Rex v Fahina [2003] TOSC 24; CR 267 2001 (9 May 2003)

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

NO. CR. 267/01

REX

-V-

MULI FAHINA

BEFORE THE HON. JUSTICE FORD

Counsel: Mr Sisifa for the Crown and
Mr Veikoso for the accused.

Dates of hearing: 8, 9 May 2002.
Date of judgment: 9 May 2002.

ORAL JUDGMENT

As this has been a very short case, I will now deliver an immediate judgment.

The accused is charged with five counts: one of robbery, two of causing bodily harm, one of assault and one of trespass. It is alleged by the Crown that the offences were carried out on the evening of Tuesday 12 June 2001 at a Chinese store on Taufa'ahau road in Ha'ateiho. The complainants, the operators of the store, were said to be a middle-aged Chinese couple, Ji Chang Huang and Xiu Ying Qi. They did not give evidence. The court was told that they have returned to China. Before the court, they were referred to simply as the "Chinese man" and the "Chinese woman" and, for ease of reference, I will use the same terminology.

The only eyewitness called by the Crown was 18-year-old Ikamanu Tangimana. He had gone to the Chinese store between 7 p.m. and 8 p.m. with a friend Sakeasi to purchase some food. One of the items they were after was curry and as the Chinese store did not have any in stock, Sakeasi went off to another store to buy some curry while Ikamanu waited for him to return. The store fronts directly onto the road and it has a metal security grill along the front counter. After being served by the Chinese woman, Ikamanu stood waiting in front of the Chinese store for his friend's return.

While he was standing waiting, Ikamanu, at one stage, noticed the Chinese man behind the shop counter and then he turned away. A little later, Ikamanu heard a noise at the back of the shop. He ignored it because he thought that it was the Chinese couple having an argument. When he turned around again, however, what he saw was something quite different. A man, who he identified as the accused, had entered the store and he had one arm around the throat of the Chinese man and he was dragging him backwards through the shop out the back door-way. The Chinese woman had picked up a piece of timber and she was trying to hit the accused with it but she missed and she struck a heavy blow on the forearm of the Chinese man.

The witness watched as they disappeared through the back door of the shop into the darkness. Less than a minute later, the Chinese man returned through the back door and turned on the outside light at the rear of the shop. Through the open door Ikamanu was able to see the Chinese woman, who was then lying on the ground by the back door with blood on her face. Ikamanu did not see what happened to the accused after the incident but he told the court that a neighbour called the police and when they arrived on the scene a relatively short time later, the accused reappeared and joined the onlookers. Ikamanu noticed that he had blood across the chest of his white T-shirt.

A woman among the onlookers asked Ikamanu, "who did it?" and he told her that it was the accused. She apparently then passed that information onto the police. In cross-examination, Mr Veikoso asked Ikamanu why he had not tried to intervene and stop the attack. The witness said that he had not thought of it, but it is fair to record that he would have been only 16 years of age at the time.

As in any criminal case, the onus is on the Crown to prove all the elements of each charge beyond reasonable doubt. The accused, as is his right, did not give or call evidence but he did make an unsworn statement to the police which the Crown now relies on. In that statement dated 13 June 2001, the accused, who was 25 years old at the time, said that he was unmarried and he lived on his own. His father resided in the USA and his mother lives in New Zealand. He said that he survives on money remitted to him by his sister in New Zealand.

It appears from his statement that the accused spent most of the day in question sitting on the side of Taufa'ahau road opposite the Chinese store. He said that he had been smoking marijuana and in the evening he decided to enter the Chinese store to get some food. He was able to the slide under the main gate into the premises. He then went inside and punched the Chinese man on the back of the head and he fell to the ground. While he was then trying to drag the man out the back of the shop so he could take his wallet, the Chinese woman appeared with a piece of timber and tried to hit him with it but she missed. The accused said that she followed them outside and he punched her on the face and she fell down.

The Crown called Dr 'Amanaki Fakakovikaetau who carried out an examination of the Chinese woman at Vaiola hospital that same night. Mr Veikoso objected to that evidence as being hearsay but the doctor was describing to the court what he had observed on examination and I am satisfied that the woman he was examining was the same Chinese woman the eyewitness and the accused, in his statement to the police, had been referring to. The doctor expressed the opinion that the woman had been punched on the face at least three times -- on the left forehead, the left eye and the left upper lip. He described the nature of the injuries as being serious but not life-threatening. There was no evidence given about any injury to the Chinese man.

Against the background, I now proceed to give my verdict on the five specific charges faced by the accused. In doing so, I observe that I found the eyewitness, Ikamanu Tangimana, to be a credible witness. In most respects, his evidence was corroborated by what the accused had said in his statements to the police but his evidence did not relate to all of the charges.

The first count is robbery, contrary to section 154 of the Criminal Offences Act (CAP. 18). In the absence of the complainants, the only evidence in relation to the alleged robbery was that contained in the accused's statement to the police. I found it unreliable and the charge has not been proven to my satisfaction. The accused is, therefore, acquitted on Count 1.

The second count is bodily harm to the Chinese man contrary to section 107(1) of the Criminal Offences Act. I am not satisfied on the evidence that this charge has been made out and the accused is also acquitted, therefore, on Count 2.

The third count is bodily harm to the Chinese woman. The evidence of the eyewitness and the doctor coupled with the accused's own admissions to the police satisfy me beyond reasonable doubt that all the elements of this charge have been made out and the accused is convicted accordingly on Count 3.

The fourth Count is one of assault on the Chinese man contrary to section 112 (a) of the Criminal Offences Act. Again, I am satisfied on the evidence, coupled with the admissions contained in the accused's statement to the police, that this charge has been established to the required standard of proof and he is convicted accordingly.

The final Count is trespass contrary to section 188 of the Criminal Offences Act. As I indicated to Crown counsel during his submissions, section 188 provides that the prosecution for trespass under that section can only be pursued by the owner or occupier of the premises in question. The section does not appear to envisage a prosecution by the Crown. I am not satisfied, therefore, that the procedural requirements of the section have been complied with and the accused is, therefore, acquitted on count five.

In summary, the accused is convicted on Counts 3 and 4 and acquitted on Counts 1, 2 and 5.

NUKU'ALOFA: 9 MAY 2003.

JUDGE