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State v Unobo (No 2) [2018] PGNC 157; N7232 (3 May 2018)

N7232


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) No. 24 OF 2017


THE STATE


V


KEVIN UNOBO
(No 2)


Waigani: Miviri AJ
2018: 30 April &1,3 May


CRIMINAL LAW – Practice and Procedure – s383A Misappropriation CCA – trial – employee central Provincial Government –purchase of vehicles for Provincial Government – application to personal use – dishonesty – vehicle used personally – registered to family business IPA– driven around after delivery by supplier – guilty of count 1


CRIMINAL LAW – Practice and Procedure – s383A Misappropriation CCA – trial – employee central Provincial Government – outboard motor & dingy – no serial number or identification in charge laid – charge not proved – Not Guilty on count 2 and 3–Acquitted and discharged–bail refunded forthwith.


Facts


The accused was liaison officer between the Central Provincial administration and office of the Governor Alphonse Moroi in the purchase of 9 police vehicles for police in central province to help in the security of the election 2012. The total cost was K900, 000.00. Two cheques were raised and paid to Ela Motors, first was for K 700, 000 and the second was K19, 709. 38. He dishonestly applied to his own use a Toyota Land cruiser registration number BDP 758. Further he also purchased with central Provincial Government money an outboard motor and dingy that he sent to his village Gebea where it was used by his father which police retrieved.


Held


Guilty of count 1 that he dishonestly applied to his use a Toyota Land cruiser registered number BDP 758, the property of the Central Provincial Government. Not Guilty count 2 and 3
Bail refunded forthwith


Cases:


The State v Kavo [2015] PGSC 48
The State v Wellington Balewa [1988-89] PNGLR 496.


Counsel:


T. Aihi, for the State
R. Kolowe, for the Defence

VERDICT
3rd May, 2018


  1. MIVIRI AJ: This is the verdict of the court of accused charged with three counts of misappropriation.

Background


  1. Accused was the liaison officer between the central Provincial Administration and the office of the Governor of central province, Alphonse Moroi, who was also the chairman of the Provincial Executive Council. The Central Provincial Government made a decision to purchase 9 Police vehicles for Police in Central Province for the 2012 General Elections. The total cost of the purchase from Ela Motors was K 900, 000.00. The Provincial Administrator then, Manasseh Rapila implemented that decision. A K700, 000.00 and a K 19, 709. 38 cheques were raised and paid to Ela Motors Limited to supply the vehicles. Four vehicles out of five were delivered, the fifth was not delivered. Accused dishonestly used this vehicle registered number BDP 758 between the 1st and the 30th June 2012 for his own use. Also during the same period,he bought and used dishonestly a Yamaha 23 foot U boat Stern seat and a 40 horse power Yamaha enduro long shaft all properties of the Central Provincial Government.

Charges


  1. The three charges on the indictment invoked section 383A of the Code reading:

“(1) A person who dishonestly applies to his own use or to the use of another person-

(a) Property belonging to another; or
(b) Property belonging to him, which is in his possession or control (either solely or conjointly with another person) subject to trust, direction or condition or on account of any other person,

is guilty of a crime of misappropriation of property.


(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for five years excerpt in any of the following cases when he is liable to imprisonment for ten years-


(a) where the offender is a director of a company and the property dishonestly applied is company property;

(b) where the offender is an employee and the property dishonestly applied is the property of his employer;

(c) where the property dishonestly applied was subject to a trust, direction or condition;

(d) where the property dishonestly applied is of a value of K2000 or upwards.

(3) For the purposes of this section-


(a) property includes money and all other property real or personal, legal or equitable including things in action and other tangible property;

(b) a person’s application of property maybe dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution thereof to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property;

(c) a person’s application of property shall be taken not to be dishonest, except where the property came into possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps;

(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender’s application of the property, had control of it.

Penalty: Imprisonment for a term not exceeding one year.


(4).........


  1. The first count relates to a Toyota Land Cruiser registered number BDP 758 property of the Central Provincial Government. The Second count relates to a Yamaha 23 Foot U boat Stern seat also the property of the Central Provincial Government. Including the third count which relates to a Yamaha 40 horsepower long shaft endure outboard motor. The allegation against all is that the accused dishonestly applied these properties to his own use or to the use of others and thereby breached the law set out above.
  2. The elements of the offence of misappropriation are that a person ;

State case


  1. The State comprised the following evidence tendered by consent and marked as exhibits:
  2. The tendered evidence corroborated the sworn oral evidences of Alphonse Moroi former Governor, Manasseh Rapila Provincial administrator together with Collin Lama finance manager Central Province that there were five vehicles and cheque of K700, 000.00 and K 19, 709. 38 were raised and paid. These were independently confirmed by the Ela Motors sales personals, Mase Henao Ray, for Marine Products and Api Kassman’s statement for the vehicle and the supporting documentary exhibits numbered out above. Four were delivered in the evidence of Exhibit S13 Morgan Oasora. One of which is Toyota land cruiser white registered number BDP 758 which was in the possession of the accused Kevin Unobo taken off him by police investigator Senior Constable Loko Aniau. He was also the person to whom it was sold to be Api Kassman.

Record of Interview


  1. To which accused made detailed admissions in the record of interview with police. For instance he admitted that he took delivery of the subject vehicle at Waigani Ela Motors. And further at question 62 to 68, he admitted that together with his wife they were both directors of Eno Transport hire. And confirmed by the Certificate of registration of business name and extract from the investment Promotion Authority Exhibits S4 and S5. At question 69 he admitted that he registered the vehicle registered number BDP 758 at Ela Motors system as Eno Transport, “Yes I was the one that registered it at Ela Motors system”. And it was the same vehicle BDP 758 the model number HZJ78R-RJMRS Engine 1HZ frame No. JTERB71J300065812 colour 058 Trim LBIO plant C41 Trans/Axle R151F AO2A 894 depicted out in Exhibit S6F and also Exhibit S18A, 18B customer deal pack which shows provincial Government Central. And Exhibit S18 Api Kassman confirms that the sale was to Provincial Government Central an officer from there Kevin Unobo was sold about five to six land cruisers including this one. Only four were registered per the evidence of Morgan Oasora Exhibit S1 asset and utility Officer with central Provincial administration Konedobu. And these were PAD 853, PAD 854, PAD 855, and PAD 856. And not one of these vehicles was the one registered as BDP 758.

Application of Law to facts


  1. The combined effect of this evidence was that Kevin Unobo was dishonest. And that he applied the use of the vehicle the subject of count 1 of the charge personally. He was the liaison officer and he paid over the cheques for the vehicles which were for the Central Provincial administration to give to Police. He did not deliver that vehicle BDP 758 model HZJ78R-RJMRS Engine 1HZ frame No. JTERB71J300065812 colour 058 Trim LBIO plant C41 Trans/Axle R151F AO2A 894 when it was shipped into Ela Motors Waigani from Alotau. He registered it to his business Eno Transport Hire. By that fact he was converting it, it did not belong to him. The official receipt from Ela Motors and its salesman who gave evidence Mase Henao Ray together with Api Kassman confirmed that it was Central Provincial Government that made the purchase and not Kevin Unobo. He was in possession of the vehicle and the policeman Loko Aniau when he caught him driving it outside Westpac Bank. He applied its use to himself.
  2. The record of interview was very credible because it was fresh in the mind of the accused then now 6 years since the matter has come to the court. He has had time to think about it and that is clear from the way that he gave evidence in defence. He deliberately lied that he was attacked at the waigani Show room and the vehicle was taken there. Which no independent verification was put or sourced from police of that fact. It is self serving and as such is not credible to sway the court. And further he found it along the Magi Highway and drew it to the Kwikila Police. That story is again recent and self serving. There is no consistency or truth and veracity and will be rejected outright. The finding is that he has deliberately lied under oath because he registered it in Eno Transport Hire at Ela Motors. Very clear intention to dishonestly apply the vehicle to his own use. It belongs to the Central Provincial Government who did not consent that he should register it and apply it to his use. Further Central Provincial Government does not by instruction from anyone in authority instructed that he should register the motor vehicle to his business name. What he has done is without the express authority of the owner in law who is Central Provincial Government and therefore has converted the property to his own use dishonestly. It is not his property and has never been from all the evidence laid in court. There is no express or implied or apparent evidence that he is the owner of the said property. Nor is there any apparent or express or implied evidence he has acted honestly and that he was innocently bringing it back after it was forcefully taken off him at the Waigani Ela Motors. What is reasonable and beyond all doubts is that this vehicle was the subject of payment emanating from the treasury of the State the Central Province Government through two bank of Papua New Guinea cheques set out above in the evidence tendered here. And with the four delivered it was not delivered as it was still on shipment yet to be made from Ela Motors Alotau. Later on after the Elections it was delivered in all the circumstances I am satisfied beyond all reasonable doubt that he dishonestly applied you took delivery and rather than take it down to the Central Provincial Government headquarters at Konedobu, you registered it to your business comprising you and your wife as directors and used it for that purposes. That is why it was not delivered up to the time you were seen driving it by the Police arresting officer Loko Aniau. It is not the evidence that it was involved in an accident and you were taking it back here to return. It was involved in an accident at your hands it was not your property you tried to make it good but your wrongs caught up with you.
  3. Your case is likened to Wellington Balewa v The State [1988-89] PNGLR 496, which facts relate that prisoner paid K1979.00 for a dingy and a 15 horsepower Yamaha outboard motor out of Milne Bay Provincial Government moneys. He sent both properties to his wife’s village in Manus as a present to his wife. The integrated local purchase order (ILPOC) was questioned by accounts in Milne Bay and not paid. Ela Motors traced it where upon he got money from the Milne Bay disaster fund and settled it after a long period. And when he was retrenched he paid off the money to the Milne Bay Disaster fund.
  4. That is what you were here, Wellington Balewa (supra) which was reinforced in Kavo v The State [2015] PGSC 48 where the Supreme Court set aside the conviction of the appellant on the basis that when he got the K 131, 338.00 due to him out of a trust fund of K10million was not wrong it was government money and he was entitled to his entitlements he was not dishonest or the National court could not have been satisfied beyond all reasonable doubt that he was dishonest given these facts. His conviction was set aside and not guilty verdict entered in accordance with section 28 of the Supreme Court Act. And in similar fashion that of Francis Potape. Your case is not like that here. You did not have any right to that vehicle in any form or manner. The property was not yours in any way nor did you have any right to use it as you did.
  5. Your facts and circumstances and evidence led here are not likened to these cases. Your case has been proved beyond all reasonable doubts that you were very dishonest and that you applied a property Toyota land cruiser ten seat registered number BDP 758 (model HZJ78R-RJMRS Engine 1HZ frame No. JTERB71J300065812 colour 058 Trim LBIO plant C41 Trans/Axle R151F AO2A 894) belonging to the State through the Central Provincial Government between the 1st and the 30th day of June 2012 here in Port Moresby to your own use.
  6. I am satisfied beyond all reasonable doubt of your guilt particulars I have set out above and in accordance with the law sustained by the evidence here I return a guilty verdict of misappropriation on count 1 charged on the indictment contrary to section 383A against you Kevin Unobo of Gebea village, Central Province.
  7. In respect of counts 2 and 3 on the indictment I am not satisfied beyond all reasonable doubt that the charges link you to the evidence as it reads you dishonestly applied to your own use and to the use of others a boat a Yamaha 23 foot U boat stern seat property of Central Provincial Government. This is a mass produced item and must always be linked specifically out of the mass produced to the prisoner by its model number serial number product number. It is not any other but this particular property singled out. That is not the case here also for the subject of count 3 the new Yamaha 40 horsepower Enduro long shaft outboard motor also the property of the Central Provincial Government. It too is not linked out from the rest of mass produced similar items as distinct to the evidence that has been led in court. Both properties do not have the evidence linked to the charges preferred and inference will be an error in law on any conviction against the accused. Accordingly it is the verdict of the court that he is found not guilty that he dishonestly applied to his own use or to the use of others a boat namely a Yamaha 23 foot U boat Stern seat Property of the Central Provincial Government. And thirdly that he dishonestly applied to his use or that of others new Yamaha 40 horsepower Enduro long shaft outboard motor also the property of the Central Provincial Government. Both these products by the evidence led were bought by Central Provincial Government but are not linked to the charges in the way drafted. It would be error in law to so invoke which is trite law. State has the burden not vice versa which it has not discharged in these two charges.
  8. Verdict Guilty Count 1.
  9. Not guilty counts 2 and 3 Acquitted and discharged.

Orders accordingly,
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence

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