Henry Liutai (36), who was found guilty on two counts of unlawful importation of restricted goods, including a .9mm pistol and ammunition found during Customs' inspection of a crate from the United States, was fined $4000 at the Nuku'alofa Supreme Court. He had no import license. 

On March 17, Hon. Justice P. Tupou KC ordered that the fine was to be paid within two-months or in default face two-months imprisonment.

Liutai was convicted, after three-days of trial in November 2022.

The offending was on 9 December 2021, when a crate of imported goods consigned to the defendant was ready for inspection. Two Customs officers, Fifita and Paueli inspected the consignment.

Inside the crate, amongs other things, were three bins. The officers opened the bins, which were filled with lose candy, but at the bottom of one bin, a box containing 267.9mm ammunition was found. In another bin, they found the .9mm pistol, a gun case, four magazines, one ammunition loader and one pistol holder.

"The defendant suggested reasons for his failure to hold or apply for an import licence for the restricted goods. Those reasons were rejected, and his evidence was found to be inconsistent, tenuous and unreliable for a number of reasons, including a claim he did not know it came in the first crate and that he was not told by his relatives that it was mistakenly placed in there.

“His own witness, Mr. Harris who packed the crate, said he had many discussions with the defendant, after the first consignment was dispatched. Those discussions were held between June and September 2021, and he told the defendant in one of those discussions about his mistake and apologized to him about it. Mr. Harris's evidence was preferred."

In addition, the defendant claimed that the .9mm pistol and ammunition should have been shipped in a second crate. That second crate arrived in Tonga on 6 December, 2021- three days before the restricted goods were found by Customs on 9 December, 2021.

“Even by 9 December, 2021, there was no evidence that he held an import licence or had applied for one of the said restricted goods,” said the judge.

Concern

“The Crown submitted the aggravating factors against the defendant was the seriousness of the offence, his not guilty plea, he chose not to abide by the processes and requirements for importation, which he knew well and there intention to defraud the customs office by not declaring the firearm, among others.

“Crown suggested a non-custodial sentence and submitted that the approach in Pisima'ake be adopted. Apparently, this is the first time a defendant has been convicted for importing a .9mm pistol and ammunition and therefore there are no local comparable sentences,” said the judge.

“Defence, on the other hand submitted that the defendant is a first time offender, is the 'sole license dealer of ammunition' in Tonga and the Police and soldiers are relying on him to supply their ammunitions, among other factors.

"In convicting the defendant, I had expressed concern that had it not been for the thorough search undertaken by the customs officer and broker, there was a promising prospect for these restricted goods to slip through customs and into the community, and that would have been an unfortunate situation."

“The defendant's position of trust as a licenced arms dealer and the manner, in which the firearm and ammunition were shipped and consigned to the defendant, in bins covered with lose candy, not declared and without the necessary import Iicence, even after the second crate arrived, in my view, hardly amount to an honest mistake, no intention to cause a serious offence; not imported in secrecy or a lack of premeditation as suggested by his counsel."

The judge said, the defendant had been in this business for six-years and had earlier applied for import licences at least six times and knew that the restricted goods were limited for use by the police force, army and customs officers only.

"I have reminded myself that the defendant is an arms and ammunition dealer. That is what he and his business Ngahau Toka is licenced to do. That licence does not permit him to import arms and ammunition.

“For that reason, I am not entirely satisfied that entering a conviction for this offending will affect the defendant's business. A possible impact is that he may never qualify for an import licence of firearms and ammunition in future. If I am wrong, l am satisfied that the defendant's second business, that apparently earns $500 a week, means he will not be completely deprived of an income."

The judge said, due to the gravity and circumstances of the offending and offender, including an obvious lack of remorse, she was not convinced that a discharge without conviction was the appropriate result here.

The defendant was then fined $4,000 to be paid within the two-months or face two-months imprisonment.