State v Yuhui [2015] PGNC 184; N6093 (11 September 2015)

N6093

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (CF) .NO.131 OF 2014

THE STATE

V

ZHENG YUHUI

Kokopo: Lenalia, J.
2015: 27th, 28th, 29th July, 8th & 11th September

CRIMINAL LAW – Particular offence – Fraudulent appropriation of power – diversion or abstraction of electricity to minimize electrical charges charged by PNG Power Limited – Plea of not guilty – Criminal Code s.382.

CRIMINAL LAW – Electricity offences – Sources and distribution of electricity to the use of other persons – Trial – Evidence on trial

CRIMINAL LAW – Participation in offences – Evidence ought to establish the part played by an accused in participation of a crime such as actual commission of an offence or made any omission constituting the offence.

Cases cited.
Papua New Guinea Cases

Awap Omowo & Warsa Yirihim v State [1976] PNGLR 188
Imiyo Wamela v The Sate [1982] PNGLR 269
Paulus Pawa v The State [1981] PNGLR 498
Porewa Wani v State [1979] PNGLR 593
R v Wendo [1963] PNGLR 217
R v Sapulo Masuve (1973) N732
State v John Badi Woli & Pengas Rakam [1978] PNGLR 51
State v Anthony Sim [1980] PNGLR 424
State v Thomas Paipu [1982] PNGLR 402
SCR No.2 of 1080, Re Section 22 of the Police Offences Act [1981] PNGLR 28
The State v Tom Morris [1981] PNGLR 493
The State v Nelson Tuli [1997] PNGLR.305
The State v John Wanjil & 3 Ors. [1997] PNGLR 64

Overseas cases referred to.

Plomp v The Queen (1963) 100 C. L. R. 234
Peacock v The King [1911] HCA 66; (1911) 13 C. L. R. 619
Thomas v The Queen [1960] HCA 2; (1960) 102 C. L. R. 584
Woolmington v DPP [1935] AC 462

Counsel

Mr. L. Rangan, for the State
Mr. P. Yange, for the Accused

11th September, 2015

1. LENALIA, J: The accused on this case, pleaded not guilty to one count of fraudulent appropriation of power from PNG Power Limited through a meter box into the general manager's office of the Zero Supper Market shop in the town of Rabaul, thereby contrary to s.382 of the Criminal Code. The offence was allegedly committed in Rabaul town, E.N.B. Province between 10th August and 25th November 2013.

Prosecution Evidence.

2. The State's evidence came from four witnesses all from PNG Power Limited. All witnesses are licensed electricians and one of them Mr. Joseph Basse is an Electrical Consultant conducting his own private consultancy business. He is a former employee of PNG Power for a long time and has resigned and currently doing his consultancy business. Prior to calling the witnesses, the following documents were tendered with consent by the defence counsel:

✓ Ex. "1" statement of Nicholas Maela, Fraud Investigator,
✓ Ex. "2" statement by Noah Awagi, same officer as above, corroborator,
✓ Ex. "3" record on interview in Pidgin,
✓ Ex. "3A" English translation,
✓ Ex. "4" a sketch map by PNG Power Ltd,
✓ Ex. "5(a)" – "5(j) a group of photos of meter boxes and switches.

3. On the evidence tendered by consent, Senior Constable Maela and his colleague Senior Constable Noah Awagi conducted the record of interview with the defendant on 21st January 2014. The former was the interviewing officer while his colleague was his corroborator. The defendant was formally cautioned and he chose to speak in Pidgin during the record of interview. According to these two policemen, no threats, violence, intimidation or force was used toward the accused and he spoke in answer to questions put to him at his own will.

4. Four (4) witnesses were called. The first witness Johnson Ismael is a licensed electrician and a PNG Power Inspector an employee of Papua New Guinea Power Limited (PNG. Power Ltd). He is currently an Assistant Installation Inspector based in Kokopo in this Province. In case of Mr. Nera Novulu (second witness), his evidence is similar to that of Johnson. He is the Senior Installation Inspector with the company. Their evidence show that, these two witnesses and a Linesman also from PNG Power Ltd travelled from Kokopo to Rabaul on 25th November 2013 to investigate complaints made by PNG Power Ltd meter readers. This was the complain about meter readings in the meter box of Zero Supermarket shop recording very low reading of electricity into the shop.

5. The complaint related to the shop Zero Trading Super Market shop in the town of Rabaul. The complaint was that the monthly meter readings for the above shop had fallen far below the average reading for business houses the size of Zero Trading. This raised eyebrows of PNG Power Ltd meter readers who suspected illegal by-pass.

6. On their arrival in Rabaul, they stopped outside near the PNG Power Ltd power pole and Johnson assisted Mr. Novulu in checking the service supply using an Amp Meter to read the flow of electricity from PNG Power meter to the Zero Trading Super Market shop. The first test was outside on the power pole. The reading read and taken outside was as follows:

A phase was = 39 Amps

B phase was = 43 Amps, and

C phase was = 54 Amps.

7. After taking the load reading from outside, they proceeded into the Zero Trading shop to compare the meter reading taken from outside, they checked the meter readings within the building. The reading in the company meter within the building showed the following readings:

A phase reading was = 0.07 Amps

B phase read = 0.16 Amps, and

C phase was = 38.83 Amps.

8. The witnesses said, after this the team leader spoke to the officers who were with him and they knew that, there might be something wrong somewhere and they decided to do a second check. So they checked the loading on the main switchboard and they found out that the cable layout could not allow them to do the load test. They returned to do the third load check on what the witnesses referred to as kWh meter, they found out that the kWh meter was then registering electrical load consumption and the reading showed as:

A phase was = 39.18 Amps,

B phase read = 32.98 Amps and

C phase was = 38.83 Amps.

9. Having completed the third check, the team suspected that within the building, there were illegal connections or by-pass of electricity into other sources. They checked the mains in the cable from the entry point and from inside and on the ceiling of the shop and they found out a junction box in the walls of the shop. Such findings confirmed their suspicion that there was illegal bypass of electricity somewhere in the building. They further trace the wirings on the ceiling of the building and found out that there was a layout connected into the Manager's office.

10. On the 26th November 2013, another team of PNG Power Ltd went to Zero Trading shop and removed the walls in the manager's office and found out that, there was illegal bypass connections of 2 phases behind the wall. This confirmed their suspicion that there were actual illegal connections and the consultant was called to further investigate the illegal by-pass.

11. The next witness was, Mr. Joseph Songae Basse. He hails from Bogia District, in Madang Province. He is currently an Electrical Consultant in private practice. He worked with what used to be the Electricity Commission (now PNG Power Ltd) since 1976. He graduated from the Lae University of Technology in 1975 with a bachelor of electrical engineering. He worked with PNG Power in PNG and has worked in Australia as well.

12. This witnesses' evidence relates to what happened on 26th November when PNG Power employees accompanied him to Rabaul. On the date, after arriving in Rabaul, Zero Supermarket premises they entered the shop, they then removed the wall of the manager's office and they found out that the illegal bypass was professionally connected. This witness stressed the point that, there may be many more cases of illegal connections of power from PNG Power Ltd sources by many people and business houses in this Province.

13. He said, after the main cable connection of electricity to the meter box was inspected by removing the wall covering the cable, the illegal meter by-pass was identified. This witness said, his team took photos of the illegal by-pass switch. According to this witness opinion, monthly calculated consumption of electricity by the Zero Trading Ltd would consistently record the average of 12,000 kWh electricity current in the period of one month. Checking that against Zero Supper Market records at the time the investigation was conducted, the consumption rate was far below the average of 3-4,000 kWh.

14. The next witness was Murray Kaia. He used to be a policeman but resigned and he is currently an Investigator with PNG Power Ltd. His evidence confirms all evidence above that, the PNG Power Ltd employees found out that there was illegal by-pass of electricity and he went to the scene to inspect and talk to the manager. According to this witness, the shop owner was not around as he was overseas somewhere in China.

15. So Mr. Kaia invited the defendant who was introduced to this witness as the manager. He spoke to him and he was questioned about the illegal connections and the defendant replied in Pidgin that, he never knew if there were any illegal connections connected within the building.

Defence Evidence.

16. The accused alone gave evidence. His evidence is that on the dates the investigations were carried out the shop owner was not around. The defendant said in his evidence that he came into Papua New Guinea in 2011, to look for employment. He worked with the BSB Trading in Boroko, Port Moresby. In July 2012, he came to Rabaul because, the manger of Zero Super Market had asked him to come so he could be a Supervisor of his shop. His evidence shows that he started to work as one of the three or so managers in August 2013.

17. The general manger Alwin Lin who is the shop owner and apart from him two other mangers one responsible for the staff and the other for the super market while he (defendant) was responsible for the whole sale and retail section of the shop. He said, his office was situated at the back of the shop. Henry Lin is responsible for the other section of the super market.

18. In cross-examination, the accused was asked if it was true that he was using the manager's office since, the general manger Alwin Lin was away. The accused answered that, at that time, the shop owner was out in town. He was asked why did he lie to police when he put up the name Lin as his name. The witness said, he was under pressure and he gave such name. He was asked if he is related to Mr. Alwin Lin. He said, he does not have any special relationship with him but they came from the same Province of Fugen, Fujo in China.

19. The witness was asked if he knew about the illegal connections which were on the walls of the manager's office. He said, he only occasionally used the office for counting the day's takings and preparing of Zero Trading Ltd staff salaries and used the office to store flex cards. He said, he never knew about the illegal connections. He was asked about when he was promoted to the position of manager. He replied that it was in October 2013.

20. He was asked if it was true he opened the office of the manager on 25th and 26th November for the PNG Power Limited team which conducted the inspection. He said, he opened the office in absence of the general manger because he had a spare key to that office.

21. The court asked a question about Alwin Lin as to where he was during the investigations and inspections that were carried out on the dates revealed by the State's evidence. The accused said, Mr. Alwin Lin was around in town but he never made himself available for the investigating teams.

Counsels Addresses on Verdict.

22. On 8th of this month, counsels addressed the Court on verdict. Mr. Yange counsel appearing for the accused spoke to his 14 page written submission. Counsel's submission is that since the State invoked s.7 (1) (b) of the Criminal Code, the prosecution ought to establish that, the accused "aided" and "abetted" another person or persons to commit the crime of fraudulent appropriation of power to the use of the company he was working for at the time he was charged.

23. Counsel argued that s.7 (1) (b) is in the active and present form and it is thus essential for the prosecution to prove beyond reasonable doubt that his client actually omitted to do an act or aided another person to commit the offence. Counsel cited cases such as SCR No.2 of 1080, Re Section 22 of the Police Offences Act [1981] PNGLR 28 and the common law case of Woolmington v DPP [1935] AC 462 for the principle and proposition that, the prosecution bears the burden of proof beyond reasonable doubt that the defendant is criminally responsible for the offence charged.

24. For the State, Mr. Rangan also spoke to his three pages written submission. Counsel submitted that, the accused should be found guilty of fraudulently diverting to the use of Zero Supermarket power derived from PNG Power source electricity power by the use of an illegal by-pass which was connected to the building and into the Manager's office.

25. Counsel argued that fraudulent diversion had been in existence from 2001 until the PNG Power Ltd employees found out in 2013, that, Zero Supermarket building was giving low consumption reading of electricity. Counsel submitted that, the prosecution case is not that the accused physically involved in the illegal connection but since the accused began his employment with Zero Supermarket at the end July 2012, until 25th November 2013, he was then the manager of the wholesale division, he had knowledge of the illegal connection.

26. Mr. Rangan submitted further that, the prosecution relies on the circumstantial evidence of witnesses who were called and evidence that contained in the documents tendered. Counsel cited case of State v Thomas Paipu [1982] PNGLR 402 a similar case as the one on the instant trial where the definition of "diversion" was discussed. He also referred to the case of State v Anthony Sim [1980] PNGLR 424. Counsel submitted that there is sufficient circumstantial evidence upon which the court should return a verdict of guilty against the accused.
Application of Law.

27. Sections 7 and 8 of the Criminal Code have been discussed in many cases in both the National Court and Supreme Courts on the issues of principal offenders and accomplices. The accused is charged for one count of fraudulent appropriation of power from PNG Power Limited pursuant to s.382 of the Criminal Code. The State invoked s.7 (1) (b) of the Code. The section charged reads:

"Fraudulent appropriation of power.

A person who fraudulently abstracts or diverts to his own use or to the use of any other person any mechanical, illuminating or electrical power derived from any machine, apparatus or substance that is the property of another person is guilty of a crime.

Penalty: Imprisonment for a term of not exceeding three years."

28. Where a number of people were involved in planning, procuring or counseling each other to commit a crime, the part played by those involved is defined by s.7(1) – (4) of the Criminal Code. That section states:

"7. Principal offenders.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it –

• (a) every person who actually does the act or makes the omission that constitutes the offence; and
  
• (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and
  
• (c) every person who aids another person in committing the offence; and
  
• (d) any person who counsels or procures any other person to commit the offence.
  

(2) In Subsection (1) (d), the person may be charged with –

• (a) committing the offence; or
  
• (b) counseling or procuring its commission.
  

(3) A conviction of counseling or procuring the commission of an offence entails the same consequences in all aspects as conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is–

• (a) guilty of an offence of the same kind; and
  
• (b) liable to the same punishment,
  

as if he had done the act or made the omission, and may be charged with (Emphasis added) himself doing the act or making the omission."

29. I will also quote s.8 of the Code for the proposition and principles that have been stated that, where a group of persons form a common intention to commit an offence, liability under s.8 attaches to all those who formed the intention to take part in the commission of the crime committed: R v Wendo [1963] PNGLR 217 at 241 and see also Goya v The State [1987] PNGLR 51. Section 8 states:

"8. Offence committed in prosecution of common purpose.

Where –

(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,

each of them shall be deemed to have committed the offence."

30. A number of issues are involved on the instant trial. There is no dispute about the illegal by-pass found in the manager's office. There is no dispute about inspections conducted by PNG Power Ltd employees on the above dates. The first issue is, can the accused be caught under s.7 (1) (b) of the Criminal Code.

31. In order for the prosecution to secure a conviction under s.7 (1) (b), it ought to be proved beyond reasonable doubt that the accused omitted to do an act for purposes of "enabling or aiding" other person or persons to commit the offence charged.

32. Likewise, if the accused was suspected of aiding or procuring another person in terms of s.7 (1) (c) or (d), the prosecution evidence must establish the name or names of those accomplices who aided or procured the commission of the offence with the accused: Awap Omowo & Warsa Yirihim v State [1976] PNGLR 188, see State v John Badi Woli & Pengas Rakam [1978] PNGLR 51 for the principle of intension to commit a crime, see also Porewa Wani v State [1979] PNGLR 593.

33. This was not the case where the accused was present at the crime scene when the crime was being committed. According to the prosecution evidence, the defendant was called upon by a staff member to open the manager's office so PNG Power engineers could enter into the office to inspect the box that was attactched to the office of the manager.

34. The second issue is, was the accused the manager of the shop at the time the offence was committed? The prosecution version of the situation was that, the accused was the manager at the time illegal by-pass was found out. The defendant's evidence shows that the office which he opened for inspection was the general manager's office. He also said in his evidence that he was the manager for the other section, the whole sale which is at the back of the main shop.

35. In question 5 of the record of interview, the question was put to the accused why police went to the manager's office of the Zero Trading Supper Market shop in Rabaul. The accused answered that, he did not know anything about the illegal connections because he was only a new manager since July 2013. No other questions were put to the accused as to how many managers work in the shop or was there a general manager at the time the premises was being inspected.

36. The defence evidence established that one Alwin Lin, the shop owner was around in town on the dates the inspections were conducted on the Zero Supper Market shop. No questions were put to the accused if the office he opened was the one he was using or was it used by another officer. On the same token, no questions were asked as to who was the general manager of the shop.

37. On the instant trial the court finds that, this was not the case where the offence was committed on the date the accused was seen in the manager's office. This was the case where fraudulent appropriation of power was being installed when the accused was found on the morning of the two dates he was invited to the manager's office.

38. Fraudulent abstraction and diversion of power had already been effected in the court's view to minimize the reading of power or electricity which flowed into the meter box in order to minimize amounts of money for power bills paid by the company Zero Trading Ltd. If it is not proved that, there were other plans or preconcerted plans to which other persons or parties were involved, then s.7 (1) (a) – (d) of the Criminal Code in my humble view would not apply: R v Sapulo Masuve (1973) N732.

39. In order to secure a conviction under s.7 of the Code, for participating in a crime, it must be proved that, the accused actually did the act or had committed an omission that constitutes the crime charged or that, the accused omitted to do any act for the purpose of enabling or aiding another person to commit the offence.

40. It ought to be also proved that, the accused did actually aided or that he counseled, procured another person to commit the offence. There is also no evidence to show if another persons or a person had counseled or procured the accused to commit the crime charged.

41. It is established law that, it is not sufficient for the prosecution to show that an accused knew that an illegal activity was intended. They must prove that the accused on this trial knew that there was illegal connection installed in the manager's office and with such knowledge he committed or did something to aid the offenders who committed it: Imiyo Wamela v The Sate [1982] PNGLR 269. Mere presence on the scene of the crime or as in the instant trial, the accused's presence in the office of the manager in my view does not fall under s.7 or s.8 of the Criminal Code.

42. There is no issue about the fraudulent appropriation of power. There was in fact evidence of the illegal bypass found by the witness to have been professionally done and it was connected to the manager's office. On the 26th November 2013, the investigating team from PNG Power Ltd went to Zero Trading and removed the walls in the manager's office and found out that, there was an illegal bypass connection of 2 phases behind the wall to the manager's office and the matter was reported to police.

Findings.

43. Having gone through all the evidence on the current trial, the court makes the following findings. First, this is a criminal trial and the standard of proof is very high, being "proof beyond reasonable doubt". Secondly, there is no evidence to show that the accused physically carried out any installations of the illegal by-pass into the office of the manager. Thirdly, there is also no evidence to establish that the accused omitted to do any act for purposes of aiding or enabling another person to commit the crime charged.

44. If there were evidence of counseling and procurement, it must be proved beyond doubt by the prosecution. Who did the accused counseled or procured and vice versa is the issue on this trial. If the accused assisted the managers Alwin Lin or Henry Lin or that the Lins had counseled or procured the accused to install the by-passes into the manager's office is not clear from the prosecution evidence.

45. Therefore, there is no such evidence to show if the accused counseled or procured or that he was procured or counselled by Alwin Lin or Henry Lin or any other persons to commit the offence in terms of s.7 (1) (a) – (d) of the Criminal Code. This court is not satisfied with the prosecution evidence that, the accused was the General Manger of the Zero Super Market at the time the offence was committed.

46. The State heavily relied on circumstantial evidence because, the general manger and the other manger were not in office, the accused was called up to open the door to the manager's office. Of course the accused was one of the managers at the time the PNG Power Ltd By the principle in The State v Tom Morris [1981] PNGLR 493 at 495 where a case against an accused rests substantially on circumstantial evidence the court cannot return a guilty verdict unless the circumstances are "such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused".

47. It is often stated that to enable the court to be satisfied beyond reasonable doubt of the guilt of an accused person, it is necessary not only that the guilt of the accused should be a rational inference, but that it should be "the only rational inference that the circumstances would enable" the court to draw, (see cases of Peacock v The King [1911] HCA 66; (1911) 13 C. L. R. 619, Plomp v The Queen (1963) 100 C. L. R. 234 and Thomas v The Queen [1960] HCA 2; (1960) 102 C. L. R. 584, Paulus Pawa v The State [1981] PNGLR 498 and The State v Nelson Tuli [1997] PNGLR.305, The State v John Wanjil & 3 Ors. [1997] PNGLR 64 and many more cases after the ones cited to date.

48. On the issue of credibility as to whose evidence should the court give weight to, by the evidence presented to the court on this trial, in order to find the accused guilty on the charge the inference the court must draw ought to be the only rational inference that the circumstances of the evidence would enable the court to draw

49. Having said that, the guilt of the accused is not the only inference that the Court can draw. For the forgoing reasons, I find the accused not guilty of this crime. The case is dismissed and the defendant shall be discharged. His bail money shall be refunded to him. His Passport shall now be released to him from the National Court Registry Office here in Kokopo. Court orders accordingly.

50. What I say on the next last four (4) paragraphs is an obiter dictum. I raise this concern on the issue of fraudulent appropriation of power under the provision which this accused on the instant case has been charged and had been found not guilty on. So far this year, the current case is the second case of fraudulent appropriation of power from PNG Power Limited installations through meter boxes into other sources and like in the earlier case of The State v July Enos (31.7.2014) Cr.No.93 of 2014.

51. There was evidence from the State that the Zero Supper Market shop is owned and run by well-known business man in town. The State evidence reveals the name of the owner of that shop. The question I raise here is police investigating criminal offences must be extra cautious in dealing with crimes like this because, there are businessmen in towns of this nation who take the privileges of running their businesses by fraud and abuse PNG business legislations and they think they can easily can get away with it because they take advantage of Papua New Guineans.

52. The General Manager's name was specifically referred to by witnesses and the documents tendered as evidence and yet the man was not brought to court. The fact that, the company paid so much money for certain deficits in amounts of money for power bills to that shop was a different matter.

53. First it was evidence of the illegal connection by the company administration and secondly, it is a criminal conduct which in my humble view borders on criminal prosecution. Any reasonable thinking person would have thought that, the general manager and the other manger referred to as Henry Lin could have been indicted for this crime but it happened the other way around.

54. There was evidence by PNG Power Ltd consultant that, the company concerned had paid up a large sum of money just for the year 2012 or 2013. In the court's view this was clear admission of illegal by-pass of electricity into the manager's office. The issue is why not charge the General Manager of the company?

________________________________________________________________
The Public Prosecutor: Lawyer for the State
Islands Legal Services: Lawyer for the Accused