N10474
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 382 OF 2022

THE STATE

V

YIP CHEE MING SAM

Waigani: Berrigan J
2023: 7th, 11th, 12th, 18th July and 21st September

CRIMINAL LAW – S 477(2)(b), Criminal Code – Counterfeit Trade Mark – Evidence unsafe – Not guilty

Cases Cited:

Paulus Pawa v. The State [1981] PNGLR 498
The State v Tom Morris [1981] PNGLR 493
The State v James Popo [1987] PNGLR 286

References Cited

Sections ss 44, 49 of the Constitution 
Section 477(2)(b) of the Criminal Code
Section 6 of the Search Act

Counsel

Ms L Jack and J Siminji, for the State 
Mr M Golu, for the Accused  

DECISION ON VERDICT

21st September 2023

1.	BERRIGAN J:  The accused, Yip Chee Ming Sam of Ipo City, Perak, Malaysia was charged that between 1 June 2021 and 31 December 2021 with intent to defraud he knowingly used a counterfeit trademark on fake South Pacific Lager green cans of beer, contrary to s 477(2)(b) of the Criminal Code.

2.	It is alleged that the accused was the Operations Manager of WYB Investments Limited, trading as Shangri La Club in November 2018.  He had been working in PNG since then and living at section 38, allotment 21 Waigani Drive, Port Moresby.  The Managing Director of WYB Investments then was one Mr. Wan Yan.  Mr Yan was deported from PNG in April 2019 for smuggling fake South Pacific Lager (SP) green can beer into the country. On information gathered by the SP Brewery Security Investigation Team with the assistance of police a raid was conducted on 24 December 2021 at the Shangri La Club at Section 38, allotment 21 Waigani.  A 40-foot shipping container was found to store about 1,632 cartons of fake green can SP beer bearing the SP Brewery Trademark. The cans and the cartons that were used to pack the fake beer also had counterfeit SP logos.  At the time of the raid the accused was the consultant manager of the Shangri La Club.

3.	The State called four witnesses all of whom impressed me as honest. 

4.	The expert evidence of Carmella Sarubira, Quality Control Manager, and her supervisor, Alexander Schuehlein, the Technological Manager, at SP Brewery was very impressive. Their detailed analysis of not only the beer itself but also the manufacture and labelling of both the cans and cardboard packaging in which they were found establish conclusively that the beer that they analysed in December 2021 was counterfeit and furthermore, was from the same batch of counterfeit beer analysed by the brewery in November 2019.  

5.	I am sure that Chris Karogol, Security Manager of SP Brewery, is also very good at his job but whilst the intelligence gathered from various witnesses was relevant and admissible to prove what he did in response to it, without the witnesses themselves, the content of it was hearsay.  

6.	It is the case that as a result of certain information he began receiving from 2 November 2021 he went to the rear of the Shangri La Club on 24 December 2021. To his amazement more than fifty police in more than twenty vehicles were already on site. It is not clear who the officers were and no evidence was led from them. Police asked the accused for the keys to a 40-foot container at the rear of the premises. When he denied any knowledge of it they used bolt cutters to break into it. Mr Karogol estimated that it contained more than 1600 green SP cans neatly packed inside.  How full the container was on his evidence was not clear. He was allowed to take a carton for testing. Whilst the chain of custody evidence was not ideal for various reasons, namely that there was no receipt of the items into Mr Karogol’s custody by police and no record of receipt into the brewery’s laboratory, it does appear that the beer taken from the container was that subsequently tested by the lab. 

7.	The difficulty with all of this, however, is that it appears that police entered the premises and broke into the container and allowed the seizure of goods without search warrant. There was no evidence from any of the officers concerned and no submissions from the State as to why the Court should exercise its discretion to allow the evidence. On the face of it the breach of s 6 of the Search Act, and therefore ss 44 and 49 of the Constitution, was a serious one and the evidence should be excluded. See The State v James Popo [1987] PNGLR 286.   

8.	That is really the end of the matter but there are further difficulties for the State’s case. By the time the investigating officer arrived on scene the container was already opened. A large crowd had gathered and were pillaging from it. The container was half full and some of the boxes were broken and pulled down on to the floor of the container by that time.  The boxes appeared to be old, the colours faded. It appeared that the container had been there for a long time. The grass was tall and halfway up the height of the container. It appeared that police officers had trampled the grass down to open the container. 

9.	The forensic team refused to take photos or conduct an examination of the premises or container because of the extent of contamination at the scene. Whilst it might have been contaminated it would have been preferable for a sketch or photographs to have been taken and to allow the Court to determine the weight, if any, to be given to that evidence.  

10.	It appears that there were numerous other businesses located at the premises including a bookmaker, a hotel, an auto parts shop and a kai bar, all of which had access to the yard and the container.  There was no evidence from any other occupants of the site to establish the ownership of the container. There was no evidence to establish how long the accused had been living and working on site.

11.	The evidence about Wang Yan and his deportation was inadmissible hearsay. The material appears to be on police letterhead, but the officer concerned was not called and the records were not produced by police from their records. In addition, the materials contained a copy of an unsealed and unsigned draft information but no evidence that it had ever been filed or of any conviction. The deportation order was unsealed, did not state the basis for deportation, and its provenance was unclear. It referred to a Wang Yuanyan.  No company extract was produced to establish the ownership or connection of Wang Yuanyan or Wan Yan to WYB Investments Ltd or the Shangri La Club.

12.	On his evidence, the accused has been in PNG for seven years. Prior to 2018 he worked as the Operations Manager of Illusions Club for Cashmore Investments Ltd.  In 2018 he was employed by Wan Yan, a Chinese national, of WYB Investments Limited, as the Operations Manager.  He resigned from Shangri La Club in November 2019 due to a heart condition and was living in Gordons. In March 2021 he was employed by Wakmur Ltd as Operations Manager of Sky Line Club but laid off mid November 2021 because the business suffered financially during the pandemic. On 30 November 2021 he was called by Wan Yan who asked him to manage the Shangri La Club. He was living at the premises when the raid was conducted. Evidence from the State and the accused shows that SP green cans, together with other alcohol, was purchased from two commercial retailers on 2 December 2021 and again on 16 December 2021. I reject the accused’s evidence that there were eight containers at the premises and prefer the evidence of Mr Karogol that there was only one. 

13.	The State’s case against the accused is circumstantial. The principles governing such a case are well established. In a case resting wholly or substantially upon circumstantial evidence, an accused cannot be found guilty unless the prosecution has excluded all rational hypotheses consistent with innocence; that is the guilt of the accused must not only be a rational inference, but the only rational inference in all of the circumstances: Paulus Pawa v. The State [1981] PNGLR 498 (approving The State v Tom Morris [1981] PNGLR 493, adopting Barca v The Queen (1975) 50 ALJR 108 quoting Peacock v the King (1911) 13 CLR 619.  

14.	The State’s case falls far short of that. There was no evidence to establish where or from whom the counterfeit goods were obtained in November 2019. There was no admissible evidence to establish the fact of or the reason for the deportation of the accused’s employer. The evidence about what led police to the container in December 2021 was largely inadmissible and that which was not suggested that the intelligence was circulating from early November 2021. A work permit valid to February 2024 shows that the accused was employed by Wakmur Ltd at some stage albeit that the work permit does not appear to have been valid for his employment by WYB Investments in December 2021. The State failed to lead any evidence establishing when the accused returned to manage and live at the Shangri La Club or that he did so prior to the end of November 2021. There was no search warrant for the goods taken from the container found at the rear of the premises occupied by the Shangri La Club in December 2021 and the goods were seized unlawfully. The evidence that the grass had grown very high and that police had trampled it to gain access to the container suggested that it had not in fact been accessed for some considerable time prior to the raid. 

15.	In all the circumstances the evidence fails to establish the guilt of the accused beyond reasonable doubt and he is acquitted of the charge.  His bail monies will be refunded.

Verdict accordingly. 
________________________________________________________________
Public Prosecutor: 		Lawyers for the State
Luthers Lawyers:	Lawyers for the Accused