Tan Kheng Soon v Independent State of Papua New Guinea [2024] PGNC 149; N10826 (20 May 2024)

N10826

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 26 OF 2023 [IECMS]

BETWEEN:
TAN KHENG SOON
Applicant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Dowa J
2024: 16^th & 20^th May

CRIMINAL LAW – Appeal against conviction and sentence-procedural errors identified-failure to use interpreter-and failure to administer allocutus-where procedures errors committed, it is in the interest of public interest to order rehearing- -conviction quashed and matter remitted to the District Court for rehearing.

Case Cited:
Kiso v Manumanua [1981] PNGLR 507; N359
Konia v Buka (2007) N4186

Counsel:
M Golu, for the Appellant
H. Roalakona, for the Respondent

RULING

20^th May 2024

1. DOWA J. This is an appeal against the whole of the decision of Magistrate Danny Wakikura in the District Court delivered on 21 July and 19 October 2023, whereby the Appellant was convicted and sentenced.
   
2. The appellant aged 29 years is from Kualalumpar, Pnang District, Malaysia. He was a resident of Unit 83, Rangeview, Port Moresby, NCD at the time of the crime. He was jointly charged with Leong Aunfong, also of Malaysia of being in possession of a large quantity of controlled substance, namely Methamphetamine and 80 grams of cannabis.
   
3. On 19^th October 2023 the appellant was convicted as follows:
   
   1. He did each and severally possess in their premises namely Range View Unit 83, Waigani a controlled substance listed in Schedule 11 of the Controlled Substance Act 2021, a commercial quantity, within Papua New Guinea with the intention of receiving financial benefit contrary to Section 68(1)(c) of the Controlled Substance Act.
      
   2. He did each and severally possess in their premises, a controlled substance listed in Schedule 1 of the Controlled Substance Act 2021 to eighty (80) grams of Cannabis, amounting to a commercial quantity within Papua New Guinea, with intention of receiving financial benefit.
      
4. In relation to the first count His Worship Danny Wakikura sentenced the Appellant to twenty (20) years in hard labor and a fine of Forty Thousand Kina (K40,000.00). The Appellant was also convicted for the second count and fined Five Thousand Kina (K5,000.00) and sentenced to two (2) years in hard labour.
   

GROUNDS OF APPEAL

5. The Appellant appeals the conviction on the following grounds:
   
   1. The Learned Magistrate wrongly convicted the Appellants of two (2) counts of receiving financial benefit under s.68 (1) of the Controlled Substance Act 2021 when receiving financial benefit is only an element of the offence and not the actual offence.
      
   2. Error in the conviction and sentence on the basis that eighty grams (80g) of cannabis is not a controlled substance under Schedule 1 and Schedule 5 of the Act.
      
   3. Denial of natural justice on the basis that –
      
      1. Proceeding was heard without a translator to assist the Appellant understand the charge.
         
      2. Allocutus not administered; and
         
      100. Prosecutor asked the Appellant to plead guilty and he will be released.
           
6. On Sentence, the Appellant pleads that the sentence imposed was in excess of the sentencing jurisdiction of the District Court.
   

Concessions at the hearing

7. At the hearing, counsel for the Respondent conceded to ground 3 of the appeal. That is, the State conceded that the learned Magistrate failed to use an Interpreter to translate to the appellant in a language he understood the charges and the consequences of the plea. Secondly, the Magistrate failed to administer an allocutus before sentence.
   
8. The State submitted that the conviction and decision on sentence be set aside, and the matter be remitted back to the District Court to be retried by another Magistrate.
   
9. Counsel for the Appellant argued that the whole of the decision be quashed and his client be acquitted or discharged, and monies paid be returned to the appellant.
   

Issues

10. The issues for consideration are:
    
    1. Whether the whole of the Magistrate’s decision be quashed.
       
    2. Whether the matter be remitted back to the District Court for retrial
       

Consideration

11. The relevant law on criminal appeals to the National Court is sections 219 and 230. They read:
    
    219. APPEAL TO NATIONAL COURT.

(1) Subject to Subsections (2) and (3), a person aggrieved by a conviction order or adjudication of a Court, including an adjudication or order dismissing an information or complaint, may appeal to the National Court from the conviction, order or adjudication, in accordance with this Part.

(2) Except as provided in Subsection (3), Subsection (1) shall not be deemed to authorize an appeal by the State against the dismissal of an information.

(3) Where, in the opinion of the National Court, the matter is one of such public importance that leave should be granted, the Attorney-General may–

(a) appeal against a decision of a District Court on behalf of a party; or

(b) intervene in an appeal to the National Court.

(4) The Public Prosecutor may appeal to the National Court against any decision of the District Court as to sentence in respect of any indictable offence triable summarily under Section 420 of the Criminal Code 1974.

230. POWER OF NATIONAL COURT ON APPEAL.

(1) On the hearing of an appeal, the National Court shall inquire into the matter, and may–

(a) adjourn the hearing from time to time; and

(b) mitigate or increase a penalty or fine; and

(c) affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and

(d) remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and

(e) exercise a power that the Court that made the conviction, order or adjudication might have exercised; and

(f) make such further or other order as to costs or otherwise as the case requires.

(2) An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.”

1. whether the whole of the Magistrate’s decision be quashed.
   

12. The Respondent conceded that there were procedural errors committed by the learned Magistrate that render the conviction unsafe in that no Interpreter was used during the hearing and the allocutus was not administered. The State also conceded that the sentence imposed for the charge of being in possession of the controlled substance, methamphetamine, under Part V Schedule II is excessive.
    
13. The depositions in Appeal Book show the appellant pleaded guilty to the charges in the English language. There is no record of an interpreter being used in the proceedings, especially when the pleas were taken. This is a procedural error that is fatal to the conviction. The accused must be given the opportunity to understand the charges brought against him in a language he understands and appreciate the consequences of a guilty plea. A failure to accord that right is a breach of natural justice and Section 37 (4) (b) of the Constitution which provides for the protection of the law.
    
14. A perusal of the Court records also shows no allocutus was administered. An allocutus is a statement made by the accused who is found guilty before sentence is imposed. In the present case, this did not take place. Again, such lapses in procedure renders the conviction and sentence unsafe because the accused is not given an opportunity to say something which could have had an impact on the type of sentence imposed.
    
15. For the foregoing reasons, the Court is inclined to quash the convictions on both counts.
    
16. On Sentence, the State also concedes that for the first charge, the sentence imposed was excessive. It seems to be a jurisdictional error. Be that as it may, the Court will not consider the issue as the conviction is set aside.
    

b. Whether the matter be remitted back to the District Court for retrial.

17. The next issue is whether the matter should be remitted back to the District Court for retrial. Counsel for the State argues that the errors made by the learned Magistrate were procedural errors and the matter be remitted to the District Court to be retried by another Magistrate. Counsel for the appellant argues that his client has been successful in his appeal, and he should be discharged.
    
18. Section 223 (1) (c) & (d) of the District Court Act gives power to the National Court to quash the conviction and remit the matter to the Court that convicted the appellant. It is settled law that where procedural errors are made, the National Court has the power to quash the decision and remit the matter back to the District Court for rehearing. Refer: Kiso v Manumanua (1981) N359 and Konia v Buka (2007) N4186.
    
19. In the present case, the conviction is set aside only because of procedural errors. The records show the appellant has pleaded guilty to serious charges. It involves dealings of large quantity of controlled substance which carry heavy penalties. It is a matter of National security and public policy and interest that the matter be reheard. It is not in the interest of justice to discharge the appellant who is charged with a serious offence. The Court will therefore remit the matter to the District Court for hearing before another Magistrate.
    

Orders

20. The Court orders that:
    
    1. The Appeal is allowed.
       
    2. The conviction is quashed.
       
    100. The matter is remitted back to the District Court for hearing before another Magistrate.
         
    4. All fines paid pursuant to the Court orders shall be refunded.
       
    5. The appellant will remain in custody pending the hearing of the matter.
       
    6. Time be abridged.
       

_______________________________________________________________
Makeu Legal Services: Lawyer for the Appellant
Public Prosecutor: Lawyer for the Respondent