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Daniels v Chung [2009] PGNC 24; N3610 (24 February 2009)

N3610

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 531 OF 2007

BETWEEN:

SETH L. DANIELS
as Senior Vice President of Papua New Guinea
Football (Soccer) Association Inc.
Applicant/Plaintiff

AND:

DAVID CHUNG
as the President of Papua New Guinea
Football (Soccer) Association Inc.
First Contemnor/First Defendant

AND:

PAPUA NEW GUINEA FOOTBALL (SOCCER) ASSOCIATION
Second Defendant

AND:

DIMIRIT MILENG
Second Contemnor

Lae: Manuhu, J
2009: 19 & 24 February

JUDGMENT

CONTEMPT – Disobedience of terms of consent order – legal opinion sought after grant of consent order – whether court order duly served and contemnors had knowledge of terms - whether court order is ambiguous –whether the contemnors wilfully disobeyed court order – second contemnor chose to absent himself from proceeding – whether evidence by second contemnor is evidence for the first contemnor

Cases cited:
The State v John Michael Awa and Others (2000) N2012,
Supreme Court Reference No. 1 of 1976 (P);
Peter Rakatani v South Pacific Brewery [1976] PNGLR 537 and
The State v Arey Watu [1992] PNGLR 475.

Counsel:
S. Toggo, for the Applicant.
D. Kakaraya, for the Contemnors.

24 February 2009

1. MANUHU, J.: Introduction: The Applicant, Seth Daniels is the Senior Vice President of the Papua New Guinea Football (Soccer) Association (PNGFA). The First Contemnor, David Chung, is the President of PNGFA. They have been in court since 2007 fighting over the management and conduct of the affairs of PNGFA. They are before me again in this contempt proceeding. Dimirit Mileng has joined them as Second Contemnor courtesy of his position as Chief Executive Officer/General Secretary of PNGFA.

2. A contempt proceeding, being criminal in nature, necessarily attracts the rules of practice and procedure applicable in a criminal proceeding. The plaintiff bears the burden of proof to establish each element of the charge beyond reasonable doubt. In a contempt proceeding, the following elements must be satisfied: the order must have been properly served upon the alleged contemnor so that he has knowledge of the terms of the order; the court order must be clear and unambiguous; and, failure to obey the terms of the order must be wilful.

What are the applicable rules of practice and procedure?

3. Mr. Mileng was present at the time of the hearing. Mr. Chung advised the Court through counsel and Mr. Mileng that he is overseas for medical reasons but the hearing should proceed in his absence. The Court decided to proceed in Mr. Chung’s absence and with his consent. See Supreme Court Reference No. 1 of 1976 (P); Peter Rakatani v South Pacific Brewery [1976] PNGLR 537 and The State v Arey Watu [1992] PNGLR 475. The statement of charge was read and the Court was advised to enter a plea of not guilty for both contemnors. The hearing proceeded accordingly.

4. The absence of Mr. Chung and his failure to file affidavit evidence in his defence means he chose to remain silent, which is his constitutional right. The Court will determine his guilt or innocence based only on the evidence it has. In that regard, it is important to also note that in a joint criminal trial evidence by one accused is not evidence for all of them. Each accused gives evidence only for him.

5. Charmers, Weisbrot, Injia and Andrew in Criminal Law and Practice of Papua New Guinea at page 482 clearly say that in a joint trial "the court must carefully separate the evidence, for the charge is both joint and several against the accused: Keko Aparo v The State (1983) SC 249, following R v Fenwick (1953) 54 SR (NSW) 147."

6. In the case of The State v John Michael Awa and Others (2000) N2012, Injia J (as he then was), noted the procedure in Keko Aparo v The State and went on to say as follows:

"Whilst evidence of one accomplice is not evidence against another accomplice, the Court may nonetheless, after warning itself, accept such evidence if the evidence of one accomplice against another accomplice is corroborated by the accused himself by way of admissions or by evidence of some other witnesses: see The State v. Amoko Anoko [1981] PNGLR 373; of The State v. Joseph Tapa [1978] PNGLR 134."

7. In this case, there is no evidence from Mr. Chung. In any event, counsel for the contemnors expects the evidence given by Mr. Mileng to be used as evidence on behalf of Mr. Chung. That is not, with due respect, the practice in criminal law. Each contemnor must rely on his own evidence and state what he did or did not do and what his intentions were in respect of his actions. Mr. Chung cannot rely on Mr. Mileng to give an account of his mental state at the relevant time. After all, prisoners do not share punishment. Each is individually punished.

What is the charge?

8. The particulars of the charge are as follows:

"STATEMENT OF CHARGE

1. The Plaintiff is Seth L. Daniels of Section 3, Allotment 19, 9th Street, Lae Morobe Province, an adult male capable of suing and being sued in his own name and style.

2. David Chung is an adult male capable of suing and being sued and is the President of Papua New Guinea Football (Soccer) Association Inc (PNGFA) of Lae, Morobe Province and is referred to herein as the first contemnor.

3. Dimirit Mileng is the Secretary General of PNGFA, an adult male capable of suing and being sued in his own name and style, sued herein as the second contemnor.

4. On the 4th July 2008 the Lae National Court made the following Orders upon the consent of the parties:

(a) The Orders of 3rd July are varied.

(b) The meeting of PNG Football (Soccer) Association Inc. set for 5th July 2008 shall proceed.

(c) The Executive Committee of PNG Football (Soccer) Association Inc. shall forthwith supply to the Plaintiff and all the 22 participants Agendas of the meeting and the participants shall after perusal of the Agendas decide whether the meeting should continue or be deferred and that shall be the first Agenda of the meeting of 5th July 2008.

(d) The Executive Committee of PNG Football (Soccer) Association Inc. shall immediately upon arrival of the Plaintiff and other participants reimburse in full, the total costs of travel and pay for all necessary costs for accommodation, meal and other allowances as well as the costs for the return trip.

(e) The President or the Executive Committee of PNG Football (Soccer) Association Inc. be refrained from suspending any members of PNG Football (Soccer) Association Inc. and those that have been already suspended until the substantive matter in the proceeding is determined.

(f) Cost of this proceeding be in the cause.

(g) An order that the Interim Orders of 19th September 2007 remain in force.

5. The copy of the Court Order was brought to the attention of the first and second contemnors as follows:

(a) Mr. Mokawau Mukweisepu of Stevens Lawyers, representing David Chung and PNGFA in the substantive matter, appeared and consented to the orders referred to in paragraph 4 herein.

(b) the Court Order of 4th July 2008, 19th September 2007 was given to PNGFA Legal Committee by messrs David Chung and Dimirit Mileng for their opinion and the said Legal Committee gave a legal opinion in writing on 4th July 2008.

6. After having seen the Court Order of 4th July 2008, the first and second contemnors jointly and severally did or failed to do the following and or directed that the following be done, which breached the terms of Orders of 4th July 2008, particulars of which are as follows:

(a) the first and second contemnors failed to instruct the executive committee of whom the first contemnor is the chairman to supply the plaintiff and all the 22 participants of the meeting with the meeting Agendas forthwith, contrary to paragraph (3) of the court order of 4th July 2008.

(b) the first and second contemnors failed to make it the first agenda and to get the members to decide whether the meeting should proceed or not contrary to paragraph (3) of the court order of 4th July 2008.

(c) the first and second contemnors failed themselves and failed to instruct the Executive Committee of PNGFA to reimburse in full total cost of travel of the plaintiff and all 22 participants immediately upon their arrival and pay all necessary cost for accommodation, meals and other allowances as well as the cost for the trip.

(d) the first and second contemnors defied paragraph (5) of the court order of 4th July 2008 and suspended four (4) members of PNGFA being president of Kaiapit (Joe Buma), Manus (Memel Pohei), and Higaturu (Carson Victor) Associations and refused to allow the presidents of Simbu (Steven Peris) and Wabag (Kennedy Yambundimi) Soccer Associations to attend the meeting of PNGFA on 5th July 2008 at Highlander Hotel, Mt Hagen.

(e) the first and second contemnors allowed the PNGFA meeting of 5th July 2008 to be conducted pursuant to the Constitution adopted in the PNGFA meeting of 18th January 2007 when paragraph (3) of the court order of 18th September 2007 restrained the first contemnor and PNGFA from giving effect to the resolution of the meeting of 18th January 2007 as the said constitution was adopted during the said meeting as being one of the resolutions.

7 The first contemnor has since gone to the Post Courier on 7th July 2008 claiming that he was duly elected in the meeting of PNGFA held on 5th July 2008 at Mt Hagen."

Was the Court Order served on the contemnors?

9. The court order of 4th July 2008 was made with the consent of all parties. All parties had their counsel appear in Court on 4th July 2008 and the consent order was made with their full knowledge. Subsequently, Mr. Chung sought and obtained a legal opinion on the very same day.

10. In criminal proceedings, an allegation is proved by direct or circumstantial evidence. There is no direct evidence on service of the orders in this case. I direct my mind to the law on circumstantial evidence and the inherent dangers in relying on such evidence. In this case, Mr. Chung’s referral of the court order to his legal team can only mean that he was properly served and was aware of the order. To find otherwise would be illogical and unreasonable.

11. In the circumstances, I am satisfied that the contemnors had knowledge of the terms of the proposed consent orders, they instructed their counsel not to oppose it in court, they subsequently received the order and sought legal opinion thereafter.

12. I am satisfied beyond reasonable doubt that the court order of 4th July 2008 was properly served on the contemnors and they had full knowledge of its terms.

Was the court order clear and unambiguous?

13. The consent orders of 4th July 2007 are as follows:

"CONSENT ORDER

THE COURT ORDERS BY CONSENT THAT:

(1) The Orders of 3rd July are varied.

(2) The meeting of PNG Football (Soccer) Association Inc. set for 5th July 2008 shall proceed.

(3) The Executive Committee of PNG Football (Soccer) Association Inc. shall forthwith supply to the Plaintiff and all the 22 participants Agendas of the meeting and the participants shall after perusal of the Agendas decide whether the meeting should continue or be deferred and that shall be the first Agenda of the meeting of 5th July 2008.

(4) The Executive Committee of PNG Football (Soccer) Association Inc. shall immediately upon arrival of the Plaintiff and other participants reimburse in full, the total costs of travel and pay for all necessary costs for accommodation, meal and other allowances as well as the costs for the return trip.

(5) The President or the Executive Committee of PNG Football (Soccer) Association Inc. be refrained from suspending any members of PNG Football (Soccer) Association Inc. and those that have been already suspended until the substantive matter in the proceeding is determined.

(6) Cost of this proceeding be in the cause.

(7) An order that the Interim Orders of 19th September 2007 remain in force.

14. I have seen the legal opinion. It suggests that only paragraphs (3) and (5) are ambiguous in this manner:

"...the correct number of participants in the congress will be 18 and not 22 as the other 4 member associations were suspended prior to this court proceeding and moreover the 4 suspended member associations are not part of the reliefs sought.

"The parties further agreed that the President or the Executive Committee of PNGFA be refrained from suspending any members of PNGFA and those that have been already suspended until the substantive matter in the proceeding is determined.

"There is a problem with that Order. First is that the 4 member associations were suspended way before Seth Daniels Court Case. Second is that the 4 suspended member associations are not part of the reliefs sought by Seth Daniels .... Therefore, the Consent Order to that extent is not proper. Only 18 associations are part of this Congress."

15. I find that the contemnors’ request for a legal opinion is mischievous. The court order of 4th July 2008 was a consent order. It was neither an ex parte order nor an order made following a disputed hearing. Inferentially, all parties knew what they ought to do at the meeting in Mt Hagen on 5th July 2008. Their agreement was translated into the consent order in question. The consent order was accepted and endorsed by the Court as a genuine reflection of the parties’ agreement as to what was supposed to take place in Mt Hagen.

16. Secondly, the contemnors were not genuine when they sought legal opinion. The legal opinion or advice was not even given by counsel representing the contemnors on 4th July 2008 and there is no affidavit evidence from him on whether there was indeed any confusion concerning the terms of the court order. If there was any misunderstanding, the contemnors could have, but did not, return to Court to clarify any ambiguity. The counsel must have explained the orders to the contemnors but they turned their back on him, the Court, their agreement and deceptively sought a legal opinion from John Kumura, a member of the Legal Committee, a sub-committee of PNGFA, to suit its mischievous and contemptuous objective.

17. Thirdly, the legal opinion is simply erroneous. From the terms of the order, it is quite clear that the parties agreed that all 22 representatives should participate in the meeting on 5th July 2008 in Mt Hagen. It was a consent order, I repeat. The contemnors cannot retract what they had agreed to.

18. Furthermore, the legal opinion is self-serving and tainted with bias because Mr. Kumura is part and parcel of PNGFA. Apparently, the contemnors and Mr. Kumura conceived and engineered what they now claim to be an ambiguity. It was a premeditated agenda to upset the terms of the consent order.

19. The Court is a Court of order not a court of twists and turns and confusion. The contemnors understood and knew that 18 as well as the 4 suspended member association representatives were to participate in the meeting. They knew and understood that there was supposed to be 22 participants at the meeting. They were not children or mentally impaired to mistake 22 for 18 when they agreed to and facilitated the endorsement of the court order.

20. It is dangerous and wrong for a litigant to obtain a consent order and then resort to a legal opinion with the intention to undermine and defy the order. It is wrong for a lawyer to give a legal opinion on a court order when his association with a party places him in a conflict of interest situation. Mr. Kumura is an accomplice and could have been charged for contempt. He should also be referred to the Lawyers Statutory Committee for negligently, if not deliberately, undermining the court order of 4th July 2008.

21. In the circumstances, I am satisfied beyond reasonable doubt that the court order was clear and unambiguous. In particular, as ordered, there was supposed to be 22 participants in the meeting on 5th July 2008 in Mt Hagen.

Were the orders wilfully disobeyed by the contemnors?

22. It is alleged firstly that Mr. Chung and Mr. Mileng failed to instruct the executive committee of whom Mr. Chung is the chairman to supply the plaintiff and all the 22 participants of the meeting with the meeting Agendas forthwith, contrary to paragraph (3) of the court order of 4th July 2008.

23. This allegation is not supported by evidence. Mr. Daniels did not say anything about lack of circulation of the meeting Agenda in his affidavit evidence.

24. It is alleged secondly that Mr. Chung and Mr. Mileng failed to make it the first agenda and to get the members to decide whether the meeting should proceed or not contrary to paragraph (3) of the court order of 4th July 2008.

25. Mr. Daniel’s evidence is that Mr. Chung simply advised the participants that the meeting should proceed. The decision was not made by the participating members of the PNGFA. For that reason, he walked out of the meeting in protest and did not know what happened thereafter.

26. The meeting minute, which was attached to Mr. Mileng’s affidavit, is unsigned and has not been certified as correct. I note from the uncertified minute that a vote was taken and 13 against 5 voted for the meeting to proceed. Mr. Mileng restated the same in his affidavit. I will not rely on the minute of the meeting as it lacks the necessary certification as a correct record of the proceedings of the meeting. Thus, I have to decide whether I should believe Mr. Daniels or Mr. Mileng. Mr. Mileng’s claim would have been supported by the meeting minute but it is uncertified. It is suggested the minutes are incorrect. There is no evidence from the minute taker Edward Tauloi on the correctness of the minutes. Mr. Chung has not given evidence.

27. In the circumstances, I will accept the evidence of Mr. Daniels that no vote was taken and no decision was made on whether the meeting should proceed or not, as ordered. I accept his recollection because failure to take the vote as ordered was the reason for his walk out from the meeting. He would know why he walked out of the meeting.

28. The contemnors’ intention to disobey the court order is evident and manifested in their actions on 4th July 2008 upon receiving the court order. With Mr. Kumura’s assistance, they conceived and engineered what they now claim to be an ambiguity in paragraph (3) of the order. There was no ambiguity. All 22 participants were supposed to decide whether the meeting should proceed or be deferred. The disobedience is, therefore, wilful. I am satisfied beyond reasonable doubt that this allegation has been established.

29. It is thirdly alleged that Mr. Chung and Mr. Mileng failed themselves and failed to instruct the Executive Committee of PNGFA to reimburse in full total cost of travel of Mr. Daniels and all 22 participants immediately upon their arrival and pay all necessary cost for accommodation, meals and other allowances as well as the cost for the trip.

30. Mr. Daniel’s evidence is that all of his travel expenses have not been reimbursed. Mr. Mileng says that all expenses have been paid in full. Unfortunately, all receipts are in New Zealand for audit purposes. I cannot comprehend how copies of receipts were not made and kept in PNG from which copies could have been made for the Court. I cannot accept also that the New Zealand custodians of the receipts could not make copies for the purpose of this proceeding. On the other hand, Mr. Daniels would know whether he has been reimbursed or not. I accept his evidence that his expenses have not been reimbursed.

31. The contemnors do not raise any issue on the clarity of paragraph (4) of the order. Accordingly, I find that the disobedience is wilful. I am satisfied beyond reasonable doubt that this allegation has been established.

32. It is fourthly alleged that Mr. Chung and Mr. Mileng defied paragraph (5) of the court order of 4th July 2008 and suspended four (4) members of PNGFA being president of Kaiapit (Joe Buma), Manus (Memel Pohei), and Higaturu (Carson Victor) Associations and refused to allow the presidents of Simbu (Steven Peris) and Wabag (Kennedy Yambundimi) Soccer Associations to attend the meeting of PNGFA on 5th July 2008 at Highlander Hotel, Mt Hagen.

33. According to Mr. Daniels, participants from Manus, Alotau, Higaturu and Kaiapit were disallowed from participating in the meeting. The appointed proxy from Goroka was replaced by the contemnors. Mr. Mileng’s evidence is that Manus, Alotau, Higaturu and Kaiapit were suspended prior to the consent order of 4th July 2008. I reiterate that the contemnors were bound by the consent order. All 22 members were supposed to be at the meeting in Mt. Hagen. Manus, Alotau, Higaturu and Kaiapit should have participated in the meeting in Mt Hagen.

34. Once again, the contemnors’ intention to disobey the court order is evident and manifested in their actions on 4th July 2008 upon receiving the court order. With Mr. Kumura’s assistance, they conceived and engineered what they now claim to be an ambiguity in paragraph (5) of the order. Their mischievous construction of the order resulted in denial of members in question from participating in the meeting. Their disobedience is, therefore, wilful. I am satisfied that this allegation has been proved beyond reasonable doubt.

35. It is further alleged that Mr. Chung and Mr. Mileng allowed the PNGFA meeting of 5th July 2008 to be conducted pursuant to the Constitution adopted in the PNGFA meeting of 18th January 2007 when paragraph (3) of the court order of 18th September 2007 restrained Mr. Chung and PNGFA from giving effect to the resolution of the meeting of 18th January 2007 as the said constitution was adopted during the said meeting as being one of the resolutions.

36. There is simply no evidence to support this allegation and it remains as not proven.

What is the verdict?

37. In all the circumstances, I find Mr. Chung and Mr. Mileng guilty of contempt of court in that they each and severally and wilfully disobeyed the consent orders of 4th July 2008 when they each and severally:

(a) failed to make it the first agenda and to get the members to decide whether the meeting should proceed or not contrary to paragraph (3) of the court order of 4th July 2008.

(b) failed themselves and failed to instruct the Executive Committee of PNGFA to reimburse in full total cost of travel of Mr. Daniels immediately upon his arrival and pay all necessary cost for accommodation, meals and other allowances as well as the cost for the trip.

(c) defied paragraph (5) of the court order of 4th July 2008 and prevented members of PNGFA being presidents of Manus, Alotau, Higaturu and Kaiapit from participating in the meeting of PNGFA on 5th July 2008 at Highlander Hotel, Mt Hagen.

38. I must now consider what punishment I should impose on the contemnors.

______________________
Daniels & Associates Lawyers: Lawyer for the Applicant
Kakaraya Lawyers: Lawyer for the Contemnors