Fowke v Highlands Coffee Export Ltd [2003] PGDC 40; DC375 (22 July 2003)

DC375

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO'S 949-950 OF 2003

In The Matter of Private Prosecution

BETWEEN

John Fowke
Informant-

V

Highlands Coffee Export Limited
Defendant-

Lae: Martin Ipang
2003: 8, 15, 27 May; 6, 19, 26 June
17, 18 & 22 July

District Courts Act. Chapter 40: District Courts are created or established by Statute - derives its limited jurisdiction from the statute, In order to exercise this jurisdiction they must have before them an information alleging a criminal offence.

Coffee Industry Corporation (Statutory Functions and Powers) Act, 1991 - Section 7(7) - discloses no offence' - see also 37 (2) Constitution. Section 7(7) of Coffee Industry Corporation (Statutory Functions and Powers) Act be read together with Section 37 (2) of the Constitution.

Held:

District Court has no jurisdiction to deal with information framed under Section 7(7) of Coffee Industry Corporation (Statutory Functions and Powers) Act, 1991 as it does not clearly define or discloses an offence. Therefore it is unsafe to enter conviction under Section 7(7) of the said Act.

Cases Cited:
1. Kamda -v- Maima (1983) unreported N403(M)
2. SCR No. 1 of 1981, Re Inter-Group [1981] PNGLR 151

Counsels
Michael Wilson Warner Shand Lawyers for Informant
Andrew Kwimberi Goma & Kwimberi Lawyers for Defendant

22 July. 2003

IPANG Martin Magistrate: This is a private prosecution matter brought by the Informant under the Coffee Industry Corporation (Statutory Functions and Powers) Act, 1991. The Informant, Mr. John Fowke is an employee of the Coffee Industry Corporation instituted these proceedings under Section 7 (7) of the Act as referred to.

I consider convenient and necessary to re-state both charges.

1. Information PP 949 OF 2003: The defendant is charged that on the 17th August, 2002 at Lae, it exported a quantity of Coffee on board the ANL Pride V. 32 without paying an applicable Export Levy as required under Section 7 (7) of the Coffee Industry Corporation (Statutory Functions & Powers) Act, 1991.

2. Information PP 950 OF 2003: The defendant is charged that on 23rd August, 2002, at Lae, it exported two shipments, each constituting a quantity of Coffee on board the Huon Gulf V.12 without paying an applicable Export Levy as required under Section 7(7) of the Coffee Industry Corporation (Statutory Functions & Powers Act, 1991.

Brief Facts:

This is brief facts, surrounding the circumstances which gave raise for the both information to be laid against the Defendant.

That on Saturday, 17 August, 2002 the vessel ANZ Pride (voyage 31) sailed from Lae carrying Container No. CLHU 25485 - 2 containing 21.6. tonnes - (expressed as 360 bags of 60 Kilogram) of Coffee consigned to Hamburg Coffee Co. Levy was not paid prior to export.

The following Monday 19 August, the Coffee Industry Corporation's Officer enquired of the Defendant's Lae Agent regarding this matter and regarding the levy payment.

The Agent apologized for breaking the relevant rules and stated that the Defendant had not remitted the required funds so as to enable the export levy to be paid. Coffee Industry Corporation then contacted the Defendant and was advised verbally that the non payment was due to problems at the Bank in Mt. Hagen and that arrangement would be made to forward the necessary payment. It was stated that no payments were received.

Then during the same week it was made known by the Defendant that two further containers had been dispatched from Mt. Hagen for shipment abroad the Huon Gulf (Voyage 12) which was due to sail on Friday afternoon, 23 August, 2002.

On Friday morning, 23 August, 2002, Ephraim Tami representing Morobe Customs & Cartage, the Defendant's Lae Agent, sent a fax to the defendant stating that Coffee Industry Corporation was concerned because the arrangement had been that the outstanding payments would have been completed on Thursday 22 August, 2002. However, funds have not been remitted.

Mr. Rumba Rumba, Coffee Industry Corporation's Manager -Licensing and Export Control, sent a letter of demand to the Defendant and their Agent. The letter states that one illegal shipment had already been made and that if due payments were not made immediately, he would deem the two containers destined for the Huon Gulf as being illegal shipments and he would attempt to stop the shipment destined to leave on the Huon Gulf.

In response to Mr. Rumba's letter, the Defendant stated that funds had been transferred to their Agent's account and that the agent would pay outstanding levy charge the same day. This did not eventuate.

These further two containers were already loaded and the vessel sailed that evening bringing the total of illegal exported containers of Coffee to three.

PRELIMINARY APPLICATION BY DEFENCE

Mr. A Kwimberi Counsel for Defence made a preliminary application and submitted that this Court has to first of all, decide whether it has jurisdiction to deal with the matter.

I consider his application to be in two folds. The first part of the application is that, (1) The Section 7(7) of Coffee Industry Corporation (Statutory Functions and Powers) Act does not create an offence, except for penalty.

He argued that Section 7(7) of the Act, only makes it mandatory for a person exporting Coffee or Coffee products to pay Levy before exporting the same. Without stating the words to that effect that "It is an offence for a person to export coffee without paying the levy, in accordance with this Section, in particular Section 7, to it then should go further and provide for the penalty. Mr. Kwimberi then stated that section 7(7) of the Act, does not create an offence.

The second part of his application is that if this Court finds that Section 7 (7) of the Act does not create an offence, than it would be inappropriate and unconstitutional, under Section 372) of the Constitution in that a person can not be convicted of an offence which is not clearly define by a written law.

First, let me quote Section 7(7) of the Coffee Industry Corporation (Statutory Functions and Powers) Act, 1991:

Section 7(7) of the Act reads;

"An Export Levy that is applicable to a quantity of Coffee or Coffee product must be paid before the Coffee or Coffee Product is exported".

Penalty: A fine not less than K5000.00 imprisonment for a term not exceeding six months or both".

Mr. Kwimberi cited the case of Kamda -v- Maima (1983) Unreported N403(M) where Sir Buri Kidu stated at pages 11-12:

"This right emphasis two things; firstly, no person in Papua New Guinea can be convicted of an offence which is not specifically prescribed by a written law; secondly, that for a person to be convicted of an offence, the second criteria or condition is that penalty for that offence must be prescribed by a written law ".

The Defence Counsel therefore submits that this Court does not have the jurisdiction to deal with this case because the defendant is raising a Constitutional Defence on the legal Basis of the Proceedings by the Informant.

Mr. Wilson for the Informant submitted that Mr. John Fowke, as an employee of the Coffee Industry Corporation has been empowered to conduct proceedings in such circumstance. The reason being that the Informant is In-Charge of the regulating aspects of the Coffee Industry and thus he has the locus standi to act on behalf of Coffee Industry Corporation to address deficiency and default of anyone in the proper management of the Corporation's regulations.

Wording of Section 7(7) of the Act.

Mr. Wilson for the Informant counter argued that the provision is mandatory and it provides for penalty in the event that a mandatory act is not complied with. He said it is mandatory that all non-compliance is a self-executing offence.

That the second limb of the section which provides penalty sufficiently denotes the self executing offence given the seriousness of the offence could warrant the application of the self executing powers. The informant argued that section 7(7) of the Act, does provides the offence in a self executing in its mandatory terms, which the penalty provided is sufficiently demoted from the offence itself. Mr. Wilson further emphasis the serious economic and legal implications in that the court decision would cause in the event that case is dismissed.

Further argument by the Informant is that the whole words and descriptions contained in the entire provisions are sufficient in law to create an offence. Section 30 (2) of the District Courts Act was cited to support his contention. Section 30 (2) reads;-

"The description of an offence in the words of that Act, order or instrument creating the offence or in similar words, is sufficient in law ".

Informants counsel submitted to Court that Section 30 (2) of District Courts Act should be adopted to test the issue of whether or not the offence has been provided.

It is Informant's view that the test could conclude that the phrase words and descriptions of Section 7(7) of Coffee Industry Corporation (Statutory Functions and Powers) Act 1991 are similar and therefore creates an offence by itself in self-executing form.

The case of SCR NO. 1 of 1981, Re Inter-Group [1981] PNGLR 151 was sighted as the authority. The Supreme Court in that case stated that the word" offence" depends on the nature of the case in its surrounding circumstances.

Their Honours Kidu CJ, Greville Smith and Andrew, JJ at pp 153-156 held that;-

The word offence has not technical meaning in English law.. .nor in our view in the law of this country... In our opinion an "offence" the context of these provisions in any act or omission, whether by himself or someone else or any condition is consequence of which a person maybe, after proceedings and a finding against him or upon non payment of a fine or penalty.

At page 177 their Honours concluded that;

"Section 20 of the Act creates a criminal offence failing to pay a penalty imposed under Section 17. A person charged with that offence is entitled to the full protection of the law, which is afforded to al persona charged with criminal offence including the protection of Section 37 of the Constitution. There is nothing in Section 20 itself which contravenes Section 37 of the Constitution".

Informants Counsel submitted that Section 20 of the Inter-Group Fighting Act 1977 has similar phrases and wordings to Section 7(7) of the Act wherein no offence has been defined under a written law as claimed by the Defendant.

The Informant therefore submitted that the application in the current proceedings should be dismissed.

RULING ON PRELIMINARY APPLICATION BY DEFENCE

There were several issues raised by the Defence Counsel in this preliminary application before this Court.

The issues raised are as follow:

1. Whether or not John Fowke as the Informant as the locus standi to lay charges against the defendant.

2. Whether District Court has the jurisdiction to deal with this application, now that the issue involve Constitutional interpretation.

At the outset, I have cautioned myself to be mindful of the limited jurisdiction, I have as a Magistrate. This is because my judicial powers are derived from the District Court Act, Chapter 40 which is the statute responsible for creature of District Courts. The powers and functions of the District Courts are derived from the said Act. Unlike the National Court, which is a Court of unlimited jurisdiction (Section 166(1) Constitution).

Now to answer the issue on the locus standi, would mean interpreting the Coffee Industry Corporation (Statutory Function and Powers) Act, 1991. I am of the view that the Act is too vague and has loopholes which would require interpretation by the Supreme Court. Unlike the Fisheries Management Act, which clearly stipulates that Managing Director who is the person allowed to prosecute for the breaches

I will not make any ruling on that issue and would leave it up to both Counsels to take that issue up to the Supreme Court.

On the second issue as to whether I have jurisdiction to entertain such application by the Defense Counsel.

That the wording of Section 7(7) of the Coffee Industry Corporation (Statutory Functions and Powers) Act, 1991 reads;-

"An export levy that applicable to a quantity of Coffee or Coffee product must be paid before the Coffee or Coffee product is exported".

My view of Section 7(7) is that, it makes it mandatory for the Export Levy to be paid prior to Coffee or Coffee product is exported. However, the provision fall short of given description of an offence. I quite agree with Mr. Kwimberi, in that the provision Section 7(7) fall short to express the words" It is an offence for failing to pay Export Levy before exporting Coffee or Coffee product".

That such wording expressly describes and acts or omission which then create an offence for which the penalty is than prescribed. As for the defendant it would be an omission which would create an offence.

In the absence of such description as expressed above (supra), it is my humble view that Section 7(7) of the Coffee Industry Corporation (Statutory Functions and Powers) Act, 1991 does not create an offence. Having said that, I am of the further view that it would be unsafe for me to enter a conviction under Section 7(7) of the Act.

It is also a Constitutional requirement that a person can not be convicted of an offence which is not clearly defined or specifically prescribed by a written law (Section 37(2) Constitution).

Furthermore, I was asked by the Defense Counsel to transfer the proceeding to National Court pursuant to Section 24 of District Courts Act. The wording of Section 24 (1) states;

"Where proceedings have been commenced in a Court, the Court may, at any time before judgement, with or without an application from an interested person for that purpose, for reasons that shall be recorded, make an order staying the proceedings and on such terms as it seem just transferring the proceedings for hearing and determination by some other District Court or, it the proceedings such that they could have been instituted before the National Court in the first instance, by the National Court".

I have considered this application by the Defense Counsel however refused to transfer this proceedings to the National Court based on the following reasons;-

1. These particular Informations Nos. 949-950 of 2003 are not such proceedings which could have been instituted before National Court in the first instance.

2. The set up of Coffee Industry Corporation (Statutory Functions and Powers) Act, 1991 and the Fisheries Management Act share many similarities in that breaches of Fisheries Management Act are prosecuted before District Courts so same applies to Coffee Industry Corporation (Statutory Functions and Powers) Act, 1991.

Ruling:

1. Section 7(7) of Coffee Industry Corporation (Statutory Function and Powers) Act, 1991 does not specifically describe an offence.

2. I lack jurisdiction to deal with the application and both informations under Section 7(7) of the Act.

3. Both informations be dismissed with costs based on District Court Act schedule on costs.

Referral

Both Counsels advised by this Court that the following Constitutional matters be referred to the Supreme Court pursuant to Section 18(2) of the Constitution.

1. Who has the locus standi under Coffee Industry Corporation (Statutory Functions and Powers) Act, 1991 to prosecute for any breaches of the provision of the Act.

2. Whether or not Section 7(7) of the Coffee Industry Corporation (Statutory Functions and Powers) Act, 1991 specifically prescribed and define an offence.

3. If not, then whether Section 7(7) of the Coffee Industry Corporation (Statutory Functions and Powers) Act, 1991, contravene Section 37(2) of the Constitution to such an extent that it be declared invalid.