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State v Laojindamanee - Summing Up [2012] FJHC 1486; HAC323.2012 (13 December 2012)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION
Crim. Case No HAC323 of 2012
(consolidated with HAC324/12, 325/12, and 364/12)

BETWEEN:

THE STATE

AND:

PHANAT LAOJINDAMANEE
LUM BING
ZHANG YONG
JASON ZHONG

Counsel : Ms S. Puamau with Mr. R. Prakash for the State
Mr. A. Vakaloloma for first accused
Mr. I. Fa for second accused
Mr. A. Naco for third accused
Mr. G. O'Driscoll for fourth accused

Dates of Hearing : 19 November – 13 December 2012

SUMMING UP

[1] Madame and gentlemen assessors.
The time has come now for me to sum up the case to you and to direct you on the law involved so that you can apply those directions to the facts as you find them.

[2] I reyou thou that I am the Judge of the law and you must accept what I tell you about the law. You in turn are the Judges of the facts and you and only you can decide where the truth lies in this If I express any particulaicular view of the facts in this summing up then you will ignore it unless of course it agrees with your view of that fact.

[3] Counsel have addressed you on the facts but once again yod not adopt their views oews of the facts unless you agree with them. You will take into account all of the evidence both oral and documentary. You can accept sf what a witness says and reject the rest. You can accept aept all of what he or she says and you can reject all. As judges of the facts you are masters of what to accept from the evidence.

[4] You must judge udge this case solely on the evidence that you heard in this Court room. There will be no more evidence and you are not to speculate on what evidence there might have or should have been. You juou judge the case solely on what you have heard and seen here. In this regard you are to ignore the submissions of Mr. Naco who told you that the Police had not done enough to investigate this case. Nobody, including Mr. Naco is to speculate on what evidence should be before you, nor should he tell you how this case should have been investigated.

[5] The Court room is no place for sympathy or prejudice. For example you must put to one side any prejudicial feelings you might have towards Asian people. You must judge this case solely on the evidence produced in this Court and nothing else.

[6] I am not bound by your opinions but I will give them full weight when I decide the final judgment of the Court.

[7] It is most important that I remind you of what I said to you when you were being sworn in. The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty - that doubt must be a reasonable one however, not just some fanciful doubt. The accused do not have to prove anything to you. If you are sure however that these men committed the crimes they are charged with, then you will find them guilty.

[8] The four accused in this case are facing three separate counts. You must consider each count separately and the case against and for each accused separately. The evidence concerning each count is different, so your opinions need not be the same.

[9] The first two accused, Phanat and Lum Bing (referred to in the evidence as Ah Ho) are charged with two counts of aggravated trafficking in persons. I am going to direct you on the law that is applicable to that offence and you must accept what I tell you about the law. It will be for you however to decide on the facts, in the knowledge of the legal definitions and give me your opinions to whether Phanat and Lum Bing did actually commit these two offences.

[10] Trafficking in persons has two elements which the prosecution must prove to you beyond reasonable doubt.

(i) the accused must either individually or part of group in agreement, facilitate the entry, or proposed entry of another person into Fiji, and

(ii) that the accused either individually or part of a group in agreement, deceive the other person about the fact that she will be exploited during her stay in Fiji.

[11] You will have seen that Phanat and Lum Bing (the first and second accuseds) have been charged with "aggravated" trafficking in persons. Trafficking in persons becomes aggravated if the State proves to you so that you are sure that Phanat and Lum Bing intended, or were part of a group that intended that the girls would be exploited once they arrived in Fiji.

[12] I digress now to tell you about the law of what is called joint enterprise. The prosecution's case is that Phanat and Lum Bing committed this offence in conjunction with others. Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are acting together as part of a joint plan or agreement to commit the offence, then each of them is guilty. The plan or agreement does not have to be a formal written plan but the essence of joint responsibility for a criminal offence is that each accused shared a common intention to commit the offence and played a part, however great or small, so as to achieve that aim. Your approach to the case should be therefore that in looking at the case of each of these accused separately, you are sure that with the intention that I have mentioned, he took some part in the offence, then he is guilty of the offence.

[13] Let me give you an example of how that principle operates. If four men (A, B, C and D) decide that they are going to rob the ANZ Bank in Sigatoka, they divide up their roles. A is to drive them there and wait to drive them quickly away. B and C are to go into the bank and take the money at knife point, D is to stand guard outside and warn them if the Police happen to come along. Now because they have all agreed to rob the bank, by playing a part they are each guilty, even though A the driver, and D the lookout man, didn't go into the bank and take the money.

[14] So how does it operate in this case where I have given you the elements of the offence of aggravated trafficking in persons? If you think that Phanat and Lum Bing, looking at each of them separately, are part of a group that has decided to send these girls to Fiji, and that these girls have been deceived as to the true nature of their work once they arrive here, and that the group intended the girls to be exploited, and if you think Phanat and Lum Bing, looking at them separately, played a part, no matter how small in that enterprise that you will find him guilty of the first and second charges.

[15] The first charge relates to the exploitation of Ms Kunok (often referred to as "Meow") who was our first prosecution witness and the second charge relates to Aimpika or "Aim", the second prosecution witness. I remind you that you must look at each charge separately too.

[16] I now move on to the legal definition of Domestic Trafficking in Persons which is the subject of the third and fourth counts, the third relating to Ms Kunok and the fourth relating to Aimpika.

Domestic trafficking in persons has two elements which the prosecution have to prove to you beyond reasonable doubt.

(i) the accused facilitates the transportation of another person from one place in Fiji to another place in Fiji;

(ii) the accused deceives that other person about the fact that the arrangements that have been made after she has been transported will involve the provision by her of sexual services; and

"Deceive" means to mislead as to fact, or as to law by words or other conduct.

[17] Once again the doctrine of joint enterprise comes into play. If you accept the evidence that it was the third accused (Zhang Yong), whom they call "Bald Head" who did drive them from Nadi to Suva, (and that is not in dispute) then you must go on to decide whether he was part of the group with the common intention to deceitfully traffic these girls. So to find Zhang Yong guilty you must accept that he drove them across Viti Levu and that he knew that they were going to have to provide sex and he knew that they had been told that it was only massage they were here for; in other words was Zhang Yong (or Bald Head) in on the plot?

[18] The last two counts are charged against Jason Zhong and are counts of sexual servitude, one count for PW1 and one for PW2.

To prove this offence, the Prosecution must show to you so that you are sure, that Jason Zhong, that is the fourth accused, caused another person to enter into sexual servitude, and secondly, that he intended to cause that sexual servitude.

[19] Now servitude is a fancy word for slavery and a slave doesn't have to be an African picking cotton in the USA in the mid 19th century. In law sexual servitude is defined as the condition of a person who provides sexual services and who because of the use of force or threats (i) is not free to cease providing sexual services; or (ii) is not free to leave the place or area where the person provides sexual services.

[20] The prosecution are saying to you that because Jason was demanding the return of $1900 from each of the two girls, they had no choice but to "work" for him by providing sex to customers and that they were not free to stop providing sexual services. If you agree, then you will find Jason guilty; if you do not agree or if you are not sure then you will find him not guilty of each of these two offences.

[21] Now those are specific directions on the law of the individual charges that the accused are being charged with and those are directions that you must accept. Just before I leave the law and turn to the evidence, there is one more area of law that I will direct you on that will assist you to analyse the evidence. That is called the law on circumstantial evidence.

[22] Sometimes assessors are asked to find some fact proved by direct evidence. For example, if there is reliable evidence from a witness who actually saw an accused commit a crime, or if there is a video of the crime or reliable evidence from the accused that he committed it, these would all be good examples of direct evidence against him. On the other hand it is often the case that direct evidence of a crime is not available and the prosecution relies on circumstantial evidence to prove guilt. That simply means that the prosecution is relying on evidence of various circumstances relating to the crime and to the accused which they say taken together will lead to the sure conclusion that it was the accused who committed the crime.

[23] Circumstantial evidence can be powerful evidence - indeed it can be as powerful as, or even more powerful than direct evidence, but it is important that you examine it with care - as with all evidence - and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt, or whether on the other hand it reveals any other circumstances which are or may be of sufficient reliability and strength to cast doubt upon or destroy the prosecution case.

[24] Finally, we should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence and mere speculation. Speculation in a case amounts to no more than guesses or making up theories without good evidence to support them and neither the prosecution, the defence, nor you, should do that.

[25] Madame and Gentlemen, having dealt with directions on the law which you must accept, it is now my duty to summarise the evidence for you. Once again you do not have to accept my summary, because you are the Judges of the facts. If in my summary, I omit to mention the evidence of a witness who you think is important then you must give that evidence due weight and if I stress something as important you do not have to agree with me - you and only you can decide where the truth lies in this case.

[26] The main thrust of the prosecution case comes from the two Thai ladies who told you of their journey from Thailand to Fiji and the reasons for that journey. They told us what happened when they got here. Their evidence is in many respects the same, but where they differ, I will point that out.

[27] Ms. Kunok told us that she normally works in Thailand as a model, and at the end of August this year she got a call from a lady called "Man" who told her of an opportunity to go to Fiji to do massage work. It would be at the sea-side in a resort with big yachts and only for one week. The pay would be US$300 per day. Somebody would escort her there. The witness told "Man" she would think it over and discuss it with her friend Aimpika. She did discuss it with Aimpika and they thought that the money was good and that they would go. "Man" phoned again and Ms. Kunok said yes, she and Aim would go. "Man" asked her to fax a copy of their passports so that the tickets could be bought. "Man" told her that two men would meet them at Bangkok Airport on the 5th September. The witness told us that she was expecting to be doing oil massage of the back of the body from head to toe, and the upper part of the front of the body. So on the 5th September she and Aim went to the airport and on arriving there they called "Man" and she told them to go to Aisle "P". At "P" they saw another Thai lady called Nikki, and two men. She had never seen any of these people before. They didn't introduce themselves but just spoke to Nikki. Nikki had already checked them in for the flight so they loaded their baggage themselves. They had no money with them but after immigration they went to the waiting area where a Thai man gave them US$300 each and they were told that this money had to be shown to the immigration officials when they arrived in Fiji. They boarded the plane and it flew to Hong Kong where they arrived that same day, that is the 5th September. They left their bags at the airport and took a train to the hotel. There were 5 of them. Nikki, Aim, this witness, Phanat (the Thai man) and Ah Ho. They were the party that had all flown together from Bangkok. They stayed one night in the hotel and the next day went back to the airport; the three Thai girls and Phanat first with Ah Ho following on to meet them later. They boarded a plane for Fiji. The witness did not know who paid for the rooms in H.K. but Ah Ho took the passports and checked them in getting the room keys. They arrived at Nadi on the 7th September in the morning. They went through immigration and a man with a shaven head ("Bald Head") picked them up and drove them in a van. He was introduced to them by Ah Ho. At immigration there was a small problem with noodles in her bag and Ah Ho told the officials that the girls were coming to Fiji as tourists. They all got into the van with Bald Head driving and they first went to McDonalds in Nadi. The witness then fell asleep until they arrived in Suva and went to a restaurant called Fong Lee. They ate there and a man called Jason came into the restaurant with his girlfriend. Phanat introduced Jason to them as "the boss in Fiji". From Fong Lee they went to the Holiday Inn; that is this witness, Aim, Jason, Bald Head and Ah Ho. Jason took their passports to organise the rooms. There was one room for the three girls and one for Phanat and Ah Ho. After arranging the rooms Jason talked to them and said that he would take care of everything. He further said that he is "the big mafia here" and can look after them. Jason left and the girls went to bed. They stayed in the Holiday Inn until September 9th, and she knew that Ah Ho and Phanat were in another room.

[28] On the 9th September at about mid-day, Jason took the girls to a building where there was a restaurant on the ground floor and massage facilities upstairs. There were many rooms and the witness and Aim took one room with two beds and lay down to sleep. While they were there Nikki had gone out to "work" and came back and told them that it was not only massage but sex as well. When the witness heard that she wanted to go home. They discussed it and were crying. Phanat, translating for Jason said that if they went back they had to give $1900. When Jason said this he was angry and banging the table. When she knew that she was expected to have sex with the customers she asked for time to think and talk it over. Later that day they were taken to stay by the sea-side in a pink house. She felt that she had no money to repay the $1900 but she wanted to get away. They stayed the first night in the pink house while thinking what to do. Jason had taken them to the pink house. At one time during the 2 or 3 nights they stayed there, Jason brought a "client". It was his friend - Jason pushed the guy into her room and said "you have to work". The witness said that she was having her menstrual cycle, and because she was afraid of Jason she had to comply and performed oral sex on the "client".

[29] After 2 or 3 days they moved to the Peninsula Hotel. One evening while there, Bald Head picked them up and took them to the Angel Club to find customers. There were none there so back at the pink house Bald Head brought her one customer. There was haggling over the price. At the end of two or three days at the Peninsula the witness argued with Bald Head and she asked for money for food. So many clients were brought to see them at the Hotel. She had met a man at McDonalds, had talked to him and she asked him to help them. The next morning at 8am Immigration Officers knocked on their doors and they were taken away for enquiries. Of the 6 nights spent in Fiji before she was detained, she had gone out at least 5 nights, sometimes with the men, sometimes alone.

[30] At the end of her evidence the witness identified Phanat as the first accused, Ah Ho as the second accused, Bald Head as the third accused and Jason as the fourth accused.

[31] The second witness, Aim, gave testimony that more or less confirmed what the first prosecution witness had said. However she did say that the US$300 that Phanat had given to each of them at Bangkok Airport was to show the H.K. customs and not the Fiji customs. She said that they filled in their immigration forms for Fiji on the plane and ticked "holiday" as their reason for visit because Nikki had told them to do that. At the Holiday Inn when Jason (the 4th accused) was talking to them in English she was able to understand him. She also understood Jason at the massage parlor when he was angry and said that if they wanted to go home they had to pay $1900. He and Phanat were speaking in Chinese and when he was speaking in English she understood him but Nikki and Phanat were translating it into Thai in any event. She had sex with a customer at the Peninsula. She had to do it but her "heart wasn't in it". She wanted to go home, but had no money so was forced to service the customers that Bald Head brought to the Peninsula before they were rescued by the Immigration authorities.

[32] Before I leave the evidence of the two girls, there is just one thing I should mention. Three of the counsel for the defence suggested to the girls that they worked for a strip club and that they sold themselves for money and that they had travelled overseas for sex before. There was no evidence produced to establish that and therefore the girls should never have been asked those questions. I ask you to put from your mind those suggestions made by counsel. It is prejudicial evidence that should never have been raised.

[33] Mr. Bogileka told us about Bald Head and scar face (who he identifies as the 4th accused) coming to his car rental agency at the Holiday Inn late on the 6th September to hire a van for 24 hours. The van was arranged by the 4th accused and Bald Head (the third accused) nominated as the driver. He said that the 4th accused paid the money, but he didn't know where it came from.

[34] Two witnesses from the Immigration Department came and gave evidence about going to the Peninsula Hotel in response to a directive from the Director of Immigration. They took from there, three Thai ladies from two rooms on the second floor. The male witness went to an upper floor and took two men who he identifies as the first and second accused. The five were taken to the Police for "investigation" on September 13 and handed over to the Police the following day to the Human Trafficking Division of the C.I.D.

[35] Mr. Singh, the young lawyer, told us that it was he who made the complaint to the Director of Immigration. He had met Kunok and Aim socially and had given them his mobile phone number. At 3am on the 13th September Kunok whom he knew as Meow had texted him saying that they needed help.

[36] You heard the evidence of two Police Officers who conducted interviews with the first accused, Phanat and the second accused Lum Ping. Phanat's interview was conducted in English, with Miss Rosy translating it to Phanat in Cantonese. The officer said that Phanat appeared to understand what was happening and he seemed to have no difficulty in understanding Cantonese. His lawyer came into the interview room after the interview was finished and disputed the answers that the first accused had given for questions 109, 110 and 111. Mr. Vakaloloma put it to this witness in cross-examination that those answers written were not the answers given by his client. The officer disagreed.

[37] I must at this stage Madame and Gentlemen direct you on how you should approach the evidence contained in a cautioned interview. The evidence in an interview is for you to accept or reject in the normal way as long as you believe that the particular accused whose case you are looking at gave those answers truthfully. However you must not accept what one accused says about another accused in his statement unless he repeats that in evidence. Let me make that clear. If Phanat says anything about Lum Bing in his interview and doesn't say the same thing in his oral evidence then you are to ignore it; but if Phanat repeats that in his evidence from the witness box then it becomes evidence for you to accept and give the weight you think fit.

[38] You heard evidence from a couple of the Investigating Officers which didn't seem to take the prosecution case much further but it is evidence for you to give the weight you think it deserves.

[39] That was the end of the prosecution case and you heard me ask each of the defence lawyers if they had explained to their clients their rights in defence. Now an accused person does not have to give evidence, because he has nothing to prove. He can say that the State has not proved the case against him beyond reasonable doubt. It is a choice for him to make after being advised by his counsel whether to give evidence or not.

[40] All four accused, having given evidence, it becomes evidence for you to take into account when you are deliberating. However if you do not believe the evidence of any one of them, that does not relieve the State of the burden to prove to you, so that you are sure, that the accused whose case you are looking at committed the offence as charged. Just because you don't believe an accused does not necessarily mean that he is guilty of the offence that he is charged with. You still have to be sure that the State has proved the case against him.

[41] Some of the accused when giving evidence told you things which tended to show that other accused were involved in this enterprise. Examine that evidence with particular care for the witness, in saying what he did, may have been more concerned about protecting himself than about speaking the truth. Bear that in mind when deciding whether you can believe what one accused has told you about another accused.

[42] The first accused Mr. Phanat Laojindamanee (and I will refer to him as "Phanat") told us that he comes from Thailand and that he came to Fiji on 7th September this year. He came with "Ah Ho" the name he gives to the second accused (who I will refer to as Lum Bing). He said he came along with three girls who he came to know at Bangkok Airport; they were going to Hong Kong but he doesn't know why. He didn't really talk to them at Bangkok but he did give them $300 US each. He got that money from Allen to give the girls. Allen is a friend of his in Thailand but he didn't say what the money was for. He said to give the money to Nikki (one of the girls) - Allen introduced them. He had never met the ladies before. They went to Hong Kong and stayed overnight. Phanat shared a room with Lum Bing and the ladies were in a different room. He was just following Lum Bing and didn't know anything. He was arrested at a Fiji hotel by Immigration Officers. He was interviewed by the Police and it was interpreted to him in Cantonese by an interpreter, but he says that the answer he gave to Q110 was not the answer recorded because he didn't know what they were writing. He was ordered to sign the statement and he signed because he was afraid.

[43] Phanat did not give any evidence in chief about events between staying in Hong Kong and being detained by Immigration Officers but his record of interview is produced and it contains evidence that you should consider either for or against him.

[44] In cross examination Phanat said that he had met Lum Bing twice in Bangkok before he came and when meeting with Lum Bing and Allen they had talked about bringing people to Fiji. In Hong Kong he said that Lum Bing paid for everything. There was a problem at the airport but Lum Bing sorted it out and paid HK$3000 to validate the tickets. When they got to Nadi "Bald Head" (that is the third accused) was waiting for them and he took them all to McDonalds for breakfast and then on to Suva. They went to Fong Lee for a meal and the fourth accused (who I shall call Jason) arrived. He talked to everybody and introduced himself. Phanat also spoke in cross exam about going to Ocean Palace on the 9th September. Jason had taken him, and the three girls there. Lum Bing and Zhang Yong were not there. Jason had taken them there and while there he had been walking in and out. A tall Chinese man came and was talking in a loud voice. He upset the girls. Phanat says he didn't know why the girls were upset. Jason spoke to the girls and Phanat translated. He told them they had to repay $1900. Later Zhang Yong took them to his house. Phanat stayed there one day and then went to the Peninsula. He didn't know what was happening at the pink house.

[45] To Mr. Fa, Phanat said he came to Fiji as a tourist and to look at business opportunities.

[46] Phanat gave an interview under caution to the Police in which he says that he was bringing the girls to Fiji to do massage work. He stayed with the girls throughout until 9th September when they moved to the Pink House. His only purpose was to accompany the girls and apart from that there was nothing he was to do here. He was taken by the Immigration Officers after two nights at the Peninsula. He gave $300 each to the girls for their pocket money. He said specifically that he facilitated the entry of the girls to Fiji, (although that answer is in dispute) and he agreed that the girls were deceived (which is also in dispute).

The second Accused

[47] Lum Bing has a British passport but lives in H.K. His family live in Kuala Lumpur in Malaysia. He is a businessman doing import/export and he travels a lot to Africa, Europe and to Bangkok and Hong Kong. He specializes in timber and seaweed. He had been to Fiji in 2011 and got to know a friend called Mark, a Chinese man living in Savusavu, who told him about seaweed.

[48] He came to Fiji again on 7th September this year. He had spoken to Mark on the telephone. Mark had told him that he didn't have enough stock but if he came to Fiji, he (Mark) might be able to arrange some more. His friend Allen is a Hong Kong person living in Bangkok and is a travel agent. In August of this year Lum Bing mentioned to Allen he was coming back to Fiji and Allen asked me to accompany a friend who was a cook. Lum Bing said he paid for his own ticket through credit he had with Allen. He met Phanat once in a hotel coffee shop in Bangkok and then saw him for a second time at Bangkok Airport. He didn't meet any Thai women nor did he know Nikki, Meow or Aim. He checked in separately and Allen was there and gave him a voucher for a hotel in Hong Kong, Allen had paid for the voucher but had used Lum Bing's name to get a discount. On the airplane he didn't sit with Phanat or the ladies. The first time he knew about ladies was when Phanat told him on the flight to Hong Kong. At Hong Kong he took them all to the hotel. He checked them in, gave them their room keys and after they had settled in he took them to dinner. The ladies wanted to go out so he shared a taxi with them to the bar area and he got off on the way, at his home. He packed his bags and then went back to the hotel. The next day they all checked out and went back to the airport. When he got there he saw Phanat and the ladies arguing with check- in staff about their tickets. They had to pay an additional $3000 HK to regularise the tickets and Phanat asked to borrow it. Lum went to ATM to withdraw the money and gave it to him. He sat apart from them on the plane and on arriving at Nadi he cleared customs. He knew that two persons would meet him at Nadi, Bald Head (3rd accused) and Xiao Xue who was a friend of Mark's who dealt in beche-de-mer. Bald Head was there with a van. He took them all to Suva in the van. They arrived and went to lunch. They then went to Holiday Inn where they stayed for three days. Lum Bing said that Mark, his supplier, paid for him to stay at the Holiday Inn. On the Monday, that is the 10th September he bought a ticket to go to Savusavu to see Mark and he flew up there on the 11th staying there one day and coming back on the 12th. Mark didn't have enough seaweed for a container load so it didn't work out. He then checked in to the Peninsula hotel because it was cheaper. He paid for his own room there. He was intending to go back to Hong Kong on the 13th and had asked Bald Head to take him to Nadi. From Nausori he had gone to the pink house but Bald Head asked him to go to Peninsula because there was a room there already paid for - thereby contradicting what he had said earlier (that he had paid for the room). The next morning Immigration knocked on the door and detained him. I don't consider what happened at the Immigration Department to be important but if you do then you must give that evidence the weight it deserves.

[49] The Immigration Department handed him over to the Police who conducted a cautioned interview with him.

[50] In cross examination he admitted that he had gone to Ocean Palace with the group on September the 9th. The girls took their luggage upstairs and he stayed in the restaurant. He doesn't know who paid for the rooms at the Holiday Inn. He admitted that he never told Police about Mark or the seaweed. In a very long examination about his travel movements he admitted that he travelled a lot to Cambodia and Philippines and that when he was going to Cambodia he was taking other people there for gambling.

[51] Lum Bing called a witness to give evidence. That was Mark who gave evidence by "Skype" from Savusavu. He said he was a seaweed farmer in Savusavu and he had known Lum Bing for over one year, having met him in Hong Kong. On 11th September this year Lum Bing had come to visit him to talk about buying seaweed. He stayed for a day and one night. Mark didn't have enough stock to satisfy Lum Bing so no business was transacted. Lum Bing had spent his own money on flights and hotels. In cross-examination he said Lum Bing's visit was only arranged a couple of days before he came.

[52] Lum Bing also gave an interview which is before you. He said he brought a man from Bangkok to Fiji on the instructions of Allen. He had told Allen that he was coming to Fiji anyway to do seaweed business, so Allen asked him this favour. Allen arranged all the flights. He had met Quai (who we know as Phanat) at a coffee shop in Bangkok with Allen and the second time was at Bangkok Airport. Allen gave him a hotel voucher for 2 rooms at a Hong Kong hotel. In Hong Kong they all went to dinner. That night he shared a taxi with the girls to the night life area of Hong Kong. At the airport they were met by Bald Head who he had met before in Fiji. He drove them to Suva and they stayed in the Holiday Inn. Everything had been paid for. On the 9th the girls moved out of Holiday Inn and went to a restaurant near the Harbour with a massage parlour on top. He went too and followed the girls who took their bags upstairs. He went to the Pink House and Zhang Yong later brought the girls to the Pink House. He heard that there had been a problem at the massage parlour between the girls and the restaurant owner. They all moved to the Peninsula but he went to Savusavu on the Tuesday 11th for one day, to buy seaweed.

The Third Accused

[53] Zhang Yong is living in Laucala Beach and was, until arrested, operating a garment factory. A Chinese friend who knows Allen and Zhang was told to meet him at Nadi Airport. He met the group and Phanat introduced himself to the witness as Mr. Liu. He says that Phanat was in charge of the three ladies. Allen had told him what Phanat would be wearing that morning. He saw Lum Bing arriving at the airport too. Zhang asked him how he had come together with the Thai people and Lum Bing told him they happened to meet at the airport in Thailand. The witness then drove the group across to Suva, before arriving he phoned Jason to order the lunch at Fong Lee. He had asked Jason to interpret in English to the Thai people. After lunch they went to the Holiday Inn - he asked Jason to help him with the hotel procedures. Zhang had a verbal agreement with Allen that he (Zhang) would pay everything first and Allen would then repay him. A "friend" in China had paid US$8000 for the tickets and had sent the money to Allen. He knew that the group had come to Fiji to carry out business strategy for operating massage parlours. They went to look at several massage establishments. The girls were not happy with the facilities that they saw. The girls had come to stay at his "Pink House" for two days and while they were there he looked after them, even cooking for them. He took them out but not every night. At the Peninsula he gave the money to Jason to pay for the rooms.

[54] In cross examination, Zhang admitted that he was expecting a Thai man and three girls at Nadi Airport. He had booked a van the previous day with Jason at the Holiday Inn but he denied knowing that the girls were brought to Fiji to work in the sex trade. He avoided all questions relating to the 9th September at Ocean Palace. He paid for all of the rooms at the Holiday Inn. Jason was just the interpreter.

[55] To Mr. Vakaloloma he admitted that he had a telephone conversation with Allen and Phanat at the same time and the discussion was about Phanat and the ladies coming to Fiji. When they arrived he was the driver and he stayed with them all the time in Fiji as their driver.

[56] To Mr. O'Driscoll, Zhang said that Jason was being used only as an interpreter. On the 9th September, he went to pick the girls up from Ocean Palace in a taxi. He knew that two of the girls wanted to go back and Allen said he would send two new girls.

[57] The interview of the third accused is also before you Madame and Gentlemen. He says that he is a businessman and a Fiji citizen living in Laucala Beach. He was trying to get a massage business operating. He has known the second accused (who he calls Mr. Hong) for two months. He came to Fiji before to do the seaweed business. He met Phanat (who he calls Mr. Liu) on the day he arrived in Fiji. He picked up Phanat from the Nadi airport at 7am on September 7th. He was with three women who had trained to be masseuses in Thailand. He knew this because he had spoken to someone on the phone or skype before they arrived. They came with Phanat and Lum Bing. Zhang Yong said that he had made arrangements for them to come to Fiji to do the massage business. He paid for rooms for them at the Holiday Inn. He had rented a van to go and pick them up. They stayed in his house for two nights. At one stage a Fijian man came with Jason – he doesn't know what the man did when he was there for about 2 hours. Zhang dropped him in Marks Street because Jason told him to. He says he knows almost all the massage parlour owners in Suva.

The Fourth Accused

[58] Jason the fourth accused told us that he is a farmer, married with four children. He knows Zhang Yong the third accused because his girlfriend rents a room in Zhang's house (the Pink House). Zhang Yong wanted to open a massage parlor - he was having a group of Thai people come so he needed help to hire a vehicle, book a hotel and translate for him because he (Jason) speaks English well. He first met the group at Fong Lee - he went with his girlfriend to meet them and order the food for them. They then went to the Holiday Inn to check in. He had helped Zhang book the hire car and the hotel rooms the day before. Zhang Yong had paid for all that. When the group checked in there was a fuss over local vs tourist rate for the rooms and there was a heated argument at reception between Jason and the reception staff. After that he did not see much of the girls and when he did, Zhang Yong did all the talking and he just translated. He dropped in and saw them the next day and on Sunday, Zhang called him to ask for help to go to Ocean Palace. His car broke down and had to have it repaired and the girls' luggage had to be off loaded and taken upstairs at the Ocean Palace. In the evening they were all back in the Pink House and Jason translated whatever Zhang said into English. Included in what Zhang said was that the tickets were $1900 and they had to pay that, if they wanted to go. Just Nikki was there but she didn't want to go - it was the other girls that wanted to go. After that conversation he left and went home.

[59] On the Monday he helped Zhang look for another hotel for them so he helped to book rooms in the Peninsula Hotel. He helped Zhang to translate to Nikki and Phanat that if the girls wanted to go he would help them go by Saturday. They were going clubbing every night and the boss in Thailand said let them go. He was called by the Police to help them with their enquiries after about 6 weeks. But in this case all he did was to translate Zhang's Mandarin into English for Nikki - he didn't understand what was happening.

[60] In cross-examination he admitted he told the girls they had to repay $1900 but only because he was translating that for Zhang Yong. He denied that he was a triad boss in Fiji and that Zhang was his subordinate.

[61] There is no caution interview between Jason and the Police before you in evidence.

[62] Well Madame and Gentlemen, that is a comprehensive replay of the evidence in this case. Remember that if I didn't cover anything which you think is important, you must give it weight and similarly if I have stressed something which you don't think is important, then you should ignore it.

[63] You will be asked individually for your opinions on the guilt or not of all four accused, so you will each have to give me 8 different opinions. It would be far better if you could be all agreed but that is not essential.

[64] For the first two charges involving the first and second accused, your possible verdicts are guilty of aggravated trafficking in persons or not guilty. If your opinion is not guilty, you will be asked if each accused is guilty or not guilty of the alternative charge of trafficking in persons (that is without the aggravated). You can only find the accused guilty of the alternative if you think they did facilitate the entry of the girl into Fiji and did deceive her as to her duties once here but you do not think that the accused or the group of which he was part, had the intention to exploit the girl.

[65] Once you are ready with your opinions, let one of my staff know and I will reconvene the Court.

[66] Just before you leave us, I will ask Counsel if there is anything to add or alter in my summing up.

Paul K. Madigan
JUDGE

At Suva
13 December, 2012