‘Isapela Saiatua Tu’akoi faces four forgery charges, while the Supreme Court in Nuku’alofa dismissed four other counts of making a false declaration for obtaining a Tongan passport. The defendant allegedly signed forms to obtain passports for several applicants, including Shiwei Hu in October 2012.
On 13 March, Lord Chief Justice Malcolm Bishop refused to strike out the forgery charges under section 170 of the Criminal Offences Act.
It was argued that the forgery charges (counts five to eight) should be dismissed because they rely on invalid legislation that was not in effect
Forgery remains
Lord Chief Justice Bishop stated that for counts alleging forgery, the defendant on 10 October 2012 made a false statement with the intention to deceive the immigration division of the Ministry of Foreign Affairs, when she signed Tongan passport application forms in the name of several applicants. It alleges that she made this document with the intention that it be acted upon by the Immigration Division of the Ministry of Foreign Affairs as genuine.
“In other words, the defendant created a document, which told a lie about itself. Whether the evidence proves this to the criminal standard is not for decision now but must abide by the outcome of that investigation. The challenge to the indictment is a challenge to its form only at this stage.”
The judge stated that the allegation referenced a relevant statute and assessed whether the elements constituted an offence. He asserted that the clause is legally valid and that "the fact that the document itself was produced under non-existent regulations does not impact the fundamental nature of the allegation, which is a dishonest intention to deceive the relevant ministry by providing false statements material to the matter under consideration."
“It therefore follows that in this indictment, …the forgery offences in counts five to eight remain,” the Lord Chief Justice Bishop ordered.
False declaration struck out
The defendant also faced four counts (1-4) of making a false declaration for the purpose of obtaining a passport contrary to section 21 (1)(a) of the Passport Act.
On 10 October 2012, an application form for a passport for Shiwei Hu was signed. This is count one of the indictment while counts two to four alleged similar declarations in identical forms for other applicants.
The Lord Chief Justice dismissed the false declaration charges as the regulations were not in force, which the Prosecution also conceded.
Passport Act
The Lord Chief Justice stated that on 3 November 1964 the original Passport Act was brought into force, and on 21 November 2003 the Passport (Amendment) Act 2003 received royal ascent. Then on 16 January 2004, the passport regulations were brought into force, following the consent of the Minister and the Privy Council.
“The Passport Amendment Act 2003, which brought into force the regulations, came into force on 1 July 2014. The determinative question therefore was: can a defendant be convicted of an offence contrary to the regulations which have not been brought into force?” he stated.
"To put the matter beyond the doubt, clause 20 of the Constitution of the Kingdom of Tonga prohibits retrospectivity, “it shall not be lawful to enact any retrospective laws in so far as they may entail or take away or affect the rights of privileges existing at the time of the passing of such laws.” “I have not been told the date on which the matter was Gazetted but I take it to be no earlier than the date on which the minister made the regulations in other words not before the 16 January 2004, which in my view means that the form did not in law exist until the Passport(Amendment) Act 2003 came into force and accordingly the defendant cannot be convicted of charges contrary to its provisions."
“The prosecution now concedes that counts one to four cannot stand. They are accordingly struck out,” he stated.
