The State v Pablito P Miguel (2002) N2338

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 06 December 2002
• Court: National Court
• Citation: [2002] PNGLR 365
• Year: 2002
• Judgement Number: N2338

Full Title: The State v Pablito P Miguel (2002) N2338

National Court: Injia J

Judgment Delivered: 6 December 2002

1 Criminal Law—Sentence—Bribery—Tax Assessment Officer paid K500.00 to induce him to make favourable Company tax returns—By expatriate company official—offered to pay K10,000.00 in Court fine—Prevalence of offence—Offenders rarely caught and successfully prosecuted—Punitive and deterrent sentence emphasized—Inappropriateness of fine or suspended sentence emphasized—Sentenced to 4 years imprisonment in hard labour.

2 Robert Yabara v The State [1984] PNGLR 378, The State v Frank Kagai [1987] PNGLR 320 and The State v Kiap Bonga [1988–89] PNGLR 360 referred to

___________________________

N2338

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 430 OF 2000

THE STATE v. PABLITO P. MIGUEL

LAE : INJIA, J.

2002 : DECEMBER 6

Criminal Law – Sentence – Bribery – Tax Assessment Officer paid K500.00 to induce him to make

favourable Company tax returns – By expatriate company official – offered to pay K10,000.00 in
Court fine – Prevalence of offence – Offenders rarely caught and successfully prosecuted –
Punitive and deterrent sentence emphasized - Inappropriateness of fine or suspended sentence
emphasized – Sentenced to 4 years imprisonment in hard labour.

Cases cited in the judgment

Robert Yabara v. The State [1984] PNGLR 378.

State v. Frank Kagai [1987] PNGLR 320

State v. Kiap Bonga [1988-89] PNGLR 360

Ms M. Boni, Mr. R. Gankarch with

Ms J. Nidue for the State

P. Ousi for the accused

6 DECEMBER 2002

INJIA, J.: On 4 December 2002, I found the prisoner guilty of committing an offence under S.97B(1)(b) of the Criminal Code. I found that he, on 9th November 1999, at the IRC office in Port Moresby, offered to Mr. Kapera Lohia, a Tax Assessor employed by the IRC, the sum of K500.00 as an inducement for him to assist in procuring the assessment of Company Tax of Nim Yam Timbers Pty Ltd, for the purpose of that company’s liquidation which was being processed by the IRC.

The offence carries a fine in the discretion of the Court or imprisonment of up to 7 years or both.

In assisting the Court to determine the appropriate punishment in this case, it is submitted on the prisoner’s behalf by his counsel, Mr. Ousi that whilst his client appreciates the seriousness of the offence, he should be given a fine between K7,000.00 – K10,000.00 or a suspended sentence, both of which options in effect means a non-custodial sentence. His client also in his allocatus statement pleaded to the Court for mercy and made a similar request. The following reasons or grounds are advanced in support of this request.

1. He is a man of prior good character and stable man with a good family, church, education, and work background. He is a citizen of the Philippines and born in 1958 at Lubao village, Pampanga. He is educated at College level and is a qualified accountant. He worked in the Philippines and Saudi Arabia between 1983 – 1995 before coming to PNG in 1996 where he worked with Kolta KPK Accounting firm in Port Moresby and later joined PNG Halla Cement Factory where he worked when he committed the present offence. He has a young family of a wife and 3 young daughters all of whom are in school. They live with him here in PNG. He has submitted character references in the form of five affidavits from responsible persons of standing in the community in Lae.

2. He has no prior convictions. This is his first criminal offence.

3. He has been faithfully observing his bail conditions. On several occasions, when the Court granted him bail and allowed him to leave PNG to go overseas to get medical treatment, he did not abscond bail as many other expatriates do. He returned to PNG to be tried for this offence.

4. On 8/5/02, he pleaded guilty before Kirriwom, J. in the National Court No. 2, Lae and raised the same explanation of “appreciation money” but His Honour in his discretion vacated the plea and entered “Not guilty plea” and ordered the case proceed to trial. In other words, it was not his deliberate decision to plead not guilty and waste this Court’s time.

5. He was genuinely remorseful after he was found guilty by this Court.

6. He is not a danger to the society.

7. He has medical problems associated with his eye. His retina has problems, which requires regular medical treatment both in PNG and overseas.

8. This kind of bribery is not as serious as other kinds of bribery offences under S.97B(1) or compared with other more serious types of bribery such as bribery of a police officer as was the case in State v. Kiap Bonga [1988-89] PNGLR 360 or a judicial officer as was the case in Robert Yabara v. The State [1984] PNGLR 378. The prisoner in this case offered the money to assist in procuring in processing of the assessment of income tax to expedite the liquidation process; not bribed Mr. Lohia to perform the actual official act.

9. The money was given to him by his principal Mr. Simon Cheung of PNG Halla Cement Factory Company, which owned Nim Yam Timbers Ltd, to hand over to Mr. Lohia.

In relation to the appropriateness of a fine, Mr. Ousi submits his client has offered a substantial amount of Court fine money and it should be accepted by the Court. In relation to the appropriateness of a suspended sentence, he submits that a suspended of sentence is appropriate where the prisoner has an excellent family, education, work and character background. He submits suspension of sentence is not an exercise of leniency but a form of punishment, as held in the case of the State v. Frank Kagai [1987] PNGLR 320.

Mr. Gankarch for the State submits that whilst it is in the discretion of the Court to impose a fine or a suspended sentence, given the seriousness of the offence, a custodial sentence is appropriate in this case. He submits in the alternative, the Court may consider the amount of fine offered by the prisoner. Ultimately he submits, the end result is that the Court should impose a punitive and deterrent sentence.

In considering and responding to these submissions, let me begin by re-stating some principles on the offence of bribery established in a few other cases. Bribery is a corrupt practice. Whether the corrupt practice is employed by an outsider or a public servant, and whether the official act sought to be performed by the public official is to do with the administration of law and justice such as bribing a police officer or a judicial officer, or to do with any other type of official act to be performed by any other category of public officials, such as a Tax Assessor with the IRC as in this case, the principles on corruption are essentially the same. I re-iterate what the Supreme Court, in Robert Yabara, ante, per Pratt J. said:

“If such occurrences (bribery) became anything more than an extreme rarity they would destroy utterly the very structure of Government and the Rule of Law. As the Clifford Report says at 69 of Vol. 1 (Law and Order in Papua New Guinea (1983) Clifford, Morauta and Stuart):

“Once started, corruption is hard to stop. Honest businessmen cannot remain competitive if other businessmen acquire competitive advantages through corruption. The easy money floating about in a corrupt society intoxicates many honest men tempted by the easy access to wealth. Imperceptibly corruption spreads through society like a cancer. By the time the State mobilizes to deal with it, the action is often too little and comes too late.”

In State v. Kiap Bonga, ante, Barnett J, stated:

“The offence of official corruption is a serious one… Corruption is a growing problem in Papua New Guinea and involves policemen, public servants, politicians and other public office-holders. It is like a deadly social disease which is spreading rapidly. It is difficult to prove as it relies on the honesty of the person who...