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• N8461
  PAPUA NEW GUINEA
  [IN THE NATIONAL COURT OF JUSTICE]

  CR (FC) 231 OF 2015

  THE STATE

  V

  SIWI BUNGO

  Kimbe: Batari J
  2018: 17th April,
  2020: 19th August

  CRIMINIAL LAW – misappropriation – State property – Kimbe Urban Local
  Level Government – daily market fees – cash payments out – aggregate of cash
  solicited/received by Acting Mayor of Kimbe from daily takings – finance
  processes – lack of

  CRIMINAL LAW – misappropriation – State property – evidence – whether
  accused received aggregate amount alleged – whether accused dishonestly
  applied market proceeds to own use – “dishonestly” meaning of applied

  The Kimbe Urban Local Level Government operated Kimbe town market and
  charged vendors fees for use of the market and amenities. The accused as Acting
  Mayor solicited and received cash payments from the market daily takings
  without proper approvals in what amounted to misappropriation. He pleaded not
  guilty.

  Held:

  1. The admission by the accused in receiving cash payments from Kimbe
  Urban Local Level Government market takings strengthens State’s case of
  his soliciting and receiving cash payments outside due procurement
  process.

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• 2. The absence of formal requisitions for approvals and acquittal of the
  amounts taken is sufficient evidence to infer the accused dishonestly
  applied monies intended for public purpose, to his own use in contravention
  of s. 3838A (1) (a) Criminal Code.

  3. The amount taken is not a critical element of the charge of
  misappropriation as the element of dishonestly is, within the meaning of s.
  383A (1) (a) Criminal Code.

  4. The onus is on the prosecution to prove beyond reasonable doubt, the
  conduct of the accused was not honest, trustworthy or sincere, such that it
  constituted dishonest application of town market takings.

  5. That guilt must be proved beyond a reasonable doubt does not require the
  relevant facts be established with complete scientific accuracy: R v.
  Summers [1990] 1 Qd R 92. A judge is free to accept some evidence from a
  witness and reject other parts of the evidence, even if it relates to closely
  linked events: SCRA No. 34 of 2003, Ano Naime Maraga & 2 Ors v The
  State (2009) (Unnumbered SC Judgment).

  Cases Cited:
  Papua New Guinea Cases

  The State v Francis Natuwohala Laumadava [1994] PNGLR 291
  SCRA No. 34 of 2003, Ano Naime Maraga & 2 Ors v The State (2009)
  (Unnumbered SC Judgment)

  Overseas Cases

  R v. Summers [1990] 1 Qd R 92

  Counsel

  J. Apo, for the State
  D. Kari, for the Accused

  DECISION ON VERDICT
  19th August, 2020
  1. BATARI J: Siwi Bungo is presented before the court upon indictment
  charging one count of misappropriation pursuant to s. 383A (1) of the Criminal

• Page 3 of 9

• Code. This is the verdict on his trial.

  Charge &plea to the Charge

  2. The charge on the indictment alleges, that between 1st July 2014 and 31st
  December 2014 in Kimbe, West New Britain Province, Siwi Bungo of Kimemb
  village of Kerowagi District, Simbu Province, dishonestly applied to his own use,
  Fifteen Thousand and Five Hundred and Seventy Kina (K15,570.00) property
  belonging to the State.

  3. The accused has all along denied the charge but concedes receiving smaller
  amounts only occasionally from the Market takings. He denied any wrong and
  says it was for his official use.

  Issues to tried

  4. Accepting that the accused received monies from the Market takings, the
  issue is; (i) whether he regularly solicited and received cash as alleged, and (ii)
  whether his conduct amounted to misappropriation.

  5. The first issue is substantially a question of fact. The issues of facts are not
  complex. It will be quickly resolved on the basis of who to believe.

  6. The second is the main issue. The Court must be satisfied, depending on the
  proven facts, that on each occasion, the offender dishonestly benefited himself
  from the Market proceeds, a question of law. In deciding this crucial issue, the
  application of the meaning of “dishonestly” in the context of s. 383A (1) (a) must
  be clearly understood. The term “dishonestly” is an adverb, the adjective being,
  “dishonest,” defined in the Concise Oxford English Dictionary as, “not honest,
  trustworthy or sincere.” What Injia AJ (as he then was) stated in The State v
  Francis Natuwohala Laumadava [1994] PNGLR 291 offers helpful insight:

  “The crucial issue here is the meaning of the word “dishonestly”
  in the context of s.383A (1) (a). This issue was decided by the
  Supreme Court in the case of Lawi-v- The State, [1987]
  PNGLR183. In brief, it was decided that, “dishonestly” relates to
  the state of mind of the accused. It is a question of fact which the
  court has to decide. The court has to decide whether, according to
  the ordinary standards of decent, reasonable, and honest people,
  what the accused did was dishonest. The test here is an objective

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• one. At the same time it is also a subjective one. The court must
  look into the mind of the accused and determine whether, given his
  intelligence and experience, he would have appreciated as
  right-minded people would have done, that what he was doing
  was dishonest”.

  Undisputed facts

  7. The common facts are these. Kimbe town Market (Market) comes under
  the functions and responsibility of Kimbe Urban Local Level Government
  (Kimbe ULLG), an arm of the State. It raises its revenue from fees collected from
  market vendors for use of the market stalls and such other amenities as the Market
  public toilets. Daily takings and cash disbursements are tallied at the end of each
  trading day in the Records of Daily Market Fees and Payments/Deductions form.
  A Daily Fees Collections Summary is also filled out and the cash balance is
  retained for deposit into the Kimbe ULLG bank account. A Monthly Summary
  Report on the Market fees collections is also compiled.

  8. Rampant and excessive cash payments from the Market revenue takings
  were transacted without or rarely supported by written requisitions.

  9. During the period in question, the accused was the Acting Mayor of Kimbe
  town. The total amount charged in the indictment is the aggregated amount the
  accused allegedly solicited and received from the Market revenue takings.

  Disputed facts

  10. On the contested facts, the prosecution called three witnesses namely,
  Moses Balush, Martin Linge, Ryan Mondo. The prosecution also relied on
  documentary evidence in the form of, Record of Interview; Records of Daily
  Market Fees and Payments/Deductions; Daily Fees Collections Summary and
  Monthly Summary Report.

  11. The main evidence on the daily Market fee takings, cash payments and
  documentary records of those transactions was given by Moses Balush. He was
  employed by Kimbe ULLG as the Market Supervisor from 2011 and during the
  period in question. He oversighted the Market operations and maintenance,
  collections and recordings of Market fees and cash payouts from the daily takings.
  He testified, that on numerous occasions, the accused would ask for cash with
  threats and would be paid the amount requested.

• Page 5 of 9

• 12. The evidence of Martin Linge and Ryan Mondo are substantially on
  financial procedures for expenditures of public funds and good accounting
  practices for collections and disbursements of the Market revenue. The daily
  takings were to be banked before any payment or deduction is made except,
  where approval is given by the person appointed as a finance delegate under s. 32
  of the Public Finance (Management) Act, 1995 (section 32 officer) to approve
  expenditures. In this case, payments from the Market takings were made in most
  cases outside formal requisitions and approvals of the section 32 officer.

  13. Martin Linge was the section 32 officer or finance delegate. He would
  normally approve payments for field officers’ wages from the Market revenue as,
  they are casual employees and not on salary. He did not approve any payment to
  the Acting Mayor. Too, the Market supervisor is not a finance delegate. As such
  he cannot approve payments from the Market takings. Their undisputed stories
  revealed serious flaws in the proper disbursements of the Market fee collections.

  14. The accused in his testimony conceded, he would occasionally request and
  get K50.00 to K100.00 to cover his official running costs for fuel and office
  stationaries. On other occasions his requests were denied. On the entries in the
  Records of Daily Market Fees and Payments/Deductions showing payments to
  “Acting Mayor”, the accused responded, the entries are not in his name. Others
  had recorded the payment under “Acting Mayor” to falsely implicate him.

  15. The defence called Sylvester Essau, Deputy Town Mayor. His evidence is
  mainly on remunerations for the Town Mayor, ward members and administrative
  costs. He said Market fees are banked. Some are used by Kimbe ULLG to clean
  the market, town and for such other operational costs as fuel for vehicles. His
  other evidence did not advance the defence’s case in any significant way

  Parties submissions

  16. Mr Kari for the defence submitted, the prosecution has not proven beyond
  reasonable doubt, the amount taken by the accused and has not shown evidence or
  enough evidence to establish the elements of dishonestly applying public monies
  to his own use. Accepting that the accused solicited and received payments from
  the Market fee takings, the Court should find the small amounts of K50.00 to
  K100 he occasionally received was to cover his official necessities. Counsel
  submitted, State witness Moses Bush should not be believed in his evidence that
  the accused forced him to give the money. It is illogical and absurd to believe, for
  some five months the accused would force him, and he would simply comply
  without the slightest complaint to relevant authorities.

• Page 6 of 9

• 17. Mr Apo for the State submitted, the accused should not be believed in his
  testimony that others had used the name of his office to solicit and benefit from
  the Market fee takings. His testimony contradicts his earlier story to the police in
  receiving smaller portions of the amounts he allegedly took. That in effect,
  reduces his honesty and reliability. Counsel submitted the prosecution has proven
  beyond reasonable doubt, the accused had outside due process and without proper
  authority, helped himself from the Market fee takings for his own personal use
  and that his conduct was not honest, trustworthy or sincere.

  Assessment and conclusions on trial evidence

  18. The onus is on the accused to prove on the balance of probability, the
  amount he received and the lawful purpose to which he applied the money. The
  more onerous onus on the State is, to prove on the higher standard of prove
  beyond reasonable doubt, the accused dishonesty applied public funds to his own
  use.

  19. I find, as acceded by both Counsel, the Market fee receipts by the Kimbe
  ULLG lacked proper stringent control for expenditure of the revenue. As Mr Kari
  described it, the Market revenue was a milking source for workers. The situation
  was susceptible to abuse and corrupt practices. It no doubt encouraged workers to
  help themselves to the government till and I think the accused fell into that trap.

  20. I find from his own concessions; the accused was one of those milking that
  cow. He had direct access to the Market fee collections and would get paid some
  cash whenever he requested. Whether he only took small amounts is not critical.
  The critical issue is whether he acted dishonestly within the meaning of s. 383A
  (1)(a) of the Criminal Code. The amount taken is relevant as an aggravating
  factor.

  21. So, what was the amount taken and most importantly, whether the State has
  proven on the requisite standard, the conduct of the accused was not honest,
  trustworthy or sincere, such that it would constitute dishonest application of
  monies intended for Kimbe ULLG?

  22. On the issue of amount, the following appears in his Record of Interview:

  Q37. I will also produce to you copies of the daily market fee
  balance and summary sheet for the month of July 2014 which a
  total of K3,062.00 was paid to you What do you say about this?

• Page 7 of 9

• Ans. I won’t respond because I did not sign this document. They
  gave me money, but the figures are excessive. Also, petty cash
  approved by FEC K500.00 for Mayors was not excess by
  Manager eventually.
  Q38. I will also produce to you copies of the daily market fee
  balance and summary sheet for the month of August 2014, total of
  K3,512.00 was paid to you. What do you say about this?
  Ans. I won’t respond because I did not sign this document. They
  gave me money but the figures are excessive.
  Q39. I will also produce to you copies of the daily market fee
  balance and summary sheet for the month of September 2014,
  K2,970.00 was paid to you. What do you say about this?
  Ans. I won’t respond because I did not sign this document. They
  gave me money but the figures are excessive.
  Q40. I will also produce to you copies of the daily market fee
  balance and summary sheet for the month of October 2014, a total
  of K2,481.00 was paid to you. What do you say about this?
  Ans. I won’t respond because I did not sign this document. They
  gave me money but the figures are excessive.
  Q41. I will also produce to you copies of the daily market fee
  balance and summary sheet for the month of November 2014, a
  total of K1,010.00 was paid to you. What do you say about this?
  Ans. I won’t respond because I did not sign this document. They
  gave me money but the figures are excessive.
  Q42. I will also produce to you copies of the daily market fee
  balance and summary sheet for the month of December 2014, a
  total of K2,535.00 was paid to you. What do you say about this?
  Ans. I won’t respond because I did not sign this document. They
  gave me money but the figures are excessive.

  23. The accused was being questioned from the Monthly Summary Report of
  the Market revenue and cash payments for each month from July to December
  2014. His common answer in respect of each amount allegedly paid to him each
  month was, “I won’t respond because I did not sign this document. They gave me
  money but the figures are excessive.” (emphasis added).

  24. It is apparent from this evidence, the accused received monies from the
  Market revenue for six months. The aggregate amount for each month came from
  the number of occasions the accused solicited and received payment from the
  Market fee takings. This came to K15, 570.00 in total.

• Page 8 of 9

• 25. The accused generally conceded receiving less amounts. He did not specify
  the exact amount he received on each occasion or in total. This does not help his
  case. The documentary evidence is specific on the amount he received on each
  occasion each month and the aggregate in the period in question. The evidence is
  not challenged as to its authenticity and content correctness. This leaves a strong
  impression; the accused took the amount charged.

  26. As to what he used the money for, the accused did not disclose that to the
  police, nor did he produce any receipt or other evidence of acquittal in support of
  his belated claim of using the money on office requirements.

  27. The accused is clearly an intelligent person. It would have been easy for
  him to understand the serious dilemma he was in and tell the police, the exact
  amount he received and explain the purpose for which the money was used. He
  also had an early opportunity to tell the police, other persons had benefitted from
  the Market revenues and falsely written, “Acting Mayor” to implicate him. He did
  not tell the police then, the “Acting Mayor” was not him or he did not authorise
  anyone to use his official capacity. All his explanation was that he would not
  respond because he did not sign the document. The inference is clear, what he is
  telling the court now is a recent invention.

  28. Furthermore, it is trite, and I think he understands from common practices,
  all public expenditures from the government purse must he precipitated by formal
  requisitions, stating the amount and purpose for approval by the finance delegate.
  In this case, there is no formal requests for expenditure of the Market revenue for
  his office operational costs.

  29. I am least impressed with defence’s general denials.

  30. The payment of public funds in drips and drabs to the Acting Mayor in July
  and the ensuing months hardly speaks of formal expenditures for lawful purpose.
  It strongly indicates lack of expenditure planning and control from a government
  office. It shows gross mismanagement of public funds.

  31. The State’s evidence which I accept is, that the accused would verbally ask
  and was paid the amount as shown in the documents; Records of Daily Market
  Fees and Payments/Deductions; Daily Fees Collections Summary and Monthly
  Summary Reports. The cash payment to “Acting Mayor” as recorded was an
  almost every-two-day event. For instance, for the month of July 2014 in Exhibits
  B1.1 to B1.21, the accused admitted being given the money but denied it was the
  amount recorded. So, I conclude he was given the money as recorded in his

• Page 9 of 9

• capacity as the Acting Mayor. I further conclude, it is highly likely; the accused
  applied the money intended for public purpose, to his own benefit.

  32. I do not believe the story by Moses Balush that the accused forced him to
  give the amounts on each occasion he requested. Without the admissions by the
  accused, his story might raise serious issues of his honesty and reliability. It is
  however settled, that if a witness is disbelieved on one aspect of his evidence, it
  does not necessarily follow, other aspects of the evidence would be disbelieved.

  33. The rule of the law that guilt must be proved beyond a reasonable doubt
  does not require that the relevant facts be established with complete scientific
  accuracy: R v. Summers [1990] 1 Qd R 92. And there is no rule that a trial judge
  must reject all of a witness’s evidence because he finds some of it inconsistent. A
  judge is free to accept some evidence from a witness and reject other parts of the
  evidence, even if it relates to closely linked events: SCRA No. 34 of 2003, Ano
  Naime Maraga & 2 Ors v The State (2009) (Unnumbered SC Judgment).

  34. This is more so where the other aspects of his evidence is consistent with
  other evidence, oral or documentary or is consistent with logic and common
  sense. In this case, the evidence of Moses Balush is supported by the documentary
  evidence and the accused’s own admissions.

  35. It is clear from the whole of the evidence, the accused helped himself from
  the Market takings at his own volition outside proper accounting processes and
  applied the monies to his own use. He has not shown how much he took as the
  lesser amount. I am persuaded by the documentary evidence he periodically took
  the amounts as recorded and the aggregate amount was K15, 570.00.

  36. The inescapable conclusion is that the prosecution has adduced
  overwhelming evidence to support a guilty finding.

  20. I find the accused guilty and convict him as charged.

  _________________________________________________________________
  Public Prosecutor: Lawyers for the State
  Public Solicitor: Lawyers for the Defence