Soo v Emboge [2002] PGNC 84; N2248 (5 April 2002)

N2248

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO: 194 of 2001

BETWEEN:

PARK SUNG SOO

First Plaintiff

AND:

MA BUILDING & CONSTRUCTIONS LIMITED

Second Plaintiff

AND:

HANKIN EMBOGE
First Defendant

AND:

EZEKIEL SUKINA
Second Defendant

AND:

NE KONG HOLDINGS LIMITED

Third Defendant

AND:

ALEXIA LUCAS
Fourth Defendant

AND:

THE PROVINCIAL POLICE COMMANDER – ORO PROVINCE
Fifth Defendant

Waigani: Kandakasi J
2001 : 21st September
2002 : 5th April

PRACTICE & PROCEDURE – Contempt Proceedings – Alleged contemnors pleading guilty to charge of contempt – Parties Counsel agreeing to file written submission on appropriate sentence – Counsel failing to file submissions - Such failure amounts to no submission which may be indicative of not pursing the matter any further by the prosecution and the defence accepting whatever decision the court may arrive at.

Alleged contemnor pleading guilty to charge to contempt in circumstance that did not amount to contempt – Court proceeding to consider sentence on agreement of the parties without seriously considering the evidence supporting the charge - Submissions not filed despite consent and orders of the court – Power in the court to consider sentence without waiting for counsel’s submissions - Court has power to change verdict and conviction where the evidence does not support a guilty plea and conviction.

CONTEMPT OF COURT – Orders made for payment of certain public auction proceeds into court – Orders made after funds already disbursed to creditors of the Plaintiff – No contempt – Guilty plea wrongly accepted – Plea changed to one of not guilty and charge dismissed for lack of evidence.

Cases Cited:
Kurt Reimann & Ors v. George Skell & Ors (unreported judgement delivered 29/03/01) N209.
The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1.
Gabriel Laku v The State [1981] PNGLR 350.

Counsel:
Mr. A. Banyiamai for the Plaintiff
Mr. Uware for the First Defendant/Contemnor

27th March 2002

KANDAKASI J: The Plaintiff took out contempt proceedings against each of the Defendants in respect of an order of this Court made on the 30th of March 2001. That order required an impounding of an excavator which was sold to a third party in a public auction in purported pursuance of a number of District Court orders against the plaintiff for debts owed by him. It also ordered the first defendants and or the other defendants’ who might have received the proceeds of the auction sale to pay into the Registrar or the Sheriff’s trust account the proceeds forthwith, pending a determination of the substantive proceedings. Further, it restraint the Defendants from selling or otherwise disposing of the excavator.

All except the charge against the first defendant, Mr. Emboge were withdrawn. Mr. Emboge was the auctioneer of an excavator belonging to the Plaintiff in purported enforcement of District Court orders against the Plaintiff. When the charge against Mr. Emboge came before me on the 21st of September 2001, Mr. Emboge pleaded guilty to the charge. Then in his allocutus, he stated that he did not mean to disobey the Court orders and stated that he disbursed the proceeds of the sale to the creditors of the plaintiff under the District Court orders. He said he has respect for the Court and asked the court to exercise leniency when determining what punishment to give him. He said he would prefer a non-custodial sentence, as the youth in the Oro Province with whom he works with will suffer.

The parties then sought the Court’s indulgence to file and serve their respective submissions on sentence. I granted their request and I adjourned a decision on sentence until after the receipt of the submissions and their consideration. It has been more than almost 7 months now and neither of the parties has filed their submissions. This is so despite follow-ups with the respective counsel’s on that by my associate. I have therefore, decided to proceed to judgement without counsel’s assistance.

In so doing, I take the failure to file submissions to mean an indication of a lack of an interest on the part of the prosecuting party to see the alleged contemnor receive a sentence. As for the alleged contemnor, I take his failure to file submissions to mean that he is prepared to accept whatever penalty the court decides to impose against him.

The failure to file the parties respective submissions promptly clearly speak against the desirability of the practice that appeared to have developed and accepted in our jurisdiction that parties can take all the time they wish to file their submissions. This practice no doubt, unnecessarily delays the process to judgement. The delay would in some cases, led to lost of memory of what the case may have been all about. That would in turn led to a bad or poor judgement. Parties are always quick to complain about delays in judgement but they often fail to also acknowledge their own failures to act quickly as demonstrated in this case.

Given the risks I have just mentioned above, I consider it is good practice that parties should not be given open handed time periods to file submissions if the practice of adjourning to enable the filing of written submissions is to be encouraged. Instead they should be give very shot time frames for them to file submissions if it is considered necessary. Otherwise parties should be required to make submissions either orally or in writing or both straight after the end of the evidence. There is no reason why parties should not be ready with submissions in this way. In most cases, more particularly where the parties have a general idea of the opponent’s case before hand apart from knowing their cases should be ready with submissions at the end of the evidence or within a very short time. In my very brief experience as a lawyer and now has a judge, I find that in most cases, written submissions are unnecessarily too long and sometimes touch on matters that are not relevant to the issues for trial and requiring judgement on.

Facts

In the case before me now, the facts are not in issue. A number of District Court proceedings were successfully brought against the Plaintiff by a number of his creditors. He appears not to have satisfied any of the judgements of the District Court. The judgement creditors therefore, proceeded to execute the judgements against the Plaintiff’s assets. That included the sale by public auction an excavator at the price of K46,000.00 in cash.

The auction sale was conducted on the 28th of March 2001. The proceeds were paid to the creditors including the auctioneer’s costs on the same day of the sale. Two days later, the orders, Mr. Emboge is alleged to have breached were obtained. Those orders were not served on Mr. Emboge until the 1st, 9th and 10th of April 2001. On the 10th of April 2001, the third party purchasers of the excavator had it shipped to Lae. The excavator was subsequently sighted with a Mr. Pepu Pu in Mt. Hagen.

Mr. Emboge pleaded guilty to the charge against him and asked for a non-custodial and a lenient sentence. At the time of taking his plea, it did not occur to me that there was any issue on the correctness of that plea. I therefore, accepted the guilty plea and proceeded to administer his allocutus and adjourned for submissions before sentence. As I said earlier, no submissions have been filed up to this time. I have therefore been forced to carefully consider the evidence before me to determine an appropriate penalty.

In the process of carefully considering the case against Mr. Emboge, I find that he is not guilty of contempt of the orders in question on the facts as briefly outlined above. Mr. Emboge conducted an auction under a District Court order. It was a public auction. The highest bid he received was K46,000.00. He therefore, sold the excavator at that price to the successful bidder. The successful bidder paid the price he bided for successfully in cash the same day.

The proceeds were disbursed to the creditors also on the same date. Those included Mr. Emboges’ own fees. Consequently, Mr. Emboge had no proceeds to pay to the Registrar or the Sheriff of the National Court as ordered on the 30th of March 2001or upon being served with the orders on the 1st of April 2001 or thereafter.

The property and or the title in the excavator in the absence of any fraud on the part of the successful bidder and the auctioneer, in my view passed to the third party when that party’s bid was accepted and he paid the amount he bided for. The plaintiff is through this Originating Summons seeking to nullify the auction sale for a number of reasons. However, he has not shown any interest in pursuing that with any urgency since lodging the proceedings and obtaining a number of interim orders. This is clearly evidence in the lack of any submissions on the penalty for the alleged contempt up to this time despite my associate’s follow-ups on that. Until at such time that issue is determined in favour of the Plaintiff, the assumption is that the auction sale was proper and the passing of the property or title in the excavator was also proper.

Considering all of these and more so the relevant evidence before me, I am not convinced that the contempt charge against Mr. Emboge could be sustained. This is because Mr. Emboge was in no position to avoid an auction sale of the excavator and failing that, pay the proceeds to the Registrar or the Sheriff of the National Court as he had already conducted the auction and disposed of the proceeds of the sale before the orders were sought and made. Whether or not he did that correctly is not an issue before me. That is a matter for the substantive matter.

Issue

This then gives rise to the issue of, whether or not the guilty plead and the conviction thereupon, should be vacated in view of my finding that, the evidence does not support the guilty plea and the conviction thereupon. This calls for a consideration of the correct procedure in these types of situation.

In Kurt Reimann & Ors v. George Skell & Ors (unreported judgement delivered 29/03/01) N2093, I said:

"It has been clearly held by the Supreme Court in Andrew Kwimberi of Paulus M. Dowa Lawyers v. The State (27/03/98) SC545 at page 21 that contempt proceedings are criminal in nature but a contemnor could be charge, convicted and punished "without following the usual criminal procedure prescribed by written law". The procedure to follow instead is as is prescribed and laid down by the NCRs per O.14 rr. 37 to 50, which are comprehensive. Non compliance of those procedure does not render the proceedings void."

As far as I am aware, this position has not been altered in any way by any subsequent Supreme Court judgement. Therefore, the procedure to follow is as is laid out in the National Court Rules.

Order 14 rule 39 of the National Court Rules, in so far as is relevant provides the procedure to follow in these terms:

"39. Charge, defence and determination. (55/3)

Where a contemnor is brought before the Court, the Court shall—

(a) cause him to be informed orally of the contempt with which he is charged; and

(b) require him to make his defence to the charge; and

(c) after hearing him, determine the matter of the charge; and

(d) make an order for the punishment or discharge of the contemnor."

Apart from this, there is no specific provision on the taking of pleads to contempt charges and changing them in appropriate cases. I therefore, turn to the normal criminal process to determine the correct procedure to follow.

It is a well accepted practice in our normal criminal jurisdiction that a guilty plea can be changed before sentence, if there is material that casts doubt on the correctness of proceeding to convict and sentence on a guilty plea. The law on when a plea of guilty may be vacated is set out in The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1. The principles set out in that case were endorsed and applied by the Supreme Court in Gabriel Laku v The State [1981] PNGLR 350.

In the absence of anything to the contrary in the National Court Rules, I am of the view that these principles should equally apply in the context of contempt of court proceedings. This, I note is in line with the Supreme Court decision in Andrew Kwimberi of Paulus M. Dowa Lawyers v. The State (27/03/98) SC545, where the Supreme Court held that the contempt proceedings are criminal in nature. It follows therefore, that in the absence of any expressed provision to the contrary, the principles that apply in a criminal case applies to contempt of court proceedings. Proceeding on these bases, I accept, adopt and apply the procedure applying to changing of or vacating guilty verdicts to the opposite in criminal cases to this case. In line with that procedure, I vacate the acceptance and record of Mr. Emboge’s guilty plea and replace it with a not guilty plea.

Then on the material before, me I find that the charge of contempt against Mr. Emboge can not be sustained. I therefore return a verdict of not guilty and acquit him of the charge against him. Ultimately, I dismiss the charge against him and order costs against the Plaintiff.
________________________________________________________________________
Lawyers for the Plaintiff: Stevens Lawyers
Lawyers for the First Defendant/Contemnor: Public Solicitor