Police v Chong Nee [2014] WSSC 163 (8 August 2014)

IN THE SUPREME COURT OF SAMOA
Police v Chong Nee [2014] WSSC 163

Case name:	Police v Chong Nee
Citation:	[2014] WSSC 163
Decision date:	08 August 2014
Parties:	POLICE (Prosecution) PATI CHONG NEE, male of Vaitele-fou and Aleisa (First Defendant) AND HENRY TOVALE, male of Vaitele-tai and Talimatau (Second Defendant) AND FILIPO PESAMINO, male of Toamua-uta (Third Defendant) AND ATONIO LAVATAI, male of Vaigata and Vaitele-fou
Hearing date(s):	01, 07 & 08 August 2014
File number(s):	S1560/14, S1794/14, S1795/14, S2311/14, S2312/14, S2313/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	I am satisfied that Pati and Filipo are responsible for the break-in and are guilty as charged. The fact that one of the three Filipo is his relative adds to Ieremias credibility. I have little difficulty in accepting Ieremias evidence and I find the defendants guilty of these charges as well. I am not satisfied the defendants purpose was at all innocent. On this charge as well the defendant is found guilty. The evidence does not prove beyond reasonable doubt your guilt. The charge against you Atonio is dismissed.
Representation:	F Lagaaia for prosecution Defendants unrepresented
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

PATI CHONG NEE, male of Vaitele-fou and Aleisa.
First Defendant

AND:

HENRY TOVALE, male of Vaitele-tai and Talimatau.
Second Defendant

AND:

FILIPO PESAMINO, male of Toamua-uta.
Third Defendant

AND:

ATONIO LAVATAI, male of Vaigaga and Vaitele-fou.
Fourth Defendant

Counsel: F Lagaaia for prosecution
Defendants unrepresented

Hearing: 01, 07 & 08 August 2014

Ruling: 08 August 2014

ORAL RULING OF NELSON J

1. There are differing charges against various defendants so I will deal with the joint charges first. Firstly in relation to the break in to the Nauer Engineering Shop at Vaitele between the 3^rd and 4^th of April this year. This is the subject of information S2312/14 and S2313/14. The defendants in those charges are Pati Chong Nee and Filipo Pesamino.
2. The evidence of Malcom Nauer was that their engineering shop at Vaitele-uta is on a property surrounded by a wire fence with an entrance gate that is normally kept locked. The shop itself is in an L-shape building with residence upstairs and store room and workshop downstairs. When he came to work at about 7.30am on the 4^th of April he found a number of items missing from around the workshop. These included a pair of gumboots, a car battery from one of the cars under repair, an amplifier from his work car which he had parked there overnight, money which was in the ashtray of his work car, a stereo from one of the vehicles, two large weed eaters of the two-handle kind which were missing from the store room on the ground floor of the building. He also said that he discovered there was a hole cut in the wire fence not far from the entry gate. Subsequently he discovered a similar hole at the back part of the fence. He guessed what had happened and reported the break in to the police that day. The amplifier, the car stereo and the two weed eaters are the subject of the theft charge and he said that these were recovered by the police and returned to them.
3. The witness Valenitino Iupeli who is a resident of Vaitele gave evidence of seeing the two defendants in the company of the third defendant Atonio in the early morning hours of Friday the 4^th of April. He said Atonio picked the boys up from his place in his white Suzuki jeep. The vehicle went and parked down the road by the three corners near Johnnys Bar. He did not see what they were doing and did not see whether the boys stayed in Atonios car or subsequently got out. He did not stay to watch the car, he went around the back of his house. He also said he did not see anything inside the car. He is aware however Pati works for Atonio who also runs an engineering shop at Vaitele.
4. The other police witness Feloki Soia is a first cousin of the defendant Pati. He gave evidence of recovering an amplifier from Patis bag on a date he could not recall this year. He handed the amplifier over to the police because he heard they were looking for a stolen amplifier. This appears to be the same amplifier that was later returned by the police to Malcom.
5. Constable Tavita Moeono was the investigating police officer of all charges against the defendant. He testified about recovering the two weed-eaters from a vacant block next to the Vaitele-uta Primary School. He said the police were led there by the defendant Pati who admitted he had hid the weed-eaters there. This appeared to be the two large weed-eaters that were again returned by the police to Malcom Nauer.
6. The defendants’ options were explained to them by me at the close of the prosecution case. In particular the defendants rights to give or not to give evidence unless they wished to do so. Pati elected to testify. He said that on the day in question his co-defendant Filipo gave him the weed-eaters and the amplifier and he told him that these properties belonged to one of his friends and that they were to sell them. It is not clear whether they discussed what to do with money from the sale. He agreed that he told the police officers where the weed-eaters were stored and that he led the police officers there.
7. Filipo elected to testify in reply. He said that he found the weed-eaters and the amplifier opposite the Nauers property at Vaitele. He said they were lying on the roadside so he thought it was his lucky day finding things lying by the road. He denied seeing any holes in the Nauers fence. But it is clear that he did not make any effort to find out who owned the properties. Neither did he report them to the police. He also said in his evidence that the stereo he gave to his brother-in-law. And that when he was questioned by the police he lied to them and told them he knew nothing. Significantly he did not tell the police that he found these things lying by the road.
8. I have no difficulty in not accepting the defendant’s evidence. People do not leave weed-eaters and amplifiers lying on the side of the road. For anyone coming along to pick up. Filipos attempt to cover up is consistent with guilt, not innocence in the matter. It is clear from the evidence of both defendants they admit to knowledge and physical possession of the stolen properties. They were seen together on the morning the properties were discovered missing. The irresistible inference is that they were the ones who cut the fence and broke into the Nauer property and stole the items in question.
9. I am satisfied that Pati and Filipo are responsible for the break-in and are guilty as charged.
10. The second incident involves a break-in of the Bargain Wholesale warehouse property at Vaitele. The defendants for those charges are Pati, Filipo and Henry Tovale. These are charges S1794/14 and S1795/14. The police evidence shows that a hole was cut in the wire fence at the rear of the complainants wholesale shop. Someone entered there and broke into the delivery truck parked in front of the premises. Opened the truck and removed some of its contents. Contents consisting mainly of groceries.
11. The police evidence also showed that someone broke into the container room beside the truck and removed various groceries and other items from the room. The list of missing items was submitted by a witness for the complainant Mr Lee. This list shows the value of these items total $1,193.80. The details of the items are listed in the theft charge against the defendants. Mr Lees evidence is that most of the items were not recovered.
12. The key witness in respect of these charges is Ieremia Vito who appears to be an accomplice of these defendants. His sworn evidence was that the three defendants did the burglary and he tagged along. And that Pati played the leading role in planning and executing the job. In cross examination the defendants tried to argue that Ieremias evidence should not be accepted.
13. Convicting on the basis of the uncorroborated evidence of an accomplice is always a tricky issue. Especially in cases where the accomplice is offered a deal by the police to testify in return for not being prosecuted. But I have seen and heard this 18 year old give evidence and seen and heard him in cross examination. He was questioned by the defendants themselves but he refused to change his story. He insisted that it was these three boys who did the job. The fact that one of the three Filipo is his relative adds to Ieremias credibility. I have little difficulty in accepting Ieremias evidence and I find the defendants guilty of these charges as well.
14. I come now to the final charges the single charges. Firstly S1560/14 a charge against Pati only. That at Vaitele-uta on 26 April he was found armed with two screw drivers and a can opener with intent to commit burglary. There is no issue that he was found with the two screw drivers and the can opener. The question is for what purpose were they being carried.
15. The police evidence was they found the defendant walking on the road at Vaitele-uta about after 11:00pm at night. And also that this is not the defendants usual area of residence. When they stopped and questioned the defendant he told them he was on an errand to look for Tielu, who is a taxi driver stationed at Kol-a-Cab Taxi Stand at Vaitele-uta. Tielu appears to be his sisters husband. Police went to Kol-a-Cab and checked out the defendants story. No one there had seen Tielu that night. And no one had seen the defendant either. The police were therefore not satisfied with the defendants response. When they asked him earlier whether he was carrying anything the defendant handed over to them a “pelē” (playing cards) and a fa’ata (mirror). Only when he was further questioned by police officers did he then hand over a red multi-head screw driver.
16. Because the police suspected the defendant had an outstanding warrant of arrest against him they brought him to Apia Police Station. A search at the station revealed further items from the rear pockets of the defendants pants namely a small single point screw driver and a can opener. All these items of course are capable of being used to break into peoples houses. The police therefore argue that the defendant had only one intent for carrying these things at this place and at this time.
17. The options again were explained to the defendant and that he was not compelled to give testimony. Pati elected to testify. In his evidence he agreed that at Vaitele he only handed over one screw driver when questioned by the police. And that the other implements were only found by a police search of him at the Apia Station. That means the defendant tried to conceal these other two times form the police. If his purpose in carrying those two items was indeed innocent why then did he not hand them over when first questioned by the police at Vaitele?
18. In his evidence Pati said that these things he uses for his work. Again the question must be asked why would he be walking around late at night on a family errand carrying instruments that he uses at work during the day. I am not satisfied the defendants purpose was at all innocent. On this charge as well the defendant is found guilty.
19. The last remaining charge S2311/14 is against the defendant Atonio. That is a charge that at Vaigaga on the 3^rd and 4^th of April this year he did receive the amplifier and weed-eaters stolen by Pati and Filipo. And that he knew full well these items were stolen.
20. The evidence in relation to this charge which is the only charge against you Atonio is very thin. There is no evidence you were found in actual possession of these goods by the police or anyone else. There is no evidence you had possession of any of these goods at any particular point in time. Or that they were in your vehicle at any particular point in time. The police is asking that the court infer from the fact that the defendant picked up Pati and Filipo on the morning in question that he is therefore guilty of receiving the goods they stole. But there is nothing to show that at that time they had already stolen these goods. Or that they were in possession thereof.
21. The conclusions the police are asking the court to draw are too remote considering the evidence that has been adduced. Which is why I indicated to the prosecution that I did not think they had a prima facie case against you. The evidence falls short of the required standard. There may be suspicions about your conduct Atonio but convictions cannot be based on suspicion. It must be based on proof beyond reasonable doubt. The evidence does not prove beyond reasonable doubt your guilt. The charge against you Atonio is dismissed.
    

JUSTICE NELSON