R v Malu [2005] TOLawRp 11; [2005] Tonga LR 226 (1 April 2005)

IN THE SUPREME COURT OF TONGA

R

v

Malu

Supreme Court, Nuku'alofa
Ford J
CR 345-7/2003

28 February and 1, 2 March 2005; 1 April 2005

Criminal law – importing hemp – facilitated importation into Tonga – guilty

The first accused, Veiongo Malu, was charged with one count of importing Indian hemp and one count of possession of Indian hemp contrary to sections 34 and 36 (b) of the Drugs and Poisons Act (Cap 79). It was alleged that on 10 February 2003 she uplifted and cleared through customs at Fua'amotu Airport a cardboard box which included amongst its contents two packages containing Indian hemp. The box, the Crown claimed, arrived on a Pacific Link flight from Fiji on Friday 7 February 2003. Veiongo at the time was working in the compliance section of customs. The second and third accused were charged as accomplices. The Crown's case was that the third accused, Sioeli Tupou, approached the second accused, Siaki Lopeti, for assistance in collecting the box from the airport. The Crown alleged that it was the second accused, Siaki, who had initially spoken to Veiongo and asked her to help clear the box in question through customs. The principal submission advanced on behalf of the first accused Veiongo was that she could not be found guilty of importing the Indian hemp because her actions at the airport in claiming and clearing the box through customs occurred after the act of importation had been completed.

Held:

1. The act of importation does not cease until goods have ceased to be under the control of the appropriate customs and shipping authorities and have been released to the consignee or addressee.

2. The Court concluded on the facts that the box did arrive in Tonga on the Pacific Link flight from Fiji on 7 February 2003 as alleged by the Crown.

3. There was no evidence that there had been any tampering or interference with the exhibits. The Court had no doubt that the samples analysed which proved positive for marijuana were taken from the substance found in the packages.

4. The Court had no doubt that the first accused was fully aware that the box contained a supply of marijuana and that she intended that the drug should be brought into the Kingdom. She was convicted on the importing charge.

5. The Court was satisfied that Veiongo knew that the box contained marijuana, but was not so satisfied that she physically had the substance in her custody or control at any stage. Apart from allowing Veiongo to clear the box through customs, the officers were at pains not to allow her to have physical custody or control of the box or its contents. The first accused was, accordingly, acquitted on the possession charge.

6. The Court was satisfied as to the reliability of the confessions obtained by the police from both the second and third accused.

7. The Crown proved beyond reasonable doubt all the essential elements necessary to establish the charge against the second and third accused and they, along with the first accused, are convicted accordingly.

Cases considered:

George v R (16 May 1996), CA 550/95

R v Atias (No 2) (High Court, Auckland, T025837, Harrison J, 26 September 2003)

R v Fa'aoso [1996] Tonga LR 36

R v Hancox [1989] NZCA 160; [1989] 3 NZLR 60 (CA)

R v Makahununiu [2001] Tonga LR 127

R v Wickremasinghe 21 August 2003, CA 137/03

Saxton v Police [1981] 2 NZLR 186 (CA)

Statutes considered:

Customs and Excise Act (Cap 67)

Customs and Excise Management Act (UK)

Drugs and Poisons Act (Cap 79)

Misuse of Drugs Act 1975 (NZ)

Counsel for the Crown: Mr Sisifa
Counsel for the accused: Mr Tu'utafaiva

Judgment

Introduction

The first accused, Veiongo Malu, is charged with one count of importing Indian hemp and one count of possession of Indian hemp contrary to sections 34 and 36 (b) of the Drugs and Poisons Act (Cap 79). It is alleged that on 10 February 2003 she uplifted and cleared through customs at Fua'amotu Airport a cardboard box which included amongst its contents two packages containing Indian hemp. The box, the Crown claims, arrived on a Pacific Link flight from Fiji on Friday 7 February 2003. Veiongo at the time was working in the compliance section of customs.

The second and third accused are charged as accomplices. The Crown's case is that the third accused, Sioeli Tupou, approached the second accused, Siaki Lopeti, for assistance in collecting the box from the airport. The Crown alleges that it was the second accused, Siaki, who had initially spoken to Veiongo and asked her to help clear the box in question through customs.

Background

Siaosi Puakahuhua ("Saia") was called as a Crown witness. Saia informed the Court that he retired in 2004 after 33 years with the customs service. On the 7 February 2003 he had been on duty as officer in charge at Fua'amotu Airport. He recounted how, after all the passengers and cargo on the Pacific Link flight from Fiji were cleared, an unclaimed cardboard box remained on the luggage conveyor. According to the labelling on the box, it had originally contained packets of "Maggie 2-Minute noodles." It was addressed to: SEINI LIUTAI -POPUA -TONGATAPU.

Saia explained the usual method for dealing with unclaimed luggage. He said that normally the box would have been taken by the airline officials but he had recalled an earlier incident a week or two previously, and there was other evidence given to this effect, where a similar sized box had been seized which was found to contain an illicit substance. Saia therefore gave instructions for the box in question to be kept in a safe at the airport. First, however, he arranged for it to be opened in the presence of three or four custom staff. The witness initially said in evidence that the box contained biscuits and noodles with two suspicious packages at the bottom but later he corrected that evidence and said that the other contents, apart from the two packages, were packets of peas and noodles. At that stage, the suspicious packages were not opened but all the contents were replaced back in the box, the box was cellotaped up again and then placed in the safe.

Saia was also on duty around noon on Monday 10 February 2003 when Veiongo Malu, the first accused, came to the airport to collect the box. He told the Court that he knew Veiongo and he was aware that she worked for customs in the compliance section at Ma'ufanga. Veiongo was able to correctly tell Saia the name and address on the outside of the box.

Apart from Saia, the Crown called evidence from two other customs officers who had been on duty at the airport that day --Saimone Tukipili ("Saimone") and Feleti Hopoate ("Feleti"). There were some minor discrepancies in their evidence, which I am satisfied can be attributed to the two-year time lapse since the incident but, in general, I found all the customs officers called by the Crown to be truthful and reliable witnesses.

Perhaps, the most comprehensive description of what happened at the airport on that Monday afternoon was the account given later that same day by Veiongo in her statement to the police. The Crown produced her "Record of Interview" as an exhibit and the passage that follows was actually written by the first accused in her own handwriting. It incorporates the gist of the evidence given by the three customs officers and, as it was written contemporaneously, I found it a reasonably accurate account of the events that took place. Veiongo's narrative begins with her and Siaki (the second accused) in Siaki's car en route to the airport:

"On the way to the airport we didn't talk about the parcel and I didn't ask him (Siaki). We talked about drinking last Friday and Saturday. On the way I remembered that the customs van was still in town so I called using Siaki's mobile phone and asked whether any one was at the airport but there was no answer. I told Siaki that no one was at the airport and Siaki said that we would just go and wait there. When we got to the airport Siaki told me that the customs van was already there and I told him to park behind the van.

I got out and went into the customs office. Saia, Feleti and Lo'umanu were there. Saia asked where I was going to and I said I was there to pick up a parcel for some friend. Saia asked what was in the parcel and I told him that it was noodles and peas. Saia turned and picked up a box from behind him and he said "Liutai" and I said "Seini Liutai" and he said "yes". He told me to go and call Lisiate, another customs officer, and I did.

Saimone picked up the box and Saia said to me to go with Saimone to pay the duty. Duty was $2.00 but Saimone asked me what was in the box and I told him it was noodles and peas because that is what I was told.

After the duty was paid and everything was in order Saimone asked me whether I knew that there was marijuana inside the box and I told him: "No, it is peas and noodles." Loamanu and Feleti came in and asked whether the box should be opened and Saimone said "yes." We went into the customs office at the airport and Saia was not there, just myself, Feleti, Saimone and Lo'amanu. Feleti opened the box and Lo'amanu took out its contents. Inside were noodles and peas and underneath that was a piece of cardboard. The cardboard was pulled up and there were two parcels taped with gray tape. Feleti used a knife to open one corner of the parcel and showed the marijuana inside the parcel. Saimone then instructed that everything should be returned into the box and taped up then Saia entered the room.

Saimone told Saia everything while Lo'amanu and Feleti went outside. Saia opened the box and took out everything and took out one of the parcels. Saimone told him that it was already open. Saia turned around and asked me what was in the parcel and I said it was already open and it was marijuana. Saia said to go back and wait outside because he was going to report it to the minister. Saimone and I went and sat on a chair inside the terminal. Saimone said that I should go and ask Saia to release the parcel to me so I can take it while somebody follows and see who the parcel is given to. I went and told Saia what Saimone told me but Saia said to go and wait outside because he was calling Feleti to come to the airport.

I went outside when Lo'amanu was about to have a smoke and I asked him for one smoke and I went outside and Siaki was sitting there. I told him that marijuana was inside the box and I have to wait there while I was being reported to the office. Siaki went and started the car and I got in and we left to come to town."

The Court heard how Veiongo was picked up and arrested later that same day. Veiogno commenced making her lengthy statement (comprising 134 questions and answers) to the police at 1800 hours.

Saimone, the 52-year-old customs office cashier at the airport, recalled in evidence that Veiongo had told him that the box was for her mother's sister who lived at Popua. He said that Veiongo had paid the $2.00 assessed duty and had signed for uplifting the box. When he was outside the terminal building with Veiongo later, Saimone noted the man in the car who she was travelling with and he identified him in Court as Siaki.

Detailed evidence was given by the police witnesses about the handling of the box and, in particular the two packages, between the time that the exhibits were labelled and taken into police custody at the airport on 10 February 2003 up until the time of their production in Court. The Government Analyst, Siale'uvea Finau, gave evidence and produced a report he had prepared following what he said was his examination and testing of samples of the substance found in the two packages. Although a challenge has been made in relation to both these evidentiary matters, there was no challenge to Mr Finau's evidence that marijuana is the Spanish-American name for Indian hemp. The botanical name for marijuana and Indian hemp is cannabis sativa L.

None of the three accused gave evidence. They did not have to, of course, but they all made voluntary statements to the police, which were produced by the Crown. 190 I have already cited a passage from Veiongo Malu's record of interview. Earlier in the interview, 24-year-old Veiongo had been asked by police officer Sione Pahulu who the parcel belonged to and she had replied:

"A man named Sioeli. It came through Siaki because I do not know Sioeli."

Sioeli, of course, is the third accused and Siaki the second accused.

Veiongo was asked about her association with Siaki. She described him as a drinking friend who worked as a security guard at Wandas Bar at the Pacific Royale Hotel. She said that on Friday the 7th of February 2003 he had met her at the One Stop Shop in Nuku'alofa and had said that he had a parcel arriving at the airport on a flight from Fiji that day and he wanted her to pick it up. She agreed and they both left for the airport in Siaki's car. She was asked by officer Pahulu:

"Q. What did you talk about on the way?

A. When we started off, I asked him what was in the parcel and he told me it was peas and noodles and I asked him who the parcel belonged to and he said it was Sioeli's and then he told me the address on the parcel.

Q. What was the address?

A. Seini Liutai, Popua, Tongatapu.

There is another lengthy passage in Veiongo's police record of interview which was also written in her own handwriting. It related to what happened after she and Siaki had arrived at the airport on the Friday. I will come back to that later in this judgment.

In his record of interview, 29-year-old Siaki told the police that he is a married man with two children and he was working as a security guard at the Pacific Royale Hotel. His normal hours of work were 4 p.m. to 12 midnight. He said that he had known Veiongo for about four months.

Siaki, who was interviewed on 11 February 2003, was initially vague and made out that he could not recall his movements on Friday the 7th of February. Later he was more forthcoming and the interview ended up with 145 questions and answers. Siaki said that he knew Sioeli who also worked in security. Sioeli had called him by phone because he had wanted help picking up a parcel at the airport that was arriving from Fiji. Siaki, in turn, had then asked Veiongo to assist him. In his statement to the police, Siaki said that Veiongo knew that there was marijuana inside the box because he had told her. He also said that he had given Veiongo Sioeli's phone number and she and Sioeli had talked to each other about the package. Continuing, Siaki explained that on the afternoon of Monday the 10th of February he had telephoned Sioeli and explained to him that the parcel had been confiscated at the airport and Sioeli had told him not to say anything. The final questions and answers in the police interview with Siaki were:

"Q. Was there any payment given to you or offered to you if the parcel got out?

A. Yes, but he didn't tell me how much. I wanted some money to pay off my debt.

Q. Was it you who arranged with Veiongo to get the parcel out?

A. Yes."

When the police interviewed Sioeli on 12 February 2003, he told how he worked as a security guard for Black Knight Security. He admitted knowing both Veiongo and Siaki from Wandas Bar at the Pacific Royale Hotel. He was able to recite their mobile telephone numbers.

Initially, Sioeli refused to answer any questions relating to the collection of the box in question. Repeatedly he answered the police officer's questions with the comment, "I will only speak in Court." Eventually, however, Sioeli asked if he could speak to the officer in charge of the drug squad and he was given that opportunity. Following on from that meeting, Sioeli spoke freely about the events giving rise to the charge against him. He told the police that the packages belonged to a person called Pila Sanft who he had first met some years previously at a sports meeting in Fiji when Sioeli was representing Tonga in weightlifting and Sanft in archery.

Referring to the events leading up to his arrest, Sioeli explained in his unsworn statement how Pila Sanft had recently stopped off in Fiji for approximately a week after attending an archery competition in New Zealand. His statement continued:

"Pila said that he tried to bring the parcel on Monday 3 February 2003 from Nadi but he found out that parcels were being opened at the airport so he flew to Suva and put the parcel with the passengers thinking a customs girl will pick it up.

Q. When did Pila find out that a girl at customs was to pick up the parcel?

A. When I talked with Veiongo about the parcel Pila asked me about her and asked whether he could speak with her. They talked and Pila told Veiongo that his name was Tevita.

Q. When did you arrange with Veiongo?

A. I asked Siaki and he suggested Veiongo because she worked at customs.

Q. Have you used Veiongo before to pick up parcels?

A. No, this is the first time.

Q. What did Veiongo say?

A. She said it would be easy for her; to tell her the time of the flight and whether the pickup would be at the airport or Post Office.

Q. Did you know about the deal between Pila and Veiongo on the phone?

A. Yes, Pila asked her of their work whether it would be easy to get the parcel plus $300 to be given to Veiongo for her work. Pila also said that the bonus would be double and a lot of money has been given to Veiongo.

Q. Do you know how much has been given to Veiongo?

A. $350 to $400.

Q. Where from?

A. Pila Sanft.

Q. How was the money given to her?

A. I gave it to her."

Sioeli then explained in detail how the money had been paid across. He was asked by the police officer about Siaki's reward:

Q. Was Siaki given any money?

A. Not yet.

Q. What was the arrangement with Siaki about his pay?

A. I told Siaki I'd give him some stuff.

Q. What do you mean?

A. Siaki smokes and I thought if we get the parcel I'd give 290 Siaki some.

Sioeli explained later in his interview that the "stuff" he referred to was marijuana and he confirmed that he had told both Siaki and Veiongo that the packages contained marijuana.

The Court was told that originally Pila Sanft had also been charged along with the three accused but that at the Preliminary Inquiry the Magistrate had discharged him.

As with any criminal case, the Crown has the onus of proving all the essential elements of each offence beyond reasonable doubt. The accused, as was their right, did not give or call evidence.

To establish the charge of importing against the first accused, the Crown must prove:

First, that (relevantly to this case) Indian hemp was imported into Tonga. The term "imported" is to be given its ordinary meaning of introducing or bringing into the country something from abroad, or causing or arranging for something to be brought in from abroad.

Secondly, that the person who imported the Indian hemp was the first accused, Veiongo. Thirdly, that the first accused knew that what was being imported was Indian hemp and she intended that it should be brought into the country.

Mr Tu'utafaiva filed comprehensive written submissions raising a variety of issues and Crown counsel has responded. Rather surprisingly, however, neither counsel made reference to any relevant reported legal decisions.

The principal submission advanced on behalf of the first accused Veiongo is that she cannot be found guilty of importing the Indian hemp because her actions at the airport in claiming and clearing the box through customs occurred after the act of importation had been completed.

Did the First Accused "Import" the Indian Hemp?

The term "import" is not defined in the Drugs and Poisons Act (Cap 79) but Mr Tu'utafaiva referred the Court to a section in the (UK) Customs and Excise Management Act 1979 which deems the time of importation when goods are brought into the country by air to be when the aircraft carrying them lands in the United Kingdom or when the goods are unloaded, whichever is the earlier. Defence counsel invited the Court to adopt that same meaning in the present case. Mr Tu'utafaiva also made submissions in relation to the definition of an "importer" in section 2 of the Customs and Excise Act (Cap 67).

In response, Crown counsel also referred to definitions in section 2 of the Customs and Excise Act but he submitted that importation is "a continuous process" and the act of importation was not complete until, in this case, the box had been delivered out of the charge of the customs officers at the airport.

Issues similar to those raised above were considered some years back by the New Zealand Court of Appeal in two reported decisions which have relevance to the facts of the present case --Saxton v Police [1981] 2 NZLR 186 and R v Hancox [1989] NZCA 160; [1989] 3 NZLR 60.

As with the Tongan drug legislation there was no specific definition of the term "import" in the (NZ) Misuse of Drugs Act 1975 but in the Hancox case the Court of Appeal cautioned against seeking guidance in drug prosecutions from definitions contained in customs legislation. The definition of "importation" in the (NZ) Customs Act was not dissimilar to the deeming provision Mr Tu'utafaiva referred to in the (UK) Customs and Excise Management Act. It read:

"For the purposes of this Act, goods shall, except where otherwise expressly provided, be deemed to be imported into New Zealand if and so soon as in any manner whatever, whether lawfully or unlawfully, they are brought or come within the territorial limits of New Zealand from any country outside those limits."

The Court of Appeal (p 62) said:

"As the opening words emphasise, that definition applies only for the purposes of the Customs Act. While there are other statutory objectives, the Act is particularly concerned with the levying of duty and understandably fixes on the earliest time at which importation for that purpose could properly be considered to have occurred. The particular concern of the Misuse of Drugs legislation is quite different. The purpose of the legislation is to prevent the illicit use of drugs in New Zealand so far as that objective can be achieved through the criminal law. It is for that reason that the importation of drugs, which increases the availability of drugs within the country, is prohibited."

I need to say something, albeit briefly, about the facts of the two New Zealand cases. In the Saxton case the accused had posted a parcel containing hashish from England to a named person at a New Zealand address. The parcel was intercepted by customs officers in New Zealand and never reached the addressee. When the accused returned to New Zealand some two months later he was apprehended and charged with importing a controlled drug.

In the District Court the judge dismissed the charge on the ground that the ordinary meaning of the word "import" was to "bring into the country" and the action of the accused had not constituted an importation of the drug.

The Court of Appeal noted that the standard dictionary definition of "import" extended to include "to introduce from abroad" and it held that the actions of the accused in posting the parcel to New Zealand from England amounted to introducing it from abroad or causing it to be brought into the country from abroad and that, in turn, amounted to an act of importing. The accused was, accordingly, convicted.

The facts of the Hancox case are more relevant to those of the case before me. Customs officers located a parcel containing illicit drugs in a post office box at Auckland. They took and retained possession of that parcel.

Three days later they found a second parcel containing the same drugs and, after taking a quantity of the contents, they returned the parcel to the post office box. A few days later the accused was apprehended when she opened the post office box and removed the parcel. She disclaimed any knowledge of the contents and said that she had simply been asked to clear the box by the boxholder and deliver the contents to him.

The accused was charged with importing the drugs into New Zealand. The trial Judge ruled that the act of the accused in uplifting the parcel from the post office box occurred at a time when the process of importation had not been completed. The jury duly found the accused guilty on the importation charge. The crucial question on appeal was when did the act of importation end.

Richardson J, delivering the judgment of the Court, said (p 62):

""To import" involves active conduct; and the bringing of goods into the country or causing them to be brought into the country does not cease as the aircraft or vessel enters New Zealand territorial limits. Importing into New Zealand . . . . is a process. It does not begin and end at a split-second of time. The element of importing exists from the time the goods enter New Zealand until they reach their immediate destination. It follows that the importer may be convicted even though the goods are intercepted by customs and never reach the addressee --or are otherwise disposed of in transit. But the process does not end so long as the goods remain in transit, that is until any shipping and customs formalities are completed and the consignment is available to the consignee at its immediate destination . . . . The goods have reached their immediate destination when they have ceased to be under the control of the appropriate authorities and have become available to the consignee or addressee. Any involvement on the part of the importer or anyone involved as a party up to that point would properly be viewed as facilitating the importation of the goods into New Zealand."

(emphasis added)

The Court concluded, on the facts of the case before it, that the cut-off point or final step in the transit process was when the goods were delivered into the post office box and, hence, made available to the consignee or addressee. The appeal was, therefore, allowed and the conviction on the importing charge was quashed.

This same approach was applied more recently in George v R (16 May 1996), CA 550/95. The completion of the importation process is a matter of mechanics – the passage of the drug – and is not determined by the planned method of transfer from courier to consignee: see R v Atias (No 2) (26 September 2003) High Court Auckland T025837, Harrison J. The accused's behaviour after completion of the importation may support an inference that he or she was involved in bringing about the importation: R v Wickremasinghe (21 August 2003, CA 137/03).

I find the reasoning of the New Zealand Courts in these cases compelling and I do not see why the same principles should not also apply in Tonga.

In the present case, at the time when Veiongo claimed the box and proceeded to clear it through customs the cut-off point had not been reached. The goods were then still under the control of the customs authorities and Veiongo's involvement, therefore, can properly be viewed as facilitating the importation of the goods into Tonga.

Mr Tu'utafaiva made a number of other submissions. In fact, he challenged virtually all of the evidence the Crown sought to rely upon in support of its case. I do not propose to traverse in this judgment all the relevant material counsel relies upon but he can rest assured that I have given full and careful consideration to all of the points raised in his submissions. I will now endeavour to deal with those other matters seriatim.

Mr Tu'utafaiva said that the three accused did not concede that the box and the Indian hemp came from Fiji on 7 February 2003. Be that as it may, I have no difficulty in concluding on the facts that the box did arrive in Tonga on the Pacific Link flight from Fiji on 7 February 2003 as alleged by the Crown.

Defence counsel also challenged the expertise of the Government Analyst, Siale'uvea Finau, who examined samples of the suspected material and gave evidence as to his findings. In the alternative, counsel submitted that the Crown had failed to prove that the plant material analysed was taken from the same plant materials found in the box at the airport.

I do not accept either submission. Mr Finau is a medical laboratory technician who has been employed in the laboratory services section at Viola Hospital since 1993. He holds a diploma in Medical Laboratory Technology (DMLT) from the Fiji School of Medicine. I was completely satisfied as to Mr Finau's expertise and in the meticulous presentation of his evidence. I have no hesitation in accepting the results stated in his written report of 11 March 2003 and confirmed in his oral evidence that the tested substance was marijuana or Indian hemp.

In relation to the samples analysed, Mr Tu'utafaiva submitted that there was evidence suggesting that the box and its contents had been tampered with. I do not accept that contention. There were some minor discrepancies in the Crown's evidence in connection with the chain of causation but I found them quite inconsequential and there was no evidence that there had in fact been any tampering or interference with the exhibits. I have no doubt at all that the samples analysed by Mr Finau which proved positive for marijuana were taken from the substance found in the packages in question.

Finally, Mr Tu'utafaiva submitted that the Crown had failed to prove that the first accused knew or ought reasonably to have known that the two packages contained Indian hemp. In this regard, defence counsel quite correctly pointed out that the statements made to the police by the two co-accused touching upon this aspect of the case must be totally disregarded when considering the evidence against the first accused. The same principle applies, of course, in relation to the unsworn statement of each of the three accused. Such a statement can be evidence against its maker but not against one of the maker's co-accused.

Mr Tu'utafaiva stressed that in her own statement to the police, Veiongo had said nothing other than that she believed the box contained peas and noodles. Crown counsel accepted that proposition but he submitted that there was strong circumstantial evidence to show that Veiongo knew that the packages contained Indian hemp. In this regard, the prosecutor referred to Veiongo's evidence about her movements on Friday the 7th of February. In her statement she told the police that she had been on office business at the One Stop Shop and Siaki had tracked her down and asked her to go with him to the airport to pick up a parcel, which was arriving on a flight from Fiji. She had agreed and she knocked off work and went with Siaki. When they could not locate the parcel at the airport they drove back into town and Siaki met Sioeli under a mango tree at a certain rugby field. Veiongo then went on in her statement to the police to describe how she had gone with Siaki and made inquiries at Teta Tours, Air Pacific and the Post Office as to the whereabouts of the parcel. She said that when she had come out of the Air Pacific office Siaki had a taxi waiting for her and she actually took the taxi from Teta Tours to the Post Office and then back to her work. She was asked by the police officer who, had paid for the taxi and she had replied, "he didn't ask for any fare so I got out."

Mr Sisifa asked rhetorically why would Veiongo have taken significant time off work on the Friday and again on the Monday to do all this running around in search of a box containing peas and noodles. It is a fair question. Mr Sisifa also referred to the difficulty the police had in locating Veiongo on the Monday afternoon and evidence was given by one of her workmates of a ruse that she had used to trap the accused into giving herself up to the police. If Veiongo was so convinced that the box contained only peas and noodles why, asked the prosecutor, did she make the sudden departure from the airport once the contents of the two packages were discovered.

The Court is entitled, of course, to draw reasonable inferences from proven or admitted facts. The inferences Crown counsel invites the Court to draw from the facts he has highlighted are irresistible. The Court functions in the real world, not in some naive, surreal cloister.

I have no doubt that the first accused was fully aware that the box contained a supply of marijuana and that she intended that the drug should be brought into the Kingdom. For all the foregoing reasons, she is convicted on the importing charge.

The "Possession" Charge against the First Accused

The first accused is also charged with possession of Indian hemp. To have possession of something requires the person to have physical custody or control over it plus the required knowledge of its presence.

Whilst I am satisfied that Veiongo knew that the box contained marijuana, I am not so satisfied that she physically had the substance in her custody or control at any stage. On my understanding of the facts, apart from allowing Veiongo to clear the box through customs, the officers were at pains not to allow her to have physical custody or control of the box or its contents. The first accused is, accordingly, acquitted on the possession charge.

Charges Against the Second and Third Accused

The second and third accused are charged with abetment of importing Indian hemp. As the Court stated in R v Makahununiu [2001] Tonga LR 127:

"An abettor is a person who was present (presence in this context may be either actual or constructive) at the time when a crime is committed by another person who intentionally aids or gives encouragement to the offender in the commission of the crime. The mere passive presence of the accused at the scene of the crime is not sufficient to make him an abettor. It must be shown that there was also some intentional aid or encouragement of the principal offender in the commission of the crime."

The Crown's case against Siaki is based upon his own admissions to the police and the evidence of the customs officer who saw him accompanying Veiongo at the airport. It has long been established that an admission made by an accused in an unsworn statement to the police may in itself be sufficient evidence to justify a conviction. In this regard I do not overlook the caveat Hampton CJ spoke about in R v Fa'aoso [1996] Tonga LR 36 when he said:

"Where effectively, the only evidence is of something the accused has said, that something must be convincingly proved and in itself must be cogent and satisfying evidence."

I am satisfied as to the reliability of the confessions obtained by the police from both the second and third accused. After the initial skirmishing, both records of interview, in the end, had the ring of truth about them. Mr Tu'utafaiva sensibly seemed to accept that the charge against the second and third accused stood or fell together with the importing charge against the first accused.

The Crown has proved beyond reasonable doubt all the essential elements necessary to establish the charge against the second and third accused and they, along with the first accused, are convicted accordingly.