Rex v Pongi [2000] TOSC 28; CR 813 1999 (3 August 2000)

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

NO.CR.813/99

REX

-v-

LILIFA PONGI

BEFORE THE HON. MR JUSTICE FORD

Counsel: Mr 'A. Kefu for the Crown
Mr S. 'Etika for the Accused

Date of hearing: 31 July 2000.
Date of judgment: 3 August 2000.

JUDGMENT

The accused is an Acting Supervisor in the printing section of the Government Printing Department. In June 1999, the Printing Department, on instructions from the Tonga Rugby Union, printed the admission tickets to the "EPSON CUP" game between Fiji and Tonga scheduled to be played on Saturday 26 June 1999. The accused is charged with fraudulent conversion as a Government Servant, and with theft, of a number of admission tickets to the game. He denied the charges and elected trial by judge alone.

The material facts are that on Monday 21 June 1999 the accused arrived at the Printing Department to work the evening shift in the printing section from 4:20 pm to 11:20 pm. The day shift had already printed the ticket order for the Tongan Rugby Union and the only job the accused was required to carry out in relation to the tickets was to make a note of the time when the tickets were passed on to the bindery section.

The tickets were duly collected by someone from the bindery section and collated in bundles of 50 for collection by the Tongan Rugby Union. The accused was unable to recall how many tickets the Rugby Union had ordered but, in all events, it transpired that there was a surplus of tickets. During the course of the evening the Rugby Union collected it's order of tickets from the bindery section and the surplus tickets were left sitting on a table. In the normal course of events, a Supervisor would have asked someone to destroy the surplus ticket but, on this occasion, before that happened, the accused uplifted the surplus tickets, numbered them and took them home. There were over 40 tickets in the bundle the accused took from the Printing office.

There is no dispute over any of those matters. The accused made a statement to the police and gave evidence in his own defence. He said that the purpose of taking the tickets was to give them out to his kava drinking friends and other people including children.

The Crown called 'Isileli Viau who is a life long acquaintance of the accused. Mr Viau said that he had been drinking kava with the accused on the Thursday before the rugby match and he asked the accused whether the Rugby Union gave out complimentary tickets to Printing Department staff. Mr Viau said that in response to this question, the accused gave him a ticket to the game but he (Mr Viau) did not turn up to the match because the next day, which was the day before the match was due to be played, he heard an announcement over the Radio that only tickets containing the seal of the Tongan Rugby Union would be recognized as genuine tickets. There was no seal on the ticket that he had received from the accused. Mr Viau said that he did not pay the accused any money or give him any gifts in exchange for the ticket.

The Crown then called Constable Sila who was the Police Officer who carried out the investigation into the case. He produced the handwritten notes of his interview with the accused and a document referred to in the course of the hearing as a "Confession". The interview notes consisted of some 39 questions and answers. Constable Sila noted that the accused had written the answers in his own handwriting. The accused said in his statement that he took about 10 red tickets and 10 blue tickets for grandstand seating and 26 yellow tickets for other parts of the field. He was asked whether he received any money from the tickets and he said that his wife had received $22.00 from selling 2 tickets for $5.00 each and another two tickets for $6.00 each. In his evidence, the accused said that he did not give the tickets to his wife but she had taken them from the pocket of his shirt and she had sold them even though he had told his wife that the tickets were not to be sold. He said that he was not aware that his wife had received $22.00 for the tickets until the constable came to take him to the police station and it was the constable who mentioned that $22.00 had been paid for the tickets. That proposition was not put to the police constable, but, in any event, I do not accept that part of the accused's evidence. I find that the accused was aware from the outset that his wife had received the $22.00 for the tickets.

The accused is charged first with fraudulent conversion by a Government Servant contrary to section 53 of the Criminal Offences Act (Cap 18). The particulars of this count (which were amended by consent at the start of the hearing) read as follows:

"Lilifa Pongi of Tofoa, on or about the days between 21 June 1999 and 26 June 1999, while employed as a printer with the Government Printing Department you did convert to your own use admission tickets to the International Rugby Game between Tonga and Fiji which you were entrusted to print by virtue of your employment as a Government printer."

In relation to this first charge Mr 'Etika concentrated his submission on what the Crown prosecutor had described as the 5^th element needed to be proved to establish a charge under section 53, namely, that at the material time the accused was entrusted with the ticket by virtue of his employment as a government servant. Mr 'Etika submitted that at the time the surplus tickets were taken, the tickets had left the printing section where the accused worked and had been taken through to the bindery section. Mr 'Etika submitted that the Crown had not proved that the accused had breached the duty entrusted in him to print the tickets because the tickets had, in fact, being printed during the day shift. The thrust of Mr 'Etika's submission, in other words, in relation to section 53 was that at the time the accused took the tickets, they were not in his trust in the printing section of the Government Printing Department where he worked but in the bindery section.

Mr Kefu in response said that even though the tickets may have physically been in the bindery section of the Government Printing Department, the evidence is that the accused was still entrusted with those tickets in that he was employed by the Government Printing Department and in that capacity he had access to them. As Mr Kefu put it, "he was still involved in the process". Mr Kefu said that the narrow interpretation of the section argued for by the defence was inconsistent with the object of the section which obviously was intended to prevent public servants working in Government Departments from breaching the trust that had been based in them by the government and the public.

I think that Mr Kefu's submissions are entirely correct. The accused had access to the tickets by virtue of his employment as a Government servant in the Government Printing Department and in taking the tickets as he did he abused the trust that had been placed in him.

There is no serious challenge to any of the other elements needed to be proved to establish a charge under section 53. The accused had acknowledged in his confession and under cross examination that what he did had been wrong and illegal.

I find the accused guilty on count 1.

Count 2 is a charge of theft contrary to Sec.143 and 145 of the Criminal Offences Act (CAP 18). The particulars in the indictment in relation to count 2 read as follow:

"Lilifa Pongi of Tofoa, on or about the days between 21 June 1999 and 26 June 1999, you did dishonestly take without colour of right a number of admission tickets to the International Rugby Union game between Tonga and Fiji valued at $400.00, with intent to deprive the Tonga Rugby Union Committee permanently of those admission tickets and with the intention of converting the admission tickets for the use of yourself and others without the consent of the Tonga Rugby Union Committee."

Mr. 'Etika's principle submission in relation to the charge of Theft was essentially that a distinction had to be drawn between the tickets which the Tongan Rugby Union had uplifted from the Government Printing Department and the surplus tickets which the accused had taken. He submitted that the surplus tickets were no longer the property of the Tongan Rugby Union but they were the property of the Government Printing Department and they were awaiting destruction by someone in the department. They, therefore cannot be regarded as having being stolen from the Rugby Union.

Mr. 'Etika drew attention to the evidence which showed that the tickets uplifted by the Tongan Rugby Union had then had the Union's seal stamped on them and he submitted that as the surplus tickets which Mr. 'Etika uplifted did not have the Rugby Union's seal stamped on them, it could not be said that they belonged to the Union. He went on to submit that the only way the Crown could make out the charge was to prove that the Tongan Rugby Union had received a short fall in the number of tickets it had ordered or that the accused had printed further tickets in addition to the number ordered by the Rugby Union. He submitted that the Crown's case failed on both these points and that as the tickets taken by the accused were surplus to the Rugby Union's order they did not belong to the Rugby Union as alleged in the indictment.

In answer to these submissions, Crown counsel said that even though the surplus tickets had not been stamped with the Rugby Union's seal they were still the property of the Tongan Rugby Union because the Rugby Union had placed the printing order.

Mr. Kefu said that the tickets state on their face that they are the Tongan Rugby Union Committee's tickets and regardless of whether the Rugby Union had uplifted them from the Printing Department or not they were still the property of Tongan Rugby Union.

I am not prepared to accept that submission from the Crown. It may well be correct. It is equally likely, however, on the evidence, that surplus tickets were the property of the Rugby Union as Mr 'Etika submitted.

The evidence as to ownership was insufficient to satisfy me that at the material of time the surplus tickets were the property of the Tongan Rugby Union as alleged in the indictment and I am not prepared to speculate.

Archbold in 'Criminal Pleading, Evidence and Practice' (1993) 1-128) states:

"Where it is common knowledge that the property named in an indictment belongs to some person or institution (e.g. in the case of an outstanding work of art), it may be unnecessary to particularize the ownership of the property; but where the property is of a common or undistinctive type, for the sake of clarity, and in order that the defendant may know exactly with what he is charged, the name of the owner should be stated in the particulars of offence ..."

Archbold goes on to refer to R -v- Gregory, 56 Cr. App. R.441 where the Prosecution charged the accused with handling stolen goods and the name of the owner of the property was alleged in the particulars in the indictment. The particular of ownership was wholly unsupported by the evidence and the trial judge directed at the close of the evidence that the words "the property of X" should be struck out as the words were in any event surplusage. On appeal, it was held that the trial judge's direction was wrong. The words, in the circumstances, were not surplusage and to allow an amendment at so late a stage was to run the risk of an injustice being done. The conviction was quashed.

While the decision in that case might appear to provide support for Mr. 'Etika's principle submission that the Crown has not established that the surplus tickets were the property of the Tonga Rugby Union, I consider that the decision in R –v- Gregory very much depends on the particular facts of that case. There the evidence at trial established that the property in question, a starter motor could not have been stolen from the particular individual named in the indictment particulars as the owner because the starter motor, produced in court had not been manufactured at the time the named owner's starter motor was stolen.

I think the present case is much more akin to R –v- Deakin (1972) 3 All E.R.803, 806. In that case the stolen goods were described in the indictment particulars as the property of the British Railways Board but the evidence was insufficient to establish the charge that the goods were indeed the property of the British Railways. Phillamore LJ delivering the judgment of the Court of Appeal said:

"In the course of his able argument before us counsel for the appellant has submitted a number of points. First, he says that the recorder should have found there was no case to answer as there was insufficient evidence to support the charge that the goods were the property of British Railways. That in effect is dealt with by the observations which I have just made, but if indeed it could be said that that was wrong, this court thinks that the words in the count attributing ownership of the goods to British Railways did not in the circumstances of this case constitute a material averment and there was overwhelming evidence that the appellant knew the goods were stolen."

Likewise, in the present case, the evidence is overwhelming that the accused knew that, whether the surplus tickets were owned by the Tongan Rugby Union or the Government Printing Department, he had no colour of right to them whatsoever. In the circumstances, it seems to me to be immaterial whether the surplus tickets were owned by the Rugby Union or the Printing Department.

For these reasons, I find the Crown has established to my satisfaction beyond reasonable doubt that the accused is also guilty of the second count in the indictment.

DATED: 3 August 2000.

JUDGE