Two men will be tried at the Nuku’alofa Supreme Court on a charge relating to the seizure of just over 2.1 kg of methamphatamine last year.

This was a judgment by Lord Chief Justice Whitten who upheld in part an appeal by the Police (Crown) against a decision by Principal Magistrate Mafi.

The Principal Magistrate in August discharged Tevita Savieti and 'Atunaisa Tupouata [respondents] on two counts each of possession of the illicit drug and engaging in dealings with other persons for the possession of illicit drugs, when he found there was insufficient evidence to commit them for trial at the Supreme Court, during a preliminary enquiry at the lower court.

Crown appealed both decisions resulting in this judgment.

The Chief Justice at the conclusion of the hearing ruled that the Magistrate's decision in relation to the first charge was correct, but that his analysis in dismissing the second charge was incorrect in law. 

He ordered that the respondents be committed to stand trial at the Supreme Court on that charge, on a later date.

Allegation

The allegation was that on May 10, 2019 the Police Drugs Task Force Enforcement Division received information regarding drugs being imported from abroad by Sione Fuimaono, through one of the shipments to SF Enterprises at Ma'ufanga.

A joint operation team was dispatched together with units from the Tactical Response Group and Customs to undertake investigation and surveillance. 

One of the consignments was a plastic cylinder addressed to Seluini 'lloa. It was examined and found to contain five parcels of alleged illicit drugs hidden in washing powder dustbins or buckets.

Photos were taken before the alleged drugs were removed for further examination. 

By May 13, 2019 it appeared that Fuimaono had returned overseas but he contacted 'lloa about ways, in which the two buckets formerly containing the packages, could be collected by Fililangi Ta'ai. 

Fuimaono offered to pay 'lloa $3,000 to have the two buckets delivered to a designated pick-up location. Later that day, Ta'ai gave Sulu Fineanganofo $3,000 to be deposited into 'lloa's account. 


'lloa then dropped off the two buckets at an old quarry at Mata-ki-'Eua for collection by Ta'ai. 

The law enforcement agents monitored the site on the look out for whomever was going to collect the buckets. Later that night, a blue rental vehicle arrived at the site carrying the two respondents and another man.

Here the respondents were observed collecting the two buckets and placing them in the car. Police apprehended the other person but the respondents drove off.

By that stage, Ta'ai had left the country but was later apprehended by police on his return at the airport. He was subsequently arrested together with the two respondents in this case.

The respondents then voluntarily admitted that Ta'ai had instructed them to pick up the two buckets and bring them to him. 

The police then searched for Tupouata. 

On May 21, 2019 Tupouata also contacted the task force and volunteered that he was the other person in the car that night and that he too wanted to speak with the authorities. After being cautioned, he allegedly told 
police that he was also employed by Ta'ai and that the drugs that were meant to be in the buckets were destined for Ta'ai. 


The Acting Police Sergeant said that the drugs seized weighed just over 2.1 kg and had a street value in Tonga of just over $2 million pa'anga.

Possession

The Chief Justice said the Magistrate made his decisions based on the papers for the preliminary enquiry provided together with those for the charges against Ta'ai. 

He set out the essential elements for the possession charge and noted that they included knowledge and control. He described the essential elements of the engaging with others charge as being that the accused, did engage with others to possess illicit drugs.

In that part of the Magistrate's decision entitled "Law and the Evidence", he stated that the documentary evidence provided by the prosecution in the matter was not complete in accordance with s.32(4) for there was no list of exhibits and no list of documentary exhibits. 

“In any event, the Magistrate here did not discontinue the case, but went on to record how he reviewed the papers that had been filed with the court. 

“He considered that once the police had removed the bags of alleged illicit drugs from the two buckets, neither of the respondents should have been charged with either of the offences, because he considered that both required physical possession of the alleged drugs.

“In fact, the learned Magistrate opined that as the police knew that there were no drugs inside the buckets at the time the respondents were observed collecting them, it appeared that the charges were malicious,” said the Chief Justice.

“During oral submissions, the Crown conceded, rightly in my view, that the Magistrate's analysis on the possession charge was in fact correct. 

“That is, the requisite element of knowledge and control meant that, in this case, once the alleged illicit drugs have been removed from the buckets, at the very least, the respondents were incapable of exercising any control over the drugs which were by then in police custody,” he said.

Incorrect

However, the Chief Justice said in the second charge of engaging in dealings with others for the possession of illicit drugs, the Magistrate erred.

On its proper interpretation, s.4(b) places the focus on the dealings between the persons involved and whether the intention or purpose of those feelings was for the possession of illicit drugs. 

If a successful prosecution on that charge depended on the persons engaged in the dealings also having to end up with the drugs in their possession, then the provision would in fact have no work to do because subsection (a) possession would cover the field . 

He said to illustrate this, imagine six persons conspired together and undertook various roles for the common purpose of obtaining illicit drugs. 

However, assume that by the time of apprehension, the last person in the chain was the only one who actually had the drugs in their physical possession. 

“On the Magistrate's analysis, the other five without whom the plan to obtain the drugs could not have been effected, could never be charged with any offence under the Act. In my view, that analysis and interpretation is incorrect,” he said.

"The evident purpose of the charge in subsection (b) is to ensure that all those engaged in dealings with the intention or purpose of obtaining drugs may be prosecuted even though any one or more of them do not actually end up with the drugs in their possession at the time of apprehension."

He said a further illustration of the erroneous interpretation by the Magistrate may be seen in the practical effects of his decision. 

"If allowed to stand, it is likely that all those involved in this operation would evade prosecution because, once the police removed the alleged illicit drugs, none of them could any longer be charged with any offence under s.4 (save possibly for those involved in the importation). 

“If that were correct, then the police and the drug enforcement agencies would never be allowed to intercept illicit drugs being tracked into the country and would therefore be forced to risk losing track of the drugs as they passed from offender to offender with the result that they might then find their way into the community."

“In this case, and in that event the weight and value of the alleged drugs involved could well have had catastrophic consequences.”

He said a further basis for allowing this part of the appeal, was the Magistrate's apparent failure to have considered certain of the documents placed before him for the preliminary enquiry, including alleged admissions by each of the respondents. 

During the hearing, the Crown read from the Tongan versions of those statements in which Savieti clearly stated that he was there to pick up 'ice' that was in the buckets.

“In addition, the statement by Tupouata who said that he was told to go and pick up the buckets but he didn't know what was in them. However, later in his statement, he described how he opened up the buckets to find washing powder but that 'the packages' were not there. 

"Had the Magistrate been aware of the alleged admissions, he would have appreciated that they were evidence upon, which a jury properly instructed could convict on the charges of engaging in dealings with others for the possession of the drugs."

In addition, he said, that omission on the part of the Magistrate constituted a failure to fulfil the requirements of s.32(4)(c) of the Magistrate's Court Act, which included consideration of whether the documents (i.e. all the documents) submitted by the Police disclosed a sufficient case to refer the respondents for trial before the Supreme Court.

"That alone is a sufficient basis for setting aside the magistrate’s decision on the second charges."

“Furthermore, even without the alleged admissions, there was in my view sufficient evidence on the documents the learned Magistrate did in fact consider which should have led him to conclude, that any Crown case based on inference ought to be left to a jury (or judge on a judge alone trial),” said the Chief Justice.

The respondents will appear in court for arraingment on November 27.