DC9057
PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE
[Committal Jurisdiction under Section 95 of the District Court Act]
 
NCC NO 396 OF 2021
CB NO 656 OF 2021
 
THE POLICE
 
V
 
MALIS MININGI
 
Waigani: Nii, Puri. Paul Magistrate
2022: 17th November 
 
CRIMINAL LAW – abuse of office, Criminal Code, s 92(1) – evidence hearing– whether there is evidence of accused abused the authority of his office as Deputy Register of Companies – whether there is evidence of accused did or directed any arbitrary act – whether the act was prejudicial to the rights of another. 
 
The accused was charged with one count of abuse of office under s 92(1) of the Criminal Code Act. Accused was the Deputy Registrar of Companies and Legal and Compliance and between 26 October 2011 and 20th January 2019 had abused his office by accepting IPA Forms submitted for Palimp Ltd and other shareholding companies without doing due diligence checks by consulting the management committee of the holding company, Moge Nambuga Miliimb Investment Ltd for changes done to the shareholding companies. In doing so, Palimb Ltd which is owned and operated by one individual, namely McQueenie Waia took over the company as the major shareholder of the holding company. There are 466 shareholders of the holding company in which the majority of the shareholders were not aware of the changes done to their companies. Accused action had resulted in McQueenie Wai taking over the holding company through Palimb Ltd without majority shareholders meeting resolution. In doing so, Police allege that the accused had abused his office as the deputy registrar of companies under the legal and compliance division. Accused was thus interrogated, arrested and charged for the subject offence. The accused then argued that evidence against him was insufficient and hearing on evidence was conducted.
 
Held:
 
(1)The four elements of the offence of abuse of office are that the accused: (a) while employed in the Public Service, (b) abused the authority of his office, (c) by doing (or directing to be done) an arbitrary act, (d) prejudicial to the rights of another.

(1)	The words “employed in the Public Service” are distinct to contain an employee of IPA. This element was uncontentious.

(2)	There is no evidence in the police file that supports the police case that the defendant had abused the authority of his office. 

(3)	Police Evidence is lacking that the defendant did any arbitrary act or direct any arbitrary act to be done.

(4)	Evidence is lacking to confirm that the arbitrary act was prejudicial to the rights of another.

(5)	Police have failed to prove its case on a balance less than the criminal standard of proof. There is no prima facie case here.

(6)	None of the argumentative elements were proven by evidence. The information was dismissed. Bal refunded.

Cases cited
 
The following cases are cited in the judgment:
 
The State v Hevelawa (No 1) (2017) N6815
The State v Joel Luma (2021) N8798
The State v O'Neill [2021] PGNC 373; N9213
 
The Laws
 
The Criminal Code Act
The District Court Act
Companies Act
 
Counsel
 
Chris Iga, for the State
Malis Miningi, Accused in person
 
17th November, 2022
 
1.	NII, P. P Magistrate: The accused, Malis Miningi, is charged with one count of abuse of office under s 92(1) of the Criminal Code Act. He was the Deputy Registrar of Companies responsible for Legal and Compliance whom police allege that between   26th October 2011 and 20th January 2019 had accepted IPA forms for Palimb limited and other five shareholding companies.

2.	Police allege that the defendant after accepting the forms did not do due diligence checks on the forms to ascertain its credibility by consulting its management committee of the holding company, Moge Nambuga Milimb Investment Ltd for alterations done to the shareholding companies.

3.	The Police alleges that in doing so the accused abused the authority of his office and acted arbitrarily and prejudicially to the rights and interests of the State as there was no evidence of him consulting the holding company nor did any independent investigations to ascertain the legitimacy of the IPA documents submitted.
 
4.     The charge on the police information reads:
 
“Being an employee in the Public Service as the Deputy Registrar of Companies and Legal and Compliance division did in abuse of the authority of his office by doing changes to the directorship of a Company namely, Palimb Ltd without majority shareholders meeting resolutions and appointed the said companies as shareholder of other five (5) shareholding companies of Moge Nambuga Milimb Investment Ltd prejudicial to the lawful rights of the shareholders of the said Moge Nambuga Milimb Investment Ltd”.
 
4.	The accused disputed the allegation and the police evidence through a submission filed on 31st August 2022 and hearing on evidence was conducted and concluded on 26th September 2022. 
 
UNDISPUTED FACTS
 
5.	From the evidence there are some undisputed facts.

6.	The accused was employed by IPA at the time of allegation. 

7.	The accused came to know of the company Moge Nambuka   Millimb investment Ltd in 2018.

8.	There are 10 shareholding companies of Moge Nambuka Millimb investment Ltd and they are shown as follows:
 
1.     Palimb Ltd
2.     Pangump Ltd        
3.     Gumas Ltd
4.     Kundump Ltd
5.     Wanmul Ltd
6.     Eltimp Ltd
7.     Kund muglmugl Ltd
8.     Willya  Ltd
9.     Wipmul Ltd
10. Kugmul Ltd
 
9.	Palimb Ltd is one of the ten shareholding companies to Moge Nambuka Millimb investment Ltd
 
DISPUTED FACTS
 
10.	Defendant was the deputy registrar of Companies.

11.	Defendant effected the changes for Moge Nambuka Millimb investment Ltd.

12.	Defendant appointed Palimb Limited as shareholders of the shareholding companies.
 
JURISDICTION OF THE COMMITTAL COURT
 
“95.   Court to consider whether prima facie case.
 
(1) Where all the evidence offered [i]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.”

OFFENDING LAW
 
13.	Section 92 of the Criminal Code Act states:
 
Abuse of Office
 
(1)     A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.
 
Penalty: Subject to Subsection (2), imprisonment for a term not exceeding two years.
 
14.	The accused has been charged under section 92 thus the effect of section 92(2) shall not be considered. In deliberation to the assessment of evidence under Section 95 of the District Court Act, I am implementing the breakdown of the elements of the offence under consideration pursuant to s 92(1) of his honour Canning J’s opinion in State v O'Neill[1] which the court adopted from Berrigan J in the prominent case, The State v Joel Luma[2] and also one other case that affirms the former case is The State v Hevelawa[3]. All these cases established the four elements of the allegation against the accused: 
 
a.	while employed in the Public Service, 

b.	abused the authority of his office, 

c.	by doing (or directing to be done) an arbitrary act, 

d.	prejudicial to the rights of another.
 
15.	His Honour Cannings judicial attitude was reliable to Berrigan J as both embraced the approach from Luma, para 230 is “Dishonesty” is not an element of the offence of Abuse of Office. It is not indispensable for the police to demonstrate that the accused envisioned to advance or that there was any conflict of interests.
 
16.	Canning J further says The words “employed in the Public Service” is demarcated by s 83A of the Criminal Code Act for the determinations of Part III (offences against the administration of law and justice and against public morality), which include an offence involving an officer or employee of a body or corporation established by statute. The accused was an employee of the Investment Promotion Authority at all appropriate times, so the first element is fulfilled. The other three elements are contentious.  
 
ISSUES
 
17.	As the accused denies three of the four elements of the offence, they form the questions for consideration:
 
1.	Did the accused abuse the authority of his office?

2.	Did the accused do or direct to be done an arbitrary act?

3.	Was the act directed by the accused prejudicial to the rights of the State?
 
ISSUE 1: DID THE ACCUSED ABUSE THE AUTHORITY OF HIS OFFICE?
 
18.	Determination of this question involves summary of evidence for both police and defence and the prescribed purpose of the request whether the State has proven their case on a balance less than the criminal balance of proof that the accused abused the authority of his office. 
 
State witness
 
19.	Twelve witnesses gave written statements as evidence for the Police:
 
1.	Jacob Kop- Chairman of Moge Nambuka Millimb investment Ltd (MNMIL) and says the defendant and the acting registrar did not recognize the historic records of the holding company. Witness says he had also filed a proceeding in the national court in OS No. 400 of 2020 seeking orders to compel the defendant to recognize the resolution by the management committee. Witness moreover says the defendant had a vested interest in the holding company. Finally, witnesses said the defendant and the acting Registrar of Companies had illegally facilitated everything for one individual in McQueenie Waia to take over MNMIL which is owned by 486 shareholders.
 
2.	Nigints Cletus- Founding Director and Secretary of (MNMIL), who says the defendant was colluding with another person named McQueenie Waia and thus did not recognize the resolution passed by the management committee of MNMIL. Witness says various correspondences were exchanged between the accused and McQueenie Waia in respect to the affairs of MNMI.
 
3.	Kup Ogut Akkai- founding Director of MNMI, who says they formed 10 subsidiary companies to be the trustees of all shareholders of the parent company MNMI to channel dividends. Witness says two companies namely Kauli limited and Kuput limited who do not represent any of the shareholders and also not part of initial 10 shareholding companies were fraudulently inserted into the memorandum of association to get shares in MNMI. Witnrses finally says the directors of Kauli Ltd had conspired with other persons to defraud MNMI.
 
4.	Roika Willie-Community Leader says he met with a person named McQuuenie and this person forced him to sign documents which he signed without reading the contents and thus denied having any knowledge of the meeting minutes of 30th December 2018.
 
5.	Ninji Palawa-Shareholder and director of Moge Nambuga Milimp Ltd who says he was not aware of the change of Directorship for Palimb Limited. Witness says McQueenie Waia is not from Palimb, who is completely an outsider and the changes of directorship was illegally done without the knowledge of the shareholders.
 
6.	Douglas Raymond Doa-shareholder of MNMI and his statement is same as Niniji Palawa
 
7.	Wakupa Richard-Shareholder of Palimb limited and his statement is the same as Ninji Palawa and Douglas Raymond Doa.
 
8.	Abraham John-he is also a shareholder of Palimb limited and his statement is the same as Wakupa Richard, Ninji Palawa and Douglas Raymond Doa.
 
9.	Win Melko- he is also a shareholder of Palimb limited and his statement is the same as Abraham John, Wakupa Richard, Ninji Palawa and Douglas Raymond Doa.
 
10.	Kokoiva Harriet-this witness is the acting registrar of Companies and says she provided documents to police based on a search warrant.
 
11.	Bill Muagi- Police corroborator
 
12.	Luke Upa- Police informant/case officer
 
Evidence for the defence
 
20.	The accused gave oral submission that at the time of the allegation he was not a deputy registrar of Companies but says he was appointed on 5th July 2019 which was after the date of allegation. Defendant says there is no evidence to show that he did the changes to the records of Palimb Ltd between 26th October 2011 and 20th January 2019. He says these changes were done by other people who claimed to be directors and shareholders of Palimb limited. Accused also argued that there is no evidence to demonstrate that he had made the changes to appoint Plaimb Limited as the shareholder of five (5) holding companies of MNML. Accused says between 26th October 2011 and 20th January 2019 he knew nothing about the Palimb Limited. Finally, the defence argued that most of the documents and allegations stated in the witness statements relate to MNMIL and thus argued that those should be confused with Palimb limited. Lastly, the defence argued that he should not be charged for abuse of office because of Section 410 of the Companies Act where the Registrar of Companies or any of its employer’s obligations during the course of their employment are exempted from criminal prosecution.
 
ISSUE 1. HAS THE STATE PROVEN THEIR CASE ON A BALANCE LESS THAN THE CRIMINAL STANDARD OF PROOF THAT THE ACCUSED ABUSED THE AUTHORITY OF HIS OFFICE?
 
21.	The above is the serious issue and I approach it by accepting the doctrines emphasized in Luma which was adopted by O’Neill:
 
i.	abuse of authority will occur when bad, improper or wrongful use is made of power given to a public official or when the authority of an office is used other than for the public good;

ii.	it is more than an administrative fault and involves misconduct that is sufficiently serious to deserve criminal punishment. 
 
22.	 When considering the above philosophies and assessing the competing evidence and the submission by defence, I determine that the Police has not proven their case on a balance less than the criminal stand of proof that the accused abused the authority of the office of IPA. I now pull that decision for the subsequent explanations.
 
23.	 As at the date of the arrest, Defendant had been employed by IPA for a period of 14 years, he was appointed to the position of Deputy Registrar of Companies in charge of the legal and compliance unit on 3rd July 2019. But prior to that he was an investigator within the legal and compliance section of the registrar of companies.
 
24.	 The police information reads that between 26th October 2011 and 20th January 2019 the defendant was the Deputy Registrar of Companies but this evidence is misleading as the defendant was never a deputy registrar of companies at the time of allegation, he was only made deputy registrar on 3rd July 2019, which was after some five (5) months. The police information is the replica of the accused’s particulars and thus this material should be presented acceptably to make sure the alleged defendant in court is the one the information denotes to.
 
25.	 The endangerment in capturing wrong particulars in the information is sometimes a mistaken person may be appearing in court and hence police have the constitutional onus to register the accurate information fittingly connecting the defendant to the allegation and the summary of facts. In my assessment, I see the police information carrying the charge is thus partly defective. 
 
26.	 The witness alleged the defendant facilitated the changes in the Registrar of companies to entertain a McWeenie Waia’s interest. Page 106 and 154 of the police file displays McWeenie Waia’s name in the documents lodged with IPA but not the defendant’s name.  Although the defendant was employed by the Registrar of Companies and his employer is the custody of all the companies in PNG where company records are managed, he must not be assumed to have been involved but evidence must be direct regarding the accused’s involvement. There is no evidence of the defendant’s alleged involvement in the police file.
 
27.	 All the state evidence is saying the defendant was the one who was involved in the change of the records and appointment of new directors. There is no doubt the defendant was an employee of IPA, however, evidence must openly unite his direct contribution in the allegation. In order for me to form a prima facie case, I must see the evidence with my eyes in the police file rather than being told. The mere fact that the defendant was employed with IPA is not the same as the defendant had participated in the allegation.  
 
28.	 I have read through the entire 200 pages of the police file and I could appreciate that at the time of the allegation the defendant was employed with IPA, and that is the only evidence I have in the police file. There is no other evidence that the defendant had altered nor tempered the records of IPA to change any of the company's details as alleged by the Police.
 
29.	 Thus, there is no evidence that the defendant abused the authority of his office. Evidence is lacking to prove the second element of the offence.
 
ISSUE 2: DID THE ACCUSED DO ANY ARBITRARY ACT OR DIRECT ANY ARBITRARY ACT TO BE DONE?
 
30.	 Canning J in State v O’Neill[4] has implemented the principles in Luma[5] (para 171) that an arbitrary act is an act that is apparently done without any motive, coordination or strategy or is discriminating or completed with no limitation or with no contemplation for neighbours.
 
31.	  I consider the fact that the defendant was an employee of IPA and thus he was employed in the Registrar of companies, nevertheless, that does not mean that he was involved in the allegation, there must be direct evidence, police evidence is circumstantial here funded on the assumption that defendant was employed by IPA under its Registrar of companies’ subdivision and therefore he must have abetted. There were two separate proceedings filed in the National and Supreme court respectively (O.S 190 OF 2021 & SCR NO 42 OF 2021) concerning the companies in which the defendant was allegedly involved but the court ruled both cases in favour of the defendant’s employer. I do not see an uninformed act by the defendant in the discharge of his duties and thus, evidence is lacking to prove the third element of the offence.
 
ISSUE 3: WAS THE ARBITRARY ACT PREJUDICIAL TO THE RIGHTS OF ANOTHER?
 
32.	 In order to substantiate these elements, evidence must demonstrate that the State which is represented by the complainants through the police has been unfavourably exaggerated by the suspects’ demeanour.
 
33.	 The State though police has not offered enough evidence for the Court to be capable to achieve that the State or any organization of the State, including the Companies and its directorates, were unpleasantly affected by the engagements of the suspect. The evidence and submissions on this element of the offence were imprecise and unpersuasive.
 
34.	 The assumption is that the defendant was employed at the office of the registrar of companies where all the records for change of directorship and details of companies were kept and thus he must have assisted in the change of ownership and directorship, the evidence joining to hypothesis is only circumstantial. It is unhealthy to rely on a hypothesis where there is no independent corroboration to substantiate the supposition. It has also not been proven on a balance less than the criminal standard of proof. Evidence is insufficient to substantiate the fourth element of the offence.
 
LAWFUL EXEMPTION FROM CRIMINAL LIABILITY
 
35.	  Defence finally argued his obligation under his employer was protected under Section 410 of the Companies Act.
 
 “410. Liability of Registrar.
 
The Registrar or a Deputy Registrar and any person appointed or authorized by the Registrar or employed in the office of the Registrar is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in performance or purported performance of any function, or in the exercise or purported exercise of any power, conferred or expressed to be conferred by or under this Act or the Securities Act 1997.”
 
36.	 The keyword is “not liable to an action” than “other proceedings for damages”. The Act is ambiguous as to what type of action it is, whether it would be an action in criminal law or civil law but for the purpose of my consideration, I will not give due contemplation to Section 410 of the Companies Act but purely on the evidence provided in the police file.  
 
CONCLUSION 
 
37.	 In the assessment of evidence, I am satisfied, none of the argumentative elements of the offence have been proven by the Police. All had to be proven on a balance less than the criminal standard of proof but nothing was forthcoming and made out. The information must be dismissed. 
 
RULING
38.	 MALIS NINING, having been charged with the offence of abuse of office under Section 92(1) of the Criminal Code Act, the charge is terminated, Information dismissed and bail be refunded forthwith.
_____________________________________________________________
Police Prosecutor: for the State
Malis Miningi: Accused in person

[1] [2021] PGNC 373; N9213  
[2] (2021) N8798.
[3] (No 1) (2017) N6815
[4] Supra)
[5] Supra

[i] The word "on" has been editorially inserted.