Lamelangi v Police [2020] TOSC 59; AM 22 of 2020 (20 August 2020)

IN THE SUPREME COURT OF TONGA APELLATE JURISDICTION NUKU’ALOFA REGISTRY AM 22 of 2020
BETWEEN:
[1] ‘AMANAKI LAMELANGI [2] POLINE LAMELANGI [3] TELISA SAINZ [4] ‘ALISI TONGA	Appellants
-and-
POLICE	Respondent

JUDGMENT BY CONSENT

BEFORE:	LORD CHIEF JUSTICE WHITTEN
To:	Ms L. Tonga for the appellants Mr T. ‘Aho of the AGO for the respondent
Date of mention:	20 August 2020

1. On 20 March 2020, the Prime Minister issued a Declaration of a State of Emergency pursuant to section 32 of the Emergency Management Act ("the Act") in response to what has become the coronavirus pandemic. That Declaration has been renewed on a number of occasions since, the most recent being on 4 August 2020.
2. Since the state of emergency was declared, the Prime Minister also issued a number of "National COVID-19 Restrictions Notices". The Notices are stated to have been issued pursuant to powers conferred by sections 36 and 37 of the Act. Relevantly, the Notices provided for night-time curfews between specified hours.
3. On 23 May 2020, the appellants were at a friend's residence in Houma. They were charged with failing to comply with a direction contrary to section 39 of the Act.
4. Section 39 provides:

Any person who, without lawful excuse, fails to comply with a direction under this Act, or required by an authorised officer to give assistance, commits an offence and shall be liable upon conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years, or both.

5. In essence, the appellants were charged with having breached the curfew imposed by the Notice in force at that time.
6. On 2 July 2020, in proceedings CR 204, 205, 207 and 208 of 2020, Senior Magistrate Pahulu-Kuli convicted the appellants and fined each $1,000.
7. On 29 July 2020, the appellants appealed against their convictions and sentences.
8. The grounds of appeal include, in terms, that the learned Magistrate erred in law and/or fact when she:
   • (a) ruled that the Prime Minister issued the National Covid-19 Restrictions Notices as an ‘authorised officer’ under the law and by his power pursuant to section 37 of the Act;
   • (b) ruled that the notices covered all the people of Tonga, who knew the restrictions because a state of emergency have been worldwide for about six months;
   • (c) accepted that the directions, the subject of section 39 of the Act, were as contained in the Notices which were broadcast over the radio;
   • (d) ruled that even though none of the police officers gave any direction to any of the appellants prior to their arrest, the curfew stipulated in the Notice issued on 15 May 2020 was deemed to be a decision given by an authorised officer according to law;
   • (e) failed to observe natural justice in relation to the conduct of the police officers in approaching and arresting the appellants;
   • (f) failed to include in her summing up that the prosecution had failed to produce any of the Notices or any other document other than the Declaration of a State of Emergency by the Prime Minister as to the night-time curfew as at the date of the appellants' arrest; and
   • (g) failed to refer in her summing up to the evidence that ,at the time of their arrest, the appellants were all inside their friend’s home and none of them were out on the streets.
9. On 19 August 2020, the respondent filed a notice of intention to not oppose the appeal on the ground that the appellants were arrested within the confines of a private home and had therefore not breached any curfew.
10. Today, Mr ‘Aho, who appeared for the respondent, clarified the respondent's position as being that it conceded the appeal only to the extent of the stated ground (the last of those recited above concerning no breach of curfew). He further submitted that this case was ‘not a suitable vehicle’ for consideration of the balance of the grounds of appeal.
11. Ms Tonga responded that the appellants were content for the appeal to be allowed solely on the ‘no breach of curfew’ ground.

ACCORDINGLY, IT IS HEREBY ORDERED, BY CONSENT, THAT:

12. Grounds 6 and 8 of the Notice of Appeal filed 29 July 2020 are allowed.
13. The decisions of Senior Magistrate Pahulu-Kuli on 2 July 2020 in proceedings CR 204, 205, 207 and 208 of 2020, whereby she convicted and fined the appellants for breaches of section 39 of the Emergency Management Act, are set aside.
14. The appeal is otherwise dismissed.
15. No order as to costs.
    

NUKU’ALOFA	M.H. Whitten QC
20 August 2020	LORD CHIEF JUSTICE