SC2739

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV NO. 67 OF 2024

DR HARRY POKA, FR SIMON KEWANDE & JOHN YUL BRO
 Applicants

AND 
THE STATE
Respondent

WAIGANI: SALIKA CJ, BERRIGAN J, NAROKOBI J
28 APRIL, 29 MAY 2025

CRIMINAL – APPLICATION FOR REVIEW OF CONVICTION – Section 383A(1A), Criminal Code, Misappropriation - Dishonesty – Section 407(1)(b), Criminal Code – Conspiracy to Defraud - Intention to defraud – Section 23(2), Criminal Code, Defence of honest claim of right without intention to defraud – Section 92, Criminal Code, Abuse of Office – Elements and Principles applied – Applications for review dismissed.

Cases cited
Tom v The State (2019) SC1833
Brian Kindi Lawi v The State [1987] PNGLR 183
Wartoto v The State (2019) SC1834
Havila Kavo (2015) SC1450
Wartoto v The State (2019) SC1834
Kaya v The State & Another (2020) SC2026
State v Luma (2021) N8798
Luma v State (2022) SC2249
State v O’Neill (2022)
State v Kombuk (2023) N10284
Mark Bob v The State (2005) SC808 
Avia Aihi v The State [1981] PNGLR 81
Danny Sunu v The State [1984] PNGLR 305 
State v Kissam (2025) N11205

Counsel
C Gagma for the applicants
C Langtry for the State

DECISION

1.	BY THE COURT: The applicants were each jointly convicted of conspiracy to defraud the State of, and of misappropriating State monies in the sum of K175,000, contrary to ss 407(1)(b) and s 383A(1A), Criminal Code, respectively. Dr Harry Poka was further convicted of abuse of office, contrary to s 92(1), Criminal Code. 

2.	At the time Fr Simon Kewande and Mr John Yul Bro were the Chairman and Deputy Chairman of the Board of Sir Joseph Nombri Kundiawa General Hospital, respectively.  Dr Harry Poka was the hospital’s Chief Executive Officer.

3.	The State alleged that the applicants conspired to and did pay monies intended for the hospital to a consultant, Mr Peter Gamai, to which he had no entitlement and, furthermore, that Dr Poka abused his office in this regard.

BACKGROUND

4.	As is sometimes the case in such matters, much of what occurred was not in dispute and a number of facts were agreed at trial.  In particular, it was not in dispute that in September 2016 a consultancy agreement was executed by the former CEO of the hospital, with Board approval, in favour of Peter Gamai, to compile a project submission for a new hospital operating theatre building and to follow up and facilitate the release of funds from the Department of National Planning and Monitoring. 

5.	On 5 December 2016, K3.5m under the Public Improvement Program (PIP) was paid to the hospital’s bank account. The monies came from a government allocation under the Public Sector Improvement Program for Hospital Infrastructure.

6.	On 23 December 2016 Peter Gamai submitted an invoice to the hospital claiming K175,000 being 5% of the K3.5m received. The invoice was attached to an undated letter, the consultancy agreement and copies of finance forms and of the cheque for K3.5m. At the time, Dr Harry Poka and John Yul Bro were signatories to the hospital project account to which the K3.5m was paid. The third signatory was Rose Kukhang, the Finance Manager. 

7.	Payment was approved the same day by Dr Poka by letter to the Finance Manager without the usual approval stamp. Both the Finance Manager, Rose Kukhang, and the Administration Manager, Yoba Ababa, questioned the claim. On two occasions between 23 December 2016 and 29 March 2017 Mr Ababa wrote to Dr Poka warning him that payment of the claim was improper. Both John Yul Bro, as Deputy Chairman, and Fr Kewande, Chairman, were copied in.

8.	On 17 February 2017 the Project Steering Committee, chaired by Fr Kewande, at which Mr Bro was present, met to decide how the K3.5m would be spent and determined that consultancy fees would be deducted from the K500,000 allocated for administration costs. 

9.	On 28 March 2017 Dr Poka signed a letter stating that he approved the payment because of the consultancy agreement in place. On 29 March 2017 Dr Poka and Mr Bro approved the cheque for consultancy services to Mr Gamai. On 30 March 2017 Fr Kewande signed a statutory declaration stating that the contract was agreed by the Board and that “the signatories of the claim will not in anywhere (sic) be affected”. The cheque was issued and deposited to Mr Gamai’s account a few days later.

10.	It was the applicants’ defence that they were obligated to pay the claim pursuant to the contract with Mr Gamai which was endorsed by the full board following a private tender process. He delivered the results and had to be paid. 

GROUNDS 

11.	The applicants filed their appeals within time but their lawyer failed to appear at the hearing and their appeals were dismissed. Leave was granted to the applicants to review their convictions pursuant to s 155(2)(b) of the Constitution by a single Supreme Court judge on numerous grounds and sub-grounds which are prolix and repetitive. 

12.	In short, it is contended that the trial judge erred in: a) finding that the applicants acted with an intention to defraud and/or dishonestly; b) failing to warn himself when considering the evidence of certain State witnesses; c) failing to apply the defence under s 41, Public Hospital Act 2004; and e) finding that Dr Poka acted arbitrarily in abuse of his office.

CONSIDERATION

Intention to Defraud and Dishonesty  

13.	The trial judge found that the payment of Mr Gamai’s claim was dishonest having regard to the totality of the circumstances, including that Mr Gamai was engaged outside the required tender process and that his claim was approved when it appeared that no work was ever performed under the consultancy agreement. No project submission was produced in support of his claim and no other documentation was produced to show that he was in any way responsible for the monies provided to the hospital. He did not secure new monies. The monies were already budgeted for the hospital. Payment was made on an urgent basis when no such urgency was required. The monies were approved for payment even before the K3.5m had been deposited to the hospital’s project account. Staff concerns were dismissed with heavy-handedness. When Yoba Ababa raised concerns, he was called in to Dr Poka’s office and issued with a public service charge and suspension. Rose Kukhang said that she was put under pressure to sign the cheque by Mr Bro who refused to sign other cheques, including casual staff wages, which held up operations at the hospital. Similarly, when Gabriel Kuglsuna raised concerns, Mr Bro refused to sign other cheques until Mr Gamai’s claim was processed telling him that it was “the Board’s prerogative”. The cheque was ultimately issued in April 2017 after Fr Kewande signed a statutory declaration to the effect that the signatories would not be “affected” or responsible for doing so.

14.	The trial judge further found that all three accused were aware of Mr Gamai’s engagement. It was Dr Poka who approved the payment. Fr Kewande and Mr Bro were involved in Mr Gamai’s engagement and both put pressure on Dr Poka to fast-track payment. The letter of 28 March 2017 signed by Dr Poka showed that he was aware that the payment to Mr Gamai was improper. All three were aware of the objections raised by staff and all put pressure on staff to process the claim. Fr Kewande chaired the project steering committee which approved the payment of consultancy fees from monies earmarked for administrative costs with no proper discussion and it was he who signed the statutory declaration of 30 March 2017.  

15.	A conspiracy to defraud is an agreement between two or more persons to use dishonest means to deprive a person of property which is his or hers or to which he or she might be entitled or to put the property of that other person at risk, or to imperil some lawful right, interest, opportunity, or advantage of another person: s 407(1)(b), Criminal Code; Roland Tom v The State (2019) SC1833; Scott v Metropolitan Police Commissioner [1975] AC 819; Peters v The Queen (1998) 192 CLR 493 adopted and applied; Potape v The State (2015) SC1613 clarified; summarised in State v Kissam (2025) N11205. 

16.	The applicants have failed to demonstrate any error in the trial judge’s factual findings or in his finding that the applicants conspired with one another to use dishonest means to deprive the State of the monies paid to Mr Gamai in the circumstances.     

17.	It is the case that the trial judge did not expressly refer to the subjective test when considering the element of dishonesty for the purposes of the misappropriation charge. There can be no doubt, however, that it was dishonest according to the standards of honest and reasonable people for Dr Poka to apply State monies to Mr Gamai’s use knowing that he had no entitlement to those monies and furthermore that Dr Poka must have appreciated that it was dishonest according to those standards having regard to his age, experience and education: Brian Kindi Lawi v The State [1987] PNGLR 183; Wartoto  v The State (2019) SC1834; Havila Kavo (2015) SC1450 applied.  Similarly, there can be no doubt that Fr Kewande and Mr Bro aided him for the purpose of s 7(1)(c), Criminal Code knowing that he held the requisite intention which, as above, they also held. 

State witnesses

18.	There is no merit in the claim that the trial judge failed to warn himself before accepting the evidence of certain State witnesses. The witnesses do not appear to us to fall into any category requiring the judge to warn himself. Moreover, the applicants failed to identify those parts of the witnesses’ evidence which the trial judge relied upon which was unreliable, inconsistent or unsafe. 

19.	Margaret Kale, a board member, agreed that the engagement of Mr Gamai was discussed at the board meeting in September 2016 but denied that there was any resolution to that effect. That is beside the point. As above, it was not in dispute and the trial judge found that the board had approved Mr Gamai’s engagement. As for Joel Nime, the hospital’s lawyer, it was not put to him that he advised the applicants in relation to the matter. As to whether he was negligent in drafting the consultancy agreement upon instructions or otherwise failing to give advice that is also beside the point. It is not clear what aspect of Mr Ababa’s evidence the applicants take issue with but his correspondence outlining his objections to payment of the claim were admitted into evidence. Those documents were not in dispute and nor was the fact that he was subsequently issued with disciplinary charges.

Section 41, Public Hospital Act

20.	The applicants contend that the trial judge erred, was biased and failed to give reasons for rejecting the statutory defence under s 41, Public Hospital Act 1994 which provides that a “member of the Board of a public hospital or officer or employee or agent of that public hospital is not personally liable for any act or default of himself or the Board done or omitted to be done in good faith and in the course of the operations of that public hospital or for the purposes of that public hospital”.

21.	The ground is misconceived on all bases. Section 41 does not provide a statutory defence to any offence under the Criminal Code.  It concerns civil liability.  Nevertheless, the trial judge considered the submission and dismissed it saying (emphasis ours): 

“Mr Gagma submits this removes all culpability of the accused Dr Harry Poka and the others. The key words here are acting in good faith. Th[e] actions in my view are not in good faith. I dismiss any reliance placed on this provision. It is a misconception of the provisions.”

22.	We agree with those reasons. The reasons the trial judge gave were succinct and complete. To suggest that the reasons were insufficient because they were brief is misguided. To assert that they demonstrate bias on the part of the trial judge is inappropriate. 

23.	The statutory defence which may be raised under the Criminal Code for an offence relating to property is that of honest claim of right and without intention to defraud in s 23(2), Criminal Code. The principles are well established and need not be repeated here: see Wartoto v The State (2019) SC1834; Kaya v The State (2020) SC2026 and the cases applying. 

24.	The trial judge did not expressly refer to s 23(2), Criminal Code or the relevant principles applying.  Neither counsel assisted him in this regard. It is nevertheless clear that the trial judge considered the defence raised by each of the applicants and rejected it, in particular that they were obligated to pay the claim because it was made pursuant to a contract endorsed by the Board.  Furthermore, the trial judge’s findings beyond reasonable doubt that each of the applicants acted with an intention to defraud the State and that they dishonestly applied the monies to the use of Mr Gamai excluded beyond reasonable doubt the possibility that they acted in an honest claim of right and without an intention to defraud.  See similar analyses in Wartoto v The State (2019) SC1834 at [33] to [39] and Kaya & Anor v The State (2020) SC2026 at [78] to [83].

Abuse of Office

25.	The elements of the offence of abuse of office contrary to s 92, Criminal Code are well established: State v Luma (2021) N8798; affirmed Luma v State (2022) SC2249. Dr Poka contends that the trial judge erred in finding that he acted arbitrarily.

26.	An arbitrary act is one that is not based on a reason, system, or plan, or is unfair, or using power without restriction or without considering other people: State v Luma; affirmed Luma v State; applied State v O’Neill (2022); State v Kombuk (2023) N10284.

27.	The mere failure to comply with procurement requirements will not of itself necessarily constitute an abuse of office. Nor is it necessary for the State to prove dishonesty to establish the offence. For obvious reasons, however, there was no error in the trial judge’s finding that the dishonest application of State monies constituted an abuse of Dr Poka’s office as CEO. 

CONCLUSION

28.	It follows that we are not satisfied that there are cogent and convincing reasons and exceptional circumstances such that some substantial injustice is manifest or that there are clear legal grounds meriting a review of the decision: Mark Bob v The State (2005) SC808 applying Avia Aihi v The State [1981] PNGLR 81; Danny Sunu v The State [1984] PNGLR 305 applied. 

29.	We make the following orders:

(1)	The applications for review of conviction are dismissed.
(2)	The convictions and sentences are affirmed.
________________________________________________________________
Lawyers for the applicants: 	Gagma Legal Services 
Lawyer for the respondent:	Public Prosecutor