Reporting by Pesi Fonua and Mary Lyn Fonua

Nuku'alofa’s Supreme Court has thrown out a civil claim by a former Prime Minister, Lord Tu'ivakano, who was seeking $5.75 million pa'anga in damages from the Kingdom of Tonga and others, for alleged “malicious prosecution” of him on criminal charges relating to the so-called ‘Tongan Passports Scandal’.

Lord Chief Justice M. H. Whitten QC, in a 78 page judgment on 28 October, found that the Plaintiff, Lord Tu'ivakano, had failed to establish that the police investigation and criminal prosecution against him in 2019 was without reasonable and probable cause or that it was motived by malice.

“I find that there was no evidence of any improper purpose for the prosecution. The only purpose discernible from the evidence was the proper invocation of the criminal law,” he stated.

The Chief Justice also noted that the quantum of the Plaintiff's overall claim was exorbitant, stating, “There really was no justification offered for the magnitude of the amounts claimed.”

Civil claim for damages

Lord Tu'ivakano (69) had commenced the civil proceeding in April, suing the Police Commissioner, the Attorney General and the Kingdom of Tonga (the Defendants) for damages. He was represented by W.C. Edwards SC, with William Edwards, during the civil trial held in September this year.

Tu'ivakano alleged wrongdoing by the Defendants and claimed a total of $5.75 million in various forms of damages and legal costs, he said was suffered following his arrest in 2018, court appearances in 2019 and criminal trial in 2020. Last year, he was sentenced to two years imprisonment (suspended) and had to perform 100 hours of community service, after a jury found him guilty on charges relating to false statements about passports and perjury. However, in October 2020 Tu'ivakano was acquitted on Appeal of those convictions.

He commenced the current civil claim for damages on 7 April 2021.

The Plaintiff's claim included $1 million in general damages for wrongful arrest and malicious prosecution; and $1 million “for pain, distress, strain and suffering for a period of two years and eight months caused by the public humiliation and condemnation and potential risk of loss of his nobility and estates.”

He was seeking another $500,000 for loss of liberty arising from his arrest and detention and subsequent restricted freedom of travel; another $1.5 million for loss of reputation and fame and $1 million in aggravated damages for the humiliation and embarrassment caused by his arrest, and $250,000 for legal costs, among other monetary claims.

Operation Bogus

One of the Plaintiff's main complaints in seeking damages was “the lack of evidence against him”, but the Chief Justice found otherwise.

The judgment set out the details of how the passports investigation began.

On 10 June 2013, the Tonga Police Intelligence Office received information concerning a request by Sofia Uila Laukau of staff at Office Equipment to type the particulars of a Chinese couple into the bio-page of two blank Tongan ordinary passports. Laukau was arrested at the scene. She had obtained the blank passports from an immigration officer by the name of Otto Hamani Tu’itupou.

On 11 June 2013, Police met with senior personnel within the Ministry of Foreign Affairs and Trade and requested their support and provision of certain documents. The Ministry staff advised that they would support the investigation. 


On 14 June 2013, Tu’itupou was arrested. Police discovered photos in his mobile phone of multiple Tongan passport applications which had been approved, and corresponding passports directed to be issued, by the Plaintiff, as Prime Minister at the time. Tu’itupou told police that some suspicious passport applications were allegedly being brought by one, Satua Tu’akoi, directly to the Plaintiff for processing instead of following the proper process of submitting the passport applications through the immigration front office. 


Tu’itupou was later convicted and sentenced to 3 years and 3 months imprisonment. Laukau was sentenced to 2 years imprisonment.

The discovery of the blank Tongan ordinary passports and suspicious passport applications raised concerns among police of serious abuse and illegal activities within the Tonga Immigration Office.

The Serious Organised Transnational Crime Unit (SOTCU) continued to investigate the suspicious passport applications. 


From 2013 to around 2017, an investigation codenamed “Operation Bogus” was planned and implemented by SOTCU. The passport fraud investigation team had documented financial trails of suspicious transactions including remittances from China and the illegal issuing of Tongan passports to Chinese in Tonga.

Operation Bogus comprised years of investigations and resulted in prosecutions of a number of people, not just the Plaintiff.

By the end of 2017, the Taskforce had obtained 747 witness statements, executed 106 search warrants, arrested 35 persons and laid 120 charges, of whom, 13 were convicted with another 22 awaiting trial.

On 10 November 2017 the Taskforce delivered about 38 volumes of evidence gathered during Operation Bogus in relation to the Plaintiff, to the Attorney General’s Office ('Aminiasi Kefu) and his team.

In January 2018 after considering the evidence produced by the police, a Prosecution team prepared a criminal case against Tu'ivakano. Their 28 pages brief included summaries of evidence from 116 witnesses to particular Chinese nationals to whom suspect passports had been issued.

Volumes of evidence

Lord Chief Justice Whitten in dismissing the Plaintiff's claim for damages, last week, explained his reason for releasing many of these details from Operation Bogus.

“As one of the Plaintiff's main complaints in seeking damages was the lack of evidence against him, it is necessary to set out the summary of facts as distilled by the prosecution team from the volumes of evidence provided by the police and which formed the basis of the decision to prosecute,” he stated.

The Chief Justice listed details of multiple payments made from China to the personal accounts of Lord Tu'ivakano, his wife and their grandson, in a summary of the facts that had influenced the decision to prosecute.

His judgment also listed facts from the almost 1,600 pages of documents and oral testimony that was presented at the trial of Tu'ivakano in 2020.

Noble arrested in 2018

Initially, on 1 March 2018, the Plaintiff was arrested at his home in the presence of villagers and charged with a total of 12 counts of perjury, money laundering, making a false statement for the purpose of obtaining a passport and accepting bribes as a Government servant. The Plaintiff’s residence was searched and further evidence was seized. The Plaintiff was brought before a Magistrate that evening.

All of the bribery and money laundering cases related to the illegal selling of Tongan Passports to Chinese nationals, using fraudulent passport applications with the Immigration Division of the Ministry of Foreign Affairs and to have those applications approved by the accused.

Various court actions followed, before the case moved up to the Supreme Court for trial on reduced charges.

Tu'ivakano was still a Member of Parliament in 2019, when he was charged with five counts of bribery, money laundering, perjury, making a false statement for the purpose of obtaining a passport, and possession of a firearm and ammunition without a license. (He pleaded guilty to the firearm charge.)

During his trial in February 2020 the Crown Prosecution decided not to proceed with the bribery and money laundering charges (nolle prosequi)*. They said this was because they had been unsuccessful in an application to try Tu'ivakano jointly with two others, including Satua Tu'akoi, where it was hoped that interconnected evidence might be presented. (The Chief Justice noted that the situation with Tu'akoi was unclear. She had, after her trial was listed, travelled to China and had been unable to return. Her case remains extant before the Court.) [*The entry of a nolle prosequi brings the proceedings to a halt without determination of guilt. It does not bar the subsequent prosecution of the accused on the same charge.]

Lord Tu'ivakano faced a jury trial and on 9 March 2020, was found guilty of perjury and false statement charges. On 24 April 2020 he was sentenced to two years imprisonment (fully suspended) and 100 days community service. He appealed the convictions and was acquitted of the perjury and false statement charges by the Court of Appeal on 30 October 2020.

Considerations

In his considerations of Tu'ivakano's claim of damages for malicious prosecution, the Chief Justice said “there could be no doubt that the relevant conduct of the police and the Prosecution was in the intended pursuit of the Kingdom’s interests in the administration of law and in apparent execution of the authority which the Kingdom held out the Police Commissioner and Attorney General as having.”

“The evidence revealed that the police investigation over several years gathered information, which pointed to the Plaintiff as a person of interest in a wide-ranging scheme involving many others in the illegal sale of Tongan passports. That evidence was presented to the then Acting Attorney General and DPP, Mr Kefu, and his team of prosecutors for analysis and advice as to whether the Plaintiff should be charged and, if so, with what offences.”

In considering whether or not the prosecution was conducted and/or maintained without reasonable and probable cause, the Chief Justice considered the bribery and money laundering charges separately from the false statement and perjury charges, because they had different timing and outcomes.

The bribery and money laundering charges drew most of the attention and energy during the criminal proceedings.

“In the absence of any exculpatory explanations by the Plaintiff, the Prosecution were left with direct evidence of the Plaintiff’s approvals of irregular passport applications, including in the face of legal advice from Mr Kefu that to do so was unlawful, other objective documentary evidence such as emails passing between  the Plaintiff and Satua Tu’akoi and others, and the only explanations for the receipt of the moneys recorded on bank documents such as ‘fundraising from China’, ‘purpose gift’ and ‘loan repayment’. As Mr Kefu identified, none of those referred to any of the funds received as being casino winnings.”

The Chief Justice was satisfied that  here was circumstantial evidence to support the Crown’s case concept “as explained by Mr Kefu whereby the Plaintiff was alleged to have been involved with, in particular, Sien Lee and Satua Tu’akoi in a scheme for the fraudulent approval of unlawful Tongan passports. ...The absence of direct evidence of knowing involvement does not mean that there was insufficient evidence, including circumstantial evidence, to lay the charges.”

 “I am satisfied that the Prosecution continued to have reasonable and probable cause to maintain the bribery and money laundering charges up to entry of the nolle prosequi during the trial.”

The Chief Justice also considered Tu'ivakano's successful Appeal outcome on the false statement and perjury charges.

“Tthe Court of Appeal’s reasoning may be seen as having identified shortcomings in how the Prosecution interpreted the statements in the Plaintiff’s letter and affidavit (having regard to the relevant elements of the offences) as well as how it conducted its case at trial. The end result was that there was no evidence of the requisite knowledge and intent upon which the verdicts could safely stand. That, in my view, does not demonstrate an absence of reasonable and probable cause for commencing or maintaining the prosecution on these charges. It does suggest, again with respect, inexperience, incompetence, honest mistake or negligence, which, on the authorities stated above, is not actionable.”

Dismissed claim for damages

The Lord Chief Justice made 301 points in his October 28 judgment, dismissing Lord Tu'ivakano's claim for damages.

Among the points were that:

• In relation to the Plaintiff’s claim for damage to reputation, he and the five witnesses he called on the subject, all gave evidence about others in the Plaintiff’s village feeling and talking about the same upset and loss of trust in the Plaintiff during the course of the criminal proceedings. “That evidence was impermissible hearsay and therefore inadmissible. ”
• In relation to the claim for aggravated damages, “there was no evidence that the Plaintiff’s arrest was conducted any differently to any other and, if anything, I gained the distinct impression that, given the high profile of the Plaintiff and the case, the police were extra cautious and careful in the manner in which they conducted the arrest and subsequent search of the Plaintiff’s premises. ”
• The Plaintiff’s claim for unlawful imprisonment involved him being remanded in police custody for one night. He was lawfully remanded by the Magistrate. The Plaintiff did not seek to appeal that decision. 

• The claim for loss of liberty arising from the condition of the Plaintiff’s bail restricting his travel did not actually involve any loss of liberty at all. “The most that could be said is that the Plaintiff was inconvenienced to the extent of having to instruct his lawyers to file applications for permission to travel which only required the Plaintiff to tell them where, when and for how long he intended to be away. None of his applications were refused.”

The Plaintiff had failed to establish that, on the balance of probabilities, his prosecution was politically motivated. 


“Finally, I find that there was no evidence of any improper purpose for the prosecution. The only purpose discernible from the evidence was the proper invocation of the criminal law.”

Failed to establish claims

The Lord Chief Justice conclusion on liability was:

“For the reasons stated, I find that the Plaintiff has failed to establish, on the balance of probabilities, that the prosecution of the Plaintiff was without reasonable and probable cause or that either the police investigation or the subsequent prosecution was motived by any improper or ulterior purpose or any other form of malice.”

He also stated that the amounts claimed should not be regarded as having any precedent value for other future cases. “Here, however, the nature of the Plaintiff’s position as a Noble of the realm and former Prime Minister and Speaker of the Legislative Assembly, and of the allegations of his involvement in the ill-reputed so-called ‘Tongan passports scandal’ made this case truly an extraordinary one,” Chief Justice Whitten stated.

In dismissing the claims he ordered the Plaintiff to pay the Defendant's costs of the proceeding, if any, to be taxed in default of agreement.

Counsel for the Defendants were the Solicitor General, Mr Sione Sisifa and Ms Jocelyn Sikalu.

Noble of the Realm

Lord Tu‘ivakano was appointed to his hereditary Noble title in 1986 with estates in Nukunuku, Matahau, Vaotu'u and Matafonua.

In 1996 he was elected as a Noble Representative for Tongatapu to the Legislative Assembly.

From January 2011 to December 2014 he was Tonga’s Prime Minister and the Minister of Foreign Affairs. He became the Speaker of the Legislative Assembly from 2015 to 2017. 


Up until today, he remains the Tongatapu Nobles’ Representative to the Tonga Legislative Assembly.