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Police v Song Ning Wang [2024] TOSC 93; AM 4 of 2024 (6 December 2024)

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

AM 4/2024

POLICE
-v-

Song Ning WANG

Appeal from the Magistrates’ Court

BEFORE: THE HONOURABLE COOPER J
Counsel: Mr. Lutui for the Crown
Miss Aleamotu’a for Mr. Wang

ORDERS MADE BY : COOPER J

DATE OF ORDER : 6 DECEMBER 2024

RULING : Mr. Wang’s appeal is dismissed.

REASONS

1. Mr. Wang appeared before the Magistrates’ court where he faced 25 summons under the Price and wages Control Act. He pleaded guilty.
2. The allegation was that he charged in excess for items that are price controlled and so had inflated the cost of those goods.
3. This was obviously done just for profit.
4. The Learned Magistrate sentenced Mr. Wang to
   1. a fine of $2,000.00
   2. 3 months’ imprisonment, the last 2 suspended for two years.
5. The defence submit
   • The sentence was manifestly excessive
6. He was a first time offender. That this was a “purely property offence” that merited a non-custodial term. His guilty plea was not sufficiently taken into account.
7. If prison was appropriate, then the two weeks he has served is sufficient.
8. The Magistrate failed to take into account all the relevant factors or took into account irrelevant factors.
   • They contend that assumptions were made as to past dealings.
   • Further, they argue that this sentence was inconsistent with the sentences generally imposed for such offences.
9. They argue that in Police v Chen Hengquan CR 118/2023 a fine of $80.00 was imposed on that defendant.
10. The Crown oppose the appeal on all grounds.

Manifestly excessive

11. This was an offence where the extent of the deception on the public was hidden by the failure to keep records.
12. The items in question are ring-fenced with a maximum price, presumably as they represent basic household items.
13. The shop in question was in Ha’apai, a small community that does not have a wide range of shops, in fact quite the opposite, it has a very limited range. Therefore, these offences resonate in a much more serious way.
14. It appears the Learned Magistrate took the view that the public needed to be protected from this type of ‘price-gouging’ especially a small community dependent on a very limited array of retail establishments. He was perfectly within his rights to form such a view.
15. It stands to reason that Mr. Wang had been doing this over a length of time; it plainly had not taken place that same day he was caught.
16. By the fact that so many goods were overpriced, it quite clearly was a concerted effort to commit a fraud on the public.
17. It is axiomatic that it was just to profit Mr. Wang.
18. It might be thought by some this was a severe sentence, imposing a custodial term.
19. The aggravating features were
    1. Systematic and extensive inflation of prices
    2. Pre-planning
    3. Price-gouging in a small community dependant on few shops
    4. Failure to keep records
20. Therefore, it appears to me the Learned Magistrate was entitled to view this offending as requiring both punishment and denunciation. He plainly also had in mind all the mitigating factors too.
21. There is a difference between a sentence that is ‘severe’ (if that is what it was) and one that is ‘manifestly excessive’; as per Trowland and Decker [2023] EWCA Crim 919.
22. A sentence that is severe does not necessarily make it manifestly excessive.
23. I also note the majority of the custodial term was suspended.

Improper considerations taken into account

24. It is argued the Learned Magistrate made comments suggestive that there was a history to this conduct and took that into account when sentencing.
25. There surely was a history to it. This offending had not happened that same day. Both by its type and the extent and the fact of the lack of record keeping, it had plainly been going on for some time. What the Learned Magistrate did not say, but would have been entitled to, was the fact of the lack of record keeping indicated that Mr. Wang’s plan to inflate the cost of these goods was one that he intended to purse into the future.
26. It was a dishonest scheme past, present and future.

Inconsistent with cases of this type

27. It is submitted the sentence was inconsistent with other decisions.
28. All sentences turn on their facts. One case has been quoted by the defence (Police v Chen Hengquan CR 118/2023) and no factual background to it is particularised.
29. That is a first instance decision and there is no reason a subsequent court should be bound by it.
30. There is insufficient detail to that submission so as to believe there was something about the Hengquan case that meant a non-custodial term had to follow in the instant case.
31. How many summons were there in Henequen? Where did it take place? Were records not kept? It is a submission that fails to marshal fact or law to persuade me of the short point.

Sentence exceeded the Court’s powers

32. As Mr. Lutui adds, the Magistrates’ court has the authority to impose the sentence it did.
33. I add to that, Learned Magistrates work within communities and are encouraged to use their local knowledge. They are best placed to assess justice against any behaviour that criminally destabilises their communities, in this case the proper, honest functioning of commerce.

Conclusion

34. Accordingly, I reject the defence submissions.
35. The sentence of the Learned Magistrate is upheld.
36. Mr. Wang’s appeal is dismissed; he will also have to pay the costs.
    

COOPER J
SUPEME COURT

6 DECEMBER 2024
NUKU’ALOFA