State v Nomi [2007] PGDC 116; DC644 (19 October 2007)

DC644

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]

DCCr 1124 of 2007

BETWEEN

STATE

AND

AZUO NOMI
Defendant

Goroka: F MANUE
2007: October 08, 19

CRIMINAL- Sales of Liquor outside trading hours – Liquor Licencing Act – Section 104 (1) (a) Elements of the offence whether Travolters Bottle shop licence was issued or owned by the defendant, whether the defendant actually sold to the client.

Held – 1. For the purposes of the Act, the words licensee, and licenced premises mean the same thing and are interchangeable.
2. The Act is targeted at licencees, licenced premises and owners. The definition of owner covers licencees, licenced premises, owners of licenced premises and employees of licenced premises or licencees.
3. When an employee sells, it means the licencee or the licenced premises or owner had committed an offence under the Act.

Cases Cited
Nil

References

1. Sections 1, 70, 82 (1), 84 (1), 86, 100, 102, 103 (2) (b) and 104 (a) (a) of the Liquor Licencing Act 1963.
   

Counsel
For The State - Senior Constable Pipi of Goroka Police Station
For The Defendant - In Person

09 October, 2007

REASONS FOR DECISION

F Manue: The defendant AZUO NOMI has been charged for selling liquor on 21 September 2007 during prohibited hours between 6:00 pm to 9:30 pm contrary to Section 104 (1) (1) of the Liquor Licencing Act 1963.

2. The issues are whether the liquor licence issued to Travolters Bottle shop was issued or owned by the defendant, and if so whether he actually sold liquor to a client outside of trading hours.

3. Prosecution called two (2) witnesses, both of whom are members of the Royal Constabulary of Papua New Guinea, who were on official duty at that time. Their evidence is summed up in this manner.

4. On the 21 day of September 2007, at around 9:30 pm the witnesses and two others were on duty and were on motorist patrol along Okuk Highway towards Faniufa, which is on the outskirt of Goroka town. They saw that there were a lot of people crowding around in front of the shops at Faniufa. They stopped the police car. By the time they stopped the crowds dispersed one by one. The witnesses noted that a man was beside a fence with a carton of beer and he was busy drinking away there. Constable Anobo, one of the witnesses said he approached the man and asked him where he had bought the carton of beer from which he was drinking. The man pointed to one of the shops along the Okuk Highway. The man was asked to carry his carton of beer and he was escorted to physically identify the shop to the witnesses.

5. At the shop, the witnesses confronted the defendant, and according to the State witnesses, the defendant had admitted selling the beer to the man.

6. There the defendant was asked to produce the liquor licence which he did.

7. Constable Anobo upon citing the licence advised the defendant that according to the liquor licence, trading hours was from 8:00 am to 6:00 pm every day, except Sundays. The defendant at that time was told that he was wrong to have traded liquor outside of his trading hours.

8. The witness and his other Police officers then entered the shop and check. Upon doing that they ordered a female employee of the defendant to pack all the beer in the shop’s freezer into cartons, which totalled 15 cartons in all. The beer was confiscated and taken away. The liquor licence was also copied and the original given back to the defendant. The second prosecution witness, Constable Morita also gave a similar account.

9. The defence called two (2) witnesses of which the defendant gave an unsworn statement. The defendant stated that he did not sell or serve the client, but his daughter
who was working in the kai bar. He stated that Police had confiscated K100.00 – the proceeds of the liquor sale and 15 S.P cartons of beer from the shop.

10. He also stated that his building/ shop was being rented by a Hagen man, but had to leave due to some problems. The trading licence was handed to him to continue trading liquor. The defence witness Temina Oko testified that she was working in the defendants shop and that she had closed liquor trading counter. When their client went with money to purchase beer, she served him though the kai bar counter as the kai bar was open.

11. She said Police then entered and confiscated 15 cartons SP brown beer, and took her father as well to the Police Station. Later they charged him, and she bailed him out with K200.00 that night.

12. I have heard and considered all the evidence from both the prosecution and the defence. As stated earlier, the issue is whether the defendant holds or owns the liquor trading licence to “Travolter Bottle shop” and whether he actually sold the beer carton to the customer.

13. The Law

Section 104 of the Liquor Licencing Act 1963 is reproduced here:

104. Sale, etc., of liquor during prohibited hours.

(1) A licensee who, during prohibited hours—

(a) sells liquor; or

Penalty: Immediate cancellation of the licence and a fine not exceeding K1,000.00 and in default of payment of the fine, imprisonment for a term of six months, and the court has no discretion to make a lesser order or to impose a lesser sentence.

14. The elements of the offence are that:

a) a licensee did

b) sell liquor to a customer and

c) liquor was sold outside of trading hours of the licence.
The third element is not an issue.

15. The defendant has been charged under Section 104 (1) (1) of the Liquor Licencing Act 1963. There is no (i) under the said provision so it should be (a) of Section 104 (1) and by virtue of S. 32 of the District Court Act, the proper Section should read Section 104 (1) (a) of the Act and amend it accordingly.

16. He has been charged because the Police alleged that he being a licensee of a licenced premises namely “Travolter’s Bottle shop” did sell liquor to a natural person outside the trading hours of “Travolter’s Bottle shop” licence.

17. After hearing evidence from both the prosecution and the defendant, I found some difficulty in connecting the defendant to “TRAVOLTER’S BOTTLE SHOP” which holds licence to trade liquor.

18. There was no evidence or the evidence was slimy to suggest that the defendant is the same person who was issued a bottle shop licence, in the name of “TRAVOLTER’S BOTTLE SHOP”.

19. In order to clear cloudy air, lets first see what “Licensee” means.

20. I have searched the interpretation Section 1 of the Liquor Licencing Act 1963, but it does not define the expression, nor does the interpretation Act provide the definition. “Licensee” is defined as a holder of a licence, especially to sell alcoholic liquor by the Australia Pocket Oxford Dictionary 4th Edition.

20. A dictionary of Law of L.B Corzon, published by Macdold & Evans Ltd, Estover, Plymouth 1979, defines “licensee” as one granted a licence, under licensing Act 1964, for sale of intoxicating liquor on the premises.

21. Under the Act, various interpretation terms and provisions gives an impression that the term licensee may mean a natural person owning liquor licence or owner of the liquor licence premises. For instance, “owner” is defined as in relation to my licenced premises, means -

“(a) the person for the time being entitled to receive –

(i) on his own account, or
(ii) in trust for some other person”

22. “Prohibited hours” in relation to a licence, a licensee or premises the subject of a licence. Again, licensee and premises tend to mean the same thing here. When reading into the term “Licensee” or “Licenced premises”, under Sections 20, 82 (2), 84 (1), 86, 100, 102, 103 (2) (b) to mean a few, a licensee and licenced premises are interchangeable terms or expressions. They mean one and the same thing.

23. Evidence by the prosecution is that a customer of the said bottle shop pointed out to Police that he had bought the carton of beer from “Travolter’s Bottle Shop”. He lead them to where the defendant was, in the said bottle shop.

24. The defendant in his own statement admitted that the premises was his but rented out to a Hagen man who had obtained the bottle shop licence. The defence witness stated that, her father (the defendant) had purchased the stock on that Thursday and had commenced trading in their premises, which they had vacated some years ago.

25. In my view, the defendant was the owner of the “Travolter’s Bottle Shop” as the licenced premises.

26. Whether he was issued the said licence or not, he is covered by law as the owner, under the definition of owner. “Owner” is defined as any licenced premises for the person for the time being entitled to receive on his own account or in trust for some other person. The defendant was given the bottle shop licence to trade on his own account, even if it was for the time being, he is deemed to have traded in trust for the Mount Hagen man.

27. This was befitting to him because he is the owner of the premises which was licenced to trade intoxicating liquor. A bottle shop licence in this case “Travolter’s Bottle Shop” issued to someone else is irrelevant for the purpose of the meaning of a “licensee” as in my view, the meaning covers a licenced premises.

28. In other words a licenced premises has the same meaning as a licensee. Having considered the issue of licensee, I now turn to the issue of whether the defendant did sell the carton of SP brown carton of beer to the male customer of Travolter’s Bottle Shop.

29. Evidence by the prosecution was that a male client of the bottle shop identified Travolter’s Bottle Shop to have sold the carton of beer to him around 9:30 pm. He lead the police to the bottle shop. In the bottle shop they found him and his employee, who happened to be his daughter. His daughter was behind the counter of the kai bar which also housed the bottle shop but had different counters. The bottle shop counter was closed.

30. The male client of the bottle shop did not appear to testify.

31. On this evidence alone, should I conclude that the defendant sold the beer to the said client.

32. Section 104 of the Act is headed with the words “Sale, etc; of liquor during prohibited hours”, and Subsection (1) begins with the expression “A licensee who”..... I have researched the Act to see if the Act creates any offence against an employee of owners, licensee, or licenced premises of any liquor outlet but have not sighted any.

33. The only provision sighted is Section 98 of the Act which deals with persons Selling Liquor or permitting to sell liquor without any licence.

34. In my earlier discussion I have alluded that a licencee or a licenced premises mean one and the same thing. From the reading of the wording of Section 104 of the Act, and other related provisions I consider that the offence created under Section 104 and other sections of the Act are targeted at licensees, licenced premises and owners of the licenced premises but imply that their employees are included as well.

35. “Owners” as defined under the Act mean in relation to any licenced premises, means -

(a) the person for the time being entitled to receive –

(i) on his own account; or

(ii) in trust for some person; or

(iii) as mortgagee or other encumbrance in possession, the rent of the premises; or

(b) the a tharney of such person;

36. Employees are included under the definition of owner, as employees of those licensees, or licenced premises and virtue of their employments, they are person who received sales proceeds “in trust” for other persons, in this case for Travolter’s Bottle Shop”.

37. And so it is my view that Section 104 (1) offence under the Liquor Licencing Act 1963 and other provisions that create offences cover both the licensee, licenced premises and “owner” which covers employees of the licence premises.

38. Given the analysis, I find that, although the defendant did not personally serve his client, his employee did serve their client. And by definitions of law, she as the owner of Travolter’s Bottle shop did sell liquor to other client outside of the permitted hours given in the liquor licence.

39. I therefore find without doubt that the charge under Section 104 (1) (a) of the Liquor Licencing Act has been proven.

For the State: Senior Constable Pipi
For the Defendant: In Person