Rex v Taungahihifo [2007] TOSC 44; CR 121-2005 (12 October 2007)

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

NO. CR.121 of 2005

REX

-V-

VILIAMI MOLOFAHA TAUNGAHIHIFO

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel:
Mr Sisifa for the Crown and
Mr Piukala for the accused

Dates of hearing: 27, 28 and 29 August 2007.
Date of written submissions: 13 and 20 September 2007.
Date of judgment : 12 October 2007.

JUDGMENT

The charge

[1] In this case the accused has been charged with one count of removing coral from within the fisheries waters of Tonga without permission, contrary to the regulation 17(1) of the Fisheries (Conservation and Management) Regulations 1994. That regulation states:

"17. (1) No person shall remove or take any coral from within fisheries waters except with the written permission of the Secretary."

Regulation 23 provides a maximum penalty of a fine not exceeding $10,000 and forfeiture in the event of any contravention of regulation 17.

[2] The particulars in the indictment allege "that on or about the months of September to October 2004, at Patangata, you did remove 26,400 corals from within the fisheries water of Tonga without the written permission of the Secretary of Fisheries."

The facts

[3] There is no real dispute about the facts. The 34-year-old accused is a fisherman by occupation. He lives with his wife and family at Patangata. In about September 2004 he heard that a Chinese businessman from Hawaii was interested in purchasing several container loads of coral from Tonga for export to China. The man's Chinese name was not disclosed to the court but the accused referred to him as "Sione Akino" which he said was the Tongan translation of the name.

[4] The accused visited the office of the Ministry of Fisheries and inquired as to whether it was permissible for him to export coral overseas. The fisheries officer told him that it was not because there were only five companies in Tonga that had been granted licences to export coral. Approximately 2 weeks later the accused had a meeting with the Chinese man and Hon Nuku (a Noble of the Realm). Hon Nuku had also heard of the Chinese man's proposal to export coral to China and he was keen to see the venture succeed. At that meeting the accused inquired as to whether he could provide some of the coral he had heard that Mr Akino wanted to export overseas and it was agreed that the accused could provide one container load of coral and for that he would be paid $11,000. At that same meeting, the accused raised the issue of an export licence and he was told by Hon Nuku that he would take care of all the paperwork.

[5] The accused told the court that he had one month in which to come up with his container load of coral. He described how he used a spade to remove lumps of coral and sometimes he was simply able to collect it from the reef. As time went by, however, he could see that he and his family would not be able to collect a container load within the month. Faced with this dilemma, he then decided to approach Mr Akino for a cash advance to enable him to pay other people from his village to assist in the collection process. Mr Akino agreed and advanced the accused $6,000 for that purpose.

[6] On the morning of the 20th of October 2004 a fisheries officer was given a tipoff at the Nuku'alofa Post Office about a man at Patangata who was collecting a container load of coral on his property. The fisheries officer reported the matter to his supervisor and the Ministry of Fisheries investigated. The man collecting the coral turned out to be the accused.

[7] On Friday 22 October 2004 fisheries officers visited the accused's home at Patangata and proceeded to seize the coral that had been collected. The accused was totally cooperative. He, in fact, paid approximately $300 for labour and for the hire of the truck the fisheries officers used to transport the coral from Patangata to the Fisheries Research Centre at Sopu. The Hon Nuku was in New Zealand at the time of the seizure but the accused was confident that either the Noble or the Chineseman would be able to clarify the situation with the fisheries officers and that the coral would duly be exported to China as arranged.

[8] On that same day, 22 October 2004, the Acting Secretary of Fisheries wrote to the accused asking a number of questions and calling for an immediate response. I set out the translation of the accused's response in full:

"Patangata

Nuku'alofa

25.10.2004

Secretary of Fisheries,

Ministry of Fisheries,

P.O. Box 871,

Nuku'alofa.

Dear Sir,

I respectfully wish to submit the following reasons:

a. The reason I had removed the coral was to sell to earn a living for my family.

b. That we, Molofaha Taungahihifo, Siu Taungahihifo and Sefo Tavake had removed the coral.

c. That we had removed these corals from the inner reef at Patangata and from between Pangaimotu and Manima.

d. We had removed these corals by using a spade as well as just collecting them.

e. Yes, I had made inquiries and it was clear you can only export if you hold an export licence. Two weeks after, Hon Nuku came over and told me to do the work and that he would take care of the paperwork.

f. A Chinaman, Hon Nuku's friend by the name of Sione Akino, we had an agreement that I would be paid $11,000.00 for a container

I am writing this letter as an apology to the Ministry and I and my family feel truly remorseful for the mistake made. I hope that this is a clear explanation.

Respectfully,

Sgn: Molofaha Taungahihifo."

[9] The accused told the court that a total of 26,400 corals had been collected from his property. The fisheries officers explained that they removed eight truckloads and each truck contained 1 1/2 tons. Coloured photographs were produced showing some of the colourful coral pieces that had been seized. It was explained to the court that once the coral had been removed from the reef it would gradually die and there was no way of saving it. Part of the seizure was used by the Ministry of Fisheries as landfill and the rest of the seized coral was dumped back out at sea.

[10] The accused described in evidence how immediately after the seizure he contacted Mr Akino in Hawaii and the Chinese man came back to Tonga. The accused and his wife then arranged a meeting with Mr Akino and Hon Nuku upon the latter's return from New Zealand. The accused said that at that meeting Hon Nuku confirmed that he had been proposing to export the coral. For his part, Mr Akino observed that the coral had been damaged during seizure and he went back to Hawaii.

[11] The foregoing is a summary of the unchallenged facts. The court was told that the whole incident received considerable publicity in the media at the time and questions were also asked in Parliament of Hon Nuku who was a Noble's representative (he is currently the Minister of Works). The accused claims that he was acting at all material times pursuant to the agreement he had with Mr Akino and Hon Nuku and that he had relied upon the assurance he had received from Hon Nuku that he (the Noble) would take care of the paperwork i.e. the licence to take and export the coral. No charges were laid against Mr Akino or the Noble.

[12] Neither party called Hon Nuku as a witness and given the allegations that had been made against him by the accused as to his involvement in the arrangement, the court took the unusual step of issuing a summons for the Noble to appear and give evidence. Hon Nuku appeared and very frankly agreed that everything that the accused had told the court about his involvement had been correct. The Noble explained that he saw the opportunity to export coral through the Chinese man as an opportunity to provide much-needed employment for the people in Patangata and other villages. He said that he and the Chinese man had applied to the Ministry of Fisheries for a licence to take and export the coral and he had been told that Fisheries needed to make contact with overseas organisations in relation to the confirmation process and that a conference would be needed to be held before a licence could be issued.

[13] Hon Nuku explained that following this first meeting with Fisheries he was confident that he would be issued with a licence and on that assumption he had no difficulty in authorising the accused and others to start collecting supplies of coral. He then told how he had a second meeting with the Ministry of Fisheries sometime later and he was then informed that he would not be granted a licence. The exact date of that second meeting was not pinpointed and it is not clear whether it was prior to or after the seizure. In all events, that information was not conveyed to the accused until sometime after the seizure. Hon Nuku told the court that he did not agree with the reasons given by the Ministry of Fisheries for turning down his application for an export licence and he made the point that if the Ministry officials had given any indication at all at his first meeting that he would not be granted a licence then he would not have taken the matter any further. The Noble was critical that the Ministry of Fisheries officials had, in effect, misled him into thinking that he would be issued with a licence as soon as the overseas protocol (whatever that involved) had been complied with.

Submissions

[14] Mr Piukala submitted that, against that background, the charge should be dismissed because the Crown had been unable to prove mens rea or, in other words, any guilty mind on the part of the accused. Defence counsel referred the court to the English House of Lords authority of R v K [2001] 3 All ER 897 and in particular the following statement from the opinion of Lord Steyn [32]:

"It is well established that there is a constitutional principle of general application that whenever a section is silent as to mens rea, there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea."

[15] Mr Piukala's submission essentially was that no guilt had been established on the part of the accused because he was entitled to rely upon the assurance he had been given by Hon Nuku that he, the Noble, would look after the paperwork.

[16] Quite responsibly, Mr Sisifa did not seek to downplay the significance of the assurance the accused had received from Hon Nuku. Crown counsel acknowledged that, in Tongan culture, no commoner would question the word of a Noble of the Realm. Mr Sisifa also focused on the issue of whether or not mens rea was a requirement under Regulation 17 and he cited the House of Lords case of R v Warner [1969] 2 AC 256 and the English Court of Appeal decision in R v Howells [1977] QB 614. Crown counsel's principal submission was that it was not necessary to prove mens rea and all the prosecution needed to establish to obtain a conviction was the fact that coral had been removed from the fisheries waters of Tonga without a licence.

Discussion

[17] The various authorities referred to by counsel were criminal cases. The present case falls into the category Wright J described in Sherras v De Rutzen [1895] UKLawRpKQB 77; [1895] 1 QB 918 as "cases where the prohibited acts are not criminal in any real sense but are acts which in the public interest are prohibited under a penalty." The offence charged is one created under subordinate legislation in the form of regulations made pursuant to the Fisheries Act 1989 (now repealed) which were specifically reserved under section 105 of the Fisheries Management Act 2002. There is no challenge to the validity of the regulations and I accept that the specific regulation this case is concerned with was intra-vires the legislation in question. The real issue, therefore, is whether regulation 17 can properly be interpreted as creating an absolute offence.

[18] In Rex v Kim [2003] TOSC 51, the accused were charged with the offence of fishing in fisheries waters without a valid foreign fishing vessel licence. Defence counsel argued that the court was required to take into account "the state of mind" of the accused. Chief Justice Ward rejected that submission stating:

"There is a fundamental presumption that an essential ingredient of a criminal offence is that the perpetrator must be proved to have had a guilty mind (or mens rea). However, a statute may create an offence which does not require such an intention and imposes an absolute liability on anyone who performs the act. Whether or not such an offence is one of absolute liability will depend on the wording of the statute. I am satisfied that the terms of section 11 of the Fisheries Act imposes an absolute prohibition on the use of a foreign fishing vessel for fishing or related activities in the fisheries waters without the requisite licence. Subsection (6) of that section and section 54 (1) make it an offence of absolute liability in respect of the master, owner and, if there is one, the charterer. The prosecution does not have to prove mens rea in such cases."

[19] In the New Zealand case Fisheries Inspector v Wareham [1974] 2 NZLR, 639, Mahon J. was required to consider whether a specific regulation in the Rock Lobster Regulations 1969 prohibiting the sale of undersized crayfish created an offence of absolute liability. After considering the purpose and content of the regulations as a whole, His Honour concluded that the intention of the regulation was to constitute an absolute offence in terms of the second class of offence defined in the judgment of Edwards J. in R v Ewart [1905] NZGazLawRp 92; (1905) 25 NZLR 709 (CA). Earlier His Honour had referred to the second class of case as, "those involving statutory offences of absolute liability in which the question of guilty mind is only relevant on the issue of penalty."

[20] The leading authority in New Zealand these days on whether or not mens rea is required is Millar v Ministry of Transport [1986] 1 NZLR 660 (CA). In that case the majority of the court (Cooke P. and Richardson J.) held that there were three principal categories of offences:

(a) Those requiring proof of mens rea as an ingredient of the offence;

(b) Offences of strict liability where the prosecution is not required to prove mens rea or fault, but a defence is available where the defendant proves absence of fault on the balance of probabilities; and

(c) Offences of absolute liability when neither absence of mens rea nor absence of fault exculpates the defendant.

[21] The categorisation in Millar establishes a third type of offence, where despite mens rea not being an essential element, the statute will be interpreted so as to give the defendant the defence of absence of fault (the burden of proof resting on the defendant). As to when this the third category of offence might apply, the majority stated (p.668):

"We are not attempting or proposing any drastic judicial surgery. Where the law is settled in New Zealand, as by decisions of the Privy Council in New Zealand cases or by this Court on particular sections or their forerunners, it should remain undisturbed. Civil Aviation Department v MacKenzie was not meant to disrupt firmly-settled patterns of statutory interpretation in particular fields. Nor would it be right to exclude in advance the possibility that particular statutes creating offences, when silent as to fault or mens rea, may import absolute liability or some variant of liability outside the mainstream. But as a general approach to statutory offences when the words give no clear indication of legislative intent and there is no overriding judicial history, it will be right to begin by asking whether there is really anything weighty enough to displace the ordinary rule that a guilty mind is an essential ingredient of criminal liability. If there is, the next inquiry should be whether the statutory purpose and the interests of justice are on balance best served by allowing a defence of total absence of fault, with the onus on the defendant."

[22] In the instant case, I cannot accept that the defence has established a total absence of fault as the accused is (on any analysis) far from faultless. Thus, even if it were accepted that Millar represents the law in Tonga, it would not in this instance assist the defence case.

[23] The English Privy Council in Gammon (Hong Kong) Ltd v A-G [1984] UKPC 17; [1984] 2 All ER 503, 508 summarised the principles applicable to the application of the mens rea doctrine and concluded that they can be formulated in the five following propositions:

"(1) There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is "truly criminal" in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is whether statute is concerned with an issue of social concern; public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."

[24] Gammon states that, even where a pressing social need is demonstrated, the presumption of mens rea will still apply unless it is shown that strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.

[25] The social need the Crown prosecutor identified in the present case is "the danger to the marine environment resulting from the removal or taking of coral without permission." That danger, the prosecutor submitted, "is so obviously great that an absolute prohibition against the removal of coral without proper authority must have been the intention of the legislature." I accept that proposition although it needs to be qualified by acknowledging that the offence was not against an Act of Parliament but against a regulation. In such a situation, as Mahón J. stated in the Wareham case, the appropriate test is to examine the words of the enabling statute to see whether the discretionary powers vested in the executive government by the Legislature fairly and properly included the making of the regulation in question. In the present case, I have no doubt that the regulation making powers prescribed in the principal Act authorised the absolute prohibitions contained in regulation 27.

[26] I conclude my brief overview of the relevant authorities by noting that the English Court of Appeal in the recent case of Regina v Muhamad [2002] EWCA Crim 1856; [2003] QB 1031, signalled a slight change in the relevant test:

"15. The question, whether the presumption of law that mens rea is required applies, and, if so, whether it has been displaced, can be approached in two ways. One approach is to ask whether the act is truly criminal, on the basis that, if it is not, then the presumption does not apply at all. The other approach is to recognise that any offence in respect of which a person may be punished in a criminal court is prima facie sufficiently "criminal" for the presumption to apply. But the more serious the offence, the greater the weight to be attached to the presumption, and conversely, the less serious the offence, the less weight to be attached. It is now clear that it is this latter approach which, according to oar domestic law, must be applied.

16 The starting point, therefore, is to determine how serious an offence created by [the relevant provision), and accordingly how much weight, if any, should be attached to the presumption. . . . "

[27] The level of penalty at issue in the present case (a maximum fine of $10,000 with no custodial penalty provided) indicates, in terms of the Muhamad test, a less serious type of offence and, therefore, the presumption that mens rea is required can be easily dispensed with.

[28] As I have not heard argument on the matter, it is unnecessary for me at this stage to reach any conclusion as to which of these authorities best represents the state of the law in the Kingdom. In point of fact there seems little practical distinction between them. Suffice it to say that in terms of any of the tests identified, it appears clear that the present case is not one in which mens rea is an essential ingredient. For this reason, I am satisfied that the Crown has established beyond reasonable doubt all the essential elements of the charge and the accused is convicted accordingly.

NUKU'ALOFA: 12 OCTOBER 2007

CHIEF JUSTICE