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Tu'ivakano v Police Commissioner [2021] TOSC 170; CV 23 of 2021 (28 October 2021)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION

NUKU'ALOFA REGISTRY


CV 23 of 2021


BETWEEN:

LORD TU’IVAKANO Plaintiff

-and-

[1] POLICE COMMISSIONER

[2] ATTORNEY GENERAL

[3] KINGDOM OF TONGA Defendants


JUDGMENT


BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr W.C. Edwards SC with Mr William Edwards for the Plaintiff
Mr S. Sisifa SG with Ms J. Sikalu for the Defendants
Trial: 13 to 15 and 20 September 2021
Judgment: 28 October 2021


CONTENTS


Introduction

  1. In criminal proceedings CR 7 of 2019, the Plaintiff was charged[1] and tried on five counts of accepting a bribe as a government servant[2] (“bribery charges”), money laundering,[3] perjury,[4] making a false statement for the purpose of obtaining a passport[5] (“false statement charge”), and possession of a firearm and ammunition without a license.[6]
  2. The trial before judge and jury commenced on 10 February 2020. In the fourth week of the trial, the Crown entered a nolle prosequi in respect of the bribery and money laundering charges. The Plaintiff pleaded guilty to the possession of a firearm. On 9 March 2020, the jury found the Plaintiff guilty on the perjury and false statement charges and possession of ammunition.
  3. On 24 April 2020, the Plaintiff was sentenced on the bribery and money laundering charges to two years imprisonment, fully suspended on conditions including 100 hours community service and fined on each of the firearms and ammunition offences.
  4. The Plaintiff appealed against the convictions. On 30 October 2020, the Court of Appeal acquitted the Plaintiff of the perjury and false statement charges and dismissed the appeal in respect of the ammunition.[7]
  5. On 7 April 2021, the Plaintiff commenced this proceeding in which he claims a total of $5.75 million in damages for malicious prosecution.

Pleadings

Statement of Claim

  1. The Plaintiff claims general, aggravated and exemplary damages for “wrongful arrest, imprisonment, conviction and punishment” in consequence of alleged malicious prosecution and misfeasance in public office by the Defendants.
  2. The Police Commissioner is sued in respect of ‘the actions, omissions and conduct of the former Police Minister and police officers involved in the investigation, arrest, imprisonment and malicious prosecution of the Plaintiff’.
  3. The Attorney General[8] is sued as the officer in charge of all criminal prosecutions and the person responsible for the conduct of Crown Counsel and lawyers who were involved in the alleged malicious prosecution of the Plaintiff, his conviction, sentencing and the appeal of his convictions.
  4. The Kingdom is sued as the employer, and body vicariously liable for the acts and omissions, of the former Prime Minister of Tonga, the late Samuela Akilisi Pohiva, the former Minister of Police, Mateni Tapueluelu, the police officers under the control and direction of the Police Commissioner and the Crown Counsel and lawyers under the direction and authority of the Attorney General in connection with the alleged malicious prosecution of the Plaintiff.
  5. The substance of the Plaintiff's allegations may be summarised as follows:
  6. As a result of the Defendants’ alleged wrongdoing as aforesaid, the Plaintiff claims a total of $5.75 million in various forms of damages and legal costs.

Defence

  1. In their Statement of Defence, the Defendants deny the claims and plead further, in summary, that:

Reply

  1. The Plaintiff's Statement of Reply repeated the main allegations in the Statement of Claim with emphasis on:

Evidence

  1. The Plaintiff gave evidence in terms of his allegations in his Statement of Claim.
  2. He also called evidence from his wife Joyce Robyn Tu'ivakano. She corroborated the Plaintiff’s evidence as to the anguish, uncertainty and shame he (and his family) suffered during the prosecution. She also considered that the Plaintiff is still tainted by it despite the favourable outcomes.
  3. The Plaintiff also called evidence from ‘Okusitino Mahina, Saia Uesi Lasike, Sione Moeaki Ngata Lauaki (a.k.a. Vai’utuuku), Melemanu Bloomfield and Benhur Tautua’a. They all testified to their high regard for the Plaintiff prior to his prosecution, their shock and disappointment when he was charged, their loss of regard for him during the prosecution and having regained their regard for him since the withdrawal of the bribery and money laundering charges and acquittal on the false statement and perjury charges.
  4. The Defendants called evidence from James Bruce Lutui (the current Director of Public Prosecutions), Superintendent Kalisi Tohifolau (then second in charge of the Serious Organised Transnational Crime Unit [“SOTCU”] passport fraud investigation team), former Police Commissioner Stephen John Caldwell, former Acting Attorney General and DPP ‘Asipeli ‘Aminiasi Kefu, current Attorney General Mrs Linda Simiki Folaumoetu’i and Senior Prosecutor Tevita ‘Aho.
  5. None of the historical evidence was contentious and none of the cross-examination damaged the evidence in chief of any of the witnesses. And so, from the almost 1,600 pages of documents and oral testimony presented at trial, the following facts from an inescapably long history may be recited.

Facts

The Plaintiff

  1. The Plaintiff is 69 years of age, married, with six children. He was appointed to the Noble title of Tu’ivakano in 1986 with estates in Nukunuku, Matahau, Vaotu’u and Matafonua. In 1996, he entered the Legislative Assembly as a Nobles Representative for Tongatapu. From January 2011 to December 2014, he was Prime Minister of Tonga and Minister of Foreign Affairs.

The passports investigation

  1. On 10 June 2013, the Tonga Police Intelligence Office received information concerning a request by Sofia Uila Laukau of staff at Office Equipment to type the particulars of a Chinese couple into the bio-page of two blank Tongan ordinary passports. Officers from the SOTCU responded to the call and arrested Laukau at the scene. She had obtained the blank passports from an immigration officer by the name of Otto Hamani Tu’itupou.
  2. On 11 June 2013, Police met with senior personnel within the Ministry of Foreign Affairs and Trade (“Ministry”) and requested their support and provision of certain documents. The Ministry staff advised that they would support the investigation.
  3. On 14 June 2013, Tu’itupou was arrested. Police discovered photos in his mobile phone of multiple Tongan passport applications which had been approved, and corresponding passports directed to be issued, by the Plaintiff, as Prime Minister at the time. Tu’itupou told police that some suspicious passport applications were allegedly being brought by one, Satua Tu’akoi, directly to the Plaintiff for processing instead of following the proper process of submitting the passport applications through the immigration front office.
  4. Tu’itupou was later convicted and sentenced to 3 years and 3 months imprisonment. Laukau was sentenced to 2 years imprisonment.
  5. The discovery of the blank Tongan ordinary passports and suspicious passport applications raised concerns among police of serious abuse and illegal activities within the Tonga Immigration Office. SOTCU therefore continued to investigate the suspicious passport applications.
  6. Thereupon, the Plaintiff became a person of interest in the police investigation.
  7. A few weeks later, Police obtained a warrant to search and seize evidence relating to the passport applications from the Ministry. However, when they attempted to execute the warrant, Ministry staff refused to co-operate.
  8. Another few weeks later, Police had still did not received any support from the Ministry staff. When asked to provide statements, the Ministry staff told police that the Minister of Justice at the time, Mr Clive Edwards, had advised them not to give any statements to the police.
  9. Eventually, on 8 July 2013, the SOTCU received the original passport applications. During the investigation, police looked at more than 200 passport applications. According to police:
  10. From those original passport applications, and in addition to the Plaintiff, ‘Aholotu Palu, ‘Ileana Taulua, Satua Tu’akoi, Sinilau Kolokihakaufisi and others became persons of interest in the investigation. According to police, further investigations also established alleged links between associates in the Tu’itupou case and with the Plaintiff and Satua Tu'akoi.
  11. On 15 July 2013, police compiled a major investigation plan for what was then codenamed “Operation Bogus”. The plan detailed the background to the investigation and outlined the scope of investigation, persons of interest, offences, agencies and jurisdictions involved and resourcing considerations. The operation and plan were classified within Tonga Police as a priority with highly protected security.
  12. The preliminary investigation included financial trails of what were considered to be suspicious transaction reports from the Tonga National Reserve Bank involving the Plaintiff, Tu’akoi, Taulua and related persons of interest. Those trails included remittances of more than TOP$177,876 from China. Police noted that part of those funds appeared to coincide with the issuance of some of the passports of interest.
  13. During the SOTCU investigation, the Police Commissioner and Solicitor General at the time, ‘Aminiasi Kefu, were regularly briefed on the progress of the investigation and prior to any applications for, or execution of, any search warrants and arrests. Any major decisions during the investigation were reached through consultation between the investigation team, the Police Commissioners[9] and Mr Kefu at the relevant times.
  14. On 15 October 2013, at the Fua’amotu airport, the SOTCU arrested a Chinese woman by the name of Min Wang and her associate, Nai Yan Cheung. Wang was attempting to leave Tonga on a Tongan passport issued under the name of Orlandoni Wong. She had arrived in Tonga on 11 October 2013 on a Chinese passport with a permit. When interviewed, Wang revealed that it was her first visit to Tonga. She confessed that she came to Tonga to collect her Tongan passport. The passport was issued by Lovina Ula and was already stamped “arrived” on 11 October 2013, even though Wang entered Tonga on her Chinese passport. There was no record of Wang ever having been naturalized. Wang’s passport was one of a number where the applications had not been approved by ‘Ouita Kaho, the Officer in Charge at the Immigration Office, because she regarded the applications as suspicious. Notwithstanding, those applications were approved by the Plaintiff.
  15. Charges against Wang and Cheung were later withdrawn as the Passport Amendment Act 2003 had not yet been proclaimed.
  16. Between 5 and 9 December 2013, the SOTCU obtained and executed search warrants for the Ministry offices at the National Reserve Bank of Tonga, Fa’onelua, Fua’amotu airport and its offsite storage facility at the Ministry of Infrastructure. A substantial volume of documents and digital evidence was obtained, which necessitated additional resources.
  17. The unfolding investigation was proving to be complex as it involved:
  18. That led to a proposal, in May 2014, for the establishment of a Passport Taskforce to continue the investigation.
  19. On 14 April 2015, Commissioner Caldwell commenced office. In his evidence, he emphasized the importance, and his observance, of the relevant statutory responsibilities and requirements[10] for the Commissioner of Police, in particular, the independence of the Commissioner generally, and as between he and the Minister of Police.
  20. Despite the above challenges, with limited resources at the time, Commissioner Caldwell directed that the passports investigation continue.
  21. On 15 April 2015, Cabinet approved funding of $400,000 for the Passport Taskforce and a recommendation for a Royal Commission of Inquiry in relation to the unlawful sales of passports.[11]
  22. On 31 August 2015, the Passport Taskforce formally commenced operations from the SOTCU office with 16 staff. Additional staff joined the team over time. Commissioner Caldwell required and received weekly updates and separate briefings on sensitive matters as they arose. Between August 2015 and November 2017, the Commissioner regularly met with, and sought legal advice from, Mr Kefu.
  23. The Plaintiff was succeeded as Prime Minister by Samuela ‘Akilisi Pohiva, and in 2015, the Plaintiff was appointed Speaker of the Legislative Assembly.
  24. During his evidence, Mr Caldwell noted that as the issues under investigation at the time were of national and international interest, a wide range of unhelpful public commentary was emerging through the media. As a result:
  25. The Plaintiff described the years following the appointment of Prime Minister Pohiva as a period of ‘political disturbance’.
  26. In August 2017, Parliament was dissolved.
  27. The Plaintiff gave evidence that during the ensuing election campaign, he became aware that Mr Pohiva and the PTOA party were blaming him for the dissolution of Parliament and accusing him of being involved with unlawful sales of passports, which he denied.
  28. On 7 October 2017, Mr Pohiva’s election speech was broadcasted live on radio, during which he stated:
“The problem and disorganization with the passports are still with us right up to this moment. It is still being investigated. His Majesty has ordered an investigation of the passports. And the Legislative Assembly is still thinking, the Cabinet to stop this person in Hong Kong, a George Sheng who is still selling passports up to this day. The investigation finished, this case was in the year 1991 and I was part of this, and the Government made the decision to stop the sale of passports and it was brought back, that time there was 426 people who were unlawfully naturalized into Tongans. I believe that you all understand that story.
What has happened now, the former Prime Minister (with all due respect to him) and I do have big respect to him but that is what happens, he is the one standing deep in the middle of what is happening in connection with the passports in the present date. There are also things in connection with money laundering and dirty money. We have gotten 14 people. Their names have shown. The Police went and asked the Reserve Bank to give them the names of people who are sending dirty money that is called in English, what is it called again? (money laundering).
It is money laundering. Money laundering is sending around dirty money, unlawful money. The former leader of the last Government is also included here, standing feet deep in this thing. He is currently being investigated. I believed that is the reason he is trying to dissolve the Legislative Assembly so that the investigation cannot be completed successfully by putting the present Government out of office. I apologize in case I am accused of putting him down but I am simply trying to give an answer to all of this. We know the reason because the Privy Council was not involved in advising His Majesty as this was a matter between the Speaker of the House and His Majesty.”

  1. On 17 October 2017, Mr Pohiva again gave a live radio broadcast in which he stated:
“I believe there is a reason why it was dissolved. Remember that this person who advised the King is currently being investigated and is one of the 14 people whose name is in the Reserve Bank list of ... a group of people who are importing dirty money between overseas and Tonga. From the 14 people on the list, 6 of them are Chinese nationals. And there is a Chair and a partner, all their names show on it. And the Minister of Police knows about this and is currently carrying out work on it. Secondly, there is currently a passport investigation as there is a huge disorganization in connection with the Tongan passports. The New Zealand Government, Australian Government and other countries overseas including America are concerned with the disorganization that is currently happening in connection with our passports, where it is being sold arbitrarily overseas even up to this moment that I am speaking to you. This person is standing feet deep in the middle of this investigation. From my estimation, I don’t believe my estimation would be wrong because it has been 31 years now that I have been in the Legislative Assembly and I am able to rely on my intuition and experience.”
  1. From those remarks, the Plaintiff believed that Mr Pohiva was falsely accusing him of money laundering, importing dirty money into the country, being in the middle of an organization selling Tongan passports overseas and that the Plaintiff had been instrumental in Parliament being dissolved in order to frustrate the investigation into his involvement in sales of Tongan passports and money laundering. The Plaintiff gave evidence herein that George Sheng did not sell Tongan passports at any time before, during or after his term in office, as Sheng had no right to sign or issue Tongan passports in Hong Kong and that Mr Pohiva made up the stories for his campaign.
  2. On 9 November 2017, Commissioner Caldwell provided the then Minister of Police, Mateni Tapueluelu, with an update on the investigation as it neared termination stage. He informed the Minister of the history of the investigation and that it was an inquiry of national significance as it involved corrupt activities of numerous individuals, including high profile members of the community involved in the alleged unlawful sales of passports for financial gain. The Commissioner described the size and extent of the investigation and explained that as it was approaching termination phase, all the relevant files had been completed and compiled for his review and consideration, after which, and upon the advice of the Attorney General's office, he would then decide if any criminal charges would be laid against any of the suspects implicated from the investigation. Somewhat presciently, the Commissioner then wrote:
“The termination phase is the most crucial and sensitive part of the investigation, when the decision to prosecute, or not to prosecute, is made. It is therefore very critical that Tonga police be allowed to make the decision independently based on the evidence collected during the main investigation stage without any interference or influence from any person. It is equally important that there is no perception of interference or influence on the making of the decision to prosecute. So, in order to protect the integrity of the investigation and any possible prosecution, Tonga police should be allowed to complete this task without any actual or perceived interference or influence from any person.
This should eliminate any future criticism laid against the integrity of the investigators or prosecutors or any person alleged to have interfered or influenced the investigation or possible prosecution. It should also remove any possibility of any civil action against the investigators and prosecutors for malicious prosecution based on any interference or influence perceived to have been made by any other person in the investigation or prosecution.
I wish to re-emphasise that Tonga police are committed to bring to justice all individuals involved, based on evidence and no other considerations."
  1. By the end of 2017, the Taskforce had obtained 747 witness statements, executed 106 search warrants, arrested 35 persons and laid 120 charges, of whom, 13 were convicted with another 22 awaiting trial.
  2. Superintendent Tohifolau gave evidence that the Taskforce followed the same procedure in the case of the Plaintiff as it did in any other. She explained that prior to the arrest of any person involved in the passport investigation:
  3. On 10 November 2017, the Taskforce delivered approximately 38 volumes of evidence gathered during Operation Bogus in relation to the Plaintiff, to Mr Kefu and his team at the Attorney General’s office. In his covering letter, Commissioner Caldwell sought Mr Kefu’s opinion on draft criminal charges that had been prepared to be examined against the evidence provided and whether the proposed charges met the requirements of evidential sufficiency and public interest.
  4. In December 2017 and January 2018, the Plaintiff commenced proceedings against Mr Pohiva in the Magistrates Court for defamation. Mr Pohiva relied on the defence of truth. However, he passed away before those proceedings could be determined.
  5. On 28 February 2018, Mateni Tapueluelu resigned as Minister of Police.

The decision to prosecute

  1. On 26 January 2018, after considering the volumes of evidence produced by the police, a Prosecution team comprising James Lutui, Tevita ‘Aho, Jocelyn Sikalu and Tupou Kafa, presented Mr Kefu with a criminal case brief (“brief”) in relation to the evidence against the Plaintiff. The brief ran to 128 pages. It comprised:
  2. As one of the Plaintiff's main complaints in this case was the lack of evidence against him, it is necessary to set out the summary of facts as distilled by the prosecution team from the volumes of evidence provided by the police and which formed the basis of the decision to prosecute:

(1) Li Hong Zheng;

(2) Ning Chuan Zhong;

(3) Guo Hua Wang;

(4) Xin Li Wang; and

(5) Zheng Wang Cai.

(47) Lilika Sailosi was instructed by ‘Aholotu Palu to take the applications to ‘Ouita Kaho.
(48) All the applications by these Chinese nationals claimed that they had previous Tongan passports but that they had been misplaced or lost.
(49) The passport application for Li Hong Zheng claimed that she held a previous Tongan passport, passport number B120088. Sinilau Kolokihakaufisi confirmed the identity of the applicant in the application. In support of the application was an affidavit from Sinilau Kolokihakaufisi attaching a copy of the previous passport, and an affidavit from ‘Ileana Taulua also attaching a copy of the previous passport.
(50) The passport application for Ning Chuan Zhong claimed that he held a previous Tongan passport, passport number B120080. Sinilau Kolokihakaufisi confirmed the identity of the applicant in the application. In support of the application was an affidavit from Sinilau Kolokihakaufisi attaching a copy of the previous passport and an affidavit from ‘Ileana Taulua also attaching a copy of the previous passport.
(51) The passport application for Guo Hua Wang claimed that he held a previous Tongan passport, passport number B120086. Sinilau Kolokihakaufisi confirmed the identity of the applicant in the application. In support of the application was an affidavit from Sinilau Kolokihakaufisi attaching a copy of the previous passport and an affidavit from ‘Ileana Taulua also attaching a copy of the previous passport.
(52) The passport application for Xin Li Wang claimed that she held a previous Tongan passport, passport number B141099. Sien Lee confirmed the identity of the applicant in the application. In support of the application was an affidavit from Sinilau Kolokihakaufisi attaching a copy of the previous passport and an affidavit from ‘Ileana Taulua also attaching a copy of the previous passport.
(53) The passport application for Zheng Wang Cai claimed that he held a previous Tongan passport, passport number B141098. Sinilau Kolokihakaufisi confirmed the identity of the applicant in the application. In support of the application was an affidavit from Sinilau Kolokihakaufisi attaching a copy of the previous passport and an affidavit from ‘Ileana Taulua also attaching a copy of the previous passport.
(54) The Immigration records showed that all the applicants have not been naturalized. The Immigration passport registers also showed that all the applicants had never been issued with previous Tongan passports. In fact three of the Tongan passports had never been issued with the passport numbers claimed by the applicants, and two were issued to other persons.
(55) On 24 October 2014, Va’inga Tone, requested legal advice from the Acting Attorney General and Director for Public Prosecutions in relation to the five passport applications.
(56) On or about 27 October 2014 the applications were stamped as RECEIVED by Immigration.
(57) On the same day, Tone wrote a memorandum to the Accused attaching the five applications and the supporting documentation and informed the Accused that he had some doubts with the applications, as there was no record of the applicants ever being naturalized.
(58) On the same day, the memorandum was sent to the Accused and the Accused noted in writing on the memorandum, the following –

“Pls action all five passports as it is only renewal and also the given affidavit [sic] being provided as a legal documentation of legal issuance of their passport in the past”.

(59) Tone then instructed ‘Ouita to action the Accused’s directions that same day. This was also made on a handwritten note by Tone to ‘Ouita on the same internal memorandum, stating the directions from the Accused.
(60) ‘Ouita then made a handwritten note on all five applications stating the following:

“Issuing this passport as per direction attached to this application”

(61) On the same day, at 6:27 pm the Acting Attorney General and Director for Public Prosecution, ‘Aminiasi Kefu, emailed Tone and informed him that he would receive his legal advice the following morning.
(62) In reply, at 7:25 pm Tone informed Kefu that the passports were already printed and that he had already contacted ‘Aholotu to pick them up the next morning. Kefu further replied at 8:38pm and advised Tone to hold off issuing the passports because the Chinese nationals were not entitled to them.
(63) On the morning of 28 October 2014 ‘Ouita, who had been copied into the email correspondence between Tone and Kefu, spoke to Tone about Kefu’s email. Tone directed her to hand the email to the messenger who picks up the passports.
(64) Lilika Sailosi picked up the passports that morning.
(65) On the same day, legal advice from Kefu was sent to Tone and to the Accused advising them that the passports should not be issued.
(66) On the same day, Tone further requested legal advice from Kefu, in relation to a request from Singkei Lou and Shanoi Kam, to issue certificates of naturalization, because they had no record of certificates of naturalization ever being issued to them.
(67) Also on the same day, Tone wrote a memorandum to the Accused stating that they could not find any record of Mr Lou and Mrs Kam ever being naturalized. Also, that the advice of Kefu had been sought regarding the request. Nevertheless, Tone referred the matter to the Accused for his direction.
(68) On the same day, the Accused gave a written direction on the memorandum given to him by Tone to issue the certificates of naturalization as they were only being re-issued. The Accused also gave direction to prepare the Certificates of Naturalization for Mr Lou and Mrs Kam for signing.
(69) On 29 October 2014, Kefu issued written legal advice to Tone, advising that the certificate of naturalization should not be issued as there was no record of naturalization that was previously issued, and that it was the prerogative of the King to grant naturalization.[12]
(70) On the same day, Tone forwarded Kefu’s legal advice to the Accused.
(71) On 29 October 2014, Mr. Singkei Lou and Mrs. Shanoi Kam took their oaths of allegiance, and a certificate of naturalization was issued to them on the same day, after being signed by the Accused.
(72) On or about 19 December 2014 applications for Tongan passports by four Chinese individuals including Rui Yun Wang and Li Yang, was lodged with Immigration.
(73) In both of their passport applications they confirmed that they were holders of previous Tongan passports. Rui Yun Wang claimed to have had a previous Tongan passport, passport number B141599, and Li Yang claimed to have had a previous Tongan passport, passport number 144099.
(74) The Immigration records show that both these applicants were never naturalized to entitle them to apply for Tongan passports. The Immigration passport register also showed that these two applicants had not been issued with previous Tongan passports.
(75) The passport application for Li Yang claimed that he held a previous Tongan passport, passport number B144099. Sinilau Kolokihakaufisi confirmed the identity of the applicant in the application. In support of the application was an affidavit from Sinilau Kolokihakaufisi attaching a copy of the previous passport.
(76) The passport application for Rui Yun Wang claimed that he held a previous Tongan passport, passport number A151302. Sinilau Kolokihakaufisi confirmed the identity of the applicant in the application. In support of the application was an affidavit from ‘Ileana Taulua attaching a copy of the previous passport and an affidavit from ‘Ileana Taulua also attaching a copy of the previous passport.
(77) On the same day Tone sent an internal memorandum to the Accused, raising concerns about the applications and drawing his attention to the fact that there was no evidence that the applicants had been naturalized. Tone also drew the Accused’s attention to the previous legal advice from Kefu on 28 October 2014. He then sought the directions from the Accused regarding the applications.
(78) Importantly Tone also gave a detailed description of an assessment by himself and his staff that the attached copies of the previous passports to the applications are very likely to be forgeries. He accordingly recommended to the Accused that the Citizenship Division be directed to further investigate the issues in relation to the applications.
(79) In response the Accused made the following handwritten note on the memorandum:

“Thank you for your assessment, however issue passport today based on legal information provided. Naturalisation requirement, your office have to trace back to your record when transferred from Police. T 19/12/14”

(80) Tone then instructed ‘Ouita in a note on the memorandum to issue the passports that same day as directed by the Accused.
(81) On 31 December 2014, TOP$10,000 was deposited into a BSP bank account for Joyce Robyn Tu’ivakano, account number 2000273884. The Deposit corresponds with BSP bank cheque number 000031, in the name Joyce Robyn Tu’ivakano, drawn from the BSP account of Sien Lee, account number 2001092051 on the same day. Recorded on the reverse of the cheque was “purpose gift” and that the depositor was a government clerk.
(82) On 22 January 2015, the Accused emailed Satua Tu’akoi and at the end of the email he says in Tongan “received the various names, just waiting on the passports. Anyway much love to you and Tony and hope to see you soon....Tu’ivakano”.
(83) On 25 March 2015, Sepiuta Fusimalohi emailed Satua Tu’akoi and copied into the email was Sien Lee. The email concerned an application for a two year multiple visas for Sien Lee, Ying Huang Lee and Qian Yi to travel to Australia. In the email Fusimalohi wished them a safe flight to Australia and thanked Angela and Antony for always giving her money, even though it was not allowed in the staff guidelines.
(84) On the same day, $10,000 was transferred to an ANZ bank account in New Zealand from an ANZ bank account in the name of Joyce Robyn Tu’ivakano, account number 1266517.
(85) On or about 8 July 2015, Immigration received passport applications for Xing Chun Liu and Hua Guo. The applications were given to Viliami Lolohea, OIC Immigration by one ‘Onitulei Manu.
(86) They attached an affidavit to their application stating that they were naturalized Tongan Subjects and also copies of their Chinese passports.
(87) Viliami Lolohea reviewed the applications and discovered that Xing Chun Liu and Hua Guo had previously applied and were issued Tongan passports under the names Singkei Lou and Shanoi Kam.
(88) Upon further investigation it was discovered that Hua Guo travelled to Tonga for the first time on 1 February 2013 with a Chinese passport with the name Hua Guo. She departed Tonga on 5 February 2013 with a Tongan passport issued on 14 January 2013, under the name Shanoi Kam. That Tongan passport was issued on 14 January 2013, a month before the applicant arrived in Tonga for the first time.
(89) On 17 July 2015, the Accused wrote a letter in support of Hua Guo and Xing Chun Liu’s passport application. In this letter he confirmed that during his tenure as Prime Minister in 2010 – 2014, Hua Guo and Xing Liu were naturalized as Tongans on the 29 October 2014.
(90) Viliami Lolohea interviewed Xing Chun Liu on 6 August 2015 regarding his passport application. During the interview, Liu confirmed that he first came to Tonga in February 2013 and that on this visit he received a Tongan passport issued in January 2013.
(91) Tongan passports were never issued to Hua Guo and Xing Chun Liu in relation to the passport application they lodged.
(92) On 21 December 2015 the Accused made a sworn affidavit. In that affidavit he stated that from December 2010 – December 2014 he was the Prime Minister of Tonga. He was also the Minister for Foreign Affairs and the Minister responsible for Naturalization. He also recalls that Mr Hua Guo and Ms Xing Liu were naturalised (as opposed to re-issuing of the certificate of naturalization) during his tenure as Minister of Foreign Affairs, and that after they were naturalised they received Tongan passports.
(93) Certain paragraphs of the affidavit are false. Firstly, the applicants were not naturalized during his tenure as Prime Minister, because the issuance of the certificate of naturalization in 2014, was a supposed re-issuance of the certificate of naturalization, in accordance with his written direction on 28 October 2014. Secondly, the certificate of naturalization was in the names Singkei Lou and Shanoi Kam. Finally, the applicants were not issued with Tongan passports after they were supposedly naturalized.
(94) The Accused has no previous convictions.
  1. The brief did not contain any analysis of the evidence relative to the elements of the proposed charges. Mr ‘Aho explained that the team members had numerous discussions amongst themselves and with Mr Kefu during their work on the brief in considering whether the evidence could support the charges. During his evidence, Mr Lutui explained that since his appointment as Director of Public Prosecutions, the procedure for the preparation of criminal case briefs now includes a section setting out an analysis of the evidence.
  2. Messrs Kefu, Lutui and ‘Aho gave evidence that the assessment was conducted in accordance with the Attorney General’s Office Prosecution Code.[13] The aim of the guidelines is to have a professional and consistent approach to all criminal prosecutions. They are based on the UK Code for Crown Prosecutors. Relevantly, the Guidelines provide:
  3. Mr Lutui gave evidence that the assessment here was conducted in accordance with the Threshold Test which he described as “if there is a reasonable prospect of conviction”.[14]
  4. The Guidelines describe the Threshold Test as requiring Crown Prosecutors to decide whether there is at least a reasonable suspicion that the suspect has committed an offence, and if there is, whether it is in the public interest to charge that suspect. As noted, the Threshold Test is applied to those cases in which it would not be appropriate to release a suspect on bail after charge, but the evidence to apply the Full Code Test is not yet available. The evidential decision in each case requires consideration of a number of factors including:

The public interest element of the Threshold Test is the same as for the Full Code Test but will be based on the information available at the time of charge which will often be limited. A decision to charge and withhold bail must be kept under review. The evidence gathered must be regularly assessed to ensure the charge is still appropriate and that continued objection to bail is justified. The Full Code Test must be applied as soon as reasonably practicable.

  1. Of particular relevance to the instant case is the section of the brief entitled "Legal Issues".[15] There, the team described two issues under the heading "Absence of evidence" in the following terms:

"1. CAUSING TO BE MADE A FALSE STATEMENT FOR THE PURPOSE OF OBTAINING A PASSPORT.

Lack of direct evidence to prove that the Accused intended to deceive the Ministry of Foreign Affairs, however it can be reasonably inferred [sic] the circumstances.

The use of the term 'causes to be made' in section 21(1)(a) of the Passport Act, seems to suggest that the false statement is made after the directions from the Accused. However, Counsel are of the opinion that the information before the Accused was sufficient for the Accused to have reasonable cause to believe that the statements in the applications regarding previous Tongan passports were false.

4. ACCEPTANCE OF A BRIBE BY A GOVERNMENT SERVANT

No direct correlation between the funds entering the bank accounts of the Accused controls [sic] and any specific action or inducement to get a specific passport. However, Counsel are of the opinion that it could reasonably [sic] inferred that the substantial amount of money was in return for the issuance of passport in 2013 and future passports.”

  1. Under the heading "Sufficiency of evidence”, the team recorded:

“4. ACCEPTANCE OF A BRIBE BY A GOVERNMENT SERVANT

Crown may have to rely on the court's drawing adverse inferences from significant sums of money going into account controlled by Accused.”

  1. The team recommended that the Plaintiff be charged with seven counts of causing to be made a false statement for the purpose of obtaining a passport, one count of making a false statement for the purpose of obtaining a passport, two counts of perjury and one count of acceptance of a bribe by government servant.
  2. Mr Kefu approved the brief and its recommendations. During his evidence in this proceeding, he explained his belief that the evidence gathered by the Police from the passports investigation met the Crown Prosecution’s evidential and public interest tests.
  3. First, he considered that there was more than sufficient admissible evidence against the Plaintiff to establish a reasonable prospect of his conviction by a jury on the charges laid. He reiterated the Crown’s case concept as:[16]
“... Satua Tu'akoi and 'Ileana Taulua had forged Tongan passport applications for Chinese persons who were not entitled to be issued Tongan passports. They submitted these forged applications to the Immigration Division of the Ministry of Foreign Affairs, and then they used their influence on the Plaintiff in his capacity as Prime Minister and Minister for Foreign Affairs to grant or expedite the granting of these Tongan passports unlawfully, which included making payments to the Plaintiff as bribes to influence him to grant the forged applications for Tongan passports.”
  1. Secondly, Mr Kefu considered it was in the public interest to prosecute the Plaintiff because the evidence pointed to him, as the Head of Government, facilitating fraud in the issuing of Tongan passports to foreign nationals who were not lawfully entitled to receive Tongan passports. There was no public interest factor to not prosecute.
  2. Further, Mr Kefu testified that, at no time, did the late Prime Minister or the former Minister of Police, Mateni Tapueluelu, have any role in the investigation or prosecution of the Plaintiff. The decision to prosecute was made solely on the evidence gathered by the Taskforce and no inappropriate factors, such as political rhetoric, were considered in making the decision to prosecute. He opined[17] that the Plaintiff ‘was prosecuted fairly and professionally as (was) every other accused person who was prosecuted by the Attorney General's Office before the Courts of the Kingdom during’ his time.
  3. On 29 January 2018, Commissioner Caldwell and Detective Superintendent Tohifolau met with Mr Kefu and his team to discuss their recommendations. The Commissioner accepted the recommendation to prosecute. He then directed that the Plaintiff be charged as recommended.
  4. Subsequently, on 5 February 2018, Mr Kefu directed that charges of money-laundering be added. Mr ‘Aho explained during his evidence that the formulation of the charges from the time of the brief to the Plaintiff’s arrest ‘did not remain stationary’. The Prosecution team had a number of discussions about the charges. They also had discussions with the relevant police officers, who at one stage, wanted the Plaintiff charged also with fraudulent conversion of passports. In emails at the time,[18] Mr Kefu explained why he considered those charges should not be laid. Further, Mr ‘Aho explained that the original recommendations which included seven counts of causing a false statement to be made for the purpose of obtaining a passport and only one count of accepting a bribe as a government servant were eventually recast as six counts of accepting bribes, because the Prosecution team later considered that “the bribery charges were a better fit”.
  5. On 1 March 2018, the Plaintiff was arrested at his home in the presence of villagers and charged with a total of 12 counts of perjury, money laundering, making a false statement for the purpose of obtaining a passport and accepting bribes as a Government servant. The Plaintiff used Superintendent Tohifolau’s phone to contact his lawyer. The Plaintiff’s residence was then searched and further evidence was seized.
  6. The Plaintiff was brought before Magistrate Kaufusi that evening. The Magistrate ordered that the Plaintiff be detained at Central Police Station overnight until the police had analysed the evidence seized from his residence.
  7. On 2 March 2018, the Plaintiff was released on bail.
  8. That same day, Commissioner Caldwell issued a media release regarding the Plaintiff’s arrest. The statement detailed the charges to avoid any misinformation by the media regarding the investigation or the reason for the Plaintiff’s arrest. He noted that as the matter was now before the courts, no further comment would be made. In this case, Commissioner Caldwell gave evidence that:
“The passport investigation was a high profile and significant police inquiry centered on Tonga’s national sovereignty, integrity and reputation being sold for personal gain.
Naturally there was a high level of expectation from Government which at times manifested itself into political pressure. However, there was no political interference as simply put I did not allow it.
The passport investigation was conducted in a methodical, professional and objective manner by an experienced team of hand-picked police officers whose integrity was beyond reproach and who were ultimately acting under my direction as the Commissioner of Police for the Kingdom of Tonga.”
  1. That evidence was not challenged.
  2. After the Plaintiff’s arrest, all matters relating to the prosecution of the case were handled by the Attorney General’s Office.
  3. Mr Kefu gave evidence that after the Plaintiff’s arrest, the former Minister of Police made a public statement to effect that Commissioner Caldwell had arrested the Plaintiff so that he could maintain his employment. Mr Kefu felt that those comments were inappropriate, and so on 8 March 2018, he issued a media release to rebut the comments and to assure the public that the arrest of the Plaintiff was ‘not based on any favouritism, ill-will or malice, nor was it motivated by any undue influence from any political or other authorities, or in order to favour any person involved or interested in the work’.

No case submission

  1. On 25 June 2018 and 2 July 2018, during the course of the committal proceedings before the Magistrates Court, the Plaintiff’s counsel submitted that there was no case to answer on any of the charges.
  2. In relation to the bribery charges, the submissions on behalf of the Plaintiff referred to the money received by the Plaintiff as being “from the casino”, “borrowed from the Defendant” or “a gift” and that there was no evidence of any payment for any passport unlawfully granted by the Plaintiff.
  3. During his evidence in this proceeding, Mr ‘Aho said that was the first time the Prosecution had received any information from the Plaintiff which suggested what his possible defence/s might be to the bribery charges. Prior to that, on 17 November 2015, police approached the Plaintiff for an interview regarding allegations against him at the time. The Plaintiff declined to be interviewed on the basis that he had been advised by his lawyer (Mr Edwards SC) not to speak to police and that he would speak to the then Prime Minister and Minister of Police before he would speak to police.[19]
  4. When asked whether the Prosecution or the police ever thereafter investigated the Plaintiff’s claims as to the provenance of the moneys he received from China, Mr ‘Aho said that he was not aware of any such investigation and that he ‘dismissed’ the Plaintiff’s claims.
  5. Mr Kefu gave evidence that he did not believe the money was from casino winnings because of how some of the payments were described variously in the bank transfer records as ‘gifts’ or ‘fund raising’ and from the fact that none of the emails to or from the Plaintiff or Tu'akoi (including the one in which she referred to a large transfer being made by Lee which would make the Plaintiff ‘happy’ for the rest of the year) contained any reference to any ‘winnings’. He added that the Plaintiff was charged because of who the money was coming from and the involvement of Tu’akoi continually submitting forged passport applications at around the same period as the payments to the Plaintiff. The Prosecution believed, he said, that Sien Lee was promoting the sale of Tongan passports in Hong Kong.
  6. When asked whether there had been any investigation to refute the Plaintiff’s claims of casino winnings, Mr Kefu explained that that had been left to the police. He was not aware of whether they made any enquiries. When he did raise it with them, he was told that there was no evidence and that police were intending to try and work with New Zealand or Australian Federal Police contacts in China, but nothing ever came of it. Also, approaches were made at one time to Chinese law enforcement authorities who were attending a regional money laundering forum, but they were ‘reluctant to assist’ and had ‘other priorities’.
  7. Mr Kefu also said that there was no attempt to contact Sien Lee in China as it was assumed that he would not co-operate and any attempts to pursue him would prove ‘fruitless’. Mr Kefu described Sien Lee as a ‘shadowy character’ who was ‘hard to find’ and whose relationship and connections with ‘senior members’ of Tongan society was ‘unclear’. He said that the authorities here were waiting for Sien Lee to return to Tonga.
  8. Superintendent Tohifolau confirmed that Sien Lee and his wife were targets of the police investigation. She described them as possessing multiple diplomatic and other passports and being closely linked to Chinese nationals arrested here and to foreign entities in Hong Kong who were ‘luring’ people to buy Tongan passports. She also described how lack of resources and other challenges hampered the ability of police to investigate overseas. They sought the co-operation of other police agencies in the region. They also contacted China police directly when they came to Tonga in pursuit of two Chinese nationals wanted in relation to a $100 million fraud case who had fled to Tonga. Police told their Chinese counterparts about the persons of interest in the passports investigation. Initially, the Chinese police said they would communicate with Tonga police when they returned, but nothing came of that.
  9. Similarly, when asked whether the Plaintiff’s wife or his grandson, Jordan Kaho, were ever interviewed by police or the Prosecution about the moneys received from Sien Lee into their accounts, Mr ‘Aho said he could not recall. When Mr Kefu was asked the same question, he said that it was ‘a matter for police’ and that he and his team ‘did not see the need to do that’ because:
  10. Superintendent Tohifolau did not recall the Plaintiff’s wife or grandson being interviewed by police, although she did recall that they were both living overseas at the time. She added that all persons of interest were given the opportunity to provide a statement. The Plaintiff was approached twice, and on both occasions, he refused to be interviewed.
  11. In its response to the no case submission on the bribery charges, the Prosecution referred to R v Tu’ivai [2006] Tonga LR 310, R v Whitaker [1914] UKLawRpKQB 173; [1914] 3 KB 1283 and Borlase & Noone v Queen [2017] NZCA 514 in relation to the elements of the charges and to Practice Direction 1/1992 and R v Galbraith [1981] 2 All ER 1060 for the relevant test on no case submissions. It then recited excerpts from the above summary of facts relevant to the bribery charges. The Prosecution then submitted that:
“... the entirely of the evidence establishes that the Accused, upon the request of Satua Tu’akoi, who was working together with others including, ‘Ileana Taulua, for or on behalf of Sien Lee (a.k.a Tony or Antony) and his wife Ms Lee Ying Huang, to lodge various fraudulent passport applications with the Immigration Division of the Ministry of Foreign Affairs, and to have those applications approved by the Accused.
Furthermore, in return for the favour shown by the Accused, he received payments directly or indirectly from Sien Lee and his wife Lee Ying Huang.”
  1. In relation to the money laundering charges, the Plaintiff submitted, inter alia, that there was no evidence that the moneys, the subject of those charges, had been received from the commission of a crime.
  2. The Crown’s case was always that the moneys the subject of the money laundering charges were from the alleged bribes. The fate of the money laundering charges was therefore always derivative upon the outcome of the bribery charges.
  3. The Prosecution’s response set out the relevant excerpts from the statement of facts and concluded with the same overall case concept referred to above in relation to the bribery charges. However, on the money laundering charges, they added:
“Accordingly, it is respectfully submitted that, when taken at its highest, the Accused was 2021_17000.pngengaged in inappropriate business relationships with Satua Tu'akoi and Sien Lee, and as a 2021_17001.pngresult of those relationships he benefitted financially and furthermore that it can be inferred 2021_17002.pngthat those relationships did influence the actions of the Accused when he performed his 2021_17003.pngofficial duties as the Minister responsible for Immigration, when he approved Tongan 2021_17002.png2021_17004.png passports for individuals who had no right to apply and obtain Tongan passports.2021_17002.png”
  1. In relation to the false statement and perjury charges, the Plaintiff submitted that the attempt by the Chinese nationals, Shinkei Lou and Shanoi Kam, to change their names to Hua Gao and Xing Liu, through the Ministry, was 'normal' and that 'applying to change someone's name is lawful'.
  2. The Prosecution submissions in response followed a similar format to the others including excerpts from the summary of facts relevant to the charges. It was submitted that they constituted sufficient evidence by which a properly directed jury could convict. They concluded with:
“The Accused did not indicate in his letter of 17 July 2015 that there was a change of name to the subject persons names, and that they had previously applied for passports under different names, which was grossly misleading and plainly false.”
  1. On 22 January 2019, in determining the no case submission, Principal Magistrate Mafi committed the Plaintiff to stand trial on all charges save for four of the bribery charges (which became counts 6, 9, 11 and 12). He dismissed those charges for insufficiency of evidence principally on the basis that the funds the subject of those counts were received by either the Plaintiff’s wife or his grandson.
  2. Among his reasons, the Principal Magistrate found:
"Not only that there is a chain of evidence of money flowing from Hong Kong, into the defendant's account, also the relation with Mr Lee, Satua and activities in relation with passports. I believe there is sufficient circumstantial evidence where the jury would make an inference that these money flow, [sic] is the bribing of the defendant in his official role as Minister for foreign affairs, in relation to the passports, or bribery, and he has disguised it as his housing loan account."
  1. The Plaintiff did not appeal in respect of any of the charges on which he was committed.

Appeal against dismissal

  1. The Prosecution appealed against the Principal Magistrate’s decision to dismiss four of the bribery charges.
  2. On 21 May 2019, Paulsen LCJ allowed the appeal and committed the Plaintiff to stand trial also on those counts.[20] Relevantly, his Honour held:
“[25] Turning to the facts, there is a good deal of evidence that the respondent was involved with Sien Lee, Satua Tu’akoi, ‘Ileana Taulua and others to obtain fraudulent passports for Chinese nationals and that for his involvement and influence he received payments.
[26] The evidence I refer to includes the following. The respondent attended a late evening meeting with Mr Lee, Satua Tu'akoi and others at the Emerald Hotel in October 2012 following which at his direction a number of passports were printed and issued after midnight. In 2013 and 2014 the respondent personally intervened with The Ministry of Foreign Affairs staff to ensure that applications submitted by Satua Tu'akoi and others on behalf of Chinese persons were processed. In a number of cases such applications were fraudulent because they contain false information and the applicants have no entitlement to Tongan passports. In October 2014 the respondent did not heed concerns raised by a senior Government employee that passports should not be issued to Chinese persons who had made what the appellant alleges were fraudulent applications. On that occasion he directed that the passports were to be issued as they were only renewals when in fact none of the Chinese applicants had ever held a Tongan passport. There is evidence also of payments of large sums of money by Mr Lee and his wife as well as other Chinese entities directly to the respondent and his wife during the period which the fraudulent passport applications were made and processed. There is evidence of the use of this money by the respondent to pay off his housing loan.
[27] In relation to the four payments that are now in issue, there are obvious connections between them and the alleged fraudulent scheme as described.
[28] First, is the involvement of Sien Lee in the scheme and also his making of those payments (which Mr Edwards has acknowledged).
[29] Secondly, some payments that the appellant alleges were bribes, other than the four now in issue, were made to the respondent and his wife's joint account and to his grandson. The payments in issue therefore fit broadly within a pattern whereby bribes were paid not just to the respondent directly but also to family members.
[30] Thirdly, the dates upon which the payments were made were within the period the fraudulent passport applications were being processed. For example, in October 2014 the respondent issued a direction to issue what the appellant alleges were five fraudulently obtained passports and in November 2014 and December 2014 both his wife and grandson received substantial payments from Sien Lee.
[31] I have no doubt that looking at the totality of the evidence a reasonable jury properly directed could logically and reasonably infer that the four payments were made to the respondent or at his direction in return for his assistance in the processing of fraudulent passport applications and convict him on these charges.
[32] Whilst there may be, as Mr Edwards submitted, another and innocent explanation for the payments, there was no evidence about that before the Principal Magistrate and it is a matter for trial.”
  1. The Plaintiff did not appeal Paulsen LCJ’s decision.
  2. The Plaintiff was subsequently arraigned in the Supreme Court and elected trial by judge and jury.
  3. On 31 May 2019, Mr Kefu resigned.

Strike out application

  1. On 19 June 2019, the Prosecution filed an application for a joint trial of the indictment against the Plaintiff together with two separate indictments against Ileana Taulua and Satua Tu’akoi,[21] for whom Mr Edwards also acted. Ms Taulua was charged with five counts of making a false declaration and one count of possession of an unlawfully issued passport. Ms Tu'akoi was charged with four counts of making a false declaration and four counts of forgery.
  2. On 30 July 2019, Mr Edwards brought an application to strike out the bribery and money laundering charges on substantially the same grounds as argued before Principal Magistrate Mafi and Paulsen LCJ.
  3. As at the date I commenced office,[22] those two applications were extant. I determined to deal with the strike out application first, as the outcome of that application may have had a bearing on the joint trial application.
  4. The material before the Court on the strike out application did not include any witness statements, documentary or other exhibits or any of the other documents referred to in the summaries of facts. My review was therefore confined to the facts and circumstances alleged in the summaries of facts, summaries of evidence to be given by the main witnesses and lists of documentary exhibits with some descriptions. I therefore proceeded on the basis that the summaries represented a distillation by the Prosecution from all the evidence it then intended to adduce at trial, of the key facts and circumstances by which it would seek to establish beyond reasonable doubt the elements of each charge. In other words, if the summaries did not contain evidence by which an element could, if accepted, be either directly established or provide a sufficient basis for a reasonable inference to be drawn, it was assumed that there was no such evidence.
  5. My approach to the application was in accordance with the test in R v Galbraith,[23] where Lord Lane CJ explained:
“How then should the judge approach a submission of ‘no case’? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty then the judge should allow the matter to be tried by the jury.
...
There will be of course as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge."
  1. I also drew guidance from the decision in The Queen v A2; The Queen v Magennis; The Queen v Vaziri,[24] where Kiefel CJ and Keane J of the High Court of Australia observed that the question of whether there is sufficient evidence to support a conviction is ordinarily to be determined in accordance with the test adopted in Doney v The Queen:[25]
"[I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."
  1. Their Honours also opined that:[26]
“Application of the ‘Doney test’ requires assessment of the sufficiency of the evidence taking the prosecution evidence (including the answers of prosecution witnesses to cross-examination) at its highest and drawing all inferences favourable to the prosecution case that are reasonably open.[27] If the case is circumstantial, it is not to the point that the court may consider an hypothesis consistent with innocence to be reasonably open on the evidence.[28] The question is whether a jury, taking the evidence at its highest and drawing all reasonably open inferences that are most favourable to the Crown, could rationally exclude that hypothesis.[29] Subject to contrary statutory provision, the court does not need to consider evidence that contradicts, qualifies or explains the prosecution's case or that supports the accused's case.[30] That requires consideration of the evidence.”
  1. On 11 October 2019, after considering the material and submissions before the court, and the above principles, I dismissed what was then count 8,[31] and otherwise ruled that there was sufficient evidence for all other counts on the indictment to proceed to trial.
  2. The trial was then tentatively listed to commence on 10 February 2020.
  3. In December 2019, Mr Lutui was appointed as the new DPP.

Joint trial application

  1. The grounds for the Prosecution’s application for a joint trial were that:
  2. The application was opposed.
  3. On 3 December 2019, for reasons which appeared not to have been considered by any court in the Kingdom previously, I ruled, by reference to the applicable English common law, that only one indictment could be placed before one jury. The application was therefore refused and the Plaintiff’s single trial was confirmed.
  4. The Prosecution did not appeal that decision.

Objections as to admissibility

  1. Also, on 3 December 2019, directions were made for the Plaintiff to file any objections as to admissibility of the evidence expected to be called by the Prosecution and for responses by the Prosecution.
  2. The Plaintiff objected to all the evidence of all 59 Crown witnesses then expected to be called, either on the bare ground of irrelevance or because a brief of evidence or witness statement had not been provided for particular witnesses.
  3. In its responses, the Prosecution indicated that it was not going to call 17 of the witnesses and that another 21 may not be called because their evidence could be given by other witnesses who would be called. There were also some logistical difficulties with some witnesses being overseas.
  4. On 3 February 2020, I delivered a ruling in which most of the Plaintiff’s objections were overruled.
  5. While I was delivering the ruling, counsel for the Plaintiff arranged for a document entitled “Objections to Prosecution witnesses and new additional witnesses proposed to be called by the Prosecution” to be filed. Mr Edwards did not refer to it during the hearing and ruling on the objections that had been filed by the Plaintiff and responded to by the Prosecution. The document contained additional grounds of objection to the evidence of certain Prosecution witnesses. In the circumstances, I informed the parties that I did not intend to rule on the additional objections before trial as the Plaintiff had been given a reasonable opportunity to raise all objections via the 3 December 2019 directions. I added that if, despite the ruling that day, the Plaintiff wished to agitate any further objections, he could seek leave to do so at an appropriate time during the trial.
  6. The trial was confirmed to commence on 10 February 2020 on an estimate of six weeks. The Prosecution confirmed that it intended to only call 13 witnesses.

Amended indictment

  1. On 10 February 2020, the jury was empaneled. I ruled on various objections raised on behalf of the Plaintiff.
  2. Mr Edwards also made a further application without notice for further particulars to the dishonesty charges. He effectively required the Prosecution to specify the passports issued to Chinese nationals which the Plaintiff was alleged to have approved with each amount of money he was alleged to have received in each count.
  3. Mr Kefu gave evidence that, during his involvement, the particulars in the previous forms of indictments did not name the Chinese applicants because the Prosecution’s approach then was that any passport approved by the Plaintiff around the time he (including his wife and grandson) received money from Sien Lee was part of their bribery scheme.
  4. The Prosecution did not oppose the application for further particulars and, accordingly, I directed that an amended indictment be filed that day. As a result, the Crown filed an amended indictment which, in respect of the bribery charges, specified the names of 12 Chinese nationals whose applications for Tongan passports had been approved by the Plaintiff.[32] The trial proceeded on that basis.

Section 50 submission

  1. That same day, Mr Edwards submitted that s 50 of the Criminal Offences Act (accepting bribes as a Government servant) could not apply to the Plaintiff because, as Minister for Foreign Affairs at the relevant time, he was not a ‘Government servant’. The submission was effectively another application, again without notice, to strike out the bribery charges.
  2. On 11 February 2020, I delivered a ruling in which the Plaintiff’s submission was rejected.[33]

The trial

  1. After delivering that ruling, the trial proper commenced.
  2. The Prosecution ended up calling 15 witnesses: seven from the Ministry of Foreign Affairs, one driver from the Palace Office, one from the Minister’s office, three from the Plaintiff’s bank and three police officers.
  3. Mr Lutui said in evidence here that the Prosecution evidence adduced at the Plaintiff’s trial was ‘as expected’.
  4. A good deal of the evidence of the witnesses from the Ministry of Foreign Affairs and Police focused on what the Prosecution considered to be the Plaintiff’s improper approval of applications for renewals of Tongan passports for 11 Chinese nationals who were not Tongan citizens. But, as the Plaintiff pointed out, then, and in this proceeding, he was never charged with unlawfully issuing passports.
  5. On 3 March 2020, during the fourth week of the trial and towards the close of the Prosecution case, I called counsel into my chambers. I expressed concern to Mr Lutui about whether there had been, or would be, any evidence adduced of any request of the Plaintiff by Sien Lee in relation to any of the passport applications or any evidence which linked or which could support a reasonable inference of links between any of the moneys sent by Sien Lee or his wife to the Plaintiff or his wife and grandson and any of the passport applications by the Chinese nationals specified in the particulars to the indictment. I indicated that if there was no such evidence, I would have to consider whether to direct the jury to acquit on those counts. Mr Lutui indicated that he would discuss the matter with the Attorney General and seek instructions.[34] Later that day, he reported that he had been instructed to continue and that he was confident the evidence would come out.
  6. In their evidence in this case, Mr Lutui and Mrs Folaumoetu’i explained that the decision to continue with the bribery and money laundering charges was based on the fact that the Plaintiff was about to give and call evidence, and they felt that the Prosecution case ‘may be enhanced after hearing the evidence of the Plaintiff and the Defence witnesses to be called’.
  7. The Plaintiff gave evidence. He denied all allegations of dishonesty. No clear explanation was given for his approval of the relevant passport applications particularly after he had been made aware of Mr Kefu’s advice at the time that they were unlawful. However, among the more poignant of his evidence, the Plaintiff explained how the largest sums of money referred to in the indictment had been won by him at a casino in Macau, with Sien Lee and others, during a trip to China.[35] He said that the first lot of winnings (HHKD$45,000) was kept in the safe in his hotel room. The second (HKD$950,000) was paid by cheque which Sien Lee and his wife agreed to deposit into their Hong Kong bank account and then electronically transfer the funds to the Plaintiff’s bank account in Tonga. There was no independent or documentary evidence to corroborate the Plaintiff’s evidence of the casino winnings. By the same token, there was no meaningful challenge (and arguably could not have been) to that evidence during cross-examination.
  8. In relation to the false statement and perjury charges, the Plaintiff gave evidence, in essence, that he recognized the two Chinese nationals who were seeking passports as persons he had naturalized the year before, but he did not know that they were applying under different names.
  9. On 4 March 2021, during his evidence, the Plaintiff changed his plea on the charge of unlicensed possession of a firearm to guilty.
  10. On 5 March 2020, after the Plaintiff had completed his evidence, I summoned counsel into chambers again and affirmed my earlier concerns in relation to the bribery (and related money laundering) charges, and that it appeared to me that it would be unsafe to put those counts to the jury considering the state of the evidence, taken at its highest, and the inferences the Prosecution would be asking the jury to draw.
  11. On 6 March 2020, after seeking further instructions, Mr Lutui entered a nolle prosequi in respect of those counts.
  12. During his evidence in this case, Mr Lutui explained his decision to not proceed with those counts as follows:
  13. The trial proceeded on the remaining counts of making a false statement, perjury and unlicensed possession of ammunition. On 9 March 2020, the jury convicted the Plaintiff on all three. He was granted bail pending sentence.

The sentence

  1. In its submissions on sentence, the Prosecution emphasized the Plaintiff’s breach of trust and position and proposed a head sentence for the false statement offence of three to three and a half years imprisonment with partial suspension.
  2. In his submissions, Mr Edwards emphasized the Plaintiff’s long and distinguished history of public service. In relation to the offending, and notwithstanding the jury’s verdict, Mr Edwards maintained that, for example, on the false statement charge, “there were no facts to support an intention to deceive or mislead”. in relation to the perjury charge, he submitted that the relevant statements on oath were not material and that the Plaintiff had simply been confused as to the names of the Chinese nationals. Generally, Mr Edwards submitted that the verdict on the dishonesty offences “could have gone either way”. In relation to the seriousness of those offences, he described the false statement as “borderline” and “highly technical” and the perjury as bordering on “triviality”.
  3. On 24 April 2020, the Plaintiff was sentenced[36] to two years imprisonment on each of the false statement and perjury charges, to be served concurrently. The sentences were fully suspended, for two years, on conditions including probation and 100 hours community service. He was fined $2,000 on each of the firearms and ammunition charges.

The appeal

  1. On 17 April 2020, that is, after verdict but before his sentence, the Plaintiff filed a notice of appeal against the verdicts.
  2. On 30 October 2020, the Court of Appeal acquitted the Plaintiff of the false statement and perjury charges and dismissed his appeal against the ammunition conviction.[37]

Submissions

Plaintiff

  1. In closing submissions in this case, the Plaintiff abandoned his claim of misfeasance in public office.
  2. On the remaining cause of action for malicious prosecution, and after recounting the evidence, counsel for the Plaintiff submitted, in summary, that:
  3. During oral submissions, Mr William Edwards stated that malice could be inferred by viewing the evidence as a whole. He added that the Prosecution “could have been done better”, “taken proper steps” and “made better enquiries”. He also drew attention to the fact that, at the close of its case, the Prosecution continued in respect of the bribery and money laundering charges in the hope that the Plaintiff would give evidence which might assist them. That, he said, demonstrated improper purpose.

Defendants

  1. The Defendants submitted, in summary, that:

Consideration

  1. A malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge: Gregory v Portsmouth City Council [2000] UKHL 3; [2000] 1 All ER 560 at 565. Much of the English common law on malicious prosecution evolved in the 18th and 19th centuries at a time when prosecutions were conducted by private litigants and the Crown was wholly immune from civil liability. Therefore, many of those principles cannot readily be applied directly or transposed to modern public prosecutions.[42]
  2. Counsel for the Defendants submitted that the modern approach to the law on malicious prosecution is was stated in the 2009 decision of the Canadian Supreme Court in Miazga v Kvello Estate [2009] 3 SCR 339 (“Miazga”). That decision was referred to and applied in the very recent Scottish decision in Grier v Lord Advocate [2021] COSH 18.[43] However, I did not discern counsel to suggest that the general principles discussed in Miazga departed from or modified the relevant English common law on the subject.
  3. Sections 3 to 5 of the Civil Law Act require this Court to apply the common law of England with such modifications as may be required by those provisions which focus attention on the circumstances prevailing in the Kingdom of Tonga: Leiola Group Ltd v Moengangongo [2010] TOCA 10 at [11]. Judgments of superior courts of Commonwealth territories may be regarded as having persuasive authority: Evidence Act, s 166; Seiler v Kingdom of Tonga [1992] Tonga LR 58.
  4. Both sides referred to the 2007 Australian decision in A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 (“A v NSW”). There, the High Court of Australia comprehensively examined the English authorities. In Miazga, the elements of the tort were stated consistently with the statements in A v NSW. Decisions in other common law jurisdictions also accord with A v NSW.[44] The principles distilled therefrom have since been applied in Tonga: To'a v Latu [2010] TOSC 7 at [15]; Prasad v Tu'utafaiva [2017] TOSC 42 at [18]. I too propose to follow the approach and apply the principles propounded in A v NSW to the instant case.
  5. Accordingly, to succeed in an action for damages for malicious prosecution, the Plaintiff must establish, on the balance of probabilities, that: [45]
  6. There is no issue as to the capacities in which each of the Defendants is sued or that they are proper defendants to the claim. The First and Second fall within the general principle that any person who makes or is actively instrumental in the making or prosecuting of the charge is deemed to prosecute it and is called the prosecutor: Rees & Ors v Commissioner of Police for the Metropolis (Rev 1) [2017] EWHC 273 (QB) at [154].
  7. The Kingdom admitted being the employer of the First and Second Defendants but formally denied any vicarious liability for their acts or omissions. However, as Ford CJ noted in To'a v Latu [2010] TOSC 7:[46]
"When an employer is alleged to be vicariously liable for the intentional tort of an employee, recovery against the employer on that basis should not be extended beyond the two kinds of case identified by Dickson J. in Deaton Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370: first, where the conduct of which complaint is made was done in the intended pursuit of the employer’s interests or in the intended performance of the contract of employment or, secondly, where the conduct of which complaint is made was done in the ostensible pursuit of the employer’s business or the apparent execution of the authority which the employer held out the employee as having."
  1. Here, there can be no doubt that the relevant conduct of the police and the Prosecution was in the intended pursuit of the Kingdom’s interests in the administration of law and in apparent execution of the authority which the Kingdom held out the Police Commissioner and Attorney General as having.
  2. It is convenient at this point to consider the role played by the police and the Police Commissioner (collectively, “the police”) in the decision to prosecute the Plaintiff. Apart from the allegations of political interference by the late former Prime Minister Pohiva and former Minister of Police Tapueluelu (which will be discussed further below), the Plaintiff did not adduce any evidence, nor did he identify any within that adduced by the Defendants, to support the proposition that the police were actively instrumental in making or prosecuting the charges against him. The evidence revealed that the police investigation over several years gathered information which pointed to the Plaintiff as a person of interest in a wide-ranging scheme involving many others in the illegal sale of Tongan passports. That evidence was presented to the then Acting Attorney General and DPP, Mr Kefu, and his team of prosecutors for analysis and advice as to whether the Plaintiff should be charged and, if so, with what offences. There was no evidence that the police deliberately withheld or misrepresented any evidence which might have had a material bearing on any analyses conducted by the DPPs (Mr Kefu followed by Mr Lutui) and the prosecution team assisting them (collectively, “the Prosecutors”). Apart from some discussions about the form of some of the charges, it is clear that the Commissioner did not undertake any independent analysis or decision to lay the initial charges, but rather he accepted and acted on the legal advice of Mr Kefu. There was no evidence, and, in my view, it would have been highly unlikely for the Commissioner to act contrary to the advice of the DPP. In that context, it was the Prosecutors who made the ultimate decision to prosecute. Thereafter, it was only the Prosecutors (with the consent of the Attorney General) who made decisions to maintain the proceedings in respect of the bribery and money laundering charges until they were terminated by the entry of a nolle prosequi during the trial and to maintain the false statement and perjury charges right through to the conclusion of the appeal. Accordingly, the focus of this part of the analysis will be on the conduct of the Prosecutors, for whom, the Attorney General was responsible.
  3. To satisfy the second element, all that needs be established is that the criminal charges terminated in the Plaintiff's favour. It does not matter how that came about. ‘The crux is not so much whether the Plaintiff has been proved innocent as that he has not been convicted.’: To'a v Latu, ibid, at [20].[47]
  4. Here, the criminal proceedings terminated by way of nolle prosequi on the bribery and money laundering charges and acquittal on appeal in respect of the false statement and perjury charges.
  5. The latter paradigm case of acquittal is not to be controverted. ‘The hypothesis for a subsequent action for malicious prosecution arising from such a case is, therefore, that the plaintiff was not guilty of the offence charged. But that alone does not entitle the plaintiff to a remedy against the prosecutor’: A v NSW at [57].
  6. In contrast, the entry of a nolle prosequi brings the proceedings to a halt without determination of guilt. It does not bar the subsequent prosecution of the accused on the same charge.[48] Such cases were once considered an exception to the general rule that the plaintiff’s guilt or innocence of the criminal charge is not an issue in an action for malicious prosecution.[49] Even in Miazga, the Court commented that “a live issue may arise whether the termination of the proceedings was ‘in favour of the plaintiff’ in the case of a termination that is not an adjudication on the merits, such as a settlement or a plea bargain”.[50] However, in Beckett v New South Wales [2013] HCA 17, the High Court observed that any termination of a prosecution, even for a technical reason that is unconnected to the strength of the prosecution case, that does not result in conviction, is favourable to the plaintiff for the purposes of the civil action. [51] ‘The requirement that the plaintiff prove favourable termination is concerned with consistency of judicial decisions. There is no principled reason to distinguish a prosecution terminated by the entry of a nolle prosequi by the Attorney General from other forms of termination falling short of acquittal. Thus, proof of favourable termination does not involve an inquiry into the underlying merits of the prosecution’.[52]
  7. Here, as in A v NSW and Miazga, the controversy lies in the third and fourth elements.
  8. The elements of absence of reasonable and probable cause, and malice, serve different purposes and remain as separate elements which a plaintiff must prove in order to succeed in establishing the tort.[53] ‘Much of the development of the law concerning malicious prosecution reflects the attempts to balance the provision of a remedy where criminal processes have been wrongly set in train with the need not to deter the proper invocation of those processes. The two requirements of absence of reasonable and probable cause, and malice, represent the particular balance that is struck’.[54] ‘From motives of public policy, the law gives protection to persons prosecuting, even where there is no reasonable or probable cause for the prosecution. But if the person abuses his privilege for the indulgence of his personal spite, he loses the protection, and is liable to an action, not for the malice, but for the wrong done in subjecting another to the annoyance, expense, and possible loss of reputation of a causeless prosecution’.[55]
  9. On that basis, the tort requires proof of two distinct elements, one positive (malice) and the other negative (absence of reasonable and probable cause).[56] Each has a separate role to play. ‘Therefore, even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for example, because of animus towards the person accused) and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge’.[57] In other words, a claimant who proves malice, but not want of reasonable and probable cause, still fails: Tempest v Snowden [1952] 1 All ER 1, CA.

Was the prosecution conducted and/or maintained without reasonable and probable cause?

  1. The third element requires the Plaintiff to prove a negative, that is, an absence of reasonable and probable cause. The inquiry involves both an objective and a subjective aspect: there must be actual belief on the part of the prosecutor in the existence of reasonable and probable cause and that belief must be reasonable in the circumstances.[58] ‘As a matter of logic, it therefore follows that the plaintiff, who bears the burden of showing an absence of reasonable and probable cause, would succeed by showing either an absence of subjective belief or an absence of objective reasonable grounds.’[59]
  2. ‘To decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways: What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful’.[60]
  3. Evidence bearing on the existence of reasonable and probable cause is confined to the material available to the defendant at the time the prosecution was commenced or maintained.[61] The enquiry necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light.[62]
  4. ‘Because the absence of reasonable and probable cause is understood as containing both subjective and objective elements, one of the chief forensic difficulties confronting a plaintiff is how to establish what the prosecutor (the defendant in the civil proceeding) had in his or her mind when instituting or maintaining the prosecution. Absent some admission by the defendant, the plaintiff must make the case by inference and, if the defendant gives evidence, by cross-examination’.[63]
  5. The Plaintiff may establish the negative proposition – that it is more probable than not that the defendant prosecutor acted without reasonable and probable cause – in either or both of two ways: the Prosecution did not ‘honestly believe’ the case that was instituted or maintained, or the Prosecution had no sufficient basis for such an honest belief. Critically, both avenues enquire into what the Plaintiff demonstrates about what the Prosecution made of the material that they had available when deciding whether to prosecute or maintain the prosecution. That is, what exactly is the content of the assertion that the Prosecution acted without reasonable and probable cause? [64]
  6. ‘Because the question in any particular case is ultimately one of fact, little useful guidance is to be had from decisions in other cases about other facts. Rather, the resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may (not must) depend upon evidence demonstrating that further inquiry should have been made’.[65]
  7. Next, what is meant by reasonable and probable cause? It is trite that mere suspicion is no basis for commencing a prosecution.[66] Reasonable and probable cause for a prosecution has been said to be ‘an honest belief in the guilt of the accused based on a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of an accuser, to the conclusion that the person charged was probably guilty of the crime imputed’: Glinski v McIver [1962] AC 726. Lord Devlin reduced the definition to this: there must be cause (that is, sufficient grounds) for thinking that the Plaintiff was probably guilty of the crime imputed.[67] In A v NSW, the question was stated as "whether a reasonable man might draw the inference, from the facts known to him, that the accused person was guilty".[68] It does not require that the prosecutor necessarily believed in the probability of conviction.[69] The prosecutor must honestly believe that "the probability" of the accused's guilt is such that upon general grounds of justice a charge against him is warranted.[70]
  8. If the prosecutor knows that the accused has a good defence, he has no reasonable and probable cause for the prosecution.[71] However, the prosecutor is not required to ascertain whether there is a defence or to test the full strength of any stated defence. Similarly, a prosecutor is not required to have tested every possible relevant fact before he takes action: Tu'ivai v Kingdom of Tonga, ibid, at [35]. Absence of reasonable and probable cause is not demonstrated by showing only that there were further inquiries that could have been made before a charge was laid. When a prosecutor acts on information given by others, it will very often be the case that some further inquiry could be made.[72] He or she is concerned only with the question of whether there is a case fit to be tried.[73]
  9. In determining whether there is a case fit to be tried, a prosecutor (or his advisors) may be expected to:[74]
  10. If the Plaintiff can prove that the Defendants failed to take any of those steps, then that will be evidence from which the judge may infer absence of reasonable and probable cause.
  11. In Miazga,[75] the Court warned that the reasonable and probable cause inquiry is not concerned with a prosecutor’s personal views as to the accused’s guilt, but with his or her professional assessment of the legal strength of the case. Given the burden of proof in a criminal trial, belief in “probable” guilt means that the prosecutor believes, based on the existing state of circumstances, that proof beyond reasonable doubt could be made out in a court of law. Further, the Court observed that in a public prosecution, public interest is engaged such that:
“... the Crown prosecutor is duty bound to act solely in the public interest in making the decision whether to initiate or continue a prosecution. That decision may not entirely accord with the individual prosecutor’s personal views about a case, but Crown counsel must take care not to substitute his or her own views for that of the judge or the jury.”
  1. The Court further explained that, in the context of a public prosecution, the third element necessarily turns on an objective assessment of the existence of sufficient cause. Therefore:
“... If the court concludes, on the basis of the circumstances known to the prosecutor at the relevant time, that reasonable and probable cause existed to commence or continue a criminal prosecution from an objective standpoint, the criminal process was properly employed, and the inquiry need go no further. In carrying out the objective assessment, care must be taken in retroactively reviewing the facts actually known to the prosecutor at the relevant time — that is, when the decision to initiate or continue the proceeding was made. The reviewing court must be mindful that many aspects of a case only come to light during the course of a trial: witnesses may not testify in accordance with their earlier statements; weaknesses in the evidence may be revealed during cross-examination; scientific evidence may be proved faulty; or defence evidence may shed an entirely different light on the circumstances as they were known at the time process was initiated. If a judge determines that no objective grounds for the prosecution existed at the relevant time, the court must next inquire into the fourth element of the test for malicious prosecution.”
  1. In the present case, the difference in the timing and nature of the outcomes between the bribery and money laundering charges on the one hand, and the false statement and perjury charges on the other, necessitates separate consideration as to whether there was reasonable and probable cause to commence and continue the prosecution on each set of charges.

The bribery and money laundering charges

  1. The bribery and money laundering charges drew most of the attention and energy during the criminal proceedings, both in terms of the various interlocutory applications and appeal to the Supreme Court, as well as during the trial itself.
  2. The Plaintiff’s criticisms of the Prosecution in respect of those charges may be condensed to two propositions, namely, that:
  3. The fact that the Prosecution did not have any direct evidence of the Plaintiff accepting bribes as alleged (which was not contested by the Defendants during this proceeding) was neither surprising nor is it determinative of the present issue. Mr Kefu always understood that the Crown case was based on circumstantial evidence. Even though, at the end of the day, the Crown bore the burden and standard of proof which required that before there could be a conviction, there would have to be evidence that made the jury sure of the Plaintiff’s purpose for which he received the various payments, and that in approving the relevant passport applications, he showed favour to Sien Lee in return for those payments, it does not follow that, in order to justify a charge, there had to be evidence of that strength available to the Prosecution at that time. To justify the charge, there had to be prima facie evidence of guilty knowledge, that is, evidence which, unless successfully refuted or explained, could lead a reasonable jury to be satisfied of the Plaintiff’s guilt.
  4. The Prosecution was therefore entitled to rely on circumstantial evidence. ‘It is very often the case that there is no direct evidence of guilty knowledge in fraud or related cases and the Prosecution must rely on the drawing of inferences from circumstantial evidence.’: Coudrat v Revenue and Customs Comrs [2005] All ER (D) 398, CA at [46].
  5. In arriving at the decision to prosecute, Mr Kefu, and his team of prosecutors, analyzed numerous volumes of evidence gathered by the police task force over several years. They distilled from that body of material a summary of facts. In the brief, the Prosecution team identified shortcomings in the available evidence, as described above, but they were nothing more than confirmation that the case was a circumstantial one which would necessarily seek to rely upon inferences to be drawn from all the other surrounding evidence when viewed as a whole.[76]
  6. That assessment was undertaken in accordance with the Attorney General’s Office Prosecution Code. That Code was based on the UK equivalent, which was referred to in Rees & Ors v Commissioner of Police for the Metropolis (Rev 1) [2017] EWHC 273 (QB). Mr Lutui referred to the assessment being carried out in accordance with the Threshold Test. According to the Code, that test required at least a reasonable suspicion that the Plaintiff had committed an offence. That was never in doubt.
  7. However, as noted above, the Code also required that where a Prosecutor makes a charging decision in accordance with the Threshold Test, the case must be reviewed in accordance with the Full Code Test as soon as reasonably practicable, taking into account the progress of the investigation. There was no express reference in the evidence to the Prosecution team undertaking a Full Code Test. However, there was ample evidence from Messrs Kefu, Lutui and ‘Aho that the components of that test had been considered in detail. They all testified to effect that in their professional opinion the available evidence satisfied the ‘evidential test’ in that it provided a 'realistic prospect of conviction' on each charge. It is to be recalled that that test did not require satisfaction to the criminal standard, which would be applied by the court in determining the charges, but rather whether a jury, properly directed according to law, was ‘more likely than not’ to convict the Plaintiff of the charges alleged. Mr Kefu went on to explain how he and his team assessed the balancing factors comprising the public interest test, again, in favour of the decision to prosecute. None of that evidence was challenged.
  8. In relation to the second complaint, to the effect that the Prosecution should have done more, counsel for the Plaintiff never descended to any detail in terms of what more the Prosecution could have or should have done before deciding to prosecute and in maintaining the Prosecution of these charges. The Code expressly required the Prosecution to consider and assess the strengths or otherwise of any defence the Plaintiff might have raised. However, until the no case submission in the Magistrates Court, the Prosecution had no inkling of any defence the Plaintiff might raise. That is because the Plaintiff declined requests to be interviewed by police or to make any statement which might have provided explanations for the moneys received. That was his right. However, it lies ill in the Plaintiff’s mouth to now criticise the Prosecution for not taking into account information solely within the Plaintiff’s possession before deciding to prosecute.
  9. The evidence in this regard went further. The Plaintiff’s wife and grandson were overseas at the relevant time. The expectation that they too, if communication with them could have been established, would not have co-operated with the authorities was reasonable in light of the stance taken by the Plaintiff to the investigation. Further, efforts to track down overseas and investigate Sien Lee’s part (if any) in the matter were severely hampered by the limited resources available to the police and their unsuccessful attempts to enlist the assistance of Chinese and other regional law enforcement agencies.
  10. In the absence of any exculpatory explanations by the Plaintiff, the Prosecution were left with direct evidence of the Plaintiff’s approvals of irregular passport applications, including in the face of legal advice from Mr Kefu that to do so was unlawful, other objective documentary evidence such as emails passing between the Plaintiff and Satua Tu’akoi and others, and the only explanations for the receipt of the moneys recorded on bank documents such as ‘fundraising from China’, ‘purpose gift’ and ‘loan repayment’. As Mr Kefu identified, none of those referred to any of the funds received as being casino winnings.
  11. In my view, the police and the Prosecution (to the extent that they were involved in matters of investigation or advising on same) did all they reasonably could to gather all available evidence upon which to assess and determine whether charges should be laid.
  12. Further, even though the brief did not contain any written record of any analysis of the evidence considered against the elements of the relevant offences, I accept that the Prosecution team discussed those matters in arriving at the recommendation to prosecute. Again, that evidence was not challenged.
  13. Therefore, I am satisfied that there was circumstantial evidence to support the Crown’s case concept as explained by Mr Kefu whereby the Plaintiff was alleged to have been involved with, in particular, Sien Lee and Satua Tu’akoi in a scheme for the fraudulent approval of unlawful Tongan passports. Even though the evidence of the connections between the Plaintiff and the other alleged protagonists, and the purpose of the payments and basis upon which they were received by the Plaintiff, as alleged by the Crown, was not strong, and that it might well have been refuted or explained at trial, that evidence (in terms of the amounts, frequency and timing relative to the approvals of the relevant passport applications) was sufficient to justify charging him with the bribery and related money laundering offences. The absence of direct evidence of knowing involvement does not mean that there was insufficient evidence, including circumstantial evidence, to lay the charges.
  14. There was no issue raised by the Plaintiff as to Mr Kefu’s honest belief in the existence of reasonable and probable cause. I am satisfied, on the evidence and circumstances described in the summary of facts, that that belief was reasonable.
  15. I conclude therefore, that the Prosecution had reasonable and probable cause to charge the Plaintiff with the bribery and money laundering charges.
  16. The next question is whether the Prosecution had reasonable and probable cause to maintain the prosecution on those charges during the course of the criminal proceedings up to entry of the nolle prosequi.
  17. The objective legal assessment of a case to be tried on the bribery and money laundering charges was the subject of the decision of Principal Magistrate Mafi in committing the Plaintiff to stand trial on a number of the charges, then by Paulsen LCJ who reinstated the charges dismissed by the Magistrate and committed the Plaintiff to stand trial on them as well, and then by this Court on the strike out application. All of those decisions were based on the longstanding tests in R v Galbraith. They all amounted to findings that when all the evidence to be relied upon by the Prosecution was viewed as whole, a properly directed jury could convict. As noted above, none of those decisions were appealed. During oral submissions in this proceeding, Mr Edwards Jnr, who did not appear in the criminal proceedings, suggested that the reason the Plaintiff did not appeal was that it would have prolonged the proceedings. That, of course, ignores the possibility that if any of the decisions were proven wrong on appeal, the criminal proceedings on these charges, at least, would have been terminated much earlier than they were and without the time, cost and stress associated with conducting a lengthy criminal jury trial in respect of them.
  18. In this proceeding, counsel for the Plaintiff did not suggest that any of those decisions were wrong and there is nothing in the material now before this Court to warrant a review of those decisions. In that regard the decision in Riches v Director of Public Prosecutions [1973] 2 All ER 935 is apposite. There, the Court of Appeal held that an allegation of want of reasonable cause in an action against the DPP ‘stood no chance of success when the committing magistrate, the trial judge and the jury all shared the view of the evidence held by the DPP’.[77]
  19. For that reason alone, I am satisfied that the Prosecution continued to have reasonable and probable cause to maintain the bribery and money laundering charges up to entry of the nolle prosequi during the trial.
  20. Which brings us then to the reasons the Prosecution terminated the proceeding in respect of those charges by entering a nolle prosequi.
  21. Contrary to the submissions on behalf of the Plaintiff, it does not necessarily follow that the entry of the nolle prosequi meant that the Prosecution never had reasonable and probable cause for the bribery and money laundering charges.
  22. As Mr Lutui said, the Crown evidence at trial was as expected. However, the difference between the circumstantial and inferential case presented by the Prosecution from the outset of the proceeding and throughout the Plaintiff’s various challenges to the sufficiency of that case, compared to the case that unfolded during the trial, was marked by two distinct and unexpected changes in the way the Prosecution was required to present its case.
  23. The first was the unsuccessful application by the Prosecution to try the Plaintiff jointly with Satua Tu’akoi and ‘Ileana Taulua.
  24. At the time, Mr Edwards SC, who acted for all three, did not oppose Tu’akoi and Taulua being tried together; he just did not want the Plaintiff to be tried with them. The reasons for opposition included that the two women were charged with different offences and that there were temporal differences between the periods spanning their charges compared to the period in which the Plaintiff’s offences were alleged to have occurred.
  25. In his evidence, Mr Kefu said that he always assumed the Plaintiff would be tried together with Tu'akoi and Taulua in order to provide ‘the full picture’. He anticipated that if all the ‘interconnected evidence’, such as the allegedly forged documents, the large sums of money sent from Hong Kong and that the Chinese applicants had not been naturalized nor previously issued with Tongan passports, was presented in a joint trial:

In that event, Mr Kefu considered that the case against the Plaintiff, albeit still circumstantial, would have been a ‘strong’ one.

  1. When asked whether, at the relevant time, he ever considered charging Tu’akoi and Taulua with conspiracy or aiding and abetting in relation to the bribery charges so that all three Defendants could have been joined on the one indictment, Mr Kefu replied that he hadn’t, and even though he could have, he had decided ‘to keep it simple for a Tongan jury’.
  2. There was no evidence as to whether Mr Lutui ever reassessed the Prosecution case following the ruling against the joint trial and prior to the commencement of the trial. Then again, he only took up the position of DPP some two months before the trial commenced and he was not cross-examined on the point.
  3. It is not easy to assess the significance of the ruling against the joint trial on the Prosecution case. Mr Kefu opined that had all three defendants been tried together, the outcome (at least in relation to the Plaintiff) would have been different. While it is, of course, impossible to now, in hindsight, determine the accuracy of Mr Kefu’s prognostication, there is no doubt that one of the key concerns raised by me with counsel in chambers during the trial was the apparent lack of evidence linking the Plaintiff with Sien Lee and any requests by the latter, or involvement, in relation to the specified passport applications, which according to the Prosecution, had been improperly approved by the Plaintiff.
  4. However, according to the Prosecution case, as examined in the three judicial decisions which supported the charges going to trial, that is where Tu’akoi and, to a lesser extent, Taulua, came in.
  5. In June 2020, Taulua was tried on five counts of making a false declaration for the purpose of obtaining a passport contrary to s 21(1)(a) of the Passport Act and one count of possession of an unlawfully issued passport contrary to ss 21(1)(f) of that Act. The Crown led no evidence in relation to count 6 and it was dismissed. The evidence at trial disclosed that Taulua was approached by Tu’akoi to provide at least 67 separate affidavits in support of applications by Chinese nationals for (or renewals of) Tongan passports, including, the five the subject of the charges. Those applications were among those the subject of the bribery charges against the Plaintiff. In her affidavits in support of the applications, Taulua deposed that the passports of each of the five Chinese applicants were renewed under a police command direction. Photocopies of the identification pages from the purported previous passports were annexed to her affidavits. She further deposed that the completed passports were then submitted with their file to the police commander who checked the entitlement of the applicants for a Tongan passport. After that, each passport was signed by the then Minister of Police, whom, for a number, was Mr Edwards SC. She also confirmed her handwriting in each of the photocopies. Each of those photocopies of purported previous passports was given to her by Tu’akoi. There was no evidence that Taulua created any of the photocopies.
  6. In its reasons for verdict,[78] the court found that:

Accordingly, as the Crown had failed to prove the element of intent to deceive, Taulua was acquitted of all remaining charges.

  1. The situation with Tu’akoi is less clear. Sometime after her trial was listed to commence on 22 June 2020, Tu'akoi travelled to China. Given that one of the usual conditions of bail is that the Defendant is not to leave Tonga without a court order, it is not clear how she was able to lawfully travel overseas. In any event, according to court records, Tu’akoi has apparently been unable to return due to the current Covid-19 pandemic and Tonga’s border closures (which commenced before her departure). Her case is presently listed for mention before Niu J on 30 November 2021. It is not known whether Tu'akoi can or will be returning to Tonga by then.
  2. While her case remains extant before the Court, it is not appropriate to say any more about the merits or otherwise of the Prosecution case against Tu’akoi. Suffice to say, however, that on the evidence that was adduced in the Plaintiff’s trial, there was some basis for believing that Tu’akoi was a point of connection between the Plaintiff and Sien Lee. Therefore, I accept that in the Plaintiff’s trial, the inability of the Prosecution to adduce all the evidence of Tu’akoi’s involvement which might have been available had she been tried with the Plaintiff, was likely to have been a significant factor in the Prosecution’s ultimate decision to terminate the bribery and money laundering charges.
  3. The second change of circumstance for the Prosecution case was the Plaintiff’s successful application for further particulars on the first day of the trial. No explanation for the timing of the application was ever forthcoming. Nonetheless, at the time, the request was considered reasonable, and Mr Lutui did not suggest otherwise.
  4. However, in his evidence in this proceeding, Mr Lutui described the requirement to specify the Chinese nationals whose applications for passports were approved by the Plaintiff in respect of each bribery count on different dates and for separate amounts of money, as an ‘additional burden’ on the Prosecution. Prior to the direction for particulars, the form of the indictment reflected Mr Kefu’s view of the Prosecution’s case concept, that is, that any of the relevant applications submitted by Tu’akoi and approved by the Plaintiff, during approximately 2013 and 2014, were part of the alleged scheme, for which the Plaintiff (or his wife and grandson) received the various amounts of money from Sien Lee (or his wife).
  5. The weight of that ‘burden’ manifested during the trial in the form of the second concern I raised with counsel in chambers, namely, the lack of evidence linking any of the amounts received by the Plaintiff with any of the passport applications belatedly specified in the particulars to those charges. At the time, Mr Lutui said nothing of the ‘burden’ but rather indicated, appropriately, that he would discuss the matter with the Attorney General.
  6. I agree with the Plaintiff’s submission that the ensuing decision by the Prosecution, as explained in evidence by Mr Lutui and Mrs Folaumoetu’i, to continue with the bribery and money laundering charges in the expectation that evidence from or called by the Plaintiff might ‘enhance’ the Prosecution case, was erroneous. That rationale either ignored, or at least misapprehended, the legal onus and evidentiary burden on the Prosecution to adduce sufficient evidence to support its case. Once it was apparent that the evidence adduced by the Prosecution was, or was likely to be, insufficient to prove those charges or safely support any inferences required for conviction, in the Galbraith sense, it was incumbent on the Prosecution to not proceed further with them.
  7. The Prosecution did make that decision a few days after the issue was first raised with Mr Lutui. During that period, the Plaintiff gave evidence. I accept that the evidence he did give, particularly, in relation to his approvals of the clearly invalid, or at least irregular, passport applications, was likely to have enhanced the Prosecution’s optimism about that aspect of its case. However, none of the Plaintiff’s evidence filled the critical ‘gaps’ in the Prosecution case as described above. On the contrary, the Plaintiff’s evidence on the provenance and purpose of the payments from Sien Lee, particularly, the substantial ‘casino winnings’, could only have dampened, if not destroyed, that optimism. That is, of course, if it were accepted by the jury. Moreover, it was likely to have been the first time, during the entire investigation and criminal proceedings, that the Prosecution received any first-hand detailed information about those matters. As such, and unsurprisingly, given the inability of the police and the Prosecution to have earlier investigated such claims, the Plaintiff’s evidence, on that issue, was undamaged in cross-examination.
  8. I do not agree with the Plaintiff’s submission that the Prosecution’s failure to immediately terminate the bribery and money laundering charges when the court first raised concerns about the sufficiency of the evidence at trial demonstrated a lack of reasonable and probable cause for the commencement and continuation of that part of the prosecution to that point in time. As I have explained, the two intervening events – the orders for a separate trial and further particulars – could not reasonably have been anticipated by the Prosecution and I am satisfied that they each impacted the Prosecution case, at different times, and in different ways, to the point that, once realised during the trial, it was appropriate to enter the nolle prosequi.
  9. Nor do I consider that the decision demonstrated malice. Provided that the motivation was to pursue the interests of justice and the continuation of the proceedings was not therefore actuated by malice, the Prosecution’s actions were lawful: Coudrat v Revenue and Customs Comrs [2005] All ER (D) 398, CA at [56]. In the absence of any evidence to the contrary, I am satisfied of both. In my respectful view, the decision was more likely the result of inexperience, incompetence, honest mistake or negligence, none of which is actionable: Elguzouli-Daf v Metropolitan Police Comr [1994] EWCA Civ 4; [1995] 1 All ER 833, CA; Thacker v Crown Prosecution Service (1997) Times, 29 December; Tu'ivai v Kingdom of Tonga [2009] TOCA 30 at [12]; Langi v Lavaki [2012] TOSC 89 at [13]; Grier v Lord Advocate [2021] COSH 18 at [36] referring to Miazga at [78].
  10. Further, the intervening few days between when the issue of sufficiency of evidence was first raised and when the Prosecution entered the nolle prosequi were insignificant in terms of the overall duration of the Plaintiff’s exposure to the charges and emotional stress and reputational harm, of some two years and eight months all up, for which he now claims damages.
  11. I also accept that in those intervening few days, Mr Lutui found himself impelled to review the state of the Prosecution case. In doing so, he concluded, as he explained in his evidence in this case, that the additional evidential requirements presented by the added particulars meant that the Prosecution was no longer able to satisfy the second limb of the Galbraith test. By that, I understood him to mean that even though there was some evidence to support the bribery charges, it was of such a tenuous, inherently weak or vague character, even when taken at its highest, that the jury, properly directed, could not properly convict upon it. In my view, that was a sound assessment. However, it could only have come after the order for particulars, and an appreciation that the evidence available to be adduced at trial, which had been determined to be sufficient for those charges to proceed to trial before the order for particulars was made, would no longer be sufficient to support the particularised case.
  12. Ultimately, on this issue, the Plaintiff placed too great an emphasis on the lack of, and need for, direct evidence of aspects of the bribery and money laundering charges; and the Prosecution appears have placed too great a reliance on the strength of its circumstantial case and its ability to support inferences necessary to secure convictions on those charges. However, that reliance was only undermined, critically, by the orders for the Plaintiff to be tried separately and then for the indictment to be amended at trial by the inclusion of specific particulars.
  13. For those reasons, I am not satisfied that the Plaintiff has demonstrated an absence of reasonable and probable cause for the commencement of the bribery and money laundering charges or their continuation until they were terminated by the entry of a nolle prosequi.

The false statement and perjury charges

  1. Even though the two Chinese nationals the subject of the false statement and perjury charges were among those particularised in the bribery charges, the outcome of, and therefore analysis on, the false statement and perjury charges is distinctly different than the above in respect of the bribery and money laundering charges.
  2. The Plaintiff simply relies on the decision of the Court of Appeal overturning the jury’s verdict and acquitting him in support of his contention that the prosecution in respect of these charges must have lacked reasonable and probable cause.
  3. To understand whether the Plaintiff’s contention is correct, having regard to the principles discussed above, it is necessary to first recount, in summary, the relevant facts and the reasons of the Court of Appeal.
  4. On 17 July 2015, the Plaintiff, in his then capacity as Speaker of Parliament, signed a letter addressed to “Immigration Officer, Tonga Immigration Office, Ministry of Foreign Affairs”, in which he stated:
“Dear Sir,
I wish to confirm that during my tenure as Prime Minister 2010-2014 Mr. Hua Guo and Ms Xing Liu were naturalized as Tongans on the 29 October 2014. Mr. Singkei Liu and Ms. Xing Liu, have lost their passports twice and my staff during my time as Prime Minister issued the second passport and this is the third time they have lost their passport due to theft.
I should be most grateful if the Immigration Tonga could kindly facilitate Hua Guo and Xing Liu with their passports to enable them to travel abroad to import building materials to complete their business that was used to build Shooters Nite Club on Vuna Road.
Should you have any requirements please feel free to contact my office. ...”
  1. On 21 December 2015, for the purposes of an application to set aside a search warrant in relation to the offices of the Legislative Assembly, the Plaintiff, again in his capacity as Speaker of the House, swore an affidavit, in which he effectively repeated the first sentence of the above letter, that is, that Mr Huo Guo and Ms Xing Liu were naturalised during his tenure as Prime Minister and Minister of Foreign Affairs, and that after their naturalisation, the two were issued with Tongan passports.
  2. The Prosecution alleged that the relevant statement and attestation were materially false. At trial, the Prosecution submitted that the Plaintiff knew of that falsity and that he issued the letter for the purpose of misleading the Immigration Department into issuing fresh passports in the names of the Chinese nationals stated. By its verdict, the jury evidently accepted those submissions.
  3. On the appeal, the Crown presented a summary of facts upon which it relied to support the verdict. They included and expanded upon the summary of facts prepared for the brief. Those facts included, relevantly:

“(21) On 14 January 2013 passport applications of Chinese nationals were lodged with Immigration. The passport applications included applications for one Singkei Lou and Shanoi Kam.

(22) The passport application for Singkei Lou claimed that he held a previous Tongan passport, passport number B141515. Satua Tu’akoi confirmed the identity of the applicant in the application. In support of the application was an affidavit from ‘Ileana Taulua attaching a copy of the previous passport.

(23) The passport application for Shanoi Kam claimed that she held a previous Tongan passport, passport number B141516. Satua Tu’akoi confirmed the identity of the applicant in the application. In support of the application was an affidavit from ‘Ileana Taulua attaching a copy of the previous passport. Subsequently, attached to the application was a memorandum from Suka Mangisi to ‘Ouita Kaho and Tupou Vaipulu confirming that the Accused had directed for the passport to be issued.

(24) The Immigration records showed that both Singkei Lou and Shanoi Kam were never naturalized as Tongan Subjects to entitle them to apply for a Tongan passport. The Immigration passport register also showed that Singkei Lou and Shanoi Kam had never been issued previous Tongan passports. In fact the Immigration passport register show that no Tongan passports had been issued with the numbers B141515 and B141516.

(25) Also on the same day, Tongan passports, number R402990 was issued to Singkei Lou, and passport number R402991 was issued to Shanoi Kam.

...

(71) On 29 October 2014, Mr. Singkei Lou and Mrs. Shanoi Kam took their oaths of allegiance and a certificate of naturalization was issued to them on the same day, after being signed by the Accused.

...

(87) On or about 8 July 2015, Immigration received passport applications for Xing Chun Liu and Hua Guo. The applications were given to Viliami Lolohea, OIC Immigration by one ‘Onitulei Manu.

(88) They attached an affidavit to their application stating that they were naturalized Tongan Subjects and also copies of their Chinese passports.

(89) Viliami Lolohea reviewed the applications and discovered that Xing Chun Liu and Hua Guo had previously applied and were issued Tongan passports under the names Singkei Lou and Shanoi Kam.

(90) Upon further investigation it was discovered that Hua Guo travelled to Tonga for the first time on 1 February 2013 with a Chinese passport with the name Hua Guo. She departed Tonga on 5 February 2013 with a Tongan passport issued on 14 January 2013, under the name Shanoi Kam. That Tongan passport was issued on 14 January 2013, a month before the applicant arrived in Tonga for the first time.

(91) On 17 July 2015, the Accused wrote a letter in support of Hua Guo and Xing Chun Liu’s passport application. In this letter he confirmed that during his tenure as Prime Minister in 2010 – 2014, Hua Guo and Xing Liu were naturalized as Tongans on the 29 October 2014.

(92) Viliami Lolohea interviewed Xing Chun Liu on 6 August 2015 regarding his passport application. During the interview, Liu confirmed that he first came to Tonga in February 2013 and that on this visit he received a Tongan passport issued in January 2013.

(93) Tongan passports were never issued to Hua Guo and Xing Chun Liu in relation to the passport application they lodged.

(94) On 21 December 2015 the Accused made a sworn affidavit. In that affidavit he stated that from December 2010 – December 2014 he was the Prime Minister of Tonga. He was also the Minister for Foreign Affairs and the Minister responsible for Naturalization.

(95) In that affidavit, Lord Tu’ivakano attested in paragraph 6 that ‘Mr Huo Guo and Ms Xing Liu were naturalised during your tenure as the Minister of Foreign Affairs’, but this is a materially false statement.

(96) Lord Tu’ivakano also attested in paragraph [7] in the same affidavit that, in relation to Mr Huo Guo and Ms Xing Liu ‘after naturalisation and there were Tongan passports issued to these two’.

(97) A police investigation into the affidavit revealed these attestations which were materially false.”

  1. From those facts, the Court of Appeal made a number of observations, including, relevantly, that:
  2. In relation to the false statement charge, the Court of Appeal found that:
  3. On that basis, the Court of Appeal held that even after giving full weight to the jury’s advantage in seeing the witnesses and assessing their credibility, the evidence did not support a conclusion that the Plaintiff had the requisite intent.
  4. On the related perjury count, the Court of Appeal found that:
  5. For those reasons, the Court of Appeal held that that conviction, too, could not be supported having regard to the evidence. Both convictions were therefore quashed, and verdicts of acquittal substituted.
  6. The Court of Appeal’s retrospective analysis of the evidence and issues relevant to these charges was based primarily on a textual consideration of the relevant parts of the letter and affidavit and an examination of how the Prosecution case was conducted at trial and the resulting evidence before the jury. The inquiry before this Court commences at the other end of the timeline and calls for consideration of whether the Prosecution had reasonable and probable cause for laying the charges in the first place, and thereafter, for maintaining them through to verdict. In other words, it does not necessarily follow that the Court of Appeal’s analysis of what occurred at trial will automatically be determinative of the questions now before this Court.
  7. Somewhat surprisingly, there was very little evidence adduced in this proceeding to explain the decision to prosecute on these charges. It will be recalled that the original formulation of the charges went through a number of iterations before the penultimate indictment in mid-2019, followed by the final amended indictment filed on the first day of the trial. Equally, and despite the Plaintiff bearing the onus of proof on this issue, little, if anything, was raised by counsel for the Plaintiff in cross examination of the Defendants’ witnesses. Such was the Plaintiff’s obvious reliance on the Court of Appeal’s decision.
  8. Again, there was no suggestion by the Plaintiff that, at any relevant time, the Prosecution did not honestly believe in its case on these charges. The question though is what did the Prosecution make, and what should it reasonably have made, of the evidence in relation to these charges?
  9. It is sufficiently clear from the summary of facts in the brief that the decision to prosecute on the letter and affidavit was based on the information from police that the relevant statements by the Plaintiff concerning Hua Guo and Xing Liu having previously been issued Tongan passports, in those names, were false. Given the evident purpose of the Plaintiff’s letter to the Immigration Office was to support those Chinese nationals obtaining new passports in those names, it would appear the Prosecution took a literal view of the Plaintiff’s statements and inferred from them that he knew, or must reasonably have known, that passports had not previously been issued in the names of Hua Guo and Xing Liu and that the Plaintiff therefore must have intended to mislead the Immigration Office. Absent any admission, direct evidence of the Plaintiff’s relevant state of mind was never going to be forthcoming. Therefore, the only evidence the Prosecution had were the letter and affidavit, the information from police that the key assertions were untrue and the expected testimony from Immigration witnesses such as Lolohea as to how he interpreted what was presented to him. All of that rose no higher than that passports had not previously been issued in the names of Hua Guo and Xing Liu.
  10. The decision to prosecute therefore was based almost entirely on the apparent falsity of the key assertions. Therefore, the Prosecution must have proceeded on the basis that if the available evidence alone was placed before a jury, there was a reasonable prospect that the jury would convict. In light of the Plaintiff’s refusal to be interviewed, the Prosecution could not have had any idea of, and therefore could not consider, any possible explanation or defence which might have revealed the Plaintiff’s true state of mind. It assumed knowledge on the part of the Plaintiff and an intention to deceive. The case also would rely heavily on the jury drawing inferences as to those elements. In the absence then of any evidence to the contrary, the decision to prosecute, albeit on a literal and necessarily limited interpretation of the Plaintiff’s statements, was warranted. If there was an innocent explanation, it would have to await trial.
  11. It is also likely, in my view, that the decision to prosecute on these charges was informed, to some extent, by the Prosecution’s developed suspicion against the Plaintiff in relation to the bribery charges. Such circumstances have been held to be capable of affording evidence of reasonable and probable cause.[79]
  12. It is notable that unlike the bribery and money laundering charges, and apart from the initial no case submission in the Magistrates Court, counsel for the Plaintiff did not make further attempts to have the false statement and perjury charges struck out for lack of, or insufficient, evidence.
  13. During the criminal trial, the Plaintiff gave evidence that he recognised the two Chinese nationals as those he had naturalised the year before but that he was genuinely mistaken about their different names. That evidence was undamaged in cross-examination. Notwithstanding, and despite directions to the jury on the difference between deliberate dishonesty and an honest mistake, the jury evidently did not accept the Plaintiff’s evidence.
  14. In that light, the Court of Appeal’s reasoning may be seen as having identified shortcomings in how the Prosecution interpreted the statements in the Plaintiff’s letter and affidavit (having regard to the relevant elements of the offences) as well as how it conducted its case at trial. The end result was that there was no evidence of the requisite knowledge and intent upon which the verdicts could safely stand. That, in my view, does not demonstrate an absence of reasonable and probable cause for commencing or maintaining the prosecution on these charges. It does suggest, again with respect, inexperience, incompetence, honest mistake or negligence, which, on the authorities stated above, is not actionable.
  15. Accordingly, I find that the Plaintiff has failed to establish, on the balance of probabilities an absence of reasonable or probable cause for the commencement and/or maintenance of any of the dishonesty charges.

Was the investigation and/or prosecution motivated by malice?

  1. On that finding, it is unnecessary to proceed further to consider whether the police investigation or the prosecution of the Plaintiff was motivated by malice.
  2. However, in case the above finding is considered elsewhere to be wrong, I will proceed, briefly, to consider the allegations of malice.
  3. A claimant in a claim for damages for malicious prosecution or other abuse of legal proceedings must prove malice in fact[80] indicating that the defendant was actuated either by spite or ill-will against the claimant, or by indirect or improper motives.[81] Malice will also exist if the act was done with reckless indifference or deliberate blindness: Kaufusi v Kingdom of Tonga [1999] TOCA 8.[82]
  4. The burden of proving that a professional prosecutor acted with malice has is a heavy one.[83]
  5. In A v NSW, malice was described as ‘acting for purposes other than a proper purpose of instituting criminal proceedings’,[84] where the ‘sole or dominant purpose of the prosecutor is a purpose other than the proper invocation of the criminal law’ or an ‘illegitimate or oblique motive.[85] Where the motives of the defendant are mixed, the claimant will fail unless he establishes that the dominant purpose is something other than the vindication of the law: Abbott v Refuge Assurance Co Ltd [1961] 3 All ER 1074.
  6. Malice can be inferred from the absence of reasonable and probable cause if the evidence warrants it.[86] Although a patently weak prosecution case can enable a court to conclude that both elements have been made out, it certainly does not support a proposition that an inference of malice must be drawn.[87] An overzealous prosecution, in and of itself, does not necessarily demonstrate malice but may provide cogent evidence of malice.[88] Further, if the defendant, in prosecuting the claimant, honestly believed in his guilt, the judge or jury should not infer malice if the only evidence of it is the absence of reasonable and probable cause.[89]
  7. However, the High Court cautioned that attempts to reduce the relationship between malice and reasonable and probable cause to aphorisms such as absence of reasonable cause is evidence of malice, but malice is never evidence of want of reasonable cause, may very well mislead.[90] ‘As with absence of reasonable and probable cause, attempts to identify exhaustively when the processes of the criminal law may properly be invoked (beyond the general proposition that they should be invoked with reasonable and probable cause) would direct attention away from what it is that the plaintiff has to prove in order to establish malice in an action for malicious prosecution — a purpose other than a proper purpose.’[91]
  8. Allegations of malice must be made, ‘not in any merely abstract sense’, but in a ‘specific, factual sense’: Tu'ivai v Kingdom of Tonga [2009] TOCA 30 at [18].[92]
  9. Proof of malice will often be a matter of inference, but it is proof that is required, not conjecture or suspicion.[93]
  10. At the forefront of the Plaintiff’s pleaded allegations of malice, and in his evidence, was the Plaintiff’s belief that the police investigation and subsequent prosecution was politically motivated. That belief was based on certain public statements by the late former Prime Minister to the effect that he considered that the Plaintiff was involved in the unlawful sale of Tongan passports. It was also based on the assertion that the former Minister of Police was responsible for instigating the police investigation which ‘targeted’ the Plaintiff. In closing submissions, the strength of that belief appeared to have waned somewhat when counsel for the Plaintiff wrote that the Plaintiff believed that former Prime Minister Pohiva ‘had something to do with his prosecution’.[94]
  11. On the evidence that was adduced in purported support of those allegations, I find that:
  12. Accordingly, the Plaintiff has failed to establish that, on the balance of probabilities, his prosecution was politically motivated.
  13. The other main basis for malice pleaded and submitted on behalf of the Plaintiff was the absence of reasonable and probable cause. In his oral evidence, the Plaintiff said that he believed the prosecution was malicious because ‘there was no evidence’ against him, that he had ‘done nothing wrong’ and that it was not enough for the police and the Prosecution to simply say that they were ‘just doing their job’. Counsel for the Plaintiff submitted that ‘the prosecution was ... for a wrong purpose given that the available evidence was not capable of proving the Plaintiff’s guilt beyond reasonable doubt’.
  14. That, of course, is not the test. As noted above, the Code required the Prosecution to be satisfied to a lower threshold, namely, that the evidence was sufficient to provide a reasonable prospect of conviction, meaning that, it was more likely than not that a properly directed jury would convict.
  15. I have dealt with this issue above. Even if that decision is considered elsewhere to be wrong, the Plaintiff must still prove malice. If there was no reasonable and probable cause, such as may support an inference of malice, for the reasons stated in the preceding sections, I would have tended to the view that the prosecution was more likely to have been the product of inexperience, incompetence or negligence rather than any form of improper purpose or other malice.
  16. I turn then to the balance of the submissions made on behalf of the Plaintiff in this regard.
  17. Having carefully considered the evidence, I find that there was no direct evidence, and no other evidence from which to infer, that:

Those propositions were rejected by the witnesses for the Defendants to whom they were put. The Plaintiff did not adduce any other evidence to support what was put nor to refute the witnesses’ denial of them.

  1. I reject the submission that malice is to be inferred from the Prosecution’s submissions on sentence which the Plaintiff characterised as ‘heavy handed’. The Prosecution’s submissions on sentence were supported by comparable sentences, consistent with relevant principle and did not demonstrate any form of malice. Further, and in any event, the logic of the suggestion that malice could be demonstrated after a conviction has been secured, and where the sentence to be imposed is wholly within the discretion of the sentencing court, is, in my view, doubtful.
  2. Finally, I find that there was no evidence of any improper purpose for the prosecution. The only purpose discernible from the evidence was the proper invocation of the criminal law.

Conclusion on liability

  1. For the reasons stated, I find that the Plaintiff has failed to establish, on the balance of probabilities, that the prosecution of the Plaintiff was without reasonable and probable cause or that either the police investigation or the subsequent prosecution was motived by any improper or ulterior purpose or any other form of malice.

The damages claim

  1. Having found against the Plaintiff on liability, it is, strictly speaking, unnecessary to consider the claim for damages. However, again, if the above conclusion on liability is considered elsewhere to be incorrect, I make the following observations and findings on the Plaintiff’s claim for damages.
  2. The Plaintiff gave evidence (which was not challenged) of the following effects of his arrest and prosecution on him:[96]
  3. The quantum of the Plaintiff’s pleaded claims, totalling $5.75 million, was particularised as follows:
  4. During oral submissions, junior counsel for the Plaintiff:
  5. Further, in relation to the heads of damages claimed, counsel:
  6. Other than suggesting that the Plaintiff’s damages claim ‘lacked clarification’, counsel for the Defendants did not make any submissions on quantum.
  7. The only authority referred to by counsel for the Plaintiff in support of his damages claim was Rees v Commissioner of Police of the Metropolis [2019] EWHC 2120 (Admin).[99] Mr Edwards Jnr described that decision as expounding upon the principles relevant to each head of damage. He added that in Rees, some £400,000 was awarded even though damage to reputation was not given any significant weight because the plaintiffs there were serving sentences for convictions for other serious offences, and were therefore not of good reputation.
  8. Rees involved three claimants, who, in April 2008, were charged with murder following the investigation of an alleged contract killing in a pub car park in south London in March 1987. The first two claimants were lawfully arrested and detained for a total of 682 days. By contrast, the third claimant was serving a long prison sentence at the time he was charged and the only relevant loss of liberty in his case was nine days he was held in respect of the murder charge when he would otherwise have been eligible for release on parole.
  9. The high-profile case against them reached the Central Criminal Court but in February 2010 Maddison J held that the evidence of a key prosecution witness Gary Eaton (“Eaton”) would be excluded. The reason was that a high-ranking police officer, Detective Chief Superintendent David Cook (“DCS Cook”), had compromised the integrity of the evidence Eaton proposed to give by initiating or allowing extensive contact with the witness in contravention of express agreements and accepted procedures. During that period, Eaton’s evidence, initially innocuous, expanded appreciably to include presence at the scene of the killing shortly after its commission together with knowledge of the claimants in the vicinity. Despite the ruling, at first, the Crown indicated that the trial was to proceed on other evidence. But in March 2011, the prosecution was discontinued, no evidence was offered, and each of the claimants were found not guilty.
  10. The claimants then issued claims for damages. After a preliminary trial on the issue of liability, their action at first instance was dismissed.[100] That decision was reversed by the Court of Appeal.[101] That Court found that DCS Cook, who was the most senior police officer in the case, presented the evidence to the Crown Prosecution Service for a decision on sufficiency of evidence for charge, knowing that he had suborned the evidence of Eaton and falsely presented him as an eyewitness to the murder scene. On analysis, the remaining evidence was weak and circumstantial and it had been rejected previously as insufficient to provide a realistic prospect of conviction, so it was inconceivable that charges would have been brought without DCS Cook’s deliberate manipulation. The independent prosecutor’s decision was overborne or perverted by the police officer’s actions. DCS Cook was a de facto prosecutor. The Court held that he had been malicious, within the meaning of the relevant authorities, because he could not have believed that the case tainted with the evidence of Eaton was fit to go to a jury and such dishonest pursuit of the case, whether or not DCS Cook himself believed the claimants to be guilty, amounted to deliberately perverting the course of justice.
  11. The first two claimants sought damages of £50,000 to £60,000 by way of a basic award for the harm, by way of mental distress, humiliation and anxiety caused by the malicious prosecution for murder itself. They sought a separate award for their loss of liberty of £100,000 to £150,000 and aggravated damages of £80,000 to £100,000. The third claimant sought £200,000 for mental distress, humiliation and anxiety caused by the murder charge and his more limited loss of liberty, and aggravated damages of £50,000. As the case involved proved malice on the part of a senior police officer the first two claimants also sought an exceptional award for exemplary damages of £70,000 to £100,000 while the third claimant sought £90,000.
  12. Justice Cheema-Grubb DBE referred to the established approach set out in Thompson and Hsu v Commissioner of Metropolitan Police [1997] EWCA Civ 3083 in which the Court of Appeal laid down guidelines for directions to a jury on damages in cases where claimants succeeded in claims for false imprisonment and/or malicious prosecution against the police. It was emphasised that the total figure for damages should not exceed what the court considers is fair compensation for the injury which the claimant has in fact suffered. Her Honour also referred to the following guiding principles:
"...where there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Aggravating features can including humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution."
(e) Self-evidently, the justification for aggravated damages must be something not satisfied by the award of basic damages. The aim remains compensation.
(f) By contrast, an award of exemplary damages may require a stepping back from the harm done to the individual to give effect to the broader purpose of such an award.
(g) Exemplary damages are an exceptional remedy, awarded only where the basic and aggravated damages together are insufficient to punish the defendant.[102] The potential overlap between the factors which provide justification for both aggravated and exemplary awards require the court to be aware of double-counting. Where exemplary damages are appropriate they are unlikely to be less than £5,000. Conduct must be particularly deserving of condemnation to warrant an award of £25,000 and the absolute maximum should be £50,000. It would be unusual for such damages to be more than three times the basic damages being awarded unless those basic damages are modest.
(h) It is a relevant consideration in the award of exemplary damages if they are to be paid out of public money as is the fact that the employer pays the damages rather than the person who has done wrong.
(i) Previous antecedent history is also relevant to the level of aggravated damages necessary to compensate the claimant over and above the basic award.
(j) The guideline direction for compensatory damages to be awarded to a person arrested and kept in custody for an hour was £500 and for a day £3,000. Where loss of liberty takes place alongside a malicious prosecution there should be separately identified damages. However, it is necessary to avoid double counting. It is also accepted practice to provide a global figure for periods in custody rather than a multiple of a daily rate or tariff. A tapering effect has also been acknowledged so that the longer liberty is lost for, the less incremental harm is recognised.[103]
  1. The first and second claimants were each awarded £155,000, comprising:
  2. The third claimant was awarded £104,000, comprising:
  3. The claimants had also already had orders made against the defendant for payment of costs of £225,000.
  4. The approach taken by the trial judge and the resulting awards were upheld on appeal: Rees v Commissioner of Police of the Metropolis [2021] EWCA Civ 49.
  5. Plainly, the circumstances in Rees are very different from the instant case. There are also other distinguishing features such as the difference in currency value between the English pound and the Tongan pa’anga, respective average incomes and costs of living, not to mention (contrary to Mr Edwards Jnr’s assertion) the different ranges of damages awards which have been claimed and ordered in previous (albeit few) cases in Tonga for malicious prosecution and allied torts such as unlawful imprisonment. In fact, apart from the isolated reference to Rees, no attempt was made by counsel for the Plaintiff to explain or substantiate the quantum of damages claimed here or to in any seek to provide a comparative analysis for them and the amounts awarded in Rees. As noted above, the statutory requirement for this Court to apply the English common law is conditioned ‘to only so far as the circumstances of the Kingdom and of its inhabitants permit and subject to such qualifications as local circumstances render necessary’.[104]
  6. To support a claim for damages for malicious prosecution, one of three heads of damage must be shown, namely, damage to:[105]
  7. The claimant must show that any damage to fame suffered was a necessary and natural consequence of the charge itself, and as regards the second head of damage, that actual loss of liberty was suffered. Once one of those heads of damage is proved, damages are at large and may include compensation for loss of reputation and injured feelings: Wershof v Metropolitan Police Comr [1978] 3 All ER 540.
  8. In Clifford v The Chief Constable of the Hertfordshire Constabulary, ibid, the claimant was charged with child pornography offences in July 2004 and acquitted the following April with no evidence being offered against him. Part of his damages claim was for depression suffered during that period. The Court referred to the leading case of Thompson v Commissioner of Police of the Metropolis, ibid, as authority (in 1998) for the proposition that the range for the basic compensatory element of the damages for malicious prosecution, in 2011 figures, was approximately £3,000 - £15,000. The Court considered that if the whole period fell for consideration, an assessment in terms of damages for personal injury would have been in the order of £17,500. However, as the defendant was not responsible for the first ten months of that period, the Court held that damages would have been reduced to £10,000 to represent the distress, psychiatric damage and social stigma referable to the tort. Even though in Thompson, it was held that aggravated damages may be awarded as additional compensation for injury to the proper pride and dignity and humiliation suffered by a claimant, the Court in Clifford declined to award any additional amount on the basis that injury and humiliation had already been compensated for in the basic award. Similarly, a claim for exemplary damages was rejected on the basis that there had been no evidence of the police having behaved in an arbitrary or oppressive manner deserving punishment rather than attracting the payment of compensation. In the final result, the overall award was £20,000.
  9. Closer to home, in To'a v Latu [2010] TOSC 7, a customs broker was charged with conspiracy to commit bribery of a government servant. After he was discharged in the Supreme Court, he sued for malicious prosecution. His claim included damages for economic loss in the form of lost income because of restrictions placed on his freedom to travel overseas, and legal costs incurred in his successful defence of the prosecution. He also claimed damages for injury to his reputation and humiliation. The total quantum of his claim was $1,207,140. In the course of his ruling on an application to strike out the Statement of Claim, Ford CJ observed[106] that the quantum of the claim appeared to be ‘exorbitant’. His Honour cited the observation by Lord Woolf MR in Thompson[107] in relation to non-pecuniary loss, that:
"The figures should start at about £2000 and for a prosecution continuing for as long as two years, about £10,000 could be appropriate."
  1. In Nasilai v Kingdom of Tonga [2010] TOCA 5, the appellant brought an action against the Kingdom for wrongful arrest, false imprisonment and malicious prosecution. The day after the riots of 16 November 2006, the appellant was arrested for failing to stop at a police road-block where his collided with part of the barrier. He was arrested without warrant or reason being stated and taken to Central Police Station where he was locked in a cell until 20 November when he was then taken before a Magistrate. After a further week of custody, as ordered by the Magistrate, the appellant was eventually granted bail, albeit on stringent conditions. On 12 April 2007, the appellant was charged by summons with failing to stop upon being signalled to do so by a police officer. He pleaded guilty to that charge and was fined. The allegation of malicious prosecution concerned an earlier charge relating to the appellant’s possession, at the time of his arrest, of $649, which police officers initially contended, so they asserted, was in the circumstances of the rioting most probably obtained by looting. The police later conceded that the money belonged to the appellant. The claim for malicious prosecution was ‘quite tersely’ dismissed on the ground that the appellant had not shown any malice. The Court of Appeal agreed. However, the Court held that, in relation to the first arrest, the appellant had been unlawfully imprisoned for less than 24 hours. On the issue of damages for that wrongdoing, the Court found guidance in Tavake v Kingdom of Tonga [2008] TOSC 14, although that case was complicated by torture being inflicted during one part of the imprisonment there in question. Utilising, however, the award of $550 for a 17 day period during which there was no torture as some yardstick, the Court of Appeal concluded that an award of $250 would provide ‘full and adequate compensation for the brief interval of unlawful imprisonment suffered by the appellant’.
  2. Finally, in Langi v Lavaki [2012] TOSC 89, Cato J dismissed a claim for malicious prosecution following the dismissal in the Magistrates Court of a criminal complaint by the Defendant of possession of stolen property. In that case, the Plaintiff claimed damages totalling $59,000, which included $32,000 for loss of income, $5,000 for damage to reputation, $5,000 for aggravated damages, $10,000 for exemplary damages and $3,000 for unlawful imprisonment.
  3. Guided by those principles and decisions and bearing in mind the effluxion of time since some of them and the effects of inflation for present calculations, I turn now to consider the balance of the Plaintiff’s claims for damages. In doing so, I must necessarily view any assessment of damages on the counterfactual basis of a claim for malicious prosecution having been made out. Having regard to the pleaded allegations and the evidence that was adduced at trial, it seems to me that the Plaintiff’s only realistic prospect of success was if he had been able to establish an absence of reasonable and probable cause (in at least the objective sense) in respect of both sets of charges, and that the police and Prosecution knew of that absence but nonetheless proceeded to charge and continue with the proceedings to finality, thereby providing a basis for an inference of malice. On that (now) hypothetical basis, I assess the remaining heads of claim as follows.
  4. As a general observation, the quantum of the overall claim was, in my view, even more exorbitant than in To’a v Latu. There really was no justification offered for the magnitude of the amounts claimed, all of which dwarfed English awards such as in Rees.
  5. In relation to the Plaintiff’s claim for damage to reputation, he and the five witnesses he called on the subject, all gave evidence about others in the Plaintiff’s village feeling and talking about the same upset and loss of trust in the Plaintiff during the course of the criminal proceedings. That evidence was impermissible hearsay and therefore inadmissible. Accordingly, the only evidence was from those individuals who gave evidence. Further, the evidence of the Plaintiff and his wife about their perception that the Plaintiff continues to be stigmatised notwithstanding the favourable outcomes to the prosecution were not supported by any independent evidence in that regard. On the contrary, the other witnesses he did call all testified that they had regained their trust in the Plaintiff since the favourable outcomes to the prosecution.
  6. For a basic award of general damages to compensate for the Plaintiff’s pain, distress, anguish, humiliation, anxiety over the potential loss of his nobility and estates[108] and damage to reputation during the two years and eight months of the prosecution, I would have allowed no more than TOP$100,000.
  7. In relation to the claim for aggravated damages, there was no evidence that the Plaintiff’s arrest was conducted any differently to any other and, if anything, I gained the distinct impression that, given the high profile of the Plaintiff and the case, the police were extra cautious and careful in the manner in which they conducted the arrest and subsequent search of the Plaintiff’s premises. There was certainly no evidence to suggest that they had acted in a high-handed, outrageous or oppressive manner. On the other hand, and only on the hypothetical basis which underpins this exercise, had the police and Prosecution been proven to have known that the evidence never presented a reasonable prospect of success, but proceeded anyway, an award of aggravated damages would have been warranted. Having regard to the discussion of the Court of Appeal in Kingdom of Tonga v Lolohea [2009] TOCA 13 at [12] and [13], I would have assessed such an award to compensate the plaintiff for injury to his proper pride and dignity and the consequences of being humiliated at no more than $50,000.
  8. The Plaintiff’s claim for unlawful imprisonment involved him being remanded in police custody for one night. He was lawfully remanded by the Magistrate. The Plaintiff did not seek to appeal that decision. On that basis alone, no amount should be allowed for this claim. However, if any award should be made, then taking the Court of Appeal’s award in Nasilai as a benchmark for Tonga[109] ($250 for less than 24 hours), and adjusting it for present values, I would have allowed no more than $500.
  9. The claim for loss of liberty arising from the condition of the Plaintiff’s bail restricting his travel did not actually involve any loss of liberty at all. The most that could be said is that the Plaintiff was inconvenienced to the extent of having to instruct his lawyers to file applications for permission to travel which only required the Plaintiff to tell them where, when and for how long he intended to be away. None of his applications were refused. There was no evidence that he was precluded from travelling anywhere as a result of the prosecution. The only other impost were the legal fees incurred for those applications which are claimed elsewhere. I therefore would not have allowed any amount for this head of claim.
  10. It was not clear whether the Plaintiff intended his claim to include an amount to compensate for the fact that, prior to his appeal being heard and determined, he completed the 100 hours of community service ordered as part of his suspended sentence. For reasons which were not explained in this proceeding, the Plaintiff did not file any application before either the Supreme Court or the Court of Appeal for a stay of his sentence pending appeal. As a result, he chose to complete his community service before his appeal was heard. Had such an application been filed, it would almost certainly have been granted. That it was not filed must be assumed to have been the product of legal advice received, a failure by the Plaintiff to seek advice or his failure to act on any he did receive. In those circumstances, I would not have been inclined to allow any further amount for that matter.
  11. As for the Plaintiff’s costs claimed at $250,000, I would have ordered that the Defendants indemnify the Plaintiff for such of those costs as may be determined to have been reasonably and necessarily incurred, to be taxed in default of agreement.
  12. It should be noted that the amounts I would have allowed had liability been established for the basic award of general and aggravated damages, as explained above, is much higher than any other even remotely comparable cases in Tonga to date. As such, those assessments ought not be regarded as necessarily having any precedent value for other future ‘ordinary’ cases (like e.g. Langi v Lavaki). Here, however, the nature of the Plaintiff’s position as a Noble of the realm and former Prime Minister and Speaker of the Legislative Assembly, and of the allegations of his involvement in the ill-reputed so-called ‘Tongan passports scandal’ made this case truly an extraordinary one.
  13. It should also be recalled that the above assessments are offered only upon a hypothetical basis of liability having been established, which in this case, I have found it is not. They are also offered to assist in the event that any appellate court might decide the issue of liability differently.

Result

  1. The Plaintiff has failed to establish, on the balance of the probabilities, that the police investigation and criminal prosecution against him was without reasonable and probable cause or that it was motived by malice.
  2. Accordingly, the Plaintiff’s claim is dismissed.
  3. The Plaintiff is to pay the Defendants’ costs of the proceeding, if any, to be taxed in default of agreement.



NUKU’ALOFA
28 October 2021
LORD CHIEF JUSTICE

[1] By amended indictment dated 10 February 2020.
[2] s 50 of the Criminal Offences Act.
[3] s 17 of the Money Laundering and Proceeds of Crime Act.
[4] s 63 of the Criminal Offences Act.
[5] s 21(1)(a) of the Passport Act.
[6] s 4(1) and (2)(b) of the Arms and Ammunition Act.
[7] Tu'ivakano v R [2020] TOCA 8; AC 1 of 2020.
[8] Mrs Folaumoetu’I was appointed Attorney General on 27 March 2019.

[9] Initially, Commissioner Grant O’Fee to 2014, followed by Commissioner Stephen Caldwell.
[10] Specifically, ss 18, 19 and 20 of the Tonga Police Act.
[11] Cabinet Decision No. 391.
[12] CB 523 to 540. Mr Kefu’s advice was addressed to the Plaintiff as the then “Lord Prime Minister and Minister for Foreign Affairs and Trade” and to the Secretary for Foreign Affairs and Trade and Principal Immigration Officer. In his conclusion, Mr Kefu wrote:
"68. We urge you not to approve these passport applications because there are real concerns about whether they are entitled to Tongan passports, and also there are real concerns about their identities. Moreover, there are real concerns that there is criminal activity behind these applications.
69. There are real indicators here that these applications are part of our unlawful scheme likely operated overseas, likely in China, and maybe here in Tonga, where Chinese persons are being offered an opportunity to obtain Tongan passports, likely to enter Hong Kong China without a visa to enjoy the benefits provided there. These applicants are likely paying criminal elements to provide them with forged Tongan passports with their photos, and then the photocopy of those forged passports are used as the basis of the claim for new Tongan passports....
71. If this unlawful scheme does exist, it is an attack on Tonga's sovereignty, and an exploitation of official and political power, which must end, and those who organise and facilitate it should be investigated and prosecuted..."

[13] CB 341 to 345.
[14] Brief of evidence, [6].
[15] CB 799-800.
[16] Brief of evidence [33]
[17] [40]
[18] CB 804 to 806.
[19] CB 301.
[20] Supreme Court proceeding AM 4 of 2019.
[21] CR 73 and 74 of 2019.
[22] 1 September 2019.
[23] [1981] 2 All ER 1060; (1981) 73 Cr App Rep 124 (CA) at 127. That approach has been widely adopted in Tonga, for example: Vakameitangake v R [1998] Tonga LR 141; R v Kaufusi [1999] Tonga LR 15; Practice Note 1 of 1992; R v Kupu [2002] Tonga LR 255; Dalgety v Crown [2012].
[24] [2019] HCA 35 at [88] ff.
[25] [1990] HCA 51; (1990) 171 CLR 207 at 214-215; [1990] HCA 51; see also at 212-213, approving R v Prasad (1979) 23 SASR 161 at 162, Attorney-General's Reference (No 1 of 1983) [1983] VicRp 101; [1983] 2 VR 410 and R v R (1989) 18 NSWLR 74 at 77. See and compare R v Galbraith [1981] 1 WLR 1039 at 1042; [1981] 2 All ER 1060 at 1062.
[26] At [91].
[27] Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 213-214; Attorney-General's Reference (No 1 of 1983) [1983] VicRp 101; [1983] 2 VR 410 at 415 and R v R (1989) 18 NSWLR 74 at 81, both citing Haw Tua Tau v Public Prosecutor [1982] AC 136 at 151.
[28] Attorney-General's Reference (No 1 of 1983) [1983] VicRp 101; [1983] 2 VR 410 at 415-416.
[29] Director of Public Prosecutions v Iliopoulos (Ruling No 3) [2016] VSC 132 at [8]- [9].
[30] Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 214-215; R v R (1989) 18 NSWLR 74 at 81, 82; see also Glass, "The Insufficiency of Evidence to Raise a Case to Answer" (1981) 55 Australian Law Journal 842 at 845-846.
[31] That on 20 November 2013, TOP $17,573.96 (US$10,000) was transferred to BSP account for the accused, account number 20005358081 from 'Technic Enterprise Limited' from an account at HSBC in Hong Kong.
[32] Shanoi Kam, Sinkei Lou, Orlandoni Wong, Li Hong Zheng, Ning Chuang Zhong, Guo Huan Wang, Xin Li Wang, Zheng Wang Cai, Li Yan, Rui Yun Wang, Xue Chun Li and Li Hua Zhang.
[33] Rex v Tu'ivakano [2020] TOSC 5.
[34] Mrs Folaumoetu’i gave evidence that upon commencing as Attorney General, she was briefed by Mr Kefu on all pending legal and administrative work, including the Plaintiff’s case. After his appointment as DPP, Mr Lutui also provided regular updates to the Attorney General on the progress of the Plaintiff’s case.
[35] A total of HKD$995,000 of which HKD$900,000 was transferred to the Plaintiff’s Tonga account.
[36] R v Tu'ivakano [2020] TOSC 15.
[37] Tu'ivakano v R [2020] TOCA 8.
[38] Citing A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500; Wood v State of New South Wales [2019] NSWCA 313 and Houda v The State of New South Wales [2005] NSWSC 1053. Counsel also handed up Clifford v The Chief Constable of the Hertfordshire Constabulary [2011] EWHC 815 (QB) and Lord Lasike v Kingdom of Tonga (CV 35 of 2015) during opening but did not specifically refer to those decisions at any time during the trial.
[39] As explained in Rees v Commissioner of Police of the Metropolis [2019] EWHC 2120 (QB).
[40] Also citing A v State of New South Wales [2007] HCA 10, at [93].
[41] Including Operations Swan, Macaw, Bogus Phase 1, Bogus Phase 2 and Bogus 3.
[42] Grier v Lord Advocate [2021] COSH 18 at [32] -[33] citing Charron J in Miazga v. Kvello Estate [2009] 3 SCR 339 at [4].
[43] Albeit the decision was on an application to strike out pleadings on issues of relevance.
[44] As discussed in Beckett v New South Wales [2013] HCA 17.
[45] Bullen & Leake, Precedents of Pleadings, 3rd ed (1868) at 350–356; A v State of New South Wales [2007] HCA 10 (2007) 230 CLR 500; Clifford v The Chief Constable of the Hertfordshire Constabulary [2008] EWHC 3154 (QB); Miazga v Kvello Estate, ibid; To'a v Latu [2010] TOSC 7 at [15]; Beckett v New South Wales [2013] HCA 17; Prasad v Tu'utafaiva [2017] TOSC 42 at [18]; Grier v Lord Advocate [2021] COSH 18.
[46] [34].
[47] Citing Fleming in The Law of Torts, the 7th ed. 564.
[48] Beckett v New South Wales [2013] HCA 17 at [2], citing Broome v Chenoweth (1946) 73 CLR 583 at 599 per Dixon J; R v Sneesby [1951] St R Qd 26; R v Ferguson; Ex parte A-G [1991] 1 Qd R 35. See also Gilchrist v Gardner [1891] NSWLawRp 53; (1891) 12 NSWLR 184; Goddard v Smith (1704) 6 Mod Rep 261; R v Ridpath (1713) 10 Mod Rep 152; R v Allen [1862] EngR 309; (1862) 1 B & S 850; R v Mitchel (1848) 3 Cox CC 93. Cf Poole v R [1961] AC 223, PC.
[49] Davis v Gell [1924] HCA 56; (1924) 35 CLR 275; Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527.
[50] Ibid, at 367 [54].
[51] Wicks v Fentham (1791) 4 TR 247; [100 ER 1000].
[52] At [2], [50] and [53], citing Varawa v Howard Smith Co Ltd [1911] HCA 46; (1911) 13 CLR 35 at 89 citing Bynoe v Bank of England [1902] UKLawRpKQB 12; [1902] 1 KB 467; Davis v Gell [1924] HCA 56; (1924) 35 CLR 275 at 289–292 per Isaacs ACJ; Salmond, The Law of Torts, 6th ed (1924) at 595.
[53] A v NSW at [117].
[54] Supra, [51].
[55] [53] citing Allen v Flood [1897] UKLawRpAC 56; [1898] AC 1 at 172–173, per Lord Davey.
[56] [54]
[57] [56]
[58] Miazga at [58].
[59] [70], citing Glinski v. McIver, [1962] 1 All E.R. 696 (H.L.), at pp. 721 22; A v. State of New South Wales, [2007] HCA 10, [2007] 3 L.R.C. 693; Marley v. Mitchell (1988), [2006] N.Z.A.R. 181 (C.A.).
[60] A v NSW at [58].
[61] Beckett v New South Wales, ibid, at [4].
[62] A v NSW at [59].
[63] Supra, [61].
[64] [77].
[65] [86].
[66] Clifford v The Chief Constable of the Hertfordshire Constabulary, ibid, at [46].
[67] At 766-767.
[68] [83] citing Crowley v Glissan (No 2) (1905) 2 CLR 744 at 754.
[69] Clifford v The Chief Constable of the Hertfordshire Constabulary, ibid, at [44].
[70] Rees and Others v Commissioner of Police for the Metropolis [2018] EWCA Civ 1587 at [74], citing Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; (1935) 53 CLR 343 and Abrath v North Eastern Railway Company [1883] 11 QBD 440.
[71] Clifford v The Chief Constable of the Hertfordshire Constabulary, ibid; Rees & Ors v Commissioner of Police for the Metropolis (Rev 1) [2017] EWHC 273 (QB) at [154].
[72] A v NSW at [86], citing Herniman v Smith [1938] AC 305 at 319.
[73] Dallison v Caffery [1964] 2 All ER 610, CA; Rees and Others v Commissioner of Police for the Metropolis [2018] EWCA Civ 1587 at [74] citing Glinski, infra.
[74] Clifford v The Chief Constable of the Hertfordshire Constabulary, ibid, at [45], citing Abbott v Refuge Assurance Co Ltd [1962] 1 QB 432 which involved a private prosecution, where the Director of Public Prosecutions had declined to proceed.
[75] [58], [63], [69], [73], [75]-[77].
[76] In their oral evidence, Messrs ‘Aho and Lutui clarified that the inferences to be relied were to be based on all the relevant evidence in the summary of facts, not just the amounts of money transferred to the Plaintiff or his wife and grandson.
[77] Referred to in Balkin and Davis on the Law of Torts, 3rd ed. (2004) at section 25.14.
[78] Rex v Taulua [2020] TOSC 34 at [33] to [44].
[79] Wilkinson v Foote (1856) 5 WR 22. See also Brooks v Warwick [1818] EngR 551; (1818) 2 Stark 389; James v Phelps (1840) 11 Ad & El 483.
[80] As to the distinction between malice in fact and malice in law see Bromage v Prosser [1825] EngR 42; (1825) 4 B & C 247 at 255; Shearer v Shields [1914] UKLawRpAC 14; [1914] AC 808 at 813–814, HL, per Viscount Haldane LC.
[81] Hicks v Faulkner (1881) 8 QBD 167 at 175, DC; Mitchell v Jenkins [1833] EngR 829; (1833) 5 B & Ad 588 at 595 per Parke J; Haddrick v Heslop and Raine [1848] EngR 13; (1848) 12 QB 267 at 276 per Coleridge J (where the prosecution was for the purpose of ‘stopping the plaintiff's mouth’); Stevens v Midland Counties Rly Co [1854] EngR 661; (1854) 10 Exch 352 (where the defendant's object was to punish someone in order to deter others); Abrath v North Eastern Rly Co [1883] UKLawRpKQB 122; (1883) 11 QBD 440 at 455, CA, per Bowen LJ (affd [1886] UKLawRpAC 15; (1886) 11 App Cas 247 , HL); Brown v Hawkes [1891] UKLawRpKQB 123; [1891] 2 QB 718 at 722 per Cave J, and at 728, CA, per Bowen LJ; Corea v Peiris [1909] UKLawRpAC 25; [1909] AC 549, PC; Glinski v McIver [1962] 1 All ER 696, HL (alleged purpose of prosecution being to punish plaintiff for giving evidence in other proceedings could be malice).
[82] Citing Northern Territory v Mengel [1995] 185 CLR at 307.
[83] Wood v State of New South Wales [2019] NSWCA 313 at [49].
[84] [55].
[85] [91] citing Gibbs v Rea [1998] UKPC 3; [1998] AC 786 at 804; Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147 at 162; cf Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 529. Applied in Tu'ivai v Kingdom of Tonga [2009] TOCA 30 at [20].
[86] Clifford v The Chief Constable of the Hertfordshire Constabulary [2011] EWHC 815 (QB) at [43].
[87] Wood v State of New South Wales, ibid, at [49].
[88] Ibid at [57].
[89] Clifford v The Chief Constable of the Hertfordshire Constabulary, ibid, citing Brown v Hawkes [1891] UKLawRpKQB 123; [1891] 2 QB 718, CA; Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 at 55, CA, per Atkin LJ.
[90] A v NSW at [90] cf Glinski v McIver [1962] 1 All ER 696 at 700.
[91] [92]
[92] Citing Kaufusi v Kingdom of Tonga [1999] Tonga LR 118 at 124-125.
[93]Ibid, [93] cf Gibbs v Rea [1998] UKPC 3; [1998] AC 786 at 804.
[94] [3.2.4]
[95] Page 707 of the Plaintiff’s Supplementary Bundle of Documents, Vol.3, document no. 85.
[96] Brief of evidence, [68] to [86].
[97] Which the Plaintiff did on 12 March 2018 to New Zealand (CB 842); 18 July 2018 to New Zealand (CB 981); 23 August 2018 to New Zealand (CB 1126); 12 September 2018 to China (CB 1132); 8 October 2018 to New Zealand (CB 1139); 12 February 2019 to New Zealand (CB 1170).
[98] Of which, the Plaintiff said he had not paid all, and was instead, ‘making arrangement to grant lease land in favour of the lawyers to pay for my costs’.
[99] Also reported at 2339 (QB).
[100] Rees and Ors v Commissioner of Police for the Metropolis [2017] EWHC 273 (QB).
[101] Rees & Ors v Commissioner of Police for the Metropolis [2018] EWCA Civ 1587.
[102] A claimant's conduct may be relevant to the question of the award of exemplary (or 'punitive') damages: Bishop v Metropolitan Police Comr [1990] 1 LS Gaz R 30, (1989) 133 Sol Jo 1626, CA.
[103] R v Governor of HMP Brockhill ex parte Evans [1998] EWCA Civ 1042; [1999] QB 1043 at 1060.
[104] Civil Law Act, ss 3, 4(b).
[105] Berry v British Transport Commission [1961] 3 All ER 65, CA; Calix v A-G of Trinidad and Tobago [2013] UKPC 15, [2013] 4 All ER 401.
[106] [37].
[107] Referred to in ‘McGregor on Damages’, 18th Ed. At 38-005.
[108] Had he been sentenced to more than two years imprisonment: Constitution, cl 23 and 63.
[109] As opposed to that stated in Rees.

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