Rex v Liou [2001] TOSC 14; CR 817, 796, 806 1999 (27 April 2001)

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

CR.NO. 817/99 and
CR.NO. 796, 806/99

REX

-v-

1. LYNATH LIOU
2. SALOTE SIKALU
3. MESAKE 'ASI

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Miss Sela Tupou for prosecution and
Mr S. Tu'utafaiva for first and second accused
Mr M. Kaufusi for third accused.

Hearing: 15 March, 11 April 2001
Judgment: 27 April 2001.

JUDGMENT

The three accused are charged with two counts of conspiracy with each other and with Semisi Funaki to set fire to property of one Kevin Li in July and August 1998; in the first count to burn his shop, known as Everlife Store, and in the second to burn his home. The co-conspirator, Funaki, has already pleaded guilty, been sentenced and has given evidence for the Crown. It appears he was also to be tried at the same time for another arson but, having pleaded guilty to this conspiracy, the other charge was not proceeded with.

Liou and Kevin Li are both from Taiwan and were good friends. They were both involved in business in Tonga but had eventually fallen out. Liou considered he had been cheated by Li and harboured bitter feelings towards him. Sikalu was the girlfriend of Liou and assisted him in his business activities. She had also worked for Li and was equally upset by Li's treatment of Liou. It has not been suggested, in relation to the conspiracy, that Liou and Sikalu are husband and wife.

The prosecution case is that, on a Friday towards the end of July 1998, Funaki, the accused 'Asi and two others Saulala Filo and Tevita Motulalo went to a store run by the first two accused opposite the Faua wharf. As they were standing at the counter, Liou and Sikalu asked them if they would burn down another Chinaman's store. A sum of money was offered and, when the young men said they would do it, Liou gave them two loaves, some butter and tins of fish. Whilst the four young men were eating it a little way from the shop, Sikalu called Funaki back and arranged that they should return on the Sunday so, she said, Liou could show him the buildings involved. On that day, only Funaki appeared and was taken in a car by Liou to the house of Kevin Li in Halalevu and his shop in Mailetaha. He pointed out each to Funaki and they then returned to the store at Faua. After the trip, Liou gave Funaki a small plastic torch. Funaki understood it was to assist him with the arson.

In the event, Funaki did not take the matter any further because he was told the police were aware of the plot. He told the court he would have done it notwithstanding if he had already received the money but he had not been paid at that time. That was the total involvement of Funaki. However the prosecution case is that Liou and Sikalu had not given up and, two or three weeks later, 'Asi met Sikalu by chance in Tungi Arcade and offered to do the job alone. Sikalu agreed and they arranged to meet later.

'Asi then told a friend of his, Pili Jennings, that he had a job for them that would give them good money. He went with Jennings in the latter's vehicle to the waterfront and stopped by a car containing Liou and Sikalu. 'Asi went to speak to them and Liou gave Sikalu some money which she then passed to 'Asi. He then drove with Jennings to the latter's house to collect a benzine container and went to a filling station where 'Asi paid for $11.00 worth of petrol.

After that, Jennings found out for the first time the exact nature of the job and told 'Asi he would not be part of it. He suggested 'Asi should, instead, think of telling the police and, the next day 'Asi, having reflected overnight, did so. As a result, the other accused were interviewed.

In those interviews, 'Asi and Sikalu admitted the agreement but Liou denied all knowledge of any conspiracy or of any of the events leading up to it.

None of the accused gave evidence or called witnesses.

The burden throughout is on the prosecution to prove the case against each accused beyond reasonable doubt. I remind myself that the witness Funaki is a conspirator and his evidence can only be considered if I am satisfied he is credible and his evidence is corroborated. There is clearly ample corroboration of his evidence against all the accused in the evidence of the Filo and Motulalo, against Sikalu also in her answers to the police and against 'Asi also in his answers to the police and in the evidence of Jennings.

I am satisfied that the prosecution witnesses including Funaki were truthful. There were inconsistencies in their accounts of the incident by the store at the first meeting but I am satisfied that Sikalu did ask the young men to set fire to another person's premises. A price was discussed and the men went away to eat the food supplied. I am satisfied that, at that time, they had different intentions about the suggestion. Filo and Motulalo were inclined to try and get the money and then to run away. They had not agreed to the burning of the premises and were not conspirators. There is no further evidence at that time that 'Asi had agreed to join it. Funaki, however, was called back by Sikalu and the arrangement was discussed further. He, I am satisfied, had joined the conspiracy at that time and his return on the Sunday and the drive with Liou were all part of the preparations for the arson.

I am satisfied beyond doubt that Sikalu had agreed with him and was a part of the conspiracy at that time. Her subsequent meeting with 'Asi and the agreement to continue with the plan are clear evidence of her continued intention to further the agreed purpose.

Liou does not speak Tongan and his English is apparently not very good. Sikalu communicates with him in English and he relies on her to communicate with many Tongan people. At the first meeting at the shop, Funaki's discussions were all with Sikalu and were in Tongan. Liou would not have been able to understand those unless they were explained to him. Funaki does not speak English but he described how Sikalu spoke to Liou immediately before the price was suggested and just before he gave them the food. When he drove with Liou and the properties in Halalevu and Mailetaha were pointed out, nothing was spoken between them. There is no evidence of what was said by Sikalu to him and, as they stand, there is not sufficient evidence he knew of the suggestions in the agreement. Even his actions during the drive with Funaki could have an innocent explanation.

Motulalo, however, did speak English and his evidence was that Liou asked them in English if they would burn the Everlife store. He did not refer to any other property but he said he would pay if they did the job. I accept that evidence was true and accurate. Viewed with that, the passing of the food and the drive with Funaki are clearly further evidence of his involvement in the agreement.

I am also satisfied beyond any doubt that the account given by Jennings was true. He was not an accomplice. Although he was assisting the accused 'Asi by driving him around and collecting the petrol, I am satisfied he had no idea at that time that the job referred to by his friend was criminal. He did once refer to the chance they would go to goal but I accept his explanation that it was said it as a joke. Even if he had been an accomplice his evidence is corroborated against 'Asi and Sikalu by the answers each gave to the police.

I have no doubt that, when Sikalu and 'Asi met at the Tungi Arcade, they agreed to continue with the planned arson. There is no doubt in my mind that the meeting when 'Asi spoke to Sikalu and Liou in their car was part of the arrangement and the money handed over by Liou was for the purpose of buying petrol. I am satisfied that Liou knew why they were there and the purpose of the money he was handing over.

I am satisfied beyond any doubt that the three accused did agree together to act with the common purpose of setting fire to Kevin Li's property. The subsequent offer by 'Asi when he met Sikalu to do the job alone satisfies me that he knew he was joining the existing conspiracy started at the store at Faua. His statement to the police shows he was aware of the original suggestion of burning both propertied.

The accused are charged with separate conspiracies in relation to the house and the store. This was clearly a single conspiracy to burn both and should have been charged as a single count. However, I am satisfied beyond any doubt that each of the accused and Funaki were parties to the same conspiracy to set fire to both properties and they are each convicted on both counts.

NUKU'ALOFA: 27^th April, 2001.

CHIEF JUSTICE