Hokafonu v R [2003] TOLawRp 33; [2003] Tonga LR 249 (25 July 2003)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

Cr App 17/2002

Hokafonu

v

R

Burchett and Tompkins JJ
21 July 2003; 25 July 2003

Criminal law – appeal against sentence – sentencing cumulative for unrelated offences – replaced with concurrent

The appellants were charged with an indictment containing 12 drug related counts. In the course of the trial, which occupied 16 hearing days, the jury were directed to return verdicts of not guilty on counts 1 to 8, which they did. The jury found the appellant Hokafonu guilty of count 9, possession of cocaine, count 10, conspiracy to import cocaine and count 12, conspiracy to export cocaine. He was sentenced to 4 years imprisonment on count 9, and to 10 years imprisonment on counts 10 and 12. The sentences on counts 10 and 12 were concurrent but cumulative on the sentence on count 9, resulting in a total sentence of 14 years. The jury found the appellant Manu not guilty of count 9, possession of cocaine, count 10, conspiracy to import cocaine and guilty of count 12, conspiracy to export cocaine. He was sentenced to 3 years imprisonment. The appellants have appealed against conviction and sentence and against the order of forfeiture of the tiles amongst which the cocaine was concealed, if indeed such an order were made.

Held:

1. The first ground of the appeal was that the judge misdirected the jury on the ingredients of the offence of conspiracy, in particular in failing to explain the mental elements of the offence. It was further submitted that the direction was unclear and could have caused confusion in the minds of the jury. The court held that as a direction to a jury on the ingredients of the offence of conspiracy and the elements the Crown was required to prove beyond reasonable doubt, that direction was impeccable. It was clear, concise, accurate and correct. That ground of appeal failed.

2. The appellants submitted that the Chief Justice erred in directing the jury on the onus of the prosecution in relation to section 32 of the Drugs and Poisons Act (Cap 79). They submitted that the subsections required the prosecution to prove by direct evidence that no certificate had been issued by the Prime Minister in the specified form. The court held that any ingredient of an offence could be proved either by direct evidence of the fact or by evidence from which the fact can properly be inferred. The Chief Justice was correct in directing the jury that although there was no direct evidence that the Prime Minister had not issued certificates, that element of the offences could reasonably be inferred from all the surrounding circumstances. That ground of appeal failed.

3. The appellants further submitted that the Chief Justice erred in his direction to the jury that it could accept the evidence from an expert analyst that the material submitted to him for examination was in fact cocaine; they said that for this evidence to be acceptable the witness had to state expressly that the material was cocaine within the precise definition of that word in the Act. The court found that the certificate and the absence of any challenge by way of cross-examination or otherwise to the description of the material contained in the certificate, it was in no doubt that the judge was correct in directing the jury that the expert witness had properly identified the material as cocaine. That ground of appeal did not succeed.

4. The court found nothing in the procedure that was followed or the manner in which the Chief Justice put to the jury the case for the defence that would justify allowing the ground of appeal that the procedure at the closing stages of the trial either was unfair to the appellants or required some extra directions from the Chief Justice to remind the jury again of the case for the appellants. That ground of the appeal failed.

5. The appellants submitted that the Chief Justice erred in admitting hearsay evidence from the sister-in-law of the first appellant. The court held that the conversation, although otherwise hearsay, was admissible to prove the existence of the conspiracy or the state of mind of at least one of the alleged co-conspirators. To the extent that the conversation appeared to include a threat to the first appellant, it was capable of being taken as evidence that the first appellant was a party to the conspiracy. The conversation may also have been direct evidence in support of the prosecution claim that there was a conspiracy to which the appellants were parties. The evidence was properly admitted. That ground of appeal cannot succeed.

6. The appellants submitted that the verdicts were against the weight of evidence without advancing any particulars. Nevertheless, the court considered that ground of appeal and found that it was open on the evidence for the jury to come to its verdict. That ground of appeal did not succeed.

7. As to the appeal against sentence, the court considered that any imposition of the maximum penalty for an offence must be restricted to cases where the circumstances are so serious as to justify that course. The court was satisfied that the circumstances were within that category.

8. However, in considering the sentence imposed on the first appellant, cumulative sentences should only be imposed for offences that were unrelated. The conspiracy to import, the possession of the cocaine that was left behind, and the conspiracy to export, should all be regarded as part of a related series of offending. Further, the court must have regard to the totality of the offending, particularly where the offences are a series of related offences. Viewed in that light, and having regard to the maximum penalty for conspiring to import or export, a total sentence of 14 years was excessive. The proper sentence was for the sentences for all three offences to be concurrent.

9. The appeals against the convictions of both appellants were dismissed. The appeal by the first appellant against sentence was allowed. The sentences imposed for each of the three offences were confirmed, but the order in the Supreme Court was varied to quash the order that the sentence for possession be cumulative on the sentences for the other two offences. In lieu there was an order that the sentences for all three of the offences of which the first appellant was found guilty be concurrent. There were no grounds for interfering with the sentence imposed on the second appellant.

Statutes considered:

Court of Appeal Act (Cap 9)

Drugs and Poisons Act (Cap 79)

Counsel for appellant: Mr Tu'utafaiva
Counsel for respondent: Ms Simiki

Judgment

Introduction

[1] This appeal was heard by a court of two judges in accordance with an order of the Chief Justice made pursuant to rule 5(b) and (c) and rule 4(b) of the Court of Appeal (Constitution of Court) Rules 2003. As required, at the commencement of the hearing, this order was read in open court.

[2] The appellants were charged with an indictment containing 12 drug related counts. In the course of the trial, which occupied 16 hearing days, the jury were directed to return verdicts of not guilty on counts 1 to 8, which they did.

[3] The jury found the appellant Hokafonu guilty of count 9, possession of cocaine, count 10, conspiracy to import cocaine and count 12, conspiracy to export cocaine. He was sentenced to 4 years imprisonment on count 9, and to 10 years imprisonment on counts 10 and 12. The sentences on counts 10 and 12 were concurrent but cumulative on the sentence on count 9, resulting in a total sentence of 14 years.

[4] The jury found the appellant Manu not guilty of count 9, possession of cocaine, count 10, conspiracy to import cocaine and guilty of count 12, conspiracy to export cocaine. He was sentenced to 3 years imprisonment.

[5] The appellants have appealed against conviction and sentence and against the order of forfeiture of the tiles amongst which the cocaine was concealed, if indeed such an order were made.

Background

[6] The case for the prosecution is that the container, referred to as container SUDU, came from Panama, was transshipped in Auckland, and arrived in Tonga in September 2001. It contained boxes of tiles. Other persons named Peisley, McNicholl and Heke arrived from overseas and stayed at the Sunset Resort. They and the appellants were involved in the arrangements to clear the container from the wharf. The prosecution asserted that concealed in the boxes of tiles were metal boxes containing a total of 100 kilos of cocaine. The tiles were unpacked from the container SUDU at the Sunset Resort and 4 cartons of tiles were repacked into a container TRLU. That container was searched by the police and 95 kilos of cocaine in 19 metal boxes were located in the cartons of tiles which had been reloaded into this container at the Sunset Resort.

[7] The police searched the Sunset Resort. They found documents belonging to Peisley. They found amongst pallets of tiles stacked inside the building a metal box containing five kilos of cocaine. That metal box was identical to those found in container TRLU.

[8] There was no challenge to the claim of the prosecution that the two accused carried out the arrangements for the clearance of the container and its transport to the Sunset Resort. Also they did not dispute that they had helped to get the four pallets back to the wharf for shipment to Fiji.

[9] As the Chief Justice put it to the jury in his summing up, the real question that lay at the centre of the case is whether the accused knew that each container had drugs in it and, knowing that, conspired with the others and others elsewhere to carry out the operation of importing and transshipping the cocaine into and out of Tonga.

The appeals against the convictions

[10] Mr Tu'utafaiva advanced a large number of grounds in support of the appeals against conviction. We shall deal with each in turn.

Misdirection on conspiracy

[11] Mr Tu'utafaiva submitted that the judge misdirected the jury on the ingredients of the offence of conspiracy, in particular in failing to explain the mental elements of the offence. He further submitted that the direction was unclear and could have caused confusion in the minds of the jury.

[12] The following is the relevant part of the summing up:

"Conspiracy under our law is committed when two or more people agree to act together with a common purpose in order to commit or abet an offence. Any agreement to commit an offence is a conspiracy and it does not matter whether the offence is in fact committed – the agreement to commit or abet it is enough. In this case the offence alleged in count 10 is to import the drug cocaine and in count 12 to export it. It is clear that the importation was achieved and the exportation was attempted but was only partly successful. However, the prosecution has to prove not just that the accused person you are considering agreed to act together with others in a common purpose but that the agreement was with the intention of committing or abetting the offence.

You will have to decide whether the prosecution has proved to the standard I have mentioned, namely beyond reasonable doubt, that the accused agreed with someone else to commit or abet that importation and exportation. The prosecution does not have to prove that they conspired with each other and others or even with any particular person but they must prove that whoever they agreed with were people involved in the same agreement.

It is also not necessary for the prosecution to prove that they originated the scheme or that they were even involved at the start. If a conspiracy is formed and someone joins it later, he is equally guilty of the same conspiracy. Mr Tu'utafaiva suggests that the date in the indictment must be taken precisely. I must advise you that the date is not important in that way. A conspiracy may be a continuing offence involving a number of separate discussions and agreements as part of the same conspiracy and with different co-conspirators.

You will remember that I pointed out that each accused is entitled to separate consideration and a separate verdict on each count. Of course, when the allegation is conspiracy, there must be proof of acting in concert with another person for the advancement of the plan but that person need not be the other accused. You will see that the indictment charges that each accused conspired with his fellow accused and others to commit the offences. If you find at the end of your consideration of the evidence that they conspired with each other or with other people in the conspiracy or with all of them, you will convict of that conspiracy."

[13] In our view, as a direction to a jury on the ingredients of the offence of conspiracy and the elements the Crown is required to prove beyond reasonable doubt, that direction is impeccable. It is clear, concise, accurate and correct.

[14] This ground of appeal fails.

Drugs and Poisons Act (Cap 79), Section 32 (1) and (2)

[15] Mr Tu'utafaiva submitted that the Chief Justice erred in directing the jury on the onus of the prosecution in relation to this section. Subsection (1) provides:

It shall not be lawful unless otherwise provided for any person to import or bring into the Kingdom any drug to which this Part of this Act applies except under certificate issued by the Prime Minister in the form contained in Schedule D to this Act and into the approved port mentioned in any such certificate.

[16] Subsection (2) is in identical terms except the phrase "import or bring into the Kingdom" is replaced by the phrase "export from the Kingdom."

[17] The Chief Justice directed the jury in these terms:

"The offences that they are accused of conspiring to commit are importation and exportation of cocaine. The Drugs and Poisons Act states that it shall not be lawful to import various drugs including cocaine unless it is under a certificate issued by the Prime Minister or to export it unless there is an authorisation by the Prime Minister.

The prosecution must prove in count 10 in relation to each accused that he agreed with someone else to import cocaine and that the importation did not have a certificate from the Prime Minister. As Mr Tu'utafaiva has pointed out, the prosecution must prove each element of the offence and that includes satisfying you so you have no reasonable doubt that there was no such certification by the Prime Minister. The prosecution did not produce direct evidence of that but you are entitled to consider on the evidence as a whole of the manner in which this cocaine was imported that there was no such certificate and that the cocaine was imported unlawfully. It is a matter for you."

[18] It was Mr Tu'utafaiva's submission that this was a misdirection. He submitted that the subsections required the prosecution to prove by direct evidence that no certificate had been issued by the Prime Minister in the specified form.

[19] He is correct that the obligation is on the prosecution to prove beyond reasonable doubt that there was no certificate issued by the Prime Minister authorising the export or the import of the drug. He is not correct in his submission that that fact can only be proved by direct evidence. Any ingredient of an offence can be proved either by direct evidence of the fact or by evidence from which the fact can properly be inferred. What the Chief Justice told the jury in this direction was that although there was no direct evidence that the Prime Minister had not issued certificates, that element of the offences could reasonably be inferred from all the surrounding circumstances. Not only was that a correct direction, but the inference the Chief Justice was suggesting the jury could properly draw was unanswerable. If persons choose to import any illegal drugs skilfully concealed amongst packages of tiles in a container, or choose to export the drugs similarly concealed, the inference that the Prime Minister had not issued certificates authorising the import and export is irresistible.

[20] This ground of appeal fails.

Proof of cocaine

[21] Mr Tu'utafaiva submitted that the judge erred in his direction to the jury that it could accept the evidence from an expert analyst, Mr Heagney of the Australian Forensic Drugs Laboratory, that the material submitted to him for examination was in fact cocaine. Mr Tu'utafaiva submitted that for this evidence to be acceptable the witness had to state expressly that the material was cocaine within the precise definition of that word in the Act.

[22] Mr Heagney gave evidence. He said that the material he examined was cocaine. He produced, without objection, a certificate of analysis that included the following summary: "Of the total of 100 items 90 items of total net weight 89916.5g contain an estimated total weight of pure cocaine of 63837.1g (63.8371kg)."

[23] In the face of that certificate and in the absence of any challenge by way of cross-examination or otherwise to the description of the material contained in the certificate, we are in no doubt that the judge was correct in directing the jury that this expert witness had properly identified the material as cocaine.

[24] This ground of appeal cannot succeed.

The procedure at the trial

[25] Mr Tu'utafaiva submitted that the procedure at the closing stages of the trial either was unfair to the appellants or required some extra directions from the Chief Justice to remind the jury again of the case for the appellants.

[26] From the first day of the hearing, 11th July, 2002, to the last day 22nd August, 2002, there were a total of 43 days inclusive of weekends and adjournments. This includes an adjournment of 18 days from 1st to 20th August, 2002.

[27] When the trial resumed on 20th August, 2002, counsel for the appellants gave his closing address to the jury, finishing that afternoon. There followed the addresses by counsel for the prosecution and the Chief Justice's summing up. The jury retired to deliberate mid-morning on 22 August 2002.

[28] Mr Tu'utafaiva submitted that the consequence of this procedure is that the jury was likely to have forgotten several aspects of the case for the appellants as put by him. He submitted that as a result extra care was required in the summing up to ensure that the case for the appellants was properly before the jury.

[29] In his summing up the Chief Justice dealt at considerable length not only with the case for the appellants generally but also, in particular, by describing in detail the evidence that they and their witness had given. Certainly, he referred in the summing up to the 14 aspects of the evidence which Mr Tu'utafaiva had suggested would help the jury to find that the appellants did not know that the containers or the packets of tiles contained cocaine. The Chief Justice said that he would not go through them all but would point to some aspects of the evidence that may help the jury to decide. This he did. In our view that was an entirely appropriate way for the Chief Justice to put fairly the case for the appellants. We find nothing in the procedure that was followed or the manner in which the Chief Justice put to the jury the case for the defence that would justify allowing this ground of appeal.

[30] This ground of appeal cannot succeed.

Hearsay evidence

[31] Mr Tu'utafaiva submitted that the Chief Justice erred in admitting hearsay evidence from Mrs Hokafonu, the sister-in-law of the first appellant. He relied particularly on the following evidence she gave of a telephone call from an alleged co-conspirator (transcript errors included):

[The alleged co-conspirator] and called on Sunday night and left me a message from Stan Hokafonu from Australia. [The alleged co-conspirator] said that Stan had received from the investors that [the first appellant] should come back to Australia and explained what happened with the tiles. I said to him that was a bit difficult because he has been arrested because they found an unlegal drugs at Sunset. He also said that [the first appellant] and [the second appellant] had done the wrong thing and the people have been watching them and Jimmy and his family lives in Australia and Tonga are in danger."

[32] The rule relating to the admissibility of hearsay evidence in a conspiracy trial is thus described in the New Zealand text Adams on Criminal Law at paragraph CA310.11:

"In a conspiracy trial, the prosecution may adduce evidence of the statements or conduct of the alleged co-conspirators acting in furtherance of the common design, even where the statements were made or the conduct took place, in the absence of the accused . . .

Evidence of events or conversations which occur in the absence of any one conspirator may be admitted as direct, not hearsay, evidence of the existence of a conspiracy between persons present at the event or conversation, or as evidence of the state of mind of those participants . . .

The generally accepted rationale of the exception is on agency principles. In effect, the combination to commit the crime is taken to imply an authority given by each conspirator to act or speak on behalf of all the conspirators in furtherance of the common design."

[33] The contents of the conversation related by Mrs Hokafonu cannot be taken as evidence of the truth of what was said. However, within the principles we have set out above, the conversation, although otherwise hearsay, is admissible to prove the existence of the conspiracy or the state of mind of at least one of the alleged co-conspirators. To the extent that the conversation appears to include a threat to the first appellant, it may be capable of being taken as evidence that the first appellant was a party to the conspiracy. The conversation may also be direct evidence in support of the prosecution claim that there was a conspiracy to which the appellants were parties. The evidence was properly admitted.

[34] This ground of appeal cannot succeed.

The cover story

[35] It was the case for the appellants that they believed that those who had come from overseas did so for the purpose of considering the possibility of upgrading the Sunset Resort, what the Chief Justice referred to as the cover story. In the course of his summing up, he said:

"As I have said, the cover story was that this was all part of an upgrading of the resort that was to be done by some overseas investors. You may think it strange that this was accepted apparently without question by so many people involved in the resort, including [the first appellant]. It appears they did not think they needed to know how the resort was to be upgraded or who was to run it and how the financing was to be sorted out. Do you think anyone owning a resort would simply allow such a thing to happen and strangers to come all the way to Tonga simply to sort out a few tiles and nothing else without asking a few questions? Or do you think that in itself is a pointer to the fact that they knew only too well what the true reason was. Do you feel it is significant that the consignment of tiles and drugs was dispatched to [the first appellant] by name long before he was back here in Tonga or the palangis had arrived to oversee the operation? Would the people who sent the drugs have risked it falling into his hands before they could get here if he was not in the plan?"

[36] Mr Tu'utafaiva submitted that the Chief Justice erred in emphasising unnecessarily this portion of the evidence. He submitted that this is particularly so when it is apparent from the evidence that the matters emphasised by the Chief Justice were not put to the appellants to enable them to comment.

[37] We do not accept this submission. The passage occurs in that part of the summing up where the Chief Justice was directing the jury on the case for the prosecution. In the course of doing so it was perfectly legitimate for him to refer to the account advanced by the appellants and to point out some aspects of it for the jury to consider in determining whether that account was likely to be correct.

[38] This ground of appeal cannot succeed

Against the weight of evidence.

[39] Mr Tu'utafaiva, in the notice of appeal setting out the grounds of appeal and also in his outline of submissions of the appellant's grounds of appeal, stated as a ground of appeal that the jury's verdicts were against the weight of evidence. This is not a ground of appeal. The ground on which the Court of Appeal can allow an appeal against conviction in subs 17(1) of the Court of Appeal Act (Cap 9) is that the verdict is unreasonable or cannot be supported having regard to the evidence.

[40] No particulars were given either in the grounds of appeal or in the outline of submissions. This is unsatisfactory. Counsel for the Crown and the court are entitled to have proper particulars in reliance on which the appellants intend to challenge the jury's verdict. The verdict, of course, is the simple verdict of guilty or not guilty. So submitting that the verdicts are against the weight of evidence, without more, is not submitting a ground of appeal upon which the court can properly adjudicate. Nevertheless we have considered some of the matters that he raised under this ground.

[41] He submitted that, as counts 1 to 8 were dismissed at the close of the case for the prosecution, it was not open for the jury to have found the first appellant guilty on three of the remaining counts and the second appellant guilty on one of the remaining counts.

[42] There is no substance in this submission. Counts 1 to 8 against both appellants are all concerned with various allegations of forgery. As such, they were quite separate from the counts of conspiracy and possession. That there was insufficient evidence to establish the forgery counts does not provide any grounds in support or in defence of the conspiracy and possession counts. Further, it was open on the evidence for the jury to find the second appellant not guilty of possession but guilty of conspiring to export.

[43] This ground of appeal cannot succeed.

Second appellant's knowledge

[44] Also under the general heading of the jury's verdict being against the weight of the evidence, Mr Tu'utafaiva submitted that evidence given by two witnesses concerning the second appellant's knowledge of cocaine being present amongst the tiles meant that the jury, having acquitted this appellant of the charges of conspiring to import cocaine and of possession of cocaine, could not properly find him guilty of conspiring to export cocaine. The two witnesses were both present when the tiles were being unpacked. In the course of this operation, the second appellant made comments to each of the witnesses indicating that he was aware that there was cocaine amongst the tiles. As we understand Mr Tu'utafaiva's submission, it was that if the jury rejected the prosecution's contention that the second appellant was in possession of the cocaine, he could not have been guilty of conspiring to export.

[45] We do not accept this submission. The second appellant could have been aware that cocaine was hidden among tiles without his being legally in possession of it. But the jury could well have concluded that if he knew the cocaine was there and if he subsequently co-operated with the others who were involved in attempting to export it, he was guilty of conspiring to export. It is conceded that he was actively involved in the attempt to export, and that he was doing so in conjunction with others. The evidence of these two witnesses supports the submission by the Crown that he knew that what he and others were attempting to export included cocaine.

[46] This ground of appeal cannot succeed.

The appeal against sentence

[47] In passing sentence the Chief Justice observed that the penalties under the law of Tonga, which provide a maximum penalty of 10 years imprisonment, are totally inadequate for dealing with drug importations on this scale. He urged the Government to take immediate steps to consider increasing the penalties. We endorse these remarks. The maximum penalty prescribed is substantially less than that of other jurisdictions. By way of example, the maximum penalty for the importation of cocaine into New Zealand is life imprisonment.

[48] Tonga has until now been relatively free of the curse of illegal drugs. If that is to be maintained, the courts must have the power to impose penalties sufficiently severe to deter drug dealers using Tonga as a staging post for importations into other countries and to deter them from importing illicit drugs into Tonga for sale here. Present maximum penalties are inadequate to achieve that objective.

[49] The Chief Justice recorded his view that the five kilograms of cocaine left behind in the possession of the first appellant was part of the payment for his part in the operation. It may also have been part of the consideration for the second appellant's assistance in the attempt to export the cocaine, The Chief Justice recognised that the second appellant's involvement was considerably less, as he had not been proved to be part of the original scheme.

[50] Any imposition of the maximum penalty for an offence must be restricted to cases where the circumstances are so serious as to justify that course. We are satisfied that the circumstances in the present case are within that category. This was obviously a highly sophisticated operation involving a very large amount of cocaine for which, we have no doubt, the participants expected to reap a large reward. In these circumstances the imposition of the maximum penalty, particularly when that penalty is not as severe as it could be, is justified.

[51] However, in considering the sentence imposed on the first appellant, there are two aspects that cause concern. Cumulative sentences should only be imposed for offences that are unrelated. In the present case we do not consider that to be so. The conspiracy to import, the possession of the cocaine that was left behind, and the conspiracy to export, should all be regarded as part of a related series of offending.

[52] The second aspect is that the court must have regard to the totality of the offending, particularly where the offences are a series of related offences. Viewed in that light, and having regard to the maximum penalty for conspiring to import or export, a total sentence of 14 years was excessive. The proper sentence in these circumstances was for the sentences for all three offences to be concurrent.

Forfeiture order

[53] It was counsel's understanding that the Chief Justice, when imposing sentence, made an order forfeiting the tiles, we assume both the tiles at the Sunset Resort and the tiles in container TRLU. There is no reference to such an order in the record of the Chief Justice's comments on sentence nor in the formal order recording the sentences imposed.

[54] The only section in the Drugs and Poisons Act relating to forfeiture is s 44. It authorizes the court to make a forfeiture order in respect of "any yacht, launch, small boat or ship or aircraft" relating to the offence. It does not authorize the forfeiture of articles such as the tiles in the present case.

[55] If such an order were made, it was made without jurisdiction.

Result

[56] The appeals against the convictions of both appellants are dismissed.

[57] The appeal by the first appellant against sentence is allowed. The sentences imposed for each of the three offences are confirmed, but the order in the Supreme Court is varied to quash the order that the sentence for possession be cumulative on the sentences for the other two offences. In lieu there will be an order that the sentences for all three of the offences of which the first appellant was found guilty be concurrent.

[58] There are no grounds for interfering with the sentence imposed on the second appellant.

[59] If an order were made for the forfeiture of the tiles, it is quashed.