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Lin v Luan [2023] PGNC 442; N10588 (24 November 2023)

N10588

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 282 OF 2023

LIMING LIN
Plaintiff

AND
SUPRINTENDENT JAMES LUAN-Acting Lae Metropolitan Commander
First Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Lae: Dowa J
2023: 22^nd & 24^th November

PRACTICE & PROCEDURE – Substantive application to declare continuous detention of property and electronic items seized during police investigation unlawful on grounds of innocence -and for an order for the return of the said items- Initiating civil proceedings seeking release of possible Court exhibits in a pending criminal proceedings may amount to an interference of the justice and an abuse of the Court process-the need to respect its institutions in the justice sector for the reaching its common goal-administration of justice and good order. – in the interest of justice to allow the due process and procedure in criminal proceedings to take its normal course without interference-proceedings dismissed.

Cases Cited:
Wartoto v State (2015) SC1411
Paiam Kumbipara Holdings v Mountain Catering Ltd [2021] PGNC 169, N9011

Legislation Cited:
Constitution of Papua New Guinea

Counsel:
K Aisi, for the Plaintiff
S Maliaki, for the State

RULING

24^th November 2023

1. DOWA J: This is the Court’s ruling on the Plaintiffs claim for certain declaratory and consequential orders.
   
2. By Originating Summons the Plaintiff claims the following reliefs:
   

“1. A declaration pursuant to section 155 (4) of the Constitution that, the First Defendant and all the Policemen who were under his command including Policemen of National Crime Intelligence Unit have no lawful authority and power to continue to hold the Plaintiff’s item as follows;

1. Firearm (Licenced)
2. Computer servers,

100. Laptops, and

4. Mobile phones
   

when considering that the investigation into the case of Lin Hezhong has been completed and committed to stand trial in the National court in the matter CR NO.1909 of 2023.

2.An order that the Defendants return all the items belonging to the Plaintiff and his employees as follows;

a) Firearm (Licenced)

b) Computer servers,

c) Laptops, and

d) Mobile phones

to him within 48 hours as of the date of this Order.”

Background Facts

3. The Plaintiff is a Chinese citizen. He deposes he is the operations Manager (although in an earlier affidavit he deposed as the Managing Director) of KC2 Limited, a company operating business out of Lae, Morobe Province. His wife Mei Lin is said to be the co-Managing Director and owner of KC2 Limited. At all material times, Lin Hezhong was an employee of KC2, and one Chun Li a business acquaintance of the Lins.
   
4. It is alleged that on the early morning, of 21^st March 2023, between 4:00 am and 6:00 am, the accused Lin Hezhong and Chun Li together with six other co-accused, all named, assisted, and transported 5 x pink duffel bags of controlled substance, namely Methamphetamine into a vehicle, a Toyota Land Cruiser- ten-seater, blue in colour, Reg. No. LBZ 606. The controlled substance was loaded from the premises of a company, KC2 Limited, at Allotment 14 Section 100 Cassowary Road, Lae City. The five (5) bags were then transported to Bulolo Airstrip and loaded them onto a small aircraft, Reg No. P2-BOB.
   
5. Between 3.00 and 4:00 pm, the described Aircraft, P2 BOB was intercepted by Australian Federal Police at a rural airstrip in Central Queensland, Australia. All five (5) duffel bags containing 88 plastic bags with an average content of 600 grams each totalling 52kg of Methamphetamine was confiscated. The monetary value placed on the drugs is 15 million Australian dollars, about K33 million (PNG Kina).
   
6. As part of their investigations, the PNG police conducted a search at the premises of KC2 and retrieved several valuable items including the items listed in the Plaintiff’s application.
   
7. The accused Lin Hezbeng and the co-accused are charged with Trafficking a Controlled Substance contrary to section 68(1) of the Controlled Substance Act 2021.The accused were all committed by the District Court and are currently awaiting trial at the National Court.
   

Plaintiff’s Application

8. The Plaintiff says the items seized by the police belong to KC2, the Plaintiff, and other employees of KC2 Limited. Apart from Lin Hezhong, none of the other employees of KC2 were charged. He relies on three affidavits sworn by him and his lawyer, G Topa.
   
9. The Plaintiff alleges that the accused Lin Hezhong has been committed, witnesses identified, and the Court exhibits ascertained, and the matter is awaiting trial, and there is no need for the police to keep the items belonging to the Plaintiff and other innocent persons. He argues that the continuous detention of the property of the Plaintiff and KC2 and its employees is unjustified and unlawful. He seeks urgent release of the items as some are very useful for the day-to-day operations of the company like the e token and others are of perishable nature.
   
10. Ms Maliaki, counsel for the Defendants opposes the application, submitting that the goods were lawfully seized under a search warrant for the investigations and prosecution of a serious offence. Counsel relies on two affidavits sworn by Chief Sergeant Manu Pulei. The case against Lin Hezhong is pending presentation of the indictment and the investigations against the Plaintiffs wife, Mei Lin, is not over as she has not returned to the country since March 2023. She submits that the actions taken by the Plaintiff is an act of perverting the course of justice.
    

Issues

11. The issues for consideration are:
    
    1. Whether the Plaintiff’s application is an interference and obstruction to the criminal proceedings initiated by the Police.
    2. Whether the Plaintiff is entitled to the reliefs sought in its Originating Summons.
       

Consideration

12. I have carefully considered the evidence and submissions of the parties. The common and undisputed facts disclosed by the parties in their respective affidavits is that the Plaintiff’s items were seized during a lawful execution of a search warrant. The items were retrieved for possible Court exhibits and for further investigation. One of the accused, Lin Hezhong, is an employee of KC2 Limited and he is committed to stand trial. His trial is not completed. There are allegations made against the Plaintiffs wife, Mei Lin, of her involvement in the same crime. She is yet to be questioned by police. She has not returned to the country after she left for overseas in March 2023. Mei Lin is the Managing Director and owner of KC2 Limited and some of the items seized may become useful in those investigations.
    
13. The Court acknowledges that the police have a constitutional duty to receive complaints from its citizens and act upon them. Under section 197(2) of the Constitution, the police are independent and not subject to direction by any one in carrying out its duties. The Constitution also establishes the Supreme and National Courts with its administrative and judicial process for the administration of justice. In our judicial system we have the criminal and the civil Court processes. Police are involved mainly in the criminal process. Although the Police and the Court play different roles, their common goal is preserving peace, good order, enforcement of law and administering justice. In this context, it is expected that each constitutional office will understand and respect each other in their respective roles and processes involved.
    
14. The need to respect the Court process is discussed in the Supreme Court in Wartoto -v- State (2015) SC 1411 and applied in Paiam Kumbipara Holdings v Mountain Catering Ltd (2021) PGNC 169, N9011. In Wartoto v State, the Supreme Court stated the law at the headnote of the judgment, paragraphs 1-7:
    

1. A larger range of procedural safeguards are built into the criminal process to give full protection of the law to the accused; the National Court before which the criminal trial is conducted remains duty-bound to conduct those proceedings fairly and according to law, and accused persons committed to stand trial in the National Court should have no reason for concern, at [11

2. That the National Court is a court of unlimited jurisdiction, coupled with the discretionary powers provided by s 155(4) of the Constitution should not be read and applied to override the criminal trial process in the National Court as stipulated by the Criminal Code, at [12];
3. The argument that the alleged facts did not support the charge can be revived before the trial judge. This Court should not deal with those issues, at [14];
4. Any issue around irregularity, defect or otherwise alleging an abuse of process, must be raised promptly at the appropriate level of criminal law proceedings, at [51];
5. It would be inappropriate, an abuse and an improper use of the process of the National Court for an accused to seek to invoke the Court's civil jurisdiction to raise a criminal process, procedure or substantive issue, without first raising it and exhausting the avenues available at the appropriate levels below it, at [52] and [64];
6. Unless a person brings an application or proceeding in accordance with the processes and procedures at the relevant and appropriate stages, anything else would be an abuse of processes of the Courts or any prescribed procedure, at [60];
7. It would be a clear abuse of the process of any court for an accused to resort to any other means, even s 155(4) of the Constitution, to challenge charges against him or her without first making use of the process and procedures before each of the authorities at each stage of the criminal justice process. At [72];...”
   
15. Applying the principles to the present case, I am of the view, that it would be inappropriate, and an abuse of the process for this Court to entertain the Plaintiff’s application in the first place. It is likely to result in an interference into the Criminal Court process. The Plaintiff can make an appropriate application before the Crimes Court which is dealing with the criminal proceedings.
    
16. Secondly, even if this Court were to consider the application, there is no clear evidence that the items are unlawfully detained especially when the criminal charges against the accused are yet to be completed.
    
17. For these reasons, the Plaintiff’s application is refused with costs to the Defendants.
    

ORDERS

18. The Court orders that:
    
    1. The Plaintiff’s proceeding is dismissed.
    2. The Plaintiff shall pay the costs of the proceeding, to be taxed, if not agreed.
    3. Time be abridged.
       

__________________________________________________________________
Myles Legal Services: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Defendants