Rex v Fiu [1999] TOCA 21; CA 24 1999 (23 July 1999)

IN THE COURT OF APPEAL OF TONGA
ON APPEAL FROM THE
SUPREME COURT OF TONGA

APPEAL No. 24/99
BETWEEN

REX

Appellant

-V-

1. ‘ISILELI FIU
2. SIMOTE POLELEI
3. TEVITA VAKALAHI

Respondents

Coram:
Burchett J Tompkins J Beaumont J

Counsel:
Mr Posesi Bloomfield for the appellant
Ms Lesina Tonga for the respondents

Date of hearing: 22 July 1999
Date of judgment: 23 July 1999

JUDGMENT OF THE COURT

INTRODUCTION

These are applications by the Crown for leave to appeal in criminal matters. They raise questions as to the meaning and operation of the penalty provisions of s.210 (1) of the Customs and Excise Act (Cap 67).

Relevantly for present purposes, s.210 (1.) provides:

"210. (1) Every person who ....

(d) Knowingly acquires possession of or is in any way knowingly concerned in carrying, removing, depositing, concealing, or in any manner dealing with intent to defraud the revenue of any duties thereon, or to evade any prohibition or restriction of or applicable to such goods ; or

(e) is in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any import ... duties of customs, or of the laws, and restrictions, of the customs relating to the importation, warehousing, delivery, removal, loading .... of goods

shall be guilty of an offence and for each such offence incur a penalty of treble the value of the goods or $200 whichever is the greater; ..." [Emphasis added].

Each of the respondents was charged with, and tried in the Supreme Court on, 3 offences: removing uncustomed goods with intent to defraud the revenue, contrary to s.210 (1) (d) [count 1]; knowingly being concerned in their fraudulent removal contrary to s.210(1) (e) [count 2]; and theft, contrary to s.143 of the Criminal Offences (Cap 18) [count 3]. The Chief Justice convicted each accused on each charge. The Chief Justice passed sentence on the accused as follows:

• On the respondent Vakalahi -
  
  • on counts 1 and 2: $1,000.00 fine or 4 months imprisonment in default of payment, on each count.
    
  • on count 3: 1 year imprisonment, suspended for one year.
    
• On each of the respondents Polelei and Fiu-
  
  • on counts 1 and 2: $750 fine or 3 months imprisonment in default of payment on each count.
    
  • on count 3: 1 year imprisonment, suspended for 1 year.
    

Each accused was granted one month to pay.

However, for the reasons we summarise below, the learned Chief Justice decided not to impose a penalty of 3 times the value of the goods on counts 1 and 2 in each case.(The value of the goods was $7,000.00). The Crown now seeks leave to appeal from the sentencing decision and applies to the Court of Appeal to re-sentence the respondents.

THE REASONING AT FIRST INSTANCE

The Chief Justice acknowledged that the decision of the Court of Appeal in Vakameitangake v Rex (Court of Appeal, Burchett, Tompkins and Beaumont JJ, unreported, 7 August 1998) was on all fours with the present case, and that this supported the Crown's contention that the penalty provisions of s.210 (1) were mandatory, leaving the Court with no discretion to determine the scale of the penalty.

The Chief Justice said:

"If the provision in section 210 is indeed mandatory, each of the accused will be faced with a penalty on each of the first two offences of $21,000.00. I do not believe there is any real prospect the accused, married men with families who earn gross salaries of between $7,000.00 and $9,000.00 pa, will ever pay a total fine of $42,000,00. The maximum time the court can allow for the payment is three months.

I have always considered it a fundamental principle of sentencing that a court should not impose a fine when it is clearly outside the means of the person ordered to pay.

Counsel for the Crown agrees these fines will never be paid as has apparently occurred in similar cases previously. He does not consider there is any scope for an alternative default term of imprisonment and he, reasonably suggests the public authorities are unlikely to execute distress in such a case. What is the point in the court imposing a penalty for a serious offence that everyone agrees will be ignored as the people involved walk through the door of the court? It seems to me that not only is the imposition of such a penalty an injustice but the attitude that will inevitably be shown to the court order is almost contemptuous."

After giving other examples of possible injustices, his Honour said:

"The Court of Appeal in Vakameitangake's case has suggested that, where as here, two offences are charged under different paragraphs of the section arising out of the same facts, the court may, on the authority of Hunter v Chief Constable of the West Midlands Police [[1982] AC 529], use its inherent power to order a stay if it would be an abuse of process to enter a conviction.

In Vakameitangake's case, the court was entering convictions after a plea of guilty. In this case; there was trial and conviction followed proof of each count. Once that is done, I am far from satisfied the court has any power to set aside a conviction once entered. If, on the other hand, it is to do so before conviction it will be deciding the question before it knows anything of the antecedents of the accused. With that knowledge it may well have formed a different view of the wisdom of failing to convict of offences under parallel paragraphs.

If, as the Court of Appeal found, the court may mitigate the mandatory penalty by invoking such inherent power in relation to the number of charges on which it will record a conviction, I am unclear why it may not use the same power to reduce the penalty to prevent the injustice of passing a penalty that is totally beyond the ability of the accused to pay and which everyone accepts will be ignored by accused and government alike."

CONCLUSIONS ON THE APPLICATIONS FOR LEAVE TO APPEAL

We have concluded that leave to appeal should be granted and the appeals allowed in part.

Two questions arise. The first concerns the proper construction of the penalty provisions of s.210 (1). The second is the relevance here of the stay power explained in Hunter. Both raise important legal questions in the administration of criminal justice. We will deal with them separately.

(a) Are the penalty provisions of s.210(1) mandatory?

In our opinion, the use of the word "shall" in these provisions makes it clear, beyond argument, that the legislature intended that this aspect of the sentencing process was not to be subject to the traditional judicial sentencing discretion. In others, this part of the sentence should, we think, be treated as mandatory, as the Court of Appeal has twice previously held. The intention to remove the Judge's discretion here may be contrasted with the retention of the traditional discretion in, for instance, s.220 and s.247 of this Act ["the penalty adjudged to be paid"] and in comparable New Zealand legislation, which we annex to these reasons. Those charged with law reform might wish to consider this as more appropriate than the present provisions of s.210(1). We agree with the observations of the Chief Justice as to the unsatisfactory rigidity of the present statutory scheme.

For completeness, we should add that we see no basis, as a matter of statutory construction, for reading into s.210 (1) an implication that would have the effect of restoring the usual judicial discretion.

(b) Are the penalty provisions of s.210 (1) self-executing, or is there scope for the application of the stay power explained in Hunter?

Whilst, in our view, these provisions should be interpreted as mandatory once they are operative, we do not interpret them as self-executing. In other words, as we held in Vakameitangake, the court's inherent power to stay its criminal process where that process could be used oppressively or unfairly, remains available. We think that it was open to the sentencing Judge to utilise that power here, in order to avoid the "manifestly unfair result" we described in Vakameitanake (at p.10) where two or more offences relate to the same transaction, and at least to mitigate the harshness of the operation of s.210(l) in such a case. That is the position here. We see no reason, of logic or principle, why the stay power could not, if appropriate, be invoked after conviction as well as before proceedings to conviction.

In these circumstances, we are of the view that the stay power should be exercised here by allowing the statutory penalty to be incurred by each respondent in respect of one customs offence only. No other or further sentence is appropriate for those offences.

ORDERS

We make the following orders

1. Leave to appeal granted.

2. Appeals allowed in part.

3. Quash the sentencing orders made by the Supreme Court in respect of each respondent on the customs offences. In lieu thereof, sentence each respondent on the customs offences as follows

•On count 1, order that a penalty be incurred of $21,000.00.

•On count 2, all proceedings on these convictions to be stayed.

Burchett J, Tompkins J, Beaumont J.