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

AC 1 & 2 of 2014
[CR 158 & 160 of 2014]

BETWEEN:

1. VALELIANO MANU
2. XIU MING LIN
Appellants

AND:

REX
Respondent

Coram : Salmon J
Handley J 
Hansen J
Tupou J

Counsel : Mr O. Pouono for the Appellants
Mr S. Sisifa for the Respondent

Date of Hearing : 22 October, 2014
Date of Judgment : 31 October, 2014

JUDGMENT OF THE COURT

Introduction

[1] 	The appellants (Mr Manu and Mr Lin) and three others were tried by Cato J on charges arising from an alleged scheme to import pseudoephedrine into Tonga. Pseudoephedrine is a controlled chemical under the Illicit Drugs Control Act 2003 (the Act). It is the principal ingredient used in the manufacture of methamphetamine, one of the illicit drugs listed in Schedule 1 of the Act. All accused were acquitted on a charge of attempting to import pseudoephedrine on 23rd June 2011. Mr Manu (and his co-accused other than Mr Lin) were however convicted of importing pseudoephedrine on a later occasion and Mr Lin was convicted of possession of pseudoephedrine.

[2]	Mr Manu and Mr Lin were sentenced to imprisonment for 5 years 4 months and 10 months respectively. Both appeal against conviction and sentence.

Background

[3]	The charges arise out of a joint operation of Tongan and New Zealand Customs and Police. In June 2011 New Zealand Customsintercepted a consignment from China addressed to Mr Manu in Tonga. On inspection the package was found to contain a water boiler in which there was 4.2 kilograms of Contac NT, a cold remedy, in tablet form. Contac NT contains pseudoephedrine. The Contac NT was removed and replaced by a placebo. The water boiler was released and transported to Tonga where it was uplifted by Mr Manu. It was delivered to Mr Lin. When police later searched his house, the placebo material was found in two milk cans in his bedroom.

[5]	One week later, on 30 June 2011, another package sent from China and addressed to Mr Manu arrived in Tonga. It contained a quantity of small kitchen bowls. Pseudoephedrine amounting in total to 2014.3 grams was concealed in the bottom of the bowls. Again Mr Manu took delivery of the consignment which was delivered to the premises of another accused.

[6]	When the police operation was terminated and the premises occupied by the accused searched, a bag containing Contac NT in powder form was found in a refrigerator in the house whereMr Lin lived. This led to the charge of possession of pseudoephedrine.

[7]	The appellants and their co-accused were acquitted of attempting to import pseudoephedrine on 23 June 2011.	Cato J was satisfied that the appellants and two of the co-accused acted in concert to import the water boiler and its contents into Tonga but, by failing to call the customs officer who intercepted and inspected the consignment in New Zealand, he found the Crown had not proved the presence of pseudoephedrine. However Cato J found thatall accused other than Mr Lin had been part of a joint plan to import the second consignment into Tonga.

Conviction Appeal – Mr Manu

[8]	Mr Manu's appeal against conviction was advanced on three grounds:

(a)	He had been unlawfully arrested.
(b)	There was insufficient evidence to show he knew the package contained pseudoephedrine.
(c)	There was evidence the package had been interfered with after its arrival in Tonga and before Mr Manu took delivery.

[9]	Mr Pouono initially contended that Mr Manu's arrest was unlawful because he had not been told of the nature of the offence for which he was being arrested as required by s.115(3) Tonga Police Act. This complaint had been rejected by the Judge. MrPouono was obliged to accept that the Judge was right to do so as there was clear evidence that s.115(3) had been complied with and there was nothing in Mr Manu's evidence to suggest otherwise.

[10]	Mr Pouono made an oral submission that the Police had failed to administer a caution to Mr Manu. This was not raised at trial, in the grounds of appeal or in Mr Pouono's written agreement, and ultimately was not pressed.

[11]	We observe that even if these complaints had had some foundation, they would not have assisted Mr Manu. At best a breach of s.115(3) or failure to caution Mr Manu would have led to the exclusion of his statement. That would not have helped him. He made no admissions and his statement was admitted without objection.

[12]	In support of the second ground Mr Pouono referred to undisputed evidence that Mr Manu had authorized the custom agent who handled the importation to open the package in preparation for custom clearance. He contended this was consistent with Mr Manu having no knowledge that the package contained an illicit substance. It was, he said, "a clear explanation as to the mental state" of Mr Manu.

[13]	The same submission was made to Cato J who dealt with it in the following passage of his decision.

"Manu emphasized as part of his defence that, when he inspected the first consignment and handled the boiler he suggested to custom's officers that they open the boiler and inspect it. He also invited them by phone to open the second package. He advances this as evidence that he did not know what was in the packages and was not part of any unlawful enterprise. Whilst I consider this possibility, I reject it. As a serving police officer of experience, Manu's actions in assuming deceptively a consignee's role I find unconvincing. His actions in assuming the role of consignee were brazen. He was known as a police officer to one of the customs officers Funaki, and I find his actions in inviting inspection no more than a further bold step on his part to secure the packages without revealing who the true importer was."

[14]	Cato J was fully entitled to make this finding. Whether Mr Manu's actions were consistent with ignorance of the contents of the package or supportive of the Crown case was a matter for the Judge. This ground of appeal cannot succeed.

[15]	In support of the third ground of appeal Mr Pouono referred to evidence that between the time the package was delivered to the cargo shed at Fua'amotu Airport by New Zealand Custom officers and the time it was opened someone had written Mr Manu's name and telephone number on it. We understand him to be suggesting that this might raise concerns as to the integrity of the package and the possibility that it may have been interfered with.

[16]	There is nothing in this evidence to raise concerns that the conviction of Mr Manu might be unsafe. Moreover, the matter was not an issue at trial. There was no suggestion the package had been tampered with and the Judge was not asked to address the question. The third ground of appeal also must fail.

Conviction appeal – Mr Lin

[17]	Two grounds were advanced in support of Mr Lin's appeal against conviction:

(a)	He was unlawfully arrested.
(b)	There was no or insufficient evidence to show that Mr Lin knew the powder found in his refrigerator was a controlled chemical.

[18]	Mr Pouono submitted that Mr Lin was not told why he was arrested and the nature of the offence for which he was being arrested contrary to s.115(3) Tongan Police Act. Mr Pouono made a brief submission to the same effect to Cato J, arguing that this should lead to Mr Lin's acquittal. The Judge did not comment on the submission in his decision.

[19]	That could well be because the matter had not been raised in the course of the trial. There is no evidence directed to the issue. The arresting officer was not asked about it. Mr Lin did not address it in his evidence. Regardless, it is clear from the evidence of events leading up to Mr Lin arrest that he would have been well aware that his arrest arose from the powder found in the refrigerator. Even if this were not the case irregularities in relation to his arrest would not have impacted on his conviction. Like Mr Manu, he made no admissions. The exclusion of his statement would not have affected the prosecution case. 

[20]	Mr Pouono argued that there was insufficient evidence to show that Mr Lin knew the substance found in his refrigerator was a controlled chemical as required by s.5(b) of the Act and was reckless as to whether it was to be used for the purpose of an offence against s.4, in this case the manufacture of an illicit drug.

[21]	In concluding that Mr Lin knew that the substance in the refrigerator was Contac NT the Judge referred to what he described as the deliberate lie he told that the refrigerator belonged to another occupant of the house and inconsistencies between his evidence and what he initially told the police. We are satisfied that there was ample evidence to support the Judge's finding that the mental element of the charge of possession was established. In addition to the matters considered by the Judge we find it significant that Mr Lin told the officers the substance in the refrigerator was "cold tablets" whereas he told them that the (innocuous) powder found in his bedroom was "candy". This evidence is strongly supportive of the Judge's finding that Mr Lin knew the nature of the substance in the refrigerator and its intended use. 

Appeals against sentence

Mr Manu

[22]	Mr Pouono did not seek to argue that the term of imprisonment imposed on Mr Manu was excessive. His criticism was that Cato J had failed to consider the alternative available sentence of a fine . He also argued that the Judge had not considered mitigating factors and should have made provision for suspension of the prison sentence.

[23]	It appears that Cato J was not invited to consider imposing a fine. There was nothing to indicate that he was given any information about Mr Manu's ability to pay a fine. Mr Pouono's plea at sentencing was directed to persuading the Judge that the prison sentence should be fully suspended. 

[24]	Even if the Judge had been invited to consider imposing a fine, we have no doubt that he would have declined to do so. He emphasized the seriousness of the offending, the need for deterrence and the seriously aggravating factor of a police officer's involvement in acriminal enterprise. In the circumstances, a fine, even a substantial fine, would have been an inadequate response, capable of being perceived as little more than a license fee for highly profitable criminal activities.

[25]	Cato J gave full and sympathetic consideration to mitigating factors, noting Mr Manu's previous good character and record of service and the impact of a prison sentence on his young family. He reduced the sentence by eight months to take account of these factors. He examined the arguments for suspension with care, concluding however that, in the absence of contrition, there was nothing to justify suspension. 

[26]	We can find no error in the way the Judge approached sentence. The end sentence appropriately reflects the criminality involved in the offending and makes proper allowance for factors personal to Mr Manu.

Mr Lin 

[27]	Mr Pouono submitted, as he had in relation to Mr Manu's sentence, that the Judge erred in not considering a fine. He also complained that there had been a failure to consider mitigating factors.

[28]	The Judge was asked to impose a fine on Mr Lin who said he had a friend who would pay it. In responding to that submission, the Judge said: 

"I consider that the importance of Contac as a precursor in the manufacture of methamphetamine, requires me to impose sentences of imprisonment on those who are found in unlawful possession of this chemical for a commercial purpose unrelated to cold treatment. Deterrence must be the paramount sentencing consideration where contac is possessed for this reason."

We agree. A fine is not an appropriate sentencing option in drug offending involving a commercial element.

[29]	The Judge made generous provision for mitigating factors, reducing the sentence by 6 months from a starting point of sixteen months. Again, we find no error in his approach.

Result
[30]	The appeals by both Mr Manu and Mr Lin against conviction and sentence are dismissed.

…………………………..
Salmon J

…………………………..
Handley J

…………………………..
Hansen J

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Tupou J