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Mollo, The State v [1988-89] PNGLR 49 (6 May 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 49 - The State v Waesa Mollo 

[1988] PNGLR 49

N664

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

WAESA MOLLO

Waigani

Kidu CJ

6 May 1988

CRIMINAL LAW - Particular offences - Official corruption - Elements of offence - Need to prove corrupt use of particular office for gain - Need to prove duty imposed by holding of office - Criminal Code (Ch No 262), s 87(1)(a) and (b).

CRIMINAL LAW - Particular offences - Official corruption - Separate changes of corruptly giving and corruptly receiving - Charges arising out of same facts - Charges stand or fall together - Criminal Code (Ch No 262), s 87(1)(a) and (b).[xiii]¹

Held:

(1)      Where a person being a public servant is charged with the offence under s 87 of the Criminal Code (Ch No 262) of corruptly asking, receiving or obtaining any property or benefit of any kind for himself on account of anything done or to be done by him in the discharge of the duties of his office, proof is required of the duty imposed by the holding of the particular office and the corrupt use of the particular office held for gain.

R v David [1931] QWN 2, and the The State v Peter Kirivi [1987] PNGLR 489, followed and applied.

(2)      Where a person is charged under s 87(1)(a) with corruptly receiving as a public servant and a person is charged under s 87(1)(b) with corruptly giving to that public servant, the evidence must support both charges; if the evidence does not support one charge the other charge will not be proved.

(3)      In circumstances where a public servant, being a member of the Defence Force, was charged with corruptly receiving moneys in connection with his duties as Chairman of the Papua New Guinea Defence Force Savings and Loan Society, a body established under the Savings and Loan Societies Act (Ch No 141), the charge had not been made out because his duties as Chairman were not those of a public servant but rather those of an official of a private corporation and the receipt of moneys was not in connection with the corrupt use of any office held in the Public Service.

Cases Cited

The following cases are cited in the judgment:

R v David [1931] QWN 2; 25 QJPR 15.

State, The v Peter Kirivi [1987] PNGLR 489.

Trial

On a trial on charges of corruptly giving and corruptly receiving moneys contrary to s 87(1)(a) and (b) of the Criminal Code (Ch No 262), Kidu CJ delivered the following judgment on acquittal and discharge of the accused.

Counsel:

G Toop, for the State.

D Koeger, for the accused.

Cur adv vult

6 May 1988

KIDU CJ.: The two accused persons are charged under s 87(1) of the Criminal Code, (Ch No 262) which provides as follows:

“87.    Official corruption.

(1)      A person who—

(a)      being—

(i)       employed in the Public Service, or the holder of any public office; and

(ii)      charged with the performance of any duty by virtue of that employment or office, (not being a duty touching the administration of justice)

corruptly asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of any thing done or omitted to be done, or to be done or omitted to be done by him in the discharge of the duties of his office; or

(b)      corruptly gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on or for any person, any property or benefit on account of any such act or omission on the part of a person in the Public Service or holding a public office,

is guilty of a crime.

Penalty: Imprisonment a term not exceeding seven years, and a fine at the discretion of the court.”

Mr Loa is charged under s 87(1)(a) and Mr Mollo under s 87(1)(b). The charges read:

“EDDIE LOA of KAPAKAPA stands charged that on the 16th day of May, 1985 at Port Moresby in Papua New Guinea being employed in the Public Service of Papua New Guinea as a Major in the Defence Force of Papua New Guinea and charged by virtue of such employment with acting as the Chairman of PAPUA NEW GUINEA DEFENCE FORCE SAVINGS AND LOAN SOCIETY he corruptly received from one WAESA MOLLO the sum of TWO THOUSAND KINA (K2000) on account of him purchasing in the discharge of the duties of his said office on behalf of the DEFENCE FORCE SAVINGS AND LOAN SOCIETY a property in which the said WAESA MOLLO had a proprietary interest.

WAESA MOLLO of SIASSI stands charged that on the 16th day of May, 1985 at Port Moresby in Papua New Guinea she corruptly gave to one EDDIE LOA then employed in the Public Service of Papua New Guinea as a major in the Defence Force of Papua New Guinea and by virtue of such employment holding the office of Chairman of Papua New Guinea Savings and Loan Society, the sum of TWO THOUSAND KINA (K2000) on account of the said EDDIE LOA arranging the purchase in the discharge of the duties of his said office, on behalf of the PAPUA NEW GUINEA DEFENCE FORCE SAVINGS AND LOAN SOCIETY, of a property in which the said WAESA MOLLO had a proprietary interest.”

As the indictment states Mr Loa is a Major in the Papua New Guinea Defence Force and therefore a person employed in the Public Service (the definition of “person employed in the Public Service” includes a Member of the Defence Force — see s 1(1) of the Criminal Code). At the time of the alleged offence he was Officer Commanding G E Workshop at Murray Barracks and Deputy Chairman of the Defence Force Savings and Loan Society. Lieutenant Colonel, Vagi Mae was Chairman. He was away and so Major Loa acted as Chairman.

Mr Mollo was, and still is, employed in the private sector. At the time of the alleged offence he was employed as a salesman. He had secured a house from the Housing Commission and had offered it for sale to the Defence Savings and Loan Society. The house was bought by the Society for K20,000. After the money was paid (during that time Major Loa was in Lae), Mr Mollo delivered a cheque for K2,000 made out to Major Loa to Mrs Loa who had it deposited in her husband’s bank account with the Bank of South Pacific at Boroko. On his return he was informed by his wife about the cheque.

I pause here to say that the two charges stand or fall together. If the case against Major Loa falls that of Mr Mollo does too. The two cases depend on the K2,000 having been corruptly received by Major Loa and having been corruptly given to him by Mr Mollo in his capacity as a Major in the Defence Force in charge of the G E Workshop at Murray Barracks.

The State must prove beyond doubt that Mr Loa was employed in the Public Service. There is no problem here. Major Loa doesn’t deny he was employed in the Public Service.

Secondly, the State must prove that he was charged by virtue of his employment with a duty. In this case the Public Service job Major Loa had was Officer Commanding G E Workshop at Murray Barracks. The indictment alleges that by virtue of his being a Major in the Defence Force Loa was charged with the duty of Acting Chairman of Defence Savings and Loans Society Ltd. Here is the first difficulty.

Savings and Loans Societies are established under the Savings and Loan Societies Act (Ch No 141), s 9:

“Subject to this Act, a group of persons the objects of which are—

(a)      to promote thrift among its members, and

(b)      to educate its members in financial responsibility, and

(c)      to receive the savings of its members as contributions for shares or on deposit, and

(d)      make loans to its members for any purposes specified in Part V,

may be registered as a Savings and Loans Society under this Act.”

Section 13 of the Act provides, inter alia, that a registered society is a corporation and its name must end with the word “Limited” or the abbreviation “Ltd”. The Board of Directors is elected by the Annual General Meeting of the Society. A director must be a member of the Society (see s 25 of the Act).

So Major Loa was a member of the Society and Director and Acting Chairman of the Board of the Society in his private capacity, and in a society which is not a governmental body. If he had the duty to negotiate and purchase Mr Mollo’s property for the Society he did so, not as a Major in the Defence Force but as an official of a private corporation with which he was involved in his private rather than official capacity.

Leaving aside the question of “corruptly receiving”, which it is not necessary to discuss, the State must also prove that Major Loa received the K2,000 on account of purchasing Mr Mollo’s house for the Society, a duty he had in the discharge of his office in the Public Service. The purchase had nothing to do with Major Loa’s office in the Defence Force as I have already pointed out.

I made a ruling on s 87(1) in 1984 in the case of The State v Peter Kirivi now reported [1987] PNGLR 489. I said:

“I am going to make my ruling now on the interpretation of s 87 ...

I rely on R v David [1931] QWN 2; 25 QJPR 15. In my view the Judge in that case was quite right, that a person who is charged with an offence under s 87 must be charged with corruptly using his particular office for gain, eg corruptly asking for money. In this case the proper charge should have been based on the accused using his office of requisition officer, that is the issuing of ilpochs to people who are staying in hotels and using that particular office to gain money corruptly. What the evidence shows is to the contrary. He did not use his own office or position in the Public Service to corruptly ask for money from Mr Maltby or Mr Liebriecht. The charges — counts 1 and 3 — were improperly laid under the section.”

As I have already shown the present case is similar to Kirivi’s case.

Mr Toop said that although Kirivi’s case was correctly decided the facts of the present case were different. Major Loa had been, according to the affidavit of Lieut-Col Kanawi, on the Board of the Defence Savings and Loan Society, as a Defence Force Representative and therefore in the purchase of Mr Mollo’s house he was discharging the duties of his office in the Public Service. This is an ingenious but incorrect proposition. There is no provision in the Savings and Loan Societies Act which provides that a member’s employer be elected to the Board of the Society. Section 25 is quite clear — those elected to the Board are financial members. So they are elected to the Board on that basis.

I apply what I said in Kirivi’s case. The evidence clearly shows that Major Loa did not use his position as Major in the Defence Force in charge of the G E Workshop at Murray Barracks for gain — ie to receive the K2,000 Mr Mollo gave him. This being the case it cannot be said Mr Mollo gave the K2,000 to Major Loa for Major Loa using his public service position in the Defence Force to his advantage.

I acquit both accused and discharge them.

Accused acquitted and discharged

Lawyer for State: Acting Public Prosecutor.

Lawyer for the accused: Public Solicitor.