SC1720
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA No. 04 of 2017

BETWEEN:
JOSEPH WAI
Appellant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani:   Injia CJ, Lindsay & Dingake JJ.
2018:  29th April

CRIMINAL LAW – Conspiracy – Agreement to do an unlawful act – proof of – regular meetings between one or more persons culminating in deprivation of proceeds of gold belonging to the Complainant – Part of the proceeds shared and applied to own use – Misappropriation.

Cases cited:
Papua New Guinea Cases

Brian Tindi Lawi v The State (1987) PNGLR 183
The State v Gabriel Ramoi (1993) PNGLR 390
Francis Potape v The State (2015) SC 1613

Overseas Cases

R V Jones (1832) 11 ER 485
Scott v Commissioner of Police of the Metropolis (1975) AC 819

Counsels:

Mr. Robbie Yansion, for the Appellant
Mr. C. Sambua, for the Respondent

29th April, 2018 
1. 	BY THE COURT:   This is an appeal against the decision of the National Court constituted by Salika DCJ, in which he convicted the appellant of two counts, namely, Conspiracy contrary to Section 407 (1) and Misappropriation contrary to Section 383 A  (1) (2) (d) of the Criminal Code Act (CCA).
2. 	The appellant was sentenced to 2 and 4 years in hard labour respectively.  The sentences were ordered to run concurrently.
3. 	The appellant appeals against both conviction and sentence.
4. 	The allegations with respect to Count one on Conspiracy were that the appellant between the 31st day of October, 2015 and 30th day of November, 2015, at Port Moresby, National Capital District, in Papua New Guinea, conspired with one Ernest Choi, Henry Mataias and Kila Veropo to defraud one Anna Sani by stating to her that they would buy 781.2 grams of gold from her for One Hundred and Five Thousand Three Hundred and Forty Kina Fifty Toea (K105,340.50).  The gold was sold but the proceeds of the sale were never returned to Anna Sani.
5. 	The allegations with respect to Misappropriation were that the appellant in the same period and location as above dishonestly applied to his own use and to the use of others property belonging to one Anna Sani namely 781.2 grams of gold valued as indicated above.
Grounds of Appeal
6. 	The Appellant’s grounds of appeal, 19 in all, are set out in his notice of appeal.  It is unnecessary to reproduce those grounds in this judgment.  We have taken each one of them into consideration in rendering this decision.  The grounds of appeal overlap in many respects.   In a nutshell, the appellant complains that there was no evidence that all the essential elements of the above offences were proven beyond reasonable doubt.
7. 	The appellant also complains that the trial judge erred when he ordered that he make full restitution although there were other players, namely, Kila Veropo, Ernest Choi and Henry Mataias.
THE LAW
Conspiracy
8. 	Section 407 of the Criminal Code Act (CCA) provides as follows:
	“407.	 Conspiracy to defraud.
	
	(1)	A person who conspires with another person—
	
	(a)	by deceit or any fraudulent means to affect the market price of any thing publicly sold; or
	(b)	to defraud the public, or any person (whether or not a particular person); or
	(c)	to extort property from any person,
	
	is guilty of a crime.
	
	Penalty:   Imprisonment for a term not exceeding seven years.
	
	(2)	. . .
9. 	Halsbury’s Laws of England (4th ed) Vol 11(1) 1990, provides the common law definition of Conspiracy in the following terms:
	“A person who agrees with one or more other persons by dishonesty:
	
1.	To deprive a person of something which is his or to which he would or might be entitled to; or

2.	To injure some proprietary right of a person is guilty of Conspiracy to defraud at common law”. (Scott v Commissioner of Police of the Metropolis (1975) AC 819 at 839).
10. 	The elements of the offence of Conspiracy were unpacked in the leading case of Francis Potape v The State (2015) SC 1613, handed down on 31st July 2015.
11. 	In the case of Potape, referred to above, this Court, outlined the elements of the offence of Conspiracy as follows:
1)	the accused person;
2)	conspired with other persons;
3)	by deceit or any fraudulent means;
4)	to defraud the public or any person;
5)	of any property;
6)	property belonging to that person.
Misappropriation
12. 	Section 383 A (1) of the CCA defines the offence of misappropriation as follows:
	“383A.	Misappropriation of property.
	
	(1)	A person who dishonestly applies to his own use or to the use of another person—
	
	(a)	property belonging to another; or
	
	(b)	property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,
	
	is guilty of the crime of misappropriation of property.”

13. 	The authorities are clear that the elements of the offence of Misappropriation are as follows:
Dishonesty;
Application to one’s own use or to the use of another person;
Property must belong to another.
(Brian Tindi Lawi v The State (1987) PNGLR 582; The State v Gabriel Ramoi (1993) PNGLR 390).
The Evidence
14. 	Before setting out the evidence it is important to emphasize that although dishonesty is a common denominator between the two counts, the two are distinct offences in law with different elements as is clear from a discussion of the law above.
15. 	In a nutshell the evidence led in the lower court established that the appellant Joseph Wai, Ernest Choi, Henry Mataias and Kila Veropo were involved when Anna Sani and Kila Veropo entered into a Gold Sales Purchase Agreement in terms whereof the buyer, Verepo Commodity Agency, purchased processed gold of 780.3 grams from the seller, Anna Sani.  This agreement was signed by Ernest Choi and Henry Mataias as the buyer’s representative and the appellant.
16. 	The agreement of the parties, as per the Purchase Agreement and various discussions held by the parties before the signing of the agreement, and subsequent thereto,  was that the appellant, Ernest Choi, Henry Mataias and Kila Veropo would cause the seller’s gold to be sold in Australia and transfer funds in the amount of K105,340.50 to her.
17. 	It is common cause that the appellant kept the gold for safe keeping at Australia and New Zealand Bank (ANZ) and thereafter handing it over to Henry Mataias who took it to Australia for sale.
18. 	The gold was indeed sold and payment was paid initially to Yakandi Global Marketing and eventually to the appellant wife’s company (Kilion Flower Supply) account.
19. 	It would seem, on the evidence, that Anna Sani did not get her payment within the time frame promised or at all, notwithstanding the assurance from the Appellant, Ernest Choi and Henry Mataias that she will be paid.
20. 	The above constitutes a summary of the material evidence before the trial judge.
21. 	The trial judge, after considering the evidence, held that the appellant, Ernie Choi, Henry Mathias and Kila Veropo had knowledge of the agreed acts that were intended to be performed, and that their actions constituted a clear indication that they intended to deprive Anna Sani of her gold or money.
22. 	The learned trial judge held that the simple fact that no money for the gold has been given or offered to her and that the above mentioned persons cut communications with her, was indicative of fraud.
23. 	Having regard to the above remarks by the learned judge, we ask the same question as was asked by this Court in Potape case:  Does the fact that Anna Sani was deprived of her gold and received no money for it, even though unlawful, constitute deceitful or fraudulent act?  We do not think so.  We consider that conspiracy perse, is not the crime created by Section 407 (1) (b) of the CCA.  In our considered opinion “deceitful or fraudulent act” in Section 407 (1) (b) requires that the conspirators must not only agree to commit the crime (conspiracy perse) but must agree on the means to use in order to defraud.
24. 	In summation, we are satisfied that the trial judge did not adequately deal with the third element (deceit or fraudulent means) of the offence, by assigning the facts that he found to satisfy the element; did not make any clear finding of an intention to defraud and did not address how what he referred to as agreed acts constituted a deceitful or a fraudulent acts by which a conspiracy to defraud Anna Sani had been done. 
25. 	With respect to the offence of misappropriation, it should be borne in mind that conspiracy to defraud was the main foundation of the charges. Consequently, the factual matrix of the two offences is inextricably intertwined and the element of fraud/dishonesty is not clearly delineated in the misappropriation charge.
26. 	In this case, we are satisfied that the charge of misappropriation cannot have a separate life outside that of conspiracy. It follows in our view that the errors we have identified with respect to the charge of conspiracy applies to the offence of Misappropriation which vitiates the entire trial. The net result of our conclusion is that both convictions are unsafe and are liable to be quashed, as we hereby do.
Re-Trial 
27. 	We consider that consistent with the decision and logic in Potape case, this is an appropriate case to order a re-trial.  We have considered the expense and inconvenience of a re-trial, on the parties, but find that the interests of justice trump any inconvenience the parties may suffer, because it is in public interest that cases are properly tried.
Orders of the Court
28. 	We make the following orders:
(a)	The appeal against conviction for the both offences (Conspiracy and Misappropriation) is allowed.
(b)	The convictions are quashed and sentence set aside.
(c)	The trial for both offences is remitted to the National Court to be tried by another judge.
______________________________________________________________
Yansion Lawyers: Lawyer for the Appellant
Office of the Public Prosecutor: Lawyer for the Respondent