James Singo v The Independent State of Papua New Guinea (2002) SC700

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Sakora J, Kandakasi J
• Judgment Date: 04 October 2002
• Docket Number: SCRA No 41 of 2000
• Court: Supreme Court
• Judgement Number: SC700

Full Title: SCRA No 41 of 2000; James Singo v The Independent State of Papua New Guinea (2002) SC700

Supreme Court: Kapi DCJ, Sakora J, Kandakasi J

Judgment Delivered: 4 October 2002

1 CRIMINAL LAW—Appeal against conviction—Misappropriation of another's property—Arising out of rental agreement where Appellant received money on behalf of land lord but applied to personal use without approval or consent of land lord—Issues of ownership of property and dishonestly applying to own use, only issues for trial—Evidence proved ownership in persons other than offender—No need to prove ownership in a particular person or name—Supreme Court Act (Ch37) s27(2) considered—Application of another's property without the other's consent or approval amounts to dishonestly applying to own use—No error in conviction—Appeal dismissed—Supreme Court Act s27(2).

2 APPEAL—PRACTICE AND PROCEDURE—An Appellant required to establish identifiable error—Failure to do so provides no reason to interfere with trial judge's findings.

3 APPEAL—Appealed against conviction—No identifiable error demonstrated—Evidence before the Court below established the issues for trial beyond any reasonable doubt against Appellant—Appeal dismissed.

4 John Kasaipwalova v The State [1977] PNGLR 257, Brian Kindi Lawi v The State [1987] PNGLR 183, Joseph Rokpa v The State [1994] PNGLR 535 and Tom Amaiu v The State [1979] PNGLR 576 referred to

___________________________

SC700

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCRA No. 41 of 2000

Between:

JAMES SINGO

Appellant

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Waigani : Kapi, DCJ, Sakora, Kandakasi JJ

2002 : 30th September

4th October

CRIMINAL LAW – Appeal against conviction – Misappropriation of another’s property – Arising out of rental agreement where Appellant received money on behalf of land lord but applied to personal use without approval or consent of land lord – Issues of ownership of property and dishonestly applying to own use, only issues for trial – Evidence proved ownership in persons other than offender – No need to prove ownership in a particular person or name – Section 27 (2) Supreme Court Act Chp. 37 considered – Application of another’s property without the other’s consent or approval amounts to dishonestly applying to own use – No error in conviction – Appeal dismissed – Section 27 (2) Supreme Court Act.

APPEAL – PRACTICE & PROCEDURE – An Appellant required to establish identifiable error – Failure to do so provides no reason to interfere with trial judge’s findings.

APPEAL – Appealed against conviction – No identifiable error demonstrated – Evidence before the Court below established the issues for trial beyond any reasonable doubt against Appellant – Appeal dismissed.

Cases Cited:

John Kasaipwalova v. The State [1977] PNGLR 257.

Brian Kindi Lawi v. The State [1987] PNGLR 183.

Joseph Rokpa v. The State [1994] PNGLR 535.

Tom Amaiu v. The State [1979] PNGLR 576.

Counsels:

Mr. P. Harricknen, for the Appellant.

Mr. J. Pambel, for the Respondent.

4th October 2002

BY THE COURT: The Appellant, Mr. James Singo (Mr.Singo) is appealing against his conviction by the National Court on a charge of misappropriation under s.383A of the Criminal Code of a sum of K36,400.14 (the money) belonging to a Mr. Max Rai (Mr. Rai). The essence of his grounds of appeal is that Mr. Rai did not own the money but his (Mr. Rai’s) employer, the Oil Palm Industries Corporation (OPIC) did and in any case, he did not dishonestly apply the money to his own use. He argues further that his conviction was wrong and against the weight of the evidence.

The State’s response is that, the learned trial judge did not err in convicting Mr. Singo. It argues that, the evidence against him was overwhelming and they established the charge against him beyond any reasonable doubt.

The Issues

This presents three issues for determination. They are:

1. Whether Mr. Rai or OPIC owned the money allegedly misappropriated?

2. Whether it makes any difference as to who owned the money in so far as Mr. Singo’s conviction is concerned? and

3. Whether Mr. Singo dishonestly applied to his own use the money in issue?

The Facts

The facts are straightforward. There was a verbal arrangement between Mr. Rai and Mr. Singo for Mr. Singo to move into Mr. Rai’s house at a rent of K866.67 per month. The rent was to be paid by Mr. Singo’s employer OPIC. Mr. Singo was to collect rents and have them deposited into Mr. Rai’s bank account with the Papua New Guinea Banking Corporation (PNGBC). For that purpose Mr. Rai left his passbook account with Mr. Singo and he took up his appointment as an ambassador in Europe. This arrangement was confirmed in writing by a letter dated 13th April 1999 from Mr. Rai to OPIC attention to Mr. Singo.

Mr. Singo moved into Mr. Rai’s house as agreed and had the initial security deposit bond of K866.67 paid out by cheque in favour of Mr. Rai drawn by OPIC. OPIC continued to make the rental payments as and when they fell due by not negotiable cheques made out in Mr. Rai’s name. All of these cheques totalled up to about K36,400.14 over the period May 1993 to September 1996. Then in breach of the agreement between Mr. Rai and Mr. Singo, Mr. Singo opened a trust account in favour of Mr. Rai and had the cheques deposited into that account. Once the cheques got cleared, he withdraw funds from that account and applied the proceeds to his own benefit for things like his children’s school fees, loan repayments, purchasing a car and so on. Only about K6,500.00 were spent according to Mr. Singo on causing unspecified repairs and maintenance to Mr. Rai’s house.

Mr. Rai did not approve of Mr. Singo departing from the original agreement and the application of the money in the way Mr. Singo applied them. Mr. Singo notified Mr. Rai of the use of the money after having done so. Mr. Rai could not do anything quickly as he was out of the country, until he returned to the country and reported the matter to police leading to the arrest of Mr. Singo and his eventual conviction.

Mr. Singo claimed that the arrangement was for him to purchase Mr. Rai’s house and that the money was paid by his employer toward that purpose. However he produced no evidence of any such agreement or arrangement, except for his claim.

The learned judge found Mr. Singo to be an unreliable witness. He rejected Mr. Singo’s claims.

Then on the facts before him, the learned trial judge found Mr. Singo guilty on the charge presented against him. In arriving at that decision the learned trial judge was of the view that, the money once written out in the not negotiable cheques to Mr. Rai, they belonged to Mr. Rai. He also found that application of the money by Mr. Singo was for purposes other than they were intended for without any approval or consent of Mr. Rai.

The Law

As noted earlier, Mr. Singo was charged under s.383A (1) (a) of the Criminal Code. That provision reads:

“A person who dishonestly applies to his own use or to the use of another person—

(a) property belonging to another; or

….

is guilty of the crime of misappropriation of property.”

This provision was added by Act No. 10 of 1981. Prior to that there was no section 383A. It was enacted to over-come the effect of the Supreme Court’s judgement in John Kasaipwalova v. The State [1977] PNGLR 257. In that case Mr. Kasaipwalova was charged for stealing money received under direction. The Court held that where money is paid into ones account for the benefit of another and the account owner applies it to his own use that could form the foundation for an action in chose in action only. It could not meet the element of a physical movement and application of another’s property for the purposes of a criminal conduct and conviction.

The effect of this is that, as long as one dishonestly applies for his or her own use, the property of another, a charge under s.383A can be sustained. It does not matter how the property came into the offender’s hands.

The essential elements of an offence under s.383A are these:

1. A person must;

2. Dishonestly apply to his own use;

3. Property that;

4. Belongs to another person.

Since the enactment of s.383A, hardly a case has gone before the Supreme Court because the position is very clear as to the elements that must be established for a successful prosecution under this...