Brian Kindi Lawi v The State [1987] PNGLR 183

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Amet J, Cory J
• Judgment Date: 13 April 1987
• Court: Supreme Court
• Judgement Number: SC337

Full Title: Brian Kindi Lawi v The State [1987] PNGLR 183

Supreme Court: Kidu CJ, Amet J, Cory J

Judgment Delivered: 13 April 1987

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BRIAN KINDI LAWI

V

THE STATE

Waigani

Kidu CJ Amet Cory JJ

10 April 1987

13 April 1987

CRIMINAL LAW — Misappropriation of property — "Dishonestly" applies property belonging to another — Subjective proof of dishonesty — Money paid by Government for specific projects — No evidence of how money spent — Offences proved — Sentences — Criminal Code (Ch No 262), s 383A.

The Criminal Code (Ch No 262), s 383A, provides that a person who "dishonestly applies to his own use ... property belonging to another ... is guilty of the crime of misappropriation". For the purposes of the section a person's:

"application may be dishonest although he is willing to pay for the property or he intends to restore the property afterwards or ... to fulfil his obligations afterwards in respect of the property ...".

The appellant was charged with dishonestly applying to his own use two separate sums of money the property of the Government of Papua New Guinea.

The appellant received two cheques from the National Government. The moneys were given for specific projects for road and agricultural works and were deposited in accounts in the name of the appellant. The moneys were not spent on the projects, but apart from evidence that the moneys had been withdrawn from the accounts there was no evidence as to how the money was spent.

On appeal against convictions and sentences:

Held

(1) There was evidence that the moneys were given to the appellant for specific public purposes and this evidence sufficiently proved that the moneys were the property of another, namely, the Government of Papua New Guinea and remained the property of the Government until they were expended on the purposes for which they were granted.

(2) As the word "dishonestly" in s 383A only relates to the state of mind of the person who does the act which amounts to misappropriation, whether an accused has a particular state of mind in relation to the application of property which is dishonest is a question of fact for the trial judge to consider on all of the facts of the case before him and (per Amet J) according to the ordinary standards of reasonable and honest people.

R v Landy [1981] 1 WLR 355 and R v Ghosh [1982] 1 QB 1053, considered by Amet J.

(3) In the circumstances the evidence was sufficient to establish the dishonest application of the moneys.

(4) The trial judge having taken into account irrelevant considerations on sentence the sentence should be reviewed, and in lieu of concurrent sentences of two years and five years, sentences of 18 months and three years should be substituted, with 18 months of the three years to be suspended on the appellant entering into a good behaviour bond for five years and repaying K10,000 within seven days.

Cases Cited

Benmax v Austin Motor Co Ltd [1955] AC 370.

Karo Gamoga v The State [1981] PNGLR 443.

Kasaipwalova v The State [1977] PNGLR 257.

Nambuga Mara v The State (unreported, SC No 320).

R v Baruday [1984] VR 685.

R v Bonollo [1981] VR 633.

R v Feely [1973] 1 QB 530; [1973] 2 WLR 201; [1973] 1 All ER 341.

R v Ghosh [1982] QB 1053; [1982] 3 WLR 110; [1982] 2 All ER 689.

R v Gilks [1972] 1 WLR 1341; [1972] 3 All ER 280.

R v Landy [1981] 1 WLR 355; [1981] 1 All ER 1172.

R v Royle [1971] 1 WLR 1764; [1971] 3 All ER 1359.

R v Salvo [1980] VR 401.

R v Waterfall [1970] 1 QB 148; [1969] 3 WLR 947; [1969] 3 All ER 1048.

Appeal

This was an appeal against convictions and sentences on charges of misappropriation of property contrary to s 383A of the Criminal Code (Ch No 262).

Counsel

N Roberts and K Naru, for the appellant.

V Noka, for the respondent/State.

13 April 1987

KIDU CJ: This is an appeal against conviction and sentence.

The appellant was on 10 February 1987 convicted of the following charges laid under s 383A of the Criminal Code (Ch No 262).

(1) That he between 31 March 1983 and 15 January 1985 dishonestly applied to his own use K6,000 the property of the Government of Papua New Guinea.

(2) That he between 31 March 1983 and 26 April 1984 dishonestly applied to his own use the sum of K10,000 the property of the Government of Papua New Guinea.

He received a sentence of two years IHL for the first charge and a sentence of five years IHL for the second charge. The five years was to be reduced to three years if the K10,000 was paid back to the State. The sentences were to be served concurrently.

At the trial there was no dispute as to the following facts:

(1) The appellant received two cheques from the National Government — a cheque for K6,000 from the Primary Industry Sectoral Fund and K10,000 from the Rural Transport Sectoral Fund.

(2) The cheque for K6,000 was made out in the appellant's name and was deposited with the Bank of South Pacific Ltd, Mt Hagen branch, in a cheque account styled as "Mrs Cathy and Brian Kindi Lawi". The appellant was the sole signatory to the account. The cheque for K10,000 was deposited in a savings account styled as "Mr Lawi Brian Kindi T/F Western Highlands Transport Fund Account". Again the only signatory to the cheque was the appellant.

(3) Neither the K6,000 nor the K10,000 were spent on projects the moneys were intended for as at 15 January 1985.

(4) In November 1985 the appellant gave K6,000 in cash to the Mt Giluwe Investment Corporation.

(5) The K10,000 was never used for the road project it was intended for — evidence is that it was for the Tumun-Anglimp Road.

(6) At the time of the trial it was revealed that lawyers for the appellant had been given K10,000 by their client and the money is even now in the Lawyers' Trust Account.

SECTION 383A, CRIMINAL CODE

Lawyers for the appellant contend that s 383A of the Criminal Code was misapplied in this case. It reads:

" (1) A person who dishonestly applies to his own use or to the use of another person:

(a) property belonging to another; or

(b) property belonging to him, which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or an account of any other person, is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for five years except in any of the following cases when he is liable to imprisonment for ten years:

(a) where the offender is a director of a company and the property dishonestly applied is company property;

(b) where the offender is an employee and the property dishonestly applied is the property of his employer;

(c) where the property dishonestly applied was subject to a trust, direction or condition;

(d) where the property dishonestly applied is of a value of K2000 or upwards.

(3) For the purposes of this section:

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property;

(b) a person's application may be dishonest although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution thereof to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property;

(c) a person's application of property shall be taken not to be dishonest, except where the property came into his possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps;

(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender's application of the property, has control of it." (My emphasis.)

It is to be emphasised that the two lots of moneys were given to the appellant by the State for two specific purposes — the K6,000 was given to him for agricultural projects and the K10,000 was for a particular road project — the Tumun-Anglimp Road. So it cannot be seriously contended that the moneys were given to the appellant for his own use or to do whatever he liked with it.

There is no doubt that the appellant deposited the cheques into two accounts with the Bank of South Pacific in Mt Hagen. Also there is no doubt that the appellant withdrew these moneys and by 15 January 1985 the cheque account (in which the K6,000 was deposited) had a credit balance of only K61.29 and the pass book account (into which the K10,000 was deposited) had a credit balance of K23.16 on 26 April 1984. He most certainly did not use these moneys he withdrew for any agricultural projects or road projects. In fact when he wrote to the Finance Department in two letters dated 28 February he said:

Re: K10,000

"The above amount of money...