Rex v Fukofuka - Judgment [2025] TOSC 39; CR 215 of 2024 (2 May 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

CR 215 of 2024

BETWEEN:
REX
-Prosecution

AND:
IRVIN FUKOFUKA
-Accused

JUDGEMENT

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr J Fifita for the Crown Prosecution
Mr A Fusimalohi for the Defendant
Trial: 1 – 2 May 2025

Judgement: 2 May 2025

1. BACKGROUND

1. The Defendant is charged in the indictment together with 2 other co-accused persons on the following charges;
   1. Count 3: Possession of Illicit Drugs (13.52g of methamphetamine), contrary to section 4(2)(a)(iv) of the Illicit Drugs Control Act.
   2. Count 4: Possession of Utensils (1 weighing scale, 1 empty pack, 1 straw & 1 smoking pipe), contrary to section 5A of the Illicit Drugs Control Act.
2. On 17 January 2025, the Defendant pleaded not guilty to the charges together with Mr Neiufi to his respective charges and trial was set to commence on 30 April 2025.
3. On 30 April 2025, Mr Neiufi change his plea to guilty, and the Defendant maintained the same plea.
4. Trial for this matter commenced yesterday and I heard closing submissions from Counsels today.
   2. DISCUSSION
5. The facts are very simple. There was a raid outside a restaurant in Houma, acting on information received, the police suspected that a drugs deal was taking place.
6. They arrived and found two cars parked next to each other, in one car was the Defendant in the original indictment Mr Neiufi, in the other was this Defendant, and his partner, Mavis, was in the passenger seat.
7. The Defendant was outside the car at the time, saw the police and began to run away. I have already indicated to counsels for both parties that the fact of leaving a scene in a hurry has been held not to entitle an inference of guilt to be made because that could be for all sorts of reasons, and I put that out of mind entirely.
8. I concentrate on what the Defendant himself did personally and what he said. The vehicle in question was searched. The driver’s seat was empty, I am entitled, and I do, infer so that I am sure, that the reason the driver's seat was empty was because the Defendant was the driver, and he was at the time outside the vehicle.
9. A large amount of money was placed on the driver’s seat to the total of over $3,000. The Defendant, frankly, admits that they were his.
10. Sadly, he was not questioned as to how he came by that money. But the fact that a large amount of cash, and I emphasis cash in these days of banking and credit cards, suggests strongly that there was some nefarious purpose in being in possession of such a large amount.
11. However, that of itself cannot prove the offence, I do consider it as part of the surrounding circumstances. Also in the car was a red leather bag, and inside the bag was a wallet and an identity card of Mavis, also in the bag were the drugs in question.
12. The Defendant was asked about that, and I quote from the English translation of the diary entry. It reads as follows, “D ‘Otuhouma informed Irvin to look at the contents of the bag and whether he knew about it. Irvin said, it was given to him by Mateni, and it is ice then he signed”
13. I repeat, “and it is ice”, ice is a colloquialism for methamphetamine.
14. He was then asked about the cash, and he accepted that it was his money. Unfortunately, nobody asked him why he had it, as I have already explained, but he was just told that it would be seized.
15. Later, Entry 37 states that; “D/‘Otuhouma asked Irvin about the weighing scale that D/Fifita found in between the front passenger seat and the driver’s seat. Irvin said it’s his.”
16. Well, that seems to me, first of all, I am satisfied that those replies were accurate. I am satisfied that the evidence of the officer, I just heard from was a reliable creditable and honest witness.
17. And so it follows that the Defendant made two admissions. First that the package, which contained ice had been given to him by his codefendant Neiufi, and secondly, that the weighing scales, which was found next to the bag, in the space between both seats, was also his.
18. I accept that although the indication was that the ultimate owner of the drugs in question was the co-defendant Neiufi and that this defendant had received it. That, in my view, amounts to sufficient nexus of custody and control of the drugs in question to amount to being in possession of it.
    100. FINAL RESULT
19. I make these findings to the criminal standard, because I am sure that the admissions I have referred to are both accurate and honestly recorded.
20. For those reasons, I find that the Defendant guilty of Count 3 for Possession of Illicit Drugs and Count 4 of Possession of Utensils.
    

HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
2 May 2025