IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

AM 14 & 15/2003

Moala

v

Police

Ward CJ
10 November 2003; 10 November 2003

Criminal law – appeal against conviction and sentence – imprisonment excessive therefore quashed

The two appellants were tried together in the Magistrates' Court on a charge of possessing intoxicating liquor. The allegation was that they had been drinking hopi on the veranda of the Ministry of Agriculture in Ha'asini. The hopi was in a plastic dustbin. The police were called and the appellants were arrested and charged. At the Magistrates' Court on 14 May 2003, they both pleaded guilty. Neither had any previous convictions and each was sentenced to 3 months imprisonment. They appealed the conviction and sentence.

Held:

1. There was nothing on the record to suggest the plea entered was anything but an unequivocal admission of guilt and so the appeal against conviction was dismissed.

2. As first offenders in an offence of this nature an immediate sentence of imprisonment was wrong in principle and manifestly excessive. The sentence of 3 months imprisonment was quashed. The accused spent 8 days in custody prior to being bailed pending appeal. In view of that, the Court did not consider it appropriate to order a fine. The appellants were punished adequately. An order of conditional discharge for 12 months was substituted in each case.

Statutes considered:
Magistrates' Courts Act (Cap 11)

Counsel for appellants: Mr Veikoso
Counsel for respondent: Mr Sisifa

Judgment

The two appellants were tried together in the Magistrates' Court on a charge of possessing intoxicating liquor. The allegation was that they had been drinking hopi on the veranda of the Ministry of Agriculture in Ha'asini. The hopi was in a plastic dustbin. The police were called and the appellants were arrested and charged.

At the Magistrates' Court on 14 May 2003, they both pleaded guilty. Neither had any previous convictions and each was sentenced to 3 months imprisonment.

They now seek to appeal the conviction and sentence on the following grounds:

"That the Learned Magistrate erred in:

1. Convicting the accused without properly represented.

2. The court was aware of the accuseds' pleas when the cases were first called on 23 May (sic – April) 2003. They pleaded not guilty and they were represented by Mr Fifita. The cases were then adjourned to 07.05.2003. The counsel was off duty as from 6th to 9th of May and he applied for the hearing to put on to 21 May, for there were some Supreme court matters already set for the 14th, with the not guilty pleas still stood.

3. The counsel was not informed that the learned magistrate adjourned the cases to the 14 May. Nor was he informed that the hearing would proceed regardless of whether with counsel attend or not.

4. The consequence of the above led to the accused had no choice but to enter a plea of guilty for they had no counsel.

5. Alternatively, the sentencing were too severe."

I dismissed the appeal against conviction but allowed the appeal against sentence, quashed the sentence of imprisonment and substituted an order that they each be discharged conditionally for 12 months. I stated I would give my reasons in writing and do so now.

At the hearing, Mr Veikoso (who did not appear in the court below) amplified the circumstances set out in the grounds of appeal. He advised this Court that counsel had represented the appellants on the 23 April and, following the entry of the pleas of not guilty, the case had been adjourned to 7 May. On that date, the court was given a medical certificate indicating that counsel was sick and would not be fit to work between 6 and 9 May. It was accompanied by a request that the case be adjourned to 21 May. However, the magistrate adjourned the hearing to 14 May and Mr Veikoso complains that the court did not advise counsel that his request had not been granted.

There is no reason why the court should advise counsel in such circumstances. Whilst the courts will always try to accommodate counsel's convenience when fixing hearing dates, many other factors need to be considered and there is no requirement that it should accede to any request. Where counsel has made a request, it is his duty, and his alone, to check the result. If he is not able to attend on the adjourned hearing, he must arrange other counsel to cover the case.

In this case, the adjourned hearing clashed with cases counsel for the appellants had in the Supreme Court. They must take priority but, having advised the magistrate and his request having been refused, he should have arranged for another lawyer to attend on his behalf at one of the conflicting hearings.

The fourth ground of appeal suggests the appellants had no option but to plead guilty because their lawyer was not present. The record shows that they were asked how they pleaded and they replied "Guilty". They were then asked, "Do you not have a lawyer representing you?' and they replied, "We don't need a lawyer we will proceed on our own".

Mr Veikoso tells the Court that that part of the record is wrong. He states that the appellants told the magistrate they still needed a lawyer and that they had already paid him $90 and a pig.

In appeals from the Magistrates' Court, section 79 of the Magistrates' Courts Act provides:

"The decision of the Supreme Court on the hearing of appeals shall be given on the written evidence forwarded by the clerk, but the Supreme Court may in its discretion examine all or any of the witnesses produced before the magistrate and, on good cause shown by either party, may in its discretion admit fresh evidence and if necessary may adjourn the hearing for that purpose."

In this case, the court is bound by the record. There is no alternative because that is all there is apart from the assertions of Mr Veikoso from the bar table. He has done nothing to obtain any evidence to support this claim. No affidavit has been sought from the trial magistrate or the court clerk. He has sought to provide no evidence from his clients.

It has been stated many times that where there has been a plea of guilty at the magistrates' court, an appeal against conviction will only be allowed in the most exceptional circumstances. Generally it will not be considered unless there is evidence that the plea may have been equivocal, that is to say evidence that it was, in reality, a plea of "guilty but...". If the Supreme Court finds the plea may have been equivocal, it will remit it to the magistrate for rehearing as a plea of not guilty and that should be the remedy sought. The appellate court will not in such circumstances simply quash the conviction and release the appellant.

Counsel should note that there must be evidence to support a claim of equivocation unless, as occasionally happens, it appears on the record of the court such as, for example, where the mitigation includes something which should have alerted the magistrate to the possibility the accused was not really admitting the offence. In all other circumstances the court will require evidence and, if counsel wishes to argue such an appeal, he will need to seek leave to produce such evidence and, of course, have the evidence ready for the court to see when considering the application to admit it.

Where, as here, there is challenge to the accuracy of the record, the magistrate and possibly the clerk who kept the record should be joined and allowed an opportunity to file evidence of their recollection of the hearing.

In the present case, there is nothing on the record to suggest the plea entered was anything but an unequivocal admission of guilt and so the appeal against conviction must be dismissed.

The sentence is challenged on the single ground that it was too severe. This Court will only interfere with a sentence passed in the lower court if it is wrong in law or principle or is manifestly excessive.

In passing sentence, the magistrate stated: 

"... it appears to me that the people of Ha'asini were disturbed by your hopi drinking and that's why they called the police. One thing is there are many places for you to go and drink but you chose to come and drink in the village at the government office of the Ministry of Agriculture. I will consider in my sentence your guilty plea and your lack of previous records, but I also take into account that you had no regard for the people and came and drank at a government office. I believe the sentence I will pass will be enough to make you stop drinking hopi and for the rest of Ha'asini to hear about it and stop them from doing anything like it again."

The accused were 17 and 27 respectively and, as was stated, had no previous convictions.

In such a case, as first offenders in an offence of this nature, an immediate sentence of imprisonment is wrong in principle and manifestly excessive. The magistrate appears to have considered the sentence would be a deterrent to others and therefore made an order with the aim to achieve such an effect. It is clear that, in some circumstances, the deterrent effect of a sentence may properly be considered when determining the appropriate level of punishment but, in this case, there was nothing before the court to suggest this was a particular problem in Ha'asini such that it required a severe sentence on these men. It was clear that these accused, whatever the state of hopi drinking may be in Ha'asini, had not been convicted before.

This was a case for a fine or some similar non-custodial sentence. The sentence of 3 months imprisonment is quashed. I understand the accused have spent 8 days in custody prior to being bailed pending this appeal. In view of that, I do not consider it appropriate to order a fine. The appellants have been punished adequately. I therefore substitute an order of conditional discharge for 12 months in each case.

Before leaving the case, I must mention one further matter raised by Mr Veikoso which causes me considerable concern. Counsel told the Court that there had been other people drinking with the appellants that night and they were all taken to the police station but these two appellants were the only ones charged and taken to court. The others, it was asserted, were given the option of working in the police officers 'api planting mulberry instead of being charged.

I have no evidence beyond the assertions of the appellants through their counsel but if it is true it reveals a very serious situation.

I direct that copy of this judgment be sent to the Police Commander with a request that he investigate the allegation and report his findings to the Court.