R v Tupa [2022] TOSC 6; CR 144-145 of 2021 (4 March 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 144-145 of 2021

BETWEEN : REX

- Prosecution

AND : 1. VAIOLA TUPA

2. ‘ANASEINI PONGI

- Accused

BEFORE HON. JUSTICE NIU

Counsel : Mr Tevita ‘Aho for the Crown

Mr. Siosifa Tu’utafaiva for both Accused

Trial : 25 January 2022

Submissions : 26 and 27 of January 2022

Verdict : 4 March 2022

VERDICT

The charge

[1] The two accused, Viola Tupa (Tupa), and ‘Anaseini Pongi (Pongi), are jointly charged with one offence, namely that they, in or about December 2020, at Kolomotu’a, did advertise to members to Onieva Toki and others a scheme where profits earned by participants in the scheme largely depend on increases in the number of participants in the scheme, contrary to section 3A of the Financial Institutions Act (the Act).

[2] Section 3A of the Act provides as follows:

“Any person, who directly or indirectly, initiates, offers, advertises, conducts, finances, manages, supervises or directs a scheme where profits earned by participants in the scheme largely depend on increases in the number of participants in the scheme or in the size of their contributions to the scheme, commits an offence and such person shall be liable upon conviction to a fine not exceeding $1,000,000 or to imprisonment for a term not exceeding 30 years or both”.

The evidence

[3] The Crown called 3 witnesses, namely, Uinise Manuel and ‘Ilaisaane Moala who worked with accused Tupa in the Human Resource division of the Police Force, and Siosateki Vainikolo, who worked in the Professional Standard division of the Police Force.

[4] Uinise Manuel said that in about the first week of January 2021 she recalled that she and Tupa were the only ones in the office after work one day and that she saw Tupa printing out documents from the office printer which was situated in the room in which she, Uinise, had her desk. She said that she recalled that one of the documents that Tupa printed out was a diagram which was circular like similar to that which was in the Ujama page in Facebook. She said that the diagram which appears in P.29 of the Book of Documents (which was to be produced by witness, Siosateki Vainikolo) was similar to the one that Tupa had had printed out of the printer that day. She said that the page with the diagram was one of some ten odd pages which Tupa was printing out.

[5] ‘Ilaisaane Moala, aged 32, a police constable first class, said that she had worked in the Human Resources division of the police for 4 years and that Tupa was working there in January 2021. She said that on or about 26 or 27 January 2021, Tupa had print outs done from her, ‘Ilaisaane’s, computer leaving on the screen the title “Li li Gifting” after she finished. She recognized that title as the one appearing on the screen of her computer which is shown on P.12 of the Book of Documents.

[6] She said that she also saw a diagram with circles and names written in them and she recognized it as the ones shown on P.29 and P.30 of the Book of Documents. The page of “Li Li Gifting” showed that it was printed on the screen of her computer at 3:02 pm on 4 January 2021, and she said that she forwarded that information to Siaosi Paseka on 27 January 2021.

[7] She said that it was Tupa who told them about the scheme. She said that Tupa told them that she was “in a contributing (li li) group (company) and you had to register with a certain sum of money and that you had to recruit many others to register each with a same sum of money and that those sums of money would be what you would receive as yours”.

[8] She said that Tupa was telling them that and that she, Tupa, wanted them to join.

[9] When cross-examined by Mr. Tu’utafaiva, she said that Tupa did want them to join the group.

[10] I asked her and she said that Tupa did tell her the sum of money that they each had to pay to join but that she could not now remember it.

[11] She said that when Tupa was telling them this, there were herself, ‘Ilaisaane, and Uinise Manuel, Pilisita Toluta’u and another woman in the room. She said that Tupa told them that she wanted them to share the blessing (monu) that she had. She said that Tupa advertised (tu’uaki) to them to join so that they could get a lot of money.

[12] She said that they only replied to her that she be careful or she would be caught (convicted) and that she, Tupa, just laughed.

[13] She was asked by Mr. Tu’utafaiva and she said that she had not stated that the evidence in her statement to the police because the police did not ask her about it.

[14] Siosateki Vainikolo, police officer of the professional standard division said that he interviewed the accused, Pongi, and he produced the record of interview as Exhibit 1. In answer to questions put to her, Pongi, inter alia, said the following:

(a) she joined Ujama because of advertising from her cousin and that she joined and paid her money and she harvested money from it;

(b) she joined on 16 November 2020 and paid her money which was either $1,180 or $1,185 but was not certain which,

(c) when she joined she had to recruit her own people like her cousin did to her, and that she had to recruit 8 people herself before she could harvest any money;

(d) she harvested $ 8,295.00

(e) a few people had harvested their money but she asked them to pay back their harvest so that new recruits could be repaid their monies. She said that they collected some $30,000 and paid it all out but it was not enough to refund everyone.

[15] He also produced 10 photographs of the room, desk and of the computer fo the accused, Tupa, which he produced as Exhibit 2 and which are included in the Book of Documents, P.13 to P.22.

[16] He also produced a sketch floor plan of the office of the Human Resources Division as Exhibit 3 and it is included in the Book of Documents at P.23.

[17] He said that he asked Tupa to show him her Messenger messages on her computer and she did and that he photographed each page as are shown on P.14 to P.19 in the Book of Documents, which he produced as Exhibit 4.

[18] He said he also found Tupa’s flash drive which was attached to her computer and that in the first part it recorded 8 pages which are produced as P.25 to P.32 of the Book of Documents and which he produced as Exhibit 6.

[19] Finally he produced all the pages from P.34 to P.136 in the Book of Documents which were the messages contained in the flash drive as sent from difference persons as shown on each message and which he produced as Exhibit 6.

[20] They showed the following messages between Tupa and Pongi on pages 34 and 35 of the Book of Documents, that is, Exhibit 6:

29 Nov 2020

Tupa : How are you. Did you go to church?

Pongi : Hello dear, I did go to church invited the members to join us in Ujamaa.

Tupa : The same here, I went to Church and I started since yesterday up to

Talasiu to join us. They said they’d join Wednesday or Friday.

Tupa : Monday is full.

Pongi : Yes, sis

Tupa : What about Wednesday, sis?. That is nearly full too with the people I

invited and who want to join. But there is one who has confirmed to join Wednesday. Did Kolotita ring again? I made her angry.

Pongi : Don’t worry about her. Yes, Wednesday is nearly full too.

Tupa : Book one for Wednesday. Put it as Olive’s. It is sure for Wednesday,

but there are many who write to be registered but I tell them to come to the meeting on Monday and listen.

Tupa : Be calm sis as the saying goes our team work will move our work

forward so that the people who want to join us are happy.

30 Nov 2020

Tupa : Sis, don’t forget Peta Fifita’s share – it was booked for today. I will

come across and give it to you.

Pongi : Please hurry, sis.

Tupa : Yes I will run and draw it out and drop it off. Are you at work?

Pongi : Yes just drop it at Kolomotu’a to Kiti.

Tupa : Ok

Tupa : I have dropped it at the shop, there are 2 registrations for today please.

Pongi : Sis, today is full. Your sister can go in on Wednesday.

Tupa : Ok, That is alright sis as long as her registration is there otherwise she would spend it elsewhere.

[21] When cross-examined by Mr Tu’utafaiva, he said that there was a complaint that was made by one Onieva Toki in respect of this matter and that he carried out his investigation in consequence of that complaint.

[22] Before the Crown closed its case, Mr ‘Aho requested that P.10 to P.12 of the Book of Documents be produced as Exhibit 7, and they were accordingly produced. He then closed the case for the Crown.

No defence evidence

[23] Mr. Tu’utafaiva then informed me that both accused would not give evidence and would not call any witness, and they did not.

Submissions

Mens rea

[24] Both counsel agreed and I agree, that although the provision of S.3A is silent as to whether or not mens rea is a necessary ingredient of the offence with which the two accused are charged, the law requires that mens rea be proved by the prosecution. Mens rea may only be excluded to be proved by the Crown if the statute providing for the offence expressly, or by necessary implication, excludes it.

Scheme (sino’i pa’anga)

[25] Mr. Tu’utafaiva has submitted that the Crown must prove that there was a scheme or a sino’i pa’anga (which one or the other of the two accused advertised). He submits that the Crown has failed to prove any such scheme or sino’i pa’anga.

[26] But in the record of interview of Pongi (Exhibit 1), Pongi stated that “she joined Ujama because of advertising from her cousin and that she joined and paid her money which she said she could not recall whether it was $1,185 or $1,180, and that she received her harvest of $8,295.00. She said that like what her cousin did when she recruited her, she had to recruit 8 people before she could harvest any money and she did and she got her harvest. I accept that evidence as evidence of the scheme.

[27] To me, that was the scheme that was run in Ujama, and Pongi’s answers to the questions recorded in the Record of Interview is evidence of the scheme in Ujama.

[28] And to me, that was the same scheme of Ujama to which she, Pongi, referred in her message to Tupa on 29 November 2020 when she said to Tupa: “Hello dear, I did go to church and invited the members to join us in Ujamaa”. The word “us” meant Pongi and Tupa and others in Ujama.

[29] And Tupa herself replied to Pongi’s message that same day: she said, “The same here. I went to church and I started since yesterday up to Friday. Monday is full”. The words “The same here” meant Tupa did the same thing that Pongi did, namely inviting of the Church members to join Ujama.

[30] And Pongi later on that day messaged Tupa : “Thank you I am glad you have the understanding, so lucky to have you on my team.” That confirmed that they were working in the same team on the same scheme in Ujama.

[31] I therefore find and I accept there is uncontested evidence that there was a scheme and that that scheme was that every participant had to register with a certain sum of money, and that that participant had to recruit 8 persons who were each to register with a sum of a similar amount. Upon the registrations of those 8 persons, those 8 persons had to recruit 8 persons each, just like when they were recruited and so on. The earlier participants get their profits from the monies which the later participants pay and the more participants there are, the more profits there are for the earlier participants, and so on. That was the scheme in Ujama.

[32] I am therefore satisfied beyond reasonable doubt that there was a scheme in this case where profits earned by the participants in the scheme largely depended on the increase in the number of the participants in the scheme. Both Pongi and Tupa stood to gain their profits, from the increase of the number participants in the scheme.

Advertise

[33] Mr. Tu’utafavia has also submitted that there has been no evidence that either Pongi or Tupa had advertised any scheme to anybody, let alone to one, Onieva Toki, as is stated and alleged in the charge against them.

[34] I am afraid I do not agree. The exchange between Pongi and Tupa in messenger on 29 November 2020 as I have stated in paragraph 20 above is quite clear. Pongi said to Tupa that she had gone to Church and invited the members, that is, I take to mean members of the Church, “to join us at Ujamaa,” and Tupa replied, “The same here. I went to church and I started since yesterday up to Talasiu to join us.”

[35] What each of the two accused did was to advertise the scheme to church members of the church they each attended and they did that by recommending to and inviting the church members to join the scheme in Ujama. The Tongan word in the provision of S.3A and in the charge against the two accused is “tu’uaki” (advertise). In the Tongan language “tu’uaki” means “advertise” and it also means “recommend” or “invite” and it can be made to the public at large or to a person or persons, which was what Pongi and Tupa both said they did.

[36] When ‘Ilaisaane Moala gave her evidence she said that Tupa told them, the women there, at their dining room that she wanted them to join her group. I have no difficulty in finding that she was inviting them, and that she was thereby advertising to them to join her group. I similarly have no difficulty in finding that both Tupa and Pongi each invited the church members to join the Ujama Scheme. They thereby advertised the Ujama scheme to the church members on that day 29 November 2020.

Late amendment of charge

[37] Mr. Tu’utafaiva submitted that there was no evidence that either accused carried out any advertising in December 2020 at Kolomotu’a, such as they were being charged in their indictment.

[38] Mr. ‘Aho in response requested that the charge be amended by adding the words “to January 2021” immediately after the words “on or about December 2020” so that the phrase reads “on or about December 2020 to January 2021 at Kolomotu’a......”

[39] Mr. Tu’utafaiva objected and said that the defence had been run on the wording of the charge as at the commencement of this trial and the amendment was prejudicial to the two accused. He said that there was no evidence of any scheme being operated in December 2020 and so the amendment was prejudicial to the defence.

[40] Mr ‘Aho replied that the two accused could always call or give evidence if they wished, if they considered that they were prejudiced by the late amendment sought. Mr Tu’utafaiva made no response to that.

[41] I reserved my ruling on the matter to give in this verdict.

[42] The answer is straight forward. Section 90 of the Magistrate’s Court Act provides for it and S.5(3) of the Supreme Court Act provides that the Supreme Court can exercise all the powers of the Magistrate’s Court.

They provide as follows:

Section 90 of the Magistrate’s Court Act:

90. Variances and Amendments in criminal cases

“Where at the hearing of any criminal case the evidence discloses a distinct offence from that charged in the summons or warrant , the Magistrate shall dismiss the charge, but where there is merely a variance between the summons or warrant and the evidence as to the time or place at which the offence charged was committed or some other minor error or discrepancy in the summons or warrant which may be amended without injustice to the defendant, the Magistrate shall amend the charge and if it appears to him that the defendant has been misled by the charge as originally stated, he may adjourn the further hearing of the case to some future day”.

Section 5 (3) of the Supreme Court Act:

“(3) The Supreme Court shall have power to issue warrants, writs, summons and to subpoena witnesses, to exercise all the powers of the Magistrate’s Court and to enforce agreements and protect property.’’

[43] It cannot be doubted that the power of the Supreme Court to issue warrants, writs and summons includes the power to issue indictments and charges in criminal cases coming within its jurisdiction. And as the Magistrate’s Court is given the power to dismiss or amend the charge in a summons before it, it follows that the Supreme Court also has the power to dismiss or amend a charge in an indictment that comes before it in accordance with S. 5(3) of the Supreme Court Act and S.90 of the Magistrate’s Court Act.

[44] Furthermore, the Supreme Court has been given the same power as the High Court of Justice of England and Wales. That Court has the power to dismiss and to amend charges in indictments that come before it. That has been given by section 5 (1) of the Supreme Court Act of Tonga which provides as follows:

“5. (1) The power of the Supreme Court within the Kingdom shall include, mutatis mutandis, all the powers for the time being vested in or capable of being exercised by the High Court of Justice in England and Wales”.

[45] However, I also consider that even if there was no request by the Crown to amend the charge to include the month of January 2021 in addition to the month of December 2020 as is presently stated in the charge in the indictment, the charge, as is presently worded, also includes January 2021 because the charge is “on or about December 2020”. The words, “on or about December 2020” means that the offence is said to have happened “in the month of December 2020” or it might have happened “in the month of January 2021” because of the words “on or about”.

[46] But more importantly, it would also include the month of November 2020 because of the words “on or about December 2020”. That is because I have found, as I have stated in paragraphs 28 and 29 above, that both accused stated in their messenger exchanges of 29 November 2020 that they had both invited church members to join the scheme at Ujama on that day, that they each committed the offence with which they are each charged on that day, 29 November 2020. That date falls within the words of the charge in the indictment – “on or about December 2020”

[47] I therefore do not consider that any amendment of the charge such as the Crown has requested is warranted. I decline the amendment sought accordingly.

Verdict

[48] Accordingly, and for the reasons I have given, I am satisfied beyond reasonable doubt that both accused Pongi and Tupa did on or about 29 November 2020 at Kolomotu’a advertise a scheme where profits to be earned by the participants in the scheme largely depended on the increase in the number of participants in the scheme, and I find each of them guilty as charged and I convict them accordingly.

Nuku’alofa: 4 March, 2022

Niu J

J U D G E