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Lavulavu v Attorney General [2025] TOCA 6; AC 9 of 2024 (16 May 2025)

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

AC 9 of 2024
[CR21 of 2023]

BETWEEN
‘ETUATE LAVULAVU
Appellant

AND
ATTORNEY GENERAL
Respondent

Hearing:
9 May 2025

Court:
Randerson, Harrison and Morrison JJ

Appearances:
The Appellant in person
Sione Sisifa SC Solicitor General, for the Respondent

Judgment:
16 May 2025

JUDGMENT OF THE COURT

Introduction

[1] The appellant, ‘Etuate Lavulavu, appeals against a fine of $15,000 imposed by Acting Lord Chief Justice Tupou following her finding that he had been in contempt of Court. He was ordered to be imprisoned for a period of two weeks failing payment. Mr Lavulavu has not made payment and has not been imprisoned. However, the parties have recently entered into an agreement for him to pay the fine by monthly instalments of $1000 starting on 7 March 2025 pending the result of his appeal.
[2] Mr Lavulavu raises a number of grounds in support of his submission that the amount of the fine was excessive.

Background

[3] Tupou ALCJ’s decision on 27 May 2024 briefly summarised the background facts. They are set out in greater detail in our judgment dismissing Mr Lavulavu’s appeal against Her Honour’s finding of contempt ^[1] In 2021 Mr Lavulavu and his wife were found guilty on three counts of obtaining money by false pretences following a Judge alone trial before Justice Cooper in the Supreme Court. In October 2022 this Court allowed their appeals against conviction and sentence because the trial had miscarried. The grounds included a finding of apparent bias^[2]by the trial Judge.
[4] The Lavulavus’ trial in the Supreme Court and this Court’s conviction appeal decision attracted considerable media attention in Tonga. Mr Lavulavu gave a number of interviews with media outlets following the appeal decision. One conducted by a journalist was published by VPON Media & Broadcasting and livestreamed via Facebook and YouTube on 26 October 2022. In answer to a question from the journalist Mr Lavulavu said this:

“Yes I believe that is what happened and it was not just me who saw them I was very surprised [sic]. But they are political figures, two of them and others who are higher level than the judge. I really felt that he believed these people who were trying to mislead him from the side and that’s where the truth was lost.”

[5] It is appropriate to record the context of Mr Lavulavu’s statement. As noted in this Court’s contempt appeal judgment, this exchange followed the interviewer’s recital of Mr Lavulavu’s suggestion made the previous day during a discussion about his trial that “...some people from outside the Court had been visiting the office of the Court”. Mr Lavulavu’s contemptuous statement effectively adopted and developed that earlier suggestion, thereby undermining his protestation of spontaneity. It was a natural progression of his originating implication that outsiders had physically visited the Court for the apparent purpose of influencing the Judge.
[6] The Attorney- General applied to have Mr Lavulavu committed for contempt on six different grounds. Following a preliminary hearing, Lord Chief Justice Whitten KC found on 28 February 2023 that a prima facie case of contempt was available on one allegation: namely, that the quoted statement implied that the trial Judge’s decision was influenced by political figures and persons of high rank.
[7] As noted, Mr Lavulavu initially defended the charge. He did not acknowledge or apologise for his contempt until the end of the hearing of his appeal before us in October 2023.
[8] The Crown initially sought the imposition of a sentence of three months’ imprisonment. However, after Mr Lavulavu’s apology to this Court, the Crown filed an amended application to reduce the penalty to two months’ imprisonment. Alternatively, the Crown sought the imposition of a substantial fine. Mr Lavulavu conceded that a fine was appropriate but opposed the figure of $20,000 proposed by the Crown as “too expensive”.

Supreme Court

[9] Tupou ACLJ concluded after careful consideration that a custodial sentence was not warranted but that a substantial fine must be imposed for these reasons:

• [a] Mr Lavulavu embarked on speaking about his trial in the Supreme Court and events surrounding this Court’s decision on his appeal via livestream. Mr Lavulavu had submitted that the statement was spontaneous and unscripted but it was prone to overstepping the confines of fair and reasonable criticism and ventured into contempt.
• [b] In the livestreamed program, and also during the contempt proceedings conducted in the Supreme Court, Mr Lavulavu demonstrated a high level of research skills and knowledge of what applied to his case. Mr Lavulavu is a former cabinet minister, a Member of Parliament, a businessman, and founder of a university. In these circumstances he ought to have known that ascribing bias to the trial Judge based on allegations of political influence and from those of higher rank than him was contemptuous.
• [c] Current advanced technology has made the creation and publishing of content by any person at any time widely accessible and at very little to no cost. While such advancements benefit society when used safely, their user friendly nature makes them susceptible to misuse or abuse. In this event, there is a greater risk of damage to an individual’s rights, privacy, reputation and, most importantly, to institutions such as the courts. In this respect the judge noted that the offending program was still available on YouTube.
• [d] The contempt was a direct allegation of actual bias against the trial Judge which, if proven, may constitute judicial misconduct. The allegation was serious and sought to impugn the credibility of the trial judge’s decision and other cases in which he has presided. In a small jurisdiction where the Supreme Court bench consists of three judges, the damage inflicted on the administration of justice is critical.

[10] As a result, Her Honour held that:

“Therefore any sentence must reflect the society’s denunciation for the contempt specific deterrence to the defendant and general deterrence to discourage others who intend to conduct themselves in this manner from doing so, and a warning that they will be severely punished. Aligned to those principles, the court as instruments of order and justice, must not shrink from passing appropriate sentences that also recognise the environment and times in which the offending occurs.”

[11] Tupou ALCJ had regard to comparable fines imposed in earlier decisions^[3]. All those cases involved contempts committed against judicial officers. The fines ranged between $1,000 and $3,000. Her Honour noted that the highest penalty in a comparable case was imposed 24 years previously when online platforms were unavailable and not used in Tonga. In her judgment, adoption of a fine in that range would be inadequate to deter Mr Lavulavu and others from similar acts of contempt.
[12] The Crown had proposed a fine in the range of $15,000 to $20,000. Her Honour held that $20,000 was an appropriate starting point given the seriousness of the offending, the comparable cases, the principles of denunciation, and the need for specific and general deterrence. Against this figure, she allowed $5,000 for mitigation for Mr Lavulavu’s public apology to the trial judge and to the Supreme Court in a program recorded on 31 October 2023. While recording Mr Lavulavu’s assertion that the figure was “too expensive”, the Judge noted that he did not submit any evidence to the Court about his financial means.
[13] In his notice of appeal Mr Lavulavu submitted that the Judge erred in fixing the figure without taking account of his financial means. Her Honour can hardly be criticised for that alleged omission when Mr Lavulavu himself declined to provide details of his means. Mr Lavulavu did not press this point in his carefully constructed synopsis of written submissions filed in this Court.
[14] In result, Tupou ALCJ imposed a fine of $15,000.

Appeal

[15] Mr Lavulavu advances a number of grounds for his appeal but they all come back to his basic complaint that the fine was out of line with previous authority and was excessive in any event.
[16] Mr Lavulavu is correct that the fines imposed in what are called the comparable cases were within a much smaller range than this fine, all below $3,000. However, Tupou ALCJ found only limited guidance was available from them. Two of the contempts occurred over 25 years ago, and in the other two the media outlets were limited. In our judgment those sentencing decisions should not now be applied in cases of sustained contempts committed against sitting members of the judiciary. A significantly higher tariff is warranted.
[17] We acknowledge that the starting point for the fine of $20,000 adopted by Her Honour was at the high end of the range. However, as Mr Sisifa submitted before us, the result must be governed by the particular circumstances, and any fine must be sufficient to denounce and deter for the reasons given by Tupou ALCJ as set out at [10] above. This case has had a high profile in Tonga because it involves allegations of serious and widespread misuse of public funds by two public figures.
[18] Mr Lavulavu’s allegation struck at the heart of the integrity and independence of the Tongan judicial system. His conduct suggested corrupt motives and scandalised the Court. It was an egregious attempt to undermine public faith and confidence in the judiciary, and in the fairness of the process being adopted in his criminal trial.
[19] Mr Lavulavu’s allegation that the trial Judge was influenced or manipulated by unnamed politicians and others was bound to reach a broad and interested audience, both in Tonga and among the many Tongans living abroad. As the Judge emphasised, the streaming of the interview and of the contemptuous statement gave Mr Lavulavu’s allegations wide and prolonged currency. Information disseminated through social media platforms has the potential to reach a considerably wider audience than print media, and has the capacity to endure and aggravate damage. In this case the offending publication was not removed for many months.
[20] We emphasise three additional particularly aggravating features of Mr Lavulavu’s contempt. First, as explained, the circumstances surrounding his statement suggested a degree of premeditation. Second, Mr Lavulavu has never attempted to justify or substantiate his allegation, leading to the inference that he knew throughout that it was factually unsound and thus untruthful. Third, he maintained for at least a year his assertion that the statement was not contemptuous and challenged the Supreme Court’s finding on specious grounds.
[21] In this last respect Mr Lavulavu only retracted and apologised once he understood at the conclusion of argument in this Court that his appeal would fail. He may be considered fortunate to have been allowed a mitigating 25% or $5000 discount against the starting point for his apology.
[22] In argument before us Mr Lavulavu drew an analogy between the circumstances of his contempt and the maximum penalty of a fine not exceeding $10,000 or three months’ imprisonment provided for offences committed under sections 4 and 5 of the Electronic Communications Abuse Offences Act 2020. Mr Lavulavu rightly acknowledged that contempt of Court is a separate category of offending. But he submitted that this statutory provision should be a relevant consideration where the contempt involves the use of advanced technology.
[23] We disagree. One of the decisive differences is that the Act is designed to proscribe the use of an electronic communication to abuse, bully or cause harm to a particular person. By contract, the purpose of the contempt procedure in this case is to sanction somebody who attacks the integrity and independence of the Tongan judicial system by using the electronic medium to reach a large and undefined audience.
[24] This case called for a condemnatory response. A substantial fine was necessary in the absence of a custodial sentence. We are satisfied that while the fine imposed of $15,000 was at the high end of the permissible range, it was not excessive.

Result

[25] The appeal is dismissed.

Randerson J

Harrison J

Morrison J

^[1] Lavulavu v Attorney -General [2023] TOCA 20
^[2] Lavulavu v Attorney-General [2022] TOCA 22
^[3] Attorney General v Ulakai [1999] Tonga Law Rp 47; Attorney General v Fusitu’a [1997] TOLawRp 8; Attorney General v Tapueluelu [2013] TOSC 48; Attorney General v Vatikni [2015] TOSC 23