SC2197

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 23 OF 2020

BETWEEN:
DAVID MANNING,
Commissioner for Police
First Appellant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Appellant

AND:
ROBERT ROMONGI
Respondent

Waigani: Kandakasi DCJ, Hartshorn J, Auka J
2021: 27th October
2022:  19th January

APPEAL – decision of National Court reinstating respondent to the police force - grounds of appeal - primary judge fell into error by interpreting s. 33(2) Police Act 1998 as conferring a discretion - erroneously taking into account irrelevant factors – s33(2) Police Act is not discretionary but mandatory - it is not for the Court to consider whether the decision is reasonable - Section 33(2) specifies what the decision is – trial judge fell into error -  appeal is upheld

Cases Cited:
Antonia Dawa v. Sam Inguba - Commissioner for Police (2005) N2899
Kuringin v. Baki (2017) N6619

Counsel:

Mr. R. Uware, for the Appellants
Mr. T. Ilaisa, for the Respondent

19th January, 2022

1. BY THE COURT: This is a decision on a contested appeal against a judgment of a National Court sitting at Kundiawa (judgment appealed). The judgment appealed amongst others, quashed the decision of the first appellant to dismiss the respondent from the Police Force and reinstated the respondent to his former rank.

Background

2. At the material time the respondent was a Sergeant in the Royal Papua New Guinea Constabulary. He was the officer in charge of the Armoury at the Kundiawa Police Station. On 15th December 2017 before the Kundiawa District Court, the respondent was convicted pursuant to s. 18(a) Motor Traffic Act of driving a motor vehicle whilst under the influence of intoxicating liquor. The respondent had pleaded guilty to the offence. The respondent was convicted and fined K100.00 and in default, sentenced to be imprisoned in the Barawagi Corrective Institution for a period of two weeks in hard labour.

3. On 1st May 2019 the respondent was dismissed from the Police Force by the first appellant (dismissal decision). The dismissal decision was informed to be pursuant to s. 33(2) Police Act 1998, Ch 65.

4. The respondent sought to judicially review the dismissal decision and the National Court at Kundiawa delivered the judgment now appealed.

Appeal

5. The appellant’ grounds of appeal are in essence that the primary judge fell into error by:

a)	interpreting s. 33(2) Police Act 1998 as conferring a discretion;

b)	erroneously taking into account irrelevant factors.

6. The respondent submits amongst others, that the appeal should be refused as there was no error by the primary judge in finding that the first appellant erred in law in issuing an administrative dismissal pursuant to s. 33(2) Police Act 1998, as there was an error of law and an arbitrary exercise of power by the first appellant.

Consideration

7. The section pursuant to which the dismissal decision was made is s. 33(2) Police Act 1998 which is as follows:

“(2) A member who is convicted of an offence involving dishonesty or for which a term of imprisonment is imposed shall be dismissed forthwith from the Force.”

8. The appellants contended that s. 33(2) Police Act 1998 does not confer a discretion and the primary judge fell into error to the extent that he found otherwise. Counsel for the respondent conceded that s. 33(2) Police Act 1998 does not confer any discretion. This is a correct concession because the wording of s.33(2) is clear. No discretion is conferred. This has been recognised by Injia CJ (as he then was) in Antonia Dawa v. Sam Inguba - Commissioner for Police (2005) N2899 in which His Honour said:

“I think s.33(2) allows the Commissioner to dismiss the member forthwith, without giving the member an opportunity to be heard if it comes to his knowledge and there is material or evidence to support a criminal conviction and/or a sentence of imprisonment.  I also think a member who is convicted and/or sentenced to imprisonment stands dismissed, by operation of law, effective from the date of conviction.”

and Makail J in Kuringin v. Baki (2017) N6619. In following Dawa v. Inguba (supra), His Honour said at [21]:

“21. I reject both arguments of the Plaintiff.  First, on a plain construction of Section 33, it makes it mandatory for the Commissioner to dismiss a member from the Force if he is satisfied that first the member is convicted of an offence involving dishonesty and secondly, where a term of imprisonment is imposed.”

9. The respondent submits however, that although there is no discretion conferred in s. 33(2), for s. 33(2)(b) to be enlivened, there must be an offence which involves dishonesty and a term of imprisonment must have been imposed.

10. From a consideration of the plain and liberal meaning of s. 33(2), it is clear that for s. 33(2) to be enlivened there must be either a member who is convicted of an offence involving dishonesty or a member who is convicted for which a term of imprisonment is imposed. With respect, the submissions of the respondent omit any reference or consideration of the word “or” in s. 33(2). For the interpretation of the respondent of s. 33(2) to be accepted, the word “or” would require to be replaced by the word “and”. To the extent that the primary judge found otherwise on this point, respectfully, the primary judge fell into error. 

11. The next contention of the respondent is that the primary judge was correct in interpreting “imprisonment” in s. 33(2) to mean that for s. 33(2) to be enlivened the penalty imposed for an offence should be imprisonment as distinct from the penalty imposed being a fine with a default component being imprisonment. 

12. Section 33(2) does not refer to penalty. It refers to a term of imprisonment imposed. “Imprisonment” per se is not defined, embellished or fettered in s. 33(2). Again, in our view, to the extent that the primary judge has found otherwise in his interpretation of s. 33(2), we are of the respectful view that he fell into error.

13. As to the contention of the respondent that the primary judge had the discretion to consider whether the dismissal decision was reasonable, the first appellant had before him evidence that the respondent had been convicted of an offence and for which a term of imprisonment had been imposed. It is also not controversial that the respondent was convicted of an offence and for which a term of imprisonment was imposed. As Injia CJ (as he then was) stated, “a member who is convicted and/or sentenced to imprisonment stands dismissed, by operation of law, effective from the date of conviction.” That is what the statute provides. In such a circumstance, it is not for the Court to consider whether the decision is reasonable. Section 33(2) specifies what the decision is.

14. In giving consideration to the contentions of the respondent, we have in effect considered grounds of appeal and submissions of the appellants. We are satisfied for the above reasons that the primary judge fell into error in material respects and that the appeal should be allowed. Given this, it is not necessary to consider the other submissions of counsel.

Orders

15. The Court orders that:

a)	The appeal is upheld.

b)	The decision of the National Court, Kundiawa, in proceeding OS (JR) 207 of 2020: Robert Romongi v. David Manning, Commissioner of Police and the State (National Court proceeding) made on 7th October 2020 is reversed and quashed.

c)	Judgment is entered for the defendants’ in the National Court proceeding and the applicant Robert Romongi shall pay the costs of the said defendants of and incidental to the National Court proceeding.

d)	The respondent shall pay the costs of the appellants of and incidental to this appeal.
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Solicitor General: Lawyers for the Appellants                                   
Public Solicitor: Lawyers for the Respondent