Tran Huy Duc v Police [2007] PGNC 9; CA 26-30, 32 & 33 of 2007 (17 April 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CA 26 to 30, 32 AND 33 OF 2007

TRAN HUY DUC, ZOU JIA JU,
CHAN(MIN FAI) ERIC, LI TIAN QIANG,
WU XUE WEN, ZHOU CHONG GI AND YIANG CHANG MIN
Appellants

v

POLICE
Respondents

Kokopo: Lay J
2007: 13 and 17 April

CRIMINAL LAW– principles of sentencing
DISTRICT COURT ACT- appeal against sentence
MIGRATION ACT s16(1)(a) a person who enters or remains in the country

Cases Cited

PNG Cases
Toiona v Bryant [1969-1970] PNGLR 201
R v McGrath [1971] PNGLR 247
Taiba Maima v Sma [1971-1972] PNGLR 49
R v Gabai Vagi [1973] PNGLR 30
Secretary of Law v Ulao Amentasi [1975] PNGLR 134;
Kondan Kale v The State (1983) SC250
Hen Kura v Was Kombra (1981) N292L
Paia Lifi v Phillip Dege (1981) M291(M)
Rex Lialu v The State [1990] PNGLR 487
John Baipu v State SC796
N2063 The State v Tobby Tani
Election Amo v Monie Luke Raphael (13 September 2002) N 2300

References

Legislations
District Court Act
Employment of Non Citizens Act
Migration Act

Counsel
D. Lidgett, for the Appellants
L. Rangan, for the Respondent

DECISION

17 April, 2007

1. LAY J: These appeals were heard together. The appellants were all convicted in the District Court at Kavieng by Magistrate T. Vogusang, on 19 of February 2007 on a plea of guilty to one count of remaining in the country contrary to the provisions of Section 16(1)(a) of the Migration Act. They were each sentenced to six months hard labour, the maximum penalty.
   
2. The appellants appeal from sentence only on the following grounds:
   
   1. the learned magistrate erred in fact and law when he imposed the maximum sentence of six months:
      1. on receiving a guilty plea from the defendant without taking into account any discount for that guilty plea;
      2. when the particular facts do not disclose the "worst type" of instance of a breach of the particular section under which the defendant was prosecuted;
      3. without considering that this was the "first offence" committed by the defendant; and
      4. without properly considering the defendant's expression of "remorse".
   2. The learned magistrate therefore erred in fact and law by imposing a sentence that was inappropriate and manifestly excessive in the circumstances of the case.
      
3. From the record of the District Court it appears that the learned magistrate also heard all matters together. The learned magistrate recorded no reasons for his decision on penalty.
   
4. On the hearing of an appeal from the District Court "An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.": District Court Act s 230 (2).
   
5. It appears that each of the appellant's entered Papua New Guinea with valid work permits and visas to work with a timber company in Lae called Pazhong Zhoufun Timber Products Ltd ("P ZTP"). This company proposed to go into a joint venture with a resident of Kavieng in the business of rubber and marine products. For that reason the appellants travelled to Kavieng and commenced work in the marine industry. However the joint-venture did not eventuate and the appellants were no longer working for PZTP, the basis on which they entered Papua New Guinea.
   
6. Migration Act s 16(1)(a) provides:
   

(1) "a person who-

(a) enters or remains in the country in contravention of this Act... is guilty of an offence.

Penalty: A fine not exceeding K5 000 or imprisonment for a term not exceeding six months.

7. There are in the statement of facts accompanying the information, and in the submissions of both counsel for the Appellants (a different firm from that conducting the appeal) and Police Prosecutor, before the Learned magistrate, a number of references to breaches of the conditions of Work Permits which are issued under the Employment of Non-citizens Act. Such breaches may be an offence under that Act. There is no statement in the documentation from the District Court as to what provision of the Migration Act was breached giving rise to an offence under section 16. It is obviously a council of caution when accepting a guilty plea, especially from persons who do not speak a common language with the court, even if assisted by counsel, to be very clear as to what are the precise facts to which the plea is being entered and for the tribunal to be satisfied as a matter of law that those facts amount to an offence with which the accused has been charged.
   
8. The District Court Act s 128 provides that the charge against each accused person shall be explained in open court and each accused person shall be asked whether he is guilty or not to the charge. It is not a matter for counsel. As My Brother Lenalia J. said in App. No. 121 of 2000 Election Amo v Monie Luke Raphael (13 September 2002) N 2300, the court must not surrender its duty by only relying on the words of counsel. The District Court is created by statute and governed by statute and must follow the procedure set out in the Act. The procedure under s 128 does not appear to have been adopted in these cases and as a consequence, in terms of facts it is not clear what breach, if any, of the Migration Act the convictions relate to. Nevertheless, for reasons of practicality explained to me by counsel, there has been no appeal against convictions and I will say no more about that matter.
   
9. There are some well settled principles of sentencing in this jurisdiction many of which are set out in Criminal Law and Practice of Papua New Guinea 3rd edition commencing at page 499. Some of the mitigating factors and other factors which are relevant to this appeal I set out in summary form:
   
   1. the degree of ignorance of the law: Secretary of Law v Ulao Amentasi [1975] PNGLR 134;
   2. that the offender is a first offender: Kondan Kale v The State (1983) SC250;
   100. the plea of guilty: R v McGrath [1971] PNGLR 247;
   4. it is binding on all members of the judiciary that in Papua New Guinea only in the worst-case is the maximum penalty imposed: Taiba Maima v Sma [1971-1972] PNGLR 49 and the maximum sentence or near the maximum sentence is not to be imposed in the case of first offenders: Hen Kura v Was Kombra (1981) N292L
   5. the proper approach to sentencing is to have regard to all of the relevant considerations and then determine the penalty for the particular offence: Rex Lialu v The State [1990] PNGLR 487.
   6. In fixing the appropriate sentence the court must not take into account facts and circumstances which themselves may establish a separate offence with which the accused person has not been charged. The offender is entitled to be sentenced solely for the offence with which he has been charged unless other offences are to be taken into account pursuant to a statutory provision which allows the same: John Baipu v State SC796. And see also Toiona v Bryant [1969-1970] PNGLR 201 and Paia Lifi v Phillip Dege (1981) M291(M), a person charged with a simple offence should not be sentenced as if he had been charged with a more serious offence.
      
10. In this case there were no facts before the Learned Magistrate from which he could reasonably deduce that the case before him was one of the worst, nor that the accused were repeat offenders, in the face of the unopposed submission that they were all first offenders. Therefore I conclude even in the absence of reasons, from the fact that, on a guilty plea, the maximum penalty was imposed, that a substantial miscarriage of justice has occurred. In the circumstances I should approach the sentencing exercise afresh, rather than remit this matter to the District Court, and set a sentence exercising "a power that the Court that made the conviction, order or adjudication might have exercised": District Court Act s230(1) (e).
    
11. Each of the offenders was a first offender, each of the offender's quite reasonably pleaded ignorance of the law. The Police Prosecutor appeared from his submissions to wish to contest the latter submission, but if he wished to do so the proper course was to call evidence. It is the practice of the court to take the version of events most favourable to the accused in the absence of evidence from the State to the contrary, unless that version is wholly unreal: N2063 The State v Tobby Tani, Injia AJ; R v Gabai Vagi [1973] PNGLR 30 Raine J. None of the allegation of breaches of fisheries legislation or the Employment of Non Citizens Act should be taken into consideration on sentencing for a conviction under the Migration Act.
    
12. There was no evidence before the magistrate of aggravating factors such as:
    
    1. a very lengthy breach;
    2. a deliberate breach knowing the law;
    100. any deliberate action to avoid authorities:
    4. repeat offence.
       
13. Section 16 of the Migration Act is interesting in that it does not bear the same relationship between the monetary fine and the term of imprisonment found in other Acts. A short survey of other Acts of the Parliament in which there is a maximum penalty of six months imprisonment or the alternative of a fine, discloses the fine ranges from K400 to K2,000. In s16 it is K5,000. The court is thus given a greater range of monetary penalty before it considers the necessity for a prison term.
    
14. Had this case come before me de novo on the facts before the magistrate I consider that I would have imposed a penalty of K2, 000. However to substitute a fine for a prison term when the appellants have already served a period in prison, would be to impose both a fine and a prison term when the legislation clearly only authorises the court to impose one or the other. In the circumstances of this case then I consider that an appropriate term of imprisonment is two months.
    
15. In terms of District Court Act s 230(1) (b) I allow the appeal and mitigate the penalty by reducing the term of six months to two months. Whether the appellants are ordered to be removed from Papua New Guinea and whether they are subject, subsequent to such an order, to be kept in custody until removal, is a matter for the Minister.
    
16. I will hear the parties on costs if application is made.
    
17. Orders:
    
    1. Appeal allowed;
    2. The sentence of each appellant is reduced from 6 months to two months;
    100. Costs reserved to an application to be made within 14 days.
         

__________________________________________

Public Prosecutor: Lawyer for the State
Warner Shand: Lawyer for the Prisoners