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Acting Public Prosecutor v Mogu [2025] PGNC 283; N11428 (15 August 2025)

N11428

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (POCA) 116 OF 2025

ACTING PUBLIC PROSECUTOR
Plaintiff

AND
MORGAN MOGU
First Defendant

AND
DOMINIC TERUPO
Second Defendant

WAIGANI: BERRIGAN J
10 JULY, 15 AUGUST 2025

PROCEEDS OF CRIME ACT – APPLICATION FOR FORFEITURE ORDER – Section 62, Proceeds of Crimes Act, 2022 - Whether Act applies - Whether leave should be granted to allow application out of time – Section 70 as to time for application is in mandatory terms – Application refused.

The Acting Public Prosecutor applied for a forfeiture order pursuant to s 62(1) of the Proceeds of Crimes Act 2022 following the conviction of the defendants for money laundering. Two preliminary issues arise. Firstly, whether the Proceeds of Crimes Act 2022 applies in circumstances where the conduct giving rise to the conviction occurred prior to the commencement of the Act. Secondly, whether the Plaintiff should be granted leave to apply outside the statutory time frame provided under s 70(2), Proceeds of Crimes Act 2022.

Held

(1) The retrospective intent of the Proceeds of Crimes Act 2022 under s 280 is clear. It applies to conduct occurring on or after 4 February 2016. The conduct which gave rise to the conviction for the purposes of s 62 in this case occurred between February and July 2020. The Act applies.
(2) Section 70(2), Proceeds of Crimes Act 2022 is in clear and mandatory terms. An application relating to a person’s conviction of an indictable offence must be made before the end of the period of six months after the conviction day. There is no power in the Court to dispense with that requirement.

(3) As conviction took place on 30 December 2023 the application was made outside the time frame required under the Act.

Application refused.

Cases cited
Philip Isu v John Ofo (2014) N5518
Central Banking (Foreign Exchange and Gold) Regulations (Chapter 138), Re [1987] PNGLR 433
Electoral Commission v. Pila Niningi (2003) SC710
Kala Rawali v Paias Wingti; Tom Olga v Paias Wingti (2009) SC1033
PNG Tropical Wood Products Ltd v. Manuel Gramgari (2013) SC1145
Nikint Investment Ltd v Niganu (2020) SC1919
Telikom PNG Ltd v Kopalye (2021) SC2141
State v Yomba (2022) SC2274
SCR No 2 of 1981; Re S19(1)(f) Criminal Code (Ch 262) [1982] PNGLR 150
Air Niugini Ltd v Warakai (2016) N6578
Peter Makeng v Timbers (PNG) Ltd (2008) N3317
National Court Rules: Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144

Counsel
T Kametan and M Mirou for the plaintiff
M Mogu and D Terupo, the defendants, in person

DECISION

1. BERRIGAN J: The Acting Public Prosecutor applies for the forfeiture of certain property pursuant to s 62(1) of the Proceeds of Crime Act 2022, namely: AUD42,000 in cash (about K112,000); two 55-inch Smart televisions; two PlayStations; four PS3 Gaming CDs; two Samsung Galaxy A20 Smart Phones; one red Smart Phone; one Mint Smart Phone; and one Samsung J5 Pro Smart Phone. The application was withdrawn with respect to the last three items.
   
2. The application is made on the basis that the defendants were convicted of an indictable offence, namely money laundering, contrary to s 508B (1) Criminal Code, and that the properties the subject of the application are proceeds of the offence of which they were convicted. It is contended that they were provided to the defendants by an accomplice, David John Cutmore, for their role in the money laundering offence. The property is currently in the possession of the Police Commissioner.
   
3. The defendants, who appear for themselves, oppose the application on the basis that the property was improperly obtained in the absence of a search warrant. They dispute the State’s claim that the seizure was permissible in “hot pursuit” under s 5(5), Search Act. They have challenged their convictions on appeal which are yet to be heard. They seek to have the property returned to them pursuant to s 131, Proceeds of Crimes Act 2022.
   
4. Two preliminary issues arise. The first is whether the Proceeds of Crime Act 2022 applies.
   

Application of the Proceeds of Crime Act, 2022

5. According to the plaintiff’s submissions the defendants were convicted of money laundering by the National Court on 30 December 2022, that is prior to the commencement of the Proceeds of Crimes Act 2022, which was certified on 23 September 2024.
   
6. Section 280, Proceeds of Crimes Act 2022 expressly provides for the Act to apply retrospectively such that: “This Act applies to and in relation to conduct that occurs on or after 4 February 2016, unless otherwise provided by this Act.”
   
7. The Act contains a number of transitional and saving provisions and makes clear the effect of the repeal of certain provisions of the 2005 Act at ss 281 to 298 but none of those provisions apply here.
   
8. The plaintiff submits that the Proceeds of Crimes Act 2022 applies in this case because the defendants were convicted on 30 December 2022 and that is the relevant “conduct” captured for the purposes of s 280.
   
9. I am not immediately attracted to that argument. To my mind the conduct referred to in s 280 is the conduct which gives rise to, at least for the purposes of s 62, the conviction for an indictable offence rather than the conviction itself.
   
10. Ultimately it is not necessary for the purposes of this matter to form any final view about that as nothing on turns on it. The retrospective intent of the Act is clear. The conduct which gave rise to the conviction in this case occurred between February and July 2020, that is, after February 2016. Accordingly, the Act applies.
    

Leave to apply out of time

11. On the second issue, the plaintiff applies for leave to extend the time to make a forfeiture order under s 70, Proceeds of Crimes Act.
    
12. The Plaintiff concedes that the application should have been filed within six months after the date of conviction on 30 December 2022, that is on or before 30 June 2023. The application was filed on 30 May 2025.
    
13. The Plaintiff submits that she should be given leave to make the application almost two and a half years out of time pursuant to s 155(4) of the Constitution in the interests of justice on the basis that there is no provision within the Proceeds of Crimes Act 2022 by which to seek an extension, it is a new area of law and as deposed by the investigating officer, Sergeant Anthony Sevese Junior, he was not aware of the confiscation scheme under the Proceeds of Crimes Act, 2005 or 2022, and therefore did not refer the matter to the Office of the Public Prosector to commence proceedings. The properties the subject of the application are proceeds of crime and depriving the State of the opportunity to recover such assets would undermine the purpose and efficacy of the Proceeds of Crimes Act. Allowing the application will not prejudice the defendants as they retain the right to contest the forfeiture on the merits whilst the alternative would foreclose a key avenue for promoting general deterrence against criminal conduct.
    
14. The Plaintiff relies on Philip Isu v John Ofo (2014) N5518 in which Makail J allowed an application to dispense with the procedural requirement to file a notice of motion within 21 days in accordance with Order 16 Rule 5 of the National Court Rules.
    
15. The plaintiff’s submissions are misconceived as to the date of conviction.
    
16. I accept on the affidavit in support of the plaintiff given by Senior Inspector Lucas Muka, and the affidavits of each of the defendants that they were convicted on 30 December 2023 not 2022. Furthermore, on the same evidence, that the defendants were sentenced on 24 September 2024 (not 23 September 2023 as submitted).
    
17. The defendants maintain that the application is out of time and oppose any extension of time.
    

Consideration

18. In interpreting the statutes of Papua New Guinea the matters contained in ss 109(4) and 158(2) of the Constitution are to be given paramount consideration: Central Banking (Foreign Exchange and Gold) Regulations (Chapter 138), Re [1987] PNGLR 433; Kidu CJ, Kapi DCJ, Amet J. Section 158(2) requires that in interpreting the law the courts “shall give paramount consideration to the dispensation of justice”. In doing so under s 109(4), “Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, and there is no presumption against extra-territoriality.”
    
19. It is also well established that “justice” under s 158(2), and in terms of the Court’s power to make orders in the interests of justice under s 155(4), Constitution, means “justice according to law”: Electoral Commission v. Pila Niningi (2003) SC710; Kala Rawali v. Paias Wingti; Tom Olga v. Paias Wingti (2009) SC1033; PNG Tropical Wood Products Ltd v. Manuel Gramgari (2013) SC1145; Nikint Investment Ltd v. Niganu (2020) SC1919; Telikom PNG Ltd v Kopalye (2021) SC2141; State v Yomba (2022) SC2274; SCR No 2 of 1981; Re S19(1)(f) Criminal Code (Ch 262) [1982] PNGLR 150.
    
20. Accordingly, the ordinary rules of construction must be applied.
    
21. Division 3, Proceeds of Crimes Act governs forfeiture orders. Subdivision 1 governs the making of forfeiture orders (compared with automatic forfeiture under subdivision 3. But see also s 131(2)).
    

22. As above, the Public Prosecutor may apply for a forfeiture order under Division 3. Application may be made under ss 62, 63 or 64.
    
23. It appears that a forfeiture order may be granted in respect of conduct constituting a serious offence under s 63 or property suspected of being the proceeds or an instrument of an indictable offence under s 64, provided in each case that the property is already the subject of a restraining order and subject to the interests of justice in some cases.
    
24. By comparison s 62 compels the Court to make a forfeiture order upon application by the Public Prosecutor in the event that a person has been convicted of an indictable offence and regardless of whether or not the property is subject to restraint. Orders may be sought in respect of both “proceeds of an offence” and “instruments of an offence”. If the application relates to a person’s conviction of an indictable offence, however, the application must be made “before the end of the period of six months after the conviction day”: s 70(2).
    
25. There is no absence of applicable provision. Section 70(2) applies.
    
26. Isu v Ofoi does not assist the plaintiff. The National Court Rules contain a general dispensation provision under Order 1 Rule 7 which provides that “the Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises”. In addition, the plaintiff in that case filed a notice of motion commencing the proceeding pursuant to Order 16 Rule 3 of the National Court Rules instead of Order 16 Rule 5. The Court found that the motion was sufficient for the purpose of Order 16 Rule 5. The purpose of the motion was in either case to invoke the jurisdiction of the Court. It was not a case where the plaintiffs did not file a notice of motion. They did and it set “out in detail the nature of the decision to be reviewed and the relief the plaintiffs seek from the Court”. It followed that there was no prejudice to the defendants in the circumstances but significant prejudice if the plaintiffs had been denied the claim. That is very different from the situation here.
    
27. I do not think the plaintiff suggests otherwise but to be clear, Order 1 Rule 7 National Court Rules only allows the Court to dispense with the requirements of the National Court Rules, not a statute: Air Niugini Ltd v Warakai (2016) N6578 at [7].
    
28. As to s. 155 (4) Constitution, “it is not the source of primary jurisdictional power”: Peter Makeng v. Timbers (PNG) Ltd (2008) N3317 and cannot be applied to do anything contrary to or inconsistent with the provisions of the National Court Rules: Louis Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1144. Similarly, it cannot be applied to do anything contrary to or inconsistent with the provisions of a statute”: Air Niugini Ltd v Warakai at [9].
    
29. There is no ambiguity in s 70(2), Proceeds of Crimes Act, 2022. It is in clear and mandatory terms. The application must be made within six months after the conviction day.
    
30. Unlike s 72(4), Proceeds of Crimes Act 2022 which enables the Court to dispense with the requirements for notice in respect of applications for forfeiture, there is no such power to dispense with the requirement as to the time to apply under s 70(2) for forfeiture.
    
31. The reasons submitted by the plaintiff – to recover assets and deter criminal conduct – are valid reasons for forfeiture in general terms, hence the existence of the Act, but they do not create a power to grant extension of time, provision for which is not made under the Act.
    
32. The State is not unfairly prejudiced nor denied the opportunity to recover assets or send a message of deterrence by being required to comply with the mandatory requirements of the Act.
    
33. There is perhaps a question as to whether “conviction day” in s 62 means the day a person is found guilty of the offence or the day on which sentence is passed, having regard to the considerations outlined in Bob v The State (2005) SC808, the definitions under s 3 and the terms of other provisions under the Act governing forfeiture in the case of conviction. Neither party addressed it. Given that it is not necessary to decide the matter for present purposes I will not decide it here.
    
34. The application was filed on 30 May 2025, almost one and a half years after conviction on 30 December 2023 and well after the six-month period provided by s 70(2).
    
35. Even assuming, for completeness, that the date of sentence was the conviction day for the purpose of s 70(2), the application is out of time. Sentence was imposed on 24 September 2024.
    
36. Accordingly, the plaintiff’s application for forfeiture of property under s62(2) must be refused.
    
37. It must be observed, however, that the plaintiff’s explanation for the lateness of the application is unsatisfactory.
    
38. Whilst the Proceeds of Crimes Act 2022 is relatively new the provisions enabling forfeiture are not. They are in essentially the same terms as those in force under the Proceeds of Crimes Act 2005 as is the six-month requirement: see s 66(2) Proceeds of Crimes Act 2005.
    
39. The Court is not concerned with the administrative arrangements between the Royal Papua New Guinea Constabulary (RPNGC) and the Office of the Public Prosecutor (OPP) and the responsibility for bringing applications does not lie with the RPNGC.
    
40. It is the Public Prosecutor who is responsible for controlling the prosecution function of the State under the Constitution and the Public Prosecutor who is responsible for bringing restraining, forfeiture and pecuniary penalty applications under the Proceeds of Crimes Act 2022, and has been since 2005 under the former Act.
    
41. It is the Public Prosecutor who is best placed to determine whether applications for restraint are likely to succeed and the Public Prosecutor who is best placed to know when convictions are obtained in serious and indictable matters warranting forfeiture. For similar reasons it is the Public Prosecutor who is best placed to determine whether applications for pecuniary penalty following conviction should also be sought.
    
42. It is no excuse to suggest that a relatively junior officer within the RPNGC failed to act within time in any case but particularly in this case given the profile of the matter giving rise to the present application.
    
43. A Proceeds of Crimes Act has been in place for twenty years. I am aware that the Office of the Public Prosecutor has a dedicated Proceeds of Crime Unit. To date, however, very few applications have been brought before the National Court. I appreciate that there may be good reasons for that but I would urge the Acting Public Prosecutor to review the systems in place at the Office of the Public Prosecutor so that all matters, or at least all larger fraud matters, are reviewed immediately upon receipt following committal for the purpose of determining whether any action – restraint, forfeiture or pecuniary penalty - should be taken under the Proceeds of Crimes Act at that stage or in the event of conviction. I would also encourage the Acting Public Prosecutor and the Police Commissioner to review the arrangements in place between their organisations so that restraint orders may be sought at the earliest opportunity, including before charging, in appropriate matters.
    
44. I also remind the Acting Public Prosecutor that in bringing applications the OPP should assist the Court by providing the estimated value of all property which must be specified in any forfeiture order pursuant to s 68, and the information that will enable the Court to give any directions necessary or convenient to give effect to the order under s 69. For obvious reasons there should be no doubt about the date of conviction.
    

Defendant’s application

45. As for the defendants’ application to have the property returned to them pursuant to s 131, Proceeds of Crimes Act, 2022, the plaintiff opposes it on the basis that the property was not seized under the Proceeds of Crimes Act.
    
46. Part IV of the Act gives powers to facilitate investigations and preserve property. Division 1 is concerned with powers of search and seizure. Section 131 within that division provides:
    

47. The obligation on the Police Commissioner under s 131 is clear, regardless of any application by a person interested in the property.
    
48. The plaintiff maintains that the property was seized under s 5(5) of the Search Act but submits that it was not seized under a warrant under that act as required under s 197, Proceeds of Crimes Act, 2022.
    

49. There appears to be no dispute about that and on that basis s 131 does not apply. The defendants’ application is refused.
    

Orders

50. I make the following orders:
    
    • (1) The plaintiff’s application for leave to extend time is refused;
    • (2) The plaintiff’s application for forfeiture pursuant to s 62, Proceeds of Crimes Act 2022 is refused;
    • (3) The defendants’ application for return of the property under s 131, Proceeds of Crimes Act 2022 is refused;
    • (4) The plaintiff shall bear the defendants’ costs to be taxed if not agreed.
      

_______________________________________________________________
Lawyer for the plaintiff: Public Prosecutor