Rex v Fatani [2003] TOSC 39; CR 251 2001 (16 September 2003)

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

NO. CR. 251/2001

BETWEEN:

REX
Prosecution

AND:

‘ISILELI FATANI
Accused

BEFORE THE HON CHIEF JUSTICE WARD

COUNSEL: Ms Simiki and Mr Fua for prosecution
Mr Tu’utafaiva for accused

Chambers Hearing: 15 September 2003
Date of Ruling: 16 September 2003

RULING

The accused is charged with a single count of supplying cocaine contrary to section 36(c) of the Drugs and Poisons Act (Cap 79). The particulars of the offence are that he did "on or about the month of May or prior to May 2001 supply Ioane Tamaseno Tavo with one ounce of cocaine".

The trial was before a jury but, during his evidence, the first witness gave evidence which was extremely prejudicial to the accused and went far outside the scope of the case the jury were considering. As a result, the jury has had to be discharged.

At the time I raised the question of the charge the accused has to face. It would appear on the face of section 36(c) that it does not create an offence of supplying cocaine. Counsel for the prosecution advised the court that the sole evidence of the composition and nature of the drugs charged was to be given by Dr Pakalani and so I suggested that his evidence should be heard by the court and I would then hear counsel on whether the offence was properly charged.

Section 36 is found in Part III of the Act, headed "Indian Hemp and Coca Leaf". The scope of Part III is set out in section 33:

"33. (1) The provisions of this Part of this Act shall apply to coca leaves, Indian hemp and resins obtained from Indian hemp and all preparations of which such resins form the base.

(2) In this Part of this Act - ‘coca leaf’ means the leaf of the Erythroxylon Coca Larmack and the Erythroxylon novo-granatense (Morris) hieronymus and their varieties belonging to the family of Erythroxylaceae and the lead of the other species of this genus from which it may be found possible to extract cocaine either directly or by chemical transformation;

‘Indian hemp’ means either of the plants Cannabis Sativa L. or Cannabis Indica or any portion thereof and includes any preparation of any portion of the said plants under whatever name it may be designated in commerce unless stated by the Director of Health to be entirely innocuous;

‘growing’ includes cultivating, sowing and planting;

‘supplying’ includes distributing, giving and selling."

It is clear that the word ‘lead’ in the 4^th line of subsection (2) is a misprint for ‘leaf’ but it does not affect this case.

Section 36 provides:

"36. Every person -

(a) growing Indian hemp or coca leaf whether for private use or otherwise; or

(b) procuring, or having in his possession or consuming or smoking or otherwise using any Indian hemp or coca leaf; or

(c) supplying or administering or offering to supply or administer to any other person any Indian hemp or coca leaf, shall be guilty of an offence against this Act."

Miss Simiki for the prosecution submits that, although only coca leaf is mentioned, the court should make a wide and generous interpretation. Dr Pakalani told the court that cocaine can only be obtained by extract from coca leaves and so the leaves contain cocaine and that is sufficient.

She points to the use of the word ‘administer’ in paragraph (c). Although Dr Pakalani said the leaves could be smoked, he explained that it would need a number of leaves to achieve any effect from the cocaine content. Therefore, Miss Simiki suggests, the leaves could not be administered and so the use of the word in section 36 must have anticipated the administration of cocaine itself.

She further points to the inclusion of cocaine as one of the drugs controlled under the provisions of Part II of the Act. That suggests the Legislature intended to prohibit cocaine and a strict interpretation of Part III would defeat the intention of Parliament.

I cannot agree with any of these contentions.

The wording of Part III is clear and unambiguous. It refers clearly only to coca leaf. The substance that is prohibited under that part is the leaf. If the leaf falls within the definition of coca leaf under Part III, the offence is complete without need to prove it contains cocaine and, indeed, even if evidence was produced to show it contained no cocaine. It is significant that the definition of Indian hemp includes material which can be extracted from the plant but no such material is included in the definition of coca leaf. The inclusion of the one clearly indicates an intention to exclude the other.

The rules of interpretation only apply when the words of the statute are not clear and I am satisfied the words are perfectly clear. However, even if there were an ambiguity, the suggestion that the court should take a generous approach to interpretation is incorrect. The requirement of courts to take a liberal approach applies only to constitutional provisions. This Act is a penal act the provisions of which create offences for which a person convicted could be sent to prison for up to 10 years. The rule is that such acts should always be interpreted strictly.

Contrary to the prosecution submissions, the inclusion of cocaine in its extracted chemical form in Part II but not in Part III demonstrates clearly that the Legislature was aware of the chemical substance and its nature and yet clearly excluded it from Part III.

I do not accept the suggestion that the inclusion of the word ‘administer’ can only have a meaning in the context of the section if it refers to cocaine. First, the fact it is necessary to smoke a large quantity does not mean it cannot be administered. Secondly and more relevantly, the passage in which the word ‘administer’ appears includes Indian hemp and that alone is sufficient to give it meaning.

I am satisfied that section 36 does not include cocaine. The reference to coca leaf means just that. In the present case there is no reference in the analyst’s evidence to anything but the white powder which he identifies as cocaine. He makes no reference to coca leaf except to say that the powdered cocaine would have been the product of a chemical process of extraction from coca leaf. He describes no plant material in the powder.

Indeed, the provisions of the Act do not appear to make the supply of cocaine an offence at all although possession of it may be and, if it is being unlawfully kept, a magistrate may issue a search warrant and the cocaine may be seized if there is reason to suspect it is being sold.

NUKU’ALOFA: 16 September, 2003.

CHIEF JUSTICE