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Lee v State [2011] PGNC 331; N4310 (27 May 2011)

N4310

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR APPEAL NO. 20 OF 2011

JAMES LEE
Applicant

V

THE STATE
Respondent

Goroka: Ipang AJ
2011: 26 & 27 May

CRIMINAL LAW – Practice and Procedure – bail application – after conviction – conviction by District Court and pending appeal – exceptional circumstances must be shown – a good prospect of success of appeal as an exceptional circumstance pursued

Cases Cited

Re Ilett [1974] PNGLR 49
Arthur Gilbert Smedley v The State [1977] PNGLR 452
Rolf Schubert v The State [1978] PNGLR 394
John Jaminan v The State [1983] PNGLR 122
The State v Robert Kani Yabara (No.1) [1994] PNGLR 133
Major Walter Enuma & Ors v The State SC538 (SCA No.107 of 1997)
Joey Charlie v The State SC770 (19 November 2004)

Counsel

K, Pilisa, for the Applicant

V. Mauta, for the State/Respondent

DECISION

27 May, 2011

1. IPANG AJ: The applicant James Lee from Fujian Province, China, with another Papua New Guinean, was charged for consuming alcohol - an SP brown bottle beer in a public street – Leigh Vial Street at Kama, Goroka contrary to section 4 of the Summary Offences Act, Chapter 264. He pleaded guilty to the charge and a conviction was entered and a sentence of one (1) month imprisonment was imposed upon him.
   
2. On the 25 May, 2011 he lodged an appeal to the National Court. Pending the determination of his appeal, the applicant through his counsel Mr. K. Pilisa applied for bail pursuant to Section 11(c) of the Bail Act, chapter 340. The State had objected to this bail application. So this is a contested bail application.
   
3. From the outset the principles governing the issue of bail after conviction and pending determination of appeal are settled in this jurisdiction. The Supreme Court in State v Robert Kani Yabara [1984] PNGLR 133 stated that;
   

"The practice of the Court here in Papua New Guinea has been that application for bail after conviction are viewed with great care indeed. The situation after conviction is a different one than before conviction when the presumption of innocence still prevails. After conviction, an applicant must show that there are matters which constitute exceptional circumstances before bail is allowed pending an appeal. This is what was stated by Raine Dep. CJ in Schubert v The State [1978] PNGLR at 394 and this was followed in Smedley v The State [1978] PNGLR at 452 and John Jaminan v The State [1983] PNGLR 122."

4. In the case of Charlie v The State SC770 (19 November, 2004) Mogish, J quoted these principles governing bail after conviction and pending appeal as stated by Kapi, DCJ (as he then was) in State v Walter Enuma & Ors SC 538 and I would adopt here:
   

"The principles which govern bail pending appeal are well settled in this jurisdiction. The power to grant bail is discretionary. This discretion has been developed by case law and it is now established that application for bail after conviction is viewed with very great care indeed. The situation is different one from before conviction when the presumption of innocence still prevails. The strong presumption in favour of bail pursuant to s 42(6) of the Constitution is no longer applicable. The onus is on the applicant to show that there are matters which constitute exceptional circumstances before bail is allowed pending appeal. The authorities establishing these principles are conveniently set out by the Supreme Court in The State v Yabara (No.1) [1984] PNGLR 133. The Supreme Court has stated that it is not appropriate to compile a list of circumstances which would be regarded as exceptional. This is to be determined from the whole of the circumstances of the particular case." See also Arthur Gilbert Smedley v The State [1977] PNGLR 452.

5. In this present case Mr. K. Pilisa of counsel for the applicant referred to me the Walter Enuma case (supra) and raised the issue of his client, the applicant having "a good prospect of success of appeal" as an exceptional circumstance which I should take note of. In advancing his argument, Mr. Pilisa raised three (3) grounds upon which he relied on. The first ground he mentioned the charge which was laid on the applicant, the second being the language difficulty and the third ground is the term of imprisonment (length of prison term) given to the applicant.
   
6. I will deal with the second ground first. Mr. Pilisa submitted that the applicant being of Chinese nationality may have difficulty understanding the proceeding before the District Court and may have not presented himself well before that Court. He also said the applicant was not represented by a lawyer at the District Court. My view is that this ground must fail because it is only a speculative view and there is no real material evidence before me to prove the applicant had difficulty understanding the proceeding which took place before the District Court. I have perused the documents pertaining to the record of proceeding before the District Court and the record clearly shows the applicant clearly understood the proceeding and communicated well. No interpreter was required as the applicant understood and responded well. This ground must therefore fail.
   
7. The next ground the applicant relied on is the charge which was laid on the applicant. Mr. Pilisa drew my attention to Annexure 'D' on the 3rd page of the Appeal Documents filed. The annexure 'D' contained the actual charge and the Statement of Facts. First, the counsel raised the issue that the date alleged in the Statement of Facts (SOF) which is 20 May, 2011 is not correct, it suppose to be 21 May, 2011. I am of the view this argument should fail as this was one of the matter of facts which was put to the applicant by the District Court Magistrate and the applicant was in agreement to. The sub-ground advanced by the counsel was that the applicant wasn't drunk and disorderly but was only drunk and should have been charged under section 3 of the Summary Offences Act, Chapter 264. I consider this not to be a major defect as it was based on the facts relating to consuming alcohol in public place which has seen the applicant dished with one (1) month prison term. The penalty provision under section 3 and 4 of the Summary Offences Act are similar. Section 3 provides for "a fine not exceeding K40.00 or imprisonment for a term not exceeding one month." Under Section 4 it is "a fine not exceeding K100.00 or imprisonment for a term not exceeding three months." In this case the presiding magistrate decided to impose a one (1) month custodial sentence and it falls with the sentencing range of Section 3 and it should not be a major cause for concern.
   
8. The final ground advanced by the counsel is that the imprisonment of one (1) month is less or light in that should the applicant be remanded or confined to prison awaiting his appeal to be heard, he would have served his term of imprisonment and that the purpose of appeal would be defeated. See Re Ilett [1974] PNGLR 49.
   
9. The Enuma Case (supra) which Mr. Pilisa referred to me was a trial case before the National Court and the appeal was from the decision of the National Court to the Supreme Court based purely on the question of law and procedure. I do agree with what Ms. Mauta of State Prosecutor had submitted. She referred to Charlie case (supra) and Yabara case (supra). She submitted that this Court should follow the approach in Charlie case.
   
10. The present case before me, the District Court decision was based upon the charge and facts put to the applicant and based on the applicant's admission, the one (1) month prison term sentence was imposed on him. The Enuma case has this distinguishable feature to this present case. Both are not the same.
    
11. The entire submission by Mr. Pilisa seems to be centered around whether the presiding magistrate at the District Court did exercise his sentencing discretion appropriately and this should be an exceptional circumstance as this would provide a good prospect of success of appeal. I have considered the counsel's submission and I am of the view that the points raised by the counsel do not satisfy the requirement of exceptional circumstance. I follow Mogish, J in Joey Charlie v The State SC770 (19 November, 2004) where His Honour held that:
    

"The fact that certain grounds of appeal are likely to succeed can not in itself be regarded as constituting exceptional circumstances so as to justify grant of bail pending determination of an appeal."

12. I, therefore, refuse the applicant's application for bail pending determination of his appeal.
    

________________________________

Pilisa Lawyers: Lawyer for the Applicant

A/Public Prosecutor: Lawyer for the State