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Kumo v Hewali [2012] PGDC 5; DC2081 (19 May 2012)

DC2081

PAPUA NEW GUINEA

(In the Criminal Jurisdiction of the District Court held at Mendi)

CFC No 392 of 2011

BETWEEN:
PHILIP KUMO
(Police Informant)

AND:
EKA HEWALI
(Defendant)

Mendi: C Inkisopo

2011: 29^th July, 7^th December, &
2012: 19^th May

District Courts – criminal practice & procedure – particular offence – Southern Highlands Provincial Liquor (Licensing & Control) Act of 2008.

Liquor (Licensing & Control) Act of 2008 – offence under s 50 (1) of the Act (SHP) – liquor “ban” imposed by the Southern Highlands Provincial Assembly to cover entire Southern Highlands Province –

Particular Offence – “smuggling” liquor into the Province without “reasonable excuse” – “licensed wholesale dealer in liquor”- license “extended indefinitely” – whether offence within the meaning of s 50(1) of the Act -

Legislations/Authorities referred to & consulted:

1: The Constitution of the Independent State of Papua New Guinea
2: District Courts Act, Chapter 40
3: Southern Highlands Provincial Liquor (Licensing & Control) Act of 2008

PNG cases cited/consulted:

1: State –vs- Simon Ganga [1993] PNGLR 323 - consulted
2: State –vs- Ruap Gemung (No 1) [2007] N3135 - applied
3: State –vs- Ogadi Minjipa [1977] PNGLR 293 - consulted
4: State –vs- Saka Varimo [1978] PNGLR 62 - considered

Overseas case cited:

1: Browne -vs- Dunn [1893] 6 R67 HL - applied

Appearances:

1: Mr Kumuro Sino with Inspector Jerry Kani for Prosecution
2: Mr Moses Paiya for Defence

Held:

1: Defendant found Not Guilty

2: the exhibits of 1,030 cartons of SP brown beers shall be returned to the Defendant forthwith

2^nd May, 2012

JUDGMENT

C Inkisopo: The Defendant Eka Hewali stood charged that he did on the 10^th of September, 2010 smuggle into the Province namely 1,030 cartons of SP brown beers thereby contravening s 50(1) of the Southern Highlands Provincial Liquor Licensing & Control Act of 2008 (hereinafter called “the Act”.

2: The primary facts not in dispute are; - In the early hours of the night of September 10^th, 2010 at about 4:30am at Kaupena’s Wara Kaugel Liquor Check Point, a Hino twin steer (12 wheeler) truck carrying a single 20 foot container fully laden with 1,030 cartons of SP brown beers was stopped, checked, found to be containing beers and so was detained by security personnel manning the check point. The truck was later escorted to the famed “Highway Patrol 17” base at Kaupena Police Station and detained with its driver and crew until its owner in the person of the Defendant came along the following day on being so informed.

3: The following day the Defendant fronted up at the Station. He was briefly interrogated by Police personnel at the Kaupena Police Station where he reportedly explained that he was a licensed wholesale dealer’s license holder in the Province including the Hela region; now Hela Province.

4: He was nonetheless arrested and charged with smuggling 1,030 cartons of SP brown beers into the province and released on an O/R bail at the pledge of the PPC Southern Highlands Province, Mr Teddy Tei as a relation through marriage.

6: After the formalities were over, a Police Unit from Kaupena Police Station escorted the Defendant’s container truck into Mendi Police Station. The exhibit of 1,030 cartons of SP brown beers were then offloaded in Mendi and were all stacked up into one of the several 20 foot containers in the front of the Police Station belonging to the Southern Highlands Provincial Electoral Commission Office in Mendi that are used for storing election ballot papers during elections in the Province.

7: These are as much as facts that are basically not in dispute. The Prosecution led evidence through six (6) witnesses who all attended court and were fully heard in evidence under oath. Some of those witnesses namely Mr. Buckley Tenza, the “legal clerk” assisting the Provincial Liquor Licensing Board at the Provincial Administration attended Court and tendered into evidence documents relevant to the case from the Liquor Board of the Province.

8: The Provincial Liquor Licensing Inspector Mr. Nelson Embisi gave evidence on the question of the law on the liquor ban and the Provincial Liquor Licensing Commission, the Liquor Licensing Board and the Provincial Administration’s concerted efforts to carry out awareness of the upcoming liquor ban in the Province as well as the effective date of the ban. This witness tendered into evidence the Minister’s approval letter of the Province’s liquor Act as a duly passed law under s 141 of the Organic Law on the Provincial and Local Level Governments, as well as copy of the publication in the National Gazette giving notice of the liquor ban in the Province including a newspaper article advising of the ban.

9: These and the other prosecution witnesses were treated to sustained cross-examinations each by the Defense Counsel, Mr. Moses Paiya of Mt. Hagen’s Warner Shand Lawyers.

10: The Defendant Eka Hewali gave evidence in his defense. He was the only witness in his defence. In support of his case, Defendant introduced and tendered documents relevant to his case. He was likewise treated to a sustained cross-examination by the Prosecution team led by Mr Kumuro Sino of Sino Lawyers ably assisted by Inspector Jerry Kani of the Mendi Police Station Prosecution Office.

11: At the close of both the Prosecution and Defence cases, all parties agreed for the case to be adjourned to 17^th November, 2011 for the Defence to file in their final written submissions first whilst the Prosecutions were to file theirs two (2) weeks thereafter.

12: Defence filed their submissions on 01/11/2011 (two+ weeks earlier) and the Prosecution had yet to file theirs as their due date was specifically fixed for two weeks after the Defence submissions was to have been filed on 17^th November, 2011. Even after two weeks of 17^th November, 2011, the Prosecution submissions had still yet to be filed so the Court granted time extension to the Prosecution to get their submissions in but still not yet; and so the waiting game continued until I could not wait any longer as time was running out on me to prepare to travel to my next posting for 2012. I left the Province on Wednesday 26^th January, 2012.

13: And to date, I have as yet to receive anything from the Prosecution. I take it that they have no submissions to hand in so I have to assess and decide this case without any assistance by way of submissions from that side.

14: I thought that this matter should not be made to protract any longer as there is a special urgency attached to it, and the need for the Court to expedite the conclusion of this matter.

15: The particular urgency of this case is the fact that the entire exhibits of 1,030 cartons of brown SP beers are stored in one of the Electoral Commission owned 20 foot containers and the obvious need for the container to be freed up for the upcoming 2012 National General Elections for the Southern Highlands Province to store and hold election ballot papers. I therefore feel it most imperative to publish and hand down my decision in this case sooner than later.

16: This is that decision in writing.

17: I have heard all the Prosecution evidence presented in this case in support of the charge preferred against the Defendant as well as his Defence. This included the documentary evidence by both parties and the facts as borne out from these two (2) sets of evidence which are basically common and generally not in dispute as I have foreshadowed somewhere above in this judgment.

18: It becomes obvious to me that the issue in this case is one of law as opposed to facts as the facts are fairly basically common and not in dispute.

19: I have considered the evidence for both sides from which I make the following observations;-

A: Prosecution documentary evidence establishing the following;-

(1) The existence of Southern Highlands Provincial Assembly enacted “liquor ban” law, the Southern Highlands Provincial Liquor (Licensing & Control) Act of 2008.

(2) The liquor ban law of the Southern Highlands Provincial Assembly as having been duly approved as law under the provisions of s 141 of the Organic Law on Provincial and Local-Level Governments, 1997 (as amended) by the Minister for Provincial Affairs and Inter-Governmental Relations, Mr. Job Pomat, MP.

(3) Publication of the existence of the provincial Liquor ban Law of the Province in controlling and forbidding the sale and consumption of liquor in the Province.

(4) Purported notice to licensed dealers of the liquor ban in the province urging all the licensed dealers to sell out their then current stock before the liquor ban’s effective date.

B: On the other side of the equation, the Defendant’s documentary evidence went to show that;

(1) He was a licensed wholesale dealer in liquor through his company Hela Opene Investments Limited in the Province including the Hela region which is now a Province of its own.

(2) Defendant operating through an incorporated company sub-nomine Hela Opene Investments Ltd which company is licensed to deal in wholesale liquor in the Province including Hela Province.

(3) Hela Opene Investments Ltd, a corporate entity was the owner of the subject exhibits of 1,030 cartons of SP brown beers

(4)Hela Opene Investments Ltd being a duly incorporated company was a duly licensed wholesale dealer in liquor in the Province including the Hela region – now Hela Province and that the Defendant is the sole shareholder and owner of this entity called Hela Opene Investments Limited.

21: Whilst going through the evidence of both the Prosecution and the Defence, I noted an aspect of this case that raises a serious preliminary issue in my view as to whether or not it was proper and appropriate to have laid this charge on this Defendant as an individual when the consignment owner clearly seemed to me to be this corporate entity called Hela Opene Investments Limited. This point becomes a necessary consideration when the subject 1,030 cartons of brown SP beers belonged to Hela Opene Investments Limited, which is an inanimate corporate person separate from its owner, the Defendant in this case.

22: That being the case, it is my humble view that laying this charge on the Defendant seemed to me to have been somewhat improper and inappropriate as the whole process of arrest and charging the defendant for this present offence failed to take account of the “corporate veil” principle of Company law; that the owner and the corporate entity are separate persons in law and that the owner can not be held liable for the wrongs and/or liabilities of that corporate entity except only to being limited to the number of shares he holds in the entity. That is the basic principle of company law as I understand it - but if I am wrong on this point, I humbly stand corrected.

23: Hence, the laying of charges on the Defendant as owner for an offence that in my view is Hela Opene Investments Ltd’s ‘corporate liability’ is quite improper. And to that extent, this present charge as leveled against the Defendant personally would seem to be flawed thereby.

24: Consequently, the fate of this case would have been long determined in the earlier stages of the proceedings when the matter first came to Court had Defence Counsel done his job with due diligence.

24: But now that the matter has gone through a full-fledged trial and evidence for and against heard and received I will not stop here but proceed to assess the matter and make findings and arrive at a decision.

25: After considering and having have assessed all evidence adduced in this case, I am satisfied that the Prosecution evidence on the issue of the Provincial liquor licensing and control law passed by the Provincial Assembly is established to my satisfaction. Needless to say, I must but take judicial notice of its existence as law covering the Province. There is therefore an Act in place titled “Southern Highlands Provincial Liquor (Licensing and Control) Act of 2008, an Act properly so-called covering the Province which included the newly created Hela Province.

27: This law prohibits and controls liquor transportation, conveyance, possession, sale, consumption and dealings in liquor in the Province. This law has been duly approved as a proper Provincial law by the Minister for Provincial Affairs & Inter-Governmental Relations, Mr. Job Pomat (MP) pursuant to the provisions of s 141 of the Organic Law on Provincial and Local-Level Governments of 1997 (OLP&LLG).

29: For all intents and purposes, the Defendant would seem to me to have been caught out full and fair by that law but for the fact that certain Southern Highlands Provincial Administration and the Provincial Liquor licensing Commission personnel entering into subsequent correspondences in the implementation stages that in my view markedly vitiated the full effect and tenor of the law passed by the Southern Highlands Provincial Assembly.

In other words, those subsequent correspondences such as that from the Provincial Legal Officer Mr. Peter Sapu’s advise letter of 08/01/2010 to the Provincial Liquor Licensing Inspector Mr Nelson Embisi, in my humble view seemed to provide holders of expired liquor dealers license and potential offenders avenues for excuses, justifications and lee-ways for possible defenses against prosecution under the Act.

30: An excerpt from the Provincial Legal Officer’s letter that in my view operated to provide just that is;-

“Meanwhile your office is advised that not to issue new licenses or to renew existing licenses Existing licenses can carry on trading under current licenses. In the event of current license have expired, they will be deemed to have been extended indefinitely until such time the Board issues a notice to the licensees notifying them on the ban.“ (Sic)

33: At the commencement of the trial, Mr. Sino for the Prosecution made a small opening statement as to what the case was about in relation to the Southern Highlands Provincial Assembly enacted liquor law and the number of witnesses Prosecution would be calling whilst on the other hand, Defence Counsel did not offer any opening statement for his client’s defence nor did he disclose at the outset what his client’s defence to the charge was like. Even though he was not obliged to do so, I still considered it a desirable practice (see State -vs- Saka Varimo [1978] PNGLR 62) and proper to have done so in order to have the Court apprised at the outset what his client’s Defense was so as to enable the Court have a grasp of the line of defense being mounted and follow through during trial.

35: I view this lack as an important oversight on the part of Counsel with all due respect; as he failed miserably in the trial that ensued by failing to put his client’s case and/or defence to the Prosecution witnesses. Counsel seemed to me to have been ignorant of the important principle as found in the old English case of Browne vs.-Dunn [1893] 6 R 67 HL that has been adopted and applied as an inherent principle of law in this Jurisdiction by the Higher Courts as in the State- -vs- Ogadi Minjipa [1977] PNGLR 293, State -vs- Saka Varimo [1978] PNGLR62, State -vs- Simon Ganga [1994] PNGLR 323 and the more recent one of State -vs- Ruap Gemung (No1) [2007] N 3135.

36: The Bowne vs.-Dunn (supra) principle is stated generally in these terms as paraphrased by her honour Madam Justice Davani whilst quoting a South Australian case in the State -vs- Ruap Gemung (No1)( supra) as;-

“If it is intended to suggest a witness is not speaking the truth on a particular matter by cross examination, his direction must be directed to the matter by cross examination so that he may have an opportunity of giving an explanation of it open to him unless he has notice beforehand that the credibility of his story is impeached or unless probably it is so intrinsically and patently incredible to be worthy of examination.” See State -vs - Ruap Gemung (No1) at pages 9-10 of her honour’s numbered judgment.

37: All through out the cross examination of the Prosecution witnesses, Defence Counsel completely failed to put to the witnesses any of his client’s instructions, Defence nor Defence suggestions. As for an example, if Counsel was to be relying on the Defendant’s possession of a wholesale liquor trading license as his client’s Defence, he certainly should have put that fact to the Prosecution witnesses especially from the Provincial Liquor Licensing Commission inspectorate in order to elicit their responses; but sadly Counsel failed. I just could not follow nor make out head from tail from Counsel’s entire line of questioning in the Defence of his client.

38: At one stage of his cross-examination I felt tempted to demand from Counsel what his client’s defence was to the charge as he plodded on in dwelling on matters I considered to be unimportant irrelevant matters. To my mind, this was one contributing reason why this case took longer to complete than it really should have.

39: When Defence case opened, Counsel launched into leading his client’s evidence in-chief and started introducing and tendering into evidence documents which were;-

1:- A certificate of incorporation of an entity called Hela Opene Investments Limited “Exhibit No DB” 2:- Wholesale Liquor Dealer’s License No O/R C: 42 “Exhibit No “DC” 3:- Letter to Provincial Liquor Licensing Inspector, Mr Nelson Embisi from the Provincial Legal Officer, Mr Peter Sapu dated 08/01/2010, “Exhibit No DD” 4:- and a host of other documents and photographs as evidence in support of his client’s case.

40: I find it most apposite to adopt here for our immediate purposes what her honour Davani, J remarked of defending Counsel in the Ruap Gemung (No 1) (supra) case –

“...the manner in which Defence Counsel presented his client’s case leaves a lot to be desired. I say this because apart from not putting his client’s case or Defence to the Prosecution witnesses and the Court, he did not know of the authority, Brown -vs- Dunn” (supra).

41: In my view, it was inexcusable for Counsel to have missed this one as it is an important principle of law in this jurisdiction that is taught early in year 1 at the UPNG Law School under the Criminal Law, Practice and Procedure Course Units of that school. There are a good number of cases in this jurisdiction that have dealt with this principle, applied and emphasized (as shown above) at various levels and phases.

42: As it were, this case would have been determined otherwise if the case was to be determined primarily on question of facts; for the legal defence mounted in the matter was found to be wanting.

43: That being so; this matter necessarily comes down on question of law as the facts are basically fairly common and undisputed. Hence it falls on what the law says and the consequential effects of those subsequent actions and/or inactions of the Southern Highlands Provincial Administration and the Liquor Licensing Commission personnel during the implementation stages of the liquor law that seemingly had the effect of affording offenders “avenues” for defenses, excuses and/or justifications from prosecution under the Act.

44: I have perused and considered all the evidence adduced by both parties – both oral and documentary for and against the charge and have assessed and contrasted them against the “offences generally” provision of s 50(1) of the Southern Highlands Provincial Liquor (Licensing & Control) Act of 2008 which says;-

“Section 50 Importation of Liquor into the Province – Non- Dealers License Holders

(1)A person other than a holder of a Dealers License who brings liquor into the Province in guilty of an offence under his Act.

(2)The penalty for an offence committed under this section shall be –

(a) in the case of a natural person confiscation of all liquor and;
(i)a fine of K1,000 if the liquor smuggled is not in bulk;
(ii)a fine of K5,000 if the liquors smuggled is in bulk; and

(b)in the case of a person other than a natural person, confiscation of all liquor and a fine of K10,000.

(3)A person who is found guilty of a continuous act or acts in further defaults under this section shall, in addition to having the liquor confiscated, have his license suspended in the first default and termination of license in further defaults”.

45: According to this provision (s 50(1), it becomes an offence only when someone – either natural or corporate - who is not a liquor dealer’s license holder brings liquor into the Province either in bulk or not in bulk.

46: On the other hand, when someone who being a holder of liquor trading license brings or transports liquor into the Province, he commits no offence under this Act and that is how I see it upon a closer reading of s 50(1) of the Act!

47: In our present case here, I observed that the Defendant is a licensed wholesale dealer in liquor through his company Hela Opene Investments Limited whose license I consider as having been “extended indefinitely” by virtue of the Provincial Legal Officer’s letter of advice to the Southern Highlands Provincial Liquor Licensing Commission Inspector, Mr Nelson Embisi dated 08/01/2010 regarding the implementation aspect of that law.

48: It would therefore seem obvious that the Defendant on the Prosecution evidence so far led could not lawfully be convicted of the particular offence with which he stands charged.

49: To the contrary, the Defence evidence notwithstanding the observations I have made above of Counsel’s conduct of the Defence in this case, seemed to me to raise doubts in my mind as to the overall assessment of this case and this being a criminal trial with the standard of proof being of prove beyond reasonable doubt, I must but give the benefit of the doubt to the Defendant howsoever slight the doubt might be.

50: Furthermore, prosecution has in my view failed to bring the Defendant under s 50(1) of the Act in that it has not led evidence to either nullify, disprove or negative the fact that Defendant is a holder of a wholesale liquor dealer’s license through his company Hela Opene Investments Limited. I find as a fact that Defendant is a licensed wholesale dealer in liquor whose such license had been “extended indefinitely”.

52: On all of the above observations and discussions, I can not be satisfied that the case is proved on the criminal standard of proof beyond reasonable doubt and accordingly, I find the Defendant Not Guilty of the offence with which he stands charged.

53: I therefore acquit him and is accordingly discharged of the charge forthwith.

The formal orders of this Court are;-

1: The defendant is found Not Guilty

2: The Defendant’s O/R bail is discharged forthwith

3: Next; I find myself beset with this unenviable task of dealing with the issue of what becomes of the exhibits of 1,030 cartons of brown SP beers at the instance of the Defendant’s acquittal from the charge?

54: The exhibits are those 1,030 cartons of brown SP beers currently locked up in one of the 20 foot containers presently located in the frontal area of Mendi Police Station.

55: For the consideration of this issue, I’d call to mind, refer to and adopt the same reasoning I gave in my written decision delivered in one other liquor related case in Mendi in the Southern Highlands Province in re: Police -vs-James Imagu CFC No 025/2011 a copy of which is attached here for reference purposes only.

56: In my humble view, the fate of the exhibits in issue must necessarily follow the event; meaning at the instance of the Defendant’s acquittal, the exhibits shall all return to him; for to do otherwise is to violate the constitutional rights of the Defendant. The Defendant cannot be penalized by having the exhibits forfeited or dealt with otherwise without being found guilty of the offence or any other offence under the Act. There is no legal basis for either forfeiture or confiscation of the exhibits in issue. Section 37(2) of the Constitution says that “no body may be convicted of an offence and the penalty for which is not prescribed by a written law except for the offence commonly known as ‘contempt of court.’”

57: To do otherwise than to return the exhibits to the Defendant will be tantamount to penalizing him for an offence he has not been found Guilty of; and that will be in direct breach of the Constitutional provision referred to immediately above.

57: On the basis of the above discussions, the only lawful and logical option open in this case is to return the entire exhibits of 1,030 cartons of SP brown beers (less those stolen or damaged during that one-off break, enter and stealing incident into the container containing the exhibits) to the Defendant. And I so order.

58: The final formal orders of this Court therefore are;-

1: Defendant is found Not Guilty and is therefore acquitted of the charge

2: The Defendant’s O/R bail is fully discharged

3: The entire exhibits of 1, 030 cartons of SP brown beers shall be returned to the Defendant less those lost and/or damaged.

___________________________
Lawyers:

(1) Mr Kumuro Sino of Sino Lawyers and Inspector Jerry Kani for Prosecution.

(2) Mr. Moses Paiya of Mt. Hagen’s Warner Shand Lawyers for the Defendant.