R v To'a [2006] TOSC 8; CR 92.2005 (24 February 2006)

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

CASE NO: CR 92/05

R

V

‘AISEA TO’A

HELD BEFORE HON CHIEF JUSTICE WEBSTER sitting alone at Nuku’alofa on 16, 17, 18, 19, 20, 23 & 26 January 2006

Counsel: Prosecution: Solicitor-General & Ms Simiki
Defence: Mr Teisina Fifita

RESERVED DECISION GIVEN ON 24 FEBRUARY 2006

Preliminary

The defendant ‘Aisea To’a pleaded not guilty to 3 offences of bribery of a government servant contrary to section 51 of the Criminal Offences Act, conspiracy to commit bribery of a government servant, and attempt to evade customs laws, contrary to section 210(e) of the Customs and Excise Act. He was charged along with ‘Amini Tu’ivai and Hon Veikune. Mr To’a elected to be tried by Judge alone, but his co-accused elected to be tried by Judge and Jury. As much of the evidence was common to all 3 accused, with the agreement of Counsel the trials were held together, except 26 January when Mr To’a himself gave evidence and I heard closing submissions in his case.

On 25 January Mr Tu’ivai and Hon Veikune were found guilty by the Jury of the remaining charges against them.

Evidence and submissions

I heard evidence for the prosecution from 15 witnesses but the 2 of real relevance to this case were Mr Sione Tupoumalohi Latu or Lutu, Revenue Officer, Compliance Division, Customs; and Mr Tomasi Taufa, friend of Mr To’a and a relative of Mr Sione Lutu. There was also evidence about Mr To’a from ACIP ‘Ieni Tu’ihalangingie. The prosecution also produced a number of documentary and material exhibits. The defence led evidence from Mr To’a himself; and there was also evidence for Mr Tu’ivai from Mr Sione Sami Likiliki.

On completion of the evidence I heard submissions in support of their respective cases for the defence and prosecution. In essence the submissions for the defence were that there was a conflict of evidence between the defendant and Sione Lutu on the key matter of whether the defendant had offered money to Sione Lutu, and so the prosecution had failed to prove its case beyond reasonable doubt.

Indictment

The offences with which the defendant was charged were:

(Count 1)

BRIBERY OF A GOVERNMENT SERVANT, contrary to section 51 of the Criminal Offences Act.

'Aisea To'a on or about September 2003, you offered some money to Sione Tupoumalohi Latu who is in the service of the Government as an inducement to release container TRLU No 3530660 in the execution of his duty as a Customs officer.

(Count 3)

ATTEMPT TO EVADE CUSTOMS LAWS, contrary to section 210(e) of the Customs and Excise Act.

'Aisea To'a on or about September 2003, you knowingly attempted to evade import duties of customs relating to the importation of 600 cartons of Bounty Rum in container TRLU No 3530660.

He was also charged under Count 2 with conspiracy to commit bribery of a government servant, contrary to section 15 and 51 of the Criminal Offences Act, but I withdrew that charge due to lack of evidence on 23 January after the close of the prosecution case, when I withdrew similar charges against the co-accused from the Jury.

Essential elements of bribery

Section 51 of the Criminal Offences Act provides:

Bribery of government servant.

51. Every person who shall give or offer any money or valuable consideration of any description whatever to any person in the service of the Government as an inducement to do or abstain from doing any act in the execution of his duty as a Government servant or as an inducement to show favour or disfavour to any person shall be liable to imprisonment for any period not exceeding 3 years.

The essential elements to be established in this case to find that there has been bribery of a Government servant are that it was the defendant who:

gave or offered money

to a person

who is in the service of the Government

as an inducement to release container TRLU No 3530660

in the execution of his duty as a Customs officer, ie a Government servant

An inducement is simply persuasion aimed at producing some willing action.

Essential elements of attempt to evade Customs laws

Section 210(1)(e) of the Customs and Excise Act as amended provides:

Penalty for evading customs laws regarding imported or exported goods

210. (1) Every person who –

....

(e) is in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any import or export duties of customs, or of the laws, and restrictions, of the customs relating to the importation, warehousing, delivery, removal, loading and exportation of goods

shall be guilty of an offence and for each such offence incur a penalty not exceeding treble the value of the goods or $2,000 whichever is the greater; and all goods in respect of which any such offence shall be committed shall be forfeited.

The essential elements to be established in this case to find that there has been evasion of Customs laws under that paragraph are that it was the defendant:

who was in any way

knowingly concerned

in a fraudulent attempt at evasion

of any import duties of Customs [relating to the 600 cartons],

The words “in any way” cover any person taking part in the evasion whether his contribution to it is large or small, and he does not have to be the owner of the goods imported. The defendant must be involved in the enterprise in some way and must have played some role in furtherance of the enterprise.

Being knowingly concerned means what it says – participating in the venture with a design or with actual knowledge of the facts. It means that knowledge on the part of that defendant is an essential ingredient of the offence and some act of participation is required. So the prosecution has to prove actual knowledge on the part of that defendant of all the material circumstances of the offence: in other words that he knew that the cartons of rum were in the container and that it was a deliberate attempt at evasion of the import duty on it. But that can be established by the whole behaviour of that defendant in the circumstances.

The prosecution also has to prove fraudulent, in the sense of dishonest, conduct deliberately intended to evade the duty chargeable on the 600 cartons of rum.

The relevant definition of an attempt to commit an offence in the Criminal Offences Act is that it is an act done with intent to commit that offence, which would have constituted the offence if it had not been interrupted.

In relation to the allegation of an attempt, before a defendant can be convicted the Court must be sure of 2 things: 1st that he intended to commit evasion of Customs duties; and 2nd, that, with that intention, he did something which was more than mere preparation for committing that offence. In this case, what the Court is in effect being asked to find is that presenting the container for import clearance – ie trying to clear it from the wharf - amounted to more than mere preparation for the offence. If it is established that this defendant took actions towards that, then the Court must decide whether what he did went beyond mere preparation.

Basic findings in fact

As is apparent from the indictments, this case concerned the importation, or attempted importation, of a container. The container TRLU No 3530660 came from Fiji in July 2003 and it was consigned to the co-accused Hon Veikune, although it appeared that in reality some or all of the contents belonged to the other co-accused Mr ‘Amini Tu’ivai, but the precise ownership between the 2 is not relevant to the case against Mr To’a. In any event Mr Tu’ivai effectively acted as agent for Hon Veikune in respect of attempted clearance of the container.

The contents of the container were described in the bill of lading as assorted goods and personal effects, which was supported by the invoice from Westline Agency, Fiji addressed to Hon Veikune and presented to Customs for Import Entry by Mr Tu’ivai through Customs agent Sione Vaka’uta. It was clear from the evidence that by the time the container arrived in Tonga, or very shortly after that, both Mr Tu’ivai and Hon Veikune knew that in addition to those items it contained a quantity of overproof Bounty rum, but that was not declared to Customs. Sione Vaka’uta said that at some stage Mr Tu’ivai told him that there was alcohol in the container.

As the Customs Compliance Division had received intelligence from Fiji that the container contained alcohol, after clearance of all the documentation it was not released from the wharf, but was held by Customs for inspection before release. Duty had been paid before the container was due to be inspected, under the procedure in existence at that time, but only on the declared items, not on the 600 cartons of Bounty rum subsequently discovered inside it.

At that stage on or about September 2003 Mr To’a was contacted by Mr Tu’ivai about the container, which he was told was not able to be delivered from the wharf.

In cross-examination Mr To’a said he knew the container was consigned to Hon Veikune and was from Fiji, and he had carried out prior work for Mr Tu’ivai with containers from Fiji between 2 and 5 times. Mr To’a said Mr Tu’ivai did not talk to him about alcohol in the container, and he said he did not know about that: but he did accept in cross-examination that Mr Tu’ivai was very talkative. Mr To’a said Mr Tu’ivai used him for his experience, and denied it was because of his connections in the Customs Department as a former Customs officer. In light of all the other evidence I was unable to accept that Mr To’a did not know that there was alcohol in the container, especially as Mr Tu’ivai had already told Sione Vaka’uta.

Mr To’a said that Mr Tu’ivai had given him the documents for the container and told him that the duty had been paid but it could not be released as it was held by Sione Lutu, a Revenue Officer in the Customs Compliance Division. Mr To’a accepted he knew that Sione Lutu was working for the Compliance Division. Mr To’a said he did not think there was a problem, but a lot of times when Customs brokers experienced problems they came back to him for assistance. Mr To’a said they knew they could not beat him, not for his connections, but for his knowledge and experience in that line of work. He said one of the reasons was that at times he could even make contact with superior officers; and he had other ways of reaching Customs officers – but he said limited to what is right.

Mr To’a said he decided to visit Sione Lutu’s home that evening to ask him what was happening.

Apparently coincidentally Mr Tomasi Taufa, a teacher, had phoned Mr To’a (in evidence Mr Taufa referred to him as “my very dear friend since school”) and asked for financial help for a bond for $2,000 for his brother to travel overseas urgently. Mr Taufa was going to see his nephew Sione Lutu about ways to assist in obtaining bond money, though it turned out that Sione Lutu could not help. Mr To’a had said he would drop by Sione Lutu’s house to talk, and Mr To’a had arrived 15-20 minutes after Mr Taufa.

Mr To’a had told Mr Taufa that he had come to Sione Lutu so that Sione Lutu could assist him with work he was carrying out because of goods at wharf, and with the proceeds from these goods Mr To’a might be able to assist Mr Taufa with what he needed. Mr Taufa said he did not hear the name of the owner of the goods.

Mr To’a said to Sione Lutu that he had a shipment at the wharf and Sione Lutu said he was to come over the following morning at 8.

Mr Taufa said that Sione Lutu had told Mr Taufa himself to bring the documents the following morning. In cross-examination Mr Taufa accepted that Mr To’a had told him that he would be held up with other things the following morning and asked if Mr Taufa would be able to take the documents to Sione Lutu.

Sione Lutu said that Mr To’a did not hand him the documents for the container at his home, while Mr To’a said he gave Sione the documents to look at, though in relation to that he also said that it seemed that Sione was not paying attention. In any event I inferred from the evidence of what happened later that evening that Sione Lutu, who had been told by his superior Feleti Fa’otusia that this container was to be inspected (due to intelligence from Fiji about it containing alcohol), knew that it was this container that Mr To’a had come about, although Sione Lutu said he could not recollect whether he first knew that at his home or at the wharf. I therefore concluded that Sione Lutu knew which container Mr To’a had come about and may well have seen the documents that evening, even if he did not now recollect that.

In the course of that evening Mr Taufa had asked both his nephew Sione Lutu and his school friend Mr To’a if they could assist him with the $2,000 he required to find urgently. Neither could assist him at that time but Mr Taufa said that Mr To’a had told him that with the proceeds from the goods at the wharf Mr To’a might be able to assist him with what he needed. In his evidence Mr To’a explained that as being that the fee he would get for his work from Mr Tu’ivai on the container could be $150 and he would have given that to Mr Taufa, which would have been of assistance to him. I did not understand that to be the import of Mr Taufa’s evidence and he was obviously referring to receiving substantial assistance from Mr To’a, not simply $150. I found that in terms of reality in present day Tongan culture it did not make sense that Mr Taufa was only looking for $150 and that that amount would have been of help to him. He was clearly looking for Mr Lutu or Mr Taufa to assist him substantially.

I was also unable to accept Mr To’a’s statement in evidence that he could not have offered Sione Lutu $3,000 the following morning when he did not have money for Mr Taufa the previous evening. Clearly, if he had money for a bribe, that came from a different source or was destined for another purpose and was not to be diverted to Mr Taufa.

Mr To’a then left Sione Lutu talking to Tomasi Taufa. From that conversation after Mr To’a left, Mr Taufa’s understanding was that Sione Lutu currently had work underway with that container and some harm might come which might result in Mr To’a serving a prison sentence. In cross-examination Mr Taufa said that Sione Lutu had said “I will make sure this fool will go and serve a prison sentence”. When Sione Lutu was cross-examined as to whether he had told Mr Taufa at that stage “I have not met such an idiot, he should have come with some money, I will try to make him go to prison”, Sione Lutu in evidence replied “I did not say that”.

Next morning Mr Taufa had phoned Mr To’a, as he had changed his mind after the conversation with Sione Lutu, and informed Mr To’a that he would not continue with what they talked about with Sione Lutu, because he had gone over asking about the bond and not to carry out any other work. Mr Taufa said he had also informed Mr To’a of the reason why he was not going to come over, because of the conversation Mr Taufa had with Sione Lutu, and that was all.

Mr To’a accepted that the following morning before he had woken up Mr Taufa had phoned, and asked him what happening to this thing, and told Mr To’a that he and Sione Lutu had started talking about him. Mr To’a said in evidence that Mr Taufa told him that Sione Lutu had said “What a fool coming here, he should have brought some money”. Mr Taufa had warned Mr To’a just to go and carry out the work, but to be careful as Sione Lutu had said he would try to have Mr To’a serve a prison sentence. Mr To’a said he did not worry about that because Mr Taufa did not tell him why Sione Lutu was being like that towards him. Then Mr To’a said that Mr Taufa had said to Mr To’a that he could not take the documents; and Mr To’a said OK he would come and take the documents himself, so Mr Taufa had come to Mr To’a’s house and returned the documents to Mr To’a.

I therefore found that Sione Lutu, despite his denial, had said to Mr Taufa that evening with reference to Mr To’a “I will make sure this fool will go and serve a prison sentence”: but I did not find that he also said “I have not met such an idiot, he should have come with some money” (which was not put to Mr Taufa).

Mr To’a had then gone to the wharf and met Sione Lutu, he said to get an understanding of the stage the documents were at. Mr To’a said he got to the wharf at 9, but Sione Lutu was not there so he rang his office and Sione Lutu had come to the wharf. Mr To’a said he tried to give Sione Lutu the documents, but he refused to look at them. Mr To’a said he tried to explain to Sione Lutu that they were the documents they had talked about the previous day, but when Mr To’a understood that Sione Lutu did not want anything to do with the documents, Sione Lutu told him to go and return the documents to Mr Tu’ivai and bring some other people, as now they were going to open up the container and have a look inside.

Sione Lutu’s evidence about that was that the next day Mr To’a came to the wharf in the morning and “he put to me an amount of $3,000” and said “I have money here”, and “he was holding a brown paper bag containing money – to me it was money”. He said Mr To’a took up the entry form for Hon Veikune’s container. Sione Lutu denied that Mr To’a only came with the documents and said he was only aware then that it was that container (but that was clearly a mistaken recollection).

Sione Lutu said that Mr To’a told him to take the money “that I try to release the container” and Mr To’a would give him something later. Sione Lutu then told Mr To’a to take the money with him, but to send someone else to come with the documents so that they could examine the container before releasing it. That was the end of Sione Lutu’s meeting with Mr To’a.

Mr To’a denied offering Sione Lutu any money, and said all he gave Sione Lutu was the documents, which Sione Lutu refused to look at because he knew what Mr To’a was going to give him. Mr To’a also denied promising Sione Lutu more, as there was no reason to do so, without knowledge of the contents. He reckoned the duty paid would have been sufficient for a full container.

Mr To’a said a lot of times containers were put on hold for no particular reason, just so that Customs officers could receive money from the owners, but there was no particular reason to hold the containers.

Mr To’a said he then returned the documents to Mr Tu’ivai and told him the container was to be opened up.

Sione Lutu accepted in evidence that he had no authority or power to release the container; and he could not release the container himself unless the 3 officers worked together (he, 1 from Customs and 1 from the Port Authority). He said they all had to sign before the container was released, so working with other officers from Customs they had the power to hold the container. But Sione Lutu also said that he would have to examine the container before it was released and make a report to higher authority.

To complete the picture, the evidence as a whole established that when the container was inspected by Customs officers on 23 September, despite last minute attempts by Mr Tu’ivai to have it released without inspection, it was found to be around two-thirds full of 600 cartons of Bounty rum and was held by Customs. The duty on that would have amounted to almost $300,000. The cost price of the rum had been $85,200 in Tongan currency.

As Mr To’a completely denied offering Sione Lutu money at the wharf, although he admitted seeing him at home the previous evening, essentially it is a question of which of these two I believe; and if it is Sione Lutu, whether his evidence satisfies me beyond reasonable doubt.

Overall I accepted the submission for the defendant that Mr Taufa was a credible and reliable witness. However Mr Lutu’s evidence was inconsistent with other evidence which I found established in relation to whether he had seen the documents the previous evening and whether he had said he would make Mr To’a go to prison; and so I found his evidence in relation to Mr To’a not entirely reliable.

But Mr To’a’s evidence also contained some problem areas: his explanation that he would give Mr Taufa his fee of $150 when Mr Taufa was looking for $2,000 was scarcely credible; as was his denial that Mr Tu’ivai had told him that there was alcohol in the container when Mr Tu’ivai had already told the previous agent Sione Vaka’uta.

Mr To’a also said that Customs officers sometimes put a container on hold to get money, so he knew about such practices. It was also very clear that Mr To’a regarded himself - according to his evidence - as a big hitter in getting things done in Customs and that he was able to resolve problems where others could not do so. That would account for him being brought in after Sione Vaka’uta had not succeeded.

While on the balance of probabilities I might have preferred the evidence of Sione Lutu to that of Mr To’a in relation to the principal matter of whether or not Mr To’a offered him a bribe, the inconsistencies in Sione Lutu’s evidence caused me real concern and gave me reasonable doubts in relation to proof of this distinct and specific allegation of bribery against Mr To’a. I was thus not sure that it was established beyond reasonable doubt that Mr To’a had offered Sione Lutu money of $3,000 at the wharf, so the standard of proof necessary in a criminal case was not reached.

I must add that the circumstances of the count of bribery against Mr To’a were, in terms of evidence during the trial, really quite detached from the allegations against the co-accused Mr Tu’ivai and Hon Veikune and there was little overlap in evidence. I therefore do not consider that my finding in relation to Mr To’a has any significant bearing on the counts before the Jury against Mr Tu’ivai and Hon Veikune, nor on Sione Lutu’s evidence about the 2 approaches to him by Hon Veikune, as it was not seriously challenged in cross-examination that these approaches had taken place – which was in marked distinction to his evidence about Mr To’a.

Grounds of decision

Count 1

As that issue was at the heart of the allegation of bribery I find it was not established beyond reasonable doubt that the defendant ‘Aisea To’a had offered money to Sione Tupoumalohi Latu (or Sione Lutu).

Count 3

To establish this offence of attempted evasion of customs laws it requires to be proved that the defendant Mr To’a was knowingly concerned in a fraudulent attempt at evasion: it does not have to be established that he was the owner of either the container or the rum, but he must have been involved in the enterprise in some way and must have played some role in furtherance of the enterprise.

Both Counsel essentially accepted that Count 3 stood or fell with Count 1, so as I have found that Count 1 was not established beyond reasonable doubt, I therefore find that it was not established beyond reasonable doubt that the defendant ‘Aisea To’a knowingly fraudulently attempted to evade import duties of Customs relating to the importation of 600 cartons of Bounty Rum in container TRLU No 3530660.

Conclusion

I therefore found that the necessary elements of these 2 counts had not been established beyond reasonable doubt and I find the defendant not guilty as charged of Counts 1 and 3 and acquit him of these counts of bribery of a Government servant and an attempt to evade Customs laws.

R M Webster MBE
Chief Justice

24 February 2006