By Linny Folau

Luo Wopeng (25) was fined $700, to be paid within a month or face two months in prison, for possession of a prohibited firearm (a pistol) and ammunition without a license.

Acting Justice Langi sentenced him on 30 January at the Supreme Court in Nuku’alofa.

On 12 September 2023, the accused initially pleaded not guilty to the two counts of possession of a firearm without a license, namely a 9mm pistol, and possession of ammunition without a license. The case proceeded to trial on 9 October last year and submissions were made by counsels.

The Acting Justice stated that in assessing the evidence and the submissions, she was in no doubt that the accused had been in possession of a firearm and ammunitions. However, the dates for his possession of the firearm was incorrect. An email was sent to both parties inviting them to make submissions on the issue of a the Crown amending the indictment to align the dates with the evidence.

“The Crown filed an application to amendment the indictment. Mrs.Vaihu (defence counsel) also filed submissions on why the application should not be granted. The matter was then called for a hearing to give both counsel an opportunity to make discuss the application and Mrs. Vaihu's opposition.

“The gist of Mrs. Vaihu's submission was that the accused was no longer residing at the residence where he had been possession of the arms/ammunitions,” she said.

“Meanwhile, defence counsel also submitted that if the accused had been charged with the new amended indictment his plea would have been different. Mrs. Vaihu did not demonstrate any prejudice to the accused if the amendment was allowed. In light of the plethora of cases on the issue of amending the indictment, I allowed the application to amend. I then invited Mrs. Vaihu to recall the accused if she wished to do so or the witnesses, given the amendment to the indictment. She informed the court that she did not wish to recall any of the witnesses or the accused.

“In light of the amended indictment, the accused chose to change his plea and pleaded guilty to both charges on 15 January this year,” stated the Acting Justice.

Offending

The complainant is Juni Hui, a 20-year-old Chinese male residing at Haveluloto. The defendant is Luo lived at Ma'ufanga. At the time of the offence, the defendant was temporarily staying at Tiger Inn Shop at Fanga, owned by Eric Zhang Xue Qi ("Eric") while Eric was in Fiji. The complainant and the defendant are acquainted as the defendant often buys ducks from the complainant.

On 13 March 2023, the defendant sent a video to the complainant to show him a black loaded pistol with five live rounds. Before Eric left for to Fiji, he showed the defendant the pistol and told him to use it for his protection. The defendant and the complainant were messaging over a phone app called "Whatsapp" discussing their business deals regarding ducks. The defendant asked the complainant to give him the direct contact for the duck farmer so he can directly buy his ducks from the farm. The complainant refused as he had an argument already with the duck farmer that the farmer would only sell to him. The defendant was upset with this and sent threatening voice messages to the complainant saying, "I will use the gun to kill you" and "I will tell my wife's father to kill you." The complainant was scared and lodged a complaint with the police.

The Police obtained a search warrant to search the premises of the shop in Fanga. On 14 March 2023, the Police executed the search warrant. At the shop, the defendant and Leyi Sheng was Eric 's niece was present. During the search, the Police found one black 9mm pistol and five ammunition. The Police conducted the search in the presence of the defendant, and he was satisfied with the Police search. The defendant was arrested and taken into custody.

The Police Armourer confirmed the firearm and ammunition in good condition to be used and that the defendant had no licence to possess it. The Police interviewed the defendant, and he admitted it.

At the same time, the Crown submitted the aggravating factors in this case: this was a serious offence. The Arms and Ammunition Act is an embodiment of Parliament's concern for public safety, that lethal weapons such as firearms are properly controlled and regulated and the type of firearm is a 9mm pistol, which was in the defendant's possession. It is prohibited by police for the public to use or carry.

The defendant who pleaded guilty, is a first-time offender.

The Crown recommended an imposed fine of $2,500 (on Count 1) and $500 (on Count 2 to be imposed concurrent to Count 1), to be paid within a week. In lieu 3 months imprisonment. He had no previous convictions in Tonga.

“In light of the circumstances of this case described above, I am of the view that any sentence passed should be at the lower end of the scale. I take his guilty plea on the amended indicted as an early guilty plea and give him full credit for that; he is a first time offender and had cooperated with the police and admitted to having sent the complainant a video of himself holding the gun.”

Acting Justice Langi therefore adopted a sentence given by Justice Cato in Saia v Taufa above and sentenced him on count 1 possession of arms: $700, count 2: possession of ammunition: $500 concurrent to Count 1. The fine was ordered to be paid within one month, or there will be two months imprisonment in default.