Rokpa v The State [1994] PGSC 16; [1994] PNGLR 535 (29 July 1994)

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CRIMINAL LAW - Misappropriation - Public funds - Dishonesty - Provincial government development fund - Grant for public purpose - Personal use - Violation of guidelines - Grantor's proprietary interest.

Joseph Rokpa, while employed as Cabinet Secretary of the Western Highlands Provincial Government, applied for a K5,000 grant from the Western Highlands Economic Development Fund (WHEDF). The application was made on behalf of GIP Farming for the purpose of purchasing a generator for GIP Farming. The application was approved and a cheque was made out to Brian Bell & Co. The appellant subsequently applied those funds to the purchase of personal goods for his own use. He was charged and found guilty under s 383(A)(1)(a) of the Criminal Code and sentenced to three years hard labour, one year suspended on condition that he enter into a recognisance to be of good behaviour of two years. He appealed against conviction on the following grounds:

N2>1. The trial Judge erred in law in holding that the property in the cheque did not pass to the appellant after the WHEDF Committee approved the appellant's application for financial assistance.

N2>2. The trial Judge erred in law in holding that the application of moneys by the appellant for the purpose other than the purpose for which monies were initially given was a dishonest application when such application was not prohibited by the guidelines governing the fund.

N2>3. The conviction was against the weight of the evidence adduced by the appellant.

N1>1. The trial Judge did not err in finding, after consideration of the guidelines, that the money was intended to be used by the appellant's village for agriculture and economic activity under name and style GIP Farming. The items purchased had nothing to do with farming. This was conceded. The appellant was dishonest when he used the money that was granted for a specific purpose to buy goods to be used for his personal home.

N1>2. The trial Judge did not err in law in finding that property in the cheque did not pass to the appellant, as approval for financial assistance had been given to GIP Farming and the cheque was made payable to Brian Bell & Co. Where monies are granted for a particular public purpose, the grantor has a legal and equitable proprietary interest in them until they are expended on the purpose for which they were granted: Lawi v The State followed.

KAPI DCJ WOODS LOS JJ: The appellant, while employed as Cabinet Secretary in the Western Highlands Provincial Government in October 1991, applied for K5,000 in provincial government financial assistance through the Western Highlands Economic Development Fund Committee (WHEDF). In his application, he used the name GIP Farming, citing his reasons as "the purpose of purchasing a generator for GIP Farming." His application was successful. In April 1992, he was given an advance for that amount. Subsequently, however, he used the money to buy various items - a washing machine, an electric stove, a TV screen, a video cassette recorder, an outdoor antenna, a generator, a deep freezer, and a refrigerator. After these events, he was charged with the offence of misappropriation under s 383A(1)(a) of the Criminal Code. He was brought before the National Court at Mount Hagen and was found guilty on 13 December 1993. He was sentenced to three years imprisonment in hard labour. One year of the sentence was suspended on the condition that the prisoner entered into a recognisance to be of good behaviour for two years.

The appellant appeals from the decision of the National Court against his conviction. He says that:

N2>1. the trial Judge erred in law in holding that the property in the cheque did not pass to the appellant after the WHEDF Committee approved the appellant's application for financial assistance;

N2>2. the trial Judge erred in law in holding that the application of monies by the appellant for purposes other than the purpose for which monies were initially given was a dishonest application, when such application was not prohibited by the guidelines governing the fund;

N2>3. the conviction was against the weight of the evidence adduced by the appellant; and

To better deal with the grounds of appeal, the consideration of the appeal must begin with grounds 2 and 3. In ground 3, the appellant says the conviction was against the weight of the evidence. The appellant has not sought to challenge the basic findings of the facts by the trial Judge. There is, therefore, no issue in this respect. When the financial assistance was granted by the WHEDF Committee, K5,000 was paid in the form of a cheque payable to Brian Bell & Co at Mount Hagen. When the appellant realised that the Electricity Commission was conducting a survey to introduce electricity in the proposed farming area, he negotiated with Brian Bell & Co and obtained a number of items, which we have listed. These items had nothing to do with farming. This is conceded.

The guidelines under which GIP Farming application for financial assistance were considered. The trial Judge had them before him when he made the decision. The guidelines have 18 paragraphs. Five relevant paragraphs are: 1. Economical viable projects, 2. New projects and ongoing projects, 3. Small-scale agricultural and commercial ventures, 17. Applicants should submit progressive project reports to the (WHEDF), this function can be assisted by the constituency member, and 18. Provincial politicians are not eligible to apply, but their family members can apply.

After considering all the appropriate and relevant evidence, the trial Judge found that the money was intended to be used by people in the appellant's village, who conducted their agricultural and other economic activities using the name and style of GIP Farming. But when the appellant realised that there was no need for a generator in the village, he used the money to buy various items for his private use. We do not find that His Honour erred in his findings.

The appellant says his conviction was wrong in law. This contention takes into consideration grounds 1 and 2. That is, the appellant argues that the trial Judge erred in holding that the property in the cheque did not pass to the appellant after the application for financial assistance was considered and a cheque was issued. Secondly, the trial Judge erred in holding that the application of the monies outside the purpose for which it was initially granted was dishonest when such application was not prohibited by the guidelines.

We do not agree that the trial Judge was wrong in holding that the property in the cheque did not pass to the appellant. To start with, approval of the financial assistance was given to the GIP Farming and not the appellant. The cheque was not made payable to the appellant but to Brian Bell & Co. The correct principle to be applied is to be found in Lawi v The State [1987] PNGLR 183 at 190, which the trial judge referred to:

"There cannot be any doubt that the moneys were grants for particular public purposes, with the implied conditions that they be expended on those public purposes. The moneys were most definitely not the appellant's private property to expend on his own purpose or anybody else's as he desired. The two amounts of money were National Government grants and in my view the National Government had a legal and an equitable proprietary interest in them until they were expended on the purposes for which they were granted."

Section 383A of the Criminal Code has been specifically introduced to cover what appeared to be a gap in the law, when similar argument to the one raised by the appellant was raised in Kaisapwalova v The State [1977] PNGLR 257.

The appellant contends, further, that because the guidelines governing the WHEDF did not prohibit the way the appellant applied the money, it was not a dishonest application for the purpose of section 383A of the Criminal Code. We consider that the contention is ill-conceived. We agree that the guidelines do not contain mandatory prohibition in a legalistic sense. But it is clear that the very word "guidelines" raise the parameters within which a grant must be made. Three paragraphs, for instance, provide restrictions. Grants may only be made for "economical viable projects," they must be for "new and ongoing projects," and for "small-scale agricultural and commercial ventures." That is not the end of it. Para 17 requires progressive project reports to be made by the recipient of the grants. This is meant to put control on the usage of the money once a grant is made. For these reasons, we agree with the trial Judge when he said, "It is absurd to suggest for a moment that a person who receives public funds for specific projects cannot account to the funding authority just because there are no specific guidelines having the force of law requiring accountability." Clearly the appellant was dishonest when he used the money that was granted for a specific purpose to buy goods to be used for his personal home.

For the reasons we have given, we dismiss the appeal and confirm the conviction and sentence.

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Supreme Court of Papua New Guinea

Rokpa v The State [1994] PGSC 16; [1994] PNGLR 535 (29 July 1994)

PNG Law Reports 1994