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

Cr App 29/2001

Mataele

v

Police

Ford J
14, 18 February and 5 March 2003; 13 March 2003

Criminal procedure – duplicity of charges – summons was bad for duplicity Appeal against sentence – concurrent sentences total more than maximum penalty – miscalculation

The appellant was convicted in the Magistrates' Court on one charge of keeping and managing a brothel contrary to section 80(1) of the Criminal Offences Act (Cap 18) and one charge of letting part of his premises with the knowledge that it was to be used as a brothel, contrary to section 80(2). He was sentenced to 18 months imprisonment. He appealed against both conviction and sentence.

Held:

1. There was merit in the appellant's first ground of appeal and the court found the summons was bad for duplicity. To try and argue that the words "keep and manage" created only the one offence was to ignore the plain and literal meaning of section 80(1) which created four separate offences. The appellant was effectively convicted of an offence which was not one of the offences created by section 80(1) of the Criminal Offences Act. Subject to the final order made, the accused's conviction under summons 295/01 was quashed.

2. The second and third grounds of the appeal, that the magistrate failed to use the correct definitions of "prostitution" and "brothel", were not proved by the appellant. It was counsel's responsibility to go through the transcript to the extent necessary to identify the precise passages upon which he relied. The transcript was lengthy and it was not up to the court on appeal to wade its way through a mass of evidence and carry out counsel's job for him. Both these grounds of appeal were, therefore, rejected.

3. The maximum penalty for each offence was 12 months and the magistrate ordered concurrent terms. The magistrate made an error in imposing the sentence of 18 months and the appellant succeeded also on this ground of appeal. The sentence ordered by the learned magistrate under both summonses was quashed. 

4. The appellant did not claim to have been embarrassed or prejudiced by the duplicity and he vigorously defended the charges as they stood. In these circumstances the justice of the case could best be met if the following orders were made. Summons: 295/01: the appeal against both conviction and sentence was allowed and the case was remitted back to the learned magistrate; the prosecutor was invited to make an election as to the charge he wished to proceed under and the summons was to be amended accordingly; both counsel were to be given an opportunity to address the court before the magistrate indicated his verdict on the amended charge; and depending upon the verdict, sentencing would follow. Summons: 296/01: tThe appeal against conviction was dismissed but the appeal against sentence was upheld; the case was remitted back to the Magistrates' Court for re-sentencing; before imposing sentence, the Magistrate was to hear afresh submissions on penalty.

Cases considered:
Johnson v Needham [1909] 1 KB 626
R v Barrie [1978] 2 NZLR 78 (CA)

Statutes considered:
Criminal Offences Act (Cap 18)
Cruelty to Animals Act 1849 (UK)
Evidence Act (Cap 15)
Sexual Offences Act 1956 (UK)

Counsel for appellant: Mr Tu'utafaiva
Counsel for respondent: Mr Kefu

Judgment

The appellant was convicted in the Magistrates' Court on one charge of keeping and managing a brothel contrary to section 80(1) of the Criminal Offences Act (Cap 18) (summons 295/01) and one charge of letting part of his premises with the knowledge that it was to be used as a brothel, contrary to section 80(2) of the same Act (summons 296/01). He was sentenced to 18 months imprisonment. He now appeals to this Court against both conviction and sentence.

There are six grounds of appeal. Only three grounds were set out in the Notice of Appeal but the Crown takes no issue over that. I will, first, deal with the added grounds. The appellant claims that summons 295/01, which relates to the charge of keeping and managing a brothel is bad for duplicity. The summons alleges that between the months of January and July 2001 at Kolofo'ou, the appellant "did keep and manage a brothel contrary to sections 80(1) and (7) of the Criminal Offences Act, when you kept and managed the brothel known as 'Apele Koula (Golden Apple). Section 80 (1) provides that:

"It is an offence for a person to keep a brothel, or to manage, or act or assist in the management of, a brothel." 

Mr Tu'utafaiva submitted that the section creates four different offences, namely, keeping a brothel, managing a brothel, acting in the management of a brothel and assisting in the management of a brothel. He contended that as the summons alleges that the accused kept and managed a brothel, it is bad for duplicity.

Section 15 of the Magistrates' Courts Act (Cap 11) requires a summons to be for one offence only.

Crown counsel referred to some helpful authorities and made three main submissions in response. First, he argued that, "although on the face of section 80 (1) there may be four different offences, they are all similar and have the same elements of one offence. The overall offence which Parliament intended to suppress is the operating of a brothel."

Whilst the term "operating a brothel" may well be a reasonably accurate generic description of the operative verb combination referred to in the section, it is not open to the court to bundle up a series of offences in the way suggested and substitute some other all embracing offence.

Mr Kefu's alternative response was that, if the summons was for two offences, then they should be allowed to stand because no unfairness or uncertainty resulted. Counsel submitted that the appellant knew that he was being charged with both keeping and managing a brothel and, not only was no objection taken at trial to the form of the summons, but the appellant defended both charges. Whilst these observations may well be correct, I do not see the submission as an answer to the allegation that the summons fails to comply with section 15 of the Magistrates' Courts Act which requires a summons to be for one offence only.

Mr Kefu's final submission under this head was that a summons cannot be challenged for any defect in form and if a defendant turns up in court to answer a summons then any defects in form are automatically cured unless he appears specifically to challenge the form of the summons. Crown counsel relied upon the following extract from Halsbury, 4th edition, vol 29, para 322:

"... No objection is allowed to any summons for any defect in substance or form. Any irregularity in the form or service of the summons, or form of execution of the warrant, is cured by the appearance of the party summoned or arrested, but this does not apply in the case of a defendant who appears purely for the purpose of taking objection to any irregularity."

The passage cited refers to section 100 (1) of the Magistrates' Courts Act 1952 (UK) which has now been repealed but the provision has been re-enacted in section 123 (1) of the Magistrates' Courts Act 1980 which reads:

"(1) No objection shall be allowed to any information or complaint, or to any summons or warrant to procure the presence of the defendant, for any defect in it in substance or in form ..."

Crown counsel acknowledges that there is no similar provision in the Tongan Magistrates' Courts Act. In any event, the note to section 123 in Halsbury's Statutes vol 27 (at 277) states: 

"The words of sub-s (1) above should not be read literally as meaning that there can be no attack on an information however fundamental the defect. It depends in every case whether, for instance, the variance between it and the evidence is such as to require an amendment; where there may be grave injustice to an accused unless the information is amended, then an amendment is called for ... This section does not entitle the court to hear an information which, contrary to the rules, charges more than one offence at the same time. In such a case, if the prosecutor refuses to elect on which charge he wishes to proceed, so that the justices may amend the summons, the summons should be dismissed."

(Emphasis added)

Because of the different statutory provisions and the express acknowledgement in Halsbury's Statutes that the section does not apply when there is a duplicity of charges, I do not see how the passage from Halsbury relied upon by the Crown can be an answer to the appellant's attack on summons 295/01. However, the two extracts quoted above are of interest in that, quite apart from the reference to the English statutory provision, they set out the approach which the Courts in the Kingdom should apply generally to defects in summonses and they highlight the need for the court, when considering an application for amendment of a summons, to focus upon whether there has been any injustice to the accused.

It appears to me that there is merit in the appellant's first ground of appeal and I find that the summons is indeed bad for duplicity. To try and argue that the words "keep and manage" create only the one offence is to ignore the plain and literal meaning of section 80(1) which creates four separate offences.

A similar situation was considered by the English Court of Appeal in Johnson v Needham [1909] 1 KB 626. The Cruelty to Animals Act 1849 enacted that, "if any person shall ... cruelly beat, ill treat, over-drive, abuse, or torture ... any animal" he shall be liable to a penalty. The information charged that the appellant did "cruelly ill-treat, abuse, and torture a certain animal, to wit, a grey gelding."
(Emphasis added)

It had been contended by Patrick Hastings on behalf of the appellant that the information was in order because the words highlighted created only one offence. Delivering the judgment of the court, Lord Alverstone C.J. said:

"It is impossible to come to that conclusion. In my opinion it was not the intention of the Legislature that the words "abuse, or torture" should be coupled with the word "ill-treat" so as to create only one offence. The intention was that it shall be an offence either cruelly to ill-treat or to abuse or to torture an animal. It would be contrary to the principles of our criminal law to say that a conviction for "ill-treating, abusing and torturing" would be good on the ground that it is for one offence."

Similarly, in the present case I cannot accept that a conviction for the one offence of "keeping and managing a brothel" can be allowed to stand. There is no such offence created under section 80(1). The different modes of offence created under section 80(1) are, as counsel for the accused rightfully submitted, either to keep a brothel or to manage a brothel or to act in the management of a brothel or assist in the management of a brothel.

The distinction between keeping and managing a brothel was noted by the New Zealand Court of Appeal in R v Barrie [1978] 2 NZLR 78 where Cooke J., commenting on the New Zealand equivalent of section 80(1), said (at 81):

"In short, control or a share of control over the brothel is essential to constitute a person a keeper. Similarly a person does not "manage" the brothel unless he or she takes part in its control. The shade of difference between keeping and managing is that the former term is more apt for the owner of the business and the latter for a delegate conducting it for him." Cooke J. also noted (at 82 line 14) that the proprietor of a brothel should be charged as a keeper rather than as "a mere manager".

I find additional support for the conclusion I have reached regarding section 80(1) in the commentary in Blackstone's Criminal Practice [1993] on section 33 of the English Sexual Offences Act 1956 which is in identical terms to section 80(1). The learned authors of Blackstone state (B3.99):

"One mode of commission of the offence under the Sexual Offences Act 1956, s.33 is to keep a brothel ... Other modes of commission of the offence under s.33, are to manage, or to act or assist in the management of, a brothel."

For the above reasons, I uphold the first ground of appeal, modified to embrace the notion that, apart from the duplicity in the summons, the appellant has effectively been convicted of an offence which is not one of the offences created by section 80(1) of the Criminal Offences Act. Subject to the final order I propose making, the accused's conviction under summons 295/01 is quashed.

The second ground of appeal is that the magistrate erred in law in failing to give proper consideration to the definition of prostitution. It is alleged that the magistrate held that prostitution means "intercourse for payment" and "as such, he must have applied the facts, as he found them, improperly and resulting (sic) in an unsafe conviction ..."

If an appellant alleges that the magistrate incorrectly applied the law to the facts then he must on appeal be able to pinpoint the passage in the judgment where he says that the magistrate went wrong. It is not sufficient simply to allege that the magistrate "must have" made an error. The appellant has to be able to identify that error with precision. 

Similarly, in the third ground of appeal the appellant submits that the magistrate failed to consider properly the definition of "brothel" before applying it to the facts as he found them to be. But nowhere in his submissions does the appellant attempt to identify precisely where the magistrate allegedly applied the term wrongly to the facts.

Towards the end of his submission under this head of appeal, counsel states: 

"Counsel does not intend to go through the facts as found by the learned magistrate and as appearing in the transcript of evidence. However, it is submitted that close consideration of those facts and/or evidence before the court below (sic) the prosecution has failed to prove the ingredients of the offences alleged against the appellant."

That is a lazy approach to an appeal. As I have already indicated, it is counsel's responsibility, if he decides to proceed with a particular ground of appeal, to go through the transcript to the extent necessary to identify the precise passages upon which he relies. The transcript in the present case is lengthy. It is not up to the court on appeal to wade its way through a mass of evidence and carry out counsel's job for him. 

Both these grounds of appeal are, therefore, rejected.

The appellant next alleges that the magistrate erred in law in holding that the witnesses Lupe Te'ekiu, 'Aimeo 'Otuafi and 'Ilaisaane Malupo were not accomplices. The magistrate held that these three young woman were carrying on prostitution at the 'Apele Koula. At the time of the court hearing they were aged 20, 12 and 16 respectively. The magistrate ruled that the woman were not accomplices to the charge of keeping a brothel or letting premises for use as a brothel.

Counsel for the appellant submits that, as the three witnesses were tenants at 'Apele Koula committing prostitution on the premises, then they were accomplices and, as such, section 126 of the Evidence Act (Cap 15) requires their testimony to be corroborated in some material respect by other evidence.

No authority was cited in support of this ground of appeal but whether or not a witness is an accomplice is always a question of fact and it is only in exceptional circumstances that this Court on appeal will interfere with a magistrate's finding on the facts.

In the Barrie case, Cooke J. held that a prostitute who merely works in the establishment and is not part of the management cannot be labelled a keeper. No evidence has been referred to by counsel in the present case which might indicate that the young women in question had any involvement in the management of the establishment and I do not accept, therefore, that they were accomplices.

The final ground of appeal in relation to conviction is expressed in these terms:

"There are grounds upon which it could be said that the evidence of (the three named prostitutes) are (sic) not reliable."

The grounds relied upon are that Te'ekiu and 'Otuefi were declared hostile witnesses and the witness Malupo had been assaulted by the police and had a fractured shoulder at the time she made her statement to the police.

It is clear from the transcript that the magistrate was fully aware of these matters and he was, therefore, ideally placed to form a judgment on the credibility of the witnesses. This ground of appeal also fails.

Of more merit, is the appeal against the sentence. Section 80(7) of the Criminal Offences Act provides that the penalty for an offence under that section is a fine not exceeding $500 or imprisonment for any period not exceeding one year. Counsel for the accused submits: 

"... The magistrate's remarks on sentencing do not give a clear reason for his decision to impose a sentence of imprisonment of 18 months. Furthermore, it is not clear what sentence was imposed for each charge separately ... Furthermore, the 18 months imprisonment exceeds the maximum imprisonment of one year that may be imposed under the section."

In response, Crown counsel made the following submission:

"The appellant at the time (of sentencing) was under a suspended sentence of 18 months imprisonment for bodily harm, suspended for 18 months, under Criminal Case No 569/99. This conviction was imposed on 2 May 2000 and ended on to November 2001. The accused was convicted on 5 October 2001.

The prosecution presented the learned magistrate with the previous conviction of the appellant and, it is obvious that the learned magistrate exercised his discretion to issue an imprisonment sentence and also activated the suspended sentence. The respondent therefore respectfully submits that the appellant's appeal against the sentence be dismissed."

Upon sentencing, the magistrate made the following remarks (as translated):

"I have considered the previous record brought forward by the prosecutor and the submission by the defendant's counsel. Take notice that penalty for both summonses is imposed concurrently because both summonses flow from the same incident. They are 295/01 and 296/01: 18 months imprisonment."

Although the magistrate refers to the accused's "previous record", it is not at all clear from his remarks that he directed his mind to the suspended sentence. The passage quoted is simply silent in this regard. The magistrate should first have sentenced the appellant in respect of the two charges in question and then addressed the issue of the suspended sentence.

Counsel for the appellant is quite correct in stating that it is not clear what sentence was imposed for each charge. Moreover, if the penalty for each charge is concurrent then it is impossible to finish up with a sentence of 18 months imprisonment. The maximum term of imprisonment for each charge is 12 months. If the maximum sentence of 12 months was intended to be imposed in respect of each charge and the sentence was ordered to be "concurrent" (as it was), the result would be that the sentence imposed would be 12 months imprisonment. It cannot be for any longer term. It would have been different had the magistrate ordered "consecutive" sentences but he did not do that and, in any event, where the offences arise out of the same incident or event then the sentences should be concurrent. 

I can only conclude, therefore, that the magistrate has made an error in imposing the sentence which he did and the appellant succeeds also on this ground of appeal. The sentence ordered by the learned magistrate under both summonses is, accordingly, quashed.

I have given anxious consideration as to how I should now deal with the matter given my conclusions that the appellant has succeeded on both his duplicity ground of appeal and in his appeal against sentence. I have wide powers on the hearing of an appeal to act as the justice of the case may require.

I find it significant that the duplicity in the summons was not challenged at any stage by the appellant in the hearing before the magistrate. In fact, it was not even included in the grounds of appeal filed later in this court. It appears to have been very much an afterthought which, I suspect was picked up by the appellant's present counsel (who was not counsel at the hearing before the magistrate). It is clear from the English authority which I have referred to earlier in this judgment, Johnson v Needham, that objection could have been taken to the summons at any time, even after the hearing of all the evidence, and at that stage the prosecutor should have been asked to specify the offence which he alleged the evidence then supported. That step was not taken, however, presumably because the point was not picked up by anyone.

The appellant does not claim to have been embarrassed or prejudiced by the duplicity and he vigorously defended the charges as they stood.

In these circumstances, I consider that the justice of the case can best be met if I now make the following orders (which I do):

Summons: 295/01

1. The appeal against both conviction and sentence is allowed and the case is remitted back to the learned magistrate.

2. The Prosecutor is to be invited to make an election as to the charge he wishes to proceed under and the summons is to be amended accordingly.

3. Both counsel are to be given an opportunity to address the court before the magistrate indicates his verdict on the amended charge.

4. Depending upon the verdict, sentencing will follow.

Summons: 296/01

1. The appeal against conviction is dismissed but the appeal against sentence is upheld.

2. The case is remitted back to the Magistrates' Court for re-sentencing. 

3. Before imposing sentence, the Magistrate is to hear afresh submissions on penalty.