State v Miguel [2002] PGLawRp 52; [2002] PNGLR 365 (2 December 2002)

NATIONAL COURT OF JUSTICE

THE STATE

v

PABLITO P. MIGUEL

Lae: Injia J
2 December 2002

Criminal Law – Sentence – Bribery – Tax Assessment Officer paid K500.00 to induce him to make favourable Company tax returns by expatriate company official – offer to pay K10,000.00 in Court fine – Prevalence of offence – Offenders rarely caught and successfully prosecuted – Punitive and deterrent sentence emphasized - Inappropriateness of fine or suspended sentence emphasized – Sentenced to 4 years imprisonment in hard labour.

Facts

The prisoner was found guilty of an offence under s 97B(1)(b) of the Criminal Code for offering a tax assessor, employed by the Internal Revenue Commission, a sum of K500 as an inducement for him to assist in the assessment of the Nim Yam Timbers Pty Limited a subsidiary of PNG Halla Cement Factory the employer of the prisoner for the purpose of subsidiary company's liquidation. The money was offered as "appreciation money" for the purpose of inducing the officer to perform his task.

Section 97B(1)(b) says, "A person who offers to a person employed in the Public Service, or being a person employed in the Public Service, solicits or accepts a gratification as an inducement or reward for.....the person employed in the Public Service performing or abstaining from performing or aiding in procuring or hindering the performance of an official act....is guilty of an offence."

The penalty provided for in this section is a fine at the discretion of the Court or imprisonment for a term not exceeding seven years, or both.

On the hearing of submissions by Counsel for the parties on the appropriate sentence:

Held

1. Corruption is a serious offence and when a case has been successfully proven, the Court has a duty to treat the matter seriously. Robert Yabara v The State [1984] PNGLR 387; State v Kiap Bonga [1988-89] PNGLR 360 followed.

2. All forms of bribery are serious in nature irrespective of the amount offered, or the size and magnitude of the official act sought to be performed.

3. In offences of bribery, undue influence and other corrupt practices an offender should not be allowed to pay his way out of jail.

4. The personal character, educational status, religious background, guilty plea, remorse, concerns over family welfare are the very attributes which should have influenced the prisoner against engaging in corrupt practices and should not deter the Court from imposing a custodial sentence.

Papua New Guinea cases cited

Robert Yabara v The State [1984] PNGLR 378.

State v Frank Kagai [1987] PNGLR 320.

State v Kiap Bonga [1988-89] PNGLR 360.

Counsel
M Boni, R Gankarch with J. Nidue, for the State.
P Ousi, for the accused.

6 December 2002

Injia J. On 4 December 2002, I found the prisoner guilty of committing an offence under s 97B(1)(b) of the Criminal Code. I found that he, on 9th November 1999, at the IRC office in Port Moresby, offered to Mr. Kapera Lohia, a Tax Assessor employed by the IRC, the sum of K500.00 as an inducement for him to assist in procuring the assessment of Company Tax of Nim Yam Timbers Pty Ltd, for the purpose of that company's liquidation which was being processed by the IRC.

The offence carries a fine in the discretion of the Court or imprisonment of up to 7 years or both.

In assisting the Court to determine the appropriate punishment in this case, it is submitted on the prisoner's behalf by his counsel, Mr. Ousi that whilst his client appreciates the seriousness of the offence, he should be given a fine between K7,000.00 – K10,000.00 or a suspended sentence, both of which options in effect means a non-custodial sentence. His client also in his allocatus statement pleaded to the Court for mercy and made a similar request. The following reasons or grounds are advanced in support of this request.

1. He is a man of prior good character with a good family, church, education, and work background. He is a citizen of the Philippines and born in 1958 at Lubao village, Pampanga. He is educated at College level and is a qualified accountant. He worked in the Philippines and Saudi Arabia between 1983 – 1995 before coming to PNG in 1996 where he worked with Kolta KPK Accounting firm in Port Moresby and later joined PNG Halla Cement Factory where he worked when he committed the present offence. He has a young family of a wife and 3 young daughters all of whom are in school. They live with him here in PNG. He has submitted character references in the form of five affidavits from responsible persons of standing in the community in Lae.

2. He has no prior convictions. This is his first criminal offence.

3. He has been faithfully observing his bail conditions. On several occasions, when the Court granted him bail and allowed him to leave PNG to go overseas to get medical treatment, he did not abscond bail as many other expatriates do. He returned to PNG to be tried for this offence.

4. On 8/5/02, he pleaded guilty before Kirriwom, J. in the National Court No. 2, Lae and raised the same explanation of "appreciation money" but His Honour in his discretion vacated the plea and entered "Not guilty plea" and ordered the case proceed to trial. In other words, it was not his deliberate decision to plead not guilty and waste this Court's time.

5. He was genuinely remorseful after he was found guilty by this Court.

6. He is not a danger to the society.

7. He has medical problems associated with his eye. His retina has problems, which requires regular medical treatment both in PNG and overseas.

8. This kind of bribery is not as serious as other kinds of bribery offences under s 97B(1) or compared with other more serious types of bribery such as bribery of a police officer as was the case in State v Kiap Bonga [1988-89] PNGLR 360 or a judicial officer as was the case in Robert Yabara v The State [1984] PNGLR 378. The prisoner in this case offered the money to assist in procuring in processing of the assessment of income tax to expedite the liquidation process; not bribed Mr. Lohia to perform the actual official act.

9. The money was given to him by his principal Mr. Simon Cheung of PNG Halla Cement Factory Company, which owned Nim Yam Timbers Ltd, to hand over to Mr. Lohia.

In relation to the appropriateness of a fine, Mr. Ousi submits his client has offered a substantial amount of Court fine money and it should be accepted by the Court. In relation to the appropriateness of a suspended sentence, he submits that a suspended sentence is appropriate where the prisoner has an excellent family, education, work and character background. He submits suspension of sentence is not an exercise of leniency but a form of punishment, as held in the case of the State v Frank Kagai [1987] PNGLR 320.

Mr. Gankarch for the State submits that whilst it is in the discretion of the Court to impose a fine or a suspended sentence, given the seriousness of the offence, a custodial sentence is appropriate in this case. He submits in the alternative, the Court may consider the amount of fine offered by the prisoner. Ultimately he submits, the end result is that the Court should impose a punitive and deterrent sentence.

In considering these submissions, let me begin by re-stating some principles on the offence of bribery established in a few other cases. Bribery is a corrupt practice. Whether the corrupt practice is employed by an outsider or a public servant, and whether the official act sought to be performed by the public official is to do with the administration of law and justice such as bribing a police officer or a judicial officer, or to do with any other type of official act to be performed by any other category of public officials, such as a Tax Assessor with the IRC as in this case, the principles on corruption are essentially the same. I re-iterate what the Supreme Court, in Robert Yabara, ante, per Pratt J. said:

"If such occurrences (bribery) became anything more than an extreme rarity they would destroy utterly the very structure of Government and the Rule of Law. As the Clifford Report says at page 69 of Vol. 1 (Law and Order in Papua New Guinea (1983) Clifford, Morauta and Stuart):

"Once started, corruption is hard to stop. Honest businessmen cannot remain competitive if other businessmen acquire competitive advantages through corruption. The easy money floating about in a corrupt society intoxicates many honest men tempted by the easy access to wealth. Imperceptibly corruption spreads through society like a cancer. By the time the State mobilizes to deal with it, the action is often too little and comes too late."

In State v Kiap Bonga, ante, Barnett J, stated:

"The offence of official corruption is a serious one... Corruption is a growing problem in Papua New Guinea and involves policemen, public servants, politicians and other public office-holders. It is like a deadly social disease which is spreading rapidly. It is difficult to prove as it relies on the honesty of the person who is offered the bribe and there are rarely independent witnesses to the event.

"I am aware that many persons who have been accused of giving or receiving very large bribes are apparently managing to void prosecution or conviction. When a case has been successfully proved, however, this Court has a duty to treat the matter seriously."

In relation to the specific offender before him, His Honour said:

"The accused's counsel says he is a man of previously good character and has been a prominent member of his local church. He has a large family. He has no formal education. I accept those submissions.

"Nevertheless, what he did was to attack the system of law enforcement itself and for that it is appropriate that he serve a prison sentence as a clear warning to others not to offer bribes to the police...."

I adopt the above principles as to the nature and seriousness of the offence. The growing prevalence of the offence and the extreme difficulty in exposing and detecting the offence are relevant considerations, but once detected through the work of dedicated and honest public officials, the need to impose punitive and deterrent sentence to deter others from offering bribes to public officials, becomes crucial.

I accept all the submissions put to me by the prisoner's counsel about his personal background, character and other mitigating factors. There are a few submissions. I accept with some qualification. As to his submission as to the less severity of this particular type of bribery, I say all forms of bribery are serious in nature, irrespective of the amount offered, the size and magnitude of the official act sought to be performed, and so on. I also think his medical condition is not so serious and life threatening as suggested by his counsel. As to his faithfully observing bail conditions, the prisoner did what was required of him by law and he receives no credit for this. As to his aborted guilty plea and subsequent trial before this Court, I say there was no misconception exhibited by the accused in the trial as to the genuineness of his defence of "appreciation money." He fought the case tooth and nail. Therefore, he receives no credit for this.

I accept the submissions put to me by the State.

I now need to balance these factors so that the sentence I impose truly represents the aggregate effect of these factors and that the sentence fits the crime

I have given careful thought as to whether I should give the prisoner a non-custodial sentence in view of the substantial offer of court fine money. I have also given careful thought to the issue of whether a wholly or partly suspended prison sentence would be appropriate. It is my view that neither of these two options would be adequate in responding to the seriousness and growing prevalence, yet not so readily exposed and prosecuted, nature of this kind of corrupt practice. Offences of bribery, undue influence and other corrupt practice seem to have become the norm of getting business done, in all areas of business, both in the private sector and more particularly in government. We hear of and read in the daily media and in private conversations in homes, on the streets, in cities and in villages stories of instances of bribery of public officials at all levels of government, but they rarely get exposed and reported to police, and successfully prosecuted. When they do get exposed and successfully prosecuted, and thanks to dedicated and honest officials like Mr. Kapera Lohia and Mrs. Grace Torova, the Court must treat it seriously and impose a strong punitive and deterrent sentence in the form of custodial sentence, as a warning to other potential offenders. It would not seem right and just that when the very offence involves the use of money by the offender to bribe a public official, he should be allowed to "pay his way out of jail", with the use of money, whatever the amount of money may be. To allow that to happen sets a dangerous precedent for others to expect the same treatment – that the more affluent members of our community will avoid real punishment by paying money. By real punishment, I am referring to a punitive and deterrent sentence in the form of custodial sentence. A fine or a suspended sentence in my view would not have sufficient punitive and deterrent effect. And speaking of the affluent, both locals and expatriates in our country, their good personal, educational, church, prior good character, guilty plea, remorse and concern over the welfare of their young family, cannot deter imprisonment. These are very attributes, which get him into a position of influence and respect, but they abuse those attributes to engage in corrupt practices. And when they do, such attributes have little or no effect in preventing a custodial sentence. Also these are things which should help him decide against committing the offence in the first place.

In the present case, what the prisoner did is serious. He offered a Tax officer a big amount of money, by PNG public servant pay standards, in order to induce him aiding in processing Income Tax Assessment in order to expedite the liquidation process of the company he was associated with. The benefits which he sought to achieve was immensurable and is only known to himself and I would surmise it would no doubt be substantial in fiscal terms. The entire government of this country or any other country for that matter heavily relies on the trustworthiness of its revenue collection system for its existence. Any person who offers bribes to Government Tax Revenue officers to perform their official act is a very serious thing and it must be dealt with firmly and severely.

Having said all of the above, I do accept all the submissions put to me by his counsel, subject of course to the qualifications to some aspects of his submissions. They collectively help to reduce the punishment from the maximum of 7 years imprisonment punishment to the sentence I impose now.

The sentence of the Court therefore is as follows. I sentence the prisoner to 4 years I.H.L. His bail money of K500.00 will be refunded to him. I also order that the K500.00 "bribery money" in evidence before the Court be forfeited to the State.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Warner Shand.