Unreported National Court Decisions
N332
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
AGAINST
HAMIEH ABDUL MAGID
Quinlivan AJ
9 November 1981
QUINLIVAN AJ:  This prisoner has pleaded guilty to the importation of 101.3 kg. of CANNABIS RESIN, a narcotic drug which is a prohibited import. The consignment was, in March of this year, said to be valued at $2,700,000.00 Australian - the figure being given to me in Australian currency because it was clear that the importation was solely for the purpose of onward trans-shipment to Australia.
The fact that this information was given to me in March (when the prisoner was brought before me on a charge of making a false declaration) is the reason why this second case, very properly, was brought before me rather than another Judge. It is also the reason why I have had growing doubts about what any Judge can or should do in regard to the present - that is, the “importation” - charge.
These doubts arise because, when sentencing the prisoner in March. I spoke on the subject of this country being in need of protection against the possibility that people in the international drug traffic might use her shores for their own purposes. I said that the Courts would do all they could to make sure that such people desisted from such purposes. And I said this because I was faced with the situation where the then State Prosecutor, Mr. Roddenby, had asked me to deal with the case, for sentence purposes, on the basis of “importation” because that was the sole purpose which the prisoner sought to achieve by making the false declaration.
For the reasons which Mr. Roddenby gave in March it was clear that the State had no alternative but to make the request that he did make. I naturally acceded to it because it was proper and reasonable that I do so. The more that I have studied the law regarding the second charge, however, the more certain I have become that I should refer on to the Supreme Court certain questions for consideration and guidance. Accordingly, and persuant to the powers conferred by section 20 of the Supreme Court Act I reserve these questions.
My notes of what transpired at the first trial will form part of the “reference”, together with any notes which counsel may wish to add, I was, in that case, asked to not read the depositions so I did not do so: The Agreed Statement of Facts which was read out in Open Court, and agreed to by the prisoner, will form part of the reference as shall a copy of what I said in imposing sentence in March 1981 on the “making a false declaration” charge. So also, shall the depositions which I was asked to read in the present case, and did in fact read.
In accordance with practice, I would like counsel to settle the terms and form of the reference in tentative form for my final approval but I ask that it include the following questions:
(i)       whether, in view of the stream of authorities extending from the Australian Appeal of Connolly (1906) 3 C.L.R. 682 to, for instance, the judgment of Minogue J. (as he then was) in Appeal of GAIARA GABEREBA 1967-1968 PNGLR 346, the defence of section 16 of The Criminal Code applies in the present case;
(ii)      whether, in view of the action of the learned State Prosecutor in the March case the State has, in law, “discarded” (to use a word used in R. v. O’Neill (1979) 2 N.S.W.L.R. 582 at pages 590 and 597) the importation charge and is therefore estopped from now bringing it against the prisoner;
(iii)     whether, if the answer to either or both of the above is “NO”, a Court in this country should “stay” the present proceedings for the reasons given in Connolly v. D.P.P. (1964) 2 All E.R. 401 at pages 446, 449 and 451.
Subject to the questions being finally settled and approved by me this matter, being a case in which judgment has not been pronounced, is reserved and the above questions are referred on to the Supreme Court. The prisoner is, accordingly, ordered to be returned to Bomana Corrective Institution to serve the sentence imposed in March in respect of the “false declaration” charge, and to await the outcome of this reference.
(N.B. The transcription of what His Honour said on 20th March 1981 is as follows:-
20th March 1981:
This is a pathetic case for several reasons. I accept what Mr. Challenger has said about the Prisoner but, in many ways, I find myself in the position in which Lord Goddard found himself, just after the last war, in what were called the Lead Stripping Cases. These were cases where people, so as to get quick money, used to go on to the top roofs of ancient buildings and rip the lead-covering off the roof. It was a method of making money which involved no great effort, no great labour and no great danger, and of course lead - which used to be a penny a pound - brought a great deal of money on the current market. Those who did it knew that it should not have been done, but the gains outweighed the moral scruples which should have controlled them.
And, of course, when the rains came, the water came in because the roofs were no longer water proof. And the buildings were destroyed. Buildings which had been the glory of a civilization for a thousand years. And so Lord Goddard said: “This must stop”! “This WILL stop! I will make sure that it does stop”.
I said that this a pathetic case. One of the reasons for this is that I can feel for this man, the prisoner. I can see that he did not fully realise just what it was that he was getting into when this proposition was put to him. He needed money. And the reasons for his being in the position where he needed money are reasons which I can understand and sympathise with. But, at that point we part company. He knew that there were moral objections to him doing what was proposed but he did not let them weigh with him as they should have. He did not think it out deeply enough, just as the lead strippers did not think it out deeply enough in England before Lord Goddard made them think.
Well, what is the result? I know that the evil design of using this country as an entrepot did not germinate in his mind. It germinated in the minds of others. But as a result of his falling in with their plans) he has caused an anonymous phone-call to be sent to him in Sydney, which call has totally coerced him into carrying out the evil design which he intended withdrawing from.
That is the worst part of this case. He did not seek out the evil which this country faces but, by not saying “NO”, he made it possible for an anonymous phone caller, on the other side of the world, to force someone to commit an offence in this country.
That is the horrifying thing. And unless this court does something to stop that incredible power, this country is going to find itself totally defenceless (as I said in the opium case some years ago), defenceless against the evil minds of the world. And the analogy of the Lead-stripping Cases applies also because, unless something is done to stop others using this country, then the whole of the foundations on which this country and its independence are built, will become immediately eroded. And also the foundations on which its ordinary business affairs are built, will become completely underminded.
It is the latter of these statement which is the essential part in this case. It is true that I am dealing with the introduction of dangerous drugs, but I am leaving that aside for the moment. The charge is under the laws in relation to “Statements and Declarations which Shall be Accepted in the Normal Course of Business” - because a law must exist for this purpose. Unless there is some provision, such as the one he is charged under, then it is not possible for modern Society to function. It is not possible for people to show that they are married. It is not possible for people to show where their Home State or Province is. It is not possible for people to do any of the million-and-one essential things on which their daily lives, in a complicated modern society, depend. That is what this law is about to make it possible for people to make declarations which will be accepted.
He did not want to offend and, as learned Counsel so eloquently said, he breathed a sigh of relief when the lady said “Oh, they are not here”. But that phone call had already had its effect. He was impelled forward to make a false declaration. In fact he made a doubly false one. He went out to the air-lines “bond store” to find suitcases in a certain person’s name and when the lady behind the counter said that there were in another person’s name, he forthwith made the declaration in that second person’s name. This is the incredible power of that anonymous phone call. A power which, although innocently (or quasi-innocently, - certainly not with evil intent towards Papua New Guinea), he not only called down upon himself by not having the moral courage to say “NO” but he called down on this country. If an anonymous phone call can have that effect on him, from halfway round the world (and after he had decided not to go ahead with the plan, what kind of power is involved? The answer, quite simply, is: the power of international drug traffickers. It is my duty to say to them, by what happens here today, that the answer is - as it should have been when this man was first approached: - “NO”.
The technical offence with which he is charged is there for the protection of business arrangements and for the protection of all sorts of other arrangements, of innumerable variety, which depend on the sacredness of Statutory Declarations. I can see why this prisoner made this false one. He was afraid, in the first instance that because, by no saying “NO” - by allowing his wishes (for his “needs were no more than wishes) to override his moral calibre, and it is clear that he is a man of moral calibre, he is a good man, - he felt he could meet his pressing needs. He gave way to them and fell in with the plans of evil men. And he drew attention to this country; to its vulnerability. And this country must be protected.
I accept, as I have said, that he wanted to withdraw and I see no great point in whether the consignment is worth one million dollars or three million dollars or what. And also I take account of the fact that some people even think that cannabis is not all that important. But that is not to the point, either. Whatever one’s view might be, about an individual consuming this particular drug - whether it is no worse than drinking beer or whiskey - that is not to the point. This is not a case of the accused person consuming. This is a case of someone being involved in something which means that two million or three million dollars worth of goods are in a few suitcases and where international phone calls can have such tremendous and dangerous effects. It is, to my mind, exactly the same type of situation as where Lord Goddard said: “This must be stopped”.
I do not know whether I ought to say this, but I lament the fact that three years imprisonment is the maximum under this charge. But it is and I, of course, am bound by that fact. This case, however, is the most serious that one can imagine. It attacks, not the acceptability of business documents but the very independence of this new nation. She must be protected from becoming made an entrepot. It is not to the point to say that this consignment was “only” for use in another country. Papua New Guinea depends, for her independence, on the support of her brother and sister nations. She belongs to a family of nations and, for this reason, a hurt to one is a hurt to all. A strengthening of one is a strengthening of all. And so therefore I must, I am bound, to take the strongest action possible. I have no doubts whatsoever on this point.
So the sentence I impose is the maximum. But, as I said before, I take account of the fact that the prisoner has pleaded guilty, and for that I deduct three months.
Also there is the fact that he has been waiting in custody. And the fact that I think he is an honourable man, that he was just not thinking at the time.
He took the easy way, but what he did causes such incredibly dengerous results that I must use every weapon in the armoury of the law to stop others doing it. As against that, however, I must not destroy him in the process. So although I myself would only equate his eight months wait with eight months of sentence. I do note that he probably believes that it should be taken as eight months, and if I were to adopt other views I would instill a sense of injustice in him. Accordingly, I give him full credit for those eight months. But, HAMIEH ABDUL MAGID, I say, most solemnly to you: You are a very foolish man but a very lucky one. You realised how foolish you were and you tried to withdraw from this evil project. But you could not withdraw because you were in the clutches of powerful, ruthless, interests. I have to make sure this country is not in their clutches. So the maximum of what the law allows is what I sentence you to. And, because of a slip-up in the law you are very lucky. If you had come here on this other charge you would be going to gaol for ten years. You are very, very lucky.
The maximum is three years and so that is all I can impose. I take account of the fact that you pleaded GUILTY. I take account of the fact that at one stage you tried to withdraw, but you could not because the pressure on you was too much. You actually have a reduction of eleven months, which I think is very lucky. The sentence is 2 years and one month).
Solicitor for the State: L. GAVARA-NANU Public Prosecutor
Counsel: C. Bourke
Solicitor for the Accused: Young & Williams & Associates,
Counsel: M. Challenger.