IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku’alofa

CA 438/97 & 1355/97

Manu

v

R

Lewis CJ, Burchett, Tomplins JJ 
27 July 1998; 7 August 1998

Practice and procedure ⎯ appeal after guilty plea ⎯ dismissed Criminal procedure ⎯ appeal after guilty plea ⎯ dismissed 

The two appellants were charged with two offences under the Customs and Excise Act. Part way through a defended hearing, both appellants changed their pleas to guilty to both charges. They were each fined $11,088.00 on one charge and $50,760.00 on the other. Orders for forfeiture were made. The appellants appealed against conviction and sentence. 

Held: 

1. An appeal against conviction following a plea of guilty can only succeed in very exceptional circumstances. 

2. Section 310 leaves the court with no discretion concerning the penalty to be imposed where a person has been found guilty of an offence under that section: the court had no option but to impose a penalty of triple the value of the goods or $200.00 whichever is greater, and to forfeit the goods. 

3. The appeals against conviction by both appellants in respect of both charges were dismissed. The appeals against the sentences imposed were also dismissed. 

Cases considered: 
R v Forde [1923] 2 KB 400; [1923] All ER Rep 477 
R v Ripia [1985] 1 NZLR 122 (CA) 
R v Stretch [1982] 1 NZLR 225 (CA) 
R v Turner [1970] 2 QB 321; [1970] 2 All ER 281 
R v Turrall [1968] NZLR 312 

Statutes considered: 
Customs and Excise Act Cap 67
Magistrates’ Courts Act Cap 11
Supreme Court Act Cap 10 

Counsel for first and second appellants: Mr Veikoso 
Counsel for respondent: Mr Cauchi 

Judgment

Both appellants were charged with two offences under the Customs and Excise Act (Cap 67) (“the Act”). Part way through a defended hearing, both appellants changed their pleas to guilty to both charges. They were each fined $11,088.00 on one charge and $50,760.00 on the other. Orders for forfeiture were made. Both appellants have appealed against conviction and sentence.

The offences charged

Both appellants were charged with “Evading customs law contrary to section 210(1)(e) of the Customs and Excise Act (Cap 67)”. In respect of this indictment, the particulars of the offence were that each appellant: 

“… on or about 9 April 1996 at Ma’ufanga was knowingly concerned in a fraudulent evasion relating to removal of uncustomed goods namely, 12 cartons of Winfield cigarettes and 2 cartons of Port Royal tobacco.” 

Both appellants were also charged with “Knowingly acquiring possession of goods with intent to defraud the revenue of duties thereon, contrary to section 210(d) of the Customs and Excise Act (Cap 67)”. 

Particulars of the offence in this indictment against the appellant Manu were that: 

“… on or about March 1996 you knowingly were concerned with dealing with 14 boxes of spirit bottles with intent to defraud the revenue of duties from those boxes when you sold those boxes to Branco Sugar of Ma’ufanga” 

Particulars of the offence in this indictment against the appellant Fainga’a were that: 

“you did on or about March 1996 knowingly acquire into your possession 14 boxes of spirit bottles from the Leiola Duty Free Shop in Ma’ufanga with intent to defraud the revenue of duties thereon”.

The application to reverse the pleas of guilty 

These and other charges against both appellants and a co-accused came before Finnigan J in the Supreme Court on 3 March 1998. Part way through the hearing Mr Veikoso, counsel for these appellants, and counsel for the co-accused, indicated to the Judge that, on the basis that the Crown would elect to call no evidence in respect of the other charges, the appellants and the co-accused would plead guilty to the charges under the Act. This course was adopted. The other charges were dismissed. In respect of these two charges pleas of guilty by both appellants were entered. Both appellants were remanded to 24 March 1998 for sentence. 

On that day Mr Veikoso, appearing for the appellants, submitted to the Judge that, in respect of both charges, there were defences available to the appellants. He submitted that because, as he put it, he had “entered the wrong plea” he asked that the pleas of guilty be reconsidered. The Judge in his reasons for sentence held that that was not the time for him to consider any application for change of plea, and that he was bound to sentence the appellants on the pleas of guilty. Nevertheless, he went on to decide the merits of the submissions Mr Veikoso had advanced, concluding that the pleas of guilty were correctly entered. 

In this court, Mr Veikoso submitted the reasons for sentence do not accord with his understanding of the events that occurred concerning the change of pleas. He thought that the Judge had granted the application to change the pleas. We are satisfied that Mr Veikoso’s recollection of the reaction of the court to his application to change the pleas is not correct. It is clear from the transcript of the reasons for sentence that the Judge did not grant that application. On the contrary, as we have said, he declined to entertain the application at that stage. However it is possible that Mr Veikoso may have misunderstood the Judge’s response, because he did deal with the grounds Mr Veikoso had advanced. 

An appeal against conviction following a plea of guilty can only succeed in very exceptional circumstances: R v Stretch [1982] 1 NZLR 225 (CA) at 229, Cooke J, delivering the judgment of the Court. In that case an accused, who had pleaded guilty to a charge of murder and who had been sentenced thereon, applied for leave to appeal against his conviction on the ground that he had made a mistake in pleading guilty. Cooke J cited what he described as the dictum often quoted of Avory J in R v Forde [1923] 2 KB 400 at 403; [1923] All ER Rep 477: 

“A plea of guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge, or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged.” 

Cooke J went on to say that that statement, which was unaccompanied by reasons or citation of other authority, is not necessarily exhaustive, referring for example to R v Turner [1970] 2 QB 321; [1970] 2 All ER 281, where a plea of guilty was treated as a nullity after a defendant changed his plea to guilty during the trial under a misunderstanding. 

In R v Ripia [1985] 1 NZLR 122 (CA) Mc Mullin J, after referring to Cooke J’s observations in Stretch, also cited the comments of Hardie Boys J in R v Turrall [1968] NZLR 312 at 313, where he allowed an application to withdraw a guilty plea on the broad principle that the interests of justice demanded that the accused should be allowed to change his plea: 

“This Court should be the fountain of justice and ensure that no man is wrongfully convicted even if it is his own foolish act that has brought the situation about”. 

We are prepared to consider the issues raised by Mr Veikoso in his submissions before us, to determine whether the appellants should have been allowed to withdraw their guilty pleas either on the second ground referred to by Avory J in Forde, namely, whether on the admitted facts, they could not in law have been convicted of 120 the offences charged, or on the ground that it is in the interests of justice that the appellants should be allowed to change their pleas.

The spirit bottles indictment

The statement of offence against both appellants relating to the fourteen boxes of spirit bottles alleges an offence “contrary to section 210(d)” of the Act. At the hearing on 24 March 1998, Mr Veikoso submitted that there is no such section in the Act. For that reason he submitted that that charge should be dismissed against both appellants. Mr Cauchi for the Crown applied to amend the statement of offence by substituting for the words “contrary to section 210(d)”, the words “contrary to section 210(1)(d)”. The Judge granted that application for amendment, holding that there had been no misunderstanding about the nature of the charges under section 210(1)(d). 

In this court, Mr Veikoso submitted that the judge had no jurisdiction to amend the charge in the manner that he did, referring to s 90 of the Magistrates’ Courts Act (Cap 11), relating to amendments in criminal cases, and to s 5 of the Supreme Court Act (Cap 10), providing that the Supreme Court shall have power to exercise all the powers of the Magistrates’ Court. Since the amendment made by the Judge was not within s 90 of the Magistrates’ Courts Act, he submitted that the court had no jurisdiction to make the amendment. 

We do not accept that submission. It will have been obvious to any person considering the charge that the intention was to charge the appellants with offences against s 210(1)(d). It would have been equally obvious that the omission of the reference to subs (1) was a simple typographical error. The Supreme Court has an implied jurisdiction to make appropriate amendments in such a case, providing of course that the accused person is not unfairly prejudiced by the amendment. There was no suggestion of prejudice in the present case. Indeed on the contrary, that both appellants were prepared, after competent legal advice, to plead guilty to the offences, confirms the absence of prejudice. The amendments were properly made. This ground for seeking to withdraw the guilty pleas on these charges has not been made out.

The cigarette indictment 

The relevant parts of s 210 of the Act under which each appellant was charged 150 in this indictment read: “210. (1) Every person who – 

… 
(d) is in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any import or export duties of customs, or of the laws, and restrictions, of the customs relating to the importation, warehousing, delivery, removal, loading and exportation of goods; 

shall be guilty of an offence and for each such offence incur a penalty of triple the value of the goods or $200 which ever is greater; and all goods in respect of which any such offences shall be committed shall be forfeited.” 

Mr Veikoso submitted that these charges were wrongly laid because the section refers to taking goods from a warehouse. He submitted that the Leiola Duty Free shop was not a government warehouse nor a private warehouse. He submitted the appellants should have been charged under s 214, which relates to offering goods for sale under pretence that they are smuggled. 

This submission misunderstands the nature of the charge. It is not a charge relating in any way to the warehousing of goods. In respect of the appellant Manu the charge was that she “… was knowingly concerned in a fraudulent evasion relating to the removal of uncustomed goods …” In the case of the appellant Fainga’a, it was that he did “knowingly acquire into your possession 14 boxes of spirit bottles from the Leiola Duty Free shop … with intent to defraud the revenue of duties thereon”. Both these charges are clearly within the subsection. In neither of the charges was any issue of warehousing or selling from a warehouse an ingredient that the Crown was required to prove. This ground upon which Mr Veikoso sought to justify the withdrawal of the guilty pleas has also not been made out.

The appeal against sentence.

Section 310 leaves the court with no discretion concerning the penalty to be imposed where a person has been found guilty of an offence under that section. The court has no option but to impose a penalty of triple the value of the goods or $200.00 whichever is greater, and to forfeit the goods. Mr Veikoso did not submit that the penalty in the present case had been in any way incorrectly calculated. 

The result 

We do not find any reasons why, in the interests of justice, the appellants should be allowed to change their pleas of guilty. The appeals against conviction by both appellants in respect of both charges are dismissed. The appeals against the sentences imposed are also dismissed.