Wilson Kamit v Aus-PNG Research & Resources Impex Limited (2007) N3112

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 02 February 2007
• Court: National Court
• Citation: (2007) N3112
• Docket Number: MP No 937 Of 2006
• Year: 2007
• Judgement Number: N3112

Full Title: MP No 937 Of 2006; Wilson Kamit v Aus-PNG Research & Resources Impex Limited (2007) N3112

National Court: Cannings J

Judgment Delivered: 2 February 2007

N3112

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP NO 937 OF 2006

WILSON KAMIT

Informant

V

AUS-PNG RESEARCH & RESOURCES IMPEX LIMITED

Defendant

Waigani: Cannings J

2007: 19, 23, 26 January,

2 February

RULING ON MOTION

OFFENCES – prosecutions – appropriate authority to institute prosecutions – whether Bank of Papua New Guinea can prosecute offences under Central Banking (Foreign Exchange and Gold) Regulation – whether Governor of Central Bank can prosecute offences under Central Banking (Foreign Exchange and Gold) Regulation – Central Banking Act 2000, Section 101 (prosecutions).

CONSTITUTIONAL LAW – Public Prosecutor – supervision of prosecution function of the State – whether leave of Public Prosecutor required for institution of criminal prosecution by the Central Bank – Constitution, Section 177 (functions of the Public Prosecutor and the Public Solicitor) – Public Prosecutor (Office and Functions) Act.

CRIMINAL LAW – PRACTICE AND PROCEDURE – whether prosecution of offences in National Court under Central Banking (Foreign Exchange and Gold) Regulation must be preceded by committal proceedings – whether prosecution must be by indictment – whether leave of the National Court required under Section 616(1) (information by leave of the court by private prosecutors) of the Criminal Code – whether prosecution required to be instituted by originating summons per Criminal Practice Rules, Order 3, Rules 4 to 8.

CRIMINAL LAW – PRACTICE AND PROCEDURE – requirement to identify informant and specify authority to lay charges – requirement for originating process to specify elements of offence with particularity.

CONSTITUTIONAL LAW – basic rights – protection against harsh and oppressive acts – whether failure of Central Bank to grant authority to export gold pending court proceedings is harsh and oppressive or otherwise contrary to Constitution, Section 41 (proscribed acts).

ADMINISTRATIVE LAW – whether a person seeking to challenge exercise of discretion by governmental body required to commence proceedings under Order 16, National Court Rules – whether appropriate for National Court to make orders under Constitution, Section 57 (enforcement of guaranteed rights and freedoms) or 155(4)(the national judicial system).

The Governor of the Bank of Papua New Guinea (the Central Bank) instituted a criminal prosecution against the defendant company, alleging breaches of the Central Banking (Foreign Exchange and Gold) Regulation. The Governor instituted the prosecution by information, in the National Court. The defendant asked the court to dismiss the prosecution as an abuse of process. While that issue was pending the Central Bank notified the defendant it would not grant its authority to trade in gold pending the outcome of the court proceedings. The defendant’s motion raised issues as to: the correct authority to institute prosecutions for breaches of the Central Banking (Foreign Exchange and Gold) Regulation; the originating process to be used; the role of the Public Prosecutor; the required procedure, particularly whether committal proceedings, indictments and/or leave of the National Court are necessary; and whether the originating process was defective due to failure to specify the informant and the elements of offences with sufficient particularity. The defendant also sought orders that the Central Bank be required to restore its authority to trade in and export gold.

Held:

(1) The Governor of the Central Bank can prosecute offences under the Central Banking (Foreign Exchange and Gold) Regulation.

(2) Offences under Sections 6 and 33 of the Regulation are indictable offences and must be prosecuted on indictment, following committal proceedings.

(3) The originating process for any prosecution by a person or authority other than the police or the Public Prosecutor should identify the informant and their authority to initiate the prosecution.

(4) The charge for any criminal offence must be drafted in terms of the elements of the offence prescribed by the law creating the offence.

(5) In the present case, the information was procedurally defective as it was not prosecuted by indictment or preceded by committal proceedings in the District Court.

(6) The charges were substantively defective as they were not drafted in the language of the law creating the offences.

(7) The defects were incapable of being cured by amendment and the information was struck out as an abuse of process.

(8) Section 41 of the Constitution (proscribed acts) protects corporate legal persons as well as individuals against harsh and oppressive actions.

(9) As the information was being dismissed and the Central Bank had refused to grant authority for the defendant to trade in gold pending the outcome of these proceedings, it would be harsh and oppressive for the Bank to maintain that position. Therefore an order was crafted under Section 155(4) of the Constitution that will do justice in the circumstances of this particular case, viz the Bank was ordered to renew the defendant’s authority to trade subject to its right to revoke that authority or vary the conditions attached to it with the leave of the court.

Cases cited:

Arthur Smedley v The State [1980] PNGLR 379

Attorney-General Michael Gene, The State and Internal Revenue Commissioner, Mr David Sode v Dr Pirouz Hamidian-Rad (1999) SC630

BPNG v Eddie Orubu Mai, OS No 224 of 2004, 12.05.05 unreported

Chia He Jia and Huang Ming Xian v Gisa Komagin [1998] PNGLR 75

Felix Bakani and OPIC v Rodney Daipo (2001) SC659

Gregory Kasen v The State (2001) N2133

Jacob Hendreich Prai and Otto Ondawame v An Officer of the Government of Papua New Guinea [1979] PNGLR 1

Jacob Hendrich Prai and Otto Ondawame v An Officer of the Government of Papua New Guinea (No 2) [1979] PNGLR 247

John Worofang v Patrick Wallace [1984] PNGLR 144

Martin Taumu v Secretary, Department of Provincial and Local-Level Government Affairs OS No 487 of 2000, 12.07.01, unreported

Michael Winmarang v David Ericho and The State (2006) N3040

National Executive Council, the Attorney-General and Luke Lucas v Public Employees Association of Papua New Guinea [1993] PNGLR 264

Investment Promotion Authority v Palpal Seoul Pty Ltd, Kook Myung Hee and Duk Young Kim SCRA No 13 of 1997, 29.10.97, unreported

Rodney Daipo v Felix Bakani and OPIC OS No 489 of 2000, 17.11.00, unreported

SCR No 34 of 2005; Application by Herman Joseph Leahy, 15.12.06, unreported

SCR No 5 of 1985; Raz v Matane [1985] PNGLR 329

SCR No 5 of 1987; Application by Principal Legal Adviser re Central Banking (Foreign Exchange and Gold) Regulation [1987] PNGLR 433

The State v Esorom Burege (No 1) [1992] PNGLR 481

The State v Francis Kumo Gene [1991] PNGLR 33

The State v James Yali (2006) N2989

The State v Lindsay Kivia [1988] PNGLR 256

The State v Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43

The State v Saul Ogerem (2004) N2780

Wilson Kamit v Michael Dowse Collins MP No 46 of 2002, 21.02.02, unreported

NOTICE OF MOTION

This is a ruling on a motion to dismiss a prosecution and to order that the defendant’s authority to trade be restored.

Counsel:

I Shepherd and J Parina, for the informant

E Manu, for the defendant

2 February, 2007

1. CANNINGS J: Introduction: This case is about alleged unauthorised dealings in foreign currency and gold. Those activities are subject to the regulatory authority of the Central Bank (BPNG) under a law called the Central Banking (Foreign Exchange and Gold) Regulation. The Governor of the Central Bank, Wilson Kamit, has charged a company with offences under the Regulation by laying an ‘information’ against it. Mr Kamit is the ‘informant’. The company, Aus-PNG Research & Resources Impex Ltd, is the ‘defendant’. Since laying the information the informant has told the defendant that the Central Bank will not renew the defendant’s authority to trade in gold until the court case against it (prosecution of the information) is resolved.

2. The defendant has responded by filing a notice of motion, which raises two major issues:

· whether the information is defective and should be dismissed; and

· whether the Central Bank should be ordered to restore the defendant’s authority to trade in gold.

3. The defendant argues that the information is defective as it fails to specify the elements of the offence charged and the informant failed to follow proper procedures. It argues that the Bank should be ordered to restore its authority to trade in gold as the Bank’s treatment of it has been harsh and oppressive.

BACKGROUND

4. The defendant company has been buying and exporting gold for a number of years. It is incorporated in Australia and operates out of Lae, Morobe Province. The Central Bank has been granting it authority to trade on an annual basis under the Central Banking (Foreign Exchange and Gold) Regulation, also called the Foreign Exchange and Gold Regulation or ‘the Regulation’.

5. In February 2006, the Bank granted the defendant a gold...