State v Segi [2022] PGNC 310; N9787 (13 July 2022)

N9787

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 92 & 93 OF 2021

THE STATE

V

ANTON SEGI & ERNEST POMO

Madang: Miviri J
2022 : 08^th & 13^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Misappropriation Section 383A CCA – Money received From Sales of Stock – Trial – Digicel Salespersons – Company Accounts – Process of Accounting – Sales Opened Not Closed – Accused In Possession of Company Stock – Flex Card Sales No Money returned – No Other Reasonable Hypothesis Other Guilt of Accused –Guilty x2 Misappropriation – Bail Refunded x2 – Remanded x2.

Fact
Each Accused were salesman employed by Digicel to sell flex cards. They took possession of the Flex cards but brought back no returns from the sales.

Held
Accused sales of stock not closed.
Sound Accounting process
Dishonest depicted
Application to own use
Or use of another
Guilty x2. Misappropriation.

Cases Cited:
Lawi v The State [1987] PNGLR 183
The State v Francis Natuwohala Laumadava [1994] PNGLR 291
Pawa v The State [1981] PNGLR 498

Counsel:

G. Koare, for the State
N. Katosingkalara, for the Defendants

VERDICT

13^th July, 2022

1. MIVIRI J: This is the verdict of two salespersons, employees of Digicel who were given Stocks, Flex cards to sell on behalf of the company who did not return the proceeds of the sales.
   
2. Anton Segi of Giri, Bogia, Madang Province was employed by Digicel (PNG) Limited in Madang as a Sales Executive Officer between the 19^th January 2020 and the 14^th day of February 2020 in Madang. He was given Flex cards in various amounts over that period that he was to sell and to give the proceeds back to Digicel. And on each of the occasions that the various amounts were given him, he never returned any moneys to the Company. His sales remained opened and all added up to the total sum of K 42, 693.00 the property of his employer Digicel which was never accounted back to Digicel. He was dishonest and applied the proceeds that money to his own use and to the use of others.
   
3. In the case of Ernest Pomo of Kambuku, Angoram, East Sepik Province he was also employed by Digicel PNG Limited as a Salesperson between the 22^nd of January 2020 and the 27^th February 2020. He too was accorded stocks, Flex cards in various denominations that he was supposed to have sold, and the proceeds that he acquired were to be returned balancing out the books to Digicel. He generated K 9, 550.00 out of the sales of the stock that he was issued. He paid back K 2, 483.00 to Digicel. But did not give back to Digicel K 7, 067.00. He was dishonest and applied that money to his own use and to use of another.
   
4. Both Accused were charged with misappropriation pursuant to section 383A criminal code which reads;
   

“(1) A person who dishonestly applies to his own use or to the use of another person –

(a) Property belonging to another; or
(b) Property belonging to him, which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction, or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for five years except in any of the following cases when he is liable to imprisonment for ten years-
(a) where the offender is a director of a company and the property dishonestly applied is company property;
(b) where the offender is an employee and the property dishonestly applied is the property of his employer;
(c) where the property dishonestly applied was subject to a trust. Direction or condition;
(d) where the property dishonestly applied is of a value of K2000 or upwards.
(3) For the purposes of this section-
(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property;
(b) a person’s application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution thereof to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property;
(c) a person’s application of property shall be taken not to be dishonest, except where the property came into possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps;
(d) persons to whom property belongs to include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who. Immediately before the offender’s application of the property, had control of it.”

5. Separate Indictments were presented by the State because of the different periods over which each Accused was alleged to have dishonestly applied to his own use and to the use of others. There was no prejudice in the determination of the matters in this way. Both were individual cases distinct by their individual facts led. And applied individually led to whatever was drawn in law to follow as verdicts by their own facts. Anton Segi drew the figure K 42, 693.00 whereas Ernest Pomo drew out K 7, 067.00 allegedly the property of their employer Digicel (PNG) Limited. It was undisputed fact that both were employees of Digicel (PNG) Limited at the relevant time depicted out by the allegation. And it was also not disputed and accepted common to both sides of the case that the Accused were employed as Anthon Segi, commercial Executive, and Ernest Pomo as Retail Executive, both by Digicel Madang. So, the subject moneys were the property of Digicel (PNG) Limited.
   
6. Undisputed documentary evidence tendered by consent were the record of interview of the accused Anton Segi conducted on the 10^th August 2020 originally in pidgin, Exhibit P1 and the English translation of that record of interview Exhibit P1(a). There was nothing in it that assisted the cause of the Accused. He remained silent all throughout it. For the State the allegation were put to the Accused and he did not offer any evidence to support or deny the allegation. He merely stated that he was employed by Digicel as a commercial executive and that he was in it in March 2015 on its payroll which was around K700 that was deposited directly into his own bank account. His duties were that he was team leader reporting to the area manager one Mr John Rem. He remained silent when asked about the allegations in the matter. Which is his right under law. It would not be held adversely against him in the determination of the matter.
   
7. Similarly, the Co Accused Ernest Pomo originally from Kambuku village, Angoram, East Sepik Province in his record of interview originally conducted in Pidgin on the 10^th August 2020 admitted as Exhibit P2 with the English translation as Exhibit P2(a), elected to remain silent. But primarily stated there like his co accused that he was employed by Digicel as retail Executive and sold Digicel products including mobile phones, SIM cards and flex cards. And was employed since 10^th February 2016 earning K 725 which was deposited directly into his bank account. And that he got issued all his sales stock from the Accounts clerk. And that this was done accompanied by the account’s office issuing a form which they filled out. This was the Stock Issue Note & Reconciliation Sheet. The name of the officer who was responsible for this was Jovita Matapere. And the reason for the issuing of that form was for making request for the supply of the sales stocks to fulfill when a customer places an order for stock.
   
8. The subject form was Exhibited as P3(a), P3(b), P3(c) in the case of Anton Segi and P4 in the case of the accused Ernest Pomo. Exhibit P3(a) detailed that it was a stock issue note & Reconciliation Sheet numbered as DIG042/. And despatch dated 26-01-20. Expected Arrival date 20-01-20. Its location was Madang. And the location to was Ideal Mart. And the item numbers were listed as K3.00 flex cards, also K5.00 flex cards. In each case the item description was K3.00 flex cards and K 5.00 flex cards. The quantity issued was 2000 in each case of K3.00 and K 5.00. Which was reconfirmed that it was 2000 in each case in the next adjacent column. The unit price for the K3.00 flex cards was 2.865 bringing out the total sales as K 5, 730.00. And in the case of K 5.00 flex cards as K 9, 550.00 giving the total sales as K 15, 280.00.
   
9. This form stated that the stock was issued by Jovita Matapere which did not bear her signature and date on it. It had the stock verified by John Rem but did not have his signature and date on it. And the stock was received by Accused Anthon Segi as Stock received by. It did not have his signature and date on it. Opposite and parallel to it was column, stock returned by Name Anthon Segi. It did not have his employee number date and signature. And the return of the stock was verified by John Rem. It did not have his signature and date inscribed. The cash count reconciliation did not have any denomination filed evidencing cash had been receipted and reconciled. It would have been verified by Finance Officer named as Jovita Matapere Employee numbered as 0353333. There was no date nor signature. Because the form was not completed to close the account that remained open against and in the name of the accused. The details would have been filed as soon as they brought the returns to close the sale. Here it was evident that the return by the accused had not been made hence the details yet to be completed in the form.
   
10. This evidence established that K 15, 280.00 worth of flex cards in K3.00 and K 5.00 denomination were issued the Accused Anthon Segi but were not returned either in money collected as a result of the sale of and reconciliation done by Jovita Matapere, verified by John Rem. K 15, 280. 00 was outstanding yet to be collected for Digicel from the commercial executive Anthon Segi. That form is dated dispatch date 20 01 20. Since that date up to day 12^th July 2022, there is no other form from that Company Digicel, the employer of Anthon Segi, evidencing that that money K 15, 280.00 outstanding on account of Digicel in the hands of Anthon Segi, has been recouped returned from that sale of the items in two lots of 2000, comprising K 3.00 and K 5.00 flex cards, altogether 4000 items belonging to that company yet to return its money from its employee then, commercial executive Anthon Segi.
    
11. Exhibit P3(b) is also a Madang Office Stock issue note & reconciliation Sheet for roadshow & direct sales. Its stock issue note number is DIG042/. The dispatch date is 12-02-20. The expected arrival date is 12-02-20. The location is Madang. And it is located to Town Ideal Mart. The item number is K3 Flex card, K5 Flex card, and K2 Flex card which is also the item description. And the quantity issued is 1000 for all denomination which is the quantity summing at 3000 in all. The unit price for the K3 Flex Card is 2,865.00. The unit price for the K5 Flex card is 4,775. And that for the K2 Flex card is 1,000. The total sales is the sum total of all these figures giving the total of K9, 550.00 due to Digicel after conduct of the sales by Anthon Segi. Because the stock have been issued to him by Jovita Matapere evidenced by the form particulars of who is issuing stating her name. And confirming its issuance to the accused Anthon Segi. That is verified by John Rem. The return is to be by Anthon Segi but does not bear that out because there is no employee number inserted so too date and his signature. Nor is it verified by John Rem, as he also does not have his signature and date evidencing.
    
12. Again, there is no cash reconciliation in the various denomination starting from K100 to K0.05 handed in by the accused Anthon Segi, verified by Jovita Matapere Finance Officer employee number 035333. There is no date nor signature either verifying that Anthon Segi who is supposed to have returned K 9, 550.00, has returned that money to the Company Digicel, who employed him as commercial executive. This company accounting form does not verify that that has happened. It is official company accounting records kept by Jovita Matapere verifying the records of the receipt of that money in the hands of Accused. No other accountable recording evidence independently has Accused returned that money squaring, closing his sale stock issued here. It is the company Digicel’s property yet to be given it by the Accused Anthon Segi commercial executive.
    
13. Exhibit P3 (c) is also Digicel Madang Office Stock Issue Note & Reconciliation Sheet stock issue note number DIG042/. The dispatch date is 13-02-20 expected arrival date is 13-02-20. The location of the form is Madang. And the location is Town. The item number is K3 Flex cards, K5 Flex cards, K10 Flex cards, and K20 Flex cards which is also its description. The quantity issued is 3000 for the K3 Flex cards, K5 Flex cards 2000, K10 Flex cards 200, and K20 Flex cards 100. The total sales is K 9, 550.00.
    
14. Here the stock issued is by Jovita Matapere and she has signed it and dated it 26^th January 2020. And the stock is received by Ernest Pomo who has also signed it and dated it as 23^rd January 2020. He has also signed including the insertion of his employee number and dating it as of the 23^rd January 2020. And his cash count reconciliation is K 2, 483.00. He still has K 7, 067.00 yet to be collected to close his sale which was made to Gogo of 800 pieces of K3 and K1000 pieces of K5.
    
15. In addition to this evidence is exhibit P5 which are three statements D1.D2. and D3 that the accused Ernest Pomo made and signed that he claims that he reconciled all payments collected and had nothing outstanding to his name. In D2 he states that, “If Gogo cannot confirm to me if I had already collected the payment from them, then I am willing to settle the Gogo Variances only (K7, 067.00) and not the other recon sheets which I got my signature on.” In D3 he states, “10^th January 2020; 14^th January 2020; 23^rd January 2020; 28^th January 2020 as per reconciliation Sheets provided on the given dates stated above. According to my understanding, I was issued stock, signed out from STN (stock Issue note) deliver the stock to the customer/retail outlets collect payments at the same time and then do reconciliations at the stock room. From the Recon Sheets provided I did used parts of the money as stated on the Recons. On the 23^rd January 2020, I did delivered the stock as per Recon Sheet to Gogo and collect part payment but I can’t recall I did collect the other part of the payment next day already as there were many outlets which I usually supply Recharges daily and collect payment from them. Could you please give me time to settle how much outstanding is against me. Thank you signed Ernest Pomo.”
    
16. The State called the Arresting Officer Sergeant Keke Gure whose evidence basically was as to the tender of the record of interview conducted with each of the accused tendered into evidence and marked as Exhibits set out above. There was nothing further in his evidence.
    
17. The next witness on oath for the State was Jovita Matapere who was employed by Digicel Madang as its Finance Executive. She knew both accused as they all worked there at Digicel. Anthon Segi worked as Sales Executive officer and he was issued stock. Flex cards that he signed off for but did not collect the payments. So, the sales was not closed. It remained open until he returned with the cash or cheque collected to close the sale. I reminded him to tell the customer so that we can close off the sale. And he said he will collect and return. And it was left there as pending sale, I recorded it as pending on our records. Boss found out so I produced the invoice outstanding to be collected under their names to collect. Invoices did Anthon Segi had outstanding, and she confirmed Exhibit P3(a), P3(b) and P3(c) still open in the sum of K 42, 693.00 against Anthon Segi. She further confirmed the same outstanding against Ernest Pomo in the sum of K 7, 067.00 Exhibit P4.
    
18. Primarily that was her evidence in chief and she was vigorously cross examined by the defence. But she maintained that the forms were genuine and showed moneys owing and outstanding in the denominations of the Flex cards that were issued each of the Accused sales still open and not closed off. She held onto the pink and yellow copies on the stock issue notes. The white copy was given to the Salespersons here both Accused. And would be sealed off in the same manner as Exhibit P4. She was responsible for the issue of stock and kept this record to evidence that fact. And it would be retrieved as was the case here when it was not closed. There were no threats upon the accused both were invited to make their statement in respect of the moneys that were outstanding. Both admitted that they had collected stock but not returned the proceeds of the sales of the stock. She denied that together with the police and Brian Malone accused were threatened to admit that they had used the subject moneys. What happened was voluntary admissions made by each of the Accused.
    
19. Each of the Accused gave sworn evidence in defence. Anthon Segi admitted that he received the stocks but denied the veracity of the Stock issue note & reconciliation sheet. He contended that Exhibit P3(a), P3(b) and P3 (c) were not signed by with the return of the white copy that was issued to them. Unless and until it was returned signed both by the Salesperson and Jovita Matapere would it be regarded as genuine record on the basis of which it could be established that there was moneys still outstanding against the accused. As it is, it was printed in hast at the behest of Brian Malone and therefore did not comprise genuine record relating. And could not be the basis upon which the case was made out against them.
    
20. Ernest Pomo contended similarly as put by Anthon Segi but went further and stated that the K 7, 067.00 was to be collected by the area manager John Rem. The company Gogo said they will allow collection by the area Manager, not him. So, he assumed that it must have been collected by the area Manager John Rem. He was not responsible for the allegation that was made against him. He did not dishonestly applied the money to his own use. It was still awaiting to be collected from the customer Gogo.
    
21. This is the status of the evidence both for and against. And the law is that the elements of Section 383A Misappropriation are; - (a) dishonesty; (b) application of the said property to his own use or that of another; and (c) property belonging to another, Lawi v The State [1987] PNGLR 183. Dishonesty is a question of fact and would depend on the status of mind of the accused. “And when a Judge considers the facts on how the property was applied, he uses the ‘ordinary’ standards of reasonable and honest people’ test to determine whether or not the property so applied...Dishonest is defined in the Oxford Advanced Learners Dictionary of Current English as, “intended to cheat, deceive, or mislead, The State v Francis Natuwohala Laumadava [1994] PNGLR 291 at 293.”
    
22. At the close of the evidence, it is undisputed that each of the Accused were employees of Digicel (PNG) Limited employed as a Sales Executive Officer in the case of Anthon Segi between the 19^th January 2020 and the 14^th day of February 2020 in Madang. And he was accorded and received flex cards in various denominations over that period to be sold and proceeds recouped and reconciled with Jovita Matapere for Digicel PNG Limited. And that over that period they culminated to the total of K 42, 693.00 property of Digicel PNG Limited. But he disputed the veracity of the forms that are relied by the Prosecution as showing that indeed K 42, 693.00 was outstanding because the process was not completed with the return of the white copy of the Stock Issue Note & Reconciliation Sheet. In this regard he does not explain that the subject white copy was with him but he made no attempt to bring it into the light to extinguish the allegation. It has not been brought out in the light even up to now by both accused. They were accorded it. Its impact would have erased the allegation against them. It would have quelled and reconciliation demanded made out to leave them out of the allegation. As it is it brings their sales open pending moneys not accounted to Digicel due from their duties to Digicel in their individual employments to it.
    
23. Even Ernest Pomo in his role Retail Executive, Digicel Madang between the 22^nd of January 2020 and the 27^th February 2020. He too was accorded and received flex cards in various denominations over that period to be sold and proceeds recouped and reconciled with Jovita Matapere for Digicel PNG Limited. And that was to the total value of K 7, 067.00. It was the property of Digicel PNG Limited. Both accused did not own the moneys that came as a result of the sales because all stock belonged to Digicel. That element was satisfied beyond all reasonable doubt. The property in law for the proceeds of the stock sold remained in law property of Digicel (PNG) Limited in both instances against both accused.
    
24. The next issue was whether they were dishonest, that is by ordinary standards there was intention to cheat, or deceive or mislead displayed in the conduct of the Accused?
    
25. Here how else can it be explained and deduced that company properties sold have not realized to the accounts of the company moneys still in the hands of the accused from the sale of the stock in their hands. They were last in possession by virtue of their duties to the company valuable stock for which they have not returned the proceeds into the company accounts and purse. In this regard both have not brought forward the white copy of the subject form Stock Issue Note & Reconciliation Sheet to settle. That form is the security that sets out whether the company has recouped what is due to it. And from it is due for what actions and amounts specified in quantity quality and value for money. As that is the cornerstone of the success that Digicel (PNG) Limited has enjoyed successful. It is the stringent accounting process that it has in place to protect sales and profit.
    
26. And it seals its performance with recruiting maintaining staff who can and will see out that process protecting its life blood, funds and finance that comes into its vein to keep it alive and vibrant. Business and its survival depends on very strong accounting fundamentals. And Digicel is no exception in this regard. The facts of the present case are no exception. The duties that are called upon of Jovita Matapere are paramount and fundamental to its continued survival in the competitive world of business and commerce. That was the duty that was bestowed upon Jovita Matapere. Her evidence has not been tainted, nor has it been cross examined to an extent that it is simply unbelievable and cannot be relied on as the truth. In fact the repetition and intent to agitate her evidence only strengthened and made bold the assertions against the Accused. It dug their graves deep as the cross examination progressed. Because her evidence is corroborated by exhibits P3(a) P3 (b) and P3 (c). There is no reason to doubt the veracity of her evidence in the allegation against the accused. Because the forms that were retrieved set out above show that K 42, 693.00 property of Digicel PNG Limited never came through with the Stock Issue Note & Reconciliation Sheet. Effectively that money was not accounted for.
    
27. There was no reasonable explanation by each of the Accused. In the case of Ernest Pomo, he admitted part reconciliation and settlement but left K 7, 067.00 yet to be closed off. His excuse that it was dependent upon collection by the area Manager John Rem did not stand well. Because the company had designated positions paid funded for specific roles to be discharged to the success of the company. Its maintenance demanded that there be checks and balances placed on all fronts to ensure what was due the company came without slipping and sliding out of its purse. Therefore, the area Manager had a specific duty and so too the accused. They could not swap roles and responsibilities within specific settings set. Here it remained in the hands of Ernest Pomo to collect that money, K 7,067.00. He did not it remained outstanding on its accounts. He was the last person in possession with the authority in its collection. It has not culminated in the closure of the accounts despite remainder. It means for all intent and purposes, he has been dishonest, because he has not brought forward the white copy of the Stock Issue Note & Reconciliation Sheet in his possession to close the sale. No other reasonable hypotheses has been disclosed except that he has applied that money to his own use and to that of another person, Pawa v The State [1981] PNGLR 498.
    
28. This is strong when viewed compounded by the admission that he has made which I set out above. Coupled with Exhibit P4. Ernest Pomo is by this evidence dishonest. And he has also by this evidence applied that money K 7, 067. 00 property of Digicel to his use without the authority of Digicel. He had no authority to leave it as it were without collecting and returning it closing the sale. The circumstances are inconsistent with any other reasonable hypothesis other than his guilt. I have no doubts in his guilt and I find him guilty of misappropriation pursuant to section 383A of the code as indicted and convict him.
    
29. In the same way against Anthon Segi, there is no production of the white copy of the Stock Issue Note & Reconciliation Sheet in his possession to close the sale. He has not simply handed it. His argument that it was not with the other documents evidenced as Exhibit P3(a) P3(b) and P3(c) does not exculpate but incriminate him. He simply did not hand it up to the Finance Executive Jovita Matapere to close the account, sales open in his name in the sum of K 42, 693.00 outstanding within his means to close. He chose to not bring the returns despite the remainders by the Finance Executive Jovita Matapere. Even production of that form that all was well and in control. Now he argues in his defence that the form Stock Issue Note & Reconciliation Sheet in his possession has not been produced in the way he had defended himself. The company does not just give its valuables out without keeping tabs to ensure it is returned in full squared out so that it profits and sustains. That is the purpose of the white copy any dealings that are in the discretion of the salesman is recorded in it so that it is balanced out with the finance executive to close the sale with the cash count reconciliation made and closed on the sale. In this regard the finance executive is not funded with a position to stay idle to the detriment and demise financially of the Company. The forms are accountable forms that speak the life of Digicel. And if as here it is not closed off evidencing proper reconciliation of the accounts with the accused open now, there is no other reasonable hypothesis given other than the guilt of the Accused, Anthon Segi of being dishonest. And that he applied the subject money property of his employer Digicel (PNG) Limited to his own use. And without authority left without collecting to the demise of Digicel. Applying the law on circumstantial evidence set out above with misappropriation and its elements, there is no other reasonable hypothesis open other than that Anthon Segi is guilty of misappropriation as indicted. I return a guilty verdict on the indictment preferred against him of misappropriation.
    
30. The verdict of the Court is guilty of misappropriation pursuant to section 383A against both Anthon Segi and Ernest Pomo.
    
31. I order that their bail moneys are refunded forthwith and both Anthon Segi and Ernest Pomo are hereby remanded forthwith to await sentence.
    

Ordered Accordingly

_______________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitors: Lawyer for the Defendant