Unreported National Court Decisions
N1597
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
APPEAL NO: 194 OF 1997
BETWEEN
APA KOKOTI & OTHERS - APPELLANTS
AND
KAORI IRI - RESPONDENT
Lae
Vagi AJ
13 August 1997
27 August 1997
Appeal
This was hearing of an appeal from the District Court to the National Court.  The appellants appealed against the severity of the term of imprisonment which is not within the penalty range under s 51 of the Summary Offences Act.
Counsel
L Siminji for the appellant
A Raymond for the respondent
DECISION
3 September 1997
VAGI AJ:  On 27th August which is the second last day of my circuit in Lae, I gave brief reasons for my decision to uphold the appeal and undertook to publish my reasons in full at a later date.  This I do now.
This is an appeal from the District Court against a three months term of imprisonment imposed upon the appellants for playing an unlawful game of card for money, an offence against s. 51 of the Summary Offences Act.  The appellants pleaded guilty to the charge.
The circumstances of the offence as set out thus, on the night of 1st August 1997 at Tais Club, 4 Mile, Lae, the appellants were found playing a game of card for money.  A pack of cards and K4.00 bet money were taken by the police at the time of their arrest.  They appeared in Court on 4th August and were convicted and sentenced.  Following the pronouncement of their sentence, the appellants filed a Notice of Appeal on the ground of severity of their sentence.
On 13th August, 1997, Mr Siminji of counsel for the appellants presented the notice of appeal and made a verbal application for orders to release the appellants from Buimo Corrective Institution.  I saw the urgency of the release of the appellants because one of them was a child and a Grade 7 student at Milfordhaven Top-up Community School.  She had already missed classes.  I granted the application and released each of them on own recognizance with a surety of K200 Mr J. Imari undertook to pay and condition that they appear to prosecute their appeal on 27th August.
On 27th August, Mr Siminji expounds the reasons why the Court must expedite the appeal, despite the failure by the appellants to comply with all the requirement of appeal procedures as set out in Part XI (sections 219 to 237) of the District Courts Act.  Mrs Raymond for the respondent has no objection to the appeal to proceed despite the failure.
Procedural requirements for appeals from the District Courts to the National Court are creatures of Acts of Parliament and one must look at the procedures and the requirements set out in the Act to find out the ambit of the power of the Court.  I find in the circumstances, prolongation of this appeal will do greater injustice to the appellants if I allow the appeal adjourned to give sufficient time to the appellants to comply with the appeal procedures.  Whether I adjourn or to proceed with this appeal, the end results will be the same.  In contrast to the magistrates court, the National Court has many inherent powers one of which is that justice is done in the interpretation on the law (s 158 of the Constitution).  An unjust situation has arose here and I think the justice of this matter be better served if I waive the appeal procedures in Part XI of the District Court Act and allow the appeal to proceed.
The unjust situation in this case is the term of imprisonment which is manifestly excessive.  I must say at the outset that the term of three months imposed is far excessive than is allowed by s 51 of the Summary Offences Act.  This section sets out penalty for the first offence is a fine of K40.00 or imprisonment not exceeding one month.  What His Worship imposed here is for second and subsequent offence which is a fine of K100.00 or a term not exceeding three months.
There is not much of the record of District Court proceedings before me from which to determine whether or not His Worship considered using his powers under the District Courts Act for other options such as to release on good behaviour bond under s. 132.
Mr Siminji argues that if His Worship had properly enquired into the personal circumstances of each appellant, he would have found the following:
1.       Apa Kokoti is a married man and has a four year old child.  He is a porter employed by the Lae International Hotel.
2.       Judzorn Benis a Grade 7 student at Milfordhaven Top-up Community School.
3.       Elizabeth Philemon is a married woman and has a three year old child.  A housewife.
4.       Amos Lume is 40 years old and works for Lae Bookshop.
The Police antecedents report show “nil previous convictions”.  The appellants are first offenders and so the term of three months imprisonment imposed is not within the range of penalty under s 51 of the Summary Offences Act, which is for the first offence a fine of K40.00 or a term not exceeding one month.
Mrs Raymond concedes that the term of three months is manifestly excessive and suggest that the penalty in the alternative should now be a sentence at the rising of the Court.
Before continuing with this appeal, there is one very important matter which I raised with the counsels in a “off the cuff” manner if any of them was aware of.  That is the provisions set out in Part V of the Summary Offences Act.  Part V deals with “Gaming and Betting”.  S. 50 is to be examined in relation to the offences of this nature.  None of the counsel is aware of these provisions and nor do I.  The records of the proceedings do not show if His Worship knew about it.  S. 50 deals with declaration of unlawful game.  It is in these terms:
S50     Declaration of unlawful game
(1)      The Head of State, acting on advice, may by notice published in the National Gazette, declare any game to be an unlawful game for the purpose of this Part.
(2)      A declaration under subsection (1) has no force or effect until approved by a resolution of the Parliament.
Perhaps His Worship may have known about the existence of these mandatory requirements of Part V and would have mentioned it if he had published his reasons for decision.  Because there is no proper Appeal Book, His Worship’s reasons can not be sought at this stage of the proceedings.
The point I wish to make here is that there are two essential requirements under s. 50 (1) and (2) that a magistrate must be satisfied with before he can safely convict.  First, the Head of State must by a declaration declares a game to be unlawful.  Secondly, that declaration has no force or effect until approved by a resolution of the Parliament.   The onus of the proof is on the prosecution.  This is a public declaration and the method of proof is by tendering before the Court, by the prosecution, an authenticated copy of the National Gazette in which the declaration was published.
The Summary Offences Act has been in operation for the last twenty years.  It replaced the Police Offences Ordinance (Act) in 1977.  In the Police Offences Act, a number of unlawful games were listed.  It is not so in the Summary Offences Act.  The offence of playing cards for money was one such unlawful game and the Police still continue charging players under the Summary Offence Act as they did under the Police Offences Act.  In a card game one of the essential element is that a player wagers money during the game.   So in prosecution of an offence under s. 51, the police must provide proof of the requirement under s. 50 (1) and (2) in order to secure a conviction.  If either of them or both are missing the defendant is entitled to acquittal. It could be that, for the last twenty years, no s 50 (1) and (2) declaration and resolution has been made.  If this be so, then the offence under the Police Offence Act, that listed the “game of card for wager” and which no longer exists should not be adopted as an offence under s 51 of the Summary Offence Act.
This essentially would mean, that a large number of people had been convicted for playing at a card game that no longer is unlawful.
I now come back to this appeal.  I have no intent to show any disrespect to His Worship for the way he had dealt with in this case.  He has his own reasons and those reasons were not made available before me.  But I want to say this once more.  The magistrates exercise only summary criminal jurisdiction.  They have no inherent authority and may act only in accordance with those powers which are expressly conferred on them by statutes.
The conviction His Worship recorded in relation to the appellants is procedurally correct, except for that the term of three months he imposed is far excessive than what s. 51 on penalty allows.
The National Court on many occasions provides principles and guidelines on the treatment of first offenders.  One such guideline I often remind myself of is to avoid as much as possible mixing a first youthful offender with the more hardcore criminals.  This case is not in the category of the cases where a first youthful offender has been exposed to the dangers of “hardcore” influence.
This guideline, if not a principle, is sometimes applied even in some serious cases.  The case before me now, is not so serious that should warrant a term of imprisonment.  Now that the appellants have served nine days of the term of three months, I see no point in altering the sentence to bring it in line with the range of penalty provided for in s. 51.  I think the nine days, although unjust, is sufficient as a punishment.
I uphold the appeal and order that the appellants be sentenced to the rising of the Court.  I also order that K200.00 posted as surety by Mr J Imari be reimbursed to him forthwith.
Appeal upheld.
Lawyer for the appellants: Public Solicitor
Lawyer for the respondent: Public Prosecutor