N9703

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 541, 542, 543 & 544 OF 2021

BETWEEN:
THE STATE

AND:
TIIONG JUK CHOUNG

AND:
KACHANG WAN ANAK

AND:
NGU NGUK HEIN

AND:
VARAYIL SREERANG

Vanimo:  Rei, AJ
2021:  7th, 13th, 27th September, 8th, 10th & 11th November

PRACTICE AND PROCEDURE – unseaworthy ship, fine of K80,000.00 paid for by owner company of marine vessels – tug boats – District Court decision – Case to answer - National Court of Justice to consider – Autrefois acquit – S.17 of Criminal Code – autrefois acquit or convict - former conviction or acquittal – District Court no power to dismiss case at Committal Court – Ss 94, 96 & 162 of Merchant Shipping Act.

Cases Cited:

Sapuro -v- Bryant [1974] PNGLR 61
Sudi Yaku -v- Commissioner for Police ex parte The State [1980] PNGLR 27

Legislations Cited:
	
Ss 17 and 331(1) of the Criminal Code
Ss 94, 96 and 162 of Merchant Shipping Act	S.347(1) Criminal Code Act 

Counsel:	

Ms. D. Ambuk, for the State
Mr. P. Moses, for the four (4) accused persons

11th November, 2021

1.	REI AJ: BACKGROUND: This matter comes to this Court by way of an application filed by Mr. P. Moses seeking an Order that the four (4) accused persons be acquitted as a fine of K80,000.00 paid and penalised by a Court of Law.

2.	The four (4) accused persons are employees of Samas Logging Company Ltd and Aitape Jaya Logging Company Ltd.  These companies paid the fine of K80,000.00 being K40,000.00 each for the two tug boats.

3.	The State alleges that on the 5th day of August 2020, the four (4) accused, persons whilst under the direct employment and instructions of their employer companies Samas Logging Company Ltd and Aitape Jaya Logging Company Ltd took two marine vessels out to sea, and, knowing before hand that the said two marine vessels were unseaworthy, they complied with the instructions of their employer Samas Logging Company Ltd and Aitape Jaya Logging Company Ltd and took the marine vessels to sea loading logs. 

4.	The marine vessel TG Danum 128 was skippered by Sreerang Vasayil owned by Aitape Jaya Logging Ltd and the marine vessel TB Salik was skippered by Kachang Wan Anak owned by Samas Logging Company Ltd.  Ngu Nguk Hein is Manager for Aitape Jaya Logging Company Ltd and Tiok Juk Choung is the Manager for Samas Logging Company Ltd.  These gentlemen allowed the skippers to take the two tug boats to open sea.

5.	Both marine vessels, tug boats, were previously inspected by the National Maritime & Safety Authority (“NMSA”) who concluded that they be both condemned as being unseaworthy under Ss 94, 96 and 162 of the Merchant Shipping Act.

6.	After being so declared by the NMSA, the owners and the captains of both tug boats continued to sail them by loading logs and transporting them between ports.

7.	In the meantime, The NMSA considered the merits of the case:  both facts and issues, decided that the employing company Samas Logging Company Ltd and Aitape Jaya Logging Ltd pay a fine of K40,000.00 each for and on their own behalf and for and or behalf of the four (4) accused persons.

8.	After the fine of K80,000.00 was paid (by the employing companies Samas Logging Company Ltd and Aitape Jaya Logging Ltd) the members of the Royal Papua New Guinea Constabulary arrested and charged the four (4) accused persons under Section 331(1) of the Criminal Code for the same offence for which the companies Samas Logging Company Ltd and Aitape Jaya Logging Company Ltd were charged with and for which a fine of K80,000.00 was paid by them each and severely.

9.	The matter went before the Committal Court of the Vanimo District Court in committal proceedings.

10.	Mr. August who then appeared for the four (4) accused persons made submissions that as a fine of K80,000.00 had been paid by the employing companies Samas Logging Company Ltd and Aitape Jaya Logging Co. Ltd, the four accused persons be acquitted.  He also submitted that there was no prima facie case such that the accused persons be committed to stand trial in the National Court of Justice.
 
11.	He then submitted at that stage that the matters be dismissed for duplicity.

VANIMO DISTRICT COURT

12.	On the day of 11th December 2020, the Committal Court of Vanimo District Court presided by Senior Magistrate Sasa Ikung handed down a decision in which he found that the District Court does not have jurisdiction to dismiss the case on an application made pursuant to Section 17 of the Criminal Code titled “Former conviction or acquittal”.
				
13.	The effect of that decision is that the Committal Court does not have any jurisdiction to determine the issues before it; issues relating to autrefois acquit and autrefois convict provided for under Section 17 of the Criminal Code.

14.	On that basis alone he ruled that the four (4) accused persons be committed to stand trial in the National Court of Justice thus leaving that issue to be determined by the National Court of Justice.

15.	This matter is before this Court to consider whether the four (4) accused persons be acquitted as their respective employers had paid the fine of K40,000.00 each to the NMSA for and on their own behalf and for and on behalf of the four (4) accused persons who were then under their respective employment.

RULING

16.	The District Courts Act generally gives powers to a committal court to decide whether there is a prima facie case to commit accused persons to stand trial in the National Court of Justice.

17.	The issue is whether those powers are wide enough to cover the situation involving the issue of autrefois acquit or convict.

18.	A Magistrate of a District Court (Committal) Court only has powers to consider whether there is a prima facie case to commit an accused person to stand trial in the National Court of Justice on a charge of an indictable offence.

19.	Any special defence(s) such as the defence of autrefois convict or acquit raised by any accused person(s) in a matter should be left to the National Court of Justice to consider and determine as the raising of defences entails that there is a case to answer and that a committal to the National Court of Justice for the accused persons to stand trial is warranted.  The Committal Court is only required to establish whether there is a prima facie case to commit.  It is not to decide on the merits of the case involving technical legal defences or otherwise.

AUTREFOIS CONVICT

20.	The Committal Court of Vanimo District in essence correctly found that it had no jurisdiction to decide the issue involving autrefois convict or acquit.

21.	Section 17 of the Criminal Code provides that:

“17.  FORMER CONVICTION OR ACQUITTAL”
“It is a defence to a charge of any offence to show that the accused person has already been:
(a)	tried, convicted or acquitted, on an indictment on which he might have been convicted of the offence which he has been charged; or
(b)	acquitted on indictment, or convicted, of an offence on the indictment or complaint on which he is charged.”
             (emphasis are mine)

22.	In order for the defence of autrefois convict or acquit to effectively operate, it must be satisfactorily shown by the defence that the accused was convicted or acquitted on an indictment – Sapuro -v- Bryant [1974] PNGLR 61.

23.	The fine of K80,000.00 paid for by the employing companies in my opinion resulted from the disciplinary action then taken by the NMSA and should not be regarded as conviction or an acquittal upon an indictment – Sudi Yaku -v- Commissioner for Police exparte The State [1980] PNGLR 27.

24.	That it is not their employers, who are companies having phenomenal characters whose eyes, ears, nose and brain are vested in its directors who are represented by the four (4) accused persons in operating the tug boats.

25.	They should have each and severally ensured that the vessels were sea worthy before taking them to open ocean.  By doing so they could have been seen to be complying with the directives of the NMSA.

26.	It is not the employing company to do that.  It is the employees duly authorized under the terms and conditions of their respective employment to do that.

27.	The defence of autrefois acquit therefore does not apply here as the accused persons were not acquitted upon an indictment.

28.	However, this matter was mentioned in May 2021 circuit in which the State submitted it was awaiting instructions from the NMSA.  The same reason was given in July and in this Circuit.

29.	The NMSA has not given instructions for this matter to proceed further and the accused persons have been waiting for more than 1 year 6 months to stand trial.

30.	If instructions are not forthcoming, it can only be reasonably concluded that the instructing State agent is not willing and is not interested to prosecute the matter further.

31.	The accused persons have been waiting for more than 1 year 6 months for their cases to be heard and disposed off in which time they have complied with all bail conditions. 

32.	The matter was mentioned on the 8th November, 2021 and State informed the Court that the matter be further mention on the 10th November, 2021.

33.	On the 10th November, 2021 State informed the Court that they have confirmed instructions from NFA Legal Division that they will not pursue the charges as the Company has already paid the fine of K80,000.00.  State than filed a Declaration that a charge will not be laid against all the accused persons.

34.	I therefore conclude that this matter be dismissed upon State filing a Declaration that the Charge will not be laid against all four (4) accused.
______________________________________________________________
Public Prosecutor:	Lawyer for the State
Public Solicitor:  Lawyer for the Defendants