Attorney General v Vatikani [2015] TOSC 23; CV14 of 2015 (24 June 2015)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA TONGA

CV 14 OF 2015

BETWEEN:

ATTORNEY-GENERAL

Applicant

AND:

'OFA VATIKANI

First Respondent

LAUCALA POHIVA

Second Respondent

KELE'A NEWSPAPER

Third Respondent

TO: Mr. 'A. Kefu SC for the applicant
Dr. Harrison QC SC for the respondents

Hearing : 5 June 2015.
Ruling : 24 June 2015.

RULING

[1] This is an application for committal of the respondents on the ground that they are guilty of contempt by scandalising the Court. The proceeding is brought in reliance upon Order 38 Supreme Court Rules and following the grant leave on 20 March 2015.

[2] The application arises from the publication of an article in the Kele‟a Newspaper of 2 March 2015 reporting on a hearing conducted by Magistrate Mafi (the article). The article was published in the Tongan language but I have been provided with an English translation which appears later in this ruling.

[3] The Kele‟a is widely distributed in Tonga. It is also distributed in some overseas countries. The first respondent is the Editor of the Kele‟a and the second respondent is the Publisher of the Kele‟a.

[4] The affidavit filed in support of the application of James Bruce Lutui provides details of the hearing before Magistrate Mafi. Mr. Latui is a Crown Counsel and was the Prosecutor appearing at the hearing before Magistrate Mafi.

[5] On 27 January 2015, Magistrate Mafi, heard charges against Meilin Liu and Fe Kaifeng Tian. Liu was charged by summonses 30-31/15 with (1) attempting to export prohibited goods and (2) possession of sea cucumber during the closed season. Tian was charged by summonses

29, 32-33/15 with (1) attempting to export prohibited goods, (2) attempting to export restricted goods and (3) possession of sea cucumber during the closed season. Liu and Tian pleaded guilty to the charges and, after their Counsel made submissions on their behalf, they were sentenced by Magistrate Mafi.

[6] Liu was sentenced as follows: (1) attempting to export prohibited goods (summons 30/15) to a fine $1000 or one month imprisonment in default of payment, and (2) possession of sea cucumber during the closed season (summons 31/15) to be convicted and discharged. Tian was sentenced as follows: (1) attempting to export prohibited goods (summons 29/15) to a fine of $1,000 or one month imprisonment in default of payment, and (2) attempting to export restricted goods (summons 32/15) to a fine of $1,000 or one month imprisonment in default of payment, and (3) possession of sea cucumber during the closed season (summons 33/2015) to be convicted and discharged.

[7] In his affidavit, Mr. Lutui refers to the matters that Magistrate Mafi took into account in sentencing Liu and Tian. He says that Magistrate Mafi imposed the sentences upon Liu and Tian in open Court and that the written Court Decision was subsequently issued. It appears that he is referring to the official record of the charges and the sentences issued by the Court. The written Court Decision in the case of Liu contained an error in that the summonses numbers stated at the top of the document were wrong and corresponded to the summonses numbers in relation to Tian. However, the summonses numbers in the

body of the document were correct. Magistrate Mafi‟s reasons for his decisions on sentence were not typed up.

[8] The article (translated into English) reads as follows:

Questionable whether a Court Order should look like this

A Decision of a Magistrate is published in the Kele‟a this week about a trial of two Asians on the 27th of January this year, after they were found to be in possession of sea cucumber at the Fua‟amotu, Airport over the past weeks. These two Asians were Fe Kaifeng Tian and Meilin Liu, both from China. However, in this trial, both accused were found guilty, including Fe Kaifeng

Tian. He was convicted on 3 criminal summons which were: 1. Summons Number 29/2015 – Attempting to export prohibited goods. 2. Summons Number 32/2015 – You exported restricted goods, and 3. Summons Number 33/2015 – Possession of sea cucumber during the closed season.

Fe Kaifeng Tian's Decision

In a decision handed down by Magistrates Salesi Mafi to the accused, he ordered that for summons number one – "Fined $1000 to be paid immediately, or one month imprisonment in default".

For the 2nd summons, Salesi Mafi imposed, a fine of $1,000 to be paid immediately, or one month imprisonment in default. The sandalwood is to be given to the Bailiff division on the Ministry of Justice to be auctioned off.

For the last summons, he "convicted and discharged" the accused and "the sea cucumber is to be destroyed".

This decision is questionable because the Magistrate does not give any explanation or reasons and the basis for the discharge. Did the prosecution or counsel for the two accused make submission to that effect, which is the reason for the discharge.

Those matters are not shown on the court order which contains the Government of Tonga and Magistrate‟s Court stamps.

Meilin Liu Decision Suspicious

The decision of Magistrate Salesi Mafi‟s in relation to Meilin Liu is suspicious in this way. In the court order shown above, it shows that the case number is Cr No. 29, 32, 33/2015.

It looks suspicious because the core of the order is not the same with the summons number of the case shown on the court order.

It is stated on the summons given to Meilin Liu that – Summons Number 30/2015 – Attempted export of prohibited goods. And on the 2nd summons it shows – Summons Number 31/2015 – Which is a summons for "possession of sea cucumber during the closed season".

In relation to the second summons, it shows on the decision that the accused (Meilin) is convicted and discharged and the sea cucumber seized is to be destroyed. The sea cucumber refers to the sea cucumber that was found on the two Asians that were accused.

However, it shows on Magistrate Salesi Mafi‟s decision in relation to Meilin Liu‟s, that he gave his final decision on the 27th of January this year as well. The question is why is the summons number different from the case number that is shown above in his court order?

In accordance with reliable information that the Kele‟a has received, there was communication from high authorities in Government to the Ministry of Justice to release these Asians because they are friends of the Former Prime Minister. Those that are alleged to have made these communications, are the two Edwards and also the Acting Secretary to Cabinet?"

[9] The written Court Decisions were reproduced in the article underneath which were written the words "This was the order of Magistrate Salesi Mafi. It is questioned whether this is the correct procedure in entering an order of the Court where no details are given."

[10] There were also photographs of Magistrate Mafi, Mr. Clive Edwards and the Acting Secretary of Cabinet, Mr. „Aholotu Palu, with their names on the photographs identifying each of them.

[11] The application contends that the article made statements to the effect that:

• [11.1] Magistrate Salesi Mafi gave preferential treatment to the

two accused because he was contacted by Clive Edwards, William Edwards and „Aholotu Palu to release the two Accused because they were friends of the former Prime Minister, Lord Tu‟ivakano.

[11.2] Magistrate Salesi Mafi had been influenced by Clive Edwards, William Edwards and „Aholotu Palu to convict and discharge the two Accused on some of the charges against them.

[11.3] Magistrate Salesi Mafi was not impartial in sentencing the two Accused.
[11.4] The statements were calculated to lower the authority of Magistrate Salesi Mafi, the Magistrate‟s Court and the Tongan judiciary as a whole.
[11.5] The statements were made with malice to abuse the

authority of Magistrate Mafi, the Magistrate‟s Court and the Tongan judiciary as a whole.

[11.6] The article created a real risk of undermining the public

confidence in the due administration of justice by Magistrate Mafi, the Magistrate‟s Court and the Tongan judiciary as a whole.

[12] In his affidavit, the first respondent, Mr. „Ofa Vatikani, acknowledges that he is the Editor of the Kele‟a and responsible for its editorial content. He wrote the article and published it because he considered features of the cases appeared unusual. Those features were, what appeared to him to be, the absence of reasons for the Magistrate‟s decisions and discrepancies on the face of the Court documents. He says that he raised these issues in the article as questions rather than "by way of actual claims as to the true facts of this case". He said that at the time of writing, and based on the information that he had to hand, he believed that the factual content of the article was true and correct and that he has not had reason to question the factual content of the article.

[13] In her affidavit, the second respondent, Ms. Laucala Pohiva, acknowledges that she is the publisher of the Kele‟a and that, whilst she does not exercise editorial control or review content, she is ultimately responsible for its content. She did not see or approve the article before it was published.

[14] Both Mr. Vatikani and Ms. Pohiva deny that the article was written with malice or to abuse the authority of Magistrate Mafi, the Magistrate‟s Court or the Tongan judiciary. They also say that they do not accept the Attorney-General‟s analysis of the content of the article or its claimed effect. However, if the Court were to hold that the article "went too far" and amounted to a contempt of Court then they wish to tender an apology.

THE LAW

[15] The relevant law has been set out in some detail by the Court of Appeal in Namoa v Attorney General[1] and more recently by Scott CJ in Attorney-General v Tapueluelu.[2] I consider that the law is well settled and for present purpose the relevant principles are as set out below.

[16] Any act done or writing published calculated to bring a Court or a Judge into contempt or to lower his authority is a contempt of Court.3 The purpose of this form of contempt is to protect the public (not the Court or Judge) from the mischief that will occur if the authority of the Court is undermined or impaired.

[17] Anyone is free to criticise the decisions of the Court or the conduct of any Judge, even if the criticism is outspoken, mistaken or wrongheaded, provided that it is not likely to undermine the public confidence in the administration of justice. In many cases the good sense of the community can be relied upon as sufficient safeguard against a scandalous disparagement of a Court or Judge.4

[18] In an action for contempt by scandalising the Court, what must be proved beyond reasonable doubt is the publication of material that is calculated, in the sense of likely, to bring a Court or a Judge into contempt or lower their authority in the eyes of the community. There is no requirement that it be proved that they were in fact so undermined.[3]

[19] In reaching its conclusion the Court must take into account the whole of the material and the context in which the material is published.[4] In this regard, Dr. Harrison took issue with the view expressed by Ward CJ in his judgment in the Supreme Court in Attorney-General v Namoa7 (referred to by Scott CJ in Tapueluelu8) that the level of criticism likely to undermine public confidence in the administration of justice is lower in a small community with few judges and a relatively undeveloped press and media. Dr. Harrison argued that this was illogical and unsupported by empirical evidence. He went so far as to suggest that a less stringent standard should be applied than in a larger community where higher journalistic standards can be expected to prevail.

[20] I place no reliance upon Ward CJ‟s words. I proceed on the basis that regardless of the characteristics of the community to which Ward CJ referred the legal test is the same. It must be proved beyond a reasonable doubt that the words are likely to bring a Court or a Judge into contempt or lower their authority in the eyes of the community. In a case such as this, it will be necessary to prove to the required standard that a publication has a wide circulation in the area where it is claimed confidence is impaired. There is no dispute that the Kele‟a has a wide circulation in Tonga.

[21] It is well established that an allegation that a Judge is partial or biased is calculated to bring that Judge into contempt. Such allegations are serious because they undermine confidence in the basic function of a Judge[5] Dr. Harrison submitted that it was the law in Tonga that the falsity of the particular imputation that was being made against a Judge is an element of the offence of contempt by scandalising the Court. Falsity, he said, had to be proved beyond reasonable doubt. He relied upon the judgment of Ward CJ in Attorney-General v Namoa[6] where the Judge said that "untrue allegations of bias or impropriety will amount to a serious contempt". These words were quoted by Scott CJ in Tapueluelu.[7]

[22] I do not accept Dr. Harrison‟s submission. A requirement to prove that an imputation made against a Judge is false is inconsistent with the principal objective of this category of contempt. The law seeks to protect the interests of the public not sit and try the conduct of the Judge. Furthermore, the judgment of Ward CJ was appealed to the Court of Appeal. I find no support in that Court‟s analysis for a requirement that falsity be proved. Whilst Scott CJ did quote the words of Ward CJ in Tapueluelu he did not consider that there was a requirement to prove falsity. At paragraph [19] Scott CJ said:

Once publication of contemptuous words has been proven it only remains for it to be proved that the words carried a real risk that confidence in the Courts would be undermined.

Did the article constitute a contempt by scandalising the court?

[23] Dr. Harrison argued that apart from the last paragraph of the article its thrust and effect was to criticise the Magistrate‟s Court process due to the absence or inadequacy of reasons for the sentencing decisions in respect of Liu and Tian. He acknowledged that the article might contain the implication that Liu and Tian were dealt with overly leniently. He said that this could not even remotely be said to amount to scandalising the Court.

[24] As to the last paragraph of the article, he noted that it queried whether "high authorities in Government" had communicated with the "Ministry of Justice" to "release" the defendants. He submitted that what was written did not carry implications that there was any form of communication to the Magistrate, that the Magistrate had been influenced by those said to have communicated with the Ministry of Justice or that the Magistrate was not impartial. Taken as a whole, it could not be said, he argued, that the article impaired public confidence in the integrity or impartiality of the Courts or the Magistrate and that this was a case where the good sense of the community was sufficient safeguard so that intervention of the Court was not necessary.

[25] Whilst acknowledging the need to read the article as a whole Dr. Harrison, in his analysis, does not do that. He reads the final paragraph disjunctively from the rest of the article and his literal interpretation of the final paragraph does not reflect how the words would be understood in the context of the article as a whole. In my view, the article was, when read as a whole and in context, likely to bring the Magistrate‟s Court and Magistrate Mafi into contempt and lower their authority in the eyes of the community.

[26] The article states that the Magistrate did not give reasons for his decision "for the discharge" and that there was an error as the case numbers shown on the Court record were not the same as on the summonses "given to Meilin Liu". Even if incorrect those comments would not amount to a contempt of Court.

[27] However, that is not all that the article says. The article highlights the fact of the discharge of Liu and Tian on some of the charges. It states that the decision of Magistrate Mafi was "questionable" because he did not "give any explanation or reasons and the basis of the discharge" and goes on and asks "Did the prosecution or counsel for the two accused make submissions to that effect, which is the reason for the discharge".

[28] There follows a heading "Meilin Liu Decision Suspicious". In relation to the error in the Court record, the article does not state that the record is incorrect rather it states that the decision of the Magistrate is "suspicious". The word "suspicious" is used two more times in the article when describing the decision.

[29] The reader is to understand that the Magistrate has given a decision to discharge Liu and Tian on some charges without reasons, that it is not known if his decision to discharge Liu and Tian was in accordance with submissions of the prosecution or defense counsel and that there is an irregularity in the Court record such that the decision is "suspicious".

[30] The article then asks; "The question is why is the summons number different from the case number that is shown above in his court order? This is in bold for emphasis. The last paragraph, that immediately follows, is clearly intended to provide the answer to this question as well as an explanation for what has been set out in the rest of the article.

[31] The reader would understand from the last paragraph that the explanation for the "questionable" court order and the "suspicious" decision of Magistrate Mafi were communications from high authorities to the Ministry of Justice to release Liu and Tian. That would have the effect, in my view, to lead members of the community to conclude that Magistrate Mafi was influenced to discharge the defendants, that he is not impartial and that the Magistrate Court is not an independent institution, but one that is subject to influence from people in high authority.

[32] Contrary to Dr. Harrison‟s submissions, I do not believe a reader would distinguish between a communication made to the Ministry of Justice and a communication made to the Courts. I do not consider that it matters either that there is no express statement in the article that there was communication direct with the Magistrate or that the Magistrate was in fact influenced. These are matters that are clearly implied.

[33] Dr. Harrison also argued that this was a case where the good sense of the community can safely be relied upon as a sufficient safeguard so as not to warrant the Court‟s intervention.[8] I do not accept that submission. The article was unbalanced, in some respects factually incorrect and pointed. It offered little opportunity for the reader to exercise sound and prudent judgement of the situation presented.

[34] For those reasons I am satisfied beyond reasonable doubt that the article scandalised the Court.

[35] For completeness, I note that Dr. Harrison pursued an argument that the applicant had not proved beyond reasonable doubt "that the statements made in the article falsely imputed bias or improper motives to the Magistrate". For reasons I have already given, that is not something that the applicant was required to prove.

THE RESULT

[36] I am satisfied beyond reasonable doubt that the charges against the respondents have been proved. I find them guilty of the offence of contempt of Court.

[37] I will hear Counsel as to penalty and costs.

O.G. Paulsen
NUKU'ALOFA: 24 June 2015. LORD CHIEF JUSTICE

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^[1] [2000] Tonga LR 70.
^[2] CV 52 of 2013 30 August 2013. 3 R v Gray [1900] UKLawRpKQB 63; [1900] 2 QB 36. 4 Gallagher v Durack (1983) 152 CLR 238.
^[3] Scott CJ in Attorney-General v Tapueluelu at 19.
^[4] Namoa v Attorney-General at 81. ⁷ [2000] Tonga LR 59, 64,65 ⁸ At paragraph 10.

^[5] R v Editor of the New Statesman, ex p DPP (1928) 44 TLR 301.

^[6] At 62.
^[7] At paragraph 19.
^[8] Gallagher v Durack [1983] HCA 2 referred to in Namoa v Attorney-General [2000] Tonga LR 56, 78.