Madang Development Corporation Ltd v Rabtrad Madang Ltd [2017] PGNC 171; N6784 (13 June 2017)

N6784

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 225 of 2006

BETWEEN
MADANG DEVELOPMENT
CORPORATION LIMITED
Plaintiff/Cross Defendant

AND
RABTRAD MADANG LIMITED
First Defendant

AND
RABTRAD NIUGINI LIMITED
Second Defendant

AND
G. LITZ & COMPANY LIMITED
Third Defendant/First Cross Claimant

AND
ANDERSONS FOODLAND LIMITED
Second Cross Claimant

Waigani: Hartshorn, J.
2016:24^th June & 6^thJuly
2017: 13^thJune

CONTEMPT - Application for Discharge – Order 14 Rule 50 National Court Rules

Cases Cited:
Papua New Guinea Cases

Nil
Overseas Cases

Australian Competition and Consumer Commission v. Chaste Corporation Pty Ltd (No.7) [2015] FCA 1103
CJ v. Flintshire Borough Council [2010] EWCA Civ 393
Johnson v. Grant [1923] SC 789
Swindon Borough Council v. Webb [2016] EWCA Civ 152

Counsel:

Mr. S. Ketan, for the Contemnor/Applicant
Mr. T. Jugari, for the Plaintiff

13^th June, 2017

1. HARTSHORN, J: This is a decision on an application for discharge from prison before the end of the term of imprisonment to which the applicant was sentenced.
   
2. I delivered an ex tempore decision, refusing the application, on 6^th July 2016 and said that I would give a written decision. This is that decision.
   
3. The applicant is Mr. Emanuel Mai. Mr. Mai was sentenced to a term of nine months’ imprisonment on 13^th July 2013 after having been found guilty of contempt of court. Mr. Mai had pleaded guilty to the charge. The contempt was that Mr. Mai, a lawyer, failed to pay the sum of K 700,000.00 which was held in his Trust Account, to the Trust Account of Henao’s Lawyers within three days, as ordered by this court. Mr. Mai admitted that he had used the said funds for other purposes.
   
4. Counsel for the plaintiff did not oppose this application.
   
5. Mr. Mai appealed the penalty imposed by this court. The Supreme Court dismissed the appeal on 20^th May 2016 and Mr. Mai began serving the term of imprisonment of nine months as imposed by this court. Mr. Mai was on bail until the Supreme Court delivered its decision.
   
6. Mr. Mai applies for a discharge pursuant to Order 14 Rule 50 National Court Rules which is as follows:
   

“Where a contemnor is committed to prison for a term, the Court may order his discharge before the expiry of the term.”

7. I am satisfied therefore that this court does have the jurisdiction by virtue of this Rule, to order a discharge as sought.

8. Mr. Mai applies for a discharge on the grounds that he has purged his contempt by paying the amount originally ordered by this court and the plaintiff, Madang Development Corporation, does not oppose this application for discharge; he is contrite, remorseful and apologises for his actions; the punishment that he has already suffered is enough, and vindicates this court’s authority; and that there are new factors that were not before the court when it imposed sentence, that warrant his discharge. These factors are amongst others, his worsening health, loss of employment and large legal expenses.

9. In considering the exercise of this court’s discretion under Order 14 Rule 50 National Court Rules, as there do not appear to be any reported decisions in this jurisdiction on this Rule, I have had recourse to the persuasive decision of Logan J. in Australian Competition and Consumer Commission v. Chaste Corporation Pty Ltd (No.7) [2015] FCA 1103, relied upon by counsel for Mr. Mai and the persuasive England and Wales Court of Appeal decisions of CJ v. Flintshire Borough Council [2010] EWCA Civ 393 and Swindon Borough Council v. Webb [2016] EWCA Civ 152. These decisions are concerned with applications for early discharge from terms of imprisonment that were imposed as punishment for contempt.

10. The Courts in ACCC v. Chaste (supra) and Swindon v. Webb (supra) reproduced a list of questions that Wilson LJ in CJ v. Flintshire (supra) considered required determination in an application for early discharge. At [21] Wilson LJ said:

“21. With the advantage of more time for reflection than was vouchsafed to the judge, I consider that, had I been hearing the appellant’s application for early discharge, I might have asked myself eight, somewhat overlapping, questions. In case they prove to be of any value to other judges confronted with applications for early discharge in similar circumstances, I set them out as follows:

(i) Can the court conclude, in all the circumstances as they now are, that the contemnor has suffered punishment proportionate to his contempt?

(ii) Would the interest of the State in upholding the rule of law be significantly prejudiced by early discharge?

(iii) How genuine is the contemnor’s expression of contrition?

(iv) Has he done all that he reasonably can to demonstrate a resolve and an ability not to commit a further breach if discharged early?

(v) In particular has he done all that he reasonably can (bearing in mind the difficulties of his so doing while in prison) in order to construct for himself proposed living and other practical arrangements in the event of early discharge in such a way as to minimise the risk of his committing a further breach?

(vi) Does he make any specific proposal to augment the protection against any further breach of those whom the order which he breached was designed to protect?

(vii) What is the length of time which he has served in prison, including its relation to (a) the full term imposed upon him and (b) the term which he will otherwise be required to serve prior to release pursuant to s. 258(2) of the Criminal Justice Act 2003?

(viii) Are there any special factors which impinge upon the exercise of the discretion in one way or the other?

22. I am clear that the success of an application for an order for early discharge does not depend on favourable answers to all the questions. Nevertheless the first is a general question which, as May LJ suggested, probably needs an affirmative answer before early discharge should be ordered. The second will surely require a negative answer. An affirmative answer to the third will usually .... be necessary but may not be sufficient. As Lord Clyde, the Lord President, said in the Scottish Court of Session in Johnson v. Grant [1923] SC 789, at 791:

“The mere circumstance that he presents a belated expression of contrition has, with regard to the public aspect of the matter, almost no importance at all. There is ample opportunity.....for repentance before sentence is pronounced. The appeal is simply to the clemency of the court.... and the idea must not be harboured that a person who has wilfully committed a breach of interdict can obtain remission of sentence by coming to the court and saying, “I realise my transgression and apologise for it” - however sincerely such an apology may be made.”

I suggest that, subject to what I said above, answers to the questions go into the melting pot; and out of it, once they have melted together, comes the conclusion.”

11. I am of the view that the questions of Wilson LJ and his observations about the answers to them are apposite and relevant to our circumstances. I respectfully consider them in determining the exercise of the court’s discretion in this instance.

12. As to whether Mr. Mai has suffered punishment proportionate to his contempt, at the time of this application he had been imprisoned for a total of 38 days. This court determined that nine months imprisonment was the appropriate sentence. When it is considered that the Supreme Court dismissed Mr. Mai’s appeal against his sentence, I am of the view that Mr. Mai has not suffered punishment proportionate to the contempt.

13. As to whether the interest of the State in upholding the rule of law would be significantly prejudiced by Mr. Mai’s early discharge, this involves notions of, amongst others, equality before and respect for the law, and that orders of a nation’s courts are properly determined, obeyed and complied with. In circumstances where this court’s decision, bolstered by a dismissal of an appeal against it by the Supreme Court, is that Mr. Mai’s contempt warranted a sentence of nine months’ imprisonment for non-compliance with a court order, the interest of the State in upholding the rule of law would, to my mind, be significantly prejudiced if Mr. Mai were to serve only about one seventh or 0.14 of the sentence imposed.

14. As to how genuine is the expression of contrition of Mr. Mai, it is acknowledged that Mr. Mai has apologised and stated that he regrets what he did. I am mindful however of the following comments of Lord Clyde in Johnson v. Grant (supra) which bear repetition:

“...... the idea must not be harboured that a person who has wilfully committed a breach of interdict can obtain remission of sentence by coming to court and saying, “I realise my transgression and apologise for it” - however sincerely such an apology may be made.”

I am not satisfied with respect, that Mr. Mai’s expression of contrition is genuine.

15. Questions (iv), (v) and (vi) are not relevant for this case, and question (vii) has been answered.

16. I take into account that Mr. Mai has, at the time of the hearing of this application, and only then, fully paid the amount that was ordered to be paid by him. However, in my view, an application for discharge should not be granted primarily because an applicant has, “purged his contempt.” This is because it must be remembered that, as in this instance, the applicant, Mr. Mai, not only failed to pay the amount ordered, he also breached a court order. This is a serious matter on its own.

17. As to the evidence concerning Mr Mai’s medical condition, I note that similar evidence was before the Supreme Court. I am not satisfied that Mr. Mai’s medical condition is such that it warrants his immediate release or that the factors raised therein warrant his discharge. I am also not satisfied that there are any special factors which are such that they impinge upon the exercise of this court’s discretion one way or the other.

18. Consequently, given the above, the application for discharge is refused.

_________________________________________________________

Ketan Lawyers: Lawyers for the Contemnor/Applicant

Haiara Lawyers: Lawyers for the Plaintiff