Singo v The Independent State of Papua New Guinea [2002] PGSC 11; SC700 (4 October 2002)

SC700

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA No. 41 of 2000

Between:

JAMES SINGO

Appellant

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani : Kapi, DCJ, Sakora, Kandakasi JJ

2002 : 30th September
4th October

CRIMINAL LAW – Appeal against conviction – Misappropriation of another’s property – Arising out of rental agreement where Appellant received money on behalf of land lord but applied to personal use without approval or consent of land lord – Issues of ownership of property and dishonestly applying to own use, only issues for trial – Evidence proved ownership in persons other than offender – No need to prove ownership in a particular person or name – Section 27 (2) Supreme Court Act Chp. 37 considered – Application of another’s property without the other’s consent or approval amounts to dishonestly applying to own use – No error in conviction – Appeal dismissed – Section 27 (2) Supreme Court Act.

APPEAL – PRACTICE & PROCEDURE – An Appellant required to establish identifiable error – Failure to do so provides no reason to interfere with trial judge’s findings.

APPEAL – Appealed against conviction – No identifiable error demonstrated – Evidence before the Court below established the issues for trial beyond any reasonable doubt against Appellant – Appeal dismissed.

Cases Cited:
John Kasaipwalova v. The State [1977] PNGLR 257.
Brian Kindi Lawi v. The State [1987] PNGLR 183.
Joseph Rokpa v. The State [1994] PNGLR 535.
Tom Amaiu v. The State [1979] PNGLR 576.

Counsels:
Mr. P. Harricknen, for the Appellant.
Mr. J. Pambel, for the Respondent.

4th October 2002

BY THE COURT: The Appellant, Mr. James Singo (Mr.Singo) is appealing against his conviction by the National Court on a charge of misappropriation under s.383A of the Criminal Code of a sum of K36,400.14 (the money) belonging to a Mr. Max Rai (Mr. Rai). The essence of his grounds of appeal is that Mr. Rai did not own the money but his (Mr. Rai’s) employer, the Oil Palm Industries Corporation (OPIC) did and in any case, he did not dishonestly apply the money to his own use. He argues further that his conviction was wrong and against the weight of the evidence.

The State’s response is that, the learned trial judge did not err in convicting Mr. Singo. It argues that, the evidence against him was overwhelming and they established the charge against him beyond any reasonable doubt.

The Issues

This presents three issues for determination. They are:

1. Whether Mr. Rai or OPIC owned the money allegedly misappropriated?
   
2. Whether it makes any difference as to who owned the money in so far as Mr. Singo’s conviction is concerned? and
   
3. Whether Mr. Singo dishonestly applied to his own use the money in issue?
   

The Facts

The facts are straightforward. There was a verbal arrangement between Mr. Rai and Mr. Singo for Mr. Singo to move into Mr. Rai’s house at a rent of K866.67 per month. The rent was to be paid by Mr. Singo’s employer OPIC. Mr. Singo was to collect rents and have them deposited into Mr. Rai’s bank account with the Papua New Guinea Banking Corporation (PNGBC). For that purpose Mr. Rai left his passbook account with Mr. Singo and he took up his appointment as an ambassador in Europe. This arrangement was confirmed in writing by a letter dated 13th April 1999 from Mr. Rai to OPIC attention to Mr. Singo.

Mr. Singo moved into Mr. Rai’s house as agreed and had the initial security deposit bond of K866.67 paid out by cheque in favour of Mr. Rai drawn by OPIC. OPIC continued to make the rental payments as and when they fell due by not negotiable cheques made out in Mr. Rai’s name. All of these cheques totalled up to about K36,400.14 over the period May 1993 to September 1996. Then in breach of the agreement between Mr. Rai and Mr. Singo, Mr. Singo opened a trust account in favour of Mr. Rai and had the cheques deposited into that account. Once the cheques got cleared, he withdraw funds from that account and applied the proceeds to his own benefit for things like his children’s school fees, loan repayments, purchasing a car and so on. Only about K6,500.00 were spent according to Mr. Singo on causing unspecified repairs and maintenance to Mr. Rai’s house.

Mr. Rai did not approve of Mr. Singo departing from the original agreement and the application of the money in the way Mr. Singo applied them. Mr. Singo notified Mr. Rai of the use of the money after having done so. Mr. Rai could not do anything quickly as he was out of the country, until he returned to the country and reported the matter to police leading to the arrest of Mr. Singo and his eventual conviction.

Mr. Singo claimed that the arrangement was for him to purchase Mr. Rai’s house and that the money was paid by his employer toward that purpose. However he produced no evidence of any such agreement or arrangement, except for his claim.

The learned judge found Mr. Singo to be an unreliable witness. He rejected Mr. Singo’s claims.
Then on the facts before him, the learned trial judge found Mr. Singo guilty on the charge presented against him. In arriving at that decision the learned trial judge was of the view that, the money once written out in the not negotiable cheques to Mr. Rai, they belonged to Mr. Rai. He also found that application of the money by Mr. Singo was for purposes other than they were intended for without any approval or consent of Mr. Rai.

The Law

As noted earlier, Mr. Singo was charged under s.383A (1) (a) of the Criminal Code. That provision reads:

"A person who dishonestly applies to his own use or to the use of another person—

(a) property belonging to another; or

....

is guilty of the crime of misappropriation of property."

This provision was added by Act No. 10 of 1981. Prior to that there was no section 383A. It was enacted to over-come the effect of the Supreme Court’s judgement in John Kasaipwalova v. The State [1977] PNGLR 257. In that case Mr. Kasaipwalova was charged for stealing money received under direction. The Court held that where money is paid into ones account for the benefit of another and the account owner applies it to his own use that could form the foundation for an action in chose in action only. It could not meet the element of a physical movement and application of another’s property for the purposes of a criminal conduct and conviction.

The effect of this is that, as long as one dishonestly applies for his or her own use, the property of another, a charge under s.383A can be sustained. It does not matter how the property came into the offender’s hands.

The essential elements of an offence under s.383A are these:

1. A person must;
2. Dishonestly apply to his own use;
3. Property that;
4. Belongs to another person.
   

Since the enactment of s.383A, hardly a case has gone before the Supreme Court because the position is very clear as to the elements that must be established for a successful prosecution under this provision. Most of the cases of misappropriation have been revolving around the second element.

A case on point is the Supreme Court judgement in Brian Kindi Lawi v. The State [1987] PNGLR 183. In that case the Supreme Court found no error in the National Court finding Mr. Lawi, then a Member of Parliament, guilty of misappropriation under s.383A. In that case Mr. Lawi received from the State certain funds from the National Government for specified projects in his electorate. The monies were paid into his personal account and then later applied to his personal use. In that case the Supreme Court also said (per the head note) of the term "dishonestly":

"As the word ‘dishonestly’ in s.383A only relates to the state of mind of the person who does the act which amounts to misappropriation, whether an accused has a particular state of mind in relation to the application of property which is dishonest is a question of fact for the trial judge to consider on all of the facts of the case before him and according to the ordinary standards of reasonable and honest people."

The Supreme Court arrived at a similar decision in Joseph Rokpa v. The State [1994] PNGLR 535. In that case, Mr. Rokpa applied on behalf of a village (his village) farming entity for funding from the Western Highlands Provincial Government for the purchase of a generator. The application was approved and the required funds were made available through a cheque made payable to Brian Bell & Co, which was selling a generator. Instead of buying the generator Mr. Rokpa bought other items and used them for his own use. The National Court found him guilty of misappropriation under s.383A. On appeal the Supreme Court confirmed the conviction.

The Supreme Court agreed with the National Court, that Mr. Rokpa dishonestly applied the property of another to his own use. He was therefore in breach of s.383A of the Criminal Code.

Earlier on, even before the introduction of s.383A, the Supreme Court in Tom Amaiu v. The State [1979] PNGLR 576 held it is not necessary to prove the name or the ownership of the property in question to secure a conviction. What does matter is proof of the property stolen being the property of someone other then the offender. That was in the context of a charge of larceny. That was in a case where a cheque was drawn out in favour of a third party and the appellant had collected it had it cashed and applied to his personal use. The National Court found him guilty and the Supreme Court up-held the appeal.

Present Case

Bearing these principles in mind we now turn to the specific issues for determination in this case. We start with the first one of whether the money belonged to Mr. Rai or OPIC?

The evidence before the National Court which are now before us is that, OPIC wrote out several cheques in the amount of K866.67 each month between May 1993 until September 1996 for Mr. Singo’s rental of Mr. Rai’s house as and when they fell due. This was in accordance with the agreement between Mr. Singo and Mr. Rai, confirmed by the letter of 13th April to OPIC. The total of these payments was K36,400.14. The cheques were not negotiable cheques made payable to Mr. Rai. Mr. Singo collected all of these cheques and had them paid into an account he opened in trust for Mr. Rai.

Going by the settled law on negotiable instruments, the property in the cheques, the amounts of money stated in the cheque, became the property of Mr. Rai. Since the cheques were made not negotiable, they could only be paid to Mr. Rai and nobody else. Even if that was not the case, the money became the property of Mr. Rai when they were deposited and credited into the account open in trust for him by Mr. Singo. We therefore agree with the learned trial judge that the money was the property of Mr. Rai.

We now move to the next issue of did it really matter whether, Mr. Rai or OPIC owned the money. The answer simply in our view is that, it would not matter whether the property was owned by Mr. Rai or OPIC. This proceeds on the basis of the judgement in the Amaiu case that, proof of ownership of the property the subject of a charge of misappropriation is not necessary. This position is strengthened by the provisions of s.27 (2) of the Supreme Court Act (chp. 37), which provides:

"(2) Where an appellant has been convicted of an offence and he could on the charge have been found guilty of some other offence, and the Supreme Court is satisfied as to facts that proved him guilty of that other offence, instead of allowing or dismissing the appeal the Court may—

(a) substitute for the verdict a verdict of guilty of the other offence; and

(b) pass such sentence in substitution for the sentence passed at the trial as is proper and as is warranted in law for that other offence, not being a sentence of greater severity."

The only way in which a defence on the question of ownership could succeed would be a case in which there is evidence of the ownership of the property being vested in the accused person. In this case Mr. Singo did in fact tried to argue that, the money belonged to him, as it was his rent money. However, that argument was abandoned in view of the fact that the money was paid by OPIC to Mr. Rai under the rental agreement between Mr. Rai and Mr. Singo, due to OPIC’s inability to provide Mr. Singo with its own institutional house. Mr. Singo therefore abandoned that argument and he did so correctly given the earlier reasons.

This leads us to the final issue on which this appeal turns. The issue here is whether Mr. Singo dishonestly applied the money to his personal use? The answer to that is simply, yes.

There was no agreement between Mr.Rai and Mr. Singo enabling Mr. Singo to apply the money in the way he did. He did not seek any approval from Mr. Rai to apply the money. Instead, he applied the money mainly for his own personal use. Then after having applied the money in that way, he notified Mr. Rai. Mr. Rai did not approve of the application of his money by Mr. Singo in the way Mr. Singo used or at all. He therefore left it to the hands of the police to deal with Mr.Singo.

As the National Court found, we find that Mr. Singo departed from the original and only agreement between him and Mr. Rai. The original agreement was for Mr. Singo to collect the rental monies from OPIC as and when they fell due and have them deposited into his (Mr. Rai’s) own account. For that purpose, he left his passbook account with him. Instead of acting in accordance with that, Mr. Singo opened a trust account with the Bank of South Pacific. That we find was purposely to facilitate a withdrawal of the funds. In that way, he was able to withdraw the funds and apply them toward his own use. Only a small portion of that was purportedly applied to carrying out unspecified repairs and maintenance to the property. Mr. Rai took issue on that and went into sworn evidence showing that there was no repair and maintenance to the house.

In the end we find that, the learned trial judge was correct in finding against Mr. Singo on the issues that were properly before him. We do not find any identifiable error warranting an interference with the trial judges finding and conviction. We therefore, order a dismissal of the appeal and confirm the conviction by the National Court.
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Lawyers for the Appellant: Harricknen Lawyers
Lawyers for the Respondent: The Public Prosecutor