Tran Huy Duc, Zou Jia Ju, Chan(Min Fai) Eric, Li Tian Qiang, Wu Xue Wen, Zhou Chong Gi and Yiang Chang Min v Police (2007)

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 17 April 2007
• Citation: (2007)
• Docket Number: CA 26 to 30, 32 AND 33 of 2007
• Court: National Court
• Year: 2007

Full Title: CA 26 to 30, 32 AND 33 of 2007; Tran Huy Duc, Zou Jia Ju, Chan(Min Fai) Eric, Li Tian Qiang, Wu Xue Wen, Zhou Chong Gi and Yiang Chang Min v Police (2007)

National Court: Lay J

Judgment Delivered: 17 April 2007

CRIMINAL LAW—principles of sentencing

DISTRICT COURT ACT- appeal against sentence

MIGRATION ACT s16(1)(a) a person who enters or remains in the country

Cases Cited

PNG Cases

Toiona v Bryant [1969-1970] PNGLR 201; R v McGrath [1971] PNGLR 247; Taiba Maima v Sma [1971-1972

[LaJSP1]

146[LaJSP1]]; R v Gabai Vagi [1973] PNGLR 30; Secretary of Law v Ulao Amentasi [1975] PNGLR 134; Kondan Kale v The State (1983) SC250;

[LaJSP2]

147[LaJSP2]Hen Kura v Was Kombra (1981) N292L; Paia Lifi v Phillip Dege (1981) M291(M); Rex Lialu v The State [1990] PNGLR 487; John Baipu v State SC796; N2063 The State v Tobby Tani; Election Amo v Monie Luke Raphael (13 September 2002) N2300

References

Legislations

District Court Act; Employment of Non Citizens Act; Migration Act

DECISION

1 LAY J: These appeals were heard together. The appellants were all convicted in the District Court at Kavieng by Magistrate T. Vogusang, on 19 of February 2007 on a plea of guilty to one count of remaining in the country contrary to the provisions of Section 16(1)(a) of the Migration Act. They were each sentenced to six months hard labour, the maximum penalty.

2 The appellants appeal from sentence only on the following grounds:

a the learned magistrate erred in fact and law when he imposed the maximum sentence of six months:

i on receiving a guilty plea from the defendant without taking into account any discount for that guilty plea;

ii when the particular facts do not disclose the "worst type" of instance of a breach of the particular section under which the defendant was prosecuted;

iii without considering that this was the "first offence" committed by the defendant; and

iv without properly considering the defendant's expression of "remorse".

b The learned magistrate therefore erred in fact and law by imposing a sentence that was inappropriate and manifestly excessive in the circumstances of the case.

3 From the record of the District Court it appears that the learned magistrate also heard all matters together. The learned magistrate recorded no reasons for his decision on penalty.

4 On the hearing of an appeal from the District Court "An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.": District Court Act s 230 (2).

5 It appears that each of the appellant's entered Papua New Guinea with valid work permits and visas to work with a timber company in Lae called Pazhong Zhoufun Timber Products Ltd ("P ZTP"). This company proposed to go into a joint venture with a resident of Kavieng in the business of rubber and marine products. For that reason the appellants travelled to Kavieng and commenced work in the marine industry. However the joint-venture did not eventuate and the appellants were no longer working for PZTP, the basis on which they entered Papua New Guinea.

6 Migration Act s16(1)(a) provides:

(1) "a person who-

(a) enters or remains in the country in contravention of this Act... is guilty of an offence.

Penalty: A fine not exceeding K5 000 or imprisonment for a term not exceeding six months.

7 There are in the statement of facts accompanying the information, and in the submissions of both counsel for...