By Linny Folau

Anita Toutai’olepo (45) was sentenced to life imprisonment for the importation of 81.64 grams of methamphetamine discovered inside a coffee bottle with a plastic-wrapped package in a drum shipped from her father in the United States in 2024.

Justice Tupou sentenced her on 8 September at the Supreme Court in Nuku’alofa, after finding her guilty in a trial by judge alone. The other charge was for importation of utensils. The offences were committed on 4 April 2024, at Ma’ufanga.

The Director for Public Prosecutions, Mr. Lutui in his closing submissions sought to amend the indictment for counts one and two in regards to the weight of the methamphetamine claimed to have been imported from a total of 137.36 grams to 81.64 grams. Defense counsel, Mr. Corbett did not oppose the amendment and the judge allowed the amendment

The statement of agreed facts were: on 3 April, 2024, the vessel “Papuan Poly”, on its voyage number 989, arrived in Tonga, with a container. The container contained the drugs shipped from Anthony Vea in San Francisco, California, USA, intended for the accused.

On 4 April, the accused, and her daughter Matahi’atu Teuila, who is also a broker, arrived at SF Oceania Limited at Ma’ufanga to clear the drum. Upon searching, the bag containing a mate coffee bottle with a plastic-wrapped package containing a white crystal substance and a pair of pants concealing six smoking pipes were discovered. A package labelled with the name, “Ana Keener” contained another mate coffee bottle with the name “Ray” written on it, which contained two plastic-wrapped packages containing a white crystal substance.

Police were informed of the illicit items found in the imported drum. Police then made their way to Ma’ufanga, and upon arrival, the accused was informed of her rights and asked about the drum.

The judge stated that the accused admitted the drum was hers but claimed she did not know who owned the illicit items, stating they belonged to someone else and were sent through her consignment. The Police arrested her for importing illicit drugs.

Witnesses

The first witness was customs officer, Sione Uikelotu ‘Aho, employed as a customs officer with the border division at the airport for six years.

From January to June 2024, he was operating from approved places for inspection of cargo which included SF Oceania Ltd. warehouse situated at Ma’ufanga. On the day in question, Sione was posted at the warehouse. He spoke about the process involved in clearing a consignment.

The witness said it was around 3:35pm when he dealt with the accused consignment. He said the accused observed the necessary steps by presenting an ID to the relevant officers, obtained her bill of lading and engaged her own daughter, ‘Atu who works for Heting Gan Brokers as her broker.

Sione received the bill of lading and a completed import authorisation and declaration form from ‘Atu. On the bill of lading the consignor wass one Anthony Vea of 140 Jones St, San Francisco, USA, the accused’s father. The consignee was the accused, with the description of the consignment was “1 SF Drum of clothes” weighing 200 kgs. Sione was the person directly responsible for clearing the accused’s drum.

Customs officer Uinikoni Kivalu confirmed Sione’s evidence. He was in the scanning room when the drum was scanned and when they noticed something unusual in the scan, they marked it and decided to inspect the drum. When the drum was taken back to the inspection area, Uinikoni was with his supervisor Fa’one where the cleared goods are taken after inspection. He said that while there, Sione brought to them a small bag found with test tubes for smoking “ice” inside.

When the content of the bag was removed, Uinikoni saw the coffee mate bottle. He noticed the lid was taped and when the tape and lid was removed the paper covering at the top of the bottle appeared to have been superglued on. At that stage, Fa’one ordered the drum be re-scanned. Uinikoni was present in the scanning room with Sione, Fa'one, 'Atu, the accused and the police squad came in later. When the coffee mate bottle was scanned, an unusual item was detected.

Uinikoni also confirmed there was a parcel with a name written on it although he could not recall the name. He confirmed that the second coffee mate bottle was concealed in that parcel. Fa’one contacted the police drugs squad.

Proven

Under cross examination Uinikoni denied that he personally had access to the drum before the scan was conducted or that he planted the drugs inside the drum. He stated he was not present when the drum was unpacked and the first coffee mate bottle was discovered. He admitted he was charged with a drug related offence four months after this incident.

“In this instant although the accused elected not to give or call evidence as is her right. Mr Corbett said the accused’s case was that Uinikoni had planted the drugs and utensils in the drum. The case was put to Uinikoni which he vehemently denied,” the judge added.

“Sione’s evidence was that, Uinikoni stood behind him in the scanning room while the drum was scanned. Plainly, for Uinikoni to plant the drugs in the drum, he would have had to have had possession of the illicit drugs and test tubes, place the drugs in the coffee mate bottles, wrap up the tubes in a pair of white pants and have them on his person at the warehouse.

“Next he needed to have access to the drum before it was taken into the scanning room. It would have further required him to open the drum, remove half of the drum’s content, plant the coffee mate bottle and utensils inside the black bag, plant the second coffee mate bottle inside the package tape it up and throw inside the drum, repack the drum and close it and to have done all that before Sione directed for it to be brought into the scanning room.

“The impossibility of Uinikoni carrying out all of that without being seen by any of the staff at the warehouse, the customs officers or anyone else for that matter, the absence of any evidence to support the bold assertion and by the accused’s own acceptance that her father told her about the parcel inside the drum and the lack of a shred of evidence to support this defence, in my view dispels those allegations and I accordingly reject them.”

It was revealing in the judge’s view, that in the agreed facts, the accused accepted the drum was hers but claimed she did not know who owned the illicit items, stating they belonged to someone else and were sent through her consignment.

"That statement in my opinion, as plainly read, really amount to a denial as to ownership and/or knowledge of ownership of the offending items. It does not necessarily deny knowledge of the presence of illicit items in the drum. Instead, she claims the illicit items belong to someone else but was sent through her consignment as though she knew about it but so long as it was for someone else, it was not her concern.

“This was consistent with her declaration on the Import Authorisation & Declaration Form, that she knew the content of her consignment. At the bottom of the form it notes that importing prohibited and restricted goods is an offence with those goods listed."

“Moreover, in relation to the parcel the accused admitted her father told her about it and in view of those admissions, I do not believe Uinikoni planted that parcel or the coffee mate bottle inside it or anything else inside the drum. In fact, I believe that opinion is safe by the fact that the broker was the accused’s own daughter. If she had seen anything suspicious, for example, Uinikoni being around the drum or signs of the drum having been tampered with, she would have reported it.

“As far as the evidence goes, there was nothing before me to show the drum was subject to interference while in passage or upon arrival in Tonga. As for the first coffee mate bottle and utensils in the black bag, no explanation or reason was provided for their presence in the drum. There was no evidence that it was intended for anyone else.”

The use of coffee mate bottles as the means of concealing the drugs, the manner in which the bottles were taped, the paper covering being glue and the illicit drugs being wrapped, taped and dropped inside is consistent with the task possibly being conducted by the same person or people, the judge stated.

In view of the similarity in the presentation and concealment of the illicit drugs in the coffee bottle coupled with the anonymity of the receiver, the judge did not accept the assertion that the package was for someone else.

“On the evidence before me, there is nothing to prove that there was a lack of procedural transparency in the clearance, search of the drum and/or seizure process of the drugs and utensils. I also do not find Uinikoni’s subsequent charges for an alleged similar offence four months after this offence has any impact on the credibility of his evidence.

“I did find parts of his evidence inconsistent in terms of the time events occurred, whereas mentioned, I have preferred Sione’s evidence. I attribute this to possible nervousness and embarrassment in knowing that the alleged charges against him may be a point of examination."

The judge found there was no evidence called by the accused to prove she had lawful authority to import the subject illicit drugs and found that she did not have lawful authority to import illicit drugs into Tonga. The evidence on the positive defence raised by the accused was limited to the scope of the agreed facts.

The cross examination by her counsel failed to add anything in support of that defence. Finally, submissions made by counsel did not amount to evidence and submissions must be supported by admissible evidence given at trial, the judge stated.

“I have concluded that the Prosecution has proven the charges against the accused beyond a reasonable doubt and to a point where I am satisfied that the evidence taken as a whole does not lead to any probable conclusion showing the innocence of the accused but to an indisputable conclusion that this importation could not have been coincidence. The evidence combined show the only possible conclusion is that the accused had knowledge that the drum contained illicit drugs as charged under count one."

The judge accordingly found that the accused was guilty of the offence of unlawful importation of illicit drugs and of unlawful importation of utensils.

Sentencing

Under the Illicit Drugs Control (Amendment) Act, provide: “Any person who knowingly without lawful excuse, the proof of which shall lie on him, imports or exports any illicit drug commits an offence and shall be liable upon conviction......(e) in respect of a Class A drug in the quantity of 28 grams or more to life imprisonment.

"As the sentence for count 1 is by law, it is appropriate that the sentence is imposed without delay. Pursuant to s.3(e) of the Illicit Drugs Control Act, I sentence ‘Anita Toutai'olepo to life imprisonment."

The judge also issued separate directions for sentencing on count three. While all the illicit drugs and utensils seized to be destroyed.