Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Kingsley (No 3) [2024] PGNC 249; N10916 (19 July 2024)

N10916

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 141 OF 2022

THE STATE

V

ALOIS KINGSLEY
(No 3)

Waigani: Berrigan J

2023: 21^st, 22^nd, 23^rd, 24^th November, 12^th, 13^th December
2024: 20^th February, 19^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – FORGERY – Section 460 of the Criminal Code – Elements of Offence – Meaning of “false document or writing” – Evidence failed to establish alleged offences beyond reasonable doubt.

It was alleged that the accused forged three forms under the Companies Act, namely a notice of change of directors and a notice of change of shareholders in the company Blue Chip No 15 Pty Ltd and a notice of change of shareholders in another company, Mabela No 88 Pty Ltd, and further that he uttered the said forms to the Investment Promotion Authority (IPA).

Held:

(1) In general terms, the Criminal Code imports the common law requirement that for a document or writing to be false for the purpose of establishing the offence of forgery it must tell a lie about itself, in the sense that it purports to be made or altered by or on behalf of a person who did not make it or alter it or authorise it to be made or altered (or where material, be falsely dated as to the time or place of making with a fraudulent intent): ss 459(2)(b), (c) and (d), Criminal Code adopting R v More [1988] 86 Crim App R 234; Brott v R [1992] HCA 5; (1992) 173 CLR 426.

(2) In addition, section 459(2)(a) of the Criminal Code extends the common law meaning of false document or writing in the case of certain documents, namely, a register or record kept by lawful authority, an entry in any such register, or a document which purports to be issued by lawful authority as testifying to the contents of any register or record kept by lawful authority or to any fact or event, if any material particular stated in the document is untrue.

(3) The evidence failed to establish beyond reasonable doubt that the accused forged or uttered the documents alleged.

Cases Cited:

Papua New Guinean Cases
State v Kingsley (2023) N10131
State v Alois Kingsley (No 2) (2024) N10904
R v Windsor (1865) 10 Cox 116 at 123
Kawari Fortune Resources Limited v Henian Zou (2015) SC1614
Kuyan v Sallel (Cannings J) (2008) N3376
Kane v The State (2022) SC2201
Rolyn Yugari v The State (2018) SC169
The State v Alex Tongayu (2021) N8810
Karapen v The State (2022) SC2333
State v Waira (2020) N9517
The State v Charles Andrew Epei (2019) N7845

Overseas Cases
Brott v The Queen [1992] HCA 5; (1991-1992) 173 CLR 426
R v Dodge and Harris [1972] 1 QB 416
R v More [1987] 3 All ER 825
R v Ceylan [2002] VSCA 53; (2002) 4 VR 208

Legislation Cited
Sections 459, 460, 462 of the Criminal Code
Sections 65, 66, 135, 136, 137, 395 of the Companies Act

Counsel
Mr A Kaipu, for the State
Mr I Molloy and G Gileng, for the Accused

DECISION ON VERDICT

19^th July 2024

1. BERRIGAN J: The accused, Alois Kingsley, is charged with one count of forgery of a document contrary to s 462(1) of the Criminal Code and two counts of forgery of a document purporting to be a transfer of an interest in shares contrary to s 462(3)(b)(i), Criminal Code. An application to permanently stay the proceedings because of the age of the allegations was refused: State v Kingsley (2023) N10131.
   

Allegations

2. The State alleges that the complainant, Andrew Anis, was a shareholder and director of the Grand Colombia Group of Companies, and a director and majority shareholder of shares in three subsidiary companies: Jugami No 18 Pty Ltd, Mabela No 88 Pty Ltd and Blue Chip No 15 Pty Ltd.
   
3. Between 1997 and 1998 the accused and Andy Kuek Kien Joo created a false document purporting to be a Companies Act Form 16 (Notice of Change of Directors and Particulars of Directors) stating that the directors of Blue Chip No 15 Pty Ltd had changed from the complainant and Andy Kuek Kien Joo to the accused and John Kivung, without the complainant’s consent.
   
4. The accused and Andy Kuek Kien Joo together with John Kivung also created a false Companies Act Form 13 (Notice of Change of Shareholder) stating that the 55% of shares owned by the complainant in Blue Chip No 15 Pty Ltd were transferred to the accused (30%) and John Kivung (25%). The complainant was not aware of the transfer and no consideration was paid to him.
   
5. The accused and Andy Kuek Kien Joo further forged a Companies Act Form 13 (Notice of Change of Shareholder) by falsely stating that the 75% of shares held by the complainant in Mabela No 88 Ltd was transferred to the accused without consideration or the complainant’s knowledge.
   
6. The State conceded that the evidence in support of three corresponding charges of uttering the same documents was weak and made no further submissions, effectively abandoning those counts.
   

STATE’S CASE

7. Documents produced under search warrant from the IPA were admitted over objection through its former officer Rusell Doa and investigating officer Max Makeso: State v Alois Kingsley (No 2) (2023) N10904.
   
8. Andrew Anis says that he was employed by a company in Mt Hagen in 1988 which was managed by Andy Kuek, a Malaysian, and his brother, Sebastian. The complainant and Andy Kuek came to Port Moresby in 1992 and took over a service station on Lawes Rd, Konedobu. They formed a company, Jugami No 18 Pty Ltd. It was agreed that the complainant as the Papua New Guinean citizen would hold the bulk of the shares. He held 75% and Andy Kuek the balance.
   
9. In 1993 they started another company, Mabela No 88 Pty Ltd, which operated a service station in Badili. Again, he held 75% of shares and Kuek 25%. In the same year Kuek told him that they would form a holding company, Grand Colombia Ltd. He was to hold 75% and Kuek the balance. In 1994 they formed another company, Blue Chip No 15 Pty Ltd. He owned 55 shares and 45 shares were owned by Andy’s wife, Mildred Ng Suat Ling.
   
10. In each case the documentation was prepared by Andy Kuek and brought to the complainant at the service station for signing. Documentation was often brought to him to sign. The complainant trusted Kuek. His English is poor. He can only speak simple English and cannot read more than a few words. He never attended any annual general or other meetings for any of the companies. He was never invited. His role was to run the service station at Badilli for which he received a salary.
    
11. In 1994 they engaged Kingstar Security operated by the accused to provide security for the properties.
    
12. In 1998 the complainant left to do pastoral work in Tambul District. He returned to Port Moresby in 2001. On his return he was told by Sebastian Kuek that there had been a change in management and that he was no longer required. Andy had left the country. He went to the Fincorp office and was locked out. He says that Fincorp was bought using money from Blue Chip and that Grand Colombia became Fincorp. He went back to see Sebastian and eventually spoke to Andy on the phone. Andy told him that he would return and they would go back to working like they did before. On Andy’s instruction the company gave him a cheque for K40,000.
    
13. In 2009 the complainant returned to Port Moresby by which time Sebastian had also left. The complainant went to the IPA and found that his shares had been transferred to the accused. He also discovered that Blue Chip No 15 and Mabela No 88 had been deregistered in 2002 or possibly earlier, because of failure to lodge annual returns.
    
14. He denied that he gave Andy his proxy to vote at meetings but agreed that he signed everything Andy asked him to sign. He was unable to say whether he signed a blank transfer form. Andy told him that Deloittes was the accounting firm for the companies and that there were meetings at Deloittes but Andy never invited him to any of the meetings and he never attended.
    
15. In 2017 he saw the accused at Gordons Five. He told the accused that he had been a director of the companies and that he thought that Andy had cheated him as a director and shareholder. The accused said words to the effect “If that is true I will help you”. The accused told him to bring a letter for him to sign. He ran to a relative, Paul Gewa, who then went to the office of late lawyer, Paul Moses Kawa, who drafted a letter for the accused. They took the letter back to the accused, who read the letter quickly, signed it and gave it back to the accused. Paul Gewa, was with the complainant when he delivered Exhibit P2 to the accused who signed it in their presence.
    
16. There is no dispute that Exhibit P2, letter dated 19 March 2017, was signed by the accused. The letter states that at some time after 1995 Andy Kuek offered to transfer some shares registered in the name of the complainant to him and that he was then asked to sign some forms and shares in Blue Chip No 15 and Mabela No 88 were transferred to him. He now realises that all monies made in the companies were transferred out by Andy Kek into Grand Colombia Limited. The complainant should be the 75% owner of Grand Colombia Limited. There “was no agreement to either sale or purchase those shares between Andrew Anis and us and as such Mr Andrew Anis should be restored to the companies including Grand Colombia Ltd”.
    
17. John Kivung was employed as a courier driver by the Grand Colombia Group of Companies in Port Moresby in December 1993. In September 2019 he wrote a letter of apology to the complainant after he heard that the complainant was going to take him to court. In it he said that he was a director and chairman in Blue Chip No 15 illegally and would like to apologise for the scam conducted by Kuek in 1997. He pledged to assist the complainant with his police investigation.
    
18. In evidence he said he was asked to sign a transfer form for Blue Chip. He only ever signed one form. He cannot recall where he was when he signed it because it was so long ago. The accused also signed the form. He cannot recall whether the accused was there at the time. Andy did not tell him what he was signing. He can understand simple English words only. He saw that it was a transfer of shares for Blue Chip No 15. He did not see another signature on the document. His was the only signature on the document containing a 25% share transfer. He never attended any company meetings. As to whether he ever signed any other documents for Blue Chip or Mabela, Andy asked him to sign a minute form and to sign that the meeting had been completed. He cannot recall if he signed any other documents. He trusted Andy because he was his boss. Whenever he gave him a document to sign he signed.
    
19. He was also told to sign a document as a director by Andy, which he did but at a different time. No one else was present. The accused’s signature was already on the document. He signed the transfer form for Blue Chip on 30 August 1997 and the change of director form on 30 June 1998. He resigned and returned to his village in 2002.
    

STATE SUBMISSIONS

20. The State submits that the accused aided Andy Kuek to forge the documents. The complainant never consented to any of the changes. Unlike the complainant and John Kivung, the accused has a diploma of business studies and was running his own business. He should have been aware when there was no consent from the complainant to the change of directors or shareholdings and no proper board meeting notes that there was something wrong. He never took the opportunity when the complainant came back in 2001 to speak to him and advise him what happened. He made admissions in his letter to the IPA.
    

COUNT 1

21. Exhibit P13, the subject of Count 1, is a Form 16, Notice of Change of Directors and Particulars of Directors for Blue Chip No 15, dated 30 June 1998 and signed, on its face, by the accused, Director. It was submitted by Deloitte Touche Tohamatsu (Deloittes) and is date stamped by the Registrar of Companies 6 August 1999.
    

Defence Submissions

22. Defence counsel submits that P13 is not a forgery. It is nothing other than what it purports to be. The essence of forgery is that a document must not only tell a lie but must tell a lie about itself, both at common law and under the Criminal Code. I have found the authorities provided helpful.
    
23. The leading case at common law is R v Windsor (1865) 10 Cox 116 at 123, where Blackburn J said: “Forgery is the false making of an instrument purporting to be that which it is not, it is not the making of an instrument which purports to be what it really is, but which contains false statements. Telling a lie does not become a forgery because it is reduced to writing.”
    
24. In Brott v The Queen [1992] HCA 5; (1991-1992) 173 CLR 426 at 441 the High Court of Australia (Toohey and Gaudron JJ) said: “This approach goes back at least to Ex parte Charles Windsor and has been used where forgery, both at common law an as a statutory offence, has been involved.” It is not enough that the author of the document falsely claims some attribute, for instance that he is wealthy or has a certain qualification or status.
    
25. In Brott the accused signed a document as a witness to another’s signature when in fact he was not a witness. McHugh J said at page 446, “a document is not a forgery merely because it contains a false representation by its maker.”
    
26. Similarly, in the United Kingdom, the common law was replaced by statute including the Forgery Act 1913 and later the Forgery and Counterfeiting Act 1981. Each contains a definition of forgery similar to that contained in the Code and in each case it has been held that the common law definition of forgery was preserved.
    
27. In R v Dodge and Harris [1972] 1 QB 416 the Court of Appeal held that although the documents (bonds) lied about an extrinsic matter, “they were not forgeries within the Forgery Act 1913 for they did not tell a lie about themselves and, accordingly, the convictions would be quashed”.
    
28. In R v More [1987] 3 All ER 825 the House of Lords held that the consistent use of the word “purported” in the definition provisions of the Forgery and Counterfeiting Act “imports a requirement that for an instrument to be false it must tell a lie about itself, in the sense that it purports to be made by a person who did not make it (or altered by a person who did not alter it) or otherwise purports to be made or altered”.
    
29. The reasoning of More and Brott were applied by the Victorian Court of Appeal in R v Ceylan [2002] VSCA 53; (2002) 4 VR 208, Winneke P, with whom Batt and O’Bryan JJA agreed (emphasis mine):
    

“Again, Mr. Holdenson submits that these directions were calculated to cement into the jury’s mind that they would be entitled to convict the applicant of “making” or “using” a false document if satisfied that the personal loan application which was submitted to the Bank “contained what the accused knew to be a lie or lies”. As Mr. Holdenson correctly submitted, the documents were not to be regarded as relevantly “false” for the purposes of s.83A simply because they contained a lie or lies. What the jury needed to be satisfied of, before they could convict, was that the application documents were not what they purported to be in the sense that they purported to have been made in the terms in which they were made by the persons (here the particular loan applicants) who did not in fact make them in those terms. It was only in that sense that a particular loan application could “tell a lie about itself”.

30. Defence counsel further submits that even if the notice could fall within the definition of false document, the Court could not be satisfied that it contained false information in this case.
    
31. Under s 137(1), Companies Act, the board of a company is required to give notice of change of directors (Form 16) within one month of the change occurring. A Form 16 does not effect the change but is notice of a change which has already occurred. That was made clear in Kawari Fortune Resources Limited v Henian Zou (2015) SC1614 in which the National Court purported to reverse two decisions of the Registrar of Companies to record particular details in the register kept by the Registrar pursuant to s 395, Companies Act. One of the entries was in respect of a change of shareholding in the company, the other was to register a change in the directors of the company. The parties, apart from the Registrar, wrongly assumed that the documents lodged with and registered by the Registrar effected the changes. The Supreme Court (Injia CJ, Logan and Kangwia JJ) said at [29] to [30] (emphasis mine):
    

“The Registrar does not maintain the "records of the company". He maintains a separate, public record under s 395 of the Companies Act. By s396(4) of the Companies Act it is expressly stated that:

Neither registration, nor refusal of registration, of a document by the Registrar affects, or creates a presumption as to, the validity or invalidity of the document or the correctness or otherwise of the information contained in it.

Contrary to s 396(4), each of the parties to this application and to the appeal, save for the Registrar, have, both in this court and in the National Court, proceeded on the footing that the validity of their holding shares or, as the case may be, the office of director in the company is determined by a decision of the Registrar to make an entry in the register recording such a fact based on the information in a form submitted to him. That is not so.”

32. See also Kuyan v Sallel (Cannings J) (2008) N3376 at [48].
    
33. Counsel further submits that the Court could not be satisfied beyond reasonable doubt that the complainant did not lawfully cease to be a director for the following reasons.
    
34. Under s 164(1), Companies Act, a company is required to keep certain documents at its registered office including: the constitution of the company; minutes of all meetings and resolutions of shareholders within the last seven years; minutes of all meetings and resolutions of directors and directors’ committees within the last seven years; certificates given by directors under this Act within the last seven years; the full names, addresses, and postal addresses of the current directors and secretary; copies of all written communications to all shareholders or all holders of the same class of shares during the last seven years, including annual reports; copies of all financial statements and group financial statements required to be completed by this Act for the last seven completed accounting periods of the company; and the share register.
    
35. The registered office of Blue Chip No 15 from 30 June 1997 was Deloittes, Mogoru Moto Building, Champion Parade, Port Moresby: Exhibit P7. That predates the changes recorded in Exhibit P13 said to have occurred in July 1997 as well as the date the form was purportedly signed, and then lodged by Deloittes.
    
36. The State failed to obtain any documents from Deloittes who lodged the Form 16. Although certain documents are not required to be kept beyond seven years that does not mean they may not have been kept in some form beyond that date.
    
37. The Form 16 refers to “ceased” to be a director and “appointed”. There are a number of ways these events could have occurred. The Court cannot be satisfied that the content of Form 16 is false or that the changes were not lawfully carried out.
    
38. The complainant says that he did not resign as a director but that is only one way in which a person can cease to be a director. Even though he says that he did not know or agree to the changes that does not mean that they did not occur.
    
39. As to resignation, s 135(2) of the Companies Act provides that a director may resign by signing a notice and sending it to the address for service of the company. The complainant does not know exactly what he signed. He only knows what he was told by Mr Kuek. The resignation, if there was one, should have been amongst the company documents at its registered office.
    
40. As to removal, one way in which a director may be removed from office is by ordinary resolution passed at a meeting of shareholders: s 134, Companies Act. Subject to the company’s constitution a new director may also be appointed this way: s 131(2). A new director is required to consent in writing to his appointment: s 130.
    
41. Pursuant to s 137(2), Companies Act, the Form 16 shall be accompanied by the consent and certificate required pursuant to s 130 of the Act, Form 15. Mr Doa confirmed this and that it is also usually accompanied by a resolution. The form relied on by the State has no attachments. Mr Doa confirmed that Deloittes is a reputable firm of accountants. Presumably the form would not have been lodged by Deloittes or accepted by the IPA without accompanying documents.
    
42. If the changes did take place pursuant to ordinary resolutions and if the complainant was a shareholder at the time then those resolutions could have been voted on by a proxy for the complainant under the Companies Act: Schedule 2, para 6. The complainant did not attend any meetings which raises at least the reasonable possibility that he did grant a proxy. There is also the possibility that resolutions were brought to the complainant for his signature. It cannot be concluded beyond reasonable doubt that there were no resolutions passed to effect the change of directors.
    
43. It may also be that the complainant was not even a shareholder of Blue Chip No 15 at the time. The company’s share register is required to be kept at the company’s registered office and is prima facie evidence of its shareholders: ss 67 and 69, Companies Act, respectively. The share register is not in evidence. It is therefore not certain who the shareholders at the time of the changes, which according to the Form 16, occurred on 17 July 1997. The most recent evidence of shareholders prior to that date is 16 June 1995: Exhibit P10. A meeting could have resolved to make the changes but again the State did not put the minutes and resolutions in evidence.
    
44. The power to appoint directors may also be allocated in the constitution of the company to others than the shareholders: Farra & Watson, Company and Securities Law in New Zealand, Second Edition, page 321. The company’s constitution is also required to be kept at the registered office but is not in evidence.
    
45. In addition, a person is taken to vacate the office of director if they are removed in accordance with the constitution, or becomes disqualified under the constitution, or is taken to vacate office in accordance with the constitution: s 135(1)(a), (b) and (e), respectively. The company’s constitution could well have provided for that here but again it is not known because the constitution is not in evidence.
    
46. It is also relevant that under s 2(1) and s 107(1)(a) of the Companies Act, a “director” includes a person occupying the position of director of the company by whatever name called. A person may therefore be a director even though they have not formally been appointed provided they occupy the position. The evidence is that the accused occupied that position. He signed the Form 16 in that capacity and it was lodged by Deloittes. The Court could not be satisfied beyond reasonable doubt of the contrary.
    
47. Finally, there is insufficient evidence to establish that the accused knew that the document was “false”. What the accused said in a letter to the IPA ten years after the event is not evidence of his knowledge at the relevant time. The same may be said of Mr Kivung and his letter of 2019. The evidence all points to Andy Kuek using Andrew Anis, John Kivung and Alois Kingsley for his own purposes, and that he had them sign whatever he required. There is no evidence that the accused participated in meetings as shareholders or directors and no evidence that they received any benefit as shareholders or directors of Blue Chip No 15 or Mabela No 88.
    

Elements of the Offence of Forgery

48. The cases referred to by the defence whilst not binding are persuasive. Ultimately, what constitutes a forgery in this jurisdiction will depend on the requirements under the Criminal Code.
    
49. To establish the offence of forgery contrary to s 460 of the Criminal Code the State must prove beyond reasonable doubt that the accused:
    
    • (a) Made a false document
    • (b) Knowing it to be false, and
    • (c) With intent that it may in any way be used or acted on as genuine:
      1. to the prejudice of a person; or
      2. with intent that a person may, in the belief that it is genuine, be induced to do or refrain from doing any act.
         

Kane v The State (2022) SC 2201; Rolyn Yugari v The State (2018) SC169; The State v Alex Tongayu (2021) N8810; Karapen v The State (2022) SC2333.

Consideration: Can Exhibit P13 be a “false document”?

50. The Code contains a number of definitional provisions. Relevantly for our purposes, s 459(2), Criminal Code provides (emphasis mine):
    

51. It is also relevant to consider s 460(1), Criminal Code, which provides that making a false document or writing includes altering a genuine document or adding a false date, attestation, seal or other material matter to a genuine document:
    

52. I will return to s 459(2)(a), Criminal Code below.
    
53. It appears to me from the language of s 459(2)(b)(i), (c) and (d), and s 460(1), Criminal Code, in particular the use of the word “purports” and “pass as being made”, that the legislation imports the common law requirement that to be false a document or writing must tell a lie about itself, in the sense that it purports to be made or altered by a person who did not make it or alter it or authorise it to be made or altered (or in the case of s 459(2(b)(ii), where material, be falsely dated with a fraudulent intent): adopting R v More [1988] 86 Crim App R 234; Brott v R [1992] HCA 5; (1992) 173 CLR 426.
    
54. The defence submit that Exhibit P13 cannot tell a lie about itself in the sense required. I do not agree.
    
55. I appreciate that in some cases the question may depend upon the composition of a company’s board, its constitution and/or provisions under the Companies Act, but in this case if I were to find that the complainant was not lawfully removed as a director of Blue Chip No 15 then the document would tell a lie about itself, or more relevantly for our purposes, it would purport to be made by or on behalf of a person who did not make it or authorize it to be made, that is the company, or at least its board of directors, which on the State’s case was comprised solely by the complainant, for the purposes of s 459(2)(b)(i), Criminal Code. This is apparent from the face of the document itself. See also s 137 of the Companies Act.
    
56. I am also of the view that s 459(2)(a) of the Criminal Code is relevant. As the defence concede, it does extend the meaning of false document or writing to include certain documents if any material particular stated in the document is untrue.
    
57. Defence counsel contends that the provision has no relevance here. He says that s 137(1) of the Companies Act creates a statutory obligation to submit a notice of a change of directors to the Registrar of Companies, failure for which constitutes an offence under s 137(3) but that a statutory provision compelling a company to submit a notice, coupled with a penal sanction for failure to comply, cannot be equated to a grant of lawful authority to issue a document or writing falling within s 459(2)(a).
    
58. Again, I do not agree. It is an interesting question whether the notice “purports to be issued by lawful authority”, that being the lawful authority of the company, for the purpose of s 459(2)(a)(iii). But in any event, s 459(2)(a)(i), Criminal Code applies to a document that is a “record kept by lawful authority”, that is it is a record kept by the Registrar of Companies by lawful authority pursuant to ss 137 and 395, Companies Act. The fact that the record is submitted to the Registrar for keeping is to my mind beside the point and would be contrary to the plain reading of the section and its purpose.
    
59. In this regard it appears to me that the Supreme Court decision in Kawari v Henian Zou that the Registrar maintains a separate, public record under s 395 of the Companies Act provides support for my view that the Form is a record kept by the Registrar of Companies by lawful authority for the purpose of s 459(2)(a)(i), Criminal Code. See that part which is highlighted in [31] above.
    
60. Furthermore, whilst Kawari v Zou makes clear that the notice does not effect the change, it does not follow that a Form 16 cannot by that reason ever be a false document for the reasons alleged above, that is for purporting to be made on behalf of a person who did not authorise it to be made, namely the company for the purpose of s 459(2)(b)(i), Criminal Code and for being untrue in material particulars, such that there was no change of directorship, for the purpose of s 459(2)(a)(i), Criminal Code.
    
61. It is, however, with respect to the issue of whether the State has established to the requisite standard that the document is false or that the accused knew that it was false that the submissions of counsel are most persuasive.
    

Did the accused make a false document, knowing that he was making a false document?

62. Having heard and observed John Kivung I am unable to accept him as a credible witness in several respects. He struck me as a man who was concerned to protect his own position. He was argumentative under cross-examination and his evidence was contradictory in several key respects. I do not accept his evidence that he is able to recall with specificity the dates he signed the two forms, almost a year apart, more than 25 years ago, when he is unable to recall whether anyone else was present at the time or even the most basic details about his job as a courier. I do not accept his evidence that he was able to read that the forms signed were notices of share transfer or change in directors when by his own evidence he understands only a few words in English. I do not accept his evidence that he drafted his letter himself given its language and content. I do accept, however, that he signed various documents upon direction from Andy Kuek without knowing what they were.
    
63. I also approach the evidence of the complainant with caution. It is difficult to accept that he waited almost eight years until 2009 upon discovering in 2001 that he had been removed from the companies and then a further sixteen years until 2017 before pursuing the matter. He may only be educated to Grade 6 but he is not unsophisticated. I do not accept his contradictory evidence about being unable to find a lawyer to assist him during that period. On his evidence he was quick witted enough on speaking to the accused in 2017 to immediately obtain a lawyer to draft a letter for his signature. I do not accept his evidence in cross-examination that he could recall every document that Andy Kuek had him sign. It appears from his evidence in chief that he signed documents on numerous occasions and that the documents were sent to him at the service station to sign. On his own evidence he cannot read English. The fact that it has been many years since the alleged events is also relevant. I am also unable to accept his evidence that he continued to sign cheques for Grand Colombia between 1998 and 2001. On his own evidence he left to do mission work in 1998 and did not return until 2001.
    
64. The State’s case, furthermore, suffers generally from a lack of sufficient detail. That is perhaps hardly surprising given that the events are alleged to have occurred about 25 years ago.
    
65. Whilst I accept Mr Doa’s evidence that he produced whatever was found at the IPA, the documents produced were limited in number. At least some appear to be incomplete.
    
66. There is furthermore no clear evidence to show if and when the complainant became a director or shareholder of any of the companies concerned. Much of the complainant’s evidence about his involvement in the companies, Blue Chip No 15 and Mabela No 88, the subject of the indictment, is hearsay, that is it is what Andy Kuek told him.
    
67. The documentary evidence that supports the complainant’s claim that he was a director of Blue Chip No 15 comes from the very document the subject of Count 1, Exhibit P 13, which refers to the complainant’s removal in July 1997.
    
68. The only other document is Exhibit P11, which is an undated “Particulars of the Directors, Managers, Secretaries and Auditors” of the company which appears to have been lodged with the Registry on 28 July 2011, some 14 years after alleged events, and well after the complainant says the company was deregistered.
    
69. Exhibit P11, which appears to have been lodged the same day as Exhibit P10, is a List of Persons Holding Shares in Blue Chip No 15 on 15 June 1995, which names Andrew Anis and Mildred Ng Suat Ling as shareholders. The document is purportedly signed by Andrew Anis, although I cannot make a definitive finding about that, and bears a Registrar of Companies stamp 28 July 2011. No evidence was given by the complainant about his knowledge of these documents, if any.
    
70. Even if I was to accept that the complainant was a director of Blue Chip No 15 at the relevant time, the State has not excluded the possibility that he was lawfully removed pursuant to the company’s constitution.
    
71. Even if I were to find that he was not lawfully removed, the State’s evidence does not establish the knowledge of the accused at the relevant time.
    
72. Firstly, I make clear that s 107(1)(a), Companies Act is of little moment. The purpose of that section is to hold a person responsible for their conduct even if they have not properly been appointed a director. It does not provide a defence to a charge of forgery. Whether or not the accused participated in meetings or benefited as a director or shareholder is of some relevance from an evidentiary perspective but it is not determinative of the offence. Nor do I agree with the general submission by defence counsel that a statement, or in this case a letter, given at a later point in time cannot be evidence of a person’s state of mind at the relevant time. For obvious reasons it will depend on what the statement or letter admits about that matter.
    
73. Exhibit P2 is an interesting document. It was drafted by the complainant’s lawyer to serve his purposes, particularly with respect to being restored to Grand Colombia Limited, about which there is no evidence he was ever associated. The circumstances in which the document was signed by the accused do not promote confidence and its weight is affected by clear errors on its face, including for instance that the accused’s name is misspelt on at least two occasions. Nevertheless, the accused admitted for the purpose of s 589, Criminal Code that he signed it. Ultimately, however, it goes no further than saying that the accused did not reach an agreement with the complainant to purchase shares in the companies. That is not the same as admitting that he knew that the complainant did not consent to the changes or that the changes were not lawful. In addition, the letter says nothing directly about the circumstances in which the accused became a director of Blue Chip No 15.
    
74. In this regard the State’s evidence does not exclude the possibility that Kuek had the complainant sign a proxy or even a notice of resignation at some stage before he left Port Moresby in 1999. On his own evidence the complainant would not be in a position to know whether he signed such a document. His English is very limited and he trusted Kuek and signed whatever he was asked to sign by him. The State’s evidence does not for that matter exclude the possibility that Kuek falsified some other documentation for this purpose.
    
75. There is also some merit in the submission that a Form 16 must be accompanied by supporting documents and that Deloittes would have been unlikely to lodge the form, and the IPA unlikely to accept it, without them.
    
76. The State says that the accused should have “realised something was wrong” because there was no supporting documentation but given the deficiencies associated with the records produced from the IPA and the fact that it called no evidence from Deloittes it has failed to exclude the possibility that there was such documentation.
    
77. In all the circumstances I cannot be satisfied beyond reasonable doubt that the document was false or that the accused knew that the document was false, or that he intended that the document be relied upon to the prejudice of any person or with intent that a person may, in the belief that it was genuine, be induced to do or refrain from any act.
    

COUNT 2

78. The document the subject of Count 2, Form 13 (Notice of Change of Shareholder) for Blue Chip No 15 is not in evidence. The State says that it was amongst those documents identified as being retrieved from the IPA by Russell Doa but was not tendered in oversight. The defence disputes that it was one of those documents. No document matching that description appears in Exhibit P14, the list of documents which Doa said he retrieved. The document is not before me and I cannot be satisfied of the existence of the document or its content beyond any reasonable doubt. This is not a case where I can infer that there must have been such a document having regard to other evidence.
    
79. As above, there is no clear evidence to show if and when the complainant became a shareholder of Blue Chip No 15. Even if I were to be satisfied that the complainant was a shareholder at the relevant time, given the paucity of evidence in support of this count as well as the arguments raised by the defence with respect to Count 3, below, which are relevant here by analogy, the State has failed to establish the allegations on Count 2 beyond reasonable doubt.
    

COUNT 3

80. Exhibit P8, the subject of Count 3, is a Form 13, Notice of Change of Shareholders (Share Transfer) for Mabela No 88, dated 30 June 1997 and signed, on its face, by Kuek Kien Joo, Director. It was submitted by Deloittes and is date stamped by the Registrar of Companies 21 September 1999. Its second page states that 75 shares had been transferred from Andrew Anis to the accused on 18 September 1996 for cash consideration.
    

Errors in the indictment

81. Defence counsel submits that the reference to s 462(3)(b)(i) of the Criminal Code in the indictment is misconceived. Section 462(1) creates the offence of forgery whilst s 462(3) provides for different punishments depending on the thing forged.
    
82. The indictment does fail to refer to s 462(1) but that is a formal matter of no material effect in this case. It is only since the Criminal Practice Rules, 2022 that the relevant provision is to be pleaded in the indictment and a failure to do so is not fatal. No objection was taken at the appropriate time, that is upon presentation of the indictment and prior to arraignment: s 534, Criminal Code. The accused has failed to show, or attempted to show, any prejudice to his defence at trial. The allegation has always been sufficiently clear and the only issue in the event of conviction would be one of applicable penalty.
    
83. Defence counsel further submits that a Form 13 is not a transfer or assignment of a share in a corporation or company: Kawari Fortune Resources Ltd v Henian Zou, supra. It is notice of a change in the company’s share register required to be kept at the company’s registered office.
    
84. As the Supreme Court decision makes clear the fact of transfer is different from its notification to the IPA by the lodgement of the notice of change of shareholder (share transfer) form. But the question under s 462(3)(b)(i) of the Criminal Code is somewhat different. It is not confined to whether the document purports to be a share transfer but whether in the particular case it “purports to be, or is intended by the offender to be understood to be or to be used as a transfer or assignment of... a share in any corporation, company or society, whether domestic or foreign” for the purposes of s 462(3)(b)(i) of the Criminal Code: see State v Merimba (2022) N9481 at [103] and [104].
    
85. For the reasons below it is not necessary to decide the issue in this case.
    

Did the accused make, or aid the making of, a false document?

86. Defence counsel repeats his submissions that the Form 13 is not or could not be a forgery. It is not alleged that the accused forged Andy Kuek’s signature or that the document is false for being anything other than what it appears to be.
    
87. Under s 65(6) of the Companies Act, “following entry of the names of the transferred on the share register the company shall submit to the Registrar notice in the prescribed form”. A company is required to maintain a share register and that is prima facie evidence of the shareholding: s 67 and 69 of the Companies Act. The State has not produced the register and there is no evidence that the form does not accurately describe the shareholding recorded in the register. It was lodged by a reputable firm of accountants which speaks to its credibility. It is not enough that the complainant did not know or agree to the change. He could have signed a transfer in blank.
    
88. Furthermore, there is no evidence to show that the accused had anything to do with the Form, which on its face is signed by Mr Kuek. There is no evidence the accused signed it or was aware of it. The evidence is that Andy Kuek conducted the affairs of the company to the exclusion of others. It appears that the form was created by Kuek and Deloittes.
    
89. The State has failed to establish beyond reasonable doubt that Kuek forged the document, or that even if he did that the accused knew that Kuek intended to commit an offence and encouraged or aided him to do so for the purpose of s 7, Criminal Code: State v Waira (2020) N9517 at [259]; The State v Charles Andrew Epei (2019) N7845 at [41] to [45].
    

Consideration

90. I do not agree with the defence submission that it is not possible for the form to tell a lie about itself in this case. The records in evidence for Mabela No 88 are limited. If I were able to find that the complainant was a shareholder of Mabela No 88 at the relevant time and that his shares were not lawfully transferred to the accused then the form would contain material particulars which were untrue for the purpose of s 459(2)(a)(i) of the Criminal Code. It also appears to me on a preliminary view that the form would be made on behalf of a person, namely the company, who did not authorise it to be made, on the basis that it was the State’s case that the complainant was one of only two members of the company’s board of directors, for the purpose of s 459(2)(b)(i). See also s 65, Companies Act.
    
91. The transfer of shares in a company is governed by ss 65 and 66 of the Companies Act. The State has not excluded the possibility that the complainant signed a share transfer in ignorance at the request of Andy Kuek. On his own evidence the complainant would not be in a position to know whether he signed such a document. Here I note that s 65(2) of the Companies Act provides that for the purpose of transferring shares, a form of transfer signed by the present holder of the shares or by his personal representative shall be given to the company or an agent of the company. The State’s evidence, furthermore, does not exclude the possibility that Kuek falsified some other documentation for this purpose.
    
92. Again, there is some merit in the submission that Deloittes would have been unlikely to lodge the form without supporting documentation.
    
93. Even assuming that I was able to find that the complainant was a shareholder at the relevant time and that he did not knowingly consent to the transfer of his shares, the State’s evidence does not establish to the requisite standard that the accused knew that the complainant’s shares were transferred without his consent or that the accused aided, counselled or procured Kuek to make the document with that knowledge, or that he intended that the document be relied upon to the prejudice of any person or with intent that a person may, in the belief that it was genuine, be induced to do or refrain from any act. Exhibit P2 is insufficient to establish that beyond reasonable doubt.
    

CONCLUSION

94. It follows that the State has failed to establish beyond reasonable doubt that the accused forged the documents alleged in Counts 1 to 3.
    
95. It also follows that the State has failed to establish beyond reasonable doubt that the accused uttered or aided Andy Kuek or another person to utter the documents as alleged in Counts 4 to 6.
    
96. The accused is acquitted of all charges.
    

Verdicts accordingly.

________________________________________________________________
Public Prosecutor: Lawyers for the State
Gileng & Co: Lawyers for the Accused