State v John Konga (2014) N5639

• Jurisdiction: Papua New Guinea
• Judge: Manuhu J
• Judgment Date: 20 June 2014
• Citation: (2014) N5639
• Docket Number: CR 167 OF 2010
• Court: National Court
• Year: 2014
• Judgement Number: N5639

Full Title: CR 167 OF 2010; State v John Konga (2014) N5639

National Court: Manuhu J

Judgment Delivered: 20 June 2014

N5639

PAPUA NEW GUINEA [IN THE NATIONAL COURT OF JUSTICE]

CR 167 OF 2010

STATE

V

JOHN KONGA

Daru: Manuhu, J 2014: 16, 17, 18, 19 & 20 June

CRIMINAL LAW – Particular offences – Abuse of office – Misappropriation – Accused is Chief Executive Officer of Daru General Hospital – Ghost employees salary payments paid into bank account owned by a company owned by the accused – Consideration of direct and circumstantial evidence.

Case cited:

Paulus Pawa v The State [1981] PNGLR 498

Counsel:

D. Kuvi, for the State, P. Yombon, for the Accused.

20th June, 1914

1. MANUHU, J.: The accused, Dr John Konga of Kami Village, Kudjip in Jiwaka Province was charged on indictment by State Prosecutor David Kuvi on one count of abuse of office under section 92 (2) of the Criminal Code and five counts of misappropriation of property under section 383A of the Criminal Code.

The allegations

2. It is alleged that the accused was the Chief Executive Officer of Daru General Hospital (the hospital) between 2003 and 2008. In August 2006, he incorporated a company called Bijinn Ltd where he was the sole shareholder and director. He was also the sole signatory to the company bank account with Bank South Pacific (BSP).

3. It is alleged that between January 2007 and July 2008, the accused caused the Human Resource Division of the hospital to create ghost names on the hospital’s payroll. Salary payments for these ghost employees were caused to be remitted into his company bank account. A total of K69,197.81 was through the ghost employees paid into the accused company bank account.

The principle on circumstantial evidence

4. The prosecution is relying on both direct and circumstantial evidence against the accused. It is necessary therefore to restate the principle at this point. The principle is that the Court must acquit unless the facts proved in the evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused: Paulus Pawa v The State [1981] PNGLR 498. There is no controversy about this principle.

Evidence by the prosecution

5. On 22nd November 2007, the accused, who was then the Chief Executive Officer of the hospital wrote an inter office minute to Personal Officer of the hospital, Mary Baea, to reinstate six former employees, namely, Tobias Tukai, Sakai Judith Tangura, Ogomer Faithfully, John Kaibia, Augi Kemere, and Amos Anikou.

6. Mary Baea, stated in her evidence that she received the minute, which is in evidence, and raised the respective Permanent Variation Advice (PVA). Mary Baea stated that Ogomer Faithfully, Augi Kemere and Amos Anikou did not work for the hospital in 2007 or 2008. Neither was the personal officer aware of any employee by the name of Anita Asuman or by the name of Amos Anikou in those years. She, however, proceeded to raise the PVAs as instructed by the accused. The PVAs were then returned to the accused.

7. On 28th February 2008, three months after the minute, Mary Baea stumbled upon pay slips of employees that were not working at the hospital. Out of curiosity, she opened the pay slips and discovered that large sums of money had been paid to employees that were not working, and all their salary payments were remitted into one account.

8. Mary Baea contacted the Daru branch of BSP and confirmed that the payments, as they appear in the pay slips, have been paid into the bank account. It was apparent to her that something was not right. The matter was then brought to the attention of Dr. Naomi Pomat, acting Director Medical Services at the hospital.

9. On 2nd of March 2008, Dr Naomi Pomat raised Mary Baea’s discovery with Dr Clement Malau, who was Secretary for the Department of Health then. The subject of the letter reads: Suspicious Fraudulent Payments to Ghost Staff on Daru Hospital Payroll in February 2008. Attached to the letter were five pay slips of the five alleged ghost employees of the hospital. The doctor also noted that salaries of these five alleged ghost employees were being paid into one BSP bank account, namely account number 1001205680.

10. In or around April 2008, Dr. Malau issued instructions to the Internal Audit Division of the Health Department to verify the suspicious payments with BSP. Mrs Kega Tore, Manager Audit, Department of Health, who received the Secretary’s instructions contacted OIC Salaries, Mrs Rita Geno to investigate and cease salaries of five employees, namely, Anita Asuman, Ogomer Faithfully, Kemari Augi, Amos Anikou and John Kabia. The Department’s findings are contained in the Disbursement Audit Report of 5th June 2008 (Audit Report). The Audit Report shows that these five employees’ salaries were being paid into one BSP Cheque Account No. 1001205680.

11. Anikai Amos gave evidence that he is not Amos Anikou and was not employed by the hospital in 2007 or 2008. Kemari Augi stated in his evidence that he worked for the hospital in 2004 for 11 months only. He has lived in the village as a subsistence farmer since then. Evidence from Mary Baea is that none of the five employees were working for the hospital in 2007 or 2008.

12. A search warrant was obtained by police investigating the alleged fraud. BSP then released documents relating to the company account in question. Documents retrieved from BSP against account number 1001205680 shows that the account was owned by Bijinn Ltd. Company documents show that Bijimm Ltd has Dr. John Konga, the accused, as the sole Director and sole Shareholder. He had used his driver’s licence to open the account. He also used his passport to open the account. The account was opened on 10th August 2006. The sole signatory to the account was the accused.

13. Ronnie Woiwoi of BSP, who was the banks investigations officer at the relevant time, gave evidence that there were 33 payments from HLTDA into the company account. HLTDA is his short for Health Daru General Hospital. His evidence on the transactions in the company account corresponds with the 33 salary payments against the five alleged ghost employees in the Audit Report.

No case to answer submission

14. The defence, at the close of the prosecution’s case, made a no case to answer submission which was rejected. The Court ruled that there was prima facie evidence that implicated the accused. The evidence showed that all 33 payments against the five employees were paid into a company account that the accused was the sole signatory to. The no case to answer submission was without merit and dismissed.

Defence evidence

15. The accused was the only witness for himself. He said he did write the minute of 22nd November 2007 which directed Mary Baea to process PVAs for re-engagement of employees named in the minute, including four of the five employees in question. He then wrote to the respective employees to resume duty. However, he was not able to ascertain whether these persons resumed duties at the hospital as he was prevented from entering the hospital premises by police. The accused did not state the date he was prevented from accessing the hospital premises.

16. The accused further stated in his sworn evidence that Bijinn Ltd is a company that he incorporated in 2006 and he is the company owner. The company had an account with BSP, Cheque Account no. 1001205680. He said in examination in chief and cross-examination that he did not know that salaries from the five employees in question were paid into his company account. He said he had his own money in the account and did not use the account often and was not aware of the alleged fraudulent salary payments.

Analysis of the evidence

17. From the evidence, the accused is not able to confirm or deny whether the five employees actually worked at the hospital or not. The evidence of Mary Baea and other prosecution witnesses, including Augi Kemere, is that the five employees in question were not employees of the hospital in 2007 and 2008.

18. In the circumstances, the Court is satisfied that the five employees in question, namely, Anita Asuman, Ogomer Faithfully, John Kaibia, Augi Kemere and Amos Anikou were not employees of the hospital in 2007 and 2008. From here on, the Court will refer to them as ghost employees.

19. In any event, it would not have made any difference if any or all of these ghost employees were actually working because their salaries were being paid into an account of a company that belongs to the accused and, thereby, implicates the accused. Their attendance or non attendance at work is important but it is a secondary issue. What is more important is that salaries processed against these five ghosts employees were being paid into one account, which account is the reason the accused is now before the Court.

20. Evidence of salary payments of the ghost employees into one account can be found in the Audit Report and as well as the statement of Ronnie Woiwoi. It is appropriate to set out this evidence in a table, as shown below.

Disbursement Audit Report			BSP - Woiwoi Evidence
DATE	NAME	AMOUNT	AMOUNT	DESCRIPT	DATE
29.08.07	Asuman A	462.11	462.11	HLTDA	28.08.07
12.09.07	Asuman A	462.11	462.11	HLTDA	11.09.07
26.09.07	Asuman A	462.11	462.11	HLTDA	25.09.07
10.10.07	Asuman A	462.11	462.11	HLTDA	09.10.07
24.10.07

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