Lord Tu’ivakano was sentenced today to two-years imprisonment, which was fully suspended, for charges relating to the issuance of Tongan passports to Chinese nationals. He was also fined $4,000 for possession of a firearm and ammunition without a license.

The defendant is Tonga’s former Prime Minister and Minister for Foreign Affairs and a former Speaker of the Legislative Assembly, and a current member of the Legislative Assembly.

On March 9, a jury found him guilty on three counts of making a false statement for the purpose of obtaining a passport (count 7), perjury (count 8) and possession of 212 pieces ammunition without a license (count 9). 

On a fourth count 10, possession of a .22 rifle without a license, he changed his plea to guilty during the course of his evidence.

 In sentencing, the Chief Justice also took into consideration the potential ramifications of s.37 of the Land Act, clause 23 of the Constitution and s.386 of the Companies Act. In Tonga, s.37 of the Land Act provides that an estate holder who is convicted of a criminal offence and sentenced to imprisonment for more than two years, ceases to hold his title and his hereditary estates. Similarly, the Constitution Clause 23 provides that a such a person shall not hold government office or vote or be elected to parliament.

The prosecution had submitted a starting point of four years imprisonment and that the potential ramifications for the defendant, particularly of a sentence greater than two years, should not influence sentences.

However, the Lord Chief Justices stated “I consider these matters not as any basis for unequal treatment, but as relevant considerations in ensuring that the impact of the overall sentences to be imposed is not disproportionate to the offending for which the defendant is to be sentenced.”

The hereditary noble will keep his title, estates and parliamentary seat, because the term of imprisonment does not exceed two years.

Background

The trial began on 10 February 2020, with counsel Mr J. Lutui for the prosecution and Mr W.C. Edwards Snr. SC for the defendant.

The particulars of the false statement charge were that on or about 17 July 2015, at Nuku'alofa, with the purpose of obtaining a passport for Hua Guo and Xing Liu, and with intent to deceive the Immigration Division of the Ministry of Foreign Affairs, the Defendant wrote a letter to the Immigration Division of the Ministry of Foreign Affairs, stating that Hua Guo and Xing Liu were naturalised as Tongans on 29 October 2014, and that he had reasonable cause to believe that statement was misleading. Exhibits at the trial revealed that the persons naturalised that day were Singkei Lou and Shanoi Kam. Ultimately, the Defendant accepted that the names recorded in the first sentence of his letter were incorrect. The genders of the respective titles were also incorrect.

The particulars of perjury charge were that, on or about 21 December 2015, in Nuku'alofa, the Defendant made an oath in an affidavit a material statement to his knowledge, when he stated that "Mr Hua Guo and Ms Xing Liu were naturalised during my tenure as the Minister of Foreign Affairs of the Ministry" and "after naturalisation Tongan passports were then issued to these two", and he knew those statements were false.

Sentence

Lord Chief Justice Whitten in his sentencing, imposed on the defendant two-years imprisonment for making a false statement for the purpose of obtaining a passport.

On perjury, he was sentenced to two-years imprisonment. He ordered this is to be served concurrently, meaning two-years imprisonment in total based on conditions that he does not commit any offence punishable by imprisonment, is placed on probation, and must perform 100 hours of community service directed by his probation officer. 

On possession of an unlicensed .22 rifle and ammunition, Lord Tu'ivakano was fined $4,000 pa’anga ($2,000 pa’anga on each count). This is to be paid within three-months or in default he will serve two-months imprisonment. 

Mitigation

The Chief Justice said the defendant maintained his not guilty pleas on the three counts (7, 8, 9).

During oral submissions Mr Lutui for the Crown submitted that there was a lack of contrition reflected in the Defendant and his supporters when they questioned the evidence upon which the jury based its verdicts.

“I am ambivalent about whether the Defendant has shown remorse given the manner in which he has reportedly viewed the jury's verdict,” said the Chief Justice.

However, he took into account circumstances in mitigation, in that the defendant had no previous criminal convictions, and that he is 68-years-old.

“The defendant has a long and illustrious record of service to Tonga at the highest levels including positions of Speaker of the Legislative Assembly, Minister of Foreign Affairs and Prime Minister; he is reported to have led an exemplary life as a noble and a family man and is highly regarded by significant sections of society for his leadership, generosity and support to various causes including within his church and those residing in his estates;

“In addition, he has suffered stress, ignominy and opprobrium associated with being charged with the bribery and money laundering offences which, at a late stage in the trial, the Crown elected not to pursue; and he suffers from a range of significant, but presently not acute, medical conditions, the most serious of which appears to be his coronary condition.”

The Chief Justice referred to a case, Rex v Mafi [2014] TOSC 13; CR 32 of 2013 (11 June 2014), where the trial judge Justice Cato accepted [7] that old age and ill health can be mitigating factors for a court to consider.

Land Act

The Chief Justice also took into consideration the potential ramifications of s.37 of the Land Act, clause 23 of the Constitution and also s.386 of the Companies Act by which the defendant may be barred from being a director or otherwise being involved in the management of a company for a period of five years post-conviction.

In consequence of all those matters, the Chief Justice reduced the head sentence of making a false statement to obtain a passport, which was three-years, by one-year. 

That resulted in an effective sentence of two-years imprisonment on each of counts 7 and 8, to be served concurrently.

He said, as discussed with counsel during oral submissions, consideration was given to imposing a fine on count 7 as well as the term of imprisonment, which is provided by the words in the section or both. 

“Counsel were not aware of any previous comparable decision in which both had been imposed. In Seluini v Rex [201O] TOCA 4, on a conviction for perury, Justice Shuster sentenced the offender there to 30-months in prison, suspended for 3-years and fined him $10,000.”

“However, in the absence of any guiding authority on the circumstances in which the imposition of a term of imprisonment and a fine may be appropriate, I do not consider this case a suitable one for such a sentence,” Lord Chief Justice Whitten said.

Financial element not pursued

“Without being required, or wishing, to lay down any rigid principle on the topic, I incline to the view that at least one circumstance in which such a course may be appropriate is where there is some commercial or financial element to the dishonest offending which would warrant the superadded penalty of a fine in response. 

With the Crown's decision here not to pursue the bribery and money laundering charges, any potential for that element on counts 7 and 8 disappeared, said the Chief Justice.

Suspension

“On the issue of suspending all or part of the sentence, the court is obliged to have regard to the interests of the defendant and the interests of the wider community in his rehabilitation: Rex v Tau'alupe [2018] TOCA 3 at [15]; where the offender is young, has a previous good record, or has had where the offender is likely to take the opportunity offered by the sentence to rehabilitate him or herself.

“This includes where despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, the presence of provocation, or coercion by a co­ offender and a long period free of criminal activity.

The defendant has been free of criminal activity all his life. 

“In my view, he is well and truly capable of responding to the deterrent and rehabilitating himself. Despite the gravity of the dishonesty offences, there is some diminution of culpability in the lack of premeditation and the extent to which he actually read the two documents the subject of those counts. While, the latter cannot be considered as exculpatory, it does bear on the level of culpability.”

The Chief Justice accepted the Crown's submissions that offending against the passports regime should generally carry some period of actual custody and that, in relation to perjury, a non­-custodial sentence will only be appropriate where there are significant mitigating factors.

However, he considered that the circumstances of this case, namely, the comparatively low level of offending, the absence of any illegitimate passport having been issued, the defendant's previous long and exceptional record of service to the community and his medical conditions, warrant suspension of the two-year prison sentence in fullbut subject to conditions.

Dishonesty offences

The Chief Justice said, the defense counsel Mr W. C. Edwards Snr. SC, submitted that, in his view, of the objects of punishment, deterrence and rehabilitation had not been reflected in some sentences of this court.

“While, I cannot agree with Mr Edwards' unspecified purported criticisms, lest there be any doubt, I hereby stipulate that my approach to the sentence in the instant case is to give effect to and balance the recognised rationale for sentencing including the punishment of offenders, the reduction of crime (including by deterrence), the reform and rehabilitation of offenders, the protection of the public, and (although not directly relevant here) the making of reparation by offenders to persons affected  by their offences,” said Lord Chief Justice Whitten.

Further, he “adhered to the principle of parsimony or frugality in punishment, that is in all cases, the lowest sufficient punishment should be chosen.”

“While it is certainly true that the severity of the penalty for an offence involving dishonesty will almost always be directly proportional to the amount of harm, damage, injury or loss occasioned by the dishonest conduct, the dishonest conduct itself will often be scrutinised for some offences to determine the level of culpability attaching to the offender, and hence the extent to which the dishonesty aggravates at sentence: e.g. R v Einfeld [2009] NSWSC  119 at[75].

Jury's verdicts

“At this point, it is also important to emphasise that, contrary to the effect of a number of Mr Edwards’ submissions, this Court must give effect to the jury's verdicts,” said the Chief Justice.

“While I accept, generally, the Crown's submission that the offending in count 7 potentially impugned the very integrity of the passport regime, which is fundamental to the administration of Tongan passports to be used as evidence of identity and nationality of Tongan subjects travelling internationally and potentially undermined the capacity of Government to administer passports and the Passport Act, I do not consider the offending here to be as serious as that considered by Cato J in Kaumavae, even that of the defendant there, Ms Tameifuna.

"Here, there was no evidence of any plan or illegal enterprise to bring about the issuing of illegitimate passports. In fact, due to the diligence of the Immigration Department personnel, who realised that the same Chinese couple was applying for passports under different names, the defendant's letter was not effective in manifesting or contributing to the manifestation of any illegitimate passports."

Furthermore, the Chief Jusice said in the present case, the contradicted evidence was that the Chinese nationals were presented to the defendant by Andre Manu seeking assistance on their passport applications, which had to that point been unsuccessful.

The defendant enlisted his staff to undertake checks and draft the relevant letter, which, on the same day, he then signed in his then capacity as Speaker of the Legislative Assembly.

“Having regard to those distinctions, the statutorily prescribed maximum penalty of, inter alia, ten years imprisonment and the comparative sentence in Tuitalikitai Afuha'amango, he considered that an appropriate starting point for the offending on this count is two-years imprisonment.”

However, the Chief Justice agreed with the Crown's submission that uplift on that starting point is appropriate for the defendant's breach of trust in issuing the erroneous letter in his then parliamentary position as Speaker of the Legislative Assembly, among other sentencing remarks in his 27-pages sentencing remarks.

Lord Tu'ivakano had initially been charged and pleaded not guilty to 10 charges at the start of his jury trial in February. However, the Crown dropped six charges of bribery and money laundering in relation to the issuance of Tongan passports to these Chinese nationals, during trial.

He is a current member of Tonga's Legislative Assembly, as a long-standing Tongatapu Noble's Representative.