State v Liem [2005] PGDC 71; DC443 (24 March 2005)

DC443

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 09 OF 2005

State
Complainant

V

Frangky Liem
First Defendant

Verdict
Second Defendant

21st and 24th March, 2005.

KORONAI, PM:

The Defendant is charged under Section 396 of Criminal Code Act Chapter 262 with the following charge:

"That he at Vanimo Top Tower, on the 25th day of January, 2005, did unlawfully break and enter the dwelling house of Winis Map".

Thereby contravening Section 396 of Criminal Code Act Chapter 262.

Section 396 of the Code reads:-

396 A person who, without lawful excuse (proof of which is on him) breaks and enters the dwelling house of another is guilty of a Crime.

Penalty: Imprisonment for a term not exceeding three years.

The elements of this charge are:-

1. date, time and place of offence

2. defendant without lawful excuse

3. breaks and enters

4. the dwelling house of another

Evidence in respect of this case for the State has been summed up in my reasons for decision on the no case submission. The defendants evidence was that he does not deny that he used the master key to open Winis Map's room, on the date of this offence and removed Map's Lap Top Computer and erased his Company's documents from it. His excuse was that as owner of the property in which this room is part of he's entitled to enter it at will, even if the occupant is not present and without consent and what he did on the date of the offence was necessary to retrieve what he says important Company documents. Defendant admitted that he did this prior to serving Winis Map, his letter of termination of employment with Vitas Construction Ltd. He also admitted that the property in which the room was located is owned by Vitas Construction Ltd and which gave this room to defendant, it's General Manager, to dwell in.

The defendant did not dispute the fact that he did on the 25th day of January, 2005 broke and entered Winis Map's dwelling house, ie, the room allocated to him to dwell in but says he is excused by law to do so as he owns the property in which this room is situated in.

The question now is, is that defence made out by him on the balance of probabilities and the onus is on him to show that he has a lawful excuse to do what he did then. In Regina v Kerry Kepo [1975] PNGLR 226 was a case where the defendant believed that liquor inside the complainant's house was his so broke down it's door lock, and hatch, opened it when the occupant was not around and entered the house and took the liquor away in a bag. In that case it was claimed that the defendant had a honest claim of right and a honest but a mistaken belief in his right to use the bag for the purpose of carriage of liquor. Prentice J, held, "that a belief by the accused that liquor inside the house of another belonged to him and that he was entitled to get it back, did not constitute lawful purpose within the meaning of the section".

In holding this view, his honour at page 229, said; I consider different considerations should apply to an offence of which an ingredient is interference with the integrity of (for example, the breaking of the closure of) another's property. I consider no lawful purpose has been demonstrated, even to the extent of the civil onus, for the break and entry of Behnke's property occupied by Raymond Toklyap. I find the offence of break and enter without lawful purpose established". This case has definitely ruled out the defendant's defences of honest claim of right to open and enter Winis Map's room and the honest but mistaken belief that he did so to recover important Company documents, both defences found under Section 23 (2) and 25 of the Criminal Code Act Chapter 262. The decision in the above case is support by those of Regina v Gahoso Simbane [1975] PNGLR 254; Regina v Joseph Mal [1975] PNGLR 230 and Rex Kupu v Demas Doria [1988-89] PNGLR 286.

I am also satisfied by the whole of the evidence that Vitas Construction Ltd is the owner of the property in which the room was in and it had, through the defendant, allowed, by licence, in giving Winis Map the right to dwell in it. That right has not been terminated by the defendant's letter of termination before he exercised, on behalf of Vitas Construction, the right to enter and remove these Company documents from Winis Map's Laptop Computer. Vitas Construction Ltd is a Company, a separate entity in law from it's owners and shareholders such as the defendant and can own and dispose of property according to law. I am also satisfied that Winis Map's room is a dwelling house as defined by Section one of the Criminal Code Act Chapter 262 and the case of The State v John Wobl Unreported, National Court Judgement of 13th October, 1975; N6.

I am also satisfied that this break and enter falls within the meaning of break and enter under Section 394 (J) and 2) of the Criminal Code Act Chapter 262.

The end result is that I find this charge against the defendant to be proven without any reasonable doubt in my mind and return a VERDICT OF GUILTY against him.

Police Prosecution: Complainant
T.C. Waisi: Defendant