Rex v Lui [2013] TOSC 11; CR154 of 2012 (24 July 2013)

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

CR154 of 2012

REX

V

VILIAMI LUI

BEFORE THE HON. JUSTICE CATO

Mrs. Langi for the Crown
Mr. Pouono for the accused

RULING

[1] The accused Viliami Lui was charged with one count of advising an importer to commit an offence contrary to section 96(3) of the Customs and Excise Management Act 2007. The particulars are that he on or about the 10th April 2012 at Ma'ufanga did advise Ross Brljevich to commit an offence.

[2] Section 96(3) provides;

Any Customs broker, who aids, abets, advises or assists in any way an importer or exporter to commit an offence under this Act commits an offence and shall be liable upon conviction to a fine not exceeding $100,000 or to a term of imprisonment not exceeding 10 years, or both.

[3] The evidence established that Scenic Hotel Tonga wished to import a container of items. It approached a customs agent whom the accused worked for in Tonga to facilitate Customs clearance. Scenic had prepared a schedule of the goods and had calculated a fee of $91,670.28 as payable for import duties. This document was given to Mr Lui who was employed as a customs agent. Mr Lui then approached a senior employee of Scenic, Mr Ross Brljevich, who was looking to have the good cleared in Tonga with an email in the following words;

"Hi Ross,

Attachment, its my method to decrease your duty/Ct. So all I'm asking you that if you accept it or not. So that I'll start deal it with customs.

Its decrease from TOP 91670.28 to TOP 33235.44.

The difference is $58434.84

You can also tell me how much for me if I do this or you can ring me.

Thanks Boss awaiting your confirmation"

Mr Brljevich then responded;

"Can you please advise why there is so much difference from the first amount of $91,670.28. Can you scan and send me a copy of the first document."

The accused replied;

"Morning Ross,

Attach it's the duty &ct based on Proforma invoice that you send from New Zealand.

The one I sent yesterday it my own invoice to cut down the duty &ct.

I just want to help because I have been a broker here in Tonga since 2006 and I'm telling you $91670.28 its too MUCH for 1x40' FCL.

So which one you want me to lodge with custom. Your early reply would be appreciated so that we can move on.

[4] Scenic proceeded to file an "import entry" for the higher amount of duty which it paid and both Mr Lui and Mr Brjevich informed Customs about the matter and Mr Lui was interviewed by the police. He admitted sending the emails. He said he had told Ross he can decrease the amount of tax using my way and I send him a copy of the estimate. Essentially, the method used by the accused, involved a falsification of values of the goods in the container. Mr Brjevich learned this by comparing the original document prepared by Scenic with the document prepared by Mr Lui for the lesser amount of duty.

[5] Mr Lui was charged with the present offence by the police. At the conclusion of the Crown case, Mr Pouono for the accused argued that there was no case to answer. He submitted that because no offence had been committed by the importer, that is the importer had not accepted the advice, the accused could not be charged with an offence of advising him to commit an offence under the section. Mrs Langi contended that the section should be read disjunctively so that advising an importer or exporter to commit an offence under the Act would constitute an offence even though the advice had not resulted in any offending. She submitted this should be the case because the accused's actions were corrupt, and he was deserving of punishment under the section even though the advice had not been accepted by Scenic and acted on.

[6] Mr Pouono also contended that in any event no "advice" had been given by his client to commit an offence under the Act, an argument with which Mrs Langi also disagreed. On this point, I consider that the language in texts consisting of an invitation by the accused to the importer to reduce the cost of importation by submitting a document to customs containing he knew false values of goods, could amount to the giving of corrupt advice.

[7] Mr Pouono argued, however, that there had to be evidence that the advice led to the importer accepting the advice and committing an offence. Plainly this would be the case if aiding, abetting or assisting were the basis of the charge. Mrs Langi referred to R v Funaki [2005] Tongan LR 239 at 247 where Blackstone is cited and the point made;

"The phrase "aid, abet, counsel and procure" may be, and generally is, used as a whole even though the accused's conduct may only be properly described by one of the four constituent words. Partly for this reason, the precise meaning of each constituent word has not been authoritatively determined but "aid" and "abet" are generally considered to cover, respectively assistance and encouragement given at the time of the offence, where as "counsel" and "procure" are more apt to describe advice and assistance given at an earlier stage."

[8] She argued that this meant I should consider the word "advise" disjunctively. The section was, she contended, intended to permit prosecution for giving advice to an importer and exporter to perform an act that was unlawful under the Act even though the importer, as here, did not accede to the advice and act upon it. Whilst a disjunctive reading of the section could support that interpretation, I find more persuasive the fact that advice was coupled in the section with the words aid, abet, or assist to mean, as Mr Pouono argued, that the legislature intended prosecution to follow only if the importer acted on the advice and there was evidence that an offence had been committed. This being penal legislation, (the English version consisting of a penalty of $10,000 or a term of imprisonment of 10 years, the Tongan version, as Mrs Langi pointed out, providing for fines of $10,000 or 3 years imprisonment), had the legislature wanted to expose a person to such heavy penalties for giving corrupt advice that was not accepted and did not result in offending, then I consider that should have been expressed far more clearly.

[9] In my view, the interpretation placed on the section by Mr Pouono is preferable to that for which Mrs Langi contends, which I consider doubtful at best. Halsbury vol 44(1) 4th ed, para 1456 provides guidance on the approach which I should take in such circumstances.

"It is a principle of legal policy that a person should not be penalized except under clear law, or in other words should not be put in peril upon ambiguity; so the court, when considering, in relation to the facts of the instant case which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. It should therefore strive to avoid adopting a construction which subjects a person to any detriment where the legislator's intention to do so is doubtful, or penalizes him in a way which was not made clear by the legislation in question."

See further Lord Diplock in R v Cuthbertson [1981] AC 470, at 48, and Gibbs J in Beckworth v R [1976] HCA 55; (1976) 135 CLR 569, at 576.

[10] Applying these principles to this case, I consider that the intent is unclear and accordingly applying the above rule of construction, the Crown has not established a prima facie case. In accordance with Tongan practice, I will direct the jury to return a verdict of not guilty.

DATED: 24 JULY 2013
J U D G E