R v Fa'uhiva [2025] TOSC 32; CR 209 of 2024 (31 March 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 209 of 2024

BETWEEN:
REX
-Prosecution

AND:
TEVITA FA’UHIVA
-Accused

JUDGEMENT

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mrs S ‘Eliesa for the Crown Prosecution
The Defendant in Person
Trial: 31 March 2025
Judgement: 31 March 2025

1. BACKGROUND

1. The Defendant is charged in the indictment as follows:
   1. Count 1: Theft contrary to section 143(a) and 145(b) of the Criminal Offences Act.
2. On 16 January 2025, the Defendant pleaded not guilty to the indictment and the matter proceeded to trial today.
   
   2. DISCUSSION
3. Unusually in this court, I have heard two witnesses who strike me as very pleasant people. The Complainant gave her evidence, I thought with commendable sincerity, she was prepared to make concessions when concessions were necessary.
4. She said that it may well be the case that the Defendant believed that he had a right to do what he did, but she did not think that that was a reasonable right or that he was behaving reasonably.
5. But as learned counsel for the prosecution have just indicated, the issue in this case is one of honesty or not.
6. The Defendant is charged with theft. It is necessary to remind myself of the definition of theft under section 143 of the Criminal Offenses Act;

“Theft is the dishonest taking without any colour of right of anything (which by

section 144 is declared capable of being stolen) with intent either —

(a) to deprive the owner permanently of such thing; or

(b) to deprive any other person permanently of any lawful interest possessed by him in such thing,

and with the intention of converting such thing to the use of any other person without the consent of the owner or person possessing such interest therein as aforesaid; “theft” and “steal” shall be construed accordingly”

7. On the facts of this case, it is not necessary to consider the aspect of converting the goods in question.
8. The simple question is this, was this a dishonest taking to deprive the owner permanently of such thing?
9. I have also, by way of comparison, considered the UK Theft Act 1968, which states

“A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.”

10. The Act continues the following the 5 following sections of this act shall have effect as regards the interpretation and operation of this section except as otherwise provided by the act.
11. Now, by section 2(1)(a) of the same UK Theft Act, a person's appropriation of property belonging to another is not to be regarded as dishonest, if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or a third person.
12. It was held in previous authorities in particular, R v Bernhard [1938] 26 Cr App R 137 that it is immaterial whether there exists no basis in law for such a belief.
13. And the great victorian jurist Stephen in “A History of the Criminal Law of England” [volume III, page 124] says;

“Fraud is inconsistent with a claim of right made in good faith to do the act complained of. A man who takes possession of property, which he really believes to be his own, does not take it fraudulently, however unfounded his claim may be. This, if not the only, is nearly the only case in which ignorance of the law affects the legal character of the act done under its influence.”

14. Now, what are the facts here? Two friends from university shared a house from time to time. Inevitably, there was a mix of possessions and of appropriations. The coffee jar seemed shared between them. The dishwashing liquid, no doubt was used by each of them without having to ask permission every time that utensil was used, although the evidence suggests that most if not all of the belongings in the house were the result of overseas remittances paid by the Complainant’s mother.
15. Although it is accepted that to a small extent, the Defendant made a contribution to the running costs of the house.
16. With that background, the Defendant's case as was put to the witnesses in which they largely accepted, was that he had an honest belief that he could use the property in exhibit 1 as security for a loan which he was in dire need of because of his financial constraints.
17. I say at once that some of the items in exhibit 1 seem to me to be rather trivial and would not have in any event attracted the attention of the criminal court, for example, an alcohol bottle or a dishwashing liquid, or a coffee bottle, on the other hand, there are some items there, which are of substantial value, including the Tongan mats, as well, as the mother's clothing, which is valued rather highly.
18. So, what the Defendant did, it seems, was to take certainly the tongan mats and used them as security for his loan. He did so in his own name. He did not disguise his identity.
19. At the time he took out the loan, I accept that he intended to repay it, and when that happened, and in the event of that happening, the goods would in accordance with the practice of the money lenders, which is what they are, would have been returned to their rightful owner, the complainant.
20. Unfortunately, the defendant did not repay the loan. In fact, the suggestion is and has not been contradicted that he paid nothing towards the loans. However, he maintained, and I have to consider this matter with some care, that he believed that he had rights in the property because of the background I had just outlined, and that he honestly believed that he could do what he did with the with the property.
21. At the time of the appropriation, that is to say, at the time that the loan was made, he genuinely and honestly believed that he would be able to redeem the property and pay off the loan.
22. It does not matter whether that was realistic or not. The important point is whether what he did was honest or dishonest.
23. I remind myself that this is a criminal trial and I must be satisfied so that I am sure or putting it another way beyond reasonable doubt, that the facts as laid by the prosecution have been proved to the criminal standard.
24. I have placed myself as a jury would in this situation, and I asked myself, is there a possibility that what has been suggested by the Defendant could possibly be correct?
25. He has not helped himself by not giving evidence, but, of course, he is not represented and although I gave him time to consider his position, I do not think that it would be fair for me to hold that against him and to deal with it in the rather strict way one would, if a Defendant was legally represented.
26. So, what I have to do is to step back and ask myself, am I satisfied so that I am sure that there is no possibility that the defendant did not believe that what he was doing was unjustified in his eyes and honest according to his lights?
27. I accept that this defendant of good character and as I observed him in the conduct of the case, of gentle disposition, I asked myself, can I exclude the possibility that he honestly believed that what he was doing was not stealing and that he intended to restore the mats and the other property in due course, and that he had the right to behave in this way because of the background with the Complaint.
28. I make the observation that my task has not been assisted by the unfathomable delay by the police, in pursuing this matter, the complaint was made on 15 August 2023.
29. Nothing seems to have happened before June 2024 when the officer who gave evidence was brought into the case. I cannot help feeling that this was a case of that the police were not very happy about pursuing and put it to one side.
30. Be that as it may, I am firmly of the view, that the Crown have not discharged the onus which by law, they have to before it conviction is possible, and therefore the defendant is to be found not guilty.
    
    100. FINAL RESULT
31. For Count 1 of Theft contrary section 143(a) and 145(b) of the Criminal Offences Act I find you not guilty and acquit you of this charge.
32. Administratively, as a result I further order the Defendants passport be released to him forthwith and his name to be removed from the No-Fly List.

NUKU’ALOFA		HON. MALCOLM BISHOP KC
31 March 2025		LORD CHIEF JUSTICE