R v Vea [2024] TOSC 77; CR 79 of 2023 (20 September 2024)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 79 of 2023

BETWEEN:
R E X
-Prosecution

AND:
SIOSIO MALOHI VEA
-Accused

JUDGEMENT

BEFORE: LORD CHIEF JUSTICE MALCOLM BISHOP KC

Appearances: Mrs T. Vainikolo for the Crown Prosecution
The Defendant in Person
Date: 20 September 2024

1. THE CHARGES

1. On 23 August 2023, the Defendant was arraigned where he pleaded not guilty to the following:
   1. Count 1: Money Laundering, contrary to section 17(1)(a) & (b)(ii) of the Money Laundering and Proceeds of Crime Act.
   2. Count 2: Receiving Stolen Property, contrary to section 148(4) & (5) of the Criminal Offences Act.
2. On 18 September 2024, trial for this proceeding commenced. I heard closing submissions from the prosecution and the Defendant at the conclusion of the trial today, 20 September 2024.
   

2. THE ELEMENTS OF THE OFFENCE

3. Before I can convict the Defendant on the offences charged, I must be satisfied beyond a reasonable doubt that:
   1. For Count 1 – The Accused, Acquired property (vehicle with VIN LSJW74U91MZ059998), Having reasonable grounds to suspect it was derived directly from the commission of a serious offence – theft, By concealing the true ownership of the property, That the property was directly from the commission of a serious offence – theft.
   2. For Count 2 – The Accused, Without Lawful Excuse, Believing it to have been stolen or obtained in any way whatsoever under such circumstances that if the act had been committed in the Kingdom the person committing it (Kasanita Vea) would have been guilty of an offence, Did resolve stolen property by dishonestly assisting in the retention of the vehicle (VIN LSJW74U91MZ059998), The property was the vehicle (VIN LSJW74U91MZ059998) was stolen property.
      

100. THE EXHIBITS

4. The following was submitted by the Crown as exhibits in this proceeding:
5. Exhibit 1: Certificate of Registration New South Wales
6. Exhibit 2: Final Invoice to Ride Solution Ply Ltd
7. Exhibit 3: Deed of Agreement
8. Exhibit 4: Communications with Kasanita (first number)
9. Exhibit 5: Communications with Kasanita (second number)
10. Exhibit 6: Gmail Communications between Ride Solutions & Kasanita
11. Exhibit 7: Bill of Lading
12. Exhibit 8: Master Manifest of Vessel Capitaine Tupaia
13. Exhibit 9: Form C13 – Customs Import Entry
14. Exhibit 10: Ministry of Infrastructure Receipt
15. Exhibit 11: Certificate of Registration of a Motor Vehicle
16. Exhibit 12: Form C13 – Customs Import Entry
17. Exhibit 13: Search Warrant
18. Exhibit 14: Photos of the motor vehicle found with Search Warrant
    

4. THE LAW

19. Count 1 – The Money Laundering and Proceeds of Crime Act under section 17(b) states that a person, upon conviction of Money Laundering shall be liable to imprisonment for a period not exceeding 10 years or to a fine not exceeding $500,000 or both.
20. Count 2 –The Criminal Offences Act under section 145(a) states that a person who commits theft is liable if the value of the thing stolen exceeds $10,000, to imprisonment for any period not exceeding 7 years.
    

5. DISCUSSION

21. The prosecution put forward evidence and produced 5 witnesses in total for their case. These witnesses were namely, Asraful Hassan, Uinise Tu’inukuafe, ‘Ana Faumotu, and Sargent ‘Alekisio Tonga.
22. The Defendant called no additional witnesses but gave evidence himself.
23. In this indictment the defendant faces two counts money laundering and receiving stolen property.
24. It arises out of the importation of an MG motor car into Tonga from Australia. It is alleged that the defendant knew that he had no colour of right to deal with the motor car in the way he did and as a result is guilty of two offences.
25. First, he in the knowledge or suspicion that the car in question was criminal property that is to say it was derived directly or indirectly from the commission of a serious offence, he converted the car to his own use concealing its true origin. This is said, constitutes a money laundering offence pursuant to section 17 of the Money Laundering and Proceeds of Crime Act.
26. It is also alleged that because he received into his possession the motor car in question with the knowledge or belief that it had been stolen or otherwise obtained by criminal conduct, he commits the offence of receiving stolen property.
27. These are criminal allegations and so I must be satisfied so that I am sure that the prosecution has made out its case. I must consider each of the offences separately and the facts of this case are very largely not in dispute.
28. I have heard from a number of prosecution witnesses all who strike me as credible and truthful. I heard first from Mr. Asraful Hassan who had an in managerial role in a rental car firm in New South Wales, Australia known as Ride Solutions Ply Ltd.
29. He produced a number of documents which show that the MG in question having the registration plate ending 33J was hired by the defendant’s wife under a rental agreement which has not only the usual stipulations as to the rental payments but also imposes a condition against “unauthorized and prohibited use.”
30. This so far as this case is concerned at paragraph 3 (1)(a) of the rental agreement prohibits the car being driven outside the state in which the vehicle was rented, unless interstate use has been agreed to prior to the commencement of the rental in which case additional charges may apply.”
31. The vehicle was rented in the state of New South Wales Australia, its removal from that state is prohibited unless prior authorization had been obtained as shown in Exhibit 3. No such written authorization was made.
32. The rental payments fell into arrears and there was at times friendly but then hostile communication between Mr. Hassan and the defendant’s wife.
33. The lady in question whom I shall call Kasanita agreed that she was out of time with payments but asked for some forbearance which was granted.
34. It is noteworthy in my view that the vehicle was subject to a number of inspections and that at least one of those inspections, according to Mr Hassan whose evidence I accept, the defendant himself was present.
35. The renter continued to make prompt payments of the rental and eventually the renter ceased to get in touch with the renting company.
36. This resulted in a number of increasingly anxious communications taking place, eventually including a publication on social media of the loss of the vehicle. This resulted in information being communicated to Ride Solutions that the vehicle was in Tonga.
37. The defendant told me the reason for that communication to the rental company was a result of an unrelated family dispute about a package in the container in which the vehicle was bought in to Tonga. Why the rental company was contacted and how the report got to the rental company, I find is irrelevant.
38. Tonga Police executed a lawful search warrant as I find it, and as a result the vehicle was located at the defendant’s premises and confiscated pending the outcome of these proceedings.
39. The police also searched the defendant’s house, but found nothing of note, there was a conversation between an officer and a lady at the house, but in response to the officers question as to her name, she remained silent, so I am not able to find that the lady in question was the defendant’s wife although it is probable but this is a criminal case and I must be sure.
40. I have before me a large number of documents which show the way in which the vehicle made its way from Australia to the Kingdom. It is not necessary for me to recite all of those in any detail suffice to say that the Bill of Lading (Exhibit 7) describes the consignee as Siosio Vea i.e. The Defendant.
41. The vehicle was registered at the Tonga Ministry of Infrastructure (Exhibit 10), where the owner is asserted to be Siosio Vea, the Defendant.
42. I also draw attention to Form C13, the customs import entry form (Exhibit 12) which also discloses that the Defendant was the importer of a container containing a number of household goods including the MG motor car in question.
43. None of these stages on the journey from Australia to the defendant’s premises have been challenged.
44. The issue before me is whether the defendant either knew or reasonably believed that the vehicle was in his possession as a result of a criminal offence.
45. In this case the alleged criminal offence is theft, that is to say that the vehicle was not in the Defendant’s lawful possession and was appropriated by someone without lawful authority to do so with the intention of permanently depriving the owner of that property.
46. In this case the thief is alleged to be the Defendant’s former wife, Kasanita. I am satisfied that the correspondence discloses not only that the vehicle was originally rented by Kasanita on the terms set out in exhibit 3 but that as the result of further correspondence she had no intention of complying with the agreement or restoring the vehicle to its lawful owner, Ride Solutions.
47. Putting it shortly I am satisfied on the evidence that Kasanita appropriated the car, and this was to the defendant’s knowledge. This was the case when he arranged for its export to Tonga where he took steps to register the car in his own name and it was found at his premises.
48. That seems to me to be the clearest evidence of his belief that the vehicle had been acquired by criminal means.
49. At all relevant times, he was cohabitating with his wife. I find that he must have known that the payments were late, he must have known that the hiring company were seeking payment of the arrears and was becoming more and more agitated at the failure to do so.
50. I have listened carefully to the defendant’s evidence and the questions he put to prosecution witnesses, he accepted he had the car in his possession. He says he had nothing to do with its original rental and that there is nothing to connect him with any knowledge of its unlawful acquisition. I reject that evidence.
51. He was in a close relationship with his wife as I have already indicated, and he was party to some of the discussions which followed as a result of a failure to pay. He was present on at least one occasion when the vehicle was inspected. He was physically present and so he must have known that the vehicle did not belong to his partner but that she was renting it under an agreement which fell into arrears. If it belonged to his wife, I see no reason why it was regularly inspected like it was done here.
52. In my view there is plain evidence here of the commission of count 1. In respect to the money laundering count, it must be established that the defendant acquired the vehicle in question. There is no doubt about that, his name is on the bill of lading and the vehicle was found outside his house.
53. Next it must be established either that he knew or had reasonable grounds to believe or to suspect that the property i.e. the car in question was the direct or indirect consequence of the Commission of a serious offence.
54. Again for the reasons I have already indicated I am quite satisfied that he did believe or suspect, in fact on my view he had full knowledge that the vehicle was not his partner’s to dispose of but that it had been appropriated by her with the intention of depriving its lawful owners of it and with that knowledge by arranging for the import of the vehicle to Tonga in my view he converted the property and in this sense he is guilty of the section 17 (1) (b) of the act
55. I also find with knowledge, the Defendant knew his wife appropriated the vehicle in the way I have already describes and that he took it into his own possession, in other words, he received it.
56. In other words I find on clear evidence:
    1. the car was not the Defendnat’s;
    2. the car was not Kasanita’s;
    100. the Defendant knew that Kasanita had no right to appropriate it or treat it as her own;
    4. she did so;
    5. the Defendant acquired the vehicle knowing these facts;
    6. with that knowledge he arranged or was part of its arrangement for its removal from Australia to Tonga;
    7. the Defendant continued to be in possession of it and would have continued to do so had the vehicle not be apprehended by the police.
       

6. RESULT

57. It seems to me that this is a clear case made out on the indictment and I so find. I conclude that the indictment has been proved to the criminal standard and that the Defendant is guilty of both counts 1 and 2.
    

NUKU’ALOFA HON. MALCOLM BISHOP KC
20 September 2024 LORD CHIEF JUSTICE