Liu v Rex [2011] TOCA 3; AC 13 of 2011 (30 September 2011)

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

APPEAL NO. AC 13 of 2011
[CR 117 of 2010]

BETWEEN:

LIRONG LIU
Appellant

AND:

REX
Respondent

Coram : Burchett J
Salmon J
Moore J

Counsel : Mr Niu for the Appellant
Mr Sisifa for the Respondent

Date of hearing : 20 September 2011.
Date of judgment : 30 September 2011.

JUDGMENT OF THE COURT

[1] The appellant was convicted after trial before a judge alone on four counts of trafficking a person contrary to section 24 of the Transnational Crimes Act 2005, one count of keeping a brothel contrary to section 80 of the Criminal Offences Act, and two counts of trading in prostitution contrary to section 81 of the Criminal Offences Act. The appellant was sentenced to 10 years imprisonment on each of the four counts of trafficking, six months imprisonment in respect of the count of keeping a brothel and five years imprisonment on each of the two counts of trading in prostitution all sentences to be served concurrently, and no part thereof to be suspended.

[2] The appeal seeks that the convictions be quashed or alternatively that the sentences of imprisonment be reduced and or suspended.

The Appeal against Conviction

Factual background

[3] There are two complainants in this case, Chunjuan Du (Du) and Hong Yu Yang (Hong). Both are women. Du is 34 years of age and Hong is 31. Both come from poor families in China. Both women met with the appellant in China at different times and were persuaded to come to Tonga to work for the appellant as waitresses in the appellant's bar restaurant.

[4] The complainants say that when they arrived in Tonga they were told by the appellant that there was no immediate employment available in the restaurant. They say that the appellant forced them to work as prostitutes against their will. The appellant agrees that there was no immediate restaurant work for the complainants but says that this was due to circumstances beyond her control. She denies requiring the complainants to work as prostitutes.

[5] The complainants also say that if they refused to work they would be beaten with a broom handle or struck with the appellant's hand. Again these allegations are denied by the appellant. The complainants say that they were sometimes locked in the house where they lived with the appellant, although they acknowledged that in fact the doors could be opened from the inside but said that in any case they were too frightened and too unfamiliar with the Tongan language to move far from the house. The appellant denies any restriction on them leaving the house.

[6] The complainant Du upon payment of an amount of money to the appellant left the appellant's house after about three weeks and went and lived elsewhere in Tonga. The complainant says that payment of the money persuaded the appellant to release her passport which she had been holding. The complainant Hong was with the appellant for a longer period of time and in fact worked for two weeks in a restaurant which the appellant and her partner later opened. She also left the appellant once she was able to obtain her passport. The appellant denied all wrongdoing.

The Judgment in the Supreme Court

[7] The Supreme Court judgment has some unusual features. After recording the charges contained in the indictment the judge referred at some length to studies carried out on behalf of "various bodies" concerning trafficking and related issues. This section of the judgment includes some examples of people trafficked in the UK. It sets out what various studies show and concludes with a definition of trafficking taken from a United Nations protocol.

[8] The judgment then sets out the essential elements of the offences contained in the indictment. It then proceeds in a more conventional way to summarize the prosecution case and the defence case. It summarizes the evidence of the two complainants. In a section headed "Conclusion" the judge again incorporates comments on the international studies but importantly makes this comment "On the question of credibility I find the victims' evidence to be preferred as against the defendant and her witnesses. The defendant was not a truthful witness, all the facts reveal the victims were exploited for sexual purposes from day one this was planned and premeditated". At no stage does the Judge refer to the onus of proof in criminal cases or to the Crown's duty to prove each element of the crime beyond reasonable doubt.

The Grounds of Appeal

[9] The grounds of appeal may be summarized as follows:

1. The judge accepted the evidence of the complainants because they fell within the findings of the studies referred to above which had been introduced as evidence by the judge without any opportunity for challenge by the defence.

2. The complainants lied on oath concerning being locked in the house where they were staying with the appellant.

3. The complainants failed to complain at the earliest opportunity. A witness to whom one of the complainants said a complaint was made denied that this was so.

4. The judge should have cautioned himself on the danger of convicting the appellant on the uncorroborated evidence of the complainants.

5. The verdict was contrary to the weight of the evidence and unsatisfactory.

The Law

[10] Neither counsel referred to authority regarding the duties of a judge hearing a criminal case without a jury. We have been unable to find any useful authorities in the UK but have found a decision of the New Zealand Court of Appeal which is on point. Before referring to that case it is useful to set out the provisions of section 17 (1) of the Court of Appeal Act which provides:

"The Court of Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:

Provided that the Court of Appeal may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal, if they consider that no substantial miscarriage of justice has occurred."

[11] S 385 (1) of the New Zealand Crimes Act 1961 is in similar terms. In R v Connell [1985] NZCA 34; [1985] 2 NZLR 233 at 237 the New Zealand Court of Appeal, when dealing with the duties of a judge sitting alone on a criminal trial, noted that a demonstrably faulty chain of reasoning would lead to the court holding that there had been a miscarriage of justice.

[12] Later on the same page the court said:

"But in general no more can be required than a statement of the ingredients of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the judge's essential reasons for finding as he does. This should be enough to show that he has considered the main issues raised at the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond a reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected it would almost always be advisable to say so explicitly."

Consideration

[13] Applying the above authority to the present case there is no doubt that the judge has set out the ingredients of the charges and there was no challenge by Counsel for the Appellant as to the manner in which this had been done. It is clear to that the Judge gave an adequate account of the complainants' evidence and in his summary of the appellant's case an adequate account of her evidence and the particularly relevant witnesses called by her. He made it very clear that he preferred the evidence of the complainants to that of the appellant and her witnesses. The trial judge, who is able to see and hear the witnesses, and assess their demeanour, is in a much better position to make such an assessment than judges on appeal. The credibility finding constituted his essential reason for his findings of guilt.

[14] We have concern with the emphasis that the judge placed on international case studies but we do not accept the appellants claim that the studies were instrumental in the findings of guilt. It was completely unnecessary for the judge to include this material in his judgment. His task was to focus on the provisions of the Transnational Crimes Act 2005 and sections 80 and 81 of the Criminal Offences Act. In this respect he made no effort to analyse the evidence against the ingredients of each charge. However having read the transcript of evidence we are satisfied that if the evidence of the complainants is accepted the ingredients of each charge are established. We regard it as good practice for a Judge in a judge alone trial to remind himself of the standard of proof and the onus on the Crown but again, once the credibility of the complainants is accepted, it is clear that the case has been proved beyond reasonable doubt.

[15] We have carefully considered the allegations that the complainants lied on oath in the manner suggested by Counsel. We do not consider that the evidence as recorded clearly establishes that they did so. As to the evidence of Mr. Wu, to whom one of the complainants said she made a complaint, his evidence is inconclusive as to whether in fact such a complaint was made. As to the alleged delays in making a complaint we consider that the explanation given for this by the complainants is credible. They were both in a strange country. Neither spoke the language and they had been told by the Appellant that she had friends in the Police and the Chinese Embassy. There is no legal requirement for the evidence of the complainants to be corroborated. In this respect Counsel relied on section 11 of the Evidence Act. In our view that section, which applies to sexual offences, is not relevant to the charges in this case nor does it require corroboration of the evidence of complainants in such cases. In any case the evidence of each complainant corroborated that of the other.

[16] We do not consider that the verdicts of guilty were against the weight of the evidence and despite our concern with some of the content of the judgment and the Judge's approach we are not drawn to the conclusion that the evidence was unsatisfactory or that there has been a miscarriage of justice.

[17] For all of the above reasons the appeal against conviction is dismissed.

The appeal against sentence

[18] The grounds of the appeal against sentence relied again on questions of credibility and lack of corroboration. It was submitted that the sentences should reflect the danger of relying on the complainants' evidence. These issues cannot be a ground for challenging the sentences imposed. Of more relevance is the fact that the appellant is a first offender 44 years of age with a 20-year-old daughter in China. The appellant is said to be in poor health with a heart condition but this does not seem to be confirmed by a detailed report from a doctor at the Friendly Island Medical Clinic. We were presented with medical reports which show that the appellant has been suffering from depression since she entered prison. This however is being treated at Vaiola Hospital.

[19] In his sentencing notes the judge referred to sentences in UK cases. The cases mentioned which concerned similar and much more serious offending in the UK ranged from 40 months imprisonment to 23 years in a particularly bad case. The Crown submitted that there was no justification for a reduction in sentence. We are not satisfied that the 10 year sentence imposed was manifestly excessive. The maximum sentence under the Transnational Crimes Act is 25 years imprisonment. Although these charges are far from being the most serious of their kind they are nonetheless deserving of a severe sentence. We consider however that the Judge should in this case have suspended a portion of the sentence. The fact that the accused is a first offender at the age of 42 justifies such a step. We accordingly order that the final three years of the sentence be suspended for three years. In all other respects the appeal against sentence is dismissed.

Burchett J
Salmon J
Moore J