Emmanuel Mai v Madang Development Corporation Ltd
| Jurisdiction | Papua New Guinea |
| Judge | Injia CJ, Ipang J & Lindsay J |
| Judgment Date | 20 May 2016 |
| Citation | (2016) SC1576 |
| Court | Supreme Court |
| Year | 2016 |
| Judgement Number | SC1576 |
Full : SCA No 64 of 2013; Emmanuel Mai v Madang Development Corporation Limited and Rabtrab Madang Limited and Rabtrab Niugini Limited and G. Lutz Company Limited and Anderson Foodland Limited (2016) SC1576
Supreme Court: Injia CJ, Ipang J & Lindsay J
Judgment Delivered: 20 May 2016
SC1576
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA No. 64 OF 2013
BETWEEN
EMMANUEL MAI
Appellant
AND
MADANG DEVELOPMENT CORPORATION LIMITED
First Respondent
AND
RABTRAB MADANG LIMITED
Second Respondent
AND
RABTRAB NIUGINI LIMITED
Third Respondent
AND
G LUTZ COMPANY LIMITED
Fourth Respondent
AND
ANDERSON FOODLAND LIMITED
Fifth Respondent
Waigani: Injia CJ, Ipang J & Lindsay J
2016: 28th April, 20th May
CONTEMPT OF COURT - Lawyer - Failure to comply with order for payment of client's money - Unable to comply with Court order because lawyer misappropriated client's trust funds- Guilty plea- punishment- Imprisonment for 9 months- Appeal against severity of punishment - No error shown- Appeal dismissed.
Counsel:
S Ketan, for the Appellant
J Haiara, for the First Respondent
20th May, 2016
1. THE COURT: This is an appeal against severity of punishment for contempt of court. The appeal is from a decision of the National Court to punish the appellant with a term of imprisonment of nine (9) months for breaching a court order to pay K700, 000 and within three (3) days.
2. The appellant is a lawyer by profession and conducted private practice. At the material time, the appellant acted for the first respondent in National Court proceedings OS No. 225 of 2006 in a case brought by the first respondent against the other parties in these proceedings. The money was part of the proceeds of a sale of property which the appellant conducted on behalf of the first respondent and was paid into his firm's trust account. In 2012, the first respondent engaged Henaos Lawyers to act on its behalf. On 11 May 2012, on application by the first respondent, the National Court ordered the appellant to pay into Henaos Lawyers’ trust account the sum of K700,000 within three (3) days. The appellant did not comply with the order.
3. On 14th August 2012, the first respondent brought a motion for punishment for contempt against the appellant for breaching the Court order. The motion was heard between December 2012 and March 2013. The appellant admitted the charge. He said he had applied the money to his own use with the intention to repay the money when funds from other clients became available and pleaded for leniency on sentence and more time to find the money to repay. He said he applied the money to his own use because it was during a period of time when his client's entire board of directors and management had been removed and there was no one to account to. The trial judge considered the mitigating and aggravating factors and the seriousness of the contempt and imposed a term of imprisonment for nine (9) months.
4. In this appeal, the appellant contends that although all the mitigating factors were taken into account in his favour, they were given inadequate weight and this led to an error in the exercise of sentencing discretion. If they were given due weight, the court would have imposed a fine or a wholly suspended imprisonment term. The appellant's counsel referred us to those mitigating factors as follows:
(1) The breach of the court order was not intentional or deliberate; he did not have the money to pay out in the time given;
(2) A professional lawyer of previous good character;
(3) No prior convictions for contempt or any other offence;
(4) Pleaded guilty;
(5) K100,000 paid already before conviction for contempt
(6) He was a chronic asthmatic patient;
(7) Effect of imprisonment on his family;
(8) Not a threat to the community because there was unlikelihood that he would breach further orders of the Court.
Fresh evidence
5. Subsequent to the conviction and punishment, two (2) further developments occurred. First, his medical condition worsened. There is fresh evidence adduced on appeal with leave, in the form of an updated medical report that shows that his medical condition has not improved since the last medical report in June 2013. His condition is “progressively worsening” and will require ongoing treatment to prevent acute asthmatic attack and surgery to address breathing associated complications.
6. The second is that he has by now repaid all of the money except for K72, 000 being the interest component that remains unpaid.
The appellant’s arguments
7. The appellant submits the trial judge committed several errors in the exercise of his sentencing discretion. The trial judge gave no or insufficient weight to the mitigating factors mentioned above.
8. It is submitted the sentence is inconsistent with the sentencing trend for contempt cases handed down in the National Court and the Supreme Court. He refers us to several National Court decisions in which punishments range from an order for costs (Concord Pacific Ltd v Thomas Nen [2000] PNGR 47) or a fine with default penalty (Milupol Development Corporation v Garai (2012) N4635, Yap v Tan & Ors [1987] PNGLR 227, Bank of South Pacific Ltd v Anton Sekum & Ors [2011] N4588; to imprisonment from 6 weeks to 6 months (Robert Kadidi v Agua Nombri [2014] N5818, Sr Dianne Liriope v Dr Jethro Urusup (2009) N3931, Bishop Bothers Engineering Pty Ltd v Ross Bishop [1989] N690).
9. It is submitted the primary concern in sentencing is to demonstrate that court orders are to be obeyed and this is achieved by a fine which has a punitive effect and vindicates the authority of the court and cites in support Pioneer Heath Services Ltd v Gabriel Yer, Secretary for Finance & The State (2008) N3326.
10. It is submitted contempt committed in this case was unintentional, not deliberate and contumacious. It was in the nature of a technical contempt in that he did not comply with the order because he did not posses the financial ability to pay. In the case here, this was a judgment for a sum of money which was recoverable through other ways as any ordinary judgment debt, that the breach was not intentional because he just did not have the ability to meet the judgement, that he was looking for ways to meet the judgement.
11. It is submitted the appellant has left legal practice and is doing consultancy work to repay the full amount. The appellant is no longer practicing law which is considered a punishment in itself.
12. It is submitted the appellant was referred to the PNG Law Society for disciplinary action and the police fraud squad for criminal investigation. Though no action has been taken by these bodies against the appellant to date, the fact that he was referred to these bodies for investigation and prosecution is an additional punishment.
13. In these circumstances, the punishment is excessive. The trial judge fell into error in choosing imprisonment over other alternative punishments such as a fine.
The first respondent’s arguments
14. The first respondent submits the appellant has failed to show that the trial judge committed an error. The trial judge carefully stated all the mitigating factors and the aggravating factors, carefully analysed them and gave appropriate weight to each of those factors and balanced them. He submits the circumstances of the offence which involved misuse of trust funds and breach of trust resulting in the appellant’s inability to comply with the court order is a serious matter which the court considered. It had taken thirteen (13) months for the appellant to find the money to repay, and even by the time he was imprisoned, he had made no effort to pay up. In light of the sentencing trend applied by the court as demonstrated by Robert Kadai v Agua No
Decision
15. A conviction and penalty for contempt of court is criminal in nature conviction for which the ordinary penal law applies. This appeal court's power to review the sentence imposed by the trial judge is given by s 23 (3) of the Supreme Court Act and the same power is exercised in an appeal against punishment for contempt of court. Section 23 (3) provides:
"(4) On appeal against sentence, if the Supreme Court is of (the) opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal."
16. The judicial determination of punishment for contempt of court is discretionary. The circumstances in which the appellate court will interfere with the sentence imposed by the trial judge is limited to the identification of a clear error of principle of law or fact. The appellate court will not...
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