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Tuputupu v R [2025] TOCA 23; AC 6 of 2025 (20 November 2025)

IN THE COURT OF APPEAL OF TONGA AC 6 of 2025
NUKU’ALOFA REGISTRY [AM 22 of 2024]
CRIMINAL JURISDICTION [EC 5 of 2024]
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BETWEEN VILIAMI MAKAHOKOVALU TUPUTUPU

Appellant

AND REX

Respondent

Hearing: 12 November 2025

Court: Randerson, White and Harrison JJ

Counsel: Appellant in person with McKenzie friend
Joe Fifita for Respondent

Judgment: 20 November 2025

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JUDGMENT OF THE COURT
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Introduction

[1] The appellant has been granted leave pursuant to section 74 of the Magistrates Court Act to appeal on points of law against a sentence imposed in the Magistrates Court.
[2] The appellant was convicted after trial by Senior Magistrate Kaufusi on two counts:
(a) Proceeding to sea improperly, contrary to section 122(1)(a) and (2) of the Shipping Act;
(b) Serving on a ship without proper certificate, contrary to section 60(1) and (2) of the Shipping Act.

• [3] The maximum penalty for the first count is a fine not exceeding $50,000 or a term of imprisonment not exceeding five years or both. The maximum penalty for the second count is a fine of $5,000 or imprisonment not exceeding six months, or both.
• [4] On 18 November 2024, Senior Magistrate Kaufusi sentenced the appellant to two years imprisonment on the first count and six months on the second, the sentences to be served concurrently. No part of the sentence was suspended.
• [5] On 24 March 2025, Justice Tupou KC dismissed the appellant’s appeal against sentence.

The brief facts

[6] The first count relates to sailing a vessel when the total number of passengers exceeded the survey certificate of 400. The second relates to sailing the vessel without a current master’s certificate of competency.
[7] The appellant was the Master of the vessel M.V. ‘Otuanga’ofa at the time of the offending. His certificate of competency expired on 17 April 2023. Although he paid for the renewal of his certificate he had not received confirmation of renewal by 19 April 2023 when he sailed the vessel from Tongatapu en route to Vava’u. with 272 passengers on board. From then until the return of the vessel to Tongatapu on 22 April 2023 the vessel stopped at a number of locations with varying passenger numbers. The maximum number permitted was not exceeded until the vessel departed from Nomuka on the last stage of the return journey. There were 420 passengers on the vessel, an excess of 20.
[8] When these matters were raised with him, the appellant stated in an email that 60 passengers had boarded the vessel in Nomuka on the return journey to Tongatapu. In his email, the appellant admitted knowingly deciding to board an extra 20 passengers on the vessel in excess of the permitted number from the last stop giving various reasons why he did so. These included the fact that individual passengers were hurrying back to Tongatapu for example, to catch flights or for scheduled hospital check-ups.

The sentence in the Magistrates Court

[9] In sentencing the appellant, the learned Magistrate referred to aspects of the evidence at trial including the fact that the appellant had been told prior to departure on the sailing in question that his Certificate was currently being processed; the appellant had apologised that the permitted number of passengers had been exceeded; and evidence that the appellant had been asked upon arrival back in Tongatapu to sign a document relating to the number of passengers. He had asked that the excess number be removed and declined to sign the relevant documentation.
[10] The learned Magistrate referred to two cases relating to offending under the Shipping Act. The first was R v ‘Evona ‘Akau.^[1] Cato J had found the defendant guilty under section 122(a) and (2)(b) of the Shipping Act in undertaking a voyage from ‘Eua to Tongatapu in 2019 when he had boarded 356 passengers, exceeding by 206 the maximum permitted of 150 passengers. There was no loss of life or harm to passengers. The defendant was aged 55 years with no previous convictions. He was a person of good character and there was no criticism of his technical competence as a Master. Cato J adopted a starting point of two years imprisonment reduced by six months for his current occupation and clear record. The final sentence was 18 months imprisonment, fully suspended on condition that he undertake 50 hours of community service. The maximum penalty at that time was $30,000 or a term of imprisonment not exceeding three years or both.
[11] The second case referred to by the learned Magistrate was R v ‘Ilangana.^[2] The defendant was convicted after trial on one count under s 122 (a) and (b) of the Shipping Act after an increase in penalties in 2002. The ship had sailed with 119 passengers, exceeding the limit of 90 passengers by 29. The defendant had a good record, had not previously offended, and had a favourable pre- sentence report. He was sentenced to 12 months imprisonment fully suspended for two years on condition that he undertake community service of 40 hours.
[12] Senior Magistrate Kaufusi noted that the appellant had “a criminal record of similar nature” and had served a term of imprisonment in 2011. After referring to references proffered by the appellant, the learned Magistrate noted that Parliament had the clear intention of having regard to the safety of the public. He observed that, in 2022, Parliament had increased the penalty from $30,000 or a term of imprisonment of up to three years or both to a fine of $50,000 or a term of imprisonment of up to five years or both. He took into account that the appellant knew his Certificate had expired on 17 April 2023; he knew that he was not fit to travel because his Certificate had expired; Parliament had prioritised the lives of the public in increasing the penalty in 2022; and it was shown that the appellant had not learned because he committed an offence of “a similar nature” in 2011 for which he had served imprisonment. After referring to the sentence by Cato J in R v ‘Evona ‘Akau, the appellant was sentenced to two years imprisonment for Count 1 with a concurrent sentence of six months imprisonment on Count 2. Although the appellant had made a “diligent contribution” to church, town and family, the learned Magistrate considered in respect of a suspended sentence that the case of Mo’unga v R had “closed that door”.

The judgment on appeal to the Supreme Court

[13] In the Supreme Court, Tupou J considered and rejected an application on behalf of the appellant to introduce further evidence on appeal. First, the appellant sought to introduce a receipt dated 18 April 2023 issued to the appellant for the purpose of renewing his Certificate of Competency. The second was a statement by a master mariner, Mr Semisi Tangataevaha. The main point of his evidence was a comparative analysis based on risk due to the size of the vessel, its stability, load line and life-saving appliances carried on board. In particular, he expressed the opinion that the case of ‘Akau was more serious because there were 206 excess passengers and the vessel was smaller than M.V. ‘Otuanga’ofa. He considered the appellant’s case was more analogous to the ‘Ilangana decision referred to below. He added that if an application had been made to extend the passenger numbers, it would likely have been granted.
[14] Tupou J noted that both items of evidence were available but not tendered at the time of trial and sentencing in the Magistrates Court. She accepted that the appellant had paid for his certificate of competency prior to departure but considered this did not negate the fact that when he set out to sea, the appellant did not hold the relevant certificate. For that reason, the production of the receipt did not assist and would not have changed the sentence imposed. As to the statement tendered by the master mariner, Tupou J considered that the technical opinion he expressed should not be interpreted as diminishing the appellant’s culpability and to absolve him from the responsibility of a ship master of his experience. She went on to deal with the ‘Akau case concluding that the starting point adopted below could not be faulted. We discuss this further below but, for present purposes, we understand Tupou J to have concluded that the master mariner’s evidence would not have affected her conclusion.
[15] As to the merits of the appeal, Tupou J did not accept the submission made on behalf of the appellant that the Court below had wrongly taken into account the sentence imposed in the ‘Akau case.
[16] Her Honour observed that the starting point of two years imprisonment adopted in ‘Akau reflected the seriousness of the offending in relation to the maximum penalty at that time. However, at the time of the instant offending, the maximum penalty had been increased in 2022 from three years to five years imprisonment. In those circumstances, the adoption of a two year starting point was considered to be reasonable. It was approximately 40% of the maximum penalty at the time of the offending. By comparison the starting point adopted in ‘Akau was approximately 67% of the then maximum penalty.
[17] In summary, Her Honour said:

35. The Learned Magistrate set out his considerations at pages 3-4. He considered the previous conviction, the favourable references, the intention of Parliament to protect lives at sea by increasing the maximum penalty under the relevant s.122 of the Shipping Act, and the following aggravating factors; (a) the appellant was aware his certificate of competency has expired; (b) he was aware he ought not sail the ship as a result; and (c) the appellant had not learnt from his previous conviction 2011 where he served 6 months in prison.
    • [18] Tupou J concluded that the sentence aligned with the concern of Parliament manifested in the increase in the applicable penalty; principles of personal and general deterrence to ship masters who intend to adopt a lax attitude putting lives at risk; denunciation and the need to protect the public. Finally, largely for the reasons given by the learned Magistrate, Tupou J rejected the submission that a suspended sentence ought to have been permitted.

Points on appeal

[19] The appellant was previously represented by Mr Tevita ‘Aho but now represents himself assisted by a Mckenzie friend. Mr ‘Aho filed a notice of appeal on 5 June 2025 which raised the following issues:
(a) The learned Magistrate erred in describing the appellant’s previous conviction for manslaughter as an offence of the “same nature” as the subject offending.
(b) The learned Magistrate erred in adopting the starting point of two years based on the Akau case.
(c) On appeal, Tupou J wrongly affirmed the decision of the learned Magistrate and upheld a sentence that was manifestly excessive.
(d) Tupou J wrongly refused to admit on appeal the evidence the appellant sought to introduce (the fee receipt and the evidence of the master mariner. )
(e) The Supreme Court had no jurisdiction to hear the appeal.

• [20] The appellant has since filed a “Skeleton Argument” in which he raises a number of other issues not included in the notice of appeal. We accept Mr Fifita’s submission for the respondent that it is not open to the appellant to raise new issues not included in the notice of appeal. This appeal has been allowed by leave of the Supreme Court or this Court under section 74(2) of the Magistrates Court Act. An appeal under that provision is limited to specific points of law. The appellant was ordered to serve a notice of appeal on the respondent within 14 days of the grant of leave which resulted in the filing of the notice of appeal. It is not permissible for the appellant to raise further grounds of appeal in this context without the leave of the Court. We are not prepared to do so.
• [21] We also reiterate that the grant of leave to appeal in this case is limited to sentence. It is not permissible for the appellant to challenge his conviction by, for example, submitting that he was wrongfully convicted and that a miscarriage of justice had occurred.
• [22] We add that the statutory scheme relating to decisions of the Magistrates Court is to provide for a right of appeal to the Supreme Court on the merits under s 74(1) of the Magistrates Court Act. There is a further right of appeal to this Court under s 74(2), with leave of the Supreme Court or this Court, confined to points of law. The focus on the further right of appeal under s 74(2) is on points of law arising from the decision of the Supreme Court. Often the identified points of law will have also arisen in the decision of the Magistrates Court and feature again in the Supreme Court’s decision on the same point. But they may also arise in relation to a fresh point of law from the decision in the Supreme Court.
• [23] We have concluded that several of the grounds raised in this appeal are not points of law and instead amount to an impermissible challenge on the merits of the sentence imposed in the Magistrates Court. Nevertheless, given the public interest in the importance of safety at sea, we have considered the appeal more broadly than would otherwise have been required.

The appellant’s prior conviction for manslaughter

[24] In 2011, the appellant was convicted of a charge of manslaughter by negligence arising from an incident at sea which resulted in the loss of life. Specifically, the charge arose from permitting a ship to sail without a certificate or mark or stability information as well as sending an unworthy ship to sea. A term of six months imprisonment was imposed. We accept that the previous conviction for manslaughter was a significantly more serious matter than the offending currently under appeal. The conviction was for a crime under the Criminal Offences Act punishable by 10 years in prison and it involved a serious loss of life.
[25] We are satisfied that the use of the phrase “similar nature” used by the learned Magistrate arose from submissions made initially on behalf of the respondent. However, we are not persuaded that the learned Magistrate misunderstood the nature of the previous conviction or that this led him to impose a sentence that was longer than that which would otherwise have been imposed. The focus of the sentencing decisions in both Courts below was on the comparator cases of Akau and ‘Ilangana, both of which involved offences under section 122 of the Shipping Act.
[26] In the Supreme Court, Tupou J took into account that a former counsel for the appellant (not Mr T’ Aho) had conceded in the Magistrates Court that the 2011 conviction was of a “similar nature”. We have reviewed the appellant’s submissions which repeat, without apparent challenge, the Crown’s description of the previous conviction as being of a “similar nature” as an aggravating factor. To the extent that Tupou J relied on that apparent concession it was not therefore in error. As already noted the focus was on the comparator cases already discussed. The fact remains that the appellant had previously been convicted of serious offending relating to safety at sea, albeit of a significantly more serious nature, and this was plainly a factor relevant to sentencing. We are not persuaded there is any error capable of an appeal on this ground.
[27] We add that an error of fact would not normally qualify as a point of law for the purposes of a second appeal but we do not rule out the possibility that a material error of fact that led to a miscarriage of justice could constitute a point of law in an appropriate case.

The starting point of two years

[28] The principal argument on this ground of appeal is that the facts in Akau were more serious since the number of passengers involved exceeded by 206 the maximum permitted of 150 passengers. However, the learned Magistrate and Tupou J on appeal were justified in adopting a starting point of two years notwithstanding the difference in seriousness, given the material increase in penalty for the subject offending which had occurred by the time of the appellant’s offending. Plainly, this reflected Parliament’s concern about the risk to life at sea should appropriate safety standards not be adhered to.
[29] We accept that the sentence of 12 months imprisonment fully suspended for two years on conditions in ‘Ilangana resulted in a relatively lenient penalty in a case involving a slightly higher excess (29 passengers) over the authorised limit. The defendant had been convicted after trial and was not entitled to a discount on that account. However, he had a good record and had not previously offended. Unlike the present case, the defendant had not been additionally charged under s.60 with serving on a ship without the required certificate of competency.
[30] An argument of this nature is commonly raised in general appeals but would not normally constitute a point of law for a second appeal. An assessment of comparative cases is a routine task for the sentencing judge exercising discretion and judgment. Only in an extreme case of obvious error could there be an error of law on such a basis.

Manifestly excessive sentence

[31] Tupou J adopted the well-known principle that the Court will not intervene with the exercise of a Magistrate’s discretion on sentencing unless the sentence in question is manifestly excessive or manifestly inadequate or wrong in principle. Something is manifest when it is clear and obvious. A sentence will not be interfered with on appeal merely because the appellate court might consider it to be on the severe side. The appellant must show that the sentence imposed was excessive in the sense of being outside the appropriate range for the particular offence and the particular offender.^[3]
[32] The sentence reflected the seriousness of the offending, Parliament’s concern for passenger safety and took into account the appellant’s previous conviction. We accept there was no actual harm caused to any passenger, but the Courts below were entitled to take into account that the fixing of safeguards such as the number of passengers permitted on vessels recognises the public interest in measures designed to reduce the risk of loss of life or harm should those limits be exceeded. The appellant was not entitled to any discount for a guilty plea, nor did he have an unblemished record. The Courts below took into account the favourable references placed before the Court and his family circumstances.
[33] Given the seriousness of the offending, the appellant’s age and previous record the courts below were right to rule out the possibility of a suspended sentence.
[34] An appeal submission relying on manifest excess could not be regarded as a point of law for present purposes unless there was a material error of principle. We do not detect any such error. In any event we conclude that the final sentence imposed of two years imprisonment was within the appropriate sentencing range and was not shown to be manifestly excessive.

Refusal to admit further evidence on appeal

[35] Much attention was given to this issue in the submissions advanced by both the appellant and the respondent. However, we can deal with the issue shortly. In terms of section 79 of the Magistrates Court Act, the Supreme Court may in its discretion and on “good cause” admit fresh evidence. Tupou J adopted the relevant principles derived from Cocker v Cocker^[4] where Ward CJ in turn adopted the principles pronounced by Lord Loreburn LC in Brown v Dean^[5] and Denning LJ in Ladd v Marshall.^[6] Three conditions must be fulfilled before fresh evidence may be admitted. It must be shown that the evidence could not have been obtained with reasonable diligence at trial; the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; third, the evidence must be apparently credible although it does not need to be incontrovertible.
[36] Plainly, both the fees receipt and the Master Mariner’s evidence could with reasonable diligence have been obtained and presented before the learned Magistrate but was not. Secondly, Tupou J accepted on appeal that the appellant had in fact paid the relevant fees prior to departure.^[7] The difficulty for the appellant was that he was aware his certificate had expired but went to sea knowing that it had not been renewed.
[37] As to the evidence of the master mariner, Tupou J accepted that his evidence would not have altered her conclusions about the sentence. We are not persuaded it would have assisted the Court. It purported to be an “expert comparative analysis” of the Akau and ‘Ilangana cases and the appellant’s case. This is a function routinely undertaken by the Courts and did not require an expert. It was accepted there was no loss of life or harm caused to passengers. Attempts to blame others were immaterial. There was no basis to allow the introduction of this evidence on the appeal.
[38] It would have constituted a point of law if the Supreme Court had adopted a wrong principle in refusing to admit the additional evidence but there is nothing to support any such error.

The Supreme Court’s jurisdiction to hear the appeal

[39] This ground does clearly raise a point of law. The charges against the appellant were committed to the Supreme Court for arraignment because Count 1 was an indictable offence. The matter was administratively allocated a Supreme Court case number, and it remained a Supreme Court file until it was remitted by agreement of the Court and the parties to the Enhanced Jurisdiction of the Magistrates Court pursuant to section 36 of the Magistrates Court Act. In terms of section 36(2), upon the case being remitted under subsection (1), “the Magistrate shall proceed to deal with such case summarily in the manner provided in section 24”. Pursuant to section 11(4) of the Magistrates Court Act, specific Magistrates are given statutory power to deal with indictable offences such as the present case.
[40] Section 74(1) of the Magistrates Court Act conferred the appellant’s right to appeal to the Supreme Court and, with leave, to this Court under section 74(2). We accept the respondent’s submission that section 74 of the Magistrates Court Act conferred jurisdiction on the Supreme Court to hear the appellant’s appeal whether it arose from the ordinary jurisdiction of the Magistrates Court or from its Enhanced Jurisdiction. We also reject the submission that the decision of the Magistrates Court in this case should be treated as a decision of the Supreme Court with the consequence that there was a direct right of appeal to this Court.

Result

[41] The appeal is dismissed.

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Randerson J

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White J

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Harrison J

^[1] R v ‘Evona ‘Akau CR 181 of 2019.
^[2] R v ‘Ilangana CR 185 of 2023.
^[3] Hoko v Police [2004] Tonga LR 84, at paras 100 and 151.
^[4] Cocker v Cocker [2002] Tonga LR 249.
^[5] Brown v Dean [1910] AC 273.
^[6] Ladd v Marshall [1954] 1 WLR 1489.
^[7] Paragraph 25(c).