond reasonable doubt.
  3. In relation to elements (i) and (ii) of the offence, I have already found by reasonable inference that Richard Yopo instructed Ela Motors to register the motor vehicle under his own name. Accordingly, I find elements ((i) and (ii) of the offence are proved beyond reasonable doubt.
  4. In addressing element (iii), the question to be asked is: Were Mr Yopo’s instruction to Ela Motors to register the subject motor vehicle in his own name dishonest?
  5. In answering the question, firstly, the provision of the motor vehicle for the use, (official and personal) was a contract-based entitlement. No questions about that. That was not dishonest. The purchase of the motor vehicle by NAC is based on his employment contract. There was nothing dishonest about NAC paying for the subject motor vehicle from Ela Motors. Again, the provision of a motor vehicle for his official and personal use was properly done and not dishonest.
  6. The next event was the registration of the subject motor vehicle. NAC paid for the vehicle and the receipt from Ela Motors should have been in the name of NAC. Instead, the receipt was made out to Ricks Hire Cars and the motor vehicle was registered to Richard Yopo as the owner. It is common knowledge that Registration of a motor vehicle in one’s name means ownership is vested to the person under whose name the vehicle is registered. I take judicial notice of that fact. Mr Yopo knew from the terms of his contract that the motor vehicle supplied to him by NAC belonged to NAC and not him. For him then to instruct Ela Motors to register the subject motor vehicle under his own name and have the receipt made out to Ricks Hire Cars was in my respectful view not being truthful, thus his actions there were dishonest.
  7. The registration of the motor vehicle in his own name for 8 years goes to demonstrate that the accused although a very highly educated man and a man who says it defies all accounting procedures and protocols to have the motor vehicle registered under his name, does not and cannot accept the fact that the motor vehicle, the subject of this charge, belongs to NAC and it defies all accounting protocols to continue to have the motor vehicle registered under his own name year in year out for 8 years. He said he did not know the motor vehicle was registered under his name until the following year 2014 when he became aware that the vehicle was registered under his name. Did he do anything to change the ownership back to NAC in 2014? No. Are his actions in that regard dishonest? Yes, in my respectful opinion.
  8. To me with respect he continues to use the property as his own when it is not. He continues to defy common logic and accounting stand point about the ownership of the motor vehicle. By registering the motor vehicle under his own name from 2013 up to today 2021and treating and using the motor vehicle as his own is referred to by Wikipedia as; “Asset misappropriation, fraud.” Asset misappropriation fraud is when employees or others abuse their trust to steal company property or use it for personal gain. Asset misappropriation fraud may include:
  9. The ownership of the motor vehicle is in his own name. To me with respect the conduct of Richard Yopo is wrong and dishonest. Dishonestly is not defined in the Criminal Code nor is it defined by the Interpretation Act. The Court in the State v Gabriel Ramoi (1993) PNGLR 390 said:

“Dishonestly comes from the word dishonest. Dishonestly is defined

in the Oxford Advanced Learners Dictionary of current English as:


“intended to cheat, deceive or mislead.”


  1. The act of registering the subject motor vehicle in his own name in 2013, and in 2014, 2015, 2016, 2017, 2018, 2019, 2020 up to today is intended not only to cheat, deceive and mislead in my respectful opinion. Even after this conduct was reported to police he still has it registered under his name. This intention is so blatant.

The facts in this case support the contention that the accused acted deceitfully and is still defiantly acting deceitfully concerning the ownership of the subject motor vehicle. He appears to say that because he is still employed with NAC he is entitled to keep the subject motor vehicle. He conveniently forgets that the motor vehicle is attached to the office of the General Manager Business Strategic Unit, which he no longer is and that although he may still be an employee with NAC that fact does not allow him to continue to retain the motor vehicle.


  1. In the State v Waik [2018] PGNC 69; N7131 (15 February 2018) this Court said the following concerning honesty:

“9. This is another dishonesty case. One thing most of us have in common is that we do not like dishonesty. We especially do not like it when we see it manifested in others. It’s not easy, to see it in ourselves; and when we do, we tend to rationalise our actions, to justify them, to down play the significance and say:- “Oh, it’s only a small thing, it’s not bad, not really important”. We might fool ourselves even, most of the time, but we can never fool God and others perhaps. I dare say that dishonesty is practiced all through our ranks, and this is the cause of our lukewarmness on the part of many who profess to be Christians. If honesty is an essential part of human character and value, then why is it that we should tell lies or practice falsehood at the workplace, in the Courts and elsewhere.


  1. What then is dishonesty? In the case of The State v Gabriel Ramoi (1993) PNGLR 390 this Court said:

“The word ‘dishonesty’ in s.383A of the Criminal Code relates only to the state of the mind of the person who does the act which amounts to misappropriation. The state of mind when a person applies property is a question of fact for the trial judge to determine on all of the facts presented before him. And when the judge considers the facts on how the property was applied, he uses the ‘ordinary standards of reasonable and honest people test to determine whether or not the property so applied was dishonestly applied. ... ‘Dishonest’ is defined in the Oxford Advanced Learners Dictionary of Current English as ‘intended to cheat, deceive or mislead.”

I want to expand on what I said in the Ramoi case by saying that we tell our children not to tell lies because that is not honest. Honesty means a lot more than not lying. It means an honest person does not do things that are morally wrong. Honesty is about speaking and acting truthfully. Being honest means one acts in a way that he knows is the right thing to do.

  1. This Court in the Waik case further said:

“One is not being honest with himself or herself if he or she is trying to convince himself or herself that he did not really do anything wrong, or it was not that bad, even though he or she did it. In this case you may still be trying to convince yourself that you did not really do anything wrong and that it was alright to do what you did. Let me bring you back to your senses that what you did was wrong. You got by false pretence K15,000 from Gibbi Piakon and you were meant to deliver the wrecked Toyota Landcruiser to him, but you did not and to date you have not. Gibbi Piakon wants the wrecked Toyota Landcruiser and his K15,000 that you got from him. You have obviously used the K15,000 and cannot return it to him. You appear not to have a conscience at all. A conscience is that voice in your head, and that feeling in your heart that tells you if something is right or wrong even when no one is looking. In your case you do not have that voice and that feeling. You are dead to those.”


  1. The similarities in the Waik case and in this case is that, the accused in this case does not appear to have had any conscience at all for 7 or 8 years. Even after he said he discovered in 2014 that the subject motor vehicle was registered under his name, he kept on having it registered under his own name, year in year out for those 7 to 8 years up to even today. I find that the accused was dead to having a conscience. In other words, his state of mind is dead to what is right and what is wrong.
  2. At this point, I also look at what Injia AJ (as he then was) said in the State v Francis Laumadava (1994) PNGLR 291:

“At the same time, it is also a subjective one. The Court must look into the mind of the accused and determine whether, given his intelligence and experience, he would have appreciated, as right minded people would have done, that what he was doing was dishonest.”


  1. The accused is a highly educated, an astute intelligent and a very experienced manager and one would have thought that a man of his stature would have done the proper thing by the law and from his own accounting stand point. In handling this very small matter, one would have thought that the matter would be handled swiftly. That is not the case here. It has dragged on for 7 to 8 years up to now.

BONA FIDE CLAIM OF RIGHT


  1. A bona fide claim of right is a statutory defence under s. 23 (2) of the CCA. It provides:

“(2) A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.”


  1. Bona fide is a Latin term meaning “good faith”. Wikipedia says “this refers to an individual’s position under the law that is based on good faith without notice of fraud with regard to a particular transaction or with regards to the authenticity of a particular document.”
  2. All that the accused needs to show on the balance of probability is that he had an honest claim of right; that he had a “good faith” belief that the motor vehicle was his personal property, bought for him by NAC.
  3. The circumstances of his engagement by NAC is in evidence before the Court. The former Managing Director of the NAC gave oral evidence of offering accused the position of General Manager Business Strategic Unit. The terms and conditions of his engagement are stated in his Employment Contract. The NAC would provide a vehicle for the position he held, for his use on a 24-hours, 7 days a week basis, but not to own it. That is clear under his contract of employment. His contract of employment creates an opportunity for NAC to help him purchase his motor vehicle. He did not take up that opportunity under Clause 9 of the Contract. On that basis, I find he had no bona fide claim of right to own or regard the motor vehicle in question as his own. Clause 11 to Schedule 1 of the Employment Contract says:

“11. Vehicle: to be provided by the Company”.

To me, with respect, Clause 11 of the Schedule 1, the Contract is in no way indicative of the Company purchasing the motor vehicle for him to own. Mr Kintau’s evidence on this is clear on that aspect of the case. The vehicle is for his use only but the ownership remains with the NAC. The defence of an honest claim of right is not accorded to him and cannot be accorded to him. The defence of a bona fide claim of right to ownership of the subject motor vehicle is dismissed.


  1. Similarly, to some extent, there was a suggestion of a defence of mistake of fact raised by the defence. In the circumstances, I have addressed the issue on the defence of bona fide claim of right, I also say the same things. The situation did not present itself for any misapprehension of the terms of his contract so as to enable the accused to argue mistake of fact as a defence. There is no ambiguity in the employment contract that he should be mistaken about his entitlements. Again, I dismiss the defence of mistake of fact.
  2. Accordingly, I find that all elements of the charge of misappropriation including element (iii) and element (iv) of the offence are proved beyond reasonable doubt.
  3. Accordingly, I find the accused Richard Yopo guilty as charged.

__________________________________________________________________
Public Prosecutor: Lawyers for the State
Ipape Lawyers: Lawyers for the Accused

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