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Vakameitangake v R [1998] TOLawRp 1; [1998] Tonga LR 141 (7 August 1998)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku’alofa

CA 19/97

Vakameitangake

v

R

Burchett, Tompkins, Beaumont JJ
3 August 1998; 7 August 1998

Customs and excise ⎯ defrauding the revenue of duty ⎯ appeal against sentence

Criminal procedure ⎯ submission of no case to answer ⎯ appeal against rejection

On 29 October 1997, the Chief Justice, following a defended hearing, found each appellant guilty of two charges under the Customs and Excise Act (Cap 67) (“the Act”). On 12 November 1997 he ordered that the first appellant incur a penalty of $11,200.00 and the second appellant incur a penalty of $12,480.00. They were found guilty of taking two cartons of cigarettes from the Duty Free shop, concealing them, and dealing with them with the intention of defrauding the revenue of any duties payable. Both appellants appealed against conviction and sentence. The first appellant appealed on the grounds that there was insufficient evidence to support the finding that there was a case to answer and secondly, that there was insufficient evidence to support the finding that he was guilty. The second appellant appealed against conviction on the grounds that the Chief Justice erred in dismissing the no case application made on behalf of the second appellant. Since the second appellant did not call or give evidence, it was submitted that the Court of Appeal could determine whether the Chief Justice was correct in ruling that there was a case to answer. He also appealed against conviction on the grounds that the guilty finding was against the weight of evidence.

Held:

1. When a no case application has been declined and the defence calls evidence, following which the trial Judge finds that the charge has been proved and enters a conviction, the Court on appeal can only determine an appeal against that conviction by taking into account the whole of the evidence before the Court at the time the conviction was entered.

2. Where a Judge has ruled that there is a case to answer and where, after a defendant has elected not to call or give evidence, the Judge has found that the elements of the charge have been proved beyond reasonable doubt, the issue on an appeal against conviction is not whether there was a case to answer. It is whether there is sufficient evidence upon which the trial Judge could properly conclude that each element in the offence has been proved beyond reasonable doubt.

3. The Court was satisfied that the first and second appellants were properly convicted on both counts.

4. The penalty the Court was required to impose is mandatory so each appellant was liable to the penalty of triple the value of the goods involved on each offence. However, the Court has an inherent power to order a stay if it considers that to enter a conviction would result in an injustice. In the circumstances of the present case, it was appropriate to order a stay in respect of the more general count two, and to uphold the conviction in respect of the more particular count one.

Cases considered:
Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529; [1981] 3 All ER 727
R v Galbraith [1981] 1 WLR 1039; [1981] 2 All ER 1060

Statutes considered:

Criminal Offences Act Cap 18

Customs and Excise Act Cap 67

Counsel for first appellant: Mr Tu’utafaiva
Counsel for second appellant: Mr Tu’ivai
Counsel for respondent: Mr Cauchi

Judgment

On 29 October 1997, the Chief Justice, following a defended hearing, found each appellant guilty of two charges under the Customs and Excise Act (Cap 67) (“the Act”). On 12 November 1997 he ordered that the first appellant incur a penalty of $11,200.00 and the second appellant incur a penalty of $12,480.00.

Both appellants have appealed against conviction and sentence.

The facts found by the Chief Justice

The first appellant is employed as a customs officer. At the relevant time he was the principal security officer of the Customs Department at Fua’amotu International Airport. The second appellant was employed by the Ministry of Agriculture and Fisheries as a Technical Officer Grade II in the Quarantine Division, also stationed at Fua’amotu International Airport.

On 6th October 1994 ‘Emosi Fameitau arrived at Fua’amotu International Airport on a Polynesian Airlines flight. After collecting his luggage, Fameitau was approached by the second appellant, Kailahi, who asked Fameitau to accompany him to the Leiola Duty Free Shop. Fameitau agreed. Kailahi gave Fameitau a sum of money which he handed to a female store attendant. The attendant placed two cartons of “Winfield Blue” on the counter.

We were informed at the bar that there are ten packets of ten cigarettes in what is commonly known as a sleeve, and forty sleeves in a carton. The two cartons therefore contained a total of 8,000 cigarettes.

The second defendant wheeled the trolley through the customs hall and passed a customs officer, Felefoni Mapakaitolo. Mapakaitolo saw the cartons of cigarettes in the trolley. He asked the second appellant to whom the cigarettes belonged. The second appellant replied that they belonged to the first appellant. Fameitau and the second appellant continued on to the cashier, Lo’amanu Vatuvei. Upon being told that the cigarettes belonged to the first appellant, Vatuvei placed them in a room controlled by Customs which also served as the office of the first appellant. No duty was paid that day. A little later, Vatuvei saw the first appellant pushing a trolley with the cartons on it from the first appellant’s office and outside into the unbonded public area.

On 6 December 1994 Manase Tonga, a customs officer, was approached by the first appellant with a request that he make out a receipt for $1,280.00. The first appellant told Tonga that he had been told by the Minister of Finance to pay that amount. He paid it. In a letter he wrote to the Civil Service Staff Board on 26 January 1995, the first appellant acknowledged that this amount was the duty payable on the Winfield cigarettes.

Both appellants were dismissed following an investigation into these events by the acting Auditor General. The cartons of cigarettes were never located.

The Charges against the First Appellant

Count 1

Knowingly harbour, keep, or conceal uncustomed goods contrary to section 210(1)(c) of Customs and Excise Act (Cap 67)

Particulars of offence

[The first appellant] on the 6th of October 1994 at Fua’amotu Airport took two cartons of Winfield cigarettes from the Leiola Duty Free Shop and concealed them from custom officials knowing they were uncustomed.

Count 2

Knowingly deal with goods with the intention of defrauding the revenue of any duties applicable to such goods contrary to section 210(1)(d) of Customs and Excise Act (Cap 67)

Particulars of offence

[The first appellant] on the 6th of October 1994 at Fua’amotu Airport did deal with goods namely two cartons of Winfield cigarettes with the intention of defrauding the revenue by not paying the proper duties on such goods.

The Charges against the Second Appellant

Count 1

Accessory to the crime of knowingly harbour, keep, or conceal uncustomed goods contrary to section 210(1)(c) of Customs and Excise Act (Cap 67) contrary to section 8 Criminal Offences Act (Cap 18).

Particulars of offences

[The second appellant] on or about 6th October 1994 at Fua’amotu Airport did abet the crime of knowingly harbouring keeping or concealing uncustomed goods by instructing one ‘Emosi Fameitau to purchase two cartons of Winfield Blue cigarettes from the Duty Free Shop for Lisiate Vakameitangake contrary to section 8 of the Criminal Offences Act and section 210(1)(c) of the Customs and Excise Act (Cap 67).

Count 2

Knowingly deal with goods with the intention of defrauding the revenue of any duty applicable to such goods contrary to section 210(1)(d) of Customs and Excise Act (Cap 67).

Particulars of offence

[The second appellant] on or about 6th October 1994 at Fua’amotu Airport did deal with goods, namely two cartons of Winfield cigarettes with the intention of defrauding the revenue of duties due thereon contrary to section 210(1)(d) of the Customs and Excise Act (Cap 67).

The First Appellant’s Appeal against Conviction

The principal submissions advanced by Mr Tu’utafaiva on the first appellant’s appeal against conviction were, first, that there was insufficient evidence to support the finding by the Chief Justice that there was a case to answer, and, secondly, that there was insufficient evidence to support the finding by the Chief Justice that the first appellant was guilty of the offences charged.

At the end of the case for the prosecution, Mr Tu’utafaiva submitted to the Chief Justice that there was no case to answer. The Chief Justice found that the prosecution had made out a case and dismissed that submission. The first appellant then gave evidence in his own defence. Mr Tu’utafaiva submitted that, despite the first appellant having given evidence, this Court should review the Chief Justice’s decision on the no case application by considering only the evidence that was before the Court at the time of the application, and disregarding any evidence that came before the Court after the application was made. For example, he submitted that this Court should not have regard to a letter from, and an affidavit by, the first appellant that had been produced to the Court in the course of the cross-examination of the first appellant.

We do not accept that submission. When a no case application has been declined and the defence calls evidence, following which the trial Judge finds that the charge has been proved and enters a conviction, this Court on appeal can only determine an appeal against that conviction by taking into account the whole of the evidence before the Court at the time the conviction was entered.

The approach to be adopted on a no case submission is set out in the judgment of the Court of Appeal in England in R v Galbraith [1981] 1 WLR 1039; [1981] 2 All ER 1060. The Court there held that where the Judge comes to the conclusion that the Crown’s evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. But that is not the approach for an appeal Court to adopt where, as here, the defendant has given or called evidence, and the Judge has based his finding of guilt on the whole of the evidence before the Court, including the evidence called by the defence. An appeal Court is, in that case, required to determine whether, having regard to all the evidence before the Court, the trial Judge was correct in finding the elements of the offence proved beyond reasonable doubt.

We pass to consider the insufficient evidence ground. Put shortly, it was the case for the prosecution against the first appellant that the cartons of cigarettes were wheeled into the first appellant’s office. A little later, the first appellant removed both cartons from his office, taking them outside the terminal building into the public unbonded area. The Crown also relied on the appellant’s later action in paying what he acknowledged was the duty payable on the cigarettes.

Mr Tu’utafaiva challenged the Chief Justice’s finding that the first appellant had removed the cigarettes from his office. He relied on a passage in the cross-examination of Vatuvei where the witness made a reference to his having his back to the first appellant at the time he said the cartons were being removed by the first appellant. But the witness also said in cross-examination he knew that what the first appellant was removing were the cigarettes, because the first appellant was the only one left in the office at the time the cartons were removed. He had also said in evidence in chief he was certain it was the cartons of cigarettes that the first appellant pushed out of his office. The Chief Justice found Vatuvei to be a witness who was attempting to do his best to recall the events of 6th October, 1997 honestly.

We find no grounds to justify disturbing the Chief Justice’s finding that Vatuvei saw the first appellant pushing a trolley with the cartons in it from his office and outside into the unbonded public area.

Mr Tu’utafaiva submitted that the Chief Justice was not entitled to draw an inference adverse to the first appellant because the first appellant paid the duty on the cigarettes. He submitted that the Chief Justice ought to have accepted the first appellant’s evidence when he said he paid the duty “because I was the supervisor”, an explanation that only emerged in cross-examination. The Chief Justice was entitled to reject this evidence. In his judgment he referred to the letter the appellant had written to the Civil Service Staff Board on 26th January 1995 in which he said:

“There was no intention of smuggling and I made subsequent arrangements with the Minister to pay the revenue on the winfield (sic) which I have now done”.

He did not claim in the letter that he had made the payment only because he was the supervisor and not because he was liable for the duty, as he could have been expected to do, had the reason he gave in evidence been true.

When regard is had to the whole of the evidence and the Chief Justice’s findings on credibility, we are satisfied that there was ample evidence to support the findings that on the 6th of October 1994 the first appellant took two cartons of cigarettes that came from the Duty Free Shop and concealed them from customs officials knowing they were uncustomed, and that on the same day and as part of the same transaction, he dealt with the two cartons of cigarettes with the intention of defrauding the revenue by not paying the proper duties on such goods.

Subject to our conclusion when dealing with the appeal against sentence, we are satisfied that the first appellant was properly convicted on both counts.

The Second Appellant’s Appeal against Conviction
The first ground advanced by Mr Tu’ivai in support of the second appellant’s appeal against conviction was that the Chief Justice erred in dismissing the no case application made on behalf of the second appellant. Since the second appellant did not call or give evidence, Mr Tu’ivai submitted that this Court could determine whether the Chief Justice was correct in ruling that there was a case to answer.

We do not accept that submission. Where a Judge has ruled that there is a case to answer and where, after a defendant has elected not to call or give evidence, the Judge has found that the elements of the charge have been proved beyond reasonable doubt, the issue on an appeal against conviction is not whether there was a case to answer. It is whether there is sufficient evidence upon which the trial Judge could properly conclude that each element in the offence has been proved beyond reasonable doubt.

Mr Tu’ivai submitted that since no transcript of the Chief Justice’s reasons for dismissing the no case application is available, the appeal should be adjourned to enable the reasons to be obtained, and counsel to research the no case ground in greater detail. For the reasons we have already expressed, we decline this application for an adjournment. As the no case finding cannot be the subject of an appeal to this Court, having the Chief Justice’s reasons for dismissing the no case application would not assist.

The second ground advanced in support of the conviction appeal was that the findings of guilty on both counts were against the weight of evidence.

Mr Tu’ivai advanced a number of reasons in support of this ground. For example, he submitted that the evidence was unreliable because there were contradictions in the evidence concerning the cartons of cigarettes. Fameitau said that there was only one carton. Other witnesses spoke of there being two. Mapakaitolo spoke of there being two sleeves of cigarettes and two cartons. The Chief Justice considered these discrepancies. He said that although Fameitau said there was only one carton, his role was relatively transient, and that Fameitau’s memory has led him into error. He was satisfied that there were two cartons.

Mr Tu’ivai further submitted that the Crown proof was inadequate because certain documentation, such as a receipt for the goods, was not produced. While it may have been open to the prosecution to produce further documents, that it did not do so does not, in our view, affect the probative value of the evidence that was before the Court.

We do not find it necessary to examine each of the other matters advanced by Mr Tu’ivai in support of the conviction appeal. We are satisfied that, in the case of the second appellant also, there was ample evidence before the Court to justify the Chief Justice’s finding that the second appellant abetted the first appellant in harbouring, keeping, or concealing uncustomed goods. The second appellant requested Fameitau to purchase the two cartons of Winfield cigarettes from the duty free shop with money supplied by the second appellant. It was the second appellant who told Mapakaitolo, the customs officer on duty that the cartons were for the first appellant. It was the second appellant who told Vatuvei that the cartons were for the first appellant, enabling them to be placed in the first appellant’s room without duty being paid. All of this evidence leads to the clear inference that the second appellant was actively assisting the first appellant to obtain the cartons of cigarettes and remove them without the payment of duty.

The Chief Justice was also justified in finding proved the count against the second appellant of dealing with the two cartons with the intention of defrauding the revenue of duties.

The Appeals against Sentence

Section 210 of the Act provides that every person who does any of the acts set out in paragraphs (a) to (e) of subs (1) “shall be guilty of an offence and for each such offence incur a penalty of treble the value of the goods or $200 which ever is greater ...”

Section 257(1) of the Act provides that where any penalty, the amount of which is to be determined by the value of any goods, is sued for under the customs laws, such value shall be the price for which goods of the like kind were sold in bond at the relevant time, with the duties due added to such price.

The Chief Justice calculated the penalty in the following manner. The purchase price in bond was $800 per carton. The duty payable was $1,280, resulting in a total value for the purpose of assessing the penalty of $2,080. Three times that value resulted in a penalty of $6,240 on each offence. As there were two offences, the total penalty was $12,480.

In the case of the first appellant, the Chief Justice deducted from this amount $1,280, being the duty the first appellant had paid. Therefore the penalty was $11,200. We do not consider this approach to be correct. Section 210(1) requires the Court to impose a mandatory penalty of triple the value of the goods. Neither that subsection nor subs 257(1) permits the Court to make any deduction from the penalty required to be imposed.

It is clear from s 210(1) that the penalty the Court is required to impose is mandatory. For “each offence” for which a person is found guilty under any of the paragraphs in s 210(1), the person convicted “shall” incur the penalty of triple the value of the goods or $200 whichever is greater. The Court has no discretion. As each appellant was convicted of two offences under subs (1), each was liable to the penalty of triple the value of the goods involved, on each of the offences.

However we do not consider that to be the end of the matter. The Court has an inherent power to order a stay if it considers that to enter a conviction would be an abuse of process in the sense of resulting in an injustice. In Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 at 536; [1981] UKHL 13; [1981] 3 All ER 727, Lord Diplock referred to:

“... the inherent power which any Court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people.”

Where a person, as the result of two or more separate and unrelated transactions, has been found guilty of two or more offences under s 210(1), there can be no injustice for the offender to incur the triple penalty in respect of each of the offences. But where, as here, a person is found guilty of two or more offences under the subsection, all of which relate to the same transaction, perhaps reflecting different aspects of it, for that person to incur the triple penalty for each of the offences, can, depending upon the circumstances of the case, cause a manifestly unfair result. In such circumstances, the Court is justified in exercising the power to order a stay.

An injustice is more likely to result where the Court is required to impose a mandatory penalty. If the Court has a discretion as to penalty, as is the case with s 220, for instance, the total penalty can be assessed having regard to the totality of the offending. But this cannot be done where the Act requires a mandatory penalty.

In this case the two counts against each appellant arose out of the single transaction relating to the same goods, namely the two cartons of cigarettes. The two counts reflect different aspects of the one transaction. The prosecution was justified in bringing the two counts against each appellant where it had evidence that, if accepted, would justify a conviction on each. But when the trial Judge had reached the conclusion that both counts had been proved, he should, to avoid the injustice that would result from two penalties being imposed for the one transaction, have stayed one of the counts. In the circumstances of the present case, it is appropriate to order a stay in respect of the more general count two, and to uphold the conviction in respect of the more particular count one.

The Result

The appeals are allowed in part There will be an order that count two in each indictment be stayed. The convictions on count one in each indictment against each appellant are confirmed. The penalties ordered in the Supreme Court are quashed. In lieu thereof, each appellant is ordered to incur a penalty of $6,240.00 in respect of the offence for which each has been convicted.