Jongai v Aung [2008] PGDC 84; DC757 (7 March 2008)

DC757

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

CR 29 of 2008

BETWEEN

MARK JONGAI
Informant

AND

KYAWOO AUNG
Defendant

Buka: B Tasikul, SM

2008: March 7

Cases Cited

Nil

References

1. Summary Offence Act, s. 25 A (1)
2. Customs Act

Counsel

For the Prosecution - Constable Reuben Kueng
For the Defendant - Mr. Edward Latu of Latu Lawyers

7 March 2008

REASON FOR DECISION

B Tasikul, SM : The defendant pleaded not guilty to the charge of having in his possession article namely Phonographic CD that grossly offend against the accepted standard of decency, contravening to section 25 A (1) Summary Offence Act.

2. The charge arose as a result of police upon receiving information from their reliable source that phonographic materials were sold on a ship berth at Buka wharf. A search warrant was used to search the boat in which these materials were found in the captain’s cabin. The defendant who is the captain admitted that the phonographic materials were his for personal uses.

3. The defendant through his counsels argued that even though the materials were illegal, they were already cleared by customs officers when it first berthed in Rabaul, East New Britain Province. This was confirmed by the customs officer who was the defence witness. The customs officer testified that any international boat entering the waters of Papua New Guinea must first be cleared by customs officers and if there was any breach of the country’s laws then the police would be called upon to search the boat.

4. This is of course a normal procedure as stipulated under the Customs Act. The vessel Princess Chrissanto was cleared by customs in Rabaul which was the entry port and then proceeded to Alotau. It then sailed to Buka in the Autonomous Region of Bougainville to load copra as stated in customs boarding report.

5. While the ship is now in the water of Papua New Guinea, it is subject to the laws of this country. Phonographic materials are illegal in this country. These materials should have been proper checked and confiscated in the entry port in Rabaul. Personal effects as declared by customs officers can not include illegal materials.

6. The evidence from police stated that information were received from reliable sources that crews were selling phonographic materials to the public, in which was illegal. This is a breach of the laws of this country. A search was conducted with a search warrant and this phonographic material was confiscated. There was nothing wrong with the search conducted by the police. It is my view that police have the jurisdiction to search any vessel in the waters of Papua New Guinea after they have been cleared by customs in which they believe an offence has been committed. In this case there was information of selling phonographic materials. Why are the customs officers defending the accused?

7. The customs officers can not defend the accused by saying that these phonographic materials are personal effect and police have no rights to confiscate them. They should be working together instead of pointing fingers to each other about who has the authority to board the ship.

8. It is my view that the accused had breached the law of this country by having in his possession phonographic materials. I therefore find him guilty as charged.

For the Prosecutor - Constable Reuben Kueng
For the Defendant - Mr. Edward Latu of Latu Lawyers