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Tan Kheng Soon v The Independent State of Papua New Guinea [2023] PGNC 65; N10188 (1 March 2023)

N10188

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

BA NO. 63 OF 2023

BETWEEN:
TAN KHENG SOON
Applicant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Tamade AJ
2023: 28^th February, 1^st March

CRIMINAL LAW – bail application– offence of facilitating the movement of methamphetamine – Controlled Substance Act – Section 62 (3)(a) – bail application in District Court refused– Bail Act – Section 9 – Section 9 considerations exist – tendency to interfere with State witnesses – narcotic drug – serious charge – bail refused

Cases Cited

Bonga v The State [2022] PGNC 563
Fred Keating v The State [1983] PNGLR 133
Kum v The State (2017) N7002
State v Madiring [2019] PGNC 41; N7737
Walami v State [2021] PGSC 100; SC2182

Legislation

Bail Act
Controlled Substance Act 2021
Constitution of the Independent State of Papua New Guinea

Counsel

Mr Harvey Maladina, for the Applicant
Mr Gerhard Goina, for the State

1^st March, 2023

1. TAMADE, AJ: The Applicant is a Malaysian citizen. He applied for bail to the District Court however his application for bail was refused and therefore he applies to the National Court. Mr Goina of the State has no instructions on the grounds in which the District Court refused bail, though Mr Maladina representing the Applicant submits that the refusal of the bail was on the guarantor statements given to the Court though the reasons for the refusal by the District Court is not clear to this Court. The Applicant is charged pursuant to section 62(3(a) of the Controlled Substance Act which was recently certified on 7 February 2022. Section 62(3)(a) is in the following terms:
   

(3) A person (whether natural or body corporate) who knowingly or unknowingly facilitates the movement, transportation, courier or shipment of a controlled substance that is of a-

(a) medium to large marketable quantity; or

(b) commercial quantity,

within Papua New Guinea or outside of Papua New Guinea, is guilty of an offence.

Penalty: (a) In the case of a natural person - a fine not exceeding K50,000.00 or imprisonment for a term not exceeding 25 years, or both; and...

2. On 16^th November 2022, the Applicant was charged on two counts pursuant to section 68 (1) (a) of the Controlled Substance Act 2021 that he had in his premises, controlled substances known as cannabis and methamphetamine which is of commercial quantity with the intent to receive a financial benefit from the sale. The Applicant was arrested, charged and detained and his passport retained by the police. The Applicant therefore applies for bail and states that he is not a flight risk.

3. It is the Applicant’s submission that he was charged together with one other accused and the other accused has admitted to the offence therefore the Applicant will be making an application to the District Court for the charges to be dropped. There is also a submission by Mr Maladina that the Applicant does not reside on the premises where the controlled substances were found with him and therefore the charge can-not be sustained against the Applicant and an application will be made to the District Court for the Applicant to be discharged. In the Affidavit of Mr Maladina in support of his client’s bail application, there is annexed a copy of a lease agreement of the premises at Unit 83 Range View which names a Leong Aun Fung as the Lessee to that premises. The Applicant states that he resides at Unit 1, Allotment 17, Section 515, Waigani Heights. There is a lease agreement in the name of a company called F1 Finance International Limited for the said unit that the Applicant states he resides in. The Applicant is the sole shareholder and director to F1 Finance International Limited though it takes my attention that the Applicant is a foreign citizen operating a business or a company entirely on his own however that is a separate issue not before this Court.

4. The State has objected to the bail application arguing that the question of whether the Applicant should be discharged of the charge under section 68(1)(a) of the Controlled Substance Act 2021 is a matter for the District Court as the State still maintains that there is a case against the Applicant.

5. The State has filed an Affidavit of the Arresting Officer, Detective First Constable Joe Aisi who states that one of the guarantors of the Applicant Mr Pais Dongo Mathew is a potential co-accused in relation to the offence and he is yet to be charged and therefore the Court should not accept his word as a guarantor. Detective First Constable Joe Aisi also states according to police investigations, the Applicant is a member of a drug gang that traffics the substance methamphetamine and at the time of arrest, the Applicant was in possession of 80 grams of cannabis and 125 kilograms of methamphetamine at Unit 83, Range View at Waigani.

6. Detective First Constable Joe Aisi also states in his evidence that he received information that a state witness employed with the FedEx Logistic who intercepted the concealed drug package received threats relating to police investigations. There is therefore some level of apprehension that State Witnesses will be interfered with. Detective First Constable Joe Aisi also states that he received information that the Applicant’s detention is also for his safety as members of the drug gang are issuing threats because of his co-operation to the police investigations.

7. The Applicant’s application for bail is made pursuant to section 42(6) of the Constitution and section 6 and 13(1) of the Bail Act. Section 42(6) of the Constitution is in the following terms:

“(6) A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.”

8. The presumption of the entitlement to bail is weighed pursuant to the considerations under Section 9 of the Bail Act. Section 9 (1) of the Bail Act is as follows with applicable parts underlined:

9. BAIL NOT TO BE REFUSED EXCEPT ON CERTAIN GROUNDS.

(1) Where a bail authority is considering the question of granting or refusing bail under this Part, it shall not refuse bail unless satisfied on reasonable grounds as to one or more of the following considerations:–

(a) that the person in custody is unlikely to appear at his trial if granted bail;
(b) that the offence with which the person has been charged was committed whilst the person was on bail;
(c) that the alleged act or any of the alleged acts constituting the offence in respect of which the person is in custody consists or consist of–

(i) a serious assault; or
(ii) a threat of violence to another person; or
(iii) having or possessing a firearm, imitation firearm, other offensive weapon or explosive;

(d) that the person is likely to commit an indictable offence if he is not in custody;
(e) it is necessary for the person’s own protection for him to be in custody;
(f) that the person is likely to interfere with witnesses or the person who instituted the proceedings;
(g) that the alleged offence involves property of substantial value that has not been recovered and the person if released would make efforts to conceal or otherwise deal with the property;
(h) that there are, in progress or pending, extradition proceedings made under the Extradition Act 1975 against the person in custody;
(i) that the alleged offence involves the possession, importation or exportation of a narcotic drug other than for the personal medical use under prescription only of the person in custody;
(j)[3] that the alleged offence is one of breach of parole.

(2) In considering a matter under this section a court is not bound to apply the technical rules of evidence but may act on such information as is available to it.

(3) For the purposes of Subsection (1)(i), “narcotic drug” has the meaning given to it in the Customs Act 1951.

9. The Courts have found^[1] that an applicant for bail starts with a heavy presumption that bail should be granted in his favour pursuant to section 42 (6) of the Constitution and the Bail Act and unless on reasonable grounds, one or more of the grounds in section 9(1) of the Bail Act is made out. In Fred Keating v The State^[2] , even if one or more of the grounds in section 9(1) of the Bail Act exists, the Court still has the discretion to consider bail.

10. In Bonga v The State^[3], I considered a similar application for bail concerning the same charge under section 68(1)(a) of the Controlled Substance Act 2021. I formed the view that methamphetamine is a dangerous drug and that the definition of a narcotic drug under section 9(1)(i) which has the meaning given to it by the Customs Act should be wide enough to cover the controlled substances under the Controlled Substance Act as the charges are serious charges and the substance is a dangerous drug. The Controlled Substance Act 2021 is quite recent and therefore there is a need to amend the Bail Act on the meaning of a narcotic drug. I also formed the view regarding the Bonga case that the allegations of the trafficking of methamphetamine involved a syndicate of people or a drug ring and therefore there was a high likelihood of interfering with State witnesses. Those circumstances in the Bonga case I find also exists in this case as to the likelihood of interfering with State witnesses.

11. The State has therefore raised the existence of grounds 9(1)(e) and (f) in addition to the ground in section 9(1)(i) of the Bail Act that the alleged offence involves a narcotic drug, there is a high likelihood that the Applicant will interfere with State witnesses as the alleged offence involves a drug syndicate and that it is also for the Applicants own protection that he remains in custody as members of the drug gang have issued threats against him cooperating with the police on his arrest.

12. I am of the view that the Applicants arguments as to the charges against him regarding his innocence and or whether those charges should be dropped are matters for consideration before the District Court.

13. In Walami v State^[4], the Supreme Court said that, if the State opposes bail, it should establish that one of the circumstances under section 9(1) of the Bail Act exists. The State has raised three grounds under section 9(1) of the Bail Act. Under section 9(2) of the Bail Act, the Court is not bound to apply the technical rules of evidence when considering the circumstances raised by the State under section 9(1) however the Court may act on such information available to it.

14. In regard to the submission by the State that the Applicant’s guarantor Mr Pais Dongo Mathew is a suspect in the alleged offence and is yet to be charged by the Police and therefore his word should not be believed by the Court, Mr Maladina has submitted that this guarantor has not been charged and therefore the Court should not take into account the information presented by the State. I take this information by the State into account as persuasive given the entirety of the serious allegations on the charges involving a drug ring and the highly dangerous and controlled substance of methamphetamine and cannabis. In this case, bail is not used to punish the Applicant^[5], the information provided by the State is persuasive to the Court to thread carefully in exercising its discretion under section 9(1) of the Bail Act.

15. In Fred Keating v The State^[6], the Court held that:

“Once one or more of the considerations in s. 9(1) are proved bail should be refused unless the applicant shows cause why his detention in custody is not justified.”

16 The Applicant has not provided any reason to show to the Court why his continued detention in custody is unjustified. I find similar circumstances exist in relation to this matter and the Bonga case that the allegations include the dangerous drug methamphetamine and also cannabis in this case, that it involves allegations of a drug ring that could potentially see State witnesses being interfered with and that the State has raised the concern that it is for the Applicants own safety that he remains in custody out of caution from any reprisal from others in the drug ring in regard to the Applicant’s involvement with the police on the charge. Three of the considerations in section 9(1) of the Bail Act exist in my opinion and therefore based on the information available to the Court as provided for by the State, the application for bail shall be refused.

17. The Court, therefore, makes the following orders:

1. The Application for bail by Tan Kheng Soon is refused.

________________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent

[1] State v Madiring [2019] PGNC 41; N7737 (4 March 2019) and others.

^[2] [1983] PNGLR 133
^[3] [2022] PGNC 563

[4] [2021] PGSC 100; SC2182 (22 December 2021)

^[5] Kum v The State (2017) N7002
^[6] Supra N2