Paletu'a v Toki [2020] TOSC 93; AM 25 of 2020 (3 November 2020)

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

AM 25 of 2020

BETWEEN: TAHILA PALETU’A

- Appellant

AND : VILIAMI TOKI
- Respondent

BEFORE HON. JUSTICE NIU

Counsel : Mrs. S. Abrahim for the appellant.

Mrs. P. Tupou for respondent.

Hearing : 30 October 2020.

Ruling : 3 November 2020

RULING

The appeal

[1] This is an appeal against the conviction and the sentence decided in the Magistrate’s Court in respect of a private prosecution of the respondent for theft of 9 items altogether valued at $10,000. The sentence imposed is 6 months imprisonment but fully suspended for 2 years from the date of sentence, 21 July 2020.

[2] The grounds of appeal are that in respect of –

(a) the conviction

(i) the items were acquired during the period of cohabitation of the appellant and respondent in de facto relationship between 2005 and 2009;

(ii) the appellant has a right to the items because some of them were acquired with funds which they jointly borrowed from the bank during their cohabitation;

(iii) the appellant with their 2 children occupied the house of the respondent with the consent of the respondent from 2009 until she moved out in 2018; and

(iv) the appellant has been maintaining their 2 children with no financial contribution from the respondent from 2009 up to now.

(b) the sentence:

The sentence imposed is excessive because it is the appellant’s first offence.
The charge

[3] The charge against the appellant was, as amended, as follows:

“You are charged with the offence of theft contrary to sections 143 and 145 (a) of the Criminal Offences Act in that on 20 October 2018 or so in Kolomotu’a, Nuku’alofa, you dishonestly took without any colour of right the properties of Viliami Toki which are listed below from his residence with intent to deprive [him] of them without [his] consent.”
Defence

[4] The defence raised by the appellant to the charge before the Magistrate was as she has now raised as her grounds of appeal, namely, that the items or properties were acquired during their cohabitation and some of them were acquired with loan funds which they jointly borrowed.

Decision of the Magistrate

[5] The Magistrate accepted that the parties cohabited as stated by the appellant and that all the properties were at the home they occupied.

[6] He listed 6 ingredients or elements of the offence of theft:

(a) that the accused picked it up

(b) that she removed it

(c) that it was capable of being stolen

(d) that it was without permission of the owner

(e) that it was without colour of right

(f) that it was with intention to deprive the owner permanently of it.

[7] He then went through the evidence in respect of each of the 9 items listed in the charge as follows:

(a) the van ($5,000)

He said that the complainant (respondent) said that he purchased two vehicles in Tonga, and that in respect of the van he got it back from a man named Tali Hokafonu who had told him that it had been given to him by the accused (appellant). The complainant said that the van was in a useless condition when he got it from that man.

He said that the accused said the van was bought with money from their joint account of a loan of $20,000, and that the van had costed $10,000.

He said that there were no documentary evidence to support the loan referred to by the accused.

I take that to mean that he did not believe the evidence of the accused because there was no documentary evidence to support the allegation there was such a loan.
(b) the washing machine ($300)

He said that the complainant said that he bought the washing machine here in Tonga and that he did not see it at the home of the accused. He said that the accused said that the complainant had already known that it was no longer working (broke down).

I take that to mean that he did not find any evidence that the accused took the washing machine.
(c) Freezer ($600)

He said that the complainant said that he bought a refrigerator and a freezer in Tonga and that he did not see either one at the accused’s home. He said that the missing one is the refrigerator.

He said that the accused said the freezer was purchased by them from old Molisi before Molisi burned down. He said that the accused claimed that the refrigerator was purchased with money collected in a group saving but there was no evidence to prove it.

I asked both counsel what type was alleged to have been stolen – a refrigerator or a freezer – and they said that it was a freezer.

I therefore cannot make out what it was that the Magistrate found in his ruling about the freezer.
(d) T.V ($400)

He said that the complainant said that he had purchased the TV and that he did not see it at his home anymore. He said that the accused said in her evidence that the TV and the fridge (or freezer) were no longer working (broke down) while the complainant was overseas.

I take that to mean that the Magistrate did not find that the accused took the TV.
(e) Dining table ($500)

He said that the complainant said that he had brought the dining table in his container together with 6 matching chairs and that it was in the accused’s home. He said that the accused said in her evidence that the table was purchased by them for them to eat on, and that the table which was brought by the complainant in the container was a particle board table which would swell up when wet. He said that the accused admitted that the table which she now has in her home was the same table that was in the complainant’s house.

I do not understand from that what the Magistrate found, whether or not the table was from overseas as alleged by the complainant, or was purchased here in Tonga, as stated by the accused.
(f) Cooler ($300)

He said that the complainant said that their son told him that the cooler was at the accused’s home and that the accused was asked whether what their son said was right or wrong, and that the accused said that it was wrong.

I do not understand from that what the Magistrate found, whether or not he found that the accused took the cooler.
(g) Big pot ($150)

He said that the complainant said that there were two pots and that he gave one of them to the accused’s mother as her’s, and that he found the other one at the accused’s place and he took it.

I understand from that that the Magistrate found that the accused took the pot.
(h) Roofing iron ($700)

He said that the complainant said that the roofing iron were from the roof of the verandah of his house and that he saw them at the accused’s home, and there were ten odd sheets there. He said that the accused said that she took some of the sheets because the house was still under mortgage and that she was the one repaying the loan. He said that the complainant said that he had brought the iron but the accused said that they were bought here. He said that the accused claimed that she had an interest in the property because they both acquired it, and that the complainant said that there was only one loan that he knew of.

I do not understand from that what the Magistrate found as to ownership of the roofing iron.

(i) Construction tools ($2,500)

He said that the complainant said that when he returned, the lawn mower, the weedeater, the ladder, the scaffolds and a lot of his tools were missing, and that he saw the ladder at the accused’s place and was sure it was his. He said that the accused said in her evidence there were no lawn mower or weedeater but there were the tools left at the house when she left it. She said that the ladder at her place belonged to the owner of the house they were at. She said that the scaffold were stood on the outside of the complainant’s house when they left it, and that there were only 2 of them.

He said that the accused admitted that she took with her the van, the pot and the roofing iron.

Decision

[7] The Magistrate then decided that the accused was guilty of the charge although she only admitted taking 3 of the items listed in the charge and he referred to the case of R v Funaki anor [2005] Tonga LR 239 as authority that if it was proved that the accused stole one of the items charged, it was sufficient to convict him of the charge of theft of them.

[8] The Magistrate sentenced the accused the following day to 6 months imprisonment but fully suspended it for 2 years.
The sentencing remarks

[9] It is relevant to note the sentencing remarks of the Magistrate. He said:

“This case is the charge by the complainant of the accused with whom he had cohabited with the alleged properties. It is clear from this case everything is alright there is no problem.

1. The accused remarried.
2. They had differences in respect of the insurance of the house.
3. All the tools were understood to have been brought by the complainant from America.
4. The rest of the properties were only acquired whilst they were cohabiting.

Unfortunately, I cannot be sure 100% of the property. It is clear that the vehicle, the pot and roofing iron have all been returned to the home of the complainant although it was agreed with the complainant the vehicle was no longer working (broke down) but that the complainant wanted to take it home. The request of the complainant that there be a punishment is appreciated. I sentence the accused to 6 months imprisonment but fully suspended for 2 years (during which) she shall not do anything like that again.”

(underlining added)

[10] That confirmed that the Magistrate convicted the accused of the theft of only those 3 things – the van, the pot and the roofing iron, and that he found that all the items, except the tools, were acquired whilst the parties were cohabiting. That would mean that the 3 items were jointly acquired and so were and are jointly owned.
The van

[11] The van is the biggest item in the charge. It was stated to be valued at $5,000. The Magistrate stated (as I have stated in paragraph 7 (a) above): “that the accused said that the van was bought with money from their joint account of a loan of $20,000 and that the van had costed $10,000. There was no documentary evidence to support the loan referred to by the accused.’

[12] That statement of the Magistrate was not correct because the complainant had already produced in evidence a copy of the loan agreement for $20,000 (P. 13 – 21) the insurance cover of the house (P.23 – 29) and the bank statement of the joint loan account (P.30 - 54).

[13] So that there was documentary evidence of the loan of $20,000 from which the accused said the money ($10,000) for the purchase of the van was acquired.

[14] It is therefore, the case that the Magistrate erred in his conclusion that there was no documentary evidence to support the said loan and that he accordingly erred in rejecting or failing to accept or to believe the evidence of the accused, and by accepting the evidence of the complainant that the van was solely his own property.

The roofing iron

[15] If the value of the van was to be taken off, there would then be only the value of the pot ($150) and the roofing iron ($700). The complainant did not state how many sheets of roofing iron which he charged against the accused. In his evidence he said that the accused took 10 odd sheets of roofing iron. He did not say how many over 10 that the accused took. If we take the number of sheets to be only 10 because that is all he is sure of, then one sheet would be valued at $70.

[16] He also did not say how long each sheet was. But looking at the photograph no. 66 in the production of the complainant, it looks to me that the length of the sheets upon which the dog is standing as shown in one of those photographs, is about 12 feet long. That would equate to $5.83 per foot and that would be very high for a damaged sheet with nail holes in it. I believe the value of $700 for the 10 odd sheets is excessive.

The pot

[17] The pot is an old pot. It has been used since 2005. It is not known whether it was a new pot when it was brought from the U.S in 2005. No evidence was given as to why it was still $150 in value in 2018.

Was there theft?

[18] What is most crucial in this case was whether there was theft at all (of the said 3 items). The crucial element of theft is the “taking”. It is the physical act of taking of the thing. If the possession of the thing was already given by the owner to the person who takes it, it is not theft. If the person taking it converts it as his own, he is guilty of fraudulent conversion but not of theft.

[19] For example, a cashier in a store who takes the money of the employer for deposit at the bank is not guilty of theft if he puts the money in his pocket and takes it and uses it as his own, because he already had the lawful possession of the money. There is no “taking” of the money because he was allowed to take it. What he is guilty of instead is embezzlement. The law provides for that.

[20] S. 161 of the Criminal Offences Act, as relevant provides:

“... or where on the trial in the Supreme Court of any person charged with theft it appears that the offence committed in regard to the property mentioned in the summons was that of embezzlement or fraudulent conversion, the jury may return as their verdict that the defendant is not guilty of theft but is guilty of embezzlement as the case may be ...”

That is in accordance with the provision of clause 13 (c) of the Constitution.

[21] However, that provision only applies to a trial by jury in the Supreme Court. It does not apply to a summary trial in the Magistrate’s Court, such as was the trial of the appellant in this case. It does not apply to a trial before a judge in the Supreme Court either. The reason for that is that the jury may not appreciate the fine distinction between theft and conversion and is therefore allowed to decide between one or the other upon which to convict an accused, whereas as judge or a magistrate is assumed to know the precise difference between theft and embezzlement or fraudulent conversion, namely, the presence or absence of “taking” for the purpose of the offence of theft.

[22] In the present case, the physical possession of the van, the pot and the roofing iron were with the accused already with the prior permission of the complainant. There was no “taking” of them by the accused because she already had had possession of them. What she may be guilty of is embezzlement or fraudulent conversion of them but she was not charged with either of those offences, and so she could not have properly have been convicted of either of them.

[23] It is true that this issue was not raised in defence in the Magistrate Court or on appeal in this Court but I consider that I must apply the law of theft properly because the charge against the accused/appellant is that of theft.

[24] Accordingly, I uphold the appeal of the appellant against conviction.

Sentence

[25] If I am wrong about that and the conviction is correct, I consider that the sentence imposed by the Magistrate was excessive.

[26] The van had broken down, after some 15 years of lawful use and was at the mechanic for repair. No evidence was given as to its value. The Magistrate was wrong about there being no documentary evidence of the loan with which it was purchased. And the Magistrate has said that all the items except the tools were acquired whilst the parties were cohabiting as man and wife. There should be no conviction in respect of the van at all. And the roofing iron was excessively valued at $700. The proper value of the pot and roofing irons may not even be $200.

[27] In the circumstances of the relationship and prior permission given to the accused, and given the proper value of only the pot and the roofing iron, I would consider that an appropriate order, would be a discharge without conviction under S.204 of the Criminal Offences Act.

Orders

[28] For the reasons I have stated above, I uphold the appeal and order that the conviction and sentence of the appellant are quashed. I make no order as to costs of this appeal or of the proceedings in the Magistrate’s Court.

Niu J
NUKU’ALOFA: 3 November 2020 J U D G E