Rex v Ma'afu [2020] TOSC 7; CR 22 of 2019 (7 January 2020)

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

CR 22 of 2019

BETWEEN:

R E X

-Prosecution

AND:

RUBY HELENI MA’AFU

-Accused

RULING AS TO WHETHER THERE IS A PRIMA FACIE CASE

BEFORE: JUSTICE CATO

Counsel: Ms. L. Macomber and Ms. ‘A. ‘Aholelei for the Prosecution

Mr. V. Mo’ale for the Accused.

Date of Ruling: 07 January 2020

1. This case has an unenviable history. It arises from a series of transactions in 2008. The accused was a senior and trusted employee of a travel company. The fraud as alleged involved theft contrary to section 143(a) and 145 (as amended at trial) of the Criminal Offences Act. The particulars of the charge in this case were;
   

“Ruby Ma’afu of Kolofo’ou or between the months of September and November 2008, at Nuku’alofa whilst employed at Pacific Travel Marketing Limited did take without colour of right money in the amount of $36, 046.76 from bank cards of customers of Pacific Travel Marketing Ltd with the intention to permanently deprive those customers of such an amount of money, and with the intention of converting such money for the use of others without the consent of those customers.”

2. I was informed by Ms Macomber for the Crown that the matter was not received by the Office of the Attorney-General for prosecution until 2018, which plainly illustrates inordinate delay. At the commencement of this trial, Crown offered no evidence against a co-accused.
   
3. As events turned out, however, I find that there is no case to answer against the present accused. It transpired after Mr Mo’ale for the accused had commenced his cross-examination of a former director of Pacific Travel and Marketing Ltd that it was not disputed that the accused had wrongly used customers’ credit card details to pay for travel on occasions when no travel debts were outstanding with “Pacific”. Customers had provided credit card details to pay for outstanding tickets and associated travel costs and these details had been later wrongfully used to pay for travel items that had not been purchased. The credit card details meant that various sums by way of credit were wrongly provided to Pacific as a consequence of the accused’s wrongful use of the credit card information which I was informed would from time to time have liquidity problems requiring an overdraft facility. I was informed that when the accused’s deception was ascertained she had her employment terminated and the bank had to make good any losses caused to customers by the dishonest acts of the accused. A complaint to Police was made shortly after her deception was discovered. There is no complaint that the accused used any money for her own purposes but it is alleged used the money to enhance the company’s position and reduce its overdraft indebtedness although it is not apparent why she was motivated to do this.
   
4. Mr Mo’ale informed me that his defence was simply that the accused had not in terms of the definition of theft under section 143 of the Criminal Offences Act done anything which involved a “taking” of property, as is required under the definition of theft contained within section 143. Both counsel recognized that this was the only issue in the case and that I should resolve this issue before proceeding further with the evidence. Mr Mo’ale accepted that his client had wrongfully used credit card details to obtain advances to Pacific for fictitious or non - existent debts.
   
5. Section 143 provides that;
   

“Theft is the dishonest taking without any colour of right anything (which by section 144 is declared capable of being stolen) with intent, either-

(a) To deprive the owner permanently of such thing; or
(b) To deprive any other person permanently of any lawful interest possessed by him in such thing,

And with the intention of converting such thing to the use of any other person without the consent of the owner or person possessing such interest therein as aforesaid; ‘theft’ and ‘steal’ shall be construed accordingly.”

6. More recently in 2015, in response to my decision in R v Sefesi (CR 50 of 2011, 1^st August, 2013) the Criminal Offences (Amendment) Act 2015 was enacted to amend section 144 of the Criminal Offences Act to include in the definition of things capable of being stolen;
   

“Money and all other property, real or personal, including things in action and other intangible property...”

7. In Sefesi, which was applied by Paulsen CJ in R v Potemani Cr 166 of 2014, 18^th May 2015) I had ruled, in a case of fraudulent misappropriation under section 162 (b) of the Criminal Offences Act, that there was no case to answer where Sefesi, who was a bank officer, had wrongly transferred money held in a customer’s bank account to other accounts because what was being converted was a chose in action and not actual money, that is it represented a debt to the defrauded customer owed by the bank. A chose in action was not tangible property within, the then, existing definition of section 144.
   
8. I note that in R v Preddy [1996] AC 185 to which I referred in Sefesi and Ms Macomber had considered in this case, the House of Lords did not consider for the purposes of a charge of obtaining by deception, a mortgage advance that had been made pursuant to various misrepresentations as amounting to an obtaining by the defendant. Lord Goff observed;
   

“I do not see for myself how this can be properly be described as obtaining property belonging to another. In truth the property which the defendant has obtained is the new chose in action constituted by the debt now owed by the bank and represented by the credit entry in the bank. That did not come into existence until the debt so created was owed to him by the bank, and it never belonged to anyone else. True it corresponded to the debt entered into by the lending institutions; bank account; but it does not follow that the property which the defendant acquired can be identified with the property which the lending institution lost when the account was debited.”

9. Whilst there is no doubt that the accused in this case dishonestly applied the credit card details so as to wrongfully cause credits for fictitious customer debts to be created in the account of “Pacific”, I agree with Mr Mo’ale that she did not take anything as section 143 requires. All she did was to dishonestly create a reason for wrongful credits to be made in Pacific’s account by the bank. What she did not purport to do, as Sefesi had done, was to transfer electronically and dishonestly amounts from the bank account of one customer, a chose in action, to another customer by electronic transfer. The wording of the present charge that she did without colour of right take money in the amount of $36,046.76 from bank cards of customers of Pacific Travel Marketing Ltd is misconceived and suggests that she took the money from bank cards of customers. She did not take any money, all she did by her deception was to influence the advancing of credits to the bank for the fictitious debts of its customers.
   
10. For these reasons, I rule that the Crown case taken at its highest cannot amount to a dishonest “taking” as section 143 of the Act requires. The Crown cannot establish a prima facie case, so that being the case, I rule that the accused has no case to answer and the charge is dismissed.
    
11. I note finally that Ms Macomber who came to the case recently was quite candid that she had difficulty in proving her case and mentioned this from the outset. She also said that there was no other provision in the Criminal Offences Act that encompassed this kind of improper or fraudulent dealing. In any event, I would, after this very lengthy period of time have been reluctant to entertain any further amendment that included any other offence. As I said in Sefesi, urgent attention has to be given to reform of the concept of property offending, and this case illustrates a further need for offences involving deception, or fraudulent dealing that involve credit and benefit the dishonest party or others, but do not involve a ‘taking’ or transfer of property as is required under section 143 of the Criminal Offences Act to be examined. Some guidance may be provided by a study of the English Theft Act provisions.
    
12. The charge is dismissed.
    

C. B. Cato
NUKU’ALOFA: 7 January 2020 J U D G E