R v Tu'akoi [2025] TOSC 16; CR 74 of 2019 (13 March 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 74 of 2019

REX
-V-
‘ISAPELA SAIATUA TU’AKOI

RULING
Indictment & charges under the Passport (Amendment) Act 2003

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mrs T Vainikolo for the Crown Prosecution
Mr W Edwards the Defendant
Date: 13 March 2025

1. THE CHARGES

1. The defendant in this indictment faces 4 counts of making a false declaration for the purpose of obtaining a passport contrary to section 21 (1)(a) of the Passport Act and 4 counts of forgery contrary to section 170 of the Criminal Offences Act.
2. It is submitted that they should be struck out because the regulations under which counts 1 to 4 are made, were not in force at the time and the forgery counts should be struck out on the basis that they are founded on an Act which was not in force and so invalid.
3. The defendant’s written submissions are helpful, but it seems to me with respect somewhat over complicated. I will resist the temptation to burrow down the rabbit hole which has been identified and confine myself to the determinative issues which arise.

2. DISCUSSION

4. The defendant’s case on count one to four is succinctly put at paragraph 6.8 of their submission. “the Crown has sought to charge the defendant with the offences under the Passport Act which did not exist prior to the commencement date of the Act. For these reasons we submit that the charges – count 1 to 4 of the indictment are defective charges and should be dismissed.”
5. It Is therefore necessary for the court to thread its way through the statutes, regulations and the forms involved in light of its legislative history.

Counts 1 - 4

6. On the 3 November 1964 the original Passport Act was brought into force, on 21 November 2003 the Passport (Amendment) Act 2003 received royal ascent. On 16 January 2004, the passport regulations were brought into force following the consent of the Minister and the Privy Council.
7. On the 10 October 2012, an application form for a passport for Shiwei Hu was signed. This is Count 1 of the indictment, Counts 2 to 4 allege similar declarations in identical forms for other applicants.
8. The Passport Amendment Act 2003 which brought into force the regulations came into force on 1 July 2014. The determinative question therefore is, can a defendant be convicted of an offence contrary to the regulations which have not been brought into force?
9. It is well settled law that a statute will not be given retrospective effect where to do so would affect an existing right, obligation, imposes a new duty, or attache a new disability in respect to transactions or considerations already passed in the absence of clear language to the country; Rodway v The Queen [1990] HCA 19; 1990) 169 CLR 515 cf Victorian Railways Commns [1960] VR 8f
10. It is equally well settled that changes of a procedural nature can be given retrospective effect. It has been held that the distinction between substantive and procedural matters may be difficult to draw. For example, the abolition of the defence of consent in allegations of marital rape plainly engage a substantive right whereas the right to be tried in the Magistrate Court rather than the Supreme Court as a matter of procedural only.
11. Here the offence in question is created by the Passport Amendment Act 2003. There was no such offence before its commencement date, thus before the coming into force of the regulations only the applicant could make an application for a passport and he or she had to swear a declaration before a police officer or a minister.
12. Under the new regulations however, a third-party could now sign a confirmation of identity form. In my view this does constitute the granting of a substantive right which did not exist previously. It may be said of course that this simply enhances the position of the intended passport holder because now an application could be made on his or her behalf whereas before he or she had to make the application themselves. That does not in my view make the change a procedural one since it fundamentally changes the position of the person applying for the passport in that he or she is now subject to the provisions the regulations.
13. To put the matter beyond the doubt, clause 20 of the Constitution of the Kingdom of Tonga prohibits retrospectivity, “it shall not be lawful to enact any retrospective laws in so far as they may entail or take away or affect the rights of privileges existing at the time of the passing of such laws.”
14. I hold that the right to submit an application by a third-party does affect the rights or privileges which existed at the time of the passing of the act namely that of the third party, whether or not the effect of the regulations enhanced the right of the applicant seems to me to be nihil ad rem.
15. I have also been helpfully referred to the Interpretation Act which provides by section 3(1), “An act to which his majesty ascent has been given shall come into operation on the day of publication in the Gazette, unless the country intention appears.”
16. I have not been told the date on which the matter was gazetted but it take it to be no earlier than the date on which the minister made the regulations in other words not before the 16 January 2004, which in my view means that the form did not in law exist until the Passport(Amendment) Act 2003 came into force and accordingly the defendant cannot be convicted of charges contrary to its provisions. The prosecution now concede that Counts 1-4 cannot stand. They are accordingly struck out.

Count 5 - 8

17. Count 5 to 8 allege forgery contrary to section 170 of the Criminal Offences Act. The particulars being that the defendant on or about the 10^th of October 2012 the Defendant made a false statement “with the intention to deceive the immigration division of the Ministry of Foreign Affairs when you signed a Tongan passport application form, in the name of several applicants and you made this document with the intention that it be acted upon by the Immigration Division of the Ministry of Foreign Affairs as genuine.”
18. In other words, the defendant created a document which told ‘a lie about itself.’ Whether the evidence proves this to the criminal standard is not for decision now but must abide by the outcome of that investigation.
19. The challenge to the indictment is a challenge to its form only at this stage. If the particulars allege an offence unknown to the law or are devoid of any necessary ingredient, then plainly the indictment is bad and must be struck out.
20. But where on its face the allegation cites a relevant statute, as it does here, and whether, again as it does here, the ingredients constitute an offence then the clause is good in law and the fact that the document itself was made under regulations which did not exist does not in my view affect the central nature of the allegation, namely a dishonest intention to deceive the requisite ministry by telling lies which were material to the matter the under consideration.

100. FINAL RESULT

21. It therefore follows that in this indictment, the passport offences in counts 1 to 4 is struck out and the forgery offences in counts 5 – 8 remain.
    

HON. MALCOLM BISHOP KC

LORD CHIEF JUSTICE

NUKU’ALOFA

13 March 2025