State v Chan [2012] PGNC 346; N5534 (20 June 2012)

N5534

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 279 of 2012

BETWEEN:

THE STATE

AND:

CHRIS CHAN

Madang: Gavara-Nanu, J
2012: 11 & 20 June

PRACTICE & PROCEDURE – Criminal Law – Contempt of Court – A foreigner doing business in Papua New Guinea – Contemnor in a privileged position – Appropriate punishment – deterrent sentence necessary – Special considerations

Cases cited:

No cases cited

Counsel:

N. Lipai, for the State
B. Meten, for the accused

1. GAVARA-NANU J: The contemnor pleaded guilty to two counts of contempt of court, laid by the Registrar on 11 May, 2012. The first count is that he showed disrespect for the authority of the Court and interfered in the due administration of justice when he left Madang Province and Papua New Guinea on 19 March, 2012, without the approval of the Court. The conduct by the contemnor was in breach of a condition of his bail relating to a criminal proceeding CR 420 of 2011, in which he was charged with an offence under s. 28 (1) of the Copyright and Neighboring Rights Act, 2000. The second count relates to the contemnor's failure to appear before the Madang National Court, to receive the verdict of the Court on charges relating to another criminal proceeding CR 410 of 2011, which was also laid under s. 28 (1) of the Copyright and Neighboring Rights Act, 2000.

2. After being committed to stand trial in the National Court, the contemnor was granted bail with a condition that he was not to leave Madang Province and Papua New Guinea without approval of a Judge or a Senior Magistrate. In direct breach of this condition the contemnor left Madang and Papua New Guinea on 19 March, 2012. His reason for leaving Papua New Guinea was that he wanted to see his very sick mother in China. He failed to appear in the National Court, in Madang on 23 March, 2012, to receive the verdict of the Court. He returned to Papua New Guinea on 1 May, 2012. He voluntarily appeared before the National Court in Madang on 7 May, 2012.

3. When the contemnor failed to answer his bail, his cash bail of K2000.00 was forfeited to the State. The contemnor's two guarantors were also ordered to pay K1,000.00 each.

4. The contemnor was acquitted by the Court of both charges on 23 March, 2012.

5. The contemnor is currently on K1000.00 cash bail.

6. Miss Lipai appeared for the Registrar and moved pursuant to the Originating Summons that the contemnor be punished, pursuant to Order 14 r 49 of the National Court Rules.

7. The contemnor is 29 years old, he is a Chinese national who resides in Madang town. He manages a mini mart and a super market and is the proprietor of a restaurant operating within Madang town. He has expressed remorse for his offence.

8. Mr Bumi Meten of counsel for the contemnor has submitted that the contemnor should either be fined a sum of K500.00 if not, any amount up to K1000.00.

9. This case arises from the contemnor breaching his bail conditions. The matter could have therefore been dealt with under the Bail Act Chapter No. 340, which could have resulted in the revocation of his bail under s. 21 of the Bail Act. A bench warrant would have then been issued for his arrest. However, it appears that the decision not to revoke his bail was because he was acquitted of the criminal charges laid against him. The decisions to acquit him of the charges were delivered while the contemnor was away in China. It would have therefore been pointless issuing a bench warrant for his arrest. Thus the contempt proceeding instituted by the Registrar to punish the contemnor is proper.

10. The breach of bail condition was deliberate and there is no excuse for the breach. The evidence from the contemnor confirms that he received information about his mother being seriously ill as early as early February, 2012. He therefore had more than ample time to come to the Court and seek leave of the Court to leave Madang and Papua New Guinea and go and visit his mother in China. He was away in China for almost six weeks.

11. The contemnor appears to be quite well educated, he spoke in English during his arraignment and allocutus without the assistance of an interpreter. His reason for travelling to China was to see his ill mother, however, he has not produced any medical certificate or report to prove that his mother was indeed ill at the relevant time. This factor must weigh against him in deciding his punishment.

12. The contemnor's disrespectful conduct to the authority of the Court and interference in the due administration of justice is a serious matter which should attract a strong deterrent sentence. The contemnor has been given the opportunity and privilege by Papua New Guinea Government to carry on business in the country. He abused that privilege by deliberately breaking the laws of this country, he therefore deserves to be punished. The contemnor like every other offender on bail has breached the trust of the Court by failing to answer his bail. This is a significant aggravating factor.

13. The punishment given to the contemnor by the Court should therefore be one which will send a clear message to the foreigners doing business in Papua New Guinea that they are in a privileged position and if they break the laws of the country, consequences can be severe, which may include imprisonment or even deportation.

14. Mr. Meten submitted that a fine from K500.00 up to K1000.00 would be a fair punishment for the contemnor. I consider that the case calls for a more serious punishment, and I consider that a fine in the amount recommended by Mr Meten would be too lenient.

15. Given the circumstances of the case, I consider that the contemnor should be sentenced to one year imprisonment. However, given his past unblemished record and considering that he provides employment to many Papua New Guineans which in my view constitutes a special consideration, coupled with his plea of guilty and the genuine expression of remorse, I think the contemnor should be placed on a good behaviour bond with strict conditions. I will therefore suspend his one year imprisonment with following strict conditions:

(i) The contemnor is to be on good behavior bond for 2 years from today.

(ii) The contemnor will pay K6,000.00 fine.

16. For his fine, the contemnor's K1,000.00 cash bail is forfeited to the State. As to the remaining K5,000.00, I order that the contemnor pay this amount before 4.00 pm today at the Madang National Court Registry. The contemnor is to produce the receipt for the payment of K5,000.00 to my Associate before 4.06pm today.

17. In the event that the contemnor fails to pay the K5,000.00 fine, by 4.06pm today and or fails to produce the receipt for such payment by 4.06pm to my Associate, a Warrant of Arrest will be issued forthwith for his arrest. He will be detained in custody to be brought before the Court as soon as possible to be dealt with accordingly to law. This may mean ordering him to be imprisoned to serve the suspended one year term of imprisonment.
_____________________________________________________
Public Solicitor: Lawyer for the State
Meten Lawyers: Lawyer for the Accused