Rex v To'a [2012] TOSC 75; CR 294 of 2011 (20 July 2012)

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

CR 294 Of 2011

REX

v

'AISEA SILIVENUSI TO'A

BEFORE HON. JUSTICE CATO

Counsel: Ms. Macomber for the Crown and

Mr. Teisina Fifita for the Defendant

Date of Hearing 11th, 13th, 16th July 2012
Date of Judgment 20th July 2012

JUDGMENT

The accused was charged with one count of obtaining property namely money by a false pretence contrary to s 164 Criminal Offences Act Cap 18.

The particulars of the offending were that on or about the months of April and May 2001 at Halaleva, he did obtain money by false pretences in that he obtained money from Asia Pacific Engineering Ltd (Tonga) for the sale of scrap metal on the false pretence that the scrap metal belonged to him when in fact it belonged to Vete Holdings Ltd.

A false pretence is not defined in the legislation however a representation made by words or otherwise of a matter of fact, and which the person knows to be false or does not believe to be true is a false pretence.

In this case the false pretence or representation as the Crown case was advanced and particularised was that the accused represented that scrap metal belonged to himself when in fact it belonged to Vete Holding Ltd.

In this case, I heard from the director of Asia Pacific Engineering a Mr. Joeli Kalou who said that his company based out of Fiji operated in various countries in the Pacific sourcing and obtaining scrap metal. In March 2001, operations were commenced in Tonga. He recited some difficulties the company had with personnel leading him to take over operations fairly shortly after the company commenced business in Tonga.

He produced an agreement he said was signed by himself between the Company and the accused which was dated the 13th day of April 2011.

The accused is referred to as the vendor and the company Asia Pacific as the purchaser.

More particularly, the agreement provided that;

"It is agreed that the vendor is selling the scrap metal belonging to the Vendor to the purchaser on the following conditions;

1. The scrap is sold for $4 per vehicle and $1000 per container (minimum of 20 tonnes per container) for the entire scrap in all the yard belonging to the vendor.

2. Total scrap consists of all the vehicles, machines, machinery and parts in the yards.

3. The scrap is located at Halaleva, Ngele'ia, Tofoa and the Quarry.

4. Payment will be made at the end of each week after the pickup during the week.

5. The pickup and drop off of scrap is the responsibility of the purchaser

6. The weighbridge cost is the responsibility of the purchaser

7. The vendor declares that it has full power to sell the scrap and that the scrap is not mortgaged or charged to any person /persons or to any other entity of whatsoever kind and nature nor is it subject of any liens or any adverse claims whatsoever."

In this case, the prosecution turns on metal that was sourced from an area known as the quarry. As the evidence became clearer, it seems that the area known as the quarry consisted of two separate areas from which metal had been sourced by the accused and acquired or purchased by Asia Pacific.

There was a lower area from which scrap was acquired and that area was owned by a person known as Sitiveni Iongi. He was not called to give evidence and there is no evidence as to what if any arrangements had been made by the accused to acquire scrap from this property for consignment to Asia Pacific. It does not seem to be disputed that some scrap was acquired from this property, but this is not the subject of complaint. What was the subject of complaint forming the basis of the charge was the metal acquired from a higher or more elevated area of the quarry owned by Vete Holdings Ltd.

A representative of this company, Iuna Vete gave evidence of this being a family business. Although the quarry was no longer used because the company had acquired a new quarry, there was still at the old quarry some machinery which was going to be transferred to the new quarry. The witness gave evidence of being driven to the property and encountering a Fijian man working there.

A discussion took place between the driver one Hufanga Veleika who also gave evidence that he had a discussion to the effect that the accused had given the Fijian man instructions to dismantle the excavator and hopper for scrap metal. He was told not to touch h it. He should contact the owner. The Fijian seemed to agree. They left.

On a later occasion Iona went back to the property with the driver, this time to secure a part from a machine but also to check of the property because there was no security. Nobody was present but they noticed items missing. Because Aisea had been mentioned by the Fijian man they went to Aisea's yard. Iona saw a Fijian man there cutting up scrap metal. He was putting it into a container. Later Aisea came to the yard. By that stage Ione had contacted her brother about the matter. He had a conversation with Aisea at the yard in which he denied taking the goods. Aisea asked the Fijian if he had taken them and came back and said they the Fijians had admitted taking the goods. Aisea was confronted with the statement made to Hufanga by the Fijian man at the site earlier that Aisea had given them instructions to take the goods. That man known as Tevita Koi subsequently gave evidence. It was apparently known by Aisea at that point that the police had been called and he according to Iona asked her brother if he could settle it on the side. The brother said no.

She proceeded to identify certain items as coming from their site; in particular an axle from a hopper which had been on the site. The police arrived and certain items were pointed out. The container was locked and the police said they would come back later. She claimed that the hopper was still operational and she claimed although there was no supporting evidence given of this that Vete's had lost about $80,000 as a consequence of the removal of the hopper.

Mr. Hufanga Veleika was called and essentially confirmed he had told the Fijian man not to take items from the Vete quarry. He said later he returned and there were parts missing of a bulldozer, the track of an excavator, and the hopper was missing. He said he saw Fijians working at Aisea's yard, and he later identified also some of the items in the container at that yard.

Police Constable Satini spoke of telling Aisea not to take the container to the wharf. Aisea had told him there was no metal from Vete in the container. He later interviewed the accused under caution but he denied any offending. This witness informed defence counsel under cross-examination that he had received money latter said to be about 20 pa'anga for food from Aisea for he and a colleague. I informed the officer that under no circumstances should he accept money from a person suspected of committing offences, although I do not think these unwise actions compromised the case in any way. I make further mention of this later in my judgment.

I however record that the Crown should take this matter up with the appropriate authority, so that at least the officer is given a warning. Under no circumstances should police officers accept money from suspects or person of interest for any purpose whatsoever.

Manaca Rosuga was a Fijian metal cutter who worked for Asia Pacific. He gave evidence that he asked Aisea about taking metal from the quarry and was told it all belonged to him. He said in particular when asked about the hill area that everything belonged to him. He talked of various items being removed from this area, a differential, a scoop and other items. He said his boss had told him to accept instructions from Aisea. Aisea had told him to bring it to the yard because it was his. He had the impression it was Aisea's quarry.

He did not know the owners of either of the sites. He said he had asked Aisea at the yard about the metal. There was some pressure to complete the filling of a container for transport.

Later when he resumed evidence after a break for illness he identified certain parts in photograph three (the same parts as had been described by Hufanga as coming from the hopper on the Vete property) as being taken from the Vete property and being put into the container. He said he did not know what a hopper was and he had not seen one at the Vete property. No cutting had taken place at the Vete property.

Tevita Koi who was a driver and it seems also a cutter from Asia Pacific gave evidence of going to the quarry on the first occasion and cutting up items from the bottom part. He gave evidence of taking other items tractor rods, and a differential on a second occasion from higher ground. He had spoken to Aisea because the previous witness Manaca did not speak Tongan well and he was assured it was Aisea's to take. He did not know the owners. When they arrived back at Aisea's yard the items were cut up. He identified certain items in the container as coming from the Vete property.

He confirmed that he was the person who had been told by the driver (Hufanga) not to take property that was on the hills. He had approached Aisea later about this and was told by him to get what was on top. On this occasion he said he had already talked with Vete and for us to get the things on the top. He also admitted denying metals were from quarry when first confronted about this from Hufanga but said that was because Aisea said not to become involved. He said he had told Hufanga at the yard to see Aisea about the matter.

The final Crown witness was Joeli Kalou who gave evidence of obtaining scrap metal from Aisea whose job it was to source it. He said he had no problem with the accused in previous dealings. He entered into the agreement set out above and told Aisea to point out to his boys what could be taken. He said there were two containers and a bill of lading was produced to this effect with metal from Aisea. He had paid him $ 1000 per container or $2000.00 for the metal. He said had he known the quarry or part of it was owned by Sitiveni Iongi he would have asked his permission. He said was that he thought Aisea had authority. Later he paid Sitiveni for an item that should not have been taken. He said he had never been to the quarry. He knew only of problems when he spoke to Iona Vete and Sitiveni.

His evidence was adjourned at the conclusion of cross-examination to allow him to produce the documents from records. When the case recommenced a medical certificate was produced indicating he would be unable to give evidence for a couple of days. The Defence indicated that it would not require him to give evidence further at my request. The Crown wanted the documents produced but in my view as the case developed not a great deal had turned on them so I decided not to require further production.

The accused gave evidence. He maintained he had visited the quarry area with a man by the name of Uesi who had briefly been associated with Asia Pacific and he also said he had visited on one occasion with Joeli. This was a conflict because Joeli denied ever visiting the site and he was not cross-examined on this matter further by the defence. He said he had told him he could not take the crusher on Sitiveni's property because it was under charge. There was, he said, an excavator that belonged to Vete's apparently at the site of Sitiveni which could not be taken. He denied touching or taking any metals from the Vete quarry.

He denied talking with Manaca. He said Manaca did not speak Tongan and he did not understand his English. He said he only talked to Uesi and a former director of Asia Pacific known as Edward. He never spoke to Tevita - he was only a driver- nothing else. He denied under cross-examination ever giving Tevita Koi any instructions concerning the Vete property. Again he emphasised he had told Joeli at the quarry what metal should not be touched including the Vete excavator which he said was on this site.

He spoke of Sitiveni owing him money for an uncompleted contract and the metal was in exchange for this. There was he said another arrangement for the sale of a caterpillar tractor to a third party which he was instrumental in facilitating for Asia Pacific with it seems Sitiveni's permission. There was some acceptance by Joeli that there was a deal struck with a third party to sell a tractor as scrap but it seemed this was irrelevant to the main issue in the case which as pleaded by the Crown was the Vete metal and not the metal acquired from the Sitiveni quarry. He also said there was a hopper at Vete's. He did not know it was no longer there and had not seen it later.

He admitted going to his yard and seeing Hufanga, and Ione and her brother. He said he told Iona he knew nothing about equipment taken from the Vete property but would ask the Fijians about it. He told Ione the Fijians denied taking Vete metal. He said it seems later Tevita told him that he was sorry he had taken some from Vete quarry but we never told Vete about it.

He said he had not been paid for the container. He had got paid in all about $6000.00 for other containers. He said the container was taken away about 2-3 months later.

He admitted the police officer Satini was given money by him. He denied this was a bribe.

Uesi Nau gave evidence that he had cut from the Sitiveni quarry and at no time had cut from the Vete quarry. He said they never took from the Vete quarry. He said he left after about a month and had no knowledge what happened after that. On the aspect of his working, Manaca denied ever being told as the defence put it being stopped by 'Uesi from cutting at the Vete quarry. Uesi said he could not remember if he had taken Joeli to the quarry.

Submissions

For the Defence, Mr. Fifita contended that Hufanga was a credible witness who had told Tevita Koi not to touch machinery belonging to Vete. When confronted by Hufanga afterwards Tevita had denied taking the metals from Vete. He said this amounted to consciousness of guilt. The defence essentially was that if metal had been taken from Vete his client was not involved but the Fijian cutters Manaca and Koi had done so of their own volition and without authority. He said the Fijians were told what to take from the quarry, and that they had essentially stolen the metal they admitted taking from the Vete property. He said there was no false pretence on the part of Aisea, and the case was not established beyond any reasonable doubt.

Ms Macomber for the Crown contended that the case was proven beyond a reasonable doubt. She complained that certain matters raised by the defence had not been put to Prosecution witnesses, in particular that Aisea had said Tevita Koi had apologised for taking the metal from Vete to Aisea. I also note Mr. Kalou was not challenged on his assertion he had not been to the quarry when the accused in evidence said he had been and had been told by him what could not be taken. Nor was there any suggestion put to him that the container in issue was not the subject of payment, as the accused in his evidence had said. Nor do I recall it being said to the police officer that the container was shifted for two months from the site and not shortly after police had instructed it not to be removed and it had been locked. It is fundamental that the defence case be put to Crown witnesses for their comment.

She said I should accept the evidence of the Fijian men Manaca and Tevita. They were employees paid to take instructions and listen. There was she said a false pretence namely the accused had represented in writing that he was authorised to take the metal and that he had informed the employees Manaca and Tevita when asked by Tevita whether they could take metal from the hill area that it belonged to him and he had spoke to the Vete's about this. She contended that in all the circumstances the representation given to the Company in writing and repeated to employees was a false pretence and that this was deliberately made so as to induce the employees to take Vete material which she accepted was mixed with other material in the container. She said Asia Pacific paid for that material it would seem a thousand dollars for the container, and this money had at least in part been induced by the false pretence made to the employees that metal on the upper area owned by Vete belonged to him. She pointed out as was the case in evidence that Joeli had said he would never have allowed metals not belonging to Aisea to be taken. The representation made to the employees was false and meant that they were able to fill the container which was shipped out and for which payment was made.

Judgment and Verdicts.

I remind myself that the Prosecution must prove beyond reasonable doubt;

1. That the accused

2. On or about the dates set out in the indictment April - May

3. Made a false representation

4. And as a consequence obtained for himself a benefit in this case money.

I record the following findings of fact.

1. That in the month of April the accused entered into a contract with Asia Pacific to source and supply metals for them from various named quarries.

2. The basis for Aisea's relationship and dealings with Asia Pacific were incorporated in that agreement. It was fundamental that Aisea owned the metal that he was selling, and he represented in effect that would be the case.

3. That it was a term of that agreement that he had the right to deal with the metal and sell it without restriction.

4. That employees of Asia Pacific Manaca Rasuga and Tevita Koi cut and took metal from a number of quarries including metal from a lower level quarry belonging to Sitiveni. This metal is not however the subject of the particulars of false pretence.

5. In so far as the metal allegedly taken from the Vete property is concerned I accept the evidence of Joeli Kalou that he did not visit the quarry and that he instructed his men to abide the instructions of Aisea as to what could be taken. That is perfectly consistent with the intent evidenced in the written agreement of the 13th April 2011. I do not accept the evidence that the accused ever took him to the quarry and told him what could be taken from the bottom site. I found Mr. Kalou a clear and convincing witness.

6. Likewise I found the employees Manaca and Tevita witnesses of the truth. I found no reason to disbelieve their evidence. I accordingly find that they did seek assurance from the accused that they were entitled to take metal from the upper level. I believe Tevita when he said that he had been told by a driver not to take metal from the upper area and he sought an assurance it could be taken when asked by Manaca to get that assurance. I accept that Tevita was told by the accused that the metal in the upper area belonged to him and that he had spoken with the Vete people about this. I see no reason why either of these employees would take metal without authority. They were simply employees acting on the instructions of the principal Joeli. Manaca and Tevita confirmed in their evidence that they had been given instructions by Joeli Kalou to act in accordance with the direction Aisea gave them. I record that I find their evidence clear and convincing and I am satisfied beyond any reasonable doubt that a false representation was made to Tevita in particular and the consequences that flowed from this was that Joeli Kalou or Asia Pacific took away the container and paid the accused a thousand dollars for that container. At no stage in cross-examination did the accused challenge this; nor did his counsel seek to have Mr. Kalou return to give evidence on this point. This amount is consistent with the amount set out in the agreement. I found no reason to reject any of their evidence. I accept Mr. Kalou when he said that he would not have accepted metal from Aisea that belonged to somebody else. I infer that he would not have paid Aisea for metal that belonged to somebody else.

7. Accordingly I record I reject the accused's evidence in so far as it conflicted with the testimony of Mr. Kalou, Manaca, or Tevita Koi, on the material issues I have referred to and I do not find the evidence of Mr. 'Uesi Nau of assistance either. He was unable to recall if he went to the property with Mr. Kalou for example and it seems he was employed if at all by Asia Pacific only for a short time and there is no suggestion that he was involved in the final stages when the container at Aisea's property was filled with some metal from Vete.

8. I do not, however, find that the accused was responsible for removing a whole hopper from the Vete property. That is a finding I cannot make on the evidence. The Fijian men who took items from the upper part of the quarry said they were parts only and no cutting was done on the upper site. At best, I find certain parts may have come from a hopper those parts being identified by Manaca in photograph three (which earlier Hufanga had said came from the hopper). What became of the hopper I do not know or if the parts identified were indeed from the hopper when it was broken down. I do accept however that certain metal parts mentioned by the witnesses who took them from the Vete site found their way into the container in question, and that is the basis upon which I convict.

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9. I also find that a sum of money was sought although small by Police officer Satini and was paid by the accused at the request of Satini. I record that I find this most concerning but I also record that it did not form part of my reasons for disbelieving the accused. I would ask that this judgment be referred to the Commissioner by the Crown so that a warning may be given. I do not however suggest this prosecution was in any way compromised by the actions of the police officer concerned. They were at the highest unwise.

10. I record that the container in question seems to have been mixed with other items of metal that may have been appropriately acquired. The payment of a thousand dollars was although in part paid for product of metal derived from a false representation, also contained metal that was legitimately consigned. I consider as the evidence unfolded I think in all likelihood anxious to complete filling the container, the accused chose on the final occasion to falsely and rather opportunistically accede to the request of Manaca and Tevita as to whether metal could be taken from the hillside and falsely represented to them that it was his and could be taken.

Accordingly I find the charge proven beyond reasonable doubt and the accused will be convicted.

However, for sentencing purposes I record that I find the false pretence related to metal that was packed in the container with other metal which the accused had a right to take and sell to Asia Pacific. I am not able to say how much metal was derived from Vete's, and in the container as opposed to other metal deposited from other sources. This will be reflected in the sentence imposed.

JUDGE

DATED: 20 JULY 2012