Police v Kungka [2020] PGDC 2; DC4068 (20 May 2020)

DC 4068

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL JURISDICTION]

BETWEEN

Police
Informant

AND

Alex Kungka
First Defendant

AND

Nelson Kauri
Second defendant

BUKA: B.TASIKUL

2020: May 20^th,

CRIMINAL:

Cases Cited:

References:

Counsel

DECISION ON SENTENCE

1. B: TASIKUL PM: Alex Kungka and Nelson Kauri were both charged separately. However, both your cases arise from the same set of facts. I will therefore jointly pass the same sentence on both defendants.
   
2. Both defendants were charge under section 16 (a) of the Bougainville Emergency Act 2006. Each of them pleaded guilty. The following facts they pleaded guilty to as follow; On Tuesday 5^th of May, 2020 the defendants went to Pemana LTD and bought a total of fifty (50) cartons of SP green can beer. They wrapped the cartons of beers with a black wrapper and transported them to Motomoto, at Ieta village to catch a boat to bring them across to Kokopau. However, police were inform and caught up with them at Motomoto beach where, they were detain and brought to the police station and charge.
   
3. Section 16 (a ) of the Bougainville Emergency Act states; A person who fails or refused to comply with an order or instructions given by an Emergency Controller, in the exercise of his powers under this Act is guilty of an offence.
   
4. So the matter before me is where both defendants failed to comply with an Emergency Order 15, as prescribed under Bougainville gazette number 10 dated 22^nd of April, 2020 and issued by the controller in exercise of his powers under section 6 of the Bougainville Emergency Act, 2006.
   
5. Let me state briefly the background of these emergency orders. The Bougainville Government [BEC] appointed Mr. Francis Tokura, Deputy Commissioner of Police and Chief of Bougainville Police Services as the Controller of Bougainville on the 23^rd March, 2020 after the declaration of the SOE throughout the country and on Bougainville.
   
6. On Monday 13^th April 2020 the Emergency Controller issued an Emergency Order 2, amongst various orders issued one of the order is order 14. Order 14 states: There is a total closure/ ban on the following activities during the state of Emergency;
   
   • Gambling activities including housie housie, cards dice and mobile games, bomb
   • Night clubs, and liquor outlet, sport and social clubs
   • Sporting activities, musical cultural events
   • Bakeries, fast foods and take away outlets
   • Main markets and small markets
     
7. On the 4^th May, 2020 the Bougainville Emergency Controller issued another Emergency Order 3. The order was in relation to the Commencement of Schools, Travel in and out of Bougainville, and Resumption for Bougainville Public Service. In additional to those emergency orders he also issued Miscellaneous Order. One of the miscellaneous orders was emergency order 15. Order 15 states: in consistent with Order 14 of the Emergency Order 2 there is total ban on consumption, transportation and production of beer on Bougainville.
   
8. The two defendants were charge for failing to comply with this order 15 for transporting of the 50 cartons of SP green cans. I accepted their plea of guilty. The issue for this court is what would be the appropriate sentence the court should impose on the defendants.
   
9. Section 16 (a ) of the Bougainville Emergency Act states; A person who fails or refused to comply with an order or instructions given by an Emergency Controller, in the exercise of his powers under this Act is guilty of an offence. Penalty is K1000.00 fine or one year imprisonment or both.
   
10. Both defendants are liable to be fined K1000.00 or one year’s imprisonment. They can either be fine or at the same time be sentence to jail for a years. This is how serious it is for breaching a SOE orders.
    
11. Let me at this juncture say this, when the SOE was declared throughout the country and Bougainville because of the corona virus, every citizen were aware of the SOE. I won’t accept your reason that you were not aware of the emergency orders issued by the controller. There have been wide ranges of awareness carried out by police, health officials and constituency members on this SOE. Your action in breaching this order by transporting liquor when there is a total ban of liquor is very serious.
    
12. However, on that same note I don’t understand as to why police only charged both of you for transporting liquor and not the person(s) or seller for selling liquor to both of you. Yes, it is police constitutional duty to lay charges on any person(s) they think has committed an offence, but in this case the law is crystal clear, that there is a total ban on alcohol. I am also very concern on this order 15, as to why is it only consumption, transporting and production of beer is restricted and not include the sale of liquor. Technically, a person may escape prosecution under this order, because it only states, ban on consumption, transportation and production of beer. I think this order must be re-visited. I noted that after my written judgment of this case was finalized a copy of the new supplementary order dated 7^th May,2020 was given to me with an amended of order 15 which now include total ban on consumption, sale, transportation and production. Despite this supplementary order I will still go by my judgment.
    
13. In your case I think the seller Pemana LTD should also be charge for selling liquor to both of you. I say this because the Emergency order clearly states, that there is a total ban on the SALE of liquor .If the seller did not sell it to both of you, you wouldn’t be transporting any liquor. For this reason I think it is unfair and unjust for both of you to be charge alone and not the seller. Charging officer (police) must be fair in executing their duties. There must be no double standard in laying charges on people who breaches SOE emergency orders.
    
14. Let me finally say this, it is important that we must all comply and respect the emergency orders issued by the SOE Controller. This is for our own good, but in doing so police must also be fair in arresting and charging those who breaches this orders and not to be selective who to charge.
    
15. Taken into account the circumstance of this particular matter I make the following decision.
    
16. I therefor fine both of you guilty and exercising my powers under s.132 of the District Court Act, I discharge both of you. You both may refund your bail. Your 50 cartons SP green will be return to both of you after the SOE is lifted.