Rex v Uluilakepa [1999] TOCA 20; CA 22 1999 (23 July 1999)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

CA. NO. 22/99
CR. NO. 577/98
BETWEEN

REX

Appellant
AND

MO'ALE ULUILAKEPA

Respondent

Coram:
Burchett J, Tompkins J, Beaumont J.

Counsel
'Aminiasi Kefu for Appellant
Lesina Tonga for Respondent.

Date of Hearing: 20 July 1999
Date of Judgment: 23 July 1999

JUDGMENT OF THE COURT

The appellant was charged with perjury in that on or about 13 April 1994 he did state on oath that he was the heir to his father's tax allotment at Haveluloto knowing full well that such statements were false. He pleaded guilty on arraignment. When he came before Finnigan J for sentence on 10 June 1999, the Judge ordered that he be discharged without conviction. The Crown has applied for leave to appeal against this sentence.

THE OFFENDING

Samiu Kaufusi had a tax allotment in Haveluloto known as "Tufitokelau". He died about 1981. The allotment was registered in the name of his eldest son, Tevita Uluilakepa Kaufusi. This son married twice. From his first marriage he had a son named Viliami Uluilakepa Kaufusi. From his second marriage he had the accused and two other children.

Tevita surrendered the tax allotment, apparently with a view of the respondent obtaining title to it. The respondent applied for the allotment. In support, he made an affidavit on 13 April 1994 which is in Tongan. The following is a translation of the relevant paragraphs:

"3. That I Mo'ale Uluilakepa, heir of the deceased

4. That the following are the deceased's next of kin;

Mo'ale Uluilakepa (heir)

Atimata Uluilakepa (m)

Tupou Uluilakepa (m)

5. That it is in my belief and best of knowledge that there is no one who can lay claim to the tax allotment, apart from myself."

The affidavit was sworn before a Police magistrate. It was tendered in support of the respondent's application to have the tax allotment registered in his name. The Minister of Lands, in reliance on the affidavit, registered the tax allotment in the name of the respondent.

The affidavit was false in several respects. The respondent was not the heir of Tevita. Tevita's eldest son was Viliami, who was alive when the affidavit was sworn. The affidavit sets out Tevita's next of kin from his second marriage but failed to set out the next of kin from his first marriage. His claim in paragraph 5 that there was no one who could lay claim to the tax allotment apart from him he knew to be false. It was also at least inaccurate in referring to his father as the deceased when he was still alive.

Tevita's eldest son by his first marriage, Viliami Kaufusi and others commenced proceedings in the Supreme Court seeking to have set aside the registration of the tax allotment to the respondent. Lewis J set aside the registration which enabled the tax allotment to be registered to Viliami Kaufusi. The respondent and his father appealed against that decision. The appeal was dismissed by this Court by a judgment delivered on 7 August 1998. His brother the heir, had died before the appeal was heard.

THE REASONS FOR SENTENCE

The Judge's sentencing remarks are brief. He referred to the offending occurring in the family situation between his brother, his father, and him. He also considered his employment. He was satisfied that the respondent had had sufficient punishment and that his job should remain open to him. It was for those reasons that he discharged the respondent without conviction.

THE RESPONDENT

He was aged a few months under 30 years when the offence occurred. He is married with four children. He had entered the Police Force in 1989 as an engineer on the Police rescue boat. By the time of the hearing he was employed as an engineer at the Police Training School.

At the hearing of the appeal, the Court sought some information about the likely effect of a conviction on the respondent's employment, as this appeared to be a factor that influenced the Judge. At our invitation, counsel for the Crown has now filed a memorandum setting out the Crown's position. Although employed by the Ministry of Police, the respondent is not a member of the Police Force. He is a civil servant, as a result of which his name appears in the Civil Service List. He is thus a permanent employee of the Government.

There is no express provision dealing with the employment of a civil servant who is convicted of an offence. Counsel advises that, as a matter of practice only, a civil servant is not automatically dismissed upon conviction. He may be, depending on the circumstances of the case. If he is sentenced to a term of imprisonment, dismissal is likely. If not, the final decision on the appropriate disciplinary action is a matter for Cabinet.

THE OFFENCE OF PERJURY

Perjury has long been recognised as a very serious offence, as is indicated by the maximum sentence of seven years imprisonment. It strikes at the very foundation of Tonga's judicial system and at the administration of justice. Persons who commit perjury usually do so to mislead a court into giving a wrong decision, or, as here, to cause a wrong administrative decision to be made. The consequence of giving false evidence or making a false affidavit can be far reaching and serious. Where a case of deliberate lying on oath has been established it must be met with a stern response. The Court is bound to impose a penalty that marks the seriousness of the offence, and will act as a strong deterrent to others minded to give false evidence or make false statements on oath. The Court will normally be considering a sentence of imprisonment. It is only where there are significant mitigating factors that a non-custodial sentence will be appropriate.

CONCLUSION

There are some mitigating circumstances in this case. As is apparent from the action in the Supreme Court and the Court of Appeal to which we have referred, this was a family dispute that involved allegations that Viliami Kaufusi had renounced his inheritance. The respondent's father wanted the respondent to succeed to the allotment. There was a close relationship between the respondent and his father. We accept that the respondent may have been motivated by a belief that he was acting in accordance with his father's wishes. His counsel submits that he made the affidavit because his father told him to. He has no previous convictions. He was genuinely remorseful for what he had done. He pleaded guilty.

However, these considerations cannot justify a discharge without conviction following a. plea of guilty for such a serious offence. The appellant deliberately made the false affidavit for the purpose of misleading the Minister of Lands. We do not consider any possible effect on his employment can justify the Judge's decision. Indeed, on the contrary, we see no reason why his employer should not be made aware of the respondent's dishonesty. A discharge without conviction may have the effect of concealing what he did. It will be for his employer, the Government, to decide what action if any should be taken in the light of the conviction. We consider that, in discharging without conviction, the Judge was acting; on a wrong principle.

Nor do we consider that this offending should go unpunished. For the reasons we have expressed, we are satisfied that a penalty should be imposed. As it is a Crown appeal, it is appropriate that the penalty should involve a measure of leniency. In all the circumstances, the respondent should be fined the sum of $1,000.

THE RESULT

The application for leave to appeal is granted. The order made in the Supreme Court that the respondent be discharged without conviction is quashed. In lieu thereof, he is convicted of the charge of perjury and fined the sum of $1,000. To that extent the appeal is allowed.

NUKU'ALOFA: 23 JULY 1999

Burchett J, Tompkins J, Beaumont J.