State v Mulungu [2018] PGNC 595; N8097 (16 June 2018)

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CRIMINAL LAW - Misappropriation under section 383A (1)(a) (2)(d) of the Criminal Code Act chapter 262 – guilty after a trial.

CRIMINAL LAW – EVIDENCE – Tender of Statement of deceased pursuant to section 102 of the District Courts Act chapter 40 – witness deceased – statement of fact – when there is variance between the oral evidence including documentary evidence and the contents of the statement – Defence is entitled to make a no case to answer submission because of prejudicial effect on the accused’s case when no cross examination on content of statement tendered.

It is alleged that in 2010, the complainant Stanley Tigi Hangu came to Port Moresby to pursue payment of his final entitlements and he resided with the accused. On 15^th July 2010, the complainant received his POSF entitlements in the sum of K204,305.42.

It was credited to his Bank South Pacific Limited savings account number: 1000 905 844. The State alleged that the accused proposed to the complainant several plans of how he should spend his final entitlements.

The accused advised the complainant that to operate a trade store, he need to buy a utility truck to assist him to transport goods to the trade store.

So on 16^th July 2010, the complainant and the accused went to Bank South Pacific Limited Port Moresby Branch and withdraw the sum of K42,800.00 from the complainant’s savings account number: 1000 905 844 and purchased a bank cheque in the same amount made payable to the accused. The purpose of the money was to purchase a utility truck for the complainant Stanley Tigi Hangu.

The accused and the complainant went to Ela Motors at Badili and the accused told the complainant to wait outside while he went in to purchase the motor vehicle. The accused came out and informed the complainant that the motor vehicle will arrive sometime later. He assured the complainant that he will photocopy the documents and give them to him. He never produced the purchase documents to the complainant.

The motor vehicle described as a grey Toyota Hilux single cab, registration no. CAW 402 arrived sometime later and the accused registered the motor vehicle in his name without the knowledge of the complainant, took possession and full control of it.

The State also allege that when the accused registered the motor vehicle in his name without the knowledge of the complainant and took possession and control of it, the actions contravened section 383A(1)(a)(2)(d) of the Criminal Code Act chapter 262.

Between 19^th July 2010 and 20^th July 2010, the accused advised the complainant to buy another vehicle so they can start a taxi service. The complainant was convinced and so both went to the Bank South Pacific Limited Port Moresby Branch and the complainant withdrew the sum of K18,000.00 from his savings account and purchased a bank cheque for the same amount made payable to Ram Auto Dealers Limited. The accused took possession of the cheque and return to the house.

The following day both went to Ram Auto Dealers Limited to purchase a motor vehicle and the accused advised the complainant to wait outside while he went inside the office to pay for the purchase of the motor vehicle. An hour later, the accused drove out in a grey vehicle, a Toyota Camry registration number BCX 066. The accused picked up the complainant and drove home and en route to the house, the accused informed the complainant that he will photocopy the documents and deliver them to him. He never delivered the documents regarding the purchase of the Toyota Camry Registration number BCX 066.
The accused registered the vehicle in his name without the knowledge of the complainant and he took possession and full control of it.

The State further alleges that when the accused registered the motor vehicle in his name without the knowledge of the complainant and took possession and full control of it, the accused’s actions contravened section 383A(1)(a)(2)(d) of the Criminal Code Act chapter 262.

On 2^nd August 2010, sometime after purchase of the Toyota Camry, the accused asked the complainant to give him cash of K1,700.00 to register a Taxi company. He stated that the sum of K1,000.00 is to purchase a taxi meter and the sum of K700.00 is to register a Business name with Investment Promotion Authority (IPA).

The complainant was convinced so he transferred the sum of K1,700.00 from his BSP savings account to the accused’s Bank South Pacific Limited account number: 1000 964 410. The purpose was to register the Business name, Nalix Transport Services in the name of the complainant. However, the accused registered business name Nalix Transport Services under his name as the sole owner.

The State allege that the registration of Business name Nalix Transport Services in the name of the accused without the knowledge of the complainant contravened section 383A(1)(a)(2)(d) of the Criminal Code Act chapter 262.

After the registration of the Taxi services company, the accused advised the complainant to open an account with PNG Micro Finance Limited so it will be used for operating the account for the taxi service.

The accused convinced the complainant that if there is K30,000.00 in the account with PNG Micro Finance, the bank will allow them to get a loan to purchase four more vehicles for the taxi service company. All necessary documents were filed by the accused and the complainant signed on them.

The complainant withdrew the sum of K30,000.00 from his savings account with BSP and purchased a bank cheque for the same amount. The cheque for the sum of K30,000.00 was used to open an Operating Account for Nalix Transport Services with PNG Micro Finance Limited at Koki Branch.

The State alleges that the accused became a co-signatory to the account and proceeds were withdrawn and handed over to the accused. It is further alleged that the complainant did not received any benefit from the operation of the taxi service company. The vehicles were put on hire by the accused and he alone benefitted from the proceeds. The State alleges that the actions of the accused contravened section 383A(1)(a)(2)(d) of the Criminal Code Act chapter 262.

Counsel
C. Sambua & Mcphee, for the State
Ms. Langtry & A. Ayako, for the Accused

1. KOEGET J: INTRODUCTION: The accused is charged with four counts of Misappropriation pursuant to Section 383A (1)(a)(2)(d) of the Criminal Code Act, chapter 262.

2. The accused pleaded not guilty to all counts so a trial commenced to determine the allegations.

3. At the commencement of the trial, State applied to tender into evidence a statement of the accused dated 24^th January 2017 and application was made under section 102 of the District Courts Act 1963 chapter 40 which states:

“where a person has been committed for a trial or sentence for an offence all statements tendered into evidence to the magistrate constituting the court may, with the consent of the National Court, be taken without further proof as evidence on the trial, whether for that offence or for any other offence arising out of the transaction or set of circumstances as that offence on proof –

4. The basis of the application is that the complainant Stanley Tigi Hangu lodged a complaint with the Royal Papua New Guinea Constabulary and made the above statement to them. Such statement formed part of the committal depositions and the accused was committed to stand trial at the National Court on the four counts as a result.

5. He was present throughout the committal proceedings and at the National Court during the pre-trial process till the trial date was allocated. He died due to illness prior to the commencement of the trial.

6. The defence counsel did not object to the tender of the complainant’s statement dated 24^th January 2017. So by consent of the National Court, the complainant’s statement was tendered into court (as “Exhibit A”). Thus, statement of the complainant is regarded as a statement of fact.

7. If there is variance between the contents of the complainant’s statement tendered and oral evidence of State witnesses including documentary evidence, then at the end of the State’s case, defence is entitled to a no case to answer submission on the basis it will be prejudicial to the defence’s case as the complainant can not be cross examined on the content of his statement.

She is the widow of the complainant Stanley Tigi Hangu. The complainant was a retired school teacher and died on 20^th December 2017. He came to Port Moresby to get his final entitlements and she followed him three years later.

In the village in Tari, Hela Province she sold garden food at markets and earned up to K200 – K300.00 annually and these amount of money is a lot for her.

She came to Port Moresby and joined the complainant and both resided with the accused at the Sabama Police Barracks in the National Capital District.

She knew the complainant received his final entitlements and purchased two motor vehicles that were kept and driven by the accused. She did not see the complainant drive any of the vehicles.

The accused had not given her any monies from the use of the vehicles since the death of the complainant.

He was formally employed by Bank South Pacific Limited as a legal officer but resigned from employment of the bank. The State tendered through this witness following documents as he took possession of them when in the bank’s employment.

No.	Name of Document	Exhibit Number
1.	Statement of Stanley Hangu dated 24/01/17	A
2.	IPA Records	B
3.	Ela Motors records	C
4.	PMA records	D
5.	BSP Letter dated 29 March 2016	E
6.	Compliance form	F
7.	Bank statement of Tigi Hangu	G
8.	BSP deposit slip dated 19 July 2010 in the sum of K12,000	H
9.	BSP deposit slip dated 19 July 2010 in the sum of K42,800	I
10.	BSP withdrawal slip dated 19 July 2010 in the sum of K23,025	J
11.	BSP deposit slip dated 19July 2010 in the sum of K3,025	K
12.	BSP deposit slip dated 29 July 2010 in the sum of K38,000	L
13.	BSP letter dated 29 March 2016	M
14.	Bank statement of Betty Mulungu	N
15.	BSP deposit slip dated 19 July 2010 in the sum of K12,000	O
16.	Bank statement of Andrew Mulungu	P
17.	BSP deposit slip dated 19 July 2010 in the sum of K42,800	Q
18.	BSP withdrawal slip dated 19 July 2010 in the sum of K23,025	R
19.	Bank statement of Ram Auto Dealers	S
20.	BSP deposit slip dated 29 July 2010 in the sum of K38,000	T
21.	BSP Letter dated 23 November 2016	U
22.	BSP credit requisition dated 16 July 2016 in the sum of K12,000	V
23.	BSP credit requisition dated 16 July 2016 in the sum of K42,000	W
24.	BSP credit requisition dated 19 July 2016 in the sum of K18,000	X
25.	BSP credit requisition dated 19 July 2010 in the sum of K38,000	Y
26.	MVIL vehicle summary for CAW 402 dated 29/09/2010	Z
27.	MVIL vehicle summary for CAW 402 dated 12/10/2011	AA
28.	MVIL vehicle summary for CAW 402 dated 19/12/2012	BB
29.	MVIL vehicle summary for CAW 402 dated 13/05/2014	CC
30.	MVIL vehicle summary for CAW 402 dated 01/06/2015	DD
31.	MVIL vehicle summary for BCX 066 dated 20/07/2010	EE
32.	MVIL vehicle summary for BCX 066 dated 22/11/2011	FF
33.	MVIL vehicle summary for BCX 066 dated 28/11/2012	GG
34.	MVIL vehicle summary for BCX 066 dated 07/01/2014	HH
35.	MVIL vehicle summary for BCX 066 dated 10/11/2015	II
36.	Licence number 1277442	JJ
37.	IPA Certificate of Registration of Business Name	KK
38.	Memorandum of Agreement dated 4 November 2010	LL
39.	Cash receipt in the sum of K1,500	1
40.	IPA receipt number 451607 dated 4 August 2010	2

8. These documentary evidence demonstrate that the complainant withdrew cash from his savings account no. 1000 905 844 with Bank South Pacific Limited and proceeds were used to purchase motor vehicles. For instance on 16^th July 2010, the complainant withdrew the sum of K42,800.00 from his savings account with Bank South Pacific Limited and deposited it into the savings account of the accused with Bank South Pacific Limited. The accused’s Bank South Pacific Limited savings account number is 1000 964 410.

9. On 19^th July 2010 the accused withdraw the sum of K42,800.00 from his savings account number 1000 964 410 and purchased a bank cheque number 750579 for the same amount.

10. The sum of K42,800.00 was used by the accused to purchase a motor vehicle, Toyota Hilux single cab grey in colour and registration number: CAW 400. The motor vehicle was registered in the accused’s name.

11. Similarly, on 19^th July 2010, the complainant on advice of the accused withdrew the sum of K18,000.00 from his savings account number 1000 905 844 with Bank South Pacific Limited and purchased a bank cheque made payable to Ram Auto Dealers Ltd.

12. The bank cheque was used to purchase a Toyota Camry (sedan) grey in colour, registration number: BCX 066 and it was registered in the name of the accused.

13. On 2^nd August 2010, the accused requested from the complainant the sum of K1,700.00 to buy a taxi meter and pay for registration of Business Name Nalix Transport Services with Investment Promotion Authority (IPA). The Investment Promotion Authority Certificate of registration of Business name “Nalix Transport Services” dated 4^th August 2010 shows the cost was fifty Kina (K50.00) as confirmed by receipt number: 451607 of even date.

14. The taxi meter was purchased for twenty Kina (K20.00) and the balance was kept by the accused.

15. The evidence for the State in the trial are consistent with the contents of the complainant’s statement, and so there was no prejudicial effect on the accused’s case and in my view the learned defence counsel correctly refrained from making a No Case To Answer Submission at the close of State’s case.

16. The accused is a serving member of the Royal Papua New Guinea Constabulary and stationed at Badili Police Station. He resides with his family members at Sabama Police Barracks in the National Capital District.

17. He took the complainant Stanley Tigi Hangu to his residence at Sabama Police Barracks and the complainant resided with him for three years before they were told to leave his residence. He gave advice to the complainant on how to use his final entitlements and what essential materials are required to set up a trade store business and a taxi company in the National Capital District. He concedes the proceeds of cash withdrawn were used to purchase motor vehicles and these motor vehicles were registered in his name for security purposes. The registrations of the motor vehicles under his name were with the knowledge and approval of the complainant and the registration of the motor vehicles were to be transferred to the complainant’s name sometime later. That at all material times the motor vehicles belonged to the complainant even though they were registered under his name.

18. There is no dispute that the sum of K42,800.00 was withdrawn from the savings account of the complainant Stanley Tigi Hangu and proceeds of it was deposited into the savings account of the accussed.

19. The accused withdrew the sum of K42,800.00 from his savings account with Bank South Pacific Limited and used it to purchase a Toyota Hilux, single cab grey in colour, registration number: CAW 400. The purpose for which the money was given to him was fulfilled so there was no misappropriation of the sum of K42,800.00. The motor vehicle belonged to the complainant.

20. However, in my view when the sum of K42,800.00 was deposited into the savings account of the accused, the offence of misappropriation of property was committed at that instance because the ownership of the money transferred to the accused. So the accused withdrew the sum of K42,800.00 from his own savings account and purchased the motor vehicle and registered it under his name. He took possession and full control of it as he was the owner. This evidence confirms that the accused applied the sum of K42,800.00 to his own use. The registration of this motor vehicle was not transferred to the complainant’s name at all.

21. The accused’s assertion is that the motor vehicle was involved in an accident and is damaged and is a complete “right-off”. This evidence is incredible and unbelievable as there is no police accident report to confirm that the vehicle was involved in an accident and is a right-off. I do not believe that the vehicle was involved in an accident and is a complete right-off. Accordingly, I reject the accused’s assertion.

22. There is ample evidence that the accused took the sum of K18,000.00 and purchased a grey colour motor vehicle a Toyota Camry (Sedan), registration number BCX 066 and registered it in his own name. He took possession and full control of the motor vehicle. When the accused registered the motor vehicle under his name, the offence of misappropriation of K18,000.00 was committed at that instance. This evidence too confirms that the accused misappropriated the sum of K18,000.00. The registration of the motor vehicle was not transferred to the complainant’s name.

23. The documentary evidence of the application of K1,700, is clear as the registration of Business name at Investment Promotion Authority (IPA) was K50.00 and the purchase of a taxi meter was K20.00. The balance of K1,630.00 was applied by the accused to his own use.

24. There is ample evidence that the accused and complainant held a joint account with PNG Micro Finance and both signed on the withdrawal forms so both withdrew moneys from the joint account and applied it to their own use.

25. All the elements of the offence are proven beyond reasonable doubt and the following are findings of the court:

The accused applied the proceeds of K42,800.00 to his own use and so he is found guilty and is convicted of the offence of Misappropriation pursuant to section 383A (1)(a) (2)(d) of the Criminal Code Act chapter262.

The accused applied the proceeds of K18,000.00 to his own use and so he is found guilty and is convicted of the offence of Misappropriation pursuant to section 383A (1)(a) (2)(d) of the Criminal Code Act chapter 262.

The balance of K1,610.00 was applied by the accused to his own use so he is found guilty of Misappropriation under section 383A (1)(a) (2)(d) of the Criminal Code Act chapter 262. He is convicted accordingly.

The withdrawals were with knowledge and approval of the complainant as both signed on withdrawal forms. So there was no misappropriation of monies from the PNG Micro Finance account. The accused is found not guilty and acquitted accordingly.

26. The accused is convicted of misappropriation of property on counts 1, 2 and 3 but found not guilty on 4^th count. So he is acquitted on the 4^th count.

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.”

“I apologise to the widow of the complainant for the wrong I committed. I have been in the police force for 32 years and am a first time offender. I intend to repay the sum misappropriated.”

28. He is 52 years of age and is married. He has three wives and six children. His wives and children reside with him at Sabama Police Barracks as he is a policeman with a rank of a Senior Constable. He has been a policeman for 32 years and is stationed at Badili Police station.

29. The complainant had trust and confidence on the prisoner as a wantok and a policeman so sought his assistance to obtain his final entitlements from the Public Officers Superannuation Fund (“POSF”) as his contributions to the Fund during his employment with the State as a school teacher.

30. The prisoner betrayed the complainant when he applied the monies to his own personal use. The complainant died without receiving any of the monies paid to the prisoner. Such offence is prevalent in the country.

31. He is a first time offender and lived an unblemished life for 50 years prior to commission of the offence. He is willing to repay the sum misappropriated if given time by the Court.

32. The prisoner gave advice to the complainant on how best to set up trade store and taxi services in the capital city. He planned the scheme to cheat and steal money from the complainant and succeeded in doing so.

33. Despite the documentary evidence showing the scheme and the method used to obtain monies from the complainant, he maintained his innocence until proven guilty after the trial. However, on allocatus he apologises to the widow of the complainant for the wrong he committed and seeks leniency of the court.

34. He is willing to repay to the complainant’s widow the monies he misappropriated. The widow and children of the complainant desire to receive the money if reimbursed by the prisoner. In my view, this fact alone persuades me to impose lenient sentences so the sentences are as follows:

Accordingly, ordered.
_____________________________________________________________
Public Prosecutor: Lawyer for the State

1)	Count 1	-	The prisoner is sentenced to be imprisoned for 4 years in hard labour.
2)	Count 2	-	The prisoner is sentenced to be imprisoned for 4 years in hard labour.
3)	Count 3	-	The prisoner is sentenced to be imprisoned for 4 years in hard labour.

National Court of Papua New Guinea

State v Mulungu [2018] PGNC 595; N8097 (16 June 2018)