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Mai v Madang Development Corporation Ltd [2016] PGSC 82; SC1576 (20 May 2016)

SC1576

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 64 OF 2013

BETWEEN
EMMANUEL MAI
Appellant


AND
MADANG DEVELOPMENT CORPORATION LIMITED
First Respondent


AND
RABTRAB MADANG LIMITED
Second Respondent


AND
RABTRAB NIUGINI LIMITED
Third Respondent


AND
G LUTZ COMPANY LIMITED
Fourth Respondent


AND

ANDERSON FOODLAND LIMITED

Fifth Respondent


Waigani: Injia CJ, Ipang J & Lindsay J
2016: 28th April, 20th May


CONTEMPT OF COURT - Lawyer - Failure to comply with order for payment of client's money - Unable to comply with Court order because lawyer misappropriated client's trust funds- Guilty plea- punishment- Imprisonment for 9 months- Appeal against severity of punishment - No error shown- Appeal dismissed.


Counsel:


S Ketan, for the Appellant
J Haiara, for the First Respondent


20th May, 2016

  1. THE COURT: This is an appeal against severity of punishment for contempt of court. The appeal is from a decision of the National Court to punish the appellant with a term of imprisonment of nine (9) months for breaching a court order to pay K700, 000 and within three (3) days.
  2. The appellant is a lawyer by profession and conducted private practice. At the material time, the appellant acted for the first respondent in National Court proceedings OS No. 225 of 2006 in a case brought by the first respondent against the other parties in these proceedings. The money was part of the proceeds of a sale of property which the appellant conducted on behalf of the first respondent and was paid into his firm's trust account. In 2012, the first respondent engaged Henaos Lawyers to act on its behalf. On 11 May 2012, on application by the first respondent, the National Court ordered the appellant to pay into Henaos Lawyers’ trust account the sum of K700,000 within three (3) days. The appellant did not comply with the order.
  3. On 14th August 2012, the first respondent brought a motion for punishment for contempt against the appellant for breaching the Court order. The motion was heard between December 2012 and March 2013. The appellant admitted the charge. He said he had applied the money to his own use with the intention to repay the money when funds from other clients became available and pleaded for leniency on sentence and more time to find the money to repay. He said he applied the money to his own use because it was during a period of time when his client's entire board of directors and management had been removed and there was no one to account to. The trial judge considered the mitigating and aggravating factors and the seriousness of the contempt and imposed a term of imprisonment for nine (9) months.
  4. In this appeal, the appellant contends that although all the mitigating factors were taken into account in his favour, they were given inadequate weight and this led to an error in the exercise of sentencing discretion. If they were given due weight, the court would have imposed a fine or a wholly suspended imprisonment term. The appellant's counsel referred us to those mitigating factors as follows:

Fresh evidence


  1. Subsequent to the conviction and punishment, two (2) further developments occurred. First, his medical condition worsened. There is fresh evidence adduced on appeal with leave, in the form of an updated medical report that shows that his medical condition has not improved since the last medical report in June 2013. His condition is “progressively worsening” and will require ongoing treatment to prevent acute asthmatic attack and surgery to address breathing associated complications.
  2. The second is that he has by now repaid all of the money except for K72, 000 being the interest component that remains unpaid.

The appellant’s arguments


  1. The appellant submits the trial judge committed several errors in the exercise of his sentencing discretion. The trial judge gave no or insufficient weight to the mitigating factors mentioned above.
  2. It is submitted the sentence is inconsistent with the sentencing trend for contempt cases handed down in the National Court and the Supreme Court. He refers us to several National Court decisions in which punishments range from an order for costs (Concord Pacific Ltd v Thomas Nen [2000] PNGR 47) or a fine with default penalty (Milupol Development Corporation v Garai (2012) N4635, Yap v Tan & Ors [1987] PNGLR 227, Bank of South Pacific Ltd v Anton Sekum & Ors [2011] N4588; to imprisonment from 6 weeks to 6 months (Robert Kadidi v Agua Nombri [2014] N5818, Sr Dianne Liriope v Dr Jethro Urusup (2009) N3931, Bishop Bothers Engineering Pty Ltd v Ross Bishop [1989] N690).
  3. It is submitted the primary concern in sentencing is to demonstrate that court orders are to be obeyed and this is achieved by a fine which has a punitive effect and vindicates the authority of the court and cites in support Pioneer Heath Services Ltd v Gabriel Yer, Secretary for Finance & The State (2008) N3326.
  4. It is submitted contempt committed in this case was unintentional, not deliberate and contumacious. It was in the nature of a technical contempt in that he did not comply with the order because he did not posses the financial ability to pay. In the case here, this was a judgment for a sum of money which was recoverable through other ways as any ordinary judgment debt, that the breach was not intentional because he just did not have the ability to meet the judgement, that he was looking for ways to meet the judgement.
  5. It is submitted the appellant has left legal practice and is doing consultancy work to repay the full amount. The appellant is no longer practicing law which is considered a punishment in itself.
  6. It is submitted the appellant was referred to the PNG Law Society for disciplinary action and the police fraud squad for criminal investigation. Though no action has been taken by these bodies against the appellant to date, the fact that he was referred to these bodies for investigation and prosecution is an additional punishment.
  7. In these circumstances, the punishment is excessive. The trial judge fell into error in choosing imprisonment over other alternative punishments such as a fine.

The first respondent’s arguments


  1. The first respondent submits the appellant has failed to show that the trial judge committed an error. The trial judge carefully stated all the mitigating factors and the aggravating factors, carefully analysed them and gave appropriate weight to each of those factors and balanced them. He submits the circumstances of the offence which involved misuse of trust funds and breach of trust resulting in the appellant’s inability to comply with the court order is a serious matter which the court considered. It had taken thirteen (13) months for the appellant to find the money to repay, and even by the time he was imprisoned, he had made no effort to pay up. In light of the sentencing trend applied by the court as demonstrated by Robert Kadai v Agua Nombri (supra), Sr Dianne Liriope v Dr Jethro Usurup (supra), Yap v TS Tan (supra); and Bishop Brothers Engineering Pty Ltd v Ross Bishop (supra), the sentence is not severe. The repayment of K700,000 after the conviction and punishment is irrelevant. The misappropriation of the funds and breach of trust were wilful and the trial judge correctly meted out the punishment to the appellant.

Decision


  1. A conviction and penalty for contempt of court is criminal in nature conviction for which the ordinary penal law applies. This appeal court's power to review the sentence imposed by the trial judge is given by s 23 (3) of the Supreme Court Act and the same power is exercised in an appeal against punishment for contempt of court. Section 23 (3) provides:

"(4) On appeal against sentence, if the Supreme Court is of (the) opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal."


  1. The judicial determination of punishment for contempt of court is discretionary. The circumstances in which the appellate court will interfere with the sentence imposed by the trial judge is limited to the identification of a clear error of principle of law or fact. The appellate court will not ordinarily interfere with the sentence because the trial judge is in a better position than the appellate court to assess the material before him and determine an appropriate penalty: William Norris v The State [1979] PNGLR 605. The appellate court will only do so if it is shown that the trial judge erred in acting on a wrong principle, has overlooked salient facts, misunderstood, undervalued, overestimated or wrongly assessed the facts: Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510; Kali Mari v The State (1980) SC175.
  2. Both counsel referred us to the sentencing trend in contempt cases in this Court and the National Court. The cases cited to us by counsel and in the more recent case of Toami Kulunga v Geoffrey Vaki & 2 ors (2014) SC 1394 which was not cited to us, do not establish a clear pattern in terms of the choice of punishment between the different sentencing options. Those options include order for costs, reprimand, fine or partly or wholly suspended term of imprisonment.
  3. In Vaki v Kulunga, the Supreme Court punished three (3) lawyers for contempt because they played different parts in submitting a draft consent order for the judge's endorsement when the judge had reserved the same points for decision and was in the process of deliberating on his decision. The Supreme Court examined the cases decided since The State v John Rumet Kaputin [1979] PNGLR 544 and the cases that followed including some of the cases cited by counsel in this appeal, and went on to note that recent cases of publication contempt (category 3) and involving incidents within the precincts of the National Court in Madang (category 5) attracted imprisonment terms ranging from 6 months to 9 months. There are two (2) groups of cases referred to in that decision where the National Court imposed sentences ranging from six (6) to twelve (12) months imprisonment without suspension in cases involving disobedient contempt of a court order, mitigating and aggravating factors considered: Kalip Salo v Peter Gerari & Lawrence Polain (2005) N2923, : Ian Augerea v David Tigavu (2010) N4188, Ian Augerea v Augustine Koroma [2014] N5475, Ian Augerea v Peter Yama (2014] N5476 and Ian Augerea v Hon Anton Yagama MP [2014] N5477.
  4. In Kulunga v Vaki, the Court viewed the seriousness of the contempt and imposed a substantial fine ranging from K10, 000 to K20,000. The Court assessed all the mitigating factors and aggravating factors. Many of those mitigating and aggravating factors are similar to those in the case before us. The court noted the contempt in that case and stated that:

“each of the contemnors was involved to varying degrees in a course of conduct that was ill-conceived, highly irregular, in breach of the Supreme Court Rules, unprofessional, unethical, an abuse of process and disrespectful of the Court and the Chief Justice” (aggravating factor”).

It was the nature of this contempt that the Court concluded there was lack of disobedience and intention to interfere with the due administration of justice that called for a non- custodial sentence in the form of a substantial fine.


  1. The sentencing practices for contempt of court in this jurisdiction for imprisonment is still evolving and no clear pattern emerges from the contempt cases decided in this jurisdiction. In establishing some guidelines in sentencing of contemnors, we formulate some principles. In developing these principles, we have had recourse and gained much assistance from the decision of the full Court of the Federal Court of Australia in Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC, a case that was cited by the trial judge in his decision and in an earlier decision of the trial judge in Bank of South Pacific v Anton Sekum & ors (2011) N4588. Vaysman reflects the modern sentencing trend for contempt in the Federal Court in Australia which we find useful in developing our own set of guidelines, under nine (9) headings in the proceeding paragraphs.
  2. The starting point in determining sentence for breach of a court order for the doing of an act is always the nature and seriousness of the offence of contempt. The nature and seriousness of the contemptuous act are always the paramount considerations against which any other considerations, mitigating and aggravating factors, are considered on the overall scale in arriving at a decision on the form and severity of the punishment. As to what is the nature of the contempt, the Supreme Court in Kulunga v Vaki identified six categories of contempt as follows:
  3. These categories are by no means exhaustive and those listed here not necessarily in the order of importance as they all are important. Of the five categories, we would think that the third category, disobedient contempt, would rank high because compared with the other four categories which are not supported by any pre-existing judicial determination compelling action, "disobedient contempt" follows from a judicial determination that compels action and if such action is not taken, the contemptuous act immediately gives rise to an enforceable legal duty.
  4. The seriousness of the defiance of the court's authority dictates the type and gravity of punishment to be imposed. All types of contempt are serious in that they undermine the authority of the court and interfere in the administration of justice. However for purpose of determining an appropriate punishment from amongst the options available to the Court, it is relevant to take into consideration all relevant factors including the following:
(3) Alternatives
  1. The choice between other non- custodial options and custodial punishment is not an easy task to undertake for any Judge, but one that must be done. Imprisonment is but one of the options available under the penal law for punishment for an offence, the others being a fine and a partially or wholly suspended custodial sentence. Imprisonment for contempt is of course the last resort because it is a serious form of punishment that results in the deprivation of personal liberty; it is imperative that other options should be considered and exhausted before imprisonment is imposed as an appropriate punishment that is warranted by the circumstances of the case.
  2. There is a general consensus that overall," restraint is appropriate in imposing sentences of imprisonment for contempt of court involving contravention of, or failure to comply with, orders of the Court. The authority of a court can be brought into disrepute, rather than enhanced, by too great a tendency to punish severely in cases that do not warrant severity." (per Gray J at paragraph 49, page 31.
  3. Imprisonment is a penalty of last resort. “In any sentencing process, imprisonment is to be regarded as the penalty of last resort. Any period of deprivation of liberty is a drastic imposition on anyone. The value the law places on liberty is very high. It is incumbent on the sentencing judge to determine first whether any alternative to imprisonment would be appropriate.” (per Justice Gray said at page 33, paragraph 54)
  4. The use of imprisonment should be rarely used as a disciplinary sanction. “The use of imprisonment (or threat thereof) in order to coerce compliance with court orders is a necessary tool in dealing with contempt of court and will be justifiably utilized from time to time. Imprisonment as a disciplinary sanction for contempt, ought to be confined to the most serious of contempts. If as Merkel J in Louis Vuitton identified, imprisonment should be reserved “for the most serious criminal contempt cases”, it follows that in the absence of serious contumacious disobedience, imprisonment should rarely be imposed as a disciplinary sanction.” (per Justice Bromberg in the same case observed at page 56, paragraph 178).
  5. If the contempt of court, though committed, is one that may be regarded as undeserving of punishment, the Court may instead of passing punishment discharge the contemnor with a reprimand or order costs of the proceedings against the contemnor. A technical contempt occurs where the disobedient contempt, though committed, has little or no consequences for the due administration of justice; or that it does not result in any loss or damage to the interest of any person that has a beneficial interest in the duty imposed on the contemnor by the court order. Such circumstances known as technical contempt include the disobedience conduct that is "casual, accidental and unintentional disobedient conduct. For example, see Concord Pacific Limited & Paiso Company Ltd v Thomas Nen [2000] PNGLR 2000.
  6. Whether the disobedience is wilful, intentional or deliberate goes to the state of mind of the contemnor and ascertained from the express actions and words of the contemnor.
  7. Where no express action or words are used, intention is also inferred from the contemnor's behaviour or conduct as a whole. Examples include gross carelessness or negligence or, reckless behaviour: Kwimberi v The State (1998) SC545; and, actions that are ill-conceived, highly irregular, in breach of the rules of court, unprofessional, unethical, an abuse of process and disrespectful of the Court: Kulunga v Vaki (supra).
  8. Intentional, deliberate and wilful disobedience, express or implied, seriously undermines the court's authority and ought to be visited with a punitive and deterrent punishment.
  9. If the contemptuous act is of a nature that seriously undermines the Court's authority to administer justice and brings it into disrepute, then a firm and severe penalty is called for to vindicate the court's authority that has been eroded. Of course a fine is punitive because it has a dual objective of vindicating the court's authority and disciplining the contemnor, but where imprisonment is necessary to reflect the seriousness of the contempt, the court should impose that custodial punishment in an appropriate case.
  10. The trial judge in this case applied some of the pertinent principles in the Vaysman case. After taking into account all the mitigating and aggravating factors, the trial judge considered that the appellant’s breach of professional duty and trust which led to the breach of his duty to the court and to obey the court order weighed heavily in favour of imprisonment. The trial judge said:

“ This may be the first occasion as far as I am aware, of a lawyer in this jurisdiction being found guilty of contempt of court for failing to comply with a court order for the payment of money. The seriousness of the continued breach of the Payment order by Mr Mai, a practicing lawyer at the time the Payment Order was made, in my view dictates that the punishment that should be imposed should properly reflect this Court’s attitude to the disobeying of a Court Order and the concomitant interference with the administration of justice and undermining of judicial authority. Notwithstanding that it may be said that Mr Mai’s contempt is business related, it arising from him holding part of the proceeds of the sale of a property on behalf of a client, and therefore that a fine is appropriate, the very substantial amount of money that remains owing, the continuing breach and the fact that Mr Mai was a practicing lawyer at the time that the Payment Order was made, leads me to the conclusion that a monetary penalty is not appropriate. In this regard, it must be remembered that a lawyer’s first and paramount duty is to the court. The seriousness of the non-payment of such an amount warrants a term of imprisonment. A term of imprisonment will also serve as a warning to others, especially lawyers, that court orders must be obeyed and that there are consequences for non-compliance. Given the circumstances, I am not satisfied that any part of the term of imprisonment that I intend to impose should be suspended”.


  1. In this appeal the appellant has down played the serious nature of the contempt expressed by the trial judge in the above passage. The appellant's response is that the trial judge failed to consider that the breach was unintentional and one of technical contempt; it is not that he had the money to pay up but failed to; he did not have the money to pay and the time given to pay was short.
  2. The nature of the contempt and its seriousness in this case in our view is differentiated from the nature of the contempt committed by the three (3) lawyers in Kulunga v Vaki. The contempt here involves a breach of a court order to pay a sum of money within a fixed time and disobedience of that order. We agree with the trial judge that the disobedience was intentional and contumacious. It is true that the money was no longer with the appellant because he had misappropriated the money. It was a substantial amount of money that only he knew the whereabouts of that money; and it was within his power and ability to find the money from wherever he diverted the money to, deposited or invested and to retrieve that money to satisfy the court order. If he anticipated difficulties in satisfying an order to pay up, he would have expected to raise it at the time the Court order was first made and the Court could have given him sufficient time to pay up. That he did not. Even then, he had enough time to purge the contempt between the time the court order was made up to the time the contempt proceedings were determined. Some thirteen (13) months passed without the money being fully repaid. He only paid up in compliance with a condition of his release on bail pending appeal. These actions clearly show that he intentionally breached the court order and the breach was contumacious.
  3. Apart from breaching professional rules of conduct, it is a criminal act for a lawyer to misappropriate a client's trust account funds. Nothing could be more serious than misappropriating a client's trust account money let alone substantial amount of funds.
  4. With regard to the argument that this was a case of technical contempt and therefore undeserving of imprisonment, we agree with the trial judge for the reasons he gives that the facts of this case clearly showed the disobedience was deliberate, contumacious, in deliberate breach of his professional duty to his client and especially to the Court that resulted in loss of funds to his client. Clearly, the facts do not support a technical contempt.
  5. The nature and seriousness of the disobedient act are important factors that influence any decision to impose a punitive and deterrent punishment. Disobedient contempt undermines and strikes at the system of justice administration and must be dealt with firmly when it occurs. The seriousness of the act of disobedience of a court order should not be downplayed and giving more emphasis than necessary to self-serving matters personal to the contemnor. For if such were the mainstream judicial approach to sentencing contemnors, the authority of the Courts and the Judges will be undermined and eroded. The courts of law will become disrespected and disregarded in the process and the people will suffer in the process. Therefore, as with serious crimes under law, a deterrent and punitive sentence is appropriate for disobedient contempt.
  6. When disobedient contempt is committed by a law officer or an officer of the court, it is a serious matter. Lawyers are officers of the court and they owe it a duty to obey court orders. Whilst punishment of lawyers for contempt calls for due recognition of their personal prior good character professional status and experience, the seriousness of the disobedient conduct overrides those mitigating factors. Disobedient contempt by lawyers strikes at the engine-room of the judicial process and the Court should take every step necessary to punish the contemnor with an appropriate punitive and deterrent punishment.
  7. The disobedient conduct in this case is the failure to pay the money taken from the lawyer's trust account because he did not have the money to repay within the time fixed by the Court. The taking of the money was of a criminal nature and if he were prosecuted under the ordinary criminal law and he pleaded guilty, going by present sentencing trends in this country for crimes involving fraud and dishonesty, a deterrent and punitive punishment in the form of imprisonment for a lengthy term could have been imposed on the appellant in this case. The sentence imposed in this case is pretty much on the very low end of the sentencing scale for those kinds of offences.
  8. The disobedient contempt in this case was committed in relation to a payment of a sum of money. During argument the Chief Justice raised the point with counsel that a judgement for a sum of money creates a judgment debt which is enforceable in the ordinary way; punishment for contempt may not be appropriate to compel the judgment debtor to satisfy the judgment debt. Although counsel for the appellant adopted the point in his submissions, it appeared both counsel were not prepared to address us on the point because it was not raised and dealt with in the court below. Nonetheless, we are satisfied this was an appropriate case of such seriousness that it is one of those rare cases of the most serious contempt cases of contumacious disobedience that warranted the imposition of imprisonment as a disciplinary sanction to some extent.
  9. The sentencing trend for contempt of court in this country, as we have already observed, shows both caution and restraint on the part of the National Court and the Supreme Court in punishing contemnors. There is a general pattern developing that the Courts will not rush to impose imprisonment except in the most serious of contempt cases. The trial judge in this case likewise adopted a cautious approach and chose imprisonment over other sentencing options because he considered a punitive, deterrent and disciplinary sanction was appropriate in circumstances where a lawyer, an officer of the Court had deliberately misused or misappropriated his client’s money which was money of a substantial amount and only a imprisonment term without suspension would serve the purpose of punishment for disobedient contempt in the circumstances. We do not find any error in the way the trial judge applied the correct principles and determined the appropriate punishment.

  1. We are satisfied that no error in the exercise of his discretion has been shown. The trial judge took all relevant matters into account and imposed a punishment that reflected the nature and seriousness of the contempt whilst at the same time taking into account all the relevant mitigating and aggravating factors. We also consider that the term of imprisonment was very much lenient.
  2. With regard to the two fresh matters, their weight are reduced significantly by reason of the fact that the full repayment came under compulsion of the bail condition to stay out of prison and it came too late. In any event, there was a judgment debt for a large sum of money created by the Court order for payment to be satisfied by the appellant which would not be affected by the punishment for contempt. It served his own purpose to relieve himself of the debt by making the payment.
  3. With regard to the medical report, the medical report provided earlier did show some serious medical ailment of the appellant but the trial judge was convinced that given the seriousness of the disobedience and no evidence that imprisonment will be harmful and the appellant will not be able to receive medical treatment whilst in prison, the sentence should not be suspended. The post -conviction worsening state of his medical condition is not unexpected and it should not be a reason to suspend the whole or part of the sentence. If medical attention is required, the jail authorities should be able to assist the appellant to seek medical attention in the jail or convey him to an external hospital for treatment.
  4. Furthermore, it is becoming a common occurrence for well to do people to use their medical condition and family welfare as grounds for staying out of prison, either on pre-trial remand or serving a term. Bail applications of people in remand and appellants pending appeal are often relying on such reasons to avoid spending time in jail for their wrong-doing, and too often than not, courts and judges are subscribing to those demands. Whilst an offender's medical condition is a relevant factor to be taken into account in determining alternatives to imprisonment, such reason should not be accorded overriding consideration by the courts; the nature and seriousness of the contempt and the need for a punitive and deterrent sentence are the overriding considerations.

Conclusion


  1. For the foregoing reasons, the appeal against sentence is without merit and it should be dismissed.

Orders


  1. The orders of this court that we propose are as follows:
  2. IPANG, J: I have had the benefit of reading the joint judgment of the President of the Court, Injia, CJ and Lindsay J. The background facts, the appellant’s arguments and the first respondent's arguments are well covered by their honours. I need not restate the background and the arguments raised by both the appellant and the first respondent.
  3. I will address my view on the issue before this Court. The appeal to the Supreme Court is on severity of the nine (9) months imprisonment or custodial sentence imposed by the National Court on the 13th of June, 2013 (in OS. No. 225 of 2006: Madang Development Corporation Ltd & 4 ors v. Emmanuel Mai). The appellant pleaded guilty to the charge of contempt for non compliance of Court Order of 11th May, 2012 to pay MDC’s Lawyer’s Trust Account a sum of K700, 000.00. Soon after the custodial sentence of 9 months imprisonment was imposed, the appellant applied for bail on the 17th of June, 2013. Bail was granted with conditions such as payment of K480, 000.00 by 15th July, 2013 being the amount outstanding on the principle amount of K700, 000.00 plus interest as at that time, the amount of K360, 000.00 having being paid prior to 17th June, 2013. At this time of the proceeding the appellant has paid all monies except K72, 000.00.
  4. The contempt of Court is a wilful act, omission or statement that tends to impair the authority or impede the functioning of a court. The primary purpose of the contempt power is to preserve the effectiveness and sustain the power of the Courts. A secondary purpose is to protect and enforce the rights of the parties by compelling obedience to court orders and judgements.
  5. To carry out the foregoing purposes, courts impose general types of sanctions. For criminal contempt, the court imposes punitive sanctions to vindicate its authority. For civil contempt, the court imposes coercive sanctions to force compliance with its orders.
  6. It is therefore my view that it is equally important to distinguish between civil contempt from criminal contempt or vice versa. However, it may not always be easy to do that. One such way is to look at the purpose of the sanctions.
  7. The sanctions for civil contempt are coercive and remedial in nature. They are intended to compel compliance with a court’s directives by imposing a conditional sanction until the contemnor complies or no longer has a duty or the ability to comply. (Sutherland v. Sutherland, The Times, April 19 & May 6, 1893). See also Order 14 Rule 50 National Court Rules. The sanctions for criminal contempt are punitive in nature. They are intended to preserve the court’s authority by punishing past misconduct through imposition of a fixed sanction where there is no opportunity or need for the court to compel the contemnor’s compliance with its orders. (See Attorney General v. James [1962] ALL ER 255).
  8. In Gompers v. Bucks Stove & Range Co. [1911] USSC 79; 221 US 418, as stated in Contempt of Court Bench Book (Revised Edition) Michigan Judicial Institute 2000, the Court laid down the so-called general test for distinguishing civil and criminal contempt. This test states:

“The distinction between refusing to do an act commanded, -remedied by imprisonment until the party performs the required act; and doing an act forbidden, -punished by imprisonment for a definite term; is sound in principle, and generally, if not universally, affords a test by which to determine the character of the punishment.” (Underlining mine)


  1. The Order 14 Rule 49 of the National Court Rules which provides for the punishment for contempt reads.

49. Punishment. (55/13)

Where the contemnor is not a corporation, the court may punish contempt by committal to prison or fine or both.


  1. Obviously, the 0.14 R 49 NCR does not prescribe the minimum or the maximum term of imprisonment. However, if whatever punishment is to be imposed it should commensurate with the offence (Public Prosecutor v. Nahau Rooney (No. 2) PNGLR 448. Wilson, J in Nahau Rooney (No.2) Case stated that imprisonment for contempt of court should only be reserved or imposed only where a serious contempt has been committed. As to what amounts to a “serious contempt” the following considerations had to be taken into account.

58. Imprisonment has always been a sanction in cases of contempt (see Robert Kaidi v. Agua Nombri [2014] N5818, Sr. Dianne Liriope v. Dr.JethroUrusup[2009] N393, Bishop Brother Engineering Pty Ltd v. Ross Bishop [1989] N690), Ian Augerea v. Anton Yagama (OS. No. 473 of 2013) N5477, etc.


59. In Ian Augerea v. Anton Yagama(supra) Cannings, J considered Sakora, J’s approach in Luga v. Sikani(2002) N2285 in which Sakora, J focused on the seriousness, nature and the extent of the contemnor’s contempt and reached the considered view that committal to custody was a far more appropriate punishment than a fine. However, on appeal to the Supreme Court, the Supreme Court (Sikani v. The State and Peter Luga (2003) SC 807 said nothing on appropriateness of the form or extent of the punishment.


60. In Sr. Dianne Liriope case (supra) and Ian Augerea v. David Tigavu (2010) N4188, Cannings, J stated that prison terms for contempt of court provide a more effective deterrent than a fine. It underlines the seriousness of the matter if a contemnor is required to spend time in prison. It reinforces the absolute duty of everyone to respect the court.


61. In Re Valentine Kambori(No.3) (2003) N2490 as quoted by Cannings, J in Yagama’s case (supra) Sevua, J (as he then was) observed and I quote:


Whilst the Court is very mindful of who and what he is, it must be highlighted in this case, as it has been in numerous other cases that contempt of court is a serious matter. And while the Court will consider a person’s interest on the circumstances of his case, the Court does not stop to look and select that the person should not go to prison because he is a politician or a senior civil servant or bureaucrat. It is one law for everybody.


I have especially taken into account the submission that the contemnor be spared a prison term. But I am of the view that the Court must not allow its authority, due process and its administration of justice to be ridiculed and flouted. When this happens, it is my view that the Court must be able to deal with the contemnor sternly and decisively.


  1. In the recent times, cases involving contempt of Court have been frequenting the National Courts. I agree with their honours that sentencing patterns for contempt of Court is still at its infancy stage and yet to be developed with appropriate sentencing guidelines. It is my view that the time is now appropriate to develop sentencing guidelines and I fully endorse the approach suggested by their honours; in expounding on and relying on the principle in Vaysman v. Deckers Outdoor Corporation Inc[2011] FCAFC and as relied on by the trial judge in Bank South Pacific v. Anton Sekum & ors (2011) N4588 to develop our own sentencing guidelines for Contempt of Court cases.
  2. The decision of the trial judge on Contempt of Court in this instant case is found on pages 105-110 of the Appeal Book. Much of the grounds of appeal have been addressed by the trial judge. These are taking into account the mitigating and aggravating factors. (Appeal Book pages 108-109) but whether the judge did not give due consideration and sufficient weight thus reaching a severe penalty need to be further considered. However, the trial judge apart from considering the mitigating factors and aggravating factors held that the appellant as a lawyer owed a professional duty, a fiduciary obligation to his clients and more so duty to the courts. The trial judge stated;

“.....the seriousness of the continued breach of the Payment Order by Mr. Mai, a practicing lawyer at the time that the Payment Order was made, in my view dictates that the punishment that should be imposed should properly reflect this Court’s attitude to the disobeying of a Court Order and the concomitant interference with the administration of justice and undermining of judicial authority.... In this regard, it must be remembered that a lawyer’s first and paramount duty is to the Court. The seriousness of the non-payment of such an amount warrants a term of imprisonment. A term of imprisonment will also serve as a warning to others, especially lawyers, that Court Orders must be obeyed and that there are consequences for non-compliance. Given the circumstances, I am not satisfied that any part of the term of imprisonment that I intend to impose should be suspended.” (Underlining mine)


  1. In respect to the appellant’s former client, the appellant had misappropriated the large sum of monies he held for them in trust. Therefore the appellant had breached the trust between himself and his former client. In respect to the Court, the trial judge observed that the disobedience with Court Order was continuous and that the judgement involved substantial amount of monies.
  2. The medical report which was before the trial judge revealed the appellant to be a asthmatic patient. A new medical report produced to the Supreme Court with leave revealed that the appellant's medical condition had worsen whilst he was out on bail. The trial judge took note of the appellant’s medical condition and ruled that the appellant could still serve his prison term and still have access to medical treatment. It is generally observed that many well to do Papua New Guineans resort to their personal conditions and medical reports to seek easy way out when facing likelihood of being remanded in custody.
  3. The appellant has been found guilty, convicted and sentenced to 9 months imprisonment following normal criminal process. Because of this, the appellant’s sanction of contempt is criminal in nature.
  4. In relation to appeal against Sentence, the Supreme Court in Ben Wafia v. The State (2006) SC 851, the Court stated:

“A sentencing judge has a wide discretion. On an appeal against sentence the appellant must show that the sentencing judge has erred in the exercise of his discretion. Although there may be no identifiable error, if the sentence is out of all reasonable proportion to the crime there is an unidentifiable error”


68. Then in William Norris v. State [1979] PNGLR 605 at p.615 Kearney, J (as he then was) stated:


“The principle applicable is that the sentence imposed by the trial judge should not be disturbed unless the Appellant can show that an error had occurred which has the effect of vitiating the trial judge’s discretion on sentencing.


69. The appellant must show or demonstrate that the trial judge erred or acted on wrong principle of law etc... See Wanosa & Ors v. Queen [1971 -72] PNGLR 90: and also Muro v. State [2006] PGSC 11; SC 842 (30 June, 2006).


70. Sentencing is a discretionary matter. I have not found any error on the part of the sentencing judge that could invite interference with the exercise of the sentencing discretion of the trial judge.


71. The Contempt of Court and more so, continuous disobedience of Court Order by a person in the likes of the appellant who is a lawyer with years of experience simply cannot be down played by reason of inability to pay off the debt or judgement. The Court must be on guard to preserve its effectiveness and sustain its powers.


72. Because of the reasons given, I agree with the conclusion and Orders proposed by their honours.


Orders accordingly
________________________________________________
Ketan Lawyers: Lawyer for the Appellant
Haiara's Legal Practice: Lawyer for the First Respondent

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