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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. 253 & 254 OF 2019
Madang: Geita J
2020: 2nd July; 4th -7th August; 15th September, 2nd October; 12th -14th November
2021: 15th -19th February
CRIMINAL LAW –Trial – False pretence – Obtained K101,100.00 from the complainant in exchange for fake gold - Criminal Code s.404 (1) (a).
CRIMINAL LAW – Trial – The fake gold sold to the complainant via agents known to the complainant - Intention to make false representation.
CRIMINAL LAW – Trial - Accused found not guilty to conspiracy s.515 (a (b) - Instead, found guilty of false pretence s.404 (a) (b) Criminal Code - Guilty Verdict returned each and severally.
Cases cited
None
Counsel
Ms. Deborah Ambuk, for State
Ms. Delailah Ephraim, for Accused
JUDGMENT ON VERDICT
19th February, 2021
1. GEITA J: The accused were indicted with one count of conspiracy to commit a crime pursuant to s. 515 (a) (b) of the Criminal Code and in the alternative, Obtaining goods by false pretence pursuant to s. 404 (1) (a)(b) Criminal Code. Section 7 (1) (d) was also invoked. Both men pleaded not guilty, and trial ensued.
Trial
2. Two witnesses were called by the State together with the following documents tendered by consent. They include:
State Evidence - Daniel Neo self-employed businessman.
3. He gave testimony as follows: Around March 2019 his shipping manager Timene Okon approached him to buy gold from his brother,
Philip who had travelled in from Daru with some gold to sell. After receiving assurance from Timene that Philip was indeed his brother,
and a relative Daniel bought the gold from Philip. A sum of K52,700 was exchanged for 780 grams of gold. As it was getting dark,
he sent one of his workers to drop the two men at Madang Club.
4. On 14 or 15 March 2019 Philip approached Daniel through Timene again with some more gold to sell at his residence. Since Daniel was very busy with business, he told them to wait but told them that the first gold sold to him had discoloured. He said as he had planned to travel to Port Moresby during that month on business, he paid for the second lot of gold, weighed at 680 grams from Timene and his brother Philip for K47,400.00 plus.
5. When he tested the genuiness of the gold dust with high heat that evening with a blow torch they turned out to be metal and blackish. By then he realised that he had been deceived into buying fake gold from Philip. By then Philip had left the company. He then directed Timene Okon to go fetch Philip Wiaku to explain to him about the fake gold. When Philip failed to answer his phone calls the matter was reported to police.
Timene Okon on oath. The gist of his evidence is as follows: -
6. He was Shipping Manager with Daniel Neos Company in 2019
7. In cross examination the witness said:
Q. You were promised commission, therefore did not tell?
A. Even If I am promised a commission, I cannot recognise gold.
A. Had I known it was fake gold, I would not sell to my boss.
Joshua Kas on Oath.
8. He was asked by his co-worker Namson Lamani to help arrest a teacher
in relation to this complaint. The teacher, Philip Wiaku was apprehended and brought to Madang Police Station and the complainant.
The suspects had fled to Lae, and he offered his services as an undercover officer to have them arrested. After Philip and Timene
made some phone calls to Mark, he arrived with two other persons and was arrested. They were transported from Lae to Madang. They
came in the hired vehicle from Madang which was driven by Garry.
The witness said he checked the vehicle and found fake gold contained in an Amoxicillin container and apprehended Mark and placed him in the police cells in Lae. From Lae he took the pictures of the vehicle and with the assistance of 3 policemen, returned to Madang with the three suspects in the same rented vehicle. The witness was shown Exhibit 10 (photos of the fake gold in an amoxicillin bottle) and he recognised it and said it was the one confiscated in the vehicle in Lae. He had no difficulty identifying the two accused in the dock and called them by their names as Mark and Garry. The witness said the gold samples were found in possession of Mark, contained in his handbag. Garry was the driver of the vehicle.
9. In cross examination the witness agreed that he was a regular police officer attached to the Logging Company at Saidor. He said it was normal police work and was paid an allowance.
Cross examination continues: -
Q. Philip was taken to Madang Police Station and charged by Sgt Silas?
A. Yes, we handed him over to Sgt Silas at Madang Police Station.
Q. Did company fund your operations?
A. Its true fake gold and I took it from Mark.
Philip Wiaku on Oath.
10. I am a teacher by profession, teaching at a primary school in Rai Coast. I recall first meeting Mark in February 2019. Around
2000 I met him again at Lae Botanical gardens through a friend Wangama. Mark showed me some gold samples and asked me to look for
buyers. I in turn called my friend Timene Okon who was working with a logging company. Around March 2019 he saw the gold samples
and I asked him to see his boss and negotiate for a sale. Mark was with us at the time. Timene got his boss interested in the gold
samples, so I took the samples to him the next day on 14th March 2019. On 15th March, a sale was concluded at a value of K47,400.00. I gave the money to Mark who was waiting at Nixon Durban’s Guest House.
From this sale I was given K4400, and the driver was given K3000.
The first batch of gold dust were sold to Timene’s boss on 1 March 2019 for K53,700.00. From this first sale money was given
to Mark, who was residing at Pilgrims Hostel. Mark gave me K6000 cash, and I gave K2000 to Timene Okon. I returned home after the
sale of the second batch of gold.
About two weeks later Timene called me at home and told to come and see his boss but due to rough seas I delayed my travel to town. Another 2 weeks passed, and two policemen came to my place around 3 and 4 pm. Joshua Kass and Lamson came to my place, and I realised they had come to me for the sale of the gold. I cooperated with them and returned to Madang with them. I was interview at the log pond by Timene’s boss, but I cannot remember the date. It is in my file. I realised at that time that the gold was fake. Had I known that the gold was fake I would not have done what I did as it was wrong. I told the boss that Mark gave me the gold to sell so I called Mark in Lae and arranged to meet with him. I went to Lae with Police and met up with Mark. He cooperated with police and was brought down to Madang.
Cross Examinations
11. In cross examination when asked if he knew a person called Simon Tako, the witness said he never met a person by that name. Only Mark called him on two occasions at his home in Rai Coast.
Q. Did he tell you who the gold belonged too?
A. He told me gold was owned by one of his friends, but I do not know his name.
Q. I suggest to you that the first time you, you met a person by the name of Simon Tapo.
A. I do not know a Simon Tapo.
Q. The arrangement of the sale of gold was between you and Simon, what do you say?
A. I do not know Simon, I only know Mark.
Q. I suggest you knew gold was fake when you sold it to Daniel?
A. I did not know gold was fake. If I knew it was fake, I would not do that.
Q. You did benefit from the sale of gold on both occasions, you agree?
A. Yes, I agree, thinking that the gold was real.
Q. I suggest to you that you knew gold was fake, but with the promise of a commission, you assisted, what do you say.
A. I will not say that.
Witness Chanel Sagem on Oath.
12. I am a CID officer attached to Madang Police Station. I am the arresting officer. I recall 24th March 2019 when Joshua Kas told me about a fake gold sale incident. At that time Joshua Kas was on duty call out at Rai Coast. On 26 March 2019 three suspects were brought to Madang from Lae by the Mobile Squad. The suspects were cautioned, interviewed and initially charged under s. 407 of the Criminal Code. The charge was later withdrawn, and new charge put under s. 515 (b) Criminal Code. During the investigations, no evidence was collected from them. The only evidence came from the complainant David Neo. I received containers of gold samples.
All samples were tendered into court. The defence did not take issue with their tender. Marked as follows: Exhibit 11 – Sample
of fake gold dust tested with a blow torch, proved to be metal and not gold. (Blackish colour)
Exhibit 12- Samples taken in the possession of the accused in Lae. Returned from Law and given to Complainant by Constable Pantamari
from Lae.
Defence Evidence.
13. Mark Sam Kaweii elected to give sworn evidence. Co-accused Garry Bogas elected to give unsworn testimony.
14. He gave testimony that he was working as a cleaner at Nixon Duban’s Guest House in 2019. On 4 February 2019 a guest, Simon Tapo Gei booked into the guest house and inquired of him if he knew of any gold buyers in Madang. He went into town and linked up with Philip Wiaku and told him about the guest’s query. On 1st March, the guest returned with some gold and was met at Modilon bus stop by Wanks, Philip Wiaku, Simon Tapo and himself. He said Philip Wiaku took the gold away to sell to his boss and told them to wait. The witness said as Simon Tapo Gei had travelled a long way and needed some sleep he was booked into Pilgrims Guest House as they all waited for Philip Wiaku to return.
15. The witness said around 7 pm that evening Philip returned to Pilgrims with four bundles of money. Each bundle containing K10,000.00. Simon Tapo kept K10,000.00 and gave him K2500, and K1000 to Wanks. From his share he gave K1000.00 to Wanks and kept the remaining K1500.00.
16. Two weeks later 14 March 2019 the second gold sale was executed. The accused met Simon Tapo and his two brothers and Nixon Duban’s guest house. He called Philip Wiako to come and arrange for the sale of the gold. Philip arrived on15th March 2019 and sold the gold and received K46,000,00.00 and gave the money to Simon Tapo. Simon Tapo gave Wanks K3000 and gave K2000 to the witness. We all went our separate ways.
17. The witness said he returned to Lae to visit his sick mother. A week later Philip Wiaku called him in Lae and told him that he was coming to meet him. They had planned to meet at Eriku bus stop.
18. At Eriku bus stop he ran into Garry Bogas and told him that he was waiting for Philip Wiaku. Garry Bogas was driving a 5-door motor vehicle in Lae at the time. As they were waiting for Philip Wiaku Police arrived and arrested both including a Dick Pupu and took them to Snack Bar Police Station. After 1 week we were taken down to Madang.
19. The accused said Simon was a guest and was not known to him. Simon showed the gold to me, Wanks and Philips at the Botanical Gardens. I believed the gold shown to me to be real as they were yellow in colour. I have known Garry for a long time from Madang and Dick Mune is from Lae, Morobe Province.
Cross Examination: -
20. In cross examination the accused said he met a friend Simon who had come down from Kainantu and booked into the guest house for
two nights from 4-5th February 2019. He said Simon returned to his home on 6th February 2019. He said he met Philip during the 1st week of February at Botanical gardens and not in March.
When put to him that he was lying about seeing Simon as Philip had not seen him, the accused said Wanks was with them also at Botanical
gardens. The accused maintained that out of the first gold sale Simon Tapo was the lead man and decided how the proceeds were distributed.
He denied suggestions that Okon was given K1000 and said he does not know Okon,
21. As to the second sale of fake gold, the accused said Philip sold the gold and returned with K47,000.00. He admitted that Philip had told him to meet at Eriku in Lae. Instead, he saw Garry Bogas driving a 5-door vehicle and waved him down. When Garry told him that he was headed for Madang he told him that Philip was on his way to meet him and for them to wait for Philip to arrive. The accused denied suggestions that the vehicle was hired by Garry Bogas upon his instructions. He denied any knowledge and or association with a Jacob Uasik. He also denied hiring the vehicle for two weeks. The accused maintained all along that he was a middlemen and Philip, and Simon Tapo were the key players.
Cross examination continues: -
A. They all kicked and beat us and locked us up.
Q. Did you give your story to arresting officer?
A. I told arresting officer I will give my story to court and will not tell him.
Q. You were shown some things, is that correct, gold samples?
A. Yes.
Q. What did you tell the arresting officer?
A. I did not carry a bag and did not carry gold.
Q. But they were in a vehicle you were in?
A. But not on my physical possession.
Q. You agree gold was found in the motor vehicle?
A. I do not know.
A. No.
22. During re-examination, the accused denied any knowledge of earlier acquaintance with Garry Bogas and whose vehicle he was driving in Lae. He only saw him at Eriku bus stop and waived him down. He said during the distribution of monies from the first sale, he mentioned Simon Tapo’s name to the Arresting Officer. He said he does not know where Simon Tapo is now.
Unsworn evidence from Garry Bogas.
23. In March 2019 he met a Chris Kulag from Buka and told him to hire a vehicle for him. Chris hired Jacob’s vehicle for K1000 per day. The accused dropped Chris at Newtown and went home. As his family wanted to sell betelnut in Lae, they all travelled to Lae. Upon his return journey to Madang, he stopped by at Eriku bus stop to look for some passengers who may assist with fuel for the vehicle. On 25 March 2019 he met Mark Sam and was told to wait for Philip Wiako. As they were waiting for Philip, mobile squad came to them, checked them and took them to snack bar police station. They removed his visa card and assaulted him. He was suspected and so was taken to town police station and locked up. The next day he was driven down to Madang and charged.
Submissions
24. Both counsels were heard on submissions. Counsel of defence Ms Ephraim referred the court to several cases which were primarily focused on the alternative count of obtaining goods by false pretence: s. 404 Criminal Code. She submitted that the accused Mark Sam Kawei was not aware that the gold he was peddling were fake and they came into his possession via a third person, Simon Tapo. As to accused Garry Bogas Counsel submitted that his hire of the said vehicle was not related to Mark’s overt activities and ought not to draw into the ambit of both counts in the indictment. Counsel fell short of properly addressing court on the primary count: s.515 Criminal Code, save to submit that the State has not successfully made out its case beyond a reasonable doubt, the elements of conspiracy to commit a crime and the elements of the alternative charge of false pretence. Ms Ephraim took issue with the type of gold tendered into court: gold dust as opposed to gold bar. I am not sure how much of that variation in the description of gold would impact in the eventual outcome of this case. Very little significance in my view and not fatal to the case. Nonetheless she submitted that evidence presented by the Sate lacked credibility and weight and both accused be acquitted and discharged accordingly.
25. Counsel of State Ms Ambuk submitted both accused were involved in the crime of conspiracy and the crime of false pretence. Mark Sam Kawei was in control of most activities including making payments to those persons who were involved. Garry Bogas was the driver of the hired vehicle from Madang, which was eventually seen in Lae with Mark and others in the said vehicle, when apprehended by police. Counsel of State submitted that as regards the count of conspiracy, inferences can be drawn from the accused participation and involvement. Garry Bogas’s identity and involvement manifested itself thought the statement of the owner of the hired vehicle Ali Kikau. The vehicle was hired out to him with the promise of the sale of proceeds from a gold bar. Both accused were eventually arrested in Lae through police undercover persons, pretending to be interested gold buyers. Both accused came along in the same hired vehicle holding themselves to be gold sellers.
Ms Ambuk submitted that no reasonable person would engage some middlemen to sell his gold, knowing full well that the middleman would be paid his cut of proceeds.
Issues raised by the Evidence.
(a) Did both accused conspire with other persons?
26. Prosecution evidence linking the two accused from their first meeting in Madang, leading up to the hire of the vehicle and meeting each other again in Lae, at Eriku bus stop, too good to be a meeting by chance or coincidence. Their association is further strengthened by yet another too good to be true meeting with Philip at Eriku bus stop. It is not hard to figure out that the accused were known to each other and were in constant communication with each other. They were constantly conspiring with each other in their overt operation to sell fake gold particles to unsuspecting buyers. They succeeded in netting almost K101,100.00 from the sale of fake gold particles from two overt transactions, through third parties.
(b) Both accused deny any knowledge of selling fake gold.
27. This finding of fact is neither here nor there as credible evidence is scarce. Prosecution evidence has all fingers pointing at
the accused Mark who had possession of the fake gold all the time and appeared to be responsible for the receipt of cash and eventual
distribution of proceeds from the two sales.
In the absence of any credible evidence to the contrary I am satisfied that during all those fake gold particle transactions he had
knowledge that the gold was fake.
Furthermore, supposing that he was plying real gold particles, why go through middlemen who obviously cut into your sales. Also, if indeed the gold were genuine, why not sell them directly to buyers in Lae and make savings instead of taking the trouble of travelling to Madang to look for buyers. It follows therefore that their denial of any knowledge of selling fake gold particles is a fallacy and not to be believed.
(c) Both accused were not in possession of fake gold particles.
28. Both accused have nothing to offer. Accused Garry’s evidence was unsworn and not to be believed. In any event it lacked substance and lacked merit. Prosecution evidence of searching and finding gold particles in Lae, in the hired vehicle, accused Garry Bogas was driving remains undisturbed. The two accused and some other men were also in the vehicle at the time of the search. The middleman said to be the king pin in the fake gold sales, Simon was not in that vehicle at the material time. All that accused Mark offered in defence was that he did not carry a bag, he was not in possession of the gold nor was the gold found in his possession. Inferentially therefore I am satisfied that the fake gold particles were owned by Mark, and they were in his possession in the hire vehicle in Lae.
The Relevant Law
S. 515 (1) (a). Conspiracy to commit crimes.
A person who conspires with another to commit a crime or to do any act in any part of the world that—
(a) if done in Papua New Guinea would be a crime; and
(b) is an offence under the laws in force in the place where it is proposed to be done, is guilty of a crime.
Penalty: If no other penalty is provided—
(a) imprisonment for a term not exceeding seven years; or
(b) if the maximum penalty for the crime in question does not exceed
imprisonment for a term of seven years—not exceeding that penalty.
29. Evidence so far as it stands points to the accused Mark Sam Kawei to be that person. The next possible person could be Simon Tapo put forward by defence. Next on the list was only referred to as a driver. We now know from evidence that the driver was co-accused Garry Bogas and so he falls into the element of the person by operation of s. 7 of the Code. Since Simon Tapo appears to be an invention and not supported by credible evidence he is ruled out. Inferentially therefore all evidence pointing to Mark Sam Kaweii as the person.
30. The prosecution has proven the charge against the accused beyond a reasonable doubt. The Court finds the accused Mark Sam Kaweii guilty and convict him accordingly. Co-accused Garry Bogas is also found guilty and convicted accordingly by operation of s. 7 Criminal Code. As regards the element of intent to defraud: Such intentions manifested itself in the overt actions of both men as they successfully deprived the complainant Daniel Neo of K101,100.00 in exchange of fake gold particles through third parsons.
The second element is conspires with another.
31. Evidence so far as it stands points to Philip Wiaku and Timene Okon. Both men were used by Mark Sam Kawei as middlemen to secure
the sale of his fake gold to Timene’s boss Daniel Neo to the tune of K100,100.00 cash. The three men were involved in the crime
of conspiracy. For the moment only Mark was prosecuted with Philip and Timene granted immunity and turned witnesses for the State.
Co-accused Garry Bogas was the driver of the hired vehicle which was used to carry out their bogus heist and conspiracy from Lae and
Madang. By operation of s. 7 (1) (d): any person who counsels or procures any other person to commit the offence, Garry Bogas would have constituted an offence of conspiracy on his part and is guilty of an offence of the same kind.
The third element is commit a crime. The crime the two accused committed was to falsely and knowingly sold fake gold particles through third parties to an unsuspecting buyer, Daniel Neo.
Findings.
32. As to the first and third elements under s. 515 (a) Conspiracy to commit a crime, the prosecution has successfully proven these two elements. As to the second element, the prosecution has not successfully proven this element. The tenor and intend of s.515 (a) is that the person(s) must conspire with another in order for a crime to be committed. Count 1 in the Indictment is framed in a way that the accused conspired with each other, hence defective. They cannot conspire with each other as they are one in this case. They must or ought to have conspired with other persons other than themselves. Put simply Count one is defective in this regard and the related element not proven.
33. Count One (1) of this indictment under s. 515 (a) (b) must fail and is therefore dismissed.
Alternative Count: s. 404 (1) (a) Obtaining good (money) by false pretence.
“That they between 1 of February 2019 and 20 March 2019 at Madang in Papua New Guinea by falsely pretending to a Daniel Neo that they were selling genuine gold, obtained from the said Daniel Neo monies in the sum total of One Hundred and One Thousand, One Hundred Kina (101, 100.00) with intent to defraud.”
The elements:
a. A person
b. Obtains
c. Intent to defraud
34. All three elements under this heading are successfully made out. Accused Mark and Garry proved to be those persons; they both obtained monies from another person, Daniel Neo through the sale of fake gold particles, using third parties as fronts. S.404 (2) is saying that it is immaterial that the thing is obtained...through a medium of a contract... In this case the two men used some middlemen to do their dirty work. It follows that they cannot be excused simply because they did not deal directly with Daniel Neo. In any case these types of crimes are overtly and discreetly carried out and in almost all cases the mastermind behind these crimes remains in seclusion.
35. Such intentions manifested itself in the overt actions of both men as they successfully deprived the complainant Daniel Neo of K101,100.00 in exchange of fake gold particles through third persons. Furthermore, by operating the way they did, their actions manifested in their intentions to defraud persons by selling the fake gold particles. As no reasonable man would engage third parties to peddle his genuine gold lest he be deprived of a percentage to the middlemen. Only persons who are either depraved in mind or fraudsters would use middlemen for fear of detection and apprehension.
36. The prosecution has proven the charge against the accused beyond a reasonable doubt.
Verdict.
(b) As to Alternative, the court finds the accused Mark Sam Kawei guilty and convict him accordingly. Co-accused Garry Bogas is also
found guilty and convicted accordingly by operation of s. 7 (1) (d) Criminal Code.
_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor. Lawyers for the Accused
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