N7250

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 16 OF 2018

                           LIN HUA

  V

       STATE

Kimbe: Miviri AJ
                                                    2018: 10, 11  May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Bail variation s.20 Bail Act – application for work permit – applicants passport be released to him – work permit issued – no utility to release his passport – work permit renewed – application refused.
Facts
Applicant in support of application to renew work permit wanted his passport with Assistant Registrar of court to be released to him for one month.

Held
Application not made out
Variation denied
Application refused.

Cases:
Mugridge v Minister for Labour & Employment, Iangalio [1987] PNGLR 
The State v Curran [1994] PGNC 54; N1259 (6 July 1994); 
The State v Premdas [1979] PNGLR 329 (1 September 1979) 

Counsel:

L. Jack, for the State
F. Kua, for the Defendant
		
RULING
11th May, 2018

1.	MIVIRI AJ: This is the ruling on an application for variation of bail made by the Applicant pursuant to Section 20 of the Bail Act.

2.	Section 20 of the Bail Act allows as is the case here for a person to seek variation of the original orders granted of bail, provided notice is given to the other side of that fact. That has been done here by the applicant now moving. 

STATE POSITION

3.	The State is opposing the application. Arguing that if indeed the application is genuine it would only need the bio data not the whole passport. Further the purpose has been served that renewal of the work permit has been made evidenced as annexure “B” of the affidavit of the applicant.

Court’s Jurisdiction

4.	It is this court that granted him bail and therefore it is this court that has jurisdiction to vary its own orders. But that can only be done upon proper material in support to sway the exercise of discretion in law under section 20 of the Bail Act.

5.	The reason for the application to vary is that Applicant is seeking leave to have his passport currently with the Assistant Registrar of the court be given to him so that he can use it to renew his PNG General Work permit for a period of one month expiring 31st June 2018. Time and duration to have the possession of the passport is not compatible with ordinary business of such. A day or two would be sufficient or even better the Department of Labour and Industrial Relations be referred to the court order set out for his bail of that fact. There is really no need to have physical possession of the passport.

Affidavit Lin Hua

6.	In support he has filed his own affidavit dated the 8th May 2018, sworn 7th May 2018 that on the 2nd May 2015 he was issued by the department of Labour and Employment a foreign work permit which expired on the 3rd May 2018. And he attaches that document as annexure “A” of his affidavit. It is clear this document annexure “A” has expired the dates issued from 02nd May 2015 to 03rd May 2018.

7.	At paragraph 3 of the affidavit he swears that he has renewed his work permit however, it is a condition by the Department of labour and Industrial relations that his passport should be submitted together to include his work permit particulars in his passport. And he attaches that document as annexure “B” of his affidavit. There is no material to this effect of the requirement of the condition by the Department of Labour and Industrial Relations before me.

8.	In any case annexure “B” of his affidavit is self- explained it is the work permit renewed and given to him by the Department of Labour and Industrial Relations. Reading that document it is self -explained the issued date is 3rd May 2018 and the permit expires 04th May 2021. He therefore has a valid work permit. He has complied with the requirement of law. There is no need for the passport to be released. In my view that would have been done in the process of the application for renewal. Here renewal has been done. There is no utility in the application before me, Mugridge v Minister for Labour & Employment, Iangalio [1987] PNGLR 348 reads proper entry papers will allow entry of foreign national and that is the case here. There is neither need nor utility in the application sought.

9.	He has no letter or correspondence from Department of Labour and Industrial Relations to this effect who are the government department issuing this instruction but there is no evidence before me from that department that that is the case now against the applicant. In any case if it was a genuine need by that office they would be in contact with the Assistant Registrar of the court here. They would act pursuant to what would be relayed to them by the applicant. Their duties are in relation to work permits and passports would be in the prerogative of the office of the Chief Migration Officer: Curran v The State [1994] PGNC 54; N1259; Premdas v The State [1979] PNGLR 329.

10.	And here also there is no evidence before me in support that that is the case. That it is this office who wants the passport for purposes in law related to their duties. Because the purpose of a work permit is different from a passport which is primarily for travel in and out of the country. In the case of the applicant it will facilitate his travel in and out of the country. Because he is a Chinese national who has been charged with fraudulent diversion of Electricity under section 382 of the Criminal Code which is a very serious allegation which he was committed to stand trial on the 13th December 2017 and is currently pending before this court.

11.	His affidavit is self-serving and without any other material to support what he seeks. It would be a lot more credible to have the relevant government offices respectively verify what he is contending here, in particular the Department of Labour and Industrial Relations or even better office of the Chief Migration Officer. The court is not convinced on the material that variation be allowed balancing with the fact that he needs the passport to be with him for one month to be returned on the 31st June 2018. Orders of court are varied on proper material not without because they are issued pursuant to law in this case the Bail Act. And section 20 of that Act is law and must be accorded discretion there in accordance with. The court is not convinced on the material that discretion should be exercised in favour of the application.

12.	 The applicant has not shown by proper material any basis to vary the initial orders of this court as to possession and keep of his passport in the possession and custody of the assistant registrar of this court. Accordingly the application is refused. The orders originally made in respect of the Passport remain confirmed. The verification sought pursuant to section 20 of the Bail Act is refused.

13.	Application is refused.
	
Orders accordingly,
________________________________________________________
Public Prosecutor:  Lawyer for the State	
F.Kua Lawyers   : Lawyer for the Defendant