N5560

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 574 OF 2012

THE STATE

V

LAWRENCE PUKALI

Waigani: Salika DCJ
2014: 17 & 28 March

CRIMINAL LAW – Practice and Procedure – Charge of Misappropriation – S.383A of Criminal Code – Offender's state of mind at time of offence – Offender's state of mind after the commission of offence – relevant consideration in determining guilt or otherwise.

Cases Cited:

Lawi v The State [1987] PNGLR 183
State v Gabriel Ramoi [1993] PNGLR 390

Counsel:

Ms S Dusava, for the State
Ms Ainui & Mr Geita, for the Defense

28th March, 2014

1.	SALIKA DCJ: The accused in this matter is a lawyer by profession. He has been charged with 3 counts of criminal charges.

2.	The first count alleges that he on 4th February 2009, made a willful false promise to one Chris Wang Bubsep that he would pay him K405,600-00 in exchange for 2,535 grams of gold nuggets obtained from him with intent to defraud. The charge is brought under s.404(1)(a) of the Criminal Code.

3.	The second charge alleges that he on 9th February 2009 forged a cheque purporting to be a valuable cheque for the amount of K200,000-00 that it will be used or acted upon as genuine. That charge is brought under s.462(3)(h) of the Criminal Code.

4.	The third charge alleges that he on the 6 March 2009 forged a Bank South Pacific cheque number 000087 purporting it to be a valuable cheque for the amount of K170,000.00, that it will be used or acted upon as genuine. That charge too is brought under s.462(3)(h) of the Criminal Code.

5.	The brief facts upon which the accused was arraigned on are that one Chris Wang Bubsep of Telefomin in the West Sepik Province arrived from Tabubil into Port Moresby with 2,535 grams of gold nuggets to sell in Port Moresby on 3 February 2009.

6.	On 4 February 2009, Chris Wang Bubsep met with the accused at the accused's company office at the former Esco Building at Gordons industrial area in Port Moresby. The accused was running a Security and a consultancy company in his own right. It is alleged that at this meeting the accused told Chris Wang Bubsep that he (accused) had been buying gold for over 50 years and that he would buy the gold from him. At this meeting after negotiations the parties agreed that the accused would buy the gold for K160 per gram. When calculated that is 2,535 grams of gold multiply by K160.00 per gram equals K405,600.00.

7.	The accused promised to pay K200,000.00 as the first payment and assured Chris Wang Bubsep he would make a deposit of K200,000.00 to Bubsep's account. Upon that understanding Bubsep gave the 2,535 grams of gold to the accused. The accused then informed Bubsep to give 7 days for the cheque to be cleared. In the meantime Bubsep went back to Tabubil to make withdrawals but there was no K200,000.00 as promised. Soon after on 24 February 2009 Bubsep came back to Port Moresby to confront the accused.

8.	After much delay and discussions the accused wrote a Bank South Pacific cheque number 000087 for the amount of K170,000.00 drawn from Bank South Pacific cheque account number 1001497175, the account belonging to his business company.
9.	Chris Bubsep deposited the cheque into his account and returned to Tabubil but after 7 days the cheque was dishonored. There were no sufficient funds in the account of the accused's company.

10.	Chris Wang Bubsep returned to Port Moresby again on 25 March 2009. He confronted the accused and demanded the return of the 2,535 grams of gold. The gold has never been returned to him and has never been paid for the gold by the accused.

11.	Chris Wang Bubsep thereafter reported the matter to the police which led to the arrest and charging of the accused.

12.	The accused denied the charges and pleaded not guilty to all three charges and a trial was run.

13.	The State called 3 witnesses who gave oral evidence. Certain documents were also tendered into evidence by consent which make up the bulk of the State's evidence. For instance the Record of Interview, the cheque for K170,000.00 and the accused business account statements.

14.	Chris Wang Bubsep being the complainant gave sworn evidence to say that he came to Port Moresby from Tabubil on 3 February 2009 to sell his gold. He said he had 2 kilos and 535 grams (2,535 grams) of gold. He said before he came to Port Moresby a person by the name of Albert Moini had arranged with the accused to buy the gold. So on 4 February Albert Moini took him to the accused's office at Gordons where he met the accused.

15.	At the accused's office Bubsep said they discussed the rate for the purchase of the gold and they agreed to the rate of K160 per gram. He said upon the agreed rate he gave the gold to the accused and the accused promised to make a first payment of K200,000.00. He said he agreed to such an agreement and he returned to Tabubil. He said the accused told him to wait 7 days for the cheque to be cleared. He said after 7 days he checked at his bank only to be told that were was no money in his account.

16.	After he found that the promised K200,000.00 had not been paid he flew back to Port Moresby soon after and confronted the accused. After much discussion the accused wrote him a cheque for K170,000. To cut a long story short that cheque too was dishonored as the accused had insufficient funds in his business account to pay that K170,000.00 cheque.
17.	Chris Wang Bubsep said after realizing that he had been fooled again the second time, he flew back to Port Moresby to confront the accused again but he said the accused did not want to see him and started setting days for the complainant to see him but those appointed times were not honored. He said the accused was giving excuses after excuses not to see him. He said the accused never told him where the gold was or what had happened to the gold. He said he tried to get the accused to pay for the gold but he got nothing. In the end he went to report the matter to the police.

18.	In May of 2009 a Memorandum of Agreement (MOA) drawn up by the accused was signed by the accused and the complainant Chris Wang Bubsep . This MOA was tendered into evidence. The MOA introduced a Third Party by the name of Wichai Pacharana of Thailand who was to be the buyer of the gold.

19.	As I understand Mr Pukali's side of the story it was Wichai Pacharana who was to be the purchaser of the gold and he was to buy the gold through the accused from Chris Wang Bubsep.

20.	According to Chris Bubsep, Pukali was to be the buyer and said there was no mention of Pacharana in the first place by Pukali. It is to be noted that the MOA was belatedly signed on 27 May 2009, 4 months after the transaction on 4 February 2009 had been completed. The question then arises why enter into an MOA this late in the day?

21.	In cross examination Chris said the accused knew he was coming with the gold because Albert Moini had made the arrangements with Pukali and him. It was put to the witness that he did not come with the gold and that is why he went back to Tabubil to get the gold to which the witness denied. He was adamant that he went back to Tabubil because Pukali had promised to pay K200,000.00 to his account which he accepted.

22.	In relation to the Third Party buyer, Chris said he was not aware of any third party buyer by the name of Wichai Pacharana even up to the date of the trial. Chris said all he knew was that Pukali would be buying his gold and that Lawrence Pukali was the buyer of the gold.

23.	Chris admitted confiscating Lawrence Pukali's vehicle but said he did so because everytime he went to Pukali's office at Gordons he was running away from him and so he took the vehicle and said the vehicle is with him.

24.	It was put to Chris that he was given K30,000 and a further K5,000.00 for him to go to Tabubil to get the rest of the gold to which he said this was all new information to him. Chris said he did not threaten the accused and that all he wanted was to be paid for the value of 2,535 grams of gold and or the return of the gold.

25.	This was the States main witness, the other two witnesses were the investigating officer who conducted the record of interview and laid charges.

26.	The accused gave sworn evidence as well on his own behalf. He said he is a lawyer by profession and is now self employed running a consultancy services company.

27.	He said on 4 February 2009, the complainant was brought to him by Albert Moini. He said Albert Moini's daughter is married to his son and so that is how the complainant was brought to him. He said he had never met the complainant before and that this was a first meeting for them.

28.	He said there was a general or common understanding between the complainant and him that there was an independent buyer for the gold. He said at no time did he say he would buy the gold which was agreed to be bought at K160.00 per gram.

29.	He said he gave K30,000.00 to the complainant plus airfares but he said he did not have the money to pay for the gold himself anyway.

30.	In cross examination the accused denied promising the complainant that he would deposit K200,000 into the complainant's account. He admitted writing out a cheque for the amount of K170,000.00 in favour of the complainant when he knew that he did not have that kind of money in his company account at that time. He said he was expecting some money into his company account and so in anticipation he wrote that cheque which was dishonored and was valueless.

31.	He said the gold was with the purchaser because the purchaser came and got the gold and went which he said he informed the complainant about. That was the accused's evidence.

32.	In such a gold buying or trading business, if I were a small alluvial gold miner I would not part with my gold until I was paid. The gold and money must change hands at the same time. As a buyer I would not part with my money until I am satisfied that what I am buying is real good nuggets and not "fools gold". Gold and money must change hands at the same time. If I am a middleman I would inform my buyer of the fact that I have gold and that he must send me money to buy the gold immediately. I will not get any gold until money has arrived and I will then arrange for the gold to be brought in.

33.	None of the above things happened in this case. Chris may have been too trusting of the accused to make him hand over the gold to the accused. Chris did not say if he was an experienced gold trader. This significant part of the evidence that the gold was left with the accused and how and where the gold was given to Wichai Pacharana, as stated by the accused in his evidence is not known in detail. No one else seems to know this Wichai Pacharana except the accused and the MOA. The question arises as to whether in fact there was ever a Wichai Pacharana in this gold transaction or whether he exists at all.

34.	There is no dispute as shown by evidence that Chris Bubsep was selling 2,535 grams of gold. There is also no dispute he was introduced to Lawrence Pukali by Albert Moini on 4 February 2009 at Pukali's office in Gordons, Port Moresby. There is no dispute Albert Moini arranged the meeting for Chris and Lawrence to meet. There is also no dispute that the agreed price for the gold nuggets was K160.00 per gram and that altogether K405,600 was the full purchase price for the 2,535 grams of gold nuggets. There is no dispute that the accused forged a Bank South Pacific cheque No 000087 for the amount of K170,000 in favour of Chris Wang Bubsep which when presented was dishonored meaning that there were insufficient funds in that cheque account. These are the pertinent undisputed facts which the court notes and will work from to come to its findings.

35.	The issues for determination as per the charges are:

(i)	Whether or not the accused made a by willful promise to Chris Wang Bubsep that he (the accused) would pay him (Chris) K405,600.00 in exchange for 2,535 grams of gold nuggets. 

(ii)	Who was to buy the gold?

(iii)	Did accused intend to defraud the complainant?

(iv)	Whether or not the accused got from Chris Bubsep the 2,535 grams of gold.

(v)	If the accused did, whether he intended to defraud Chris Bubsep.

(vi)	Whether the accused forged a cheque for K200,000 purporting it to be a valuable cheque.

(vii)	Whether the accused forged a Bank of South Pacific cheque no 000087 for K170,000 with intention that it would be acted upon as genuine.

36. Did the accused make a willful false promise to the complainant that he would pay him K405,600 in exchange for 2,535 grams of gold? Where such allegations are made the court must look at the circumstances of the events as they unfolded. I will therefore endeavour to look at those relevant circumstances from the evidence given, as I see them and make general observations where appropriate. Chris Wang Bubsep was not known to the accused and the accused is not known to Chris. They were introduced to each other by Albert Moini. In other words they were total strangers to each other. Chris wanted to sell his gold. According to Chris the accused is a gold buyer. Accused says he is not a gold buyer but that he is a middle man for another person in the process of gold buying.

37. The accused says he never told the complainant that he would buy the gold nuggets. He said he informed the complainant that he was a middleman for someone who was the buyer. The complainant was cross examined on this point but he said there was never any mention of another buyer and that this was fresh news to him.

38. I note that the MOA was signed on 27 May 2009 some 4 months after the transaction. Why was this MOA done up at this time and not before or at the time of the original transaction. The evidence is that the accused drafted the MOA. Why would he want to do this at this late stage? Why did he not do it right at the beginning when he was introduced to the complainant and when discussions and negotiations were going on to arrive at the sale price?

39. The complainant's evidence is that the accused was the buyer and that he agreed to purchase his 2,535 grams of gold at K160.00 per gram and that the total the accused agreed to pay him was K405,600.00. He said the accused never told him or mentioned to him about a third party buyer.

40. Who is telling the truth here, the accused or the complainant? In Lawi v The State (1987) PNGLR 183 the Court said "whether an accused has a particular state of mind is a question of fact which has to be decided by the jury when there is a trial on indictment." as in this case. Dishonesty in s.383A relates to a person's state of mind at the time of the offence. See State v Gabriel Ramoi [1993] PNGLR 390. It is my view that it also relates to that person's state of mind before and after the actual offence is committed. For instance in this case the accused's state of mind after he disposed of the gold suggests quite easily smacks of dishonesty. The offender's state of mind before and after the commission of an offence are relevant considerations in deciding the guilt or otherwise of an accused. Considering the circumstances and relying on the evidence before me I would have to conclude that the complainant's story has a ring of truth around it and I accept his evidence that the accused was the buyer and not another person.

41. One reason I disbelieve the accused is because there is no further evidence from the accused about this Wichai Pacharana. All this Court knows is Wichai is from Thailand. There is no evidence from the accused that he was in constant communication with Wichai to send K405,600.00 for the gold. There is no evidence of any telephone communication or email communication or any other form of communication from the accused to Wichai and Wichai to the accused. There is no evidence from the accused that he was doing his best to get Wichai to pay for the gold. There is just nothing from the accused and there is total silence from him on that front.

42. If the accused was telling the truth one would have thought that because Wichai had gotten the gold that he would be making all out efforts to get Wichai to send the money. Instead he goes and writes a valueless cheque for K170,000.00 further putting himself into deep trouble. In his evidence the accused did not say he was expecting money to come into his company account from Wichai for the gold. There is a total deception from the accused on this.

43. While there is evidence from the accused that the complainant and a few others threatened him and his family and that the complainant had confiscated the accused's motor vehicle which the complainant has admitted to, I think I can understand the complainant's position. He had been tricked by the accused into leaving his gold with him. The gold is worth K405,600.00. The next thing is the gold disappears into thin air and when it is demanded back he gets no gold back.

44. The accused knows more about the missing gold than he is telling the court or is prepared to tell the court.

45. In those circumstances the complainant's position is that he was angry and frustrated. What was he supposed to do next? Just sit and hope K405, 600.00 will somehow get to him? This is a situation where the accused had the upper hand in that he had the complainant's gold.

46. In those circumstances I find that the accused did make a willful false promise that he would pay Chris Wang Bubsep K405,600 in exchange for 2,535 grams of gold. This relates to the first count.

47. In relation to the second charge there is no evidence of an actual cheque written out to the complainant in the amount of K200,000. There might have been a willful false promise to pay that amount of money but none of that money was paid because the accused simply did not have sufficient funds to pay K200,000. The accused is not charged for willful false promise for this amount.

48. In relation to the third charge the accused admitted writing out the false cheque for K170,000 but said he did so under duress as his life and that of his family was threatened by the complainant and others. The accused has got this whole thing upside down. To him it appears that what has happened to the complainant's gold is alright and that he is not responsible and has got nothing to do with it. This is totally irresponsible and unbecoming of a lawyer to be totally washing his hands clean and shutting himself out from the complainant's problems which he created.

49. There is evidence of some threats issued by the complainant which was admitted by the complainant which this court does not condone but that was out of sheer frustration as a result of the accused's attitude towards this whole matter. The complainant had threatened the accused and confiscated his motor vehicle and the matter was reported to the police.

50. Was the cheque for K170,000.00 written out under duress? I do not think it was written under duress. To write out a false cheque would invite more threats. That is why it seems the accused seemed to think the K170,000.00 would drive Chris away. It did not. It just gave Chris more reason to be frustrated and do what he did – confiscate the accused's motor vehicle.

51. Accordingly I find as follows:

(i) Guilty on the First Count.

(ii) Not guilty on the Second Count.

(iii) Guilty on the Third Count.

_______________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defense