The State v Siwi Bungo [2015] N8461

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    Acting mayor of Kimbe found guilty of misappropriating cash payments collected from vendors at the Kimbe Urban Local Level Government market.

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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

  • Page 4 of 9

  • 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.

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  • 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.

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  • 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?

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  • 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