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R v Ma'u [2025] TOSC 57; CR 7 of 2024 (8 July 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 7 to 9 of 2024

BETWEEN:
REX
-Prosecution

AND
[1] ‘IFALEMI MA’U
[2] SIUA MAFI KAVAFONO’ATU
[3] KALOLAINE KAVAEFIAFI

-Accused

JUDGEMENT

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mrs T Vainikolo for the Crown Prosecution
Mr T Aho for I Ma’u
Mr W C Edwards SC for S Kavafono’atu & K Kavaefiafi
Trial: 30 June 2025 – 7 July 2025
Date: 8 July 2025

1. THE CHARGES

1. On 21 February 2025, the Defendants were arraigned and pleaded Not Guilty to their following respective charges:

Kalolaine Kava’efiafi

1. Count 1: Receiving Stolen Property, contrary to section 148(1) of the Criminal Offences Act.
2. Count 2 to 4: Money Laundering, contrary to section 17(1)(a), (b)(i) of the Money Laundering and Proceeds of Crime Act.

‘Ifalemi Ma’u

100. Count 5: Receiving Stolen Property, contrary to section 148(1) of the Criminal Offences Act.

4. Count 6 to 10: Money Laundering, contrary to section 17(1)(a),(b)(i) of the Money Laundering and Proceeds of Crime Act.

Siua Mafi Kavafono’atu

1. Count 11: Receiving Stolen Property, contrary to section 148(1) of the Criminal Offences Act.
2. Count 12 to 14: Money Laundering, contrary to section 17(1)(a),(b)(i) of the Money Laundering and Proceeds of Crime Act.
   
   2. BACKGROUND

2. I will refer to the defendants with no disrespect as Kalolaine, Ma’u and Siua respectively.
3. Following the conclusion of the Prosecution’s case yesterday, both Counsels for the Defendants now submit that these defendants have no case to answer.
4. The test to be employed as whether a reasonable jury properly directed taking the Prosecution’s case at its highest could convict.^[1] I emphasise the words “taken at its highest” and “could.”
5. Kalolaine is charged with one count of receiving property believing it to have been obtained in circumstances which amount to a criminal offence and three counts of aiding and abetting Daniel Wilson to commit theft while having reasonable grounds to suspect and that the sums involved were directly so derived.
6. Ma’u is charged with one count of receiving and five counts of money laundering whilst Siua is charged with one count of receiving and three counts of money laundering both on the same basis: having received and having reasonable grounds to suspect that the sums in question aided and abetted Daniel Wilson in the commission of theft.
7. The crucial ingredient in all these charges is that these defendants were implicated in money laundering. If the money in question was not the product of criminal activity or did not amount to theft, then receiving such cannot be an offence.
8. Similarly, if the defendant in question dealt with the money, an offence would only be committed if such acts were contrary to section 148(1) Money Laundering and Proceeds of Crime Act.
9. It is not necessary in this ruling to set out the detail of the Prosecution’s case. The following is a short summary.
10. Mr. Edgar Cocker is a distinguished former civil servant and chief secretary to cabinet. He is now the CEO of Tonga Airport Limited. He has a bank account with ANZ which was in a healthy state and substantially in credit.
11. However, from the 6 June 2023 until the 20 June 2023 substantial sums of money were removed from his account and sent by these Defendants to third parties, the total amount was $244,500.
    100. DISCUSSION
12. This is what happened, someone calling himself Daniel Wilson claiming to be the Director of Human Resources Department for Lina Interiors sent an e-mail purporting to be from Lina Interior Company headed notepaper, to each of the defendants in broadly similar terms the material facts of which are as follows;^[2]

“I'm Daniel Wilson, Director of Human Resources at Lina Interiors Company London. Our company is looking for reliable, efficient and dedicated people in Tonga who will represent the company's interest and also carry out basic objections, as we have no branch there.

The work is flexible, and home based and can be done by anyone without interrupting their daily activities. All that the job entails are:

- Keep records of a payment made by our customers
- Performing bank transfers to the company
- Basic pay/plan benefits
- Basic salary starting from the first month $4500USD and there will be an increment of $5,500 USD after the 8th month of successful transaction and also note that every money transferred to your account attracts 5% to you and your lost time throughout your transaction.
- And other benefits in our company's Letter of Agreement.

If you are satisfied with the condition stated above and are willing to work with our company in this regard, please contact us with an e-mail response to (lina_interior66@hotmail.com or linainterior66@gmail.com)

Yours sincerely

Daniel Wilson.”

13. All the Defendants subsequently received Letters of Appointments purporting to be from Lina Interiors. Each of the defendants accepted this so-called offer and during the relevant time received sums of money which they were then instructed to send to various third parties.
14. In fact, the money they were sent was stolen, it did not and has never been the property of Lina Interiors nor was it ever been owned by them.
15. The money in question was that of Mr. Cocker which had been removed from his account following a “scam” what began with an email to him purporting to come from his bank ANZ customers account service on the following email address “anzcustomeraccountservice@bgfionline.com” with the following message;^[3]

“Dear Customer, your details entered are incorrect, we inform you that your ANZ account requires more verification in our new security system. understand that without a quick update of our information,

Your ANZ Internet banking will be interrupted or suspended in our new database on June 2023. Log into your account and be sure to check your account recent activity and beneficiaries.”

16. Mr. Cocker suspected a scam and forwarded the e-mail to his bank with a short message;^[4]

“Is this from you or a scam?

Please let me know. Maybe I SHOULD CALL LATER TODAY

Malo”

17. The reply was dated 5 June 2023, an equally short response;^[5]

“Morning Edgar – This is a scam do not respond and delete the e-mail. You can see the address is not an ANZ one.

Thanks for raising with us

Sulia/ Lani please escalate

Rgds Dave”

18. The problem was Mr. Coker had already clicked on the link and so inadvertently revealed his bank details which were used to remove large sums from his account then forwarded to the 3 defendants purportedly from Daniel Wilson with instructions to pay third parties overseas and in different countries including Turkey and the United States.
19. In behaving in this way, the prosecution alleged that each of the defendants was guilty inter alia of money laundering. The statute provides as follows;^[6]

“A person commits the offence of money laundering if the person-

acquires, possesses or uses property knowing or having reasonable grounds to believe or suspect that that it is derived directly or indirectly from the Commission of a serious offence.”

20. A serious offence is as;^[7]

“an offence which by the law of Tonga for which the maximum penalty is imprisonment or other deprivation of liberty for a period of not less than 12 months or more severe penalty.”

21. Money Laundering is such an offence, and so anyone who performs any of the prohibited Act with the relevant mens rea would be guilty of money laundering.
22. They would also be guilty of receiving if they believed the sum in question to have been obtained under circumstances which amounts to a criminal offence.
23. The prosecution allege in relation to the money laundering counts, that these defendants did not know or indeed believe that the money in question was derived directly or indirectly from money laundering. Their case is that each of them suspected on reasonable grounds that it was so derived.
24. As to receiving, the law is clear, belief not suspicion is required. It follows that if suspicion is not established there cannot be belief and so an acquittal on the money laundering counts would ipso facto result in an acquittal on the receiving counts.
25. So, the question for determination at this stage is taking the prosecution case at its highest are there grounds for concluding that a reasonable jury properly directed could convict these defendants of the offence under consideration: Galbraith.
26. If the Defendant in question did in fact suspect that the source was not an honest one, I move to consider the second ingredient in the statute namely “having a reasonable grounds to suspect.” This raises 2 issues, first was there suspicion and secondly did the Defendant concerned have reasonable grounds for doing so.
27. The jurisprudence on this matter is not entirely clear.
28. I now deal first with suspicion. It has been held by the English Court of Appeal that;

“a vague feeling of unease will not suffice. But the statute [The Terrorism Act 2000] does not require the suspicion to be clear or firmly grounded and targeted on specific facts or based on reasonable grounds. The courts have stated that using such words as inkling or fleeting thoughts is liable to mislead.”^[8]

29. One of the most famous statements on suspicion is that of Lord Devlin stating that;

“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: I suspect but I cannot prove suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie evidence is the end product.”^[9]

30. I gratefully adopt the commentary in Smith, Hogan & Ormerod’s Criminal Law^[10] which deals with the situation where the Defendant failed to form the suspicion despite addressing his mind to it.
31. The appropriate question is, it is submitted, is whether the Defendant has formed the suspicion and whether he holds that state of mind at the time at which he performs the act alleged to constitute the actus rea.
32. If the Defendant had been suspicious, but by the time of the act those suspicions had been allayed by the receipt of other information, this will mean that he lacked the necessary mens rea.
33. Here the question is, at the time they acted when the money was received and transferred did the Defendant whose case I am considering at that time have a suspicion that the transaction was fraudulent?
34. I adopt the test of the Privy Council in Holt v the Attorney General [2014] UKPC 4 that the test is a subjective one: actual suspicion is essential, it is not enough to show that the defendant ought to have suspected.
35. To answer that question it is necessary in the case of each defendant to consider whether the initial e-mail from the so-called Daniel Wilson did in fact cause the recipient to be suspicious.
36. It may be suggested in the case of the defendant Ma’u he must have suspected something was odd because he went on Lina’s website which to all intents and purposes seemed genuine so that any suspicion which he had might have been allayed by his investigation.
37. It seems that the other defendants simply took the e-mail from Daniel Wilson at face value and they did not therefore suspect that it was fake. It seems to me that their subsequent actions must have meant that that was their state of mind. Each of them conducted the transaction things under their own name in circumstances where their identity could be and indeed was easily traced and each of them have bank accounts which have been operating for many years.
38. These 3 defendants all have no previous convictions, they have no special knowledge of banking, they ought to be seen as ordinary members of the public with some accountancy experience because of their respective employments.
39. In my view taking the prosecution view at its highest all that could be concluded is that they were rather naive or gullible or perhaps even avaricious about the job offer and subsequent correspondence had all the appearances of emanating from a genuine entity the sums involved although generous were not extremely so to the extent that anyone would be suspicious that the sender was a fraudster.
40. They each used correct banking details from which their identity could easily be ascertained. It is true that on some occasions more than the 5% commission was deducted but that was equally consistent with the explanation of future payments from the $4500 initially offered as a monthly fee being taken into account.
41. I have therefore concluded that the prosecution has not established that a reasonable jury could so conclude that is to say that the Defendants suspected that the source of the funds was fraudulent.
42. Therefore, applying the criminal standard, I am not able to say that a reasonable jury could conclude that each of the defendants did have the requisite suspicion at the time they performed the act complained of.
43. However, if I am wrong about that I consider the next essential ingredient of this subsection namely did they suspect having reasonable grounds. This connotes both a subjective and objective component as Lord Hope concluded; a requirement that the Defendant had actual suspicion which is subjective and an objective part that there are reasonable grounds for that suspicion.^[11]
44. It has been suggested in other jurisprudence that the fault element was purely objective requiring proof only that the reasonable person would have formed the suspicion on the facts available irrespective of whether the individual defendant formed such suspicion himself. However Lord Hope makes plain that the test is a mixed one and I respectfully agree with the learned editors of Smith, Hogan & Ormerod’s Criminal Law,^[12] that there is a strong case for saying that as a matter of policy a person ought not to be criminally culpable for his failures to suspect even if, objectively viewed, there were grounds for suspecting.
45. In Lane v Lets [2008] UKSC 36, the Supreme Court took a different view and held that if a jury finds if there existed reasonable grounds for suspecting that the property would be used for a prohibited purpose then the offence is made out. But that was a case involving terrorism where a different statutory history.
46. I have decided to follow Saik and decide first whether the Defendant whose case I am considering did form the requisite suspicion and second whether such suspicions so far as he or she is concerned was on reasonable grounds.
47. What are the facts upon which the prosecution relies as establishing such reasonable grounds? They are set out in their supplementary opening submissions.
48. I deal with each seriatim.
    

Kalolaine Kavaefiafi

49. She is the administration and finance manager of Tonga community development trust.
50. She inquired how to send money abroad and was told the transfers will have to be registered with the bank. ‘Daniel Wilson’ suggested she find another way of remitting the money and suggested doing this via a third party who owned a business or doing so by bitcoin.
51. The defendant then got in touch with Rowena Financial Services an international money transfer entity and she was told that only $1000 could be transferred overseas for daily personal transfers but that there was no business limit for business transfers if accompanied by an invoice.
52. In response to this Daniel sent this Defendant a pro forma invoice. When it was not possible to transfer $10,000 via the international transfer, Kalolaine volunteered to meet with a friend who has a business that permits money transfers and ask her to transfer the sums in question even though Lina Interiors was not a registered business in Tonga.
53. Daniel informed the Defendant of a way of circumventing the $10,000 limit was to send a smaller amount in two tranches and this is what happened. Further payments by Daniel found their way into this defendant bank which she transferred as instructed but kept it as said more than the 5% commission.
54. A question that thus becomes, could a reasonable jury properly directed convict on this evidence. They will need to take into account the Defendant’s good character, the fact that she does not have any special knowledge of banking more than a person in her position would ordinarily possess, that on its face the initial appointment letter was not so extravagant as to be ridiculous.
55. On the other hand, the fact that Daniel was reluctant to register his business in Tonga and suggested bitcoin as a means of payment might make for hesitation. However, I have concluded not that this is one of this borderline cases and as the Lord Chief Justice of England and Wales observed in Galbraith, “this should be left to the discretion of the judge.”
56. I must now say a word about lies, part which is relied on by the crown in relation to all Defendants. The mere fact that a Defendant tells a lie is not in itself evidence of guilt. A Defendant may lie for many reasons and there may possibly be innocent ones in the sense that they do not denote guilt for example describing someone as a friend when there is no prior relationship. Lies can be made to bolster a true defense, to protect somebody else, to conceal some disgraceful conduct or out of panic distress or confusion.
57. The Prosecution say she lied when she misdescribed her relationship with Daniel Wilson as a friend, I am unimpressed with that suggestion, friend is a fairly nebulous description and is not infrequently a description in the drop down box which most closely resembles the relationship in question.
58. What it indicates, seems to me is that there is no familial or business relationship of being a partner or a fellow director or something of that kind, I do not think with respect that it takes the matter any further.
59. I conclude that a reasonable jury would not on this information convict this Defendant, no attempt had been made by her to conceal her identity. It may be that she was over trusting but not it seems to me complicit in a fraudulent scheme, which would lead to her exposure.

Ifalemi Ma’u

60. In the case of Ma’u, he was employed as a terminal manager for Pacific Energy, again a man in business but of no special knowledge of banking procedures. Evidence was given by Elizabeth Ollie in relation to a transaction which occurred on the 7 June 2023 when $9800 was sent to a third party. She concluded that none of the other transactions involving this defendant were in any way unusual, but attention is drawn to the purpose of the withdrawal of 7^th June transactions which was to pay bills. She recorded this in her own handwriting she elaborated and stated that that was to pay a loan at BSP bank this was denied in cross examination, but the witness was insistent that it had been said and although the words did not appear on any documents before me.
61. It was, she said, ‘in our system’ in a criminal trial I must act on the evidence adduced not what may have been adduced but was not. So that answer ‘to pay bills’ does not in my view suggest that there was something suspicious about what was happening and indeed that was its purpose because so far as this Defendant is concerned, he was paying a third party a sum which Daniel Wilson claimed was due from his company.
62. The remainder of the transactions involving this defendant were each accompanied by a pro forma invoice which describes the purpose of the various withdrawals as ‘ to pay bills, accessories for household accessories, Import of goods’ all of which were accompanied by pro forma invoices in his case again it is alleged that he and indeed it appears to be the case that he withdrew more than 5% of the entitled commission.
63. I also heard evidence about a meeting on the 21st of June between this Defendant and Sulia Toutai an employee of ANZ Bank in which there was a conversation about how monies came into his bank account and the defendant is said to have told her that they were the proceeds of a container which was exported to Hawaii in 2021 and that although that was not entirely clear what was being suggested is that this resulted in a payment being due and that the payments were to procure construction materials to be imported into Tonga, this evidence became very unclear and I was not sure that we were referring to events which happened in 2023 or 2021.
64. It seems to me therefore that I should not come to any adverse conclusion on as a result of that rather confused evidence. So in the one hand we have again a man of previous good character, not concealing his identity who was persuaded or lured into conducting a series of transactions to overseas persons in different names.
65. The only incriminating feature which might constitute good reason was the suggestion that he had said that the purpose of the withdrawals was to pay his loan at BSP but as I've indicated previously the evidential foundation for that assertion is not clear and I do not think in fairness I can conclude that a reasonable jury properly direct could convict.

Siua Kavafonoatu

66. I now turn to the Defendant Siua. The history of his transactions follow that of the others except that on the 15 June 2023 he attempted to send $9500 to Leon Richardson in the United States of America but this failed to go through. The purpose of the transfer appears to have been recorded as “USA son-in-law prov/gift bracket (wedding).”^[13] He was told to change the beneficiaries name to Nicola Triantafillou and this is what he did, and the money went through, the relationship being described as a friend.
67. In relation to the other transfers various explanations were made such as paying bills or payment for goods and some but not all of them being supported by pro forma invoices.
68. There was a meeting between Fa Finau, a BSP employee and this defendant on the 30 of June in which he was asked about the substantial amount of money he had received. This meeting is summarized as follows and I quote from paragraphs 47 and 48 of the supplementary opening statement:

“At this meeting Siua informed Fa that he had been approached by a company to establish a business in Tonga and the money he had received in his account was from the business for the purposes of establishing the business in Tonga. He also told Fa the funds he had sent overseas is for the company to purchase stock. Fa (the officer) then asked him why the funds were sent to his personal name rather than the company and in response this defendant said that he was asked to send the money to a personal account because that would make it easier for them to do the shopping rather than sending it to the business”

69. My conclusion is that although not strictly accurate, Daniel Wilson was in a sense seeking to establish a business in Tonga that this involved the transfer of money overseas for the purchase of stock and that the money should be sent to a personal account rather than a business because that would make it easier for the receiver to use.
70. Taking all these matters together I take the view that again without some hesitation, the grounds when viewed individually or, as they must when taken together does not amount to reasonable grounds for arousing such suspicion.
71. It follows that in the case of each of the defendants on the money laundering counts, I find there is no case to answer.
72. I now turn to the receiving counts. Knowledge is not alleged the crown rely on belief i.e that the defendant whose case I am considering at the time the transactions were made believed that they were not legitimately sourced.
73. Belief is something short of knowledge, it is the state of mind of a person who cannot be sure that a matter is certain or that circumstances exist but subjectively believes that it is so although he or she may not know it.
74. This means that even in those cases where a Defendant willfully shuts his eyes to the circumstances, that does not of itself and without more prove that he believed it.
75. It follows that if the defendant in question did not suspect that he or she was suspicious or if there were no unreasonable grounds to suspect then he or she cannot have believed that the source of the money was illegitimate.
76. Belief connotes a higher mens rea then suspicion and therefore if the Crown's case fails on the money laundering counts on the basis of suspicion a fortiori must fail on the receiving counts, and I therefore conclude that no jury properly directed could convict on those counts
77. It follows that in the case of each of the Defendants have no case to answer and are to be acquitted of all their respective charges.
78. This ruling is in no way critical of the prosecution or the police for bringing these matter before the Court. Money laundering is becoming a more prevalent financial crime, the chances of detection are sometimes not high, while the rewards can be great and very often as here, the ultimate culprit escapes because in the case of the alleged Daniel Wilson for example. Nobody knows where he lives or who he is and he has obtained to $244,500 dollars with very little effort.
79. My ruling should in no way deter the police from investigating, or the prosecution from prosecuting in a proper case of money laundering offences before the Court and I hope they will continue to do their duty in this regard.
80. Finally, I must say a word about the practices of ANZ, it seems to me that having been alerted on the 6th of June at 6:15AM, Mr Cocker wrote when the following message “is this from you or a scam please let me know maybe I should call later today.”^[14]
81. The reply of the 5th of June (no doubt the discrepancy in time is because of the time zones between Tonga and Louisiana; “This is a scam, do not respond and delete the e-mail you can see the address is not an ANZ on. Thanks for raising with us....”^[15]
82. But the problem was no further action appears to have been taken to freeze Mr. Cockers account I would have thought that with a valued customer with this substantial credit balance the bank would have taken immediate steps to freeze the account and then got in touch with Mr. Cocker to find out what was going on but they did neither, in fact they did nothing and as a result a substantial sum of money was removed from the account.
83. I hope the bank will consider their position so that Mr. Cocker does not bear further loss, they also ought to consider revising their scrutiny procedures to ensure that this does not happen again.
    4. FINAL RESULT
84. For the avoidance of doubt, based on the evidence now before me and applying the criminal standard of proof, I find that all three defendants namely, Kalolaine Kavaefiafi, Ifalemi Ma’u & Siua Kavafono’atu are not guilty of their respective charges and are hereby acquitted.
85. This is the ruling of the court.
    

HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE

NUKU’ALOFA
8 July 2025

^[1] Galbraith (1981) 73 Cr. App. R. 124 C.A.
^[2] See Court Book, p223.
^[3] See Court Book, p25
^[4] See Court Book, p24
^[5] Above n 4.
^[6] Section 48(1) of the Money laundering and Proceeds of Crime Act
^[7] Above n 6, section 2.
^[8] Shah v HSBC Private Bank (UK) Ltd [2010] EWCA Civ 31.
^[9] Hussien v Chong Fook Kam [1969] UKPC 26; [1970] AC 942 at 948;
^[10] Smith, Hogan & Ormerod's, 2021 16th Edition, page 121
^[11]Saik [2006] UKHL 18
^[12] Above n 10, page 122.
^[13] See Court Book, page 146
^[14] Above n 5.
^[15] Above n 14