Fononga v Police [2003] TOSC 43; AM 011 2003 (3 November 2003)

IN THE SUPREME COURT OF TONGA
APPEAL JURISDICTION
NEIAFU REGISTRY

NO. AM 11/03.

BETWEEN:

‘ILAISA FONONGA
Appellant

AND:

POLICE
Respondent

BEFORE THE HON. MR JUSTICE FORD

Counsel: Mr Vaipulu for the appellant and Mr Kefu for the respondent.

Date of hearing of appeal: 8 October 2003.
Date of supplementary written submissions: 18 and 27 October 2003.
Date of judgment: 3 November 2003.

JUDGMENT

The appellant was convicted in the Magistrates' Court at Neiafu in December 2002 on one charge of being found drunk in a public place contrary to section 3(j) of the Order in Public Places Act (CAP. 37) and another charge, ostensibly, of using threatening, abusive or insulting language or behaviour towards an officer in the service of Government contrary to section 57 of the Criminal Offences Act (CAP. 18). On the former charge he was fined $40. On the latter charge he was fined $200. The added significance of the second conviction was that the appellant had sometime earlier received a suspended sentence in the Magistrates' Court of six months imprisonment and, as a conviction under section 57 is punishable by imprisonment (as well as a fine), it meant that, in addition to the penalty imposed of a $200 fine, the appellant would also be required to serve out his six months suspended sentence.

The appellant appealed to this court against his conviction on both charges. In the course of the appeal hearing, I indicated to counsel for the appellant that the appeal on the charge of being found drunk in a public place appeared to have little merit. After the hearing, no doubt having had time to reflect on the situation, Mr Vaipulu formerly withdrew his appeal on this ground.

The appeal against conviction under section 57 of the Criminal Offences Act has more merit and raises complex issues. There appears to be a difference between the English version of section 57 and the Tongan text. The English version reads as follows:

"57. Every person who uses threatening, abusive or insulting language or behaviour towards any officer in the service of the Government shall be liable on conviction to imprisonment for any term not exceeding 2 years, or to a fine not exceeding $500."

The summons issued against the appellant (as translated) is in these terms:

"On the 2nd day of November 2002 at Longomapu you committed causing anger to a civil servant in which you frequently shouted on the road and Police Officer 'Ahosiu 'Ofa stopped you quite a few times and you ran and shouted to him "If you want something step on the road" and you frequently shouted and you ran away, contrary to section 57 (CAP. 18) Laws of Tonga. (Emphasis added)

It was put to Crown counsel at the appeal hearing that section 57 did not create an offence of "causing anger to a civil servant." Mr Kefu responded that the words in the Tongan version of section 57, which are the equivalent to the English adjective "abusive", are "lea kovi fakatapu" which literally translate as "bad words causing anger."

Before dealing further with this issue, I should refer briefly to the facts. The principal witness for the prosecution was police sergeant 'Ahosiu 'Ofa. He gave evidence that on the day in question, which was Saturday 2 November 2002, he was living at Malae Puafisi's house at Longomapu. There is a shop attached to the front of the house and while sergeant 'Ofa was inside the house at around 7 o'clock that evening he heard someone shouting from out the front of the premises. He proceeded to go outside the house and stood in a dark area just inside the allotment boundary fence. From this position he could see some boys standing on the verandah of the shop. He was able to identify one of them as Muli Ta'ufo'ou. He could also see the appellant, 'Ilaisa Fononga, standing out on the roadway.

The sergeant said that he then heard shouting from the roadway and so he (the sergeant) shouted back "Eh! Shut your mouth." There was further shouting and the sergeant walked out onto the side of the road. He called out to the appellant, "did you not hear me telling you to shut up?" The sergeant said that at that point the appellant shouted again and then started walking away. The sergeant did not say in evidence what the appellant had actually said when he shouted out and there is nothing in the evidence to indicate that the appellant had been shouting at the police sergeant himself.

In all events, sergeant 'Ofa then proceeded to follow the appellant down the road and he noticed that Muli had gone ahead of him and was walking between himself and the appellant. He heard two more shouts but he admitted in cross-examination that he did not know who had made them. At one point the sergeant called out to Muli to wait but both he and the appellant ran and disappeared.

The scene then moved to outside an api belonging to Loisi Lakai. An outside light had been switched on at Lakai's api and the sergeant was able to see the appellant standing on the roadway. He then heard him yell out the words (as translated by Mr Kefu) "if anyone has any issues then step onto the road." The sergeant said that he heard three more yells (again, he did not say who had made them or what was said) and he told the court that he was very upset with what had happened. He described how he then walked through a dark area but when he reached the fence around Lakai's property he noticed that the accused had disappeared. The sergeant said that he proceeded to walk along the road in an easterly direction heading back towards the centre of the village. He passed some drunk young men talking to some girls on the road and then he noticed Muli coming towards him. He said to Muli, "why do you want to get tough with me" and Muli responded that it wasn't him but the appellant.

At that point the scene changes again and the sergeant noticed the accused for the third time. On this occasion he was standing inside Anghiki Loseli's shop. When the sergeant first noticed him he saw a number of youths around the shop and he said the appellant was inside the shop "talking loudly." The sergeant walked towards the appellant who, he said, was then quiet. He said to him, "I am here, the one whom you called out to come" and he grabbed him by the belt and led him out onto the roadway. The sergeant then described how he had taken the appellant to the police station. The appellant apologised to him but claimed that he had not been the person doing the yelling.

Apart from sergeant 'Ofa, the prosecution also called evidence from another officer who had taken a statement from the appellant and one other witness, namely Muli. Muli said that there were a lot of drunk people around the village on the night in question. He denied that the appellant had been shouting out but the magistrate did not believe him. Nor did the magistrate believe Pita Lokotui, a 23-year-old youth called on behalf of the appellant, who had told the court that he was one of the drunk people in question and it had been him, not the appellant, who had been doing the yelling outside Loseli Lakai's api.

In his judgment, the learned magistrate reviewed all the evidence in some detail and made firm findings on credibility. He found sergeant 'Ofa to be a completely credible witness and he rejected the defence evidence entirely. The magistrate then made findings relevant to his decision on the facts. It is clear from those findings that he dealt with the charge simply on the basis of the wording of the summons, namely, "causing anger to a civil servant". In this regard, the relevant extract (as translated) taken from towards the end of the magistrate's decision reads as follows:

"If we consider that there was no shouting from the accused except only saying "fight" immediately after the police said something to him, who did he say that to? The court believes that he said this in response to police sergeant 'Ahosui." .... It is the same with this charge, causing disappointment to a police officer. Therefore the court is of no doubt that what the accused did on this night starting from in front of Malae Puafisi's api and continuing on, was breaking the law of causing disappointment to a police officer. The accused is guilty."

Sentencing was then adjourned for one week and on sentencing the magistrate again, on two occasions, described the charge the appellant had been found guilty of as "causing disappointment". While that finding is, of course, consistent with the wording of the summons, it bears no relationship to the offence created under section 57 of the Criminal Offences Act which is one of threatening, abusive or insulting language or behaviour towards any officer in the service of the Government. Section 57 makes no reference to "causing disappointment" or "anger" to an officer in the service of Government. The wording of the summons, in other words, is defective. It wrongly describes the offence created by section 57 of the Criminal Offences Act.

It is most important that a defendant should know exactly what he has been charged with. To this end, no doubt, section 14 of the Magistrates' Courts Act (CAP. 11) requires a summons to "state concisely the offence with which the defendant is charged." The summons in the present case fails to satisfy that criteria.

My findings on this aspect of the appeal alone are sufficient to dispose of the matter but it behoves me to say something more about the difference between the English and Tongan versions of section 57 highlighted, very helpfully, in the submissions of both counsel.

The categories listed in section 57 are expressed disjunctively. Six different offences are created - threatening language or behaviour, abusive language or behaviour, insulting language or behaviour. In the present case, as I have just observed, it is not possible to know with any certainty from reading the summons itself exactly what charge is being levelled at the appellant. In his written supplementary submissions, Mr Kefu said:

"As counsel submitted at the hearing, it is clear from the evidence in the lower court that the respondent charged the appellant based on his behaviour towards sergeant 'Ofa. Thus it was the abusive behaviour to the appellant that was the subject of the charge."

(Emphasis added)

The words emphasised highlight the main difficulty in the case. Under section 13 of the Magistrates' Courts Act, it should have been clear from the summons itself what the appellant was being charged with. It is significant and unsatisfactory that counsel has to revert to the evidence presented in the case in order to show what the charge was faced by the appellant. Be that as it may, Mr Vaipulu did not take issue with that particular submission but he denied that there had been compliance with section 14 of the Magistrates' Court Act.

The problem, however, as I understand it, and in this regard I am indebted to both counsel for their very thorough written submissions, is that the Tongan version of section 57 does not contain words equivalent to "abusive behaviour". The Tongan version refers only to "lea kovi fakatupu'ita". "Lea (to speak) kovi" is "abusive language" and "fakatupu'ita" means "causing anger".

Although no evidence is before the court on this point, one can only surmise that the clerk who drafted the summons in the Tongan language, found himself facing the dilemma of trying to frame a charge of "abusive conduct" from a section in the Tongan version of the statute that did not refer to abusive "conduct" but only to abusive "language". Hence, in the summons he omits any mention of "lea kovi" (the language element) and simply uses the word "fakatupu'ita" which means "causing anger". The result is a hotchpot summons that does not correctly identify any offence.

In such a situation, when faced with an apparent conflict or inconsistency between the English and Tongan versions of an Act, a clerk making out a summons under section 14 of the Magistrates' Courts Act has various options available. Putting to one side the unlikely impractical possibility of legislative intervention, the clerk should, first, give consideration to whether the offending in question is covered by some other legislative enactment. In the present case, for example, a fairly obvious option, I would have thought, and probably the most appropriate option in any event, would have been to lay a charge of "disorderly behaviour" under section 4 (a) of the Order in Public Places Act.

Alternatively, section 11(2) of the Laws Consolidation Act 1988 could be brought into play. That provision reads as follows:

"(2) In the event of any doubt arising with respect to the meaning of any passage in the Revised Edition, or of any difference existing between the English text and the Tongan text of any such passage, the English text shall be held to give the true meaning of such passage."

In the present case, there is clearly a difference existing between the English text and the Tongan text. In such a situation the clerk drafting the summons would be entitled to insert the Tongan word or words necessary to reflect the concise offence provided for in the English version. That would mean, for example, including words such as "ulungaanga" (behaviour) and "fakalielia" (abusive) even though neither word appears in the Tongan version of section 57.

For the foregoing reasons, the appeal is allowed and the conviction under section 57 of the Criminal Offences Act is, accordingly, quashed.

NUKU’ALOFA: 3 NOVEMBER 2003

JUDGE