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Tamanika v R [2002] TongaLawRp 27; [2002] Tonga LR 174 (23 July 2002)

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

Cr 20/2000 and Cr 1/01

Tamanika

v

R

Burchett, Tompkins, and Beaumont JJ
15 July 2002; 23 July 2002

Criminal law – crime not in existence when offence committed - appeal allowed
Appeal – Trial judge's findings upheld

At about 10 in the morning of 28 September 1999 two men broke into the house of a Chinese family, the Wangs, who run a retail business. In the house at that time was the housegirl, Finau Tulikifanga, who went to investigate the noise. She was seized and taken to one of the rooms in the house at gunpoint. The men, armed, masked and wearing dark clothes, told her they did not want to hurt her but were looking for the safe they had heard the Wangs kept in the house. At about that time a van was driven up by Jeremy Wang, the adult son of the owner of the house. The two men lay in wait for him and seized him also. Both he and the housegirl were then bound with sticky tape and left in a small room in the house. The two men then turned their attention to the safe. They managed to move it towards the door when Jeremy Wang's mother, Lan Wang, also arrived. As she came to the house the masked and armed men confronted her. She was grabbed by the hair and pulled to the ground. When she struggled and called for help, she was beaten on the head by one of the men with the butt of his gun. She too was bound with tape. The two men put the safe into Jeremy Wang's van and drove away. Mrs Wang was able to free herself and summon help. She was then taken to the hospital for treatment to the injury to her head. The appellant was charged, together with Sosefi Langi Moala, with housebreaking, armed robbery and trespass, all on 28 September 1999. Moala pleaded guilty. The appellant claimed he was not present at the robbery and had had nothing to do with it. Following a trial before the Chief Justice, the appellant was found guilty of housebreaking and armed robbery and not guilty of trespass. He was sentenced to two years imprisonment on the count of housebreaking and to 10 years imprisonment on the count of armed robbery to be served concurrently. He appealed against the convictions and sentence.

Held: