Seki v Kombori [2007] PGDC 25; DC530 (25 April 2007)

DC530

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

GFCr 78 of 2006

BETWEEN

JOSEPH SEKI
Informant

AND

JOHN KOMBORI
Defendant

Goroka: M Gauli, PM
2007: March 13, 14, 29; April 25

CRIMINAL- Particular offence – obtaining money by false pretence – Received money in return for a motor vehicle – Failed to deliver the vehicle – First offender – Suspended sentence.

Cases Cited
Nil

References
Section 404 (1) of the Criminal Code Act
Section 403 of the Criminal Code Act

Counsel
For the Prosecution – Sergeant Yamuje, Goroka Police Station
For the Defendant – In Person

25 April 2007

DECISION OF THE COURT

M Gauli, PM: The defendant stands trial before this court on a charge of obtaining money by means of false pretence, pursuant to Section 404 (1)of the Criminal Code Act Ch. 262, which states and I quote:

“(1) A person who by false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud -

(a) obtains from any other person any chattel, money or valuable security, or

(b) Induces any person to deliver to any person any chattel, money or valuable security, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding five years.”

2. The brief facts are these. On the 06 of February 2006 in Goroka the defendant received from the complainant Mr. Gerry Kerema Fegupi a sum of K12, 000.00 in cash in return for a motor vehicle, a 4 x 4 Hyundai Truck the defendant intended to sell to the complainant. Since then the vehicle had never been delivered. The complainant and the defendant are related by marriage as brothers in-law. These facts are not in dispute at all.
3. What is been disputed by the defendant is that the defendant was only acting as a middle person on behalf of one Michael Lou who was going to sell the said vehicle. The defendant gave the money to Michael Lou but Michael Lou failed to deliver the vehicle.
4. The only issue for this Curt to consider is:-

“Whether or not the defendant received the cash money of K12, 000.00 from one Gerry Kerema Fegupi by means of false pretence.”

5. The term “false pretence” is defined under Section 403 (1) of the Criminal Code Act as follows: “A representation made by words or otherwise of a matter of fact, past or present that – (a) is false infact; and (b) the person making it knows to be false or does not believe to be true is a false pretence”.

6. Before I discuss this issue let me briefly state the evidence given before this Court. The prosecution called three witnesses namely Joseph Seki the police informant, Gerry Kerema Fegupi the complainant and Nelson Kludapalo. They all gave evidence on oath. The defendant has no witnesses except himself.

7. The complainant Gerry Kerema Fegupi gave evidence that John Kombori told him that Gerry Fegupi needed a bigger vehicle than his present vehicle. Mr. Kombori said that he does not lie to Mr. Fegupi because Mr. Fegupi is the uncle to Mr. Kombori’s son. At the same time Mr. Kombori showed Mr. Fegupi the ignition key of the vehicle. Since they are both related as in-laws, Mr. Kombori said that he will sell the vehicle to Mr. Fegupi for K12, 000.00. And so on the 06 of February 2006 Mr. Fegupi withdrew the money from his bank account and while they were at the Kim’s Restaurant he handed the money over to Mr. Kombori. He then told Mr. Fegupi that the vehicle will be delivered after he sort out the vehicle. The vehicle was never delivered and Mr. Kombori was avoiding Mr. G. Fegupi until he was apprehended in early December 2006 and referred to police. During those negotiations, Mr. Kombori never mentioned of one Michael Lou.

8. The witness Nelson Kludapalo gave evidence that on the 06 of February 2005 he came into Goroka town as a passenger on Mr. G. Fegupi’s vehicle. After doing their business they both met at the Kim’s Restaurant and while there Mr. Fegupi put the money in a waist bag and handed it over to Mr. Kombori. This witness did not know the amount of money given.

9. The witness Mr. Joseph Seki, the investigations officer gave evidence that before he conducted the Record of Interview he gave Mr. Kombori his constitutional rights and cautioned him. The interview was conducted in pidgin and Mr. Kombori freely answered all the questions. However he refused to make any alterations to it and he refused to sign it. During the interview Mr. Kombori admitted receiving the K12, 000.00 from Mr. Fegupi and that he was acting on behalf of Mr. Michael Lou, the person who was intending to sell the vehicle.

10. The defendant John Kombori in his defence admitted receiving the K12, 000.00 cash from Mr. G. Fegupi. However he gave evidence that he was acting as a salesman for Mr. Michael Lou who intended to sell his 4x4 Hyundai truck. The vehicle was going for K40, 000.00 or a nearest offer K35, 000.00. Since Mr. Fegupi only had K20, 000.00 in his bank account, he could make a deposit of K8, 000.00 or K12, 000.00 and pay off the balance later. And Mr. Kombori showed Mr. Fegupi the key of the vehicle. Next day Mr. Fegupi withdrew the money and gave it to Mr. Kombori while at the Kim’s Restaurant.

11. After receiving the money, Mr. Kombori walked up to Goroka Post office and met Mr. Michael Lou. They both went to Mr. Lou’s residence at Red Corner in Kama. There was no vehicle there. Mr. M. Lou told him that they will travel down to Lae the next day and Mr. M. Lou was going to steal a vehicle from the PNG Motors in Lae. Mr. Lou gave Mr. J. Kombori K250.00 to travel to Lae. Mr. Kombori refused to accept his commission until the vehicle was delivered to Mr. G. Fegupi. Mr. Kombori handed over the K12, 000.00 to Mr. M. Lou that day at the front of the post office. Since then the vehicle had not been delivered. At the time of this proceedings Mr. M. Lou is a prisoner serving a term at Buimo jail in Lae, Morobe province. It was impossible for Mr. Kombori to call him as his witness.

12. From the whole of the evidence as presented before this Court. I found that during the negotiations of the sale of the vehicle, Mr. Kombori never mentioned to Mr. Fegupi that he Kombori was acting on behalf of Mr. Michael Lou. It appeared also that Mr. Kombori never physically saw the vehicle he was negotiating to sell to Mr. Fegupi. And on the 06 of February 2005 when Mr. Kombori handed the money to Mr. M. Lou, there is evidence that Mr. Lou had no vehicle to sell. Instead Mr. Lou said he was going to steal a vehicle from the PNG Motors in Lae. Mr. Kombori there and then became aware that Mr. M. Lou had no vehicle to sell. Mr. Kombori made no attempts to report the incident to police when he became aware that he was dealing with a crook. Instead he was avoiding Mr. G. Fegupi for almost a year before he was apprehended and referred to police for investigation.

13. In the circumstance of the evidence as it is before this court, I am not convinced by the evidence of the defendant John Kombori that one Michael Lou was involved here. If Michael Lou was truly involved then the reaction of a reasonable man, when Mr. Kombori became aware that Mr. M. Lou did not have the vehicle to sell, would be to report Mr. M. Lou to police to recover the money from him when Mr. Lou refused to return the money. It would be the same even if it is true of Mr. M. Lou been involved. Mr. Kombori just walked away and ignored the problem that existed there and he even failed to inform Mr. Fegupi of the real situation with the delivery of the vehicle. He went hiding for almost a year.

14. Under these circumstances I find beyond reasonable doubt that defendant John Kombori knew he did not have a vehicle to sell to Mr. Fegupi from the time he negotiated the sale up to the time he received the money from Mr. Fegupi. I am satisfied beyond doubt that Mr. Kombori received the money from Mr. Fegupi by means of false pretence. And I find the defendant guilty as charged.

15. The penalty for receiving goods or money by false pretence is a term of imprisonment for one year under Section 404 (1) of the Criminal Code Act. I consider that Mr. Kombori is a first time offender. He is married with four children and he is unemployed. He received the money from his brother in law by false pretence. He has now tarnished that good strong customary relationship with his brother in law. Before sentencing, Mr. Kombori asked the Court if the matter could be settled out of Court and that he be given time to repay the money. I consider that to have the matter be ordered for a settlement out of Court after the matter had proceeded to trial and a verdict of guilty is pronounced is in my view inappropriate.

16. However having considered that Mr. Fegupi and Mr. Kombori are brothers in law, I consider that a suspended sentence would be appropriate with conditions that he need to restore the victim Mr. G. Fegupi of the money taken from him. I consider that to obtain either goods or money from a close relative by means of false pretence is much more serious than from someone who is unrelated. And so I would impose the maximum term of imprisonment. And I convict Mr. Kombori and sentence him to twelve months imprisonment. The whole of the sentence be suspended and he be placed on his own recognizance to keep the peace and be of good behaviour for two years on the condition that he repays to Mr. Fegupi the K12, 000.00 within six months from the date of this order.

For the Prosecution - Sergeant Yamuje, of Goroka Police Station
For the Defendant - In Person