Jangi v Kaiyun [2022] PGDC 104; DC9009 (5 September 2022)

DC9009

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

SITTING IN ITS COMMITTAL JURISDICTION

COM NO 1688 OF 2021
CB NO 3224 OF 2021

BETWEEN:

STEVEN JANGI

[Informant]

AND:

ROBERT ALPHONSE KAIYUN
[Defendant]

Waigani: Paul Puri Nii

5th September 2022

COMMITTAL PROCEEDINGS: -Charge-Abuse of Office -Section 92(1) of the Criminal Code Act 1974 (Chapter No. 262). Assessment to offer prima facie equitable evidence sustaining the elements of the allegation to have the Defendant committed.

EVIDENCE: Satisfactory accountability for prima facie matter-Establishment of the accusation of Abuse of Office–Elements of the charge sustained.

PNG Cases cited:

Akia v Francis [2016] PGNC 335; N6555 (24 August 2016)
Yarume v Euga [1996] PGNC 24; N1476 (6 September 1996)
Police v Kambian [2021] PGDC 66; DC6021(30 June 2021)
Japele v Raka [2021] PGDC 166; DC7022,
Police v Kennedy [2021] PGDC 161; DC7017
Koya v Agon [2021] PGDC 233; DC7094
Erimas Wartoto –v- the State (2015) SC1411,
Anderson Aigiru v Electoral Commission and the State (2002) SC687
Francis Potape v the State (2015) SC1613
Stanley Japele –v- Gei Guni Raka(2020) DC7022
The State v Fr Jan Czuba (2021) N9397.
Moge Enga & Kup Group [1995] PGNC 94
The State v Miriam Hevelawa, Jacob Hevelawa and Timothy Numara (2017) N6815.
Kennedy v Cheah [2021] PGNC 158; N8890
Guiness v Huafolo [2021] PGNC 131; N8864
State v Luma [2021] PGNC 31; N8798
State v Peter ONeill [2021] PGNC 373; N9213

Overseas cases cited:

Nil

References

Legislation
Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40
National Procurement Act 2018
Public Services Management Act
Police Act 1996

Counsel
Police Prosecutor: Chris Iga For the Informant
Tamutai Lawyers: Priscilla Tamutai For the Defendant

RULING ON EVIDENCE

5^th September 2022

INTRODUCTION

NII, P. Paul Magistrate. Conclusion on whether a prima facie instance is amply documented inside the importance of Section 95 of the District Court Act 1963. The announcement is snatched after parties’ arguments are cautiously dignified. Alleged offender argues evidence is inadequate to commit him while police argue evidence is relevant to commit the Defendant and henceforth is my decision on the assessment of police evidence.

CHARGE

1. The defendant is charged with 1 count of Abuse of Office under Section 92 (1) of the Criminal Code Act 1974. The complete basics of the charges are revealed below:
   

“92. Abuse of office.

(1) A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding two years.”

SUMMARY OF FACTS

2. Defendant is aged 52 years old and of Karemgu village of North Fly in Western Province. Defendant is the current Provincial Administrator for the Western Province as well as Chairman of Western Provincial Supply and Tenders Board (WPSTB). The defendant was appointed as Provincial Administrator for Western Province for a period of four (4) years commencing on 2 August 2018, his appointment was gazetted on 24^th August 2018.
   
3. Police allege that on the 13^th of December 2018, at Kiunga town, Western Province, defendant on behalf of the Fly River Provincial Government signed a three (3) years office lease agreement with New Century City Limited (Lessor) and Fly River Provincial Government(lessee) to use an office space at Section 2 allotment 59, Kiunga town and the value of the lease agreement was at K330.000 per month which equates to K3, 960, 000.000 (million) per year.
   
4. Police allege that the agreement was for a period of 3 years commencing 1^st January and ending 31^st December 2021 and the total value of the agreement for the three (3) years was K11, 880, 000.000(million). Police say the agreement was signed by the defendant on behalf of the lessee which was beyond his powers as the Provincial Administrator. A provincial administrator can only sign a procurement contract valued at five hundred thousand kinas(K500,000) or less.
5. Police further allege under Section 26(1)(d) & (e) of the National Procurement Act 2018 defendant had no legal capacity to enter into contract worth more than K500,000.00 and thus when he signed the contract of 13^th December 2018 worth more than millions, he had therefore abused his office and arbitrary prejudicial to the rights of Fly River Provincial Government, its people and PNG as a nation. Police finally say the defendant knew his procurement limit but went ahead and signed the Commercial lease agreement, the value which was over and above his authority.
6. The defendant was thus invited to the police station and formally arrested and charged for the offence of 1 count of Abuse of office under Section 92(1) of the Criminal Code Act.
   

ISSUE

7. Whether a prima facie case is persuasively documented and that is whether Police evidence is practical to create a case against the Defendant.
   

THE LAW

The Laws leading Committal Court Proceedings

8. he Laws under section 94-100 of the District Court Act 1963, provides for the authoritative foundation on how to commence committal proclamation. The court should be captivated with evidence by satisfying the elements of the offense of Abuse of Office under Section 92(1) of the Criminal Code Act to create a prima facie case against the defendant.
   
9. The establishments in Police v Kambian[i] which was subsequently revised from the guidelines in Akia –v- Francis[ii] , administered that the committal court moves as an administrative process or alternatively functions as a filtering process where police evidence is strained to certify there is ample evidence beneficial to the elements of the contention.
   
10. Although the court dignifies the occupations of committal court as an organizational process, under Section 95 of the District Court Act with unfailing to the case of Yarume –v- Euga[iii] I will go through each witness declarations contains in the police hand-up-brief and decide whether a prima facie case is demonstrated against the supposed wrongdoer.
    

ELEMENTS OF ABUSE OF OFFICE UNDER SECTION 92(1)[1]

11. The cases of Japele v Raka[2021] PGDC 166; DC 7022, Police v Kennedy [2021] PGDC 161; DC 7017 and Koya v Agon[2021] PGDC 233; DC 7094 deliver the succeeding as the elements of the offence under consideration:
    

a) A person

b) Employed in the public Service who,

c) Who in the abuse of the authority of his office does,

d) Or directs to be done, in any arbitrary act

e) Prejudicial to the right of another

EVIDENCE

PROSECUTION CASE

12. Police Prosecutor Chris Iga in support of the police case submitted that there is prima facie sufficient evidence against the Defendant to commit him for the charge of abuse of office under Section 92(1) of the Criminal Code Act.
    

Police evidence in the Police hand-up-brief

1. Patrick Druke- this witness is a community leader and from Konkonda area of North Fly District in Western Province. This witness says he is the one who filed a Complaint that led to the defendant’s arrest under the offence. This witness says the defendant at the time of signing the agreement did not have the legal authority to sign a contract amount worth more than K500,000 but he signed thereby breaking the Procurement Act 2019.
2. Simon Bole- Witness says he is the CEO of the National Procurement Commission of PNG and further says the threshold level above which public and statutory bodies including the defendant should procure is below K500, 000. However, the witness finally asserts the manner in which the defendant's signing of three (3) years lease worth an amount of K11, 880,000.00 was in breach of Section 26(1)(b)(c) of the National Procurement Act.
   
3. Herman Kromnong- this witness says he is a Lawyer who was employed by Western Provincial Administration as Provincial Legal Officer and he is answerable to all legal matters in the province. This witness says he was a committee member of the provincial authority to pre-commit (APC) and says he has no recollection during his tenure of such rental agreement between the lessee and lessor. Witness says he was never consulted nor approached by the defendant about the agreement.
   
4. Lewa Kolomba-this witness says he is employed by the National Department of Financial under the Provincial and Districts Finance Management Division as Provincial Finance Manager attached to Western Province. This witness confirms the rental payment by the lessee ( Fly River Provincial government) to the lessor (New Century City Limited) from the date of commencement of lease agreement to the date of termination.
   
5. Rupert Tabua- this witness says he was the Deputy Provincial Administrator of Fly River Provincial government however; he neither denied nor admitted there was a meeting between the lessee and lessor pertaining to the lease agreement.
   
6. Desmond Kewa-this witness says he was employed by the Lessor company as their operations manager and confirms that he supplied to police documents pursuant to a Search warrant relating to the allegation.
   
7. Carolyn Mapambini- she is a policewoman who corroborated the interview on the defendant.
   
8. Steven Jangi- Police arresting officer who had conducted investigations into the allegation that led to the arrest and subsequent charge against the defendant.
   

DEFENSE CASE

13. Defendant through his lawyer Ms Pricilla Tamutai had filed two submissions, the first filed titled a “No case to answer” dated 25^th April 2022 and second titled “Supplementary submission” dated 29^th April 2022.
    

Abuse of Process

14. Firstly, On the submission of a no case to answer, the defendant argues on the issue of Abuse of process. Defendant founded his arguments on the case of Erimas Wartoto –v- the State (2015) SC 1411, that the committal court should protect the process about police investigation, gathering of evidence and the final committal hearing. The Defendant maintained the above argument and further reaffirmed in the principals funded in Anderson Aigiru v Electoral Commission and the State (2002) SC 687 that the intrinsic powers of the courts is to defend its process from abuse.
15. Defendant submits that the current allegation is an abuse of process because the Complaint was lodged by an individual who professed to be a community leader of Konkonda village of the Kiunga area in North Fly District. Defendant says the Complainant did not mention the date of the lease agreement, the place of signing and did not provide a copy of the alleged lease agreement. Moreover, the defendant argues that the complainant was speaking from rumours that the defendant was benefiting from the lease agreement without any first-hand evidence.
    
16. Defendant argues that Complaint is an important part of police evidence however, argues that Complaint information lacked sufficient information to validate the allegation of abuse of office. Defendant argues that disciplinary action was already taken against him for his purported role in signing the lease agreement and he was subsequently administratively dealt with it. Defendant also says although police have the constitutional obligation to lay charge and arrest suspects, their action must be done in an unprejudiced and neutral style.
    
17. Defendant then argues that his action was not criminal in nature and he based his opinions in the doctrines in Francis Potape v the State (2015) SC 1613. Defendant argues his purported action if any would have given rise to a civil cause of action and not criminal law where he was arrested. Moreover, it was argued that there are administrative disciplinary provisions provided for in the Public Service Management Act and the defendant could have been administratively charged only and not criminal arrest and charge.
    
18. Defendant strongly argues that he did not benefit from the lease agreement and submits the money was put to the use of the lease agreement and there is no evidence that he personally benefited. His argument was founded on the nitty-gritties in Stanley Japele –v- Gei Guni Raka(2020) DC 7022. Defendant finally argues that police evidence should establish that the defendant’s conduct as a public office holder should be a serious crime thus attracting the consequences under the laws as was the establishment in The State v Fr Jan Czuba (2021) N9397.
    
19. Secondly, the defendant through his supplementary submission filed dated 29^th April 2022 argues that police evidence has not appropriately established the elements of the offence of Abuse of Office under Section 92(1) of the Criminal Code Act. Defendant has constructed his argument on the authority established in State v Peter O’Neill (2021) N9213, Police have failed to produce evidence that the defendant had diverted or put into his own use funds for the people of Western Province thus there is no evidence of abuse of authority.
    
20. Moreover, the Defendant strongly objects to the police evidence by saying that defendant’s action in signing the lease agreement did not opinionate the rights of another person and also submits that there is no evidence that defendant’s personal interest conflicts with his professional position or he benefited from the agreement. Defendant supports his argument on the legal values originates in Moge Enga & Kup Group [1995] PGNC 94 and the State v Miriam Hevelawa, Jacob Hevelawa and Timothy Numara ((2017) N6815.
21. Based on the above grounds defendant dutifully submits for the entire police case as is an abuse of process and evidence does now satisfy the elements of the offence and thus requested for the court to dismiss the information of Abuse of Office under Section 92(1) of the Criminal Code Act.
    

CONSIDERATION OF EVIDENCE

22. Police evidence presented to court demonstrates that on 13^th December 2018 defendant had signed a lease agreement for and on behalf of the Fly River Provincial government as the lessee with a private company called New Century city limited the Lessor. The purpose of the agreement was for the lessee to occupy the lessor’s property for a term of 3 years commencing on the date of signing of the agreement and ending on 31^st December 2021. The lessor’s property is situated at Section 2, allotment 59 at Kiunga town in Western Province.
    
23. As per the agreement, the lessee would pay an amount of K330,000.00 per month to the Lessor so for the entire three (3) years, the lease payment would parallel to K11,880,000.00. Defendant says he performed lawfully and his purpose was for the determination of service for the people of western province where the Governor and other PEB members would use. Defendant moreover says the money for the lease agreement was put to the envisioned purpose and thus he did not use any of the funds for his personal use. Money was paid for the services provided and there was no misapplication of funds to say he had abused his position.
    
24. Defendant raised issue on Abuse of Process that the Complainant lacks capacity to lodge this Complainant since the date of offence and other particulars are missing. Defendant also says Complainant’s assertions were primarily based on hearsay and the evidence was not direct. Lastly, the defendant argues he was already administratively dealt with and his case should be civil in nature and not criminal.
    
25. However, Police says under Section 26 of the National Procurement Act 2018 defendant did not have the legal authority to sign for amount more than K500,000.00 and thus when he signed the lease agreement for a term of 3 years for K11, 880, 000.00, defendant had abused his authority and powers as a Provincial Administrator.
    

RULING

Abuse of Process

26. Abuse of Process- this has been well-defined in the Oxford dictionary as something so prejudicial and mistaken that the court should not permit a Prosecutor to continue with what is in all other respects a fixed proceeding. Defendant raised a couple of issues on the grounds of Abuse of Process as an introductory point which shall be addressed unconnectedly.
    
27. Firstly, Defendant argues that the Complainant was lodged by a community leader of Konkonda village of Kiunga in Western Province. Defendant argued that the complainant did not accurately mention the date of the alleged offence and moreover he did not provide a copy of the lease agreement to substantiate his assertion. Defendant argued that the complaint document lacked sufficient particulars.
    
28. Police information encompasses the allegation. Information does not constitute sufficient essentials affecting the contention but the charge itself. Information containing the charge is only the skeleton part of the police case and thus evidence nourishes the information or perhaps gives effect to the information. The particulars of police information under Section 31 of the District Court Act are as follows:
    

“31. Particulars.

A Court or a Magistrate may, if it or he thinks fit, direct particulars to be delivered to the defendant of a matter alleged in an information and may adjourn the hearing for that purpose.”

29. When information is lodged, it only forms the basis of an allegation as being lawfully registered. However, evidence is later delivered to the court to support the assertion in the information and therefore it is the court’s ruling that at the time of lodging the information, other sufficient specifics immediate to the charge including the date of allegation and other evidence may be delivered later and thus the complaint is in order.
    
30. Secondly, the defendant says he was already administratively disciplined in agreement with the proven progression under the Public Services Management Act for his purported role in signing the lease agreement. The question now for my consideration is “would an administrative disciplinary process bar a criminal proceeding in the court proper?”
    
31. The law under Section 16 of the Criminal Code Act provides for a person not to be punished twice for the same offence. Would this establishment be pertinent in the context? The law is exactingly for charge in the criminal court and a conclusion has been grasped and thus it is not relevant here. Moreover, in Kennedy v Cheah [2021] PGNC 158; N8890, the court made it flawless that civil proceedings cannot be used for reliefs that could encumber or otherwise obstruct criminal proceedings. However, the issue here is about administrative disciplinary processes and the criminal court. The outcome of any administrative disciplinary process would either warrant review with the Public Service Commission or Judicial review in the court and the remedy is civil in nature including reinstatement. This is verified in the case of Sapu v Commissioner of Police [2003] PGNC 80; N2426, where a judicial review application was filed by the Plaintiff seeking reinstatement after he was administratively terminated from being a police officer but the application was refused by the court for being time barred.
    
32. In Guiness v Huafolo[2021] PGNC 131; N8864, the defendant, a policeman, was convicted by the Law district court for unlawful driving causing death of another and was given a suspended term of 3 years. Subsequently the Deputy Commissioner of police used his powers under Section 33(2) of the Police Act 1996 and administratively terminated the Applicant forthwith from employment. Applicant being aggrieved filed a judicial review in the National court and the National court dismissed the application because applicant was already convicted by the district court.
    
33. In the above case, the criminal proceeding at the district court did not stop the defendant from being dealt with administratively. Even though the applicant was arrested and charged criminally, his employment with police was not affected until he was convicted. The Judicial review that he had filed was for his reinstatement and nothing to do with the Criminal proceeding where he was previously convicted with. In other words, a criminal proceeding in a court would not affect an administrative disciplinary process; they could run parallel or one after another. Likewise, when the defendant in the current allegation was administratively disciplined, the rise and fall of the administrative disciplinary process either attracted the forum at PSC or the courts and moreover that did not bar any possible criminal proceedings against him. In conclusion, an administrative disciplinary aftermath would not affect the criminal proceeding, the rise and fall of the former does not affect the later.
    
34. Thirdly, Defendant argues that the allegation against him was a civil wrong and the remedy lies in the law of contract and not criminal law. Thus he argues that he was wrongly arrested and charged under the Criminal Code Act. Defendant based his argument on the ideologies in Francis Potape v the State[2] that the remedy against the defendant could be remunerated in damages and not criminal law. Criminal Law deals with approaches that can be assumed as a crime against the public or the State such as any offences proven under the Criminal Code Act and Civil Law deals with outlooks that establish an injury to any individual or corporation such as breach of contract and carelessness.
    
35. Police allege that defendant at the time of signing the lease agreement on 13^th December 2018, under Section 26(1)(b) and (c) of the National Procurement Act did not have the legal mandate to sign the lease agreement as the threshold where he had the mandate was less than K500,000.000 but he had signed for more than that. The evidence of Simon Bole the CEO of PNG National Procurement Commission says the lease agreement between the Lessor and Lessee for the three (3) years was at K11, 880,00.00 and thus under the laws the lease agreement should have reached his office for public procurement commissioner’s deliberation or for NEC deliberation but that did not happen. In State v Luma [2021] PGNC 31; N8798, the defendant was arrested and charged under Section 92(1) of the Criminal Code Act for abuse of office by approving certain contracts without the public tender’s board and deliberation under the public Procurement commission. In the above case the defendant was convicted for awarding a contract without approval. Defendant in the above case was convicted for awarding contract by not following the due process under the Laws when awarding the contract and in the current allegation defendant was arrested for not complying with the laws. Consistent with the principles and natures in the case of State v Luma[3], it is my ruling that the defendant was properly arrested and charged under Section 92(1) of the Criminal Code Act.
    

Sufficiency of Evidence

36. Finally, Defendant also filed a separate submission on the issue of sufficiency of evidence. Defendant argues that evidence is insufficient to commit him for the offence of Abuse of Office. Defendant funded his argument on the foundations in Stanley Japele –v- Gei Guni Raka[4] and The State v Peter O'Neill [2021]PGNC 373; N9213. The defence argument appears logical since the purpose of the agreement was executed and that is exactly what the above two cases established. The court in the above cases moreover noted that the respective defendants at time of signing the agreement and awarding of contracts had the legal mandate to do so and also the contract signing followed the due process. Moreover, the court was satisfied that the purpose of the agreement was executed successfully when monies intended for the project were used in the project. In the current case, there is evidence that money for the project, the lease agreement was used for the intended purpose when the property was rented. However, the defendant did not have the legal mandate to sign the lease agreement. The issue here is not about where the money was used but about the defendant's act in signing the lease agreement for an amount beyond his powers and mandate. Thus, police Evidence shows the defendant had breached Section 26(1)(b) and (c) of the National Procurement Act 2018. The cited provision of the law is stated below:

“26 PROCUREMENT THRESHOLDS.

(1) The procurement thresholds for all public and statutory bodies-

(b) the threshold level below which public and statutory bodies may procure themselves using a standard procurement system approved by the Commission is from K5, 001.00 to K500,000; and

(c) the threshold above below which public and statutory bodies shall not procure themselves but shall have procurement undertaken on their behalf by the commission is above is K5, 000 000.00”.

37. Moreover, the evidence of Herman Kromnong, a lawyer with Fly River Provincial Government, denied his involvement in the agreement. A lease agreement is a legal and binding agreement which in most cases are drafted and reviewed by Lawyers but his evidence at paragraph 4 of his statement says he was neither consulted nor approached by the defendant about the agreement. Although the legal officer may not be a party to the agreement, he should have been consulted and approached as among other tasks, this was one of his paid obligations by Fly River Provincial government to review and draft legal documents. Finally, the evidence of Rupert Tabua, the deputy Provincial Administrator of Fly River Provincial government corroborates the Legal officer’s evidence that he was unaware of any lease agreement until the allegation was raised.
    
38. The lease arrangement dated 13^th December 2018 validates Fly River Provincial Government (Lessee) would pay New Century City Limited (Lessor) an amount of K330,000.00 per month for a period of three (3) years for K11, 880,000.00. in the assessment of evidence, it is established that defendant had acted in isolation to the recognized process and procedures under the National Procurement Act 2018 and also circumvented certain important people in his government where consultation and advice were required although those may not be necessary.
    
39. Therefore, when considering the evidence provided by police to the court on 4^th April 2022, under Section 95(1) of the District Court Act, I am satisfied with Police evidence that the defendant who was employed in the Public Service as a Provincial Administrator of Fly River Provincial government , in abuse of the authority of his office did sign a lease agreement on 13^th December 2018 for Fly River Provincial Government( Lessee) with New Century City Limited(Lessor) an arbitrary act detrimental to the rights of Fly River Provincial Government and its people by breaching Section 26(1)(b) and (c) of the National Procurement Act 2018 . Thus, evidence shows the defendant had procured beyond his threshold of less than K500, 00000.
    

CONCLUSION

40. Evidence is sufficient to make a prima facie case against the Defendant for the charge of 1 counts of Abuse of Office under Section 92 (1), of the Criminal Code Act 1974. Therefore, police have provided prima facie evidence meeting all the elements of the allegation under enquiry.
    

ORDERS

1. There is Prima facie sufficient evidence in the police file meeting the elements of the allegation and thus evidence is sufficient to commit the defendant for the charge of 1 count of Abuse of Office under Section 92 (1) of the Criminal Code Act 1974.
   
2. Defendant is sufficient to Commit the defendant.
   

100. Defendant’s bail is extended.
     

Tamutai Lawyers For the defendant
Police Prosecutor For the State

[1] Criminal Code Act
[2] (2015) SC1613
[3] [2021] PGNC 31; N8798
[4] (2020) DC7022

[i] [2021] PGDC 66;DC6021(30^th June 2021)
[ii] [2016] PGNC 335; N6555 (24 August 2016)
[iii] [1996] PGNC 24; N1476 (6 September 1996)