N10185
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO. 966 OF 2022

BETWEEN:
NELSON BONGA
Applicant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Tamade AJ
2022: 1st December

CRIMINAL LAW – bail application– offence of facilitating the movement of methamphetamine – Controlled Substance Act – Section 62 (3)(a) – Schedule II – applicant relied on a precedent where Dangerous Drugs Act was applied – issues with the charge should be raised at the District Court – Bail Act – Section 9 – tendency to interfere with State witnesses – narcotic drug – serious charge – bail refused

Case Cited:

Alinea v The State [2022] PGNC 35; N9434 
Kysely, Re Bail Application [1980] PNGLR 36 

Legislation:

Bail Act
Constitution of the Independent State of Papua New Guinea
Controlled Substance Act 2021
Dangerous Drug Act

Counsel:	

Mr Daniel Kaima, for the Applicant 
Mr Derick Dusava, for the State

1st December, 2022

1. 	TAMADE, AJ: The Applicant Nelson Bonga is a thirty-seven-year-old male from Dabo Village in Sohe District in Oro Province. He resides at Rabi at Taurama Valley in the National Capital District. He says that he is self-employed and currently runs a maintenance and construction company in Port Moresby. He also states that he is a devoted member of the House of Bread MAP Ministries International which is a religious organization.

2. 	He is currently detained at the Boroko Police Station after he was arrested by the Police at Stop and Shop Central at Waigani around 1:00 pm on 22 November 2022 and was detained at the Waigani Police Station.

3. 	On the Information presented, the Applicant is charged pursuant to section 62(3)(a) of the Controlled Substance Act 2021. Based on the information, on 14 September 2022 at the PNG Air Freight Express Limited (FedEx Express) in PNG, it is alleged that Nelson Bonga did knowingly facilitate the movement of a controlled substance as listed in Schedule 2 of the Controlled Substance Act 2021 which involved methamphetamine amounting to medium to large marketable quantity with the weight of 600 grams within Papua New Guinea. From the Applicant’s submissions, the Applicant is yet to appear in Court.

Summary of Facts

4. 	It is alleged that on Wednesday 14 September 2022, the Police CID, the National Drug and Vice Squad gathered information that there was a transit of a controlled substance which had been seized at PNG Air Freight Limited, at the FedEx Express Services through the scanning of the consignment package. The Police were made aware of the information and conducted surveillance to locate the suspect who was involved in facilitating the consignment package from Port Moresby to Australia. It was through the surveillance recordings that Police apprehended the suspect based on the CCTV footage of the person and the vehicle description.

5. 	From the summary of facts provided to the Court, the Applicant was questioned as to the incident and admitted that he was involved to facilitate the consignment package and was therefore charged and detained by the police. 

The charge 

6. 	The Applicant is charged pursuant to section 62(3(a) of the Controlled Substance Act 2021 which was recently certified on 7 February 2022.  Section 62(3)(a) is in the following terms:

(3) A person (whether natural or body corporate) who knowingly or unknowingly facilitates the movement, transportation, courier or shipment of a controlled substance that is of a-
(a) medium to large marketable quantity; or
(b) commercial quantity,
within Papua New Guinea or outside of Papua New Guinea, is guilty of an offence.

Penalty: (a) In the case of a natural person - a fine not exceeding K50,000.00 or imprisonment for a term not exceeding 25 years, or both; and…

7. 	Mr Kaima who is for the Applicant strenuously argues that the charge as against the Applicant is not defined by law as methamphetamine is not a controlled substance under Schedule 2 of the Controlled Substance Act. Mr Kaima makes a rather trivial point to say that there is no “Schedule 2” in the Control Substance Act but a “Schedule II” in Roman numeral in the legislation and therefore the charge is not prescribed by law. I am satisfied that Schedule 2 and Schedule II in Roman numeral mean one and the same thing and therefore I refuse this aspect of Mr Kaima’s submission. 

8. 	Mr Kaima of the Applicant argues that methamphetamine is not prescribed by law under Schedule 2 of the Controlled Substance Act 2021 and refers to the case of Ryan Alinea v State in which Her Honour, Acting Justice Ganaii decided in a similar application for bail under a charge involving methamphetamine. Mr Kaima argues that in Her Honour’s decision, Her Honour found that methamphetamine is not a ‘dangerous drug’ prescribed under the Dangerous Drug Act and therefore the charge of possession of methamphetamine could not be an offence known by law. Her Honour also found that the section 3 offence under the Dangerous Drug Act does not apply to sustain the charge. Her Honour drew the correlation with section 37(2) of the Constitution that the Applicant in those proceedings was entitled to the full protection of the law and therefore a person cannot be charged with an offence that is not prescribed by law. Her Honour also after weighing out other considerations for bail under the Bail Act granted bail to the Applicant. 

9. 	Mr Kaima wants this Court to believe that the same arguments apply to this case. Mr Dusava however on the other hand submits that methamphetamine is a “controlled substance” under the Controlled Substance Act 2021 which is a new legislation. 

10. 	I am of the view that perhaps Mr Kaima has slightly misled the Court as to his argument of whether or not methamphetamine is captured under the Controlled Substance Act 2021. The Applicant in this case is not charged under the Dangerous Drugs Act. With respect, her Honours decision in Ryan Alinea v State does not apply as in this matter, the charge is under the Controlled Substance Act 2021. Schedule 2 of the Controlled Substance Act lists the drugs or controlled substances, and methamphetamine is found under Part B: Substances in Schedule 2 which list methamphetamine as a Psychotropic Substance. 

11. 	Mr Kaima’s submissions are therefore misconceived in my view. If Mr Kaima’s objection is on the prescribed charge, I am of the view that this is a matter to be raised at the District Court or the relevant Court objecting to the charge on the Applicant. Section 37(2) of the Constitution is in the following terms:

37. PROTECTION OF THE LAW.
(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.
(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

12. 	I am satisfied that the offence for which the Applicant has been charged with is prescribed by law under section 62(3)(a) of the Controlled Substance Act 2021 and methamphetamine is contained in Schedule 2 Part B: Substances in Schedule 2 of the Act. 

13. 	I am of the view that the considerations for bail are as per the Bail Act and though Mr Kaima has argued the interest of justice principles referred to by Her Honour in the Ryan Alinea v State, Mr Kaima’s arguments should be properly raised to the substantive Court hearing the charge. This is a Court sitting to consider a bail application alone, whether a charge should be amended and or otherwise rests with the relevant authority. To express a view on the type of charge in my view is to impede on the authority of the police and or the Court in which these matters should be properly raised.

State’s Position

14. 	The State has opposed this bail application. Mr Dusava of the State argues that the charge of facilitating the movement, transportation and courier or shipment of the controlled substance involves a concerted group of people in which the Applicant is only one of a group of people better known as a drug ring in which the police are still investigating in their operations and therefore there is a high, if not a real possibility that if the Applicant is granted bail, there is a likelihood that he will interfere with other State witnesses in regard to the current ongoing investigations as to the drug bust of these controlled substances. 

15. 	Mr Dusava also informs the Court that the substance the subject of the charge is currently being tested in Australia as PNG does not have the facility to test these drugs and that the nature of the charges may be amended as the police see fit upon the laboratory analysis being returned from Australia.

16. 	Mr Dusava also argues that the Applicant has not produced any real evidence of a Business name of his Tucker Shop or any records of his maintenance and construction company and therefore his word cannot be accepted as to his nature of work.

Considerations under the Bail Act 

17. 	Section 9 of the Bail Act is in the following terms:

9. BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.

 (1) Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations:–
(a) that the person in custody is unlikely to appear at his trial if granted bail;

(b) that the offence with which the person has been charged was committed whilst the person was on bail;

(c) that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of–
(i) a serious assault; or
(ii) a threat of violence to another person; or
(iii) having or possessing a firearm, imitation firearm, other offensive weapon or explosive;

(d) that the person is likely to commit an indictable offence if he is not in custody;
(e) it is necessary for the person’s own protection for him to be in custody;

(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings;

(g) that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property;

(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;

(i) that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody;

(j)[3] that the alleged offence is one of breach of parole.
(2) In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it.
(3) For the purposes of Subsection (1)(i), “narcotic drug” has the meaning given to it in the Customs Act 1951.

18. 	The highlighted sections are the most relevant to this bail application. I am satisfied from the Guarantor statements provided by Kible Bonga and Elison Marjen that the Applicant will appear at trial if granted bail however I am also satisfied on reasonable grounds as submitted by Mr Dusava of the State that there is a real likelihood that the Applicant will interfere with State witnesses as there are ongoing police investigations as to this drug bust that the State submits may involve a network of people in this clandestine operation in the business of the facilitation and transportation of this illegal drug, methamphetamine. 

19. 	In the case of Kysely, Re Bail Application, the Court held that:

The word “likely” in the phrase “likely to interfere with witnesses” in s. 9(1)(f) of the Bail Act 1977, means likely in the sense of a tendency or real possibility: it does not mean “more likely than not”, “probably” or “very likely”.

20. 	The Courts have found that an applicant for bail starts with a heavy presumption that bail should be granted in his favour pursuant to the Constitution and the Bail Act and unless on reasonable grounds, one or more of the grounds in section 9 of the Bail Act is made out. I am satisfied that there is a high likelihood that the Applicant will interfere with State witnesses as there are on-going investigations in what the Police say is a serious drug bust involving the drug methamphetamine. 

21. 	Pursuant to section 9 of the Bail Act, the definition of a “narcotic drug” as per the Customs Act is:

 “Narcotic drug” means any goods consisting of, or of a mixture containing, bufotenine, dimethyltryptamine, lysergide, mescaline, psilocin or psilocybin, or any goods declared under Section 2 to be narcotic drugs for the purposes of this Act;

22. 	I am of the view that the charge for which the Applicant is charged with under section 62(3)(a) of the Controlled Substance Act is a serious charge as it carries a penalty of a fine not exceeding K50, 000.00 and a term not exceeding 25 years imprisonment and therefore the definition of a narcotic drug under section 9 should be extended to the controlled substances under the Controlled Substance Act as I am of the opinion that  it as a dangerous drug. 

23. 	The consequence of being arrested and detained thereby missing out on employment and supporting a family are consequential to arrest and are not peculiar to warrant bail in my view. Having found that the Applicant will likely interfere with State witnesses and that the drug methamphetamine is a controlled substance or a dangerous drug which carries a serious offence and penalties under the Controlled Substance Act, bail shall be refused.

24. 	The Court, therefore, makes the following orders:

i)	The Application for bail by Nelson Bonga is refused forthwith.

Orders accordingly.
________________________________________________________________
StratServ Legal: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent