By Linny Folau

Tonga's Court of Appeal has acquitted Lord Tu'ivakano on two charges of making a false statement to obtain a Tongan passport and perjury, after quashing the conviction in a 22-pages judgment in Nuku'alofa on Friday November 6.  


However, lost his appeal for conviction on one count of possession of 212 pieces of ammunition without a license.

A former Prime Minister and current Tongatapu Noble's Representative to Parliament, Lord Tu'ivakano [appellant] was found guilty on March 9 by a jury on three counts, at the Nuku'alofa Supreme Court.

This was for 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 10).

He appealed against conviction against these three counts, which resulted in this judgment.

The Appeal Court who heard this case in October allowed in part this appeal.


This meant, that it allowed Lord Tu'ivakano's appeal against his conviction on counts 7 and 8, and acquitted him. But dismissed his appeal against his conviction on count 10, regarding the possession of ammunition without a license.

The counts alleged that on July 17, 2015, the appellant with the purpose of obtaining a passport for Hua Guo and Xing Liu, and with intent to deceive the Immigration Division when he wrote a letter to the mmigration Division of the Ministry of Foreign Affairs, stating that these two were naturalised as Tongans.

For perjury, he was accused on December 21, 2015, that he made an oath in an affidavit stating that M Huo Guo and Ms Xing Liu, were naturalised during his term as Minister of Foreign Affairs and after naturalisation Tongan passports were then issued to these two.

On count 10, he was in possession of 212 pieces of ammunition without a license seized on March 1, 2018 in Nuku'alofa.

Reasons

Lord Chief Justice Whitten certified that the appeal against conviction based on questions of mixed law and fact, was a fit case for appeal.

The Appeal Court said in count 7, the context in which the appellant wrote the letter of July 17, 2015 was clearly to support Hua Guo's and Xing Liu's application for the issue of passports, on the basis that they had previously been granted passports, which they said had been lost.

To establish that there was an intent to deceive, it would have been necessary for the Crown to establish that the appellant intended to conceal the fact that Hua Guo and Xing Liu had previously been naturalised under other names.

“The Crown did not establish that that was the appellant's intent.”

“In addition, the notice of appeal asserted that the jury's verdicts on counts 7, 8 and 10 were unreasonable and not supported by the evidence (thus invoking s17 of the Court of Appeal Act), rather than that there was no evidence that the appellant had the intention to deceive.  

“The Court therefore proceeded on the basis of s17. giving full weight to the jury's advantage in seeing the witnesses and assessing their credibility, the evidence and did not support a conclusion that the appellant had that intent.

“The appellant denied that intent.”

The Court said, the jury must be taken to have rejected his credibility. But the rejection of the appellant's credit does not establish beyond reasonable doubt that the appellant did intend to deceive the Immigration Office.

“This is not a case of error which does not lead to a substantial miscarriage of justice, Court of Appeal Act s17(1). The appellant was convicted of an offence of, which there was no evidence and of which he ought to have been acquitted.”

It then ruled that the conviction on count 7 be quashed and a verdict of acquittal substituted.

Count 8

The Court then said to establish the count of perjury, the Crown had to establish beyond reasonable doubt that the statements made in the affidavit [paragraphs 6 and 7] were false and that the appellant knew that they were false. 

The Lord Chief Justice instructed the jury that the statements were material. That direction was not challenged.

Section 63 (1) does not include within the definition of perjury the making of a statement which the maker does not believe to be true. It follows that for the offence to be committed, the impugned statement must be false and theaccused must know that the statement is false.

It also follows that the statement must be false in the meaning that the maker of the statement intended to convey or knew would be conveyed.

In the Crown's address to the jury, counsel said that 'there is no question that the statements in paragraphs 6 and 7 of the accused's affidavit are false'. But there was no explanation as to why that was so. Indeed, it was the Crown's case that the statements in the affidavit were literally true, said the Court.

The individuals Hua Guo and Xing Liu were naturalised during the appellant's tenure as Minister for Foreign Affairs and Tongan passports were issued to them. Unless those statements carried the implication that Hua Guo and Xing Liu were naturalised and Tongan passports were issued to them in those names, then the statements were not false.  

“Even if that implication arose, the statements were not false to the knowledge of the appellant, unless he intended to convey that implication or knew that the implication would be conveyed, it said. Meanwhile, the appellant's evidence-in-chief was to the effect that he recalled administering the oath of allegiance to the two individuals and recognised them when they came with Andre Manu for his assistance.

“He was not shaken on that evidence.”

The Court then said, in his address to the jury, Mr Edwards for the appellant emphasised the acceptance by the Crown's witnesses that Singkei Lou and Xing Liu were the same person as was Hua Guo and Shanoi Kam.

Mr Edwards said, “The police knew this very well, that these two were the same people, but yet they still went on and chargedthe accused...The prosecution has [fallen] short in proving...that the accused had lied in his affidavit.”

In his summing up to the jury, the Lord Chief Justice stated tha the element of the charge of perjury, which appeared to be in issue was whether the appellant, when he swore the affidavit, knew that the statements at paragraphs 6 and 7 were false.

He said to the jury that they could bear in mind evidence that there had been no records of any Privy Council Decision evidencing the naturalisation of Hua Guo or Xing Liu.  

The Lord Chief Justice told the jury that their task was to determine whether they were satisfied that what was stated in paragraphs 6 and 7 of the affidavit was untrue and whether the accused knew that when he swore the affidavit.  If the jury considered that the statements were untrue then it was for them to decide whether the appellant deliberately lied or made a genuine mistake.

“The impugned statements in the appellant's affidavit were literally true. The Crown did not identify the basis upon which it contended that the impugned statements were false.

“It is evident that it contended that the statements were false because they carried an implication that Hua Guo and Xing Liu were naturalised and were issued with passports in those names, but it did not say how that implication arose.

“There was no evidence that the appellant knew that that implication would be conveyed or intended that it should be conveyed.

“For the above reasons, the conviction cannot be supported having regard to the evidence. The conviction should be quashed and a verdict of acquittal substituted,” said the Appeal Court.

Ammunition

As for count 10 the appellant's son, Major Siaosi Kiu Kaho confirmed that the ammunition found was his and had been inserted inside a green bag. The Lord Chief Justice correctly informed the jury, whether the appellant had possession of the ammunition did not depend upon who was the owner of the ammunition.

It was clear from a Mr Limoni's evidence and the appellant's own evidence that the appellant knew that ammunition had been placed in the boot of the car.

Although, the car was not owned by the appellant, it was a car he was using.

The Court said it was open to the jury to find that the appellant had control of the car and knew that ammunition had been placed within it.

“It was open to the jury to find that he had possession of the ammunition. He could have told his son to remove it, but did not.”

This appeal was dismissed and the appellant remains convicted on this count.

Meanwhile, this is the second and final session of the Court of Appeal for the year.