DC9011

Papua New Guinea
[In the Criminal Jurisdictions of the District Court Held at Waigani]

SITTING IN ITS COMMITTAL JURISDICTION
 
COM NO 96 OF 2022
CB NO 3688 OF 2022
 
BETWEEN:
 
JOE PUANA
[Informant]
 
AND:
YIP CHEE MING SAM
[Defendant]
 
Waigani: Paul Puri Nii
 
21th September 2022
 
COMMITTAL PROCEEDINGS: Charge- Counterfeiting Trade Mark -Section 477(1) (b) - of the Criminal Code Act. Demonstration of Committal jurisdiction- inaugurating of evidence- Involving the elements of the offence in the Police Hand-up-brief.
 
PRACTICE AND PROCEDURE: Satisfactory know-how for prima facie Case-Elements of the charge of Counterfeiting Trade Mark – defendant denied the Allegation-Elements are Established-Evidence is timely to commit the Defendant -Defendant is committed.
 
PNG Cases cited:
 
Police –v- Kimisopa [2021] PGDC 76; DC6031 (30 June 2021)
Yarume –v- Euga [1996] PGNC 24; N1476  (6 September 1996)
Police- v- Koka [2021] PGDC 53; DC6010
State v Kai Wabu [1994] PNGLR 49

Overseas cases cited: 

References
 
Legislation
District Court Act 1963, Chapter 40
Criminal Code Act
 
Counsel
Police Prosecutor:   Chris Iga                                                        For the Informant
Golu Lawyers:          Mike Golu                                                      For the Defendant

JUDGEMENT ON COMMITTAL
 
21st September 2022
 
INTRODUCTION

NII, Puri. Paul Magistrate. My ruling on whether a prima facie case is proven within the suggestion of Section 95(1) of the District Court Act. The outcome is reached after parties’ interests in the cases are understandingly measured. On 26th May 2022, contended on his submission contesting the proficiency of state evidence offered to the court on 15th March 2021. Accordingly, at present is my presiding on the corresponding opinions outstretched. 
 
CHARGE
                                          
1.	The Suspect is charged with Counterfeit Trade Mark under Section 477(1)          (b) of the Criminal Code  Act . The subsequent are the concentration      charge:
 
"477.    Counterfeiting trade marks.
(1)   In this section—
"counterfeit" includes any imitation of a genuine mark that is not genuine and that resembles the genuine mark;
"trade mark" includes any word or mark of any kind that is lawfully used by any person to denote that any article is—
 
(b)     a thing of a peculiar or particular description made or sold by him is guilty of a misdemeanour. Penalty: Imprisonment for a term not exceeding two years and a fine at the discretion of the court".
 
SUMMARY OF FACTS
 
2.	 Police allege defendant is aged 48 years old and of Perak village of Kuala Lumpur province in Malaysia who was on 24th December 2021, at Shangri Lai club at Waigani in NCD had committed the following offence:
 
"Knowingly used on green can beer (330 ml) a counterfeit trademark of SP Brewery Co. Ltd in such a manner that the trade mark so used signified might reasonably inducing persons to believe that the green can beer was such as was designated by this mark whereas this was not the fact with intend to defraud.
 
ISSUE
 
3.	 Whether evidence in the Police file is suitable to make a prima facie case against the suspect to commit him. 
 
THE LAW 
 
4.	 I have the permitted authority pursuant to Section 95 of the District Court Act to rule on the police evidence put before me. 
 
Section 95 of the District Court Act 1963
 
“95.     Court to consider whether prima facie case.
 
(1)  Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.
 
(2)  If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.
 
(3)  If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division”
 
5.	With secure to the know-how I necessitate, will measure the police evidence to accept whether evidence under investigation is pertinent to commit the accuse or to terminate the charge under examination that presents the crime of Counterfeit Trade Mark under Section 477(1)(b) of the Criminal Code Act. The court’s power under Section 95 of the District Court Act is further strengthened in the case of Police v Kimisopa [2021] PGDC 76; DC6031. The court will now determine police evidence and choose on the proficiency of the provided evidence. Furthermore, the former position is supported  in Yarume v Euga [1996] PGNC 24; N1476. The court in this case enunciates that the determination of committal court is to measure police evidence and designate whether there is suitable evidence sustaining the elements of the subject charge.  
 
ELEMENTS OF THE OFFENCE
 
6.	The elements of the accusation of Counterfeit Trade Mark under Section 477(1)(b) of the Criminal Code Act is documented in the consequent routine: 
 
a)    a thing of a peculiar-A brand other than the original.
b)    or particular description made-writings and labels many look and same as the original.
c)     or sold by him-in the seller’s possession.
 
EVIDENCE
 
7.	The court in Police v Koka [2021] PGDC 53; DC6010, documented that an allegation is only an ordinary accusation unless strengthened by police evidence. (Highlighting added from the decision) ….
 
“An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up”.
 
8.	Police confirmations (witness statements) designed by the case officer (police informant) and presented to court on 19th May 2022, should display the elements of the topic allegation.
 
PROSECUTION CASE
 
9.	 On 26th May 2022, Chris Iga briefly objected to the Defendant’s oral submission in answer to the state case by reassuring the state evidence. I will for the opinion of my verdict, will unselfishly calculate all the declarations confined in the state case. 
 
Witness list and their Evidence 
 
No	WITNESS	PARTICULARS	STATEMENTS	
1	Chris Waim Karogol	Complainant	He is the National Security Manager of SP brewery Limited and he was the one who lodged the Complaint. Complainant says on 23rd December 2021, he and certain police officers went to Shagri Laa club and opened up a 40-foot container and noted a huge amount of fake green can beer. The Complainant says they went to Sangri Laa club after reports of fake beer on the streets of Pom allegedly supplied by Shangri Laa Club.  	
2	Carmella Sarubira	Quality Control Manager	 
Witness says she manages the quality control system and process to ensure end to end quality from the raw material to the finished goods ready for sale. Witness says she did a sample of the fake can to confirm its reliability and noted that the fake product was not the same as what SP Brewery produces.	
3	Alexander Schuehlein 	Technological Manager	Witness says he is from Germany but was working with SP Brewery as a Master Brewer. He says upon investigation, a detailed comparison of the counterfeit green can beer and SPBs design rendered significant differences and the conclusion that the fake cans were not from SPB. Moreover, he says analysts of the beer also confirmed that the contents of the fake beer were not derived from SPB since it differs significantly from the genuine SP Brewery brand and product. 
 	
4	Israel Bill	Police constable	He is a policeman who was with the arresting officer at the time when the Defendant was arrested and interrogated. This state witness says the defendant admitted that he was employed by Mr Wang Yan who was previously deported from PNG for counterfeiting trademarks as a consultant for Wakmur investment.	
6
6	 
Joe Puana	 
Arresting Officer
 	 
Police officer who interrogated the defendant.	

DEFENSE CASE

10.	Defendant through his Lawyer funded on a submission on sufficiency of evidence filed on 8th June 2022 argued that evidence is insufficient to commit the defendant.
 
11.	 Firstly, the defendant argues that he was arrested on a wrong provision of the law that does not provide for the charge. Defendant argues that Section 477(1)(b) of the Criminal Code Act, the provision where he was arrested only interprets the offence but the provision that establishes the offence is under Section 477(2)(b) of the Criminal Code Act. 

12.	Secondly, defendant argued that police have failed to demonstrate to the court that defendant is the owner of the container containing the fake can beer. Moreover, defense argued that police have failed to demonstrate with evidence that the container is either owned by W.Y.B or Shingrila club.

13.	Thirdly, Defendant argues on the reliability of each witness statements as they do not conform with the requirements under Section 94C of the District Court and moreover based his arguments on the principles in the case of State v Kai Wabu[1994] PNGLR 49 that the witness statements are not in order and thus asked the court to dismiss the information.

14.	Based on the above defendant finally argues that police evidence is insufficient to commit the defendant thus evidence has failed to connect the defendant to the allegation and asked the court to dismiss the information.
 
CONSIDERATION OF EVIDENCE
 
15.	I have considered the evidence and noted that there is evidence of counterfeit SP can beer inside a 40-foot container found at Section 38, allotment 21 along Waigani drive in NCD, there is no dispute about that. However, the defense denied any knowledge about the contents of the container. Moreover, there is an issue on the legality of the charge and the witness statements that they do not correspond to the charge and evidence.
 
RULING
 
Issue of charge
 
16.	Defendant was arrested and charged under Section 447(1)(b) of the Criminal Code Act.  The entire provision under Section 447[i] is as follows:
 
“477.  Counterfeiting trade marks.
(1) In this section–
“counterfeit” includes any imitation of a genuine mark that is not genuine and that resembles the genuine mark;
“trade mark” includes any word or mark of any kind that is lawfully used by any person to denote that any article is–
(a)       of his manufacture, workmanship, production or merchandise; or
(b)       a thing of a peculiar or particular description made or sold by him.
(2) A person who, with intent to defraud or to enable another person to defraud–
(a)       makes a counterfeit trade mark; or
(b)       knowingly uses a trade mark, whether genuine or counterfeit, on an article, or on any thing containing or connected with any article, in such a manner that the trade mark signifies or implies, or may reasonably induce any person to believe, contrary to the fact, that the article is such as is designated by the trade mark,
is guilty of a misdemeanour.
Penalty:    Imprisonment for a term not exceeding two years and a fine at the discretion of the court.
(3) When a person is convicted under this section–
(a)       every thing that he has in his possession to which the trade mark or counterfeit trade mark has been applied; and
(b)       every instrument that he has in his possession–
(i)         by means of which any such mark has been so applied; or
(ii)        which is intended for applying any such mark,
is forfeited to the State.”
 
17.	 Defendant argues that 477(1)(b)[1] is not the appropriate provision because it only provides for the interpretation of the offence but not the offence. A provision that only interprets a particular term in the provision does not carry the penalty provision since they only interpret the provision and not the charge. However, Section 477(1)(b)[2] has the penalty provision as “ is guilty of a misdemeanour” and “Imprisonment for a term not exceeding two years and a fine at the discretion of the court”. The charged provision would then read as follows: 
"477.           Counterfeiting trade marks.
(1)   In this section—
"counterfeit" includes any imitation of a genuine mark that is not genuine and that resembles the genuine mark;
"trade mark" includes any word or mark of any kind that is lawfully used by any person to denote that any article is—
 
(b)     a thing of a peculiar or particular description made or sold by him is guilty of a misdemeanor. Penalty: Imprisonment for a term not exceeding two years and a fine at the discretion of the court". 
 
18.	Therefore, in my assessment there is nothing wrong with the provision in which the defendant was arrested and charged and thus this argument is dismissed.
 
Issue of evidence
 
19.	 Defendant argued that although the counterfeit drinks were found at Section 38, allotment 21, along Waigani drive, he had no knowledge of who owned the fake drinks and the 40-foot container.  I have read the witness statements of Chris Waim Karagol, Camella Sarubira and Alexander Schohlein but they have not connected the defendant to the 40-foot container that was carrying the fake beers. Nevertheless, the witness statements of Constable Israel Bill and Chief Sergeant Joe Puana say the defendant admitted that he was employed by Mr Wang Yan, as a consultant for Wakmur Investment, who was previously deported for counterfeiting trademarks of SP Brewery products.

20.	Evidence on ROI shows when the defendant was asked why Mr Wang Yan left PNG, his response was for health reasons but when the defendant was produced with a copy of the deportation notice containing the reasons, he then admitted and agreed on the reason. Moreover, the defendant denied that he was employed by W.Y.B investment (a company where Mr Wang Tan previously worked) but with Wakmur Limited. However, at question 33 of his ROI, the defendant says he was previously employed with W.Y.B investment and later to Wakmur Limited. Defendant’s answer to certain questions on the ROI shows, defendant is known to Mr Wang Yan and had previously worked with him and therefore there is evidence that he knows the reason why Mr Wang Yan was deported. 

21.	 Defense lawyer during submission argued that there are a couple of other shops in Section 38, allotment 21 along Waigani drive and therefore the 40-foot container could be for the other shops. However, the defendant in answer to question 35 of the ROI says, there is only one club inside Section 38, allotment 21 along Waigani drive which sells beer and that is Sangrilia club where the defendant was employed at the time of arrest.
 
22.	Consistent with the above, I will agree with police evidence that the defendant had knowledge of why Mr Wang Yan was deported and also what was in the 40-foot container. 
 
Issue of Witness Statements

23.	 Defendant finally argued that all witness statements do not comply with the mandatory requirements of the law under Section 94C of the District Court Act. I have considered all the witness statements and noted that the maker of each statement had signed it off at the end of each page by stating that they had read and understood their own statements. However, I am also mindful of some email correspondents in the police file which were just inserted without complying with the lawful requirements to introduce evidence. However, for the assessment of evidence on a prima facie basis, I am only assessing the contents of witness statements than the attachment which I am of the view that the higher court should deliberate when evidence is tested.
 
CONCLUSION
 
24.	 I have read through the police file, Defendant’s ROI and Defense submission and after going through each of them, I am satisfied under Section 95(1) of the District Court Act, Police evidence has made out a prima facie case against the Defendant. Accordingly, Police have provided sufficient evidence against the Defendants for the allegation of Counterfeiting Trade make against the Defendant under Section 447(1)(b) of the Criminal Code Act that evidence shows the genuine SP Brewery bands supposed to contain word or mark of any kind that is lawfully used by the company to designate that brand. However, there is evidence of counterfeit products including imitation of a genuine SP Brewery product that is not genuine and that resembles the genuine mark, a thing of a peculiar (fake and unknown brand) or particular description (copy the brand name) which was made and sold by the defendant.
 
ORDERS
 
25.	 My formal orders:
 
a)	Evidence is sufficient to commit Defendant for the charge of Counterfeiting Trade Mark under Section 477(1)(b) of the Criminal Code Act.
 
b)   Information is sustained.
 
c)    Bail is extended.

 
Golu Lawyers                                                For the defendant
Police Prosecutor                                           For the State

[1] Criminal Code Act
[2] Criminal Code ACT

[i] Criminal Code Act