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State v Kintau [2014] PGNC 55; N5761 (30 July 2014)

N5761

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 619 OF 2013
CR (FC) 616 OF 2013

Between:

THE STATE

And:

ALOIS KINTAU AND ISAAC TOM

Waigani: Salika, DCJ
2013: 15 July, 05 August, 02 September; 18 November; 03 December
2014: 11, 13, 23 & 25 June; 25 & 30 July

PRACTICE & PROCEDURE – Criminal law – sentence – dishonesty offence – dishonestly applying property – section 383A of Criminal code – Real Estate Agent and a Lawyer – Position of trust.

PRACTICE & PROCEDURE – Sentence – Real Estate Agent and Lawyer – dishonestly applying money – amount involved K87,500.00
Cases Cited:

Belawa v the State (1988-89) PNGLR 496
State v Eliakim (2007) N3190
State v Johnson Bale (2004) N2620
State v Neville Miria (2013) N5102
State v Timothy Tio (2002) N2265
State v Pongowen Popei and Mark Regione, CR 659 and 660 of 2012 Unreported and Unnumbered

Counsel

Ms K Tarube, for the State
Mr J Mesa, for the Defense

25th July, 2014

1. SALIKA DCJ: Introduction: The prisoners pleaded guilty to one count of misappropriation of K87,000.00 belonging to Danny Kiap. Up to yesterday the K87,500 remain outstanding. Some of the money was restituted yesterday.

Issue

2. The remaining issue for the Court to consider and determine is the appropriate sentence to impose on the two men.

Background

3. The K87,500 was paid to PNG Legal Links Ltd in the following circumstances as recounted by Danny Kiap, the complainant:

"In or around July, I wanted to buy a property located in Korobosea, Section 60, Allotment 17 for and behalf of WINZU Guest House. The property was sold by Mr. Isaac Tom, a Sales Consultant with OUR Real Estate Ltd, who were Agents on behalf of the Vendors or joint tenants namely Mr. Andano David Lora and Mrs Julianne Cordukes both of Boroko.

As per the letter dated July 28th 2011 by Issac Tom of OUR Real Estate Ltd, my offer of, K800,000.00 was except by the Vendors. He further instructed me to pay a 10% deposit of K80,000.00 into the Trust Account of PNG Legal Links Ltd as the appointed stake holders by the Vendors.

On 29th July 2011 I made a K80, 000.00 BSP Bank Cheque Number 860060 payable to PNG Legal Links to secure the property. The cheque was received on behalf of PNG Legal Links Ltd by Mr. Isaac Tom.

On or around 29th September 2011, I made a second payment total of K7,500.00 cash to PNG Legal Links Ltd and it was received by Mr. Isaac Tom on their behalf. As per the letter of 30th August 2011 by PNG Legal Links Ltd, K6, 000.00 is for IRC Stamp Duty and K1, 500.00 for Legal Fees.

The Total amount paid to PNG Legal Links Ltd is K87, 500.00.

I have signed the Contract of Sale and while the transfer instruments were getting under way, I secured the K720,000.00 cash for settlement.

On 04th October 2011, I was instructed by PNG Legal Links Ltd that the Settlement of the property was scheduled to take place on 14th October 2011 as per the letter dated 04th October 2011.

On 14th October 2011, I was further instructed by PNG Legal Links Ltd through Mr. Isaac Tom that the settlement will not as scheduled as the Vendors were not ready so I had to wait for the next instruction.

From that time, onwards, there was a prolonged delay. OUR Real Estate Ltd and PNG Legal Links Ltd did not advice me in writing a other means of communications as to why there was a prolonged delay in the settlement of the property.

Since I did not know the reason for this suspicious and unnecessary delay on their end, I decided to look for another property and move on in business. Time in business is equalled to money so I lost a lot of time in the delay.

On 10th November 2011, I wrote a letter to Mr. Isaac Tom of OUR Real Estate and copied to PNG Legal Links Ltd and the Vendors to refund the K87,500.00 so I can go on to look for another property.

On or around mid-November 2011, PNG Legal Links Ltd acknowledged our letter and wrote back advising that they will refund the money on 26th November 2011.

On 26th November 2011, they did not refund the money as promised. On 16th December 2011 I wrote the second letter to Isaac Tom and copied to PNG Legal Links Ltd. M Saka lawyers were my legal advisors at that time.

I did not receive an acknowledgement letter of a letter advising me of the status of the refund from both OUR Real Estate and PNG Legal Links Ltd. I have made several visits to OUR Real Estate office but every time, I go there, I am told that Isaac Tom is not in the office.

On or around 24 January 2012, I made a direct phone call to Mr Alois Kintau, Principal, Pacific Legal Links to find out the delay in my refund. He said he was busy and will return my call in 5 minutes. He did not return my call but instead send a text message saying: "20 mins pls im in a miting" (Time: 24 Jan 2012 @ 12.49pm).

When 20 minutes lapsed he did not call me. I had to call him again about an hour and all my calls were not answered. He sent me another text that evening which said: "Bro sori tru wanpela urgent samting kamap lo Madang na client salim ticket na mi travel igo i should be back thursday morning and we can mit i apologise I talk to Issac Tom only about 10 minutes ago cu (time: 24 Jan 2012 @ 08.04pm)

He did not call me on or after Thursday as promised with Issac Tom regarding the refund so I lodged an official complaint with Police to investigate further about my money and also question these two suspects, Issac Tom and Alois Kintau. "

4. Having stated the circumstances under which this offence was committed by the two men, this court can only say that indeed a lot of money can corrupt the minds of people as has happened in this case. I do not understand what the two men were thinking. Did they think that the matter would just go away without the owner of the money coming after them? Did they think Danny Kiap would just forget about the money and let them to get away with it?

5. The mentality of suddenly becoming busy and not return telephone calls or when the telephone is answered to say that I am in a conference and will call you back are common excuses that we all are accustomed to or with. These are work of persons who are sick in the head and think that they can fool people all the time and get away with it.

6. You can indeed fool people sometimes but not all the time. People can read your language add them up and come to their conclusion about the type of person you are. They can bring about their own judgement about a person as to whether that person is a genuine or using colloquial terms "a conman" or "trickster".

7. Issac Tom you work in the Real Estate Industry while Alois Kintau you are a lawyer and should be going all out to build a good reputation as a lawyer. This single incident brings the two of you undone crashing to the ground zero level. Hardly a position you want to be in considering your experiences and qualifications.

8. Wikipedia – the free encyclopaedia defines honesty as: "Honesty refers to a fact of moral character and connotes positive and virtuous attributes such as integrity, truthfulness, and straight forwardness, including straight forwardness of conduct, along with the absence of lying, cheating, theft etc. Furthermore honesty means being trustworthy, loyal, fair and sincere."

9. Honesty, therefore to me is a character virtue one must possess in himself or herself. In the real estate industry, a person who works in that industry, although there are tempting situations to be dishonest in my view that person should deal with his clients with honesty. Likewise, in the lawyering profession, lawyers should be honest with their clients. Lawyers should be devoted to telling the truth and conduct themselves that conform to an accepted standard of behaviour discerning right from wrong and have the common decency to stick to their ethical conduct that they swore on the Bible and the Constitution on admission day to uphold. To step out of these ethical principles brings disrepute to the profession.

Case Precedents
10. The Supreme Court in the Belawa v the State (1988-89) 496 confirmed a sentence of 2 years imprisonment for misappropriation. In that case the prisoner misappropriated K1,979.00 and had the money fully reimbursed but the court said the 2 years imprisonment was not excessive.

11. In the State v Eliakim (2007) N3190, the prisoner pleaded guilty to one count of conspiracy to defraud and one count of stealing K3,360.01. He was sentenced to 18 months imprisonment for submitting ghost names as employees and obtained cheques for those ghost employees. He did this for 3 months before he was caught.

12. In the State v Johnson Bale (2004) N2626 the prisoner was sentenced to 4 years imprisonment for stealing K78,074.03 from his employer. The prisoner was in a position of trust and he abused that trust.

13. In the State v Neville Miria (2013) N5102 the prisoner was sentenced to 4 years imprisonment for stealing K100,000 from his employer the Bank South Pacific. He had premeditated the crime before executing it.

14. In the State v Timothy Tio (2002) N2265 the prisoner there was sentenced to 5 years imprisonment for stealing a chain saw valued at K8,000 from his employer and then sold it to a third party for K3,000.00

15. In the recent cases of the State v Pongowen Popei and Mark Regione, CR 659 and 660 of 2012 Unreported and Unnumbered judgement given on 14 April 2014 the court sentenced the two men to 3 years to conspiracy to defraud and 4 years for stealing with both sentences to be served concurrently.

16. By the foregoing and numerous unmentioned case precedents the National Court is consistently imposing stern punishments to offenders with no sign of those sentences having any deterrent effect on prospective offenders. It is also evident from the number of stealing and misappropriation cases listed in our Crimes Track cases. There are 3 crime courts in Waigani. One of those crime tracks is this track which is the Fraud Cases Track. This track is the heaviest of the 3 courts. The track is even heavier than the other 2 crimes track put together. This trend shows that more and more fraud and dishonesty cases are committed than the other crimes. What lessons can we draw from this trend? I think I will leave that to each and every one of us to seriously ponder over. It is food for thought for the moment.

1. ISSAC TOM
   

17. This prisoner is 42 years old and is a widower with 2 young children 6 years and 5 years respectively. He completed Grade 10 in 1994 and attended Madang Maritime College and obtained a diploma in Health and Safety. He now works in the real estate industry. He acts as an agent for a real estate company and gets commissions from successful property sales and leases.

2. ALOIS KINTAU
   

18. This prisoner is 49 years old and is a lawyer by profession. He is married with 8 children. He lives at Gerehu with his wife and children. He graduated from the University of Papua New Guinea.

Mitigating Factors

A. ISSAC TOM

- The prisoner pleaded guilty to the charge
- This is his first time to be in court - no prior convictions.
- He has repaid in full all his part of the K87,500 in the sum of K43,250.00

B. ALOIS KINTAU

- The prisoner pleaded guilty to the charge.

- This is his first time in court – no prior conviction

- Prisoner has repaid K6,780.00. He still has K36,470 to pay to Danny Kiap.

19. The money in the amount of K87,500 came into their possession in the course of their respective duties, Issac Tom as a real estate agent and Alois Kintau as a lawyer, who ran a legal firm PNG Legal Links Ltd. Whether or not PNG Legal Links had a Trust Account or not is another matter which the PNG Law Society will be interested in but the money appeared to have been deposited into the operating account of the Legal Firm and was drawn from there.

20. I have read the character reference filed on behalf of Alois Kintau. The references are obviously in variance with the charges he is now facing. Honesty is a character trait that we as human beings should have acquired at the earliest stages of our development as humans. If and when we fail to acquire that character trait at the earliest possible stages of our lives, then we have missed the boat and become lesser humans in my respectful view.

21. In relation to Alois Kintau, your career as a lawyer will obviously be affected by this conviction. The Statutory Committee of the PNG Law Society will have to reconsider whether you are still a "fit and proper person" to practice as a lawyer in this country. That will also be a punishment in itself but you have brought this upon yourself and your family. You cannot blame anyone for this predicament.

22. In the circumstances of this case, I sentence Issac Tom to 4 years imprisonment but all of that is suspended as he has paid the full K43,250.00. I also sentence Alois Kintau to 4 years imprisonment and it will only be suspended if he repays the full K36,470. This means he will be imprisoned but will be released once he has fully repaid the full amount he owes to Danny Kiap.

23. On the day of judgment, Alois Kintau had fully repaid all the outstanding amount and was therefore released.
____________________________________________________________

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