Negma v Pipiya [2021] PGDC 145; DC7000 (13 October 2021)

DC7000

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]

SITTING IN ITS COMMITTAL JURISDICTION

COM NO 1161 OF 2020

BETWEEN:

JEFFERY NEGMA

[Informant]

AND:

HANGU PIPIYA

[Defendant]

Waigani: Paul Puri Nii

13 October 2021

COMMITTAL PROCEEDINGS: -Charge- Conspired to Defraud -Section 407(1)(b) of the Criminal Code Act 1974, Chapter No. 262. Court’s assessment on evidence to ascertain whether Police supplied prima facie practical evidence sustaining all the elements of the charge to commit the Defendant.

PRACTICE AND PROCESS: Legitimate responsibility for prima facie case-Establishment of the fundamentals of charge of Conspiracy–Witness statements. Defendant conspired with others- statements of illegal meetings along Vadavada road NCD and change of BSP account details in Mt Hagen. Evidence is sufficient.

PNG Cases cited:
Akia v Francis [2016] PGNC 335; N6555 (24 August 2016)
Kamit –v- AUS-PNG Research & Resources Impex Limited [2007] N4112
Police v Medako [2021] PGDC 54; DC6011 (31 May 2021)
Michael Winmarang –v- David Ericho & State (2006) N3040
Police v Koka [2021] PGDC 53; DC6010 (31 May 2021)
Police v Dunamis [2021] PGDC 121; DC6067
Police –v- Wamp [2020] PGDC 66;DC5071 (14^th September 2020)

Overseas cases cited:

Nil

References

Legislation

Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40
Companies Act 1997

Counsel

Police Prosecutor : C/Sgt Polon For the Informant
Japson & Associate Lawyers : Mark Leo For the Defendant

RULING ON COMMITTAL

13^th October 2021

INTRODUCTION

NII, P. Paul Magistrate. This is my decision on whether a prima facie case is appropriately confirmed within the submission of Section 95(1) of the District Court Act 1963, after when evidence and Defense arguments are sensibly measured. On 18^th August 2021, Lawyer for the Defendant made oral submission in esteem to the Defendant’s submission filed on 18^th August 2021. Defendant primarily opposed to the Prosecution case that evidence is inadequate to commit the Defendant. Police Prosecutor submitted evidence is sufficient to commit the Defendant. I have carefully deliberated on both arguments and now is my ruling on evidence.

FACTS

1. Police allege on 12^th January 2019, between Vadavada in NCD and MT Hagen in WHP, Defendant colluded with three (3) others namely Max Hayare, Elvis Ari and Angai Mange and purportedly conduct a secret meeting to alter or change the Directors and shareholders of Bebahoya Limited. Police allege Defendant then though the IPA online Registration system included his name onto the Company records and on 13^th January 2019, Defendant wrote to MT Hagen BSP bank and changed account details for the company including account signatories committed to account number 1003464953. Police allege several withdrawals in the total sum of K180,500.00, were subsequently made against the Company account by the Defendant and his purported co-accomplices. Finally, police allege Defendant was arrested on 30^th September 2020, for the allegation of Conspiracy under Section 407(1)(a)(c) of the Criminal Code Act.

CHARGE

2. Defendant is charged with one count each of Conspiracy under Section 407(1)(a)(c) of the Criminal Code Act 1974, Chapter No. 262. The charge against the Defendant is illuminated in the subsequent style:

407. CONSPIRACY TO DEFRAUD.

(1) A person who conspires with another person–

(a) by deceit or any fraudulent means to affect the market price of anything publicly sold; or

(c) to extort property from any person,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

ISSUE

3. Whether Evidence in the Police file is sufficient to Commit the Defendant.

THE LAW

Jurisdiction of the Committal court

4. Sections 94-100 of the District Court Act 1963, necessitates Committal Court to rule on evidence in the police hand-up brief. The case in Police –v- Dunamis [2021] PGDC 121; DC 6067, clearly gives effect to Section 94-100 of the District Court Act. In addition to this, the court in Akia v Francis [2016] PGNC 335; N6555, says the occupation of Committal court is to appraise witness statements in the police file and choose whether to commit the Defendant or to exonerate the information under question where the subject charge is devoted.

ELEMENTS OF THE OFFENCE

5. Evidence in the form of witness statements and other documentary material must satisfy the elements of the allegation in order to begin a prima facie case against the Defendant. This position is sustained in the case of Police –v- Medako [2021] PGDC 54; DC6011. The court in this matter emphasized that police must establish the elements of the applicable charge conforming with evidence to bring a case against the Defendant. This compulsion rests with Prosecution to demonstrate this.
   

Elements of Conspiracy to Defraud under Section 407(1)(a)(c) of the Criminal Code Act

a. A person

b. who conspires with another person

c. by of anything publicly sold; or

d. deceit or any fraudulent means

e. to affect the market price

f. to extort property from any person,

EVIDENCE

6. Evidence plays a significant role in the administration of criminal proceedings. An accusation is a mere allegation unless substantiated by evidence. The recent case of Police v Koka [2021] PGDC 53; DC6010, has maintained this position by further stressing as (quoted) .....
   

.....“An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up” ....(end of quote)

7. Prosecution file tendered to court on 2^nd February 2021, comprising the names of witness statements and other written confirmation must reasonably bond all the elements of the purported crime to the evidence.

POLICE CASE

8. Prosecution case is captured in the police file. It encompasses witness declarations, proclamations from Police, Complaint/Victim testimonies’ and other textual suggestions such as exhibitions which are part of the police file.

Prosecution evidence in brief:

No	Name	Particulars	Statements
1	Simon Denny	Chairman	He says he is the chairman of the Company and signatory to Bebahoya Ltd since October 2008 until Defendant illegally removed his name from IPA and the BSP bank account held in Mt Hagen
2	Susan Kedeke	Manageress	She is one of the two signatories to the Company account
3	Pila Hepali	Witness	He says he was not in Port Moresby at the time of the purported meeting chaired by the Defendant.
4	Jeffery Negma	Police Investigator	He is the investigative officer who conducted the investigations in to the allegation against the Defendant
5	Paul Palik	Corroborator	He was with the arresting officer at the time when the Defendant was arrested.

DEFENSE CASE

9. Defendant through his Lawyer submits that the charge has not been properly framed to link the accused to the offence. Defendant argues the charge in the information is defective and thus does not reflect a lawful charge against the Defendant. Defennr based his argument on the case of Kamit –v- AUS-PNG Research & Resources Impex Limited [2007] N4112, and Michael Winmarang –v- David Ericho & State (2006) N3040, that the charge must be clearly farmed to connect the Defendant to the allegation. However, Defendant argues the current charge is defective and thus does not reflect proper information within the confines of Law which is the charge does not clearly introduce an offence under Section 407(1)(a) and (c) of the Criminal Code Act.
   
10. Defendant through his Lawyer further argues Defendant is the current Director and shareholder of the company where he was over the years had been fighting for his people’s interest and welfare from bad management and mismanagement. Defendant based in the forgoing argument Prosecution does not have sufficient evidence to support and substantiate the allegation against the Defendant.

CONSIDERATION OF EVIDENCE

Police evidence

11. Prosecution has filed an Application as a preliminary request to amend the information from “at vadavada tauram road in NCD to Between Vadavada Taurama road in NCD and Mt Hagen. The application was not contested by the Defendant. Do I have jurisdiction to grant relief sought by the Defendant? Section 32 of the District Court Act, delivers that:
    

“32 Want of Form or variance in information etc.

No objection shall be taken or allowed to an information, or to a summons or warrant to apprehend a Defendant issued on an information, for an alleged defect in the information in substance or in form, or for a variance between it and the evidence in support of the information, and any such variance may be amended by Order of the court at the hearing:.”

12. The court in Police –v- Wamp [2020]PGDC 66;DC 5071, endorsed the position in State –v-William (No 1) [2004] PGNC 212; N2556, that court has powers to make an order to amend information at any stages of the proceedings where such amendment should be done before the ruling. Therefore, based on the ruling of these cases and Section 32 of the District Court Act, I have authority to hear applications to amend information and accordingly the application sought by prosecution is allowed. The information should be read as “Between Vadavada Tuurama road in NCD and Mt Hagen” instead of “at Vadavada Taurama road in NCD”.
    
13. After having said that, the information of Senior Constable Jeffery Negma lodged against the Defendant is rectified to adapt the change to include the place of offence as between Vadavada in NCD and MT Hagen in WHP. This means the jurisdiction of offence is between NCD and WHP, thus it is my opinion that arrests and subsequent court proceedings would commence in two jurisdictions. Defendant’s argument that the information was unreliable and not in order as the wordings of the charge is defective is refused.
    
14. The crux of the allegation is about an illegal meeting at Vadavada in NCD that was resolved to change Directors and shareholders of the Company Bebahoya Limited and subsequently account details for the company with BSP branch in Mt Hagen was changed. The company extract provided to court shows Tom Andama, Simon Denny, Vincent Dimugu, Marabe Hada, Pila Hepali, David Ibala, Taiyo Kembo, Saul Mangobe, Kupiawi Tambalu and Gibson Nagule as Directors and a Simon Danny as the lone shareholder. The Company was incorporated on 13^th October 2008. Evidence shows the company account held at the BSP branch in Mt Hagen has signatures of Simon Denny, Susan Kedekei and one other.
    
15. Evidence shows on the 12^th January 2019, there was a meeting termed as “Special Board meeting” at Hangu Pipiya’s residence at Vadavada road, Port Moresby, NCD. The meeting was opened by a word of prayer by Mr Wilson Haluni. The purpose of the meeting was to change the BSP Bank account signatories for the company to appoint new Directors among other agendas including but not limited to fleets and asserts recovery. It was resolved that the new signatories on the company account would be Angai Mange, Hangu Pipiya and Elvis Hari.

RULING

16. I appreciate the submission from Defense that the withdrawal of money was not illegal. However, the charge is not about the act of withdrawal of money by the Defendant but the act of changing the account signatories as a result of a meeting held at Vadavada in NCD that led to the withdrawal. I also appreciate the submission from Defendant that witness Susan Kedekei, one of the signatories to the company account was induced to sign the statement. However, I do not see any relevance in this argument here, if she was induced as alleged then why was she not initially informed about the proposed meeting at Vadavada after knowing very well she was one of the signatory to the company account? The undisclosed meeting at Vadavada without her prior acquaintance authorizes the activity at Vadavada was conducted without her knowledge. Defendant also says witness Pila Hepali’s statement is based on hearsay and too shallow. Witness claims he was not there at the meeting but his name was written down by the Defendant that he was there. I do not understand how a denial of not being present at a meeting would amount to hearsay and shallow? Witness says he was not at the meeting and that was his statement. He will prove the authenticity of his statement at trial.
    
17. Defendant says he is a Director and shareholder of the Company but why is his name not on the list of Director’s shown on the Company extract? To my satisfaction this argument does not stand the tide to qualify as a valid point because Defendant is not a Director nor a shareholder as evidenced in the company extract produced to court.
    
18. Evidence shows the whole meeting was to replace the Directors and shareholders of the company headed by Simon Danny so that it would facilitate for easy recovery of assets and other valuable properties owned by the company which are currently under Simon Danny’s custody in Mt Hagen. Evidence also demonstrates that in the event Simon Danny refused to surrender the Company asserts he should be referred to the Police fraud squad to be dealt with. The team headed by the Defendant were trying to change Simon Danny and his team of selected people who had excess to the Company account. What does the Law talk about changing Company Directors and shareholders?
    
19. Section 134 of the Companies Act 1997 says removal of Directors should be done subject to a Companies Constitution after an ordinary resolution passed in a meeting. Section 170 of the Companies Act 1997 says the Board of a Company may appoint and remove a secretary. Section 89 of the Companies Act 1997 says if all the shareholders agree to pass a resolution the decision should be legal for whatever purpose it may serve. The objective for enquiry under the Companies Act is to appreciate how company meetings are conducted, it is not for me to rely my decision upon, my exclusive authority to rule on Committal is under Section 95 of the District Court Act. From my observation, it is evident that most commonly Directors are appointed by Shareholders at the Annual General meeting or in extreme circumstances, at any extraordinary general meetings.
    
20. Evidence before me provides that Simon Danny is the lone shareholder of the Company. However, the new officer bearers appointed including the Defendant are Angai Mange as Chairman, Hangu Pipiya as Deputy Chairman, Max Hayare as Secretary, Elvis Hari as Treasurer and Pila Hepali as Deputy Secretary. Evidence from the meeting minutes shows Pila Hepali who was a Director of the Company and appointed as Deputy Secretary in the meeting regulated by the Defendant was the only member of the previous Director present. The rest of the nine (9) Directors including Simon Danny as shareholder were not present. However, Hepali Pila spoke on his statement to police dated 19^th July 2019, that he was at the time of meeting was not in Port Moresby but Defendant wrote his name on the meeting minute and signed it off.
    
21. Evidence indicates Bebahoya Limited is a company owned and operated by landowners of Hela province. Each and every Director is a representative of his family and clan in the company. The designated tribes and clans are custodian of the company through their elected and appointed Directors. Evidence specified the sole objective of the meeting at Vadavada was to change the Company board and account signatories headed by Simon Danny on allegation of misuse of company asserts. There is nothing wrong with the idea of setting up the meeting at Vadavada so long as the meeting was for the interest of the company. However, if the meeting was for the relevance of the company then why did the other 9 directors whose names listed on the Company extract not present at the meeting? If the meeting was for the interest of the company, then all the Directors of the company must present and participate in the meeting.
    
22. Simon Danny is a lone Shareholder and he should be present at the meeting. Simon Danny and the other 9 Directors should have been invited to attend the meeting. There is no evidence that the Directors and shareholders were invited to attend the meeting. Moreover, Simon Danny and Susan Kekede plus one other are signatories to the Company account at Mt Hagen BSP Bank but there is no evidence that the signatories to the account were advised and informed about the proposed change in the account as a result of the meeting. The evidence I have before shows the Defendant and Ange Mange, Max Hayare and Elvis Hari had a cloak-and-dagger(secret) meeting to change the board and Directors of the Company including the shareholder. It was from that meeting at Vadavada in NCD that brought about the change in BSP account for the Company in Mt Hagen.
    
23. Therefore, there is Prima facie sufficient evidence meeting all the elements of the offence, the Defendant collaborated with Ange Mange, Max Hayare and Elvis Hari by conducting the meeting at Vadavada in NCD that led to the withdrawal of K176,183.44, in Mt Hagen after account signatures previously held by Simon Danny and Susan Kekede were changed to the Defendant’s signature.

CONCLUSION

24. I have carefully considered all the witness statesmen tendered in court through the police file and satisfied Defendant machinated(colluded) with others and deceptively extracted or used money property of Bebahoya Limited in the sum of K176,183.44. Defendant’s actions in conducting the meeting without expressed notification on the other Directors including the shareholder and the successive activity in the bank attracts the criminal burden under Section 407(1)(a)(c) of the Criminal Code Act 1974, Chapter No. 262

ORDERS

25. My Final Orders
    
    1. Evidence is sufficient to commit the Defendant.
    2. Matter adjourned to 20^th October 2021 at 9.30am for statement under Section 96 of the District Court Act.
    3. Defendant’s bail extended.
       

Jopo Lawyers For the defendant

Police Prosecutor For the State