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Public Prosecutor v Property (Cash) in the Sum of K400,150.00 [2021] PGNC 685; N11481 (5 November 2021)

N11481

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (POCA) FC NO. 01 OF 2018

IN THE MATTER OF
SECTION 39A, SECTION 40, 41, 59A AND OTHER RELATED PROVISIONS OF THE PROCEEDS OF CRIME ACT 2005 AND PROCEEDS OF CRIME (AMENDMENT) ACT 2015

BETWEEN
PUBLIC PROSECUTOR
Plaintiff

AND
PROPERTY (CASH) IN THE SUM OF K400,150.00

WAIGANI: BERRIGAN J
3, 5 NOVEMBER 2021

1. BERRIGAN J: This is a decision on the application of Wong Tik Lok for the costs of this proceeding to be paid by the Public Prosecutor, and other orders.
   
2. On 6 July 2018 the Public Prosecutor filed proceedings to restrain property, namely cash in the sum of K400,150 (the Property), seized from Mr Wong, an Indonesian national, at the Wutung boarder post in West Sepik Province on 12 January 2018. A restraining order was issued on 9 July 2018.
   
3. On 17 July 2018, Emmanuel Lawyers filed a notice of appearance on behalf of Mr Wong, as an interested party to the proceedings, namely the owner of the Property.
   
4. The Public Prosecutor now seeks to withdraw the proceedings on the basis set out in the affidavit of the Public Prosecutor sworn 2 September 2021, in particular that at the time the restraining order was made the Public Prosecutor had not been informed that the Property had already been released from the BSP Vanimo Branch to Provincial Police Commander Moses Ibsagi and Senior Constable Yourin on 30 May 2018. Instead, the investigator in charge of the matter from the National Fraud and Anti-Corruption Directorate deposed in an affidavit in support of the restraining order that the Property was at the time held at the BSP Vanimo Branch for safekeeping. Furthermore, the whereabouts of the Property following its release are not now known and are the subject of a police investigation.
   
5. There is no objection and leave to withdraw the proceedings is granted pursuant to Order 8 Rule 61(2) of the National Court Rules.
   
6. Mr. Wong seeks cost and other orders.
   
7. The Public Prosecutor submits that where a party discontinues without leave, irrespective of whether leave is required under Order 8 Rule 61 that party shall pay the costs against whom the discontinued claim is made, unless the court orders otherwise: Bagari v Marape (2019) N8143, per Hartshorn J at [10] to [15]. I note here that the Public Prosecutor is seeking leave, which is not opposed.
   
8. For the reasons outlined by His Honour at [17] to [19], I adopt and apply the following principles enunciated in Brookes v. HSBC Bank plc [2011] EWCA Civ 354 at [6] as applicable in this jurisdiction (emphasis mine):
   

“(1) when a claimant discontinues the proceedings, there is a presumption by reason of CPR 38.6 that the defendant should recover his costs; the burden is on the claimant to show a good reason for departing from that position;

(2) the fact that the claimant would or might well have succeeded at trial is not itself a sufficient reason for doing so;

(3) however, if it is plain that the claim would have failed, that is an additional factor in favour of applying the presumption;

(4) the mere fact that the claimant’s decision to discontinue may have been motivated by practical, pragmatic or financial reasons as opposed to a lack of confidence in the merits of the case will not suffice to displace the presumption;

(5) if the claimant is to succeed in displacing the presumption he will usually need to show a change of circumstance to which he has not himself contributed;

(6) however, no change in circumstances is likely to suffice unless it has been brought about by some form of unreasonable conduct on the part of the defendant which in all the circumstances provides a good reason for departing from the rule.”

18. The presumption referred to above, is the same as the presumption contained in Order 12 Rule 11 National Court Rules. That is that costs follow the event, as considered and explained above, except where is appears to the court otherwise.

19. Given this and that decisions from the English and Wales Court of Appeal are persuasive in this jurisdiction, I am not aware of any reason why these principles should not apply in this instance.

9. The Public Prosecutor submits that there was a change in circumstances, such that he has become aware that the Property the subject of the restraining order were removed from the BSP Vanimo Branch prior to the application for the restraining order. Furthermore, there should be no costs against the Public Prosecutor as the disappearance of the Property has nothing to do with his conduct; the Public Prosecutor has no prior knowledge of it and acted on incorrect information from the investigator in support of the application. In addition, Mr Wong’s lawyer has given notice to the State pursuant to s 5 of the Claims By and Against the State Act of his client’s intention to seek damages against the individual police officers concerned and the Royal Papua New Guinea Constabulary.
   
10. The restraining order issued on 9 July 2018 applies to: “Property described as Papua New Guinea Currency in the sum of K400,150.00 in cash detained at Bank of South Pacific Branch in Vanimo”.
    
11. Section 40 of the Proceeds of Crimes Act 2005 provides that the Public Prosecutor may apply to the Court for a restraining order.
    
12. No ancillary orders pursuant to s 50 of the Proceeds of Crimes Act ordering the Commissioner of Police to take custody and control of the Property to ensure its preservation were made. No undertaking as to damages or costs by the State was required. It is noted, however, that the investigator deposed at paragraph 38 of his affidavit that the suspects would suffer no loss as a result of the restraining order as the cash was being held in a safe deposit box at BSP Vanimo branch. It appears now that this was incorrect.
    
13. In the circumstances it appears on the face of the restraining order that it was strictly of no utility, that is there was no property as described in the BSP Branch in Vanimo to which the orders could apply at the time the order was issued.
    
14. I appreciate that the Public Prosecutor was not aware of this at the time, and further, that he and the Fraud Squad investigator may have been deliberately misled.
    
15. It is not correct to say, however, that there has been a change of circumstances since the application was made, rather that the Public Prosecutor has only now become aware of those circumstances. I am not suggesting that the Public Prosecutor had any reason to doubt the information upon which he relied from the deposing officer. In general terms the Public Prosecutor is entitled to rely on information provided to him by the police.
    
16. The question that remains, however, is why should Mr Wong bear the cost of these proceedings? It was the Public Prosecutor who brought the proceedings on the basis that the Property was held in Vanimo BSP when in fact it was not. He was wrong about that, and that error was a matter between the Public Prosecutor and the police. Reasonable enquiries on the part of the deposing officer with BSP Vanimo should have revealed the error.
    
17. As outlined above in Bagari v Marape, supra, even assuming that the information could be regarded as a change of circumstance, no such change is likely to suffice unless it has been brought about by some form of unreasonable conduct on the part of the defendant, or the interested party in this case, which in all the circumstance provides a good reason for departing from the rule.
    
18. There has been no unreasonable conduct on the part of Mr. Wong in these proceedings. It is not alleged that he is in any way involved with the removal of the Property from the bank.
    
19. In the meantime, by notice of motion dated 1 August 2018 Mr Wong sought to have the restraining order revoked. The application was opposed by the Public Prosecutor and ruling reserved. On 6 February the application was dismissed. That decision is apparently now under appeal before the Supreme Court.
    
20. Furthermore, it appears that Mr Wong’s lawyers have made the Public Prosecutor aware of their concerns regarding the security of the Property since March 2020.
    
21. Consequently, I am not satisfied that the Public Prosecutor has shown any change of circumstance or form of unreasonable conduct on the part of Mr Wong which in all the circumstances, or at all, provide a good reason for departing from an order that costs follow the event.
    
22. I refuse Mr. Wong’s submission that the police officers concerned be held in contempt for breaching the order of Salika CJ of 6 February 2020 that the Property be held in BSP Vanimo Branch. The application is not brought by notice of motion. Whilst not necessary to my decision, I also note that the order is directed to ‘the Police”, and there is no evidence that the “Police” in the order were personally served with the order: Bishop v. Bishop Bros [19988-89] PNGLR 533; Vaki v Damaru [2016] PGSC 73; SC157.
    
23. I also refuse to make orders that the Property be returned within seven days by the named officers, failing which the State is liable to repay the property within 14 days, and any claim for damages.
    
24. The allegations concerning the missing Property are very serious. They are currently under criminal investigation and might properly form the subject of civil proceedings but they are not the subject of these proceedings.
    
25. Furthermore, as above, the Property was never restrained pursuant to the restraining order and has not been lost as a consequence of it.
    
26. Finally, it is clear to me from a general reading of the Proceeds of Crimes Act that whilst an application for a restraining order is made by the Public Prosecutor, costs associated with such an order are to be borne by the State. That is entirely appropriate. The Public Prosecutor is acting on behalf of the State in bringing proceedings under the Act.
    

Orders

26. The Court orders:

(1) Leave is granted to the Public Prosecutor to withdraw the proceedings.

(2) The State shall pay the costs of Wong Yik Lok of these proceedings on a party/party basis to be taxed if not agreed.