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R v Fifita [2025] TOSC 44; CR 158-159 of 2023 (6 June 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR 158 & 159 of 2023

BETWEEN :
REX
Prosecution

AND :
1. FINE TEVITA FIFITA
2. VAIVEVEA MAFI
Accused

JUDGMENT AND VERDICT

BEFORE: HON. JUSTICE TUPOU KC

Appearances: Mr. James Lutui, DPP & Mr ‘A. Fisi’iahi for the Prosecution
Fine Tevita Fifita in person
Vaivevea Mafi in person

Date: 6 June, 2025

Preliminary Matters

1. When the matter was called at 10am on date of trial, the Accused had not been provided with the Information for self-represented Defendant in criminal trials issued in March 2020. I adjourned until 2pm so that the Accused could be provided with the said document and have time to read through and understand.
2. When the matter resumed at 2pm and prior to the commencement by Prosecution I took the opportunity to clarify to them the trial process, the burden and standard of proof and that it rested with the Prosecution throughout the trial. They were informed of the procedure around the giving of evidence and their right to cross-examine witnesses and that at the end of the Prosecution’s case; they could give evidence or call others to give evidence on their behalf.
   
3. Further, that at the end of the trial it would be open for them to make submissions to the court regardless of whether they gave evidence or not. That they could ask for clarification or questions at any stage of the proceedings.

The Charges

CR 158 of 2023 – Fine Tevita Fifita (“Fifita”)

4. On 27 November, 2023 Fifita pleaded not guilty to all 5 counts on his indictment. In his opening address the Director for Public Prosecutions withdrew the charges in respect of Count 3 reducing the charges against Fifita to 4 Counts. Those remaining charges were:

Count 1- the unlawful importation of an illicit drug, contrary to section 3 (e) of the Illicit Drugs Control Act, when on or about 27 April 2023, at Ma’ufanga, he knowingly without lawful excuse, imported 1157.4g of methamphetamine a class A drug.

Or in the alternative to Count 1

Count 2- possession of an illicit drug, contrary to section 4(1)(a)(iv) of the said Act, when on or about 27 April, 2023, at Ma’ufanga, he did knowingly without lawful excuse, possess a Class A illicit drug, when he had in his possession 1157.4 g of methamphetamine,

Count 3- withdrawn

Count 4- offering to bribe a member of the Tonga Police, contrary to sections 165 (1) and (3) of the Tonga Police Act, when on or about 27 April, 2023, at Ma’ufanga, when he offered to give Sergeant Sione Punaivaha (“Punaivaha”) money to induce him to refrain from carrying out his duty as a Police Officer to help him not get arrested for importing illicit drugs, and;

Count 5- offering to bribe a government servant, when on or about 27 April, 2023, at Mau’fanga, he did offer money to a government servant, ‘Iuna Ramona Montyblew Theresa Latu Fifita (“Iuna”), a customs officer, to induce her to abstain from doing her duty, by abstaining from reporting the suspected illicit items found in the buckets he possessed, contrary to section 51 of the Criminal Offences Act.

CR 159 of 2023 – Vaivevea Mafi (“Mafi”)

5. Also on 27 November, 2023 Mafi pleaded not guilty to:

Count 6 - the unlawful importation of an illicit drug, contrary to section 3 (e) of the Illicit Drugs Control Act, when on or about 27 April 2023, at Ma’ufanga, she knowingly without lawful excuse, imported 1157.4g of methamphetamine a class A drug.

The relevant legislation in respect of:

Counts 1 and 6

6. Section 3 (e) of the Illicit Drugs Control (Amendment) Act, reads:

“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 quanitity of 28 grams or more, to life imprisonment.”

Count 2

7. Section 4(1)(a) (iv) of the Illicit Drugs and Control Act, reads:

“Any person who knowingly without lawful excuse, the proof of which shall lie on him (a) possesses, .............. an illicit drug; ........., commits an offence and shall be liable upon conviction —.

(iv) in respect of a Class A drug in the quantity of 1 gram or more, to a fine not exceeding $1,000,000 or to imprisonment for any period not exceeding life or both.”

Count 4

8. Section 165 (1) and (3) of the Tonga Police Act, reads:
   • (1) “A person commits an offence if the person gives, or offers to give, to any member of Tonga Police, or to a person performing functions on behalf of Tonga Police, any money or other benefit as an inducement to do or refrain from doing any act in the execution of the police officer’s duty as a member or in the performance of the person’s function on behalf of Tonga Police.
   • (2) Any person who commits an offence under subsection (1) or (2) shall be liable upon conviction to pay a fine not exceeding $25,000, or imprisonment for a period not exceeding 7 years, or both.

Count 5

9. Section 51 of the Criminal Offences Act, reads:

“Every person who shall give or offer any money or valuable consideration of any description whatever to any person in the service of the Government as an inducement to do or abstain from doing any act in the execution of his duty as a Government servant or as an inducement to show favour or disfavour to any person shall be liable to imprisonment for any period not exceeding 3 years”

The elements

10. To secure a conviction against the Accused persons, the Crown must prove beyond any reasonable doubt, each and all of the following pre-requiste elements, that:

CR 158 of 2023 – Fifita

Count 1 –

1. Fifita, on or about 27 April 2023 at Ma’ufanga;
2. knowingly;

100. without lawful excuse,

4. imported into Tonga;
5. 1157.4 grams of methamphetamine, an illicit drug.

Or alternatively,

Count 2 –

1. Fifita, on or about 27 April 2023 at Ma’ufanga;
2. knowingly

100. without lawful excuse

4. possessed;
5. an illicit drug, 1157.4 grams of methamphetamine.

Count 4 -

1. Fifita, on or about 27 April 2023 at Ma’ufanga;
2. offered to give a member of the Tonga Police, Punaivaha;

100. money;

4. as an inducement for him to refrain from doing an act;
5. in the execution of his duty as a Police Officer.

Count 5-

1. Fifita, on or about 27 April, 2023 at Ma’ufanga;
2. offered money;

100. to a government servant – Cusotms Officer, ‘Iuna:

4. as an inducement;
5. to abstain from doing any act in the execution of her duty as a government servant.

CR 159 of 2023 – Mafi

Count 6 –

1. Mafi, on or about 27 April 2023 at Ma’ufanga;
2. knowingly;

100. without lawful excuse,

4. imported into Tonga;
5. 1157.4 grams of methamphetamine, an illicit drug.

Cautions

11. In considering a verdict for the cases against Fifita and Mafi, I bear in mind that the Crown bears the burden of proving each element that constitutes the charges it has brought against the Accused persons beyond reasonable doubt. That burden and standard is unchanging throughout the trial.
12. Secondly, that the Accused persons are under no obligation to prove or disprove anything and it follows that there exists no obligation for them to give or call any evidence unless they so choose.
13. Here, both accused elected to give evidence but there is no significance in that. The onus and the standard are unchanging, (with the exception of the burden shifting to them if they relied on the defence of a lawful excuse for Counts 1, 2 and 6, which they did not) and rest on the Crown throughout the trial.
14. Thirdly, I remind myself that I must judge the matter only on the evidence which I have heard in this Court and that the Crown’s case must stand or fall on the admissible evidence the parties choose to call before me in this court.

The Crown’s Evidence

15. The Crown called 8 witnesses and produced 13 documents with the consent of both accused. They were:
    1. P1 – Certificate of Analysis prepared by Seargent Castern Leveni;
    2. P2 – Bundle of Photographs (15 photographs);
    100. P3 – Diary of Action;
    4. P4 – Search List.
    5. P5 – Bill of Lading
    6. P6- Importer Authorisation & Declaration Form
    7. P7 – Detention Notice
    8. P8 – Transfer/Cart Note

9. P9 – Search Warrant Application for Phone by Seargent ‘Omai ‘Uvea& Documents received from TCC
10. P10- Profiling of Facebook Page “Tevita Kaimoeafi Tau”
    11. P11 – Celebrite Extraction Report 1

50. P12- Celebrite Extraction Report 2
    13. P13 – Celebrite Extraction Report 3)

16. In April 2023, the MV Mount Cameron arrived in Tonga. It was carrying cargo originating from the United States of America, including container number HASU4514280 which contained a 4x4 crate from a Shipper/Exporter named “Lolani Finau” directed to the Consignee named “Vaivevea Mafi”, the Second Accused.
17. Mrs. Pisila Kaho (“Kaho”), is 47 years old and was the Manager for S.F Oceania Ltd company in Tonga at the relevant time. She had been employed there for 23 years.
18. She attended to Mafi on 27 April, 2023, to clear her crate. Kaho noted that the crate was originally consigned to a third party before it was changed to Mafi’s name on 13 April, 2023. According to her, such change is possible, only if done by the consignor, i.e, Lolani Finau.
19. On the day in queston she verified Mafi’s identity, printed the Bill of Lading (“BOL”-P5) and handed the paperwork to the customs officers already there to inspect cargo. The content of the crate were described on the BOL as clothes, shoes, soap, purses and candy.
20. The second witness was Customs Officer ‘Iuna Ramona Montyblew Theresa Latu Fifita (“Iuna”). ‘Iuna is 25 years of age and has been employed as a customs officer for 5 years.
21. ‘Iuna was posted at the S.F Oceania Ltd warehouse at Ma’ufanga as part of team dispatched to inspect the cargo on the relevant shipment on 27 April, 2023. She received the BOL and Importer Authorisation and Declaration Form (“IAD”) (Exhibit 6) for Mafi’s crate.
22. The IAD form was filled out by the accused’s broker and signed by
    Fifita which declared:
    1. knowledge of the contents of the consignment;
    2. the goods were not for commercial purposes;
    100. it did not contain prohibited or restricted goods (listed prohibited goods included illicit drugs);
    4. it contained alcohol; and
    5. that it that did not contain cash worth TOP$10,000 or more.
23. ‘Iuna supervised the inspection the crate. She noticed Fifita and not Mafi inside the restricted area for the necessary inspection. She observed Fifita joining in to help unload the crate.
24. She described Fifita’s demeanour as abnormal and unsettled. She saw him take out from the crate a bucket labelled “laundry powder”. He placed the bucket amongst the items from the crate that were already inspected. Iuna suspected that it may contain the alcohol declared on the IAD form and called for the bucket to be brought to her for inspection. She told the court that this is also a known means of concealing drugs.
25. She found the bucket, as one would, after purchase from a shop, but it was difficult to open. The lid was tightly sealed as if it was glued. After she managed to open the lid, she reached inside. Her hand touched something and discovered a package wrapped in black material.
26. She asked Fifita what it was, he warned her “oua koe me’a ifi kae ‘oatu ha ki’i koini”, meaning, “don’t, it’s for smoking and I will give you money”. She described how he would not make eye contact even when he moved close to whisper to her. She understood he was proposing to bribe her to close the bucket and for them to deal with the matter on the side.
27. She felt scared and called out to Police Officer Pekipaki. It was the first time she encountered anything of the sort.
28. After Pekipaki took over, she said there were a total of 4 buckets in the consignment. Only two of the buckets contained suspicious packages and a Detention Notice (P7) and Transfer Note (P8) detaining those buckets ready for transfer to the Customs headquarters at the Queen Salote Wharf were issued. The other two buckets were returned to the crate.
29. On page 1 of the Bundle of Photographs (P2), ‘Iuna identified the crate consigned to Mafi that bore the name ‘Unaloto Ki Loma Tupou. She identified pg. 2 as a picture of the two offending laundry buckets; pg.5 shows one of the buckets opened with one black packet appearing inside and pg. 11 shows the second package found in the second bucket.
30. Under cross examination, Fifita put to ‘Iuna, that:
    1. it was not him she saw on the day in question;
    2. she showed particular interest in the buckets and therefore she must have known it contained drugs;
    100. she lied about what he whispered to her after she discovered the package and put to her that he said it was “omo”;
    4. when Iuna denied that, he put to her that he had whispered it was “ice”; and
    5. lastly, asked if he showed her any money on the day.
31. In response, ‘Iuna confirmed it was him that she saw on the day in question and rejected his proposition that she knew the buckets contained illicit drugs. Iuna agreed he did not show her any money on the day but added that when they were inside the customs room, Fifita had said to her that they “would have been rich from this”. To that, Fifita mumbled that he was not talking to her.
32. Mafi asked the witness who was authorised to pick up the IAD form. Iuna said it should have been her, Mafi.
33. The third witness was Police Officer Samiuela Pekipaki (“Pekipaki”). He is a member of the Detector Dog Unit with the Police Force.
34. He confirmed he was posted at the S.F Oceania Warehouse at Ma’ufanga on 27 April, 2023 and was the Police Officer Iuna notified about the black package she found in the offending laundry bucket. He confirmed that Iuna called out to him and briefed him about her discovery and that Fifita had said it “was stuff for smoking.” Pekipaki contacted his supervising officer, Seargent Punaivaha and reported the discovery of the package.
35. Pekipaki took over the inspection from that point on and inspected the remaining content of the crate. A further, 3 laundry powder buckets were uncovered. A second package was found in one of the 3 buckets.
36. According to Pekipaki, during the inspection, Fifita ranted on about how the crate was in another person’s name before it was changed to Mafi’s name. When Sergeant Punaivaha arrived, he opened the package and saw it contained white powder. Pekipaki was directed to find Mafi and for both accused be taken inside the Customs room, at the S.F Oceania warehouse.
37. Officer Pekipaki identified the two offending buckets on P2, ie, pg.2 and the photo of the inspection of the packages at the Customs Intel Office at the Queen Salote Wharf in the presence of Fifita and Mafi at P2, pg.5.
38. Fifita cross examined Pekipaki but nothing of relevance was raised.
39. Sergeant Sione Punaivaha (“Punaivaha”) was the Crown’s 4^th witness. He is 35 and is Superintendent of the Detector Dog Unit of the Tonga Police Force. He has held the position for 2 years but has been in the Unit for 10 years.
40. On the morning of 27 April, 2023, Punaivaha had dropped Pekipaki off at the S.F. Oceania warehouse before heading to another warehouse to oversee inspection of cargo there. Shortly, after arriving at his destination, he received a call from Pekipaki reporting the discovery of a black package concealed inside a laundry powder bucket.
41. Punaivaha returned to the S.F Oceania Warehouse and was briefed by Pekipaki about the situation. Punaivaha confirmed the presence of packages inside the two offending buckets and instructed for Mafi and Fifita to be brought inside the customs room.
42. Punaivaha described Fifita’s demeanour as worried and unsettled. Fifita ranted on about the crate being consigned to another prior to it being changed to Mafi’s name.
43. Then he said to Punaivaha, “tokoni mai ‘e ‘oatu ho’o koini” meaning “help me and I will give you money (coins)”. Punaivaha understood that as a direct bribe offered by Fifita to him to avoid arrest.
44. Once both Mafi and Fifita were insde the customs room, Punaivaha opened the buckets revealing the packages inside. Mafi and Fifita both denied any knowledge of the packages.
45. Mafi and Fifita were informed of their rights and then arrested. A phone in Fifita’s possession was also impounded. Punaivaha contacted the superintendent of the Drugs Taskforce unit, Police Officer Hungalu to notify him of the seizure.
46. Punaivaha confirmed the photo at P2, pg. 11^[1] showing the second package on top of the second laundry powder bucket.
47. The offending buckets with the suspected drugs along with Mafi and Fifita were transported to the Customs Intel Office at the Fe’aomoengalu Building on Queen Salote Wharf.
48. Fifita cross examined Punaivaha. He challenged Punaivaha’s evidence that he offered him money and put to him that he was asking for his help because the crate was originally consigned to another before it was changed to his wife’s name. Punaivaha rejected Fifita’s proposition and said Fifita offered to give him money before he told him about the change of name.
49. The 5^th witness was Constable First Class Mikaele Tonga (“Tonga”). He is a member of the Serious Organized and Transnational Crime Unit. He was amongst the officers present at the Customs office at Queen Salote Wharf on 27 April, 2023.
50. He recorded his involvement on the Diary of Action^[2] as:
    1. weighing of 01 exhibit laundry powder bucket^[3];
    2. weighing of 02 exhibit laundry powder bucket^[4]; and
    100. weighing and recording total weight of the bucket at 8kg^[5].
51. Tonga was responsible for labelling the packages of illicit drugs and the phone that was seized from Fifita. He confirmed that he is the one holding the package with gloves on at P2, pg.5.
52. Fifita asked Tonga if the drugs were still inside the buckets when he weighed them. Tonga said they were. Mafi did not cross examine Tonga.
53. Sergeant Tu’amelie Fifita (“Tu’amelie”) was the 6^th witness for the Crown. He is a police officer and member of the Police Drugs Squad.
54. On 27 April, 2023 he and several other officers of his squad responded to the call from the Customs office at Queen Salote Wharf in regards to the the black packages in the offending buckets. His role was to conduct the presumptive testing of the packages using the trunarc test machine.
55. When he arrived, there were two buckets on a table with a package placed on top of the content of each bucket. He was shown exhibits P2 and P3. On exhibit P2 he referred to pg.2 and confirmed the buckets labelled 1 and 2 were the offending buckets.
56. He described the package found in bucket 1 as shown on P2, pgs. 5-7. It was covered in black material with a second layer of white tape inside as shown at pg.6. The photo at pg.7 show his hand holding that first package.
57. After self testing the trunarc equipment to ensure it was working and showing the accused, Tu’amelie proceeded to test the content of the package from bucket 1. He explained that the test was done with the white powder contained in its packet. The result came back positive for methamphetamine and was shown to both Fifita and Mafi.
58. After the test, the packet containing methamphetamine was placed in a white envelope and the white tape were placed inside a brown paper bag and all were placed in a large white plastic bag and labelled bucket 1.
59. The package from the second bucket was wrapped in white plastic^[6], followed by a layer of 3 carbon sheets^[7] and then tape. The content tested positive for methamphetamine as shown at pg.14. Again, the results were shown to Fifita and Vaivevea.
60. After the test, the packet with the methamphetamine was placed in a white envelope, while the white plastic, sheets of carbon and white tape were placed inside a brown paper bag and labelled bucket 2. The content from the two packages is shown on photograph 15.
61. Under cross examination, Fifita asked Tu’amelie if when he received the first package it was half opened as shown at pg.5 of P2. Tu’amelie said it was.
62. In response to a question from the bench, Tu’amelie confirmed that there was no need to remove the substances from their packaging for the test. It was done with the substances in the packet.
63. Detective Sergeant Sione ‘Omani ‘Uvea (“’Uvea”) was the 7^th witness for the Crown. He is 37 and is from Houma. He has been a police officer for 7 years with 5 years as a member of the Serious Organized and Transnational Crime Unit.
64. On or about 12 May, 2023 he obtained a warrant to search Fifita’s confiscated phone (P9). The purpose being, to determine ownership of the phone numbers/sim cards inside the phone, call details, number and name for every outgoing and incoming caller and text messages to the respective ucall and digicel number on the said seized phone.
65. He also obtained authority to access all information on the phone, social messaging apps including phone lock pattern, pin number and password, facebook and whatsapp messages, phone logs, instant messages, emails, photos, files and deleted files.
66. In addition, ‘Uvea conducted the Records of Interview for both of the Accused persons. They both chose as is their right, to excercise their right to remain silent.
67. Officer ‘Ana Maui Langi (“Langi”), 30, was called as the 8^th witness. She is a member of the Serious Organized and Transnational Crime Unit.
68. She was responsible for the extraction of the relevant information from the confiscated phone using the extraction software called Cellebrite. She extracted and produced relevant images and messages from the said phone and also from facebook.
69. By conducting a profile of a Facebook account on the phone, she was able to confirm that the account with the profile Tevita Kaimoeafi Tau (Tau”) belonged to the Fifita. It can be seen at P10.
70. She identified the 4^th photo extracted as a live session by Fifita showing him during the session. Fifita used the account id number and name to hold the live video.
71. Using Cellebrite Langi was able to extract 484 photos from the said phone. She produced 6 of those photos as P11. Four out of those 6 photos showed prepared cassava. One showed a packet of white powder and the last one showed a container to the USA. The evidence was that those photos were taken with the accused’s phone.
72. Langi further produced P12 which recorded messages in messenger between Fifita and another facebook account identified as “Lion Finau” (“Lion”) confirmed by Fifita to be Lolani Finau - identifying the same account number 100086351045169 at P10 (Tau’s account) to that in P12. Langi stated that when attempts were made to access Lion Finau’s account, it had been deactivated.
73. The correspondence produced started from 24 April, 2023 right up to 27^th April, 2023 when the consignment was ready for pick up.
74. On 24^th April, 2023 (US time), Lolani communicated pleasantries with Fifita via facebook admitting he was feeling ill from the cold. Fifita recommended he bundled up and stayed warm. Lolani responded:

“Ko ia toko e toe mafana ange kapau osi mau ta puha” or “Yes bro, it will be much warmer when the crate is cleared.”

Tau responded:

“Me’a pau ia” or “For sure”

75. The transcript records 2 video calls on the same day with one lasting 30 minutes and 2 missed calls. On the 25^th April, 2023 Lolani asked Fifita about their “thing”. Fifita said that they would go and check if it was at the wharf the next day.
76. On 26^th April, 2023, after 2 missed calls, Fifita messaged that they were on their way to check on their “thing”. Lolani messaged he had been informed that the crate was available to be picked up. Fifita confirmed he was on the way there. Later, Lolani messaged:

“Fai mo mau toko katau nonga” or “Hope to clear it soon so we can be at peace”

77. Fifita agreed and messaged Lolani;

“Ko e fefine alu alea’i” or “the lady has gone to negotiate it”

78. There were several missed video calls before Fifita sent Lolani a photo of the crate saying:

“Toko ko e puha eni kou sio ki ai” or “Bro I can see the crate”. The photo attached corresponds to the photo at pg.12 of P13. According to Langi after calculating the time difference this photo was sent at approximately 11:14 am on 27 April, 2023 (Tongan time) by Fifita.

Lolani responded:

“Io toko sai ko eni mau ngaue toko lahi toko” or “Good bro, it’s crowded here at work”

79. Fifita further responded:

“Eni kou taitaimi pe mo leoleo naa hu h fkfihi” or “I am waiting and watching in case of any interference”

Lolani replied: “Io toko ma’alahi” or “yes bro, that’s great”

80. On 27^th April, 2023, Lolani messaged Fifita asking about the “thing”.

81. Lastly, Langi produced P13 containing photographs taken by the phone owner.
    1. pg. 4 is a photo of Fifita’s National Id;
    2. pgs. 5, 7 and 8 contain photos of a lot of cash^[8];
    100. pg.6 is a photo of multiple small plastic packs containing leaf material;
    4. pg. 9 -10 look like white substance in plastic bags;
    5. pg.11 is a plastic bottle turned into a “pongo”;
    6. pg.12 is a photo of the crate in question;
    7. pgs.13-14 show the same receipt for money transfers from Western Union from one Ofa Okusitino to Mafi on 21 April, 2023;
    8. pg. 15 shows a receipt from ‘Uliti Uata Shipping Agency for 8 packs of Manioke sent from Mafi to Lolani Finau on 4 April, 2023;
    9. pg.17 show another receipt from the same shipping company for Lu, Manioke and niu mata sent by Vaivevea Mafi and Tevita Kaimoeafi Tau to Lolani Finau on 6 April, 2023;
    10. pg.18 is another receipt from Uliti Uata Shipping for Manioke, Lu and Hopa, strangely, from Lolani Finau to Vaivevea Mafi.
82. Langi confirmed that all material she produced were extracted from the confiscated phone of the accused.
83. Fifita challenged Langi that information could not be extracted by the said program if the phone was locked. Langi confirmed their phone was not locked and that the program used would still extract the information regardless.
84. He challenged that there was no way of differentiating photos taken by the phone camera and those downloaded onto the phone. Langi explained that the difference between photos taken by the phone and those downloaded is, one taken with the phone camera, will show the following data: type of phone, date and time the photo was taken. For downloaded photos no such data will appear.
85. It is noted that all of the photos at P11 and P13 contain the details of the type of phone, a date and time.

First Defendant’s evidence

86. Fifita gave evidence, under oath. He explainted that he and Lani connected via facebook for the purposes of marketing his crops and produce in the United States of America (“US”). Lani had apparently seen posts of his crops on facebook and contacted him.
87. He further explained that one Topini Manu with whom he grew up with at Fo’ui was in the US working with Lani and it was he, that urged Lani to consign the crate to Fifita.
88. It was agreed that Fifita would export his produce to Lani in the US. Fifita required funds from Lani to pay for petrol and his workers. As a result, Lani decided to change the subject consignment to Fifita.
89. However, according to Fifita, he had never had any cargo consigned to him and did not have such experience, so he asked that it be consigned in his wife’s name. Mafi agreed. Fifita claims he knew there was a lot of alcohol in the consignment but Lani never told him about the drugs.
90. Fifita claimed ‘Iuna paid particular attention to his crate and accused her of possessing prior knowledge of the presence of drugs in the consignment because she knew Malu Fakauho. In addition, he said that ‘Iuna insisted he signed the IAD form for the inspection to commence.
91. He said, he told the broker he did not have enough money for the crate but there was alcohol in the crate and apparently Iuna asked where the alcohol was for inspection. While they were looking for the alcohol, ‘Iuna called for him to bring the bucket of laundry powder to her. She opened it and asked him “what is this?”. He told her it was a bucket of ‘Omo. ‘Iuna asked again and he told her it was “aisi” or “ice”.
92. Fifita claimed Iuna kept the offending package for about 15 minutes before she called out to the police officer. He said she was trying to hide the bucket from people, the broker and him. He claimed she held a friendly conversation with him and she wanted him to throw the package somewhere.
93. He disputed ‘Iuna’s claim that he appeared abnormal. He said that he only became agistated when he knew he would be arrested and that he informed the police that he knew about the package only when Iuna asked him about it.
94. Under cross examination Fifita accepted he had no right to import illicit drugs to Tonga and accepted the crate in question was sent for him.
95. Fifita denied bribing ‘Iuna or Punaivaha with money in lieu of their help. He said that it was the people standing around that said “ne mau mei tu’umalie ai” or “we would have been rich from this”.
96. He was asked why Iuna would lie in her evidence that he told her the package was substance for smoking. Fifita said that the person for whom the crate was originally intended was Malu and ‘Iuna knew him.
97. He was asked about Topini Manu. Fifita explained that he grew up with him at Fo’ui. He works with Lolani and it was he that told him Lolani was looking for someone to send the crate to. He claimed it was Topini that persuaded Lolani to change the name of the consignment to him.
98. He was asked why he was attending to the crate if he did not have any experience and why he did not let Mafi deal with it. He said he told the brokers that he was there for the crate in question and that’s what he did that day, without answering the question.
99. He was shown the BOL and IAD. He admitted the IAD was completed by the broker with his help. He could not make up his mind if he signed the Detention Notice and the Transfer note or not.
100. He was referred to P2 and accepted all the Crown’s evidence in respect of the photos therein.
101. He was referred to P10. He admitted the facebook page name Tevita Kaimoeafi Tau was his facebook page. He accepted that the telephone seized from him on 27^th April, 2023 was Mafi’s phone that they both used.
102. He was referred to P11 he accepted that all 6 photos were taken from his phone. As for P13, he accepted the photo at page 4 was his national Id and that all the photos produced were from his phone. He said the photos of the cash were taken by him.
103. He was referred to pages 9 and 10. It was put to him that it was illicit drugs taken by Lolani and sent to him. That exchange was as follows:

DPP: Look the weight of what is on the scale is 7 ounces?

Fine: Yes

DPP: I put to you Fine the content is the illicit drugs sent to you?

Fine: ....it was sent to determine.....

DPP: I put to you that is a lie, this is the illicit drugs Lolani photographed and sent to you

Fine: Yes

DPP: You accept that this is the illicit drugs Lolani photographed and sent to you?

Fine: I do not know if its illicit drugs or not

DPP: No, that’s what I am putting to you

Fine: Yes

DPP: Yes?

Fine: Yes

104. Fifita did not deny that the receipts at pages 16 -18 were for goods sent from him and Mafi to Lolani. It was put to him that the crate was sent in payment for those goods, Fifita said the crate was for petrol and to pay for his workers.
105. Fifita at one point alleged that he was being set-up and that police office Fifita had told him that the police knew about the drugs before the ship arrived in Tonga.

Second Defendant’s Evidence

106. Mafi also gave evidence under oath. According to Mafi, on the day in question, after obtaining the shipping papers she felt pain in her stomach. She asked Fifita to wait for the crate while she went to look for the bathroom. On her way there she saw Fifita beckoning to her from a room inside the warehouse.
107. When she walked inside, she saw Fifita handcuffed. She was concerned and asked the officer what happened. The officer told her to go and look at what was found in the crate.
108. Under cross examination, Mafi said that Fifita told her the crate was consigned to her name. She was suspicious and questioned why it was being sent in her name. Fifia said it was because he never had anything sent to him before and there had been an argument between those involved and that’s why it was changed to her name.
109. As to when she first found out the crate was sent in her name, Mafi said that it was before they left to clear it from the wharf. Later, she said it was about a week before that.
110. She admitted it was from Lolani Finau but the name Fine often used was Topini Manu. She was shown the receipt^[9] recording her name as sender of 8 bags of Manioke to Lolani Finau, she knew about them. She was asked if she knew Lolani Finau, she did not.
111. She denied any knowledge of the content of P12 as they did not access each other’s facebook page but accepted she saw the photos at P13.

Considerations

112. Fifita filed submissions on behalf of both Accused. The Prosecution also filed submissions including issues and authorities available for the defence to rely on for which I am grateful. I have considered the parties’ submissions in these considerations.
113. In respect of Counts 1 and 6, both Fifita and Mafi conceded that:
     1. on 27 April, 2024 at Ma’ufanga;
     2. they went to clear the subject consignment intended for them to pay for their petrol and workers involved in their exporting of agricultural produce to the US for Lolani to market;
     2. the 2 packages found in 2 of the laundry buckets inside the consignment were tested and found to be 1157.4 grams of methamphetamine, an illicit drug;
     100. they had no lawful excuse to cause the importation of the illicit drug into the country.
114. Both accused deny knowledge that the consignment contained methamphetamine.
115. The word “knowledge” appearing in the definition of an offence is discussed by Archbold, 2019 edition, para.17-46 stating:

“Where this word is included in the definition of an offence it makes it plain that the doctorine of mens rea applies to that offence. ......It follows, therefore that the Crown has to prove knowledge on the part of the offender of all the material circumstances of the offence......(my emphasis)

There is some authority for the view that in the criminal law “knowledge” includes “wilfully shutting one’s eyes to the truth”: see per Lord Reid in Warner v Metropolitan Police Comms [1969] 2 A.C 256 at 279, HL^[10]; Atwal v Massey 56, Cr.App.R 6, DC; and Flintshire C.C v Reynolds [2006] EWHC 195 (Admin);170 J.P.73, DC (constructive knowledge, i.e. having the means of knowledge, as where a person signed a form containing false information after it had been completed by another, is insufficient, but wilful blindess, i.e. deliberately refraining from making inquiries the results of which a person might not care to have, does equate to knowledge) (my emphasis). However, such a proposition must be treated with caution. The alternative view is that this is a matter of evidence, and that nothing short of actual knowledge will suffice.

See the dictum of Lord Bridge in Westminister City Council v Croyalgrang Ltd, [1986] UKHL 9; 83, CR. App.R. 155 at 164, HL (“....it is always open to the tribunal of fact..... to base a finding of knowledge on evidence that the defendant had deliberately shut his eyes to the obvious or refrained from inquiry because he suspected the truth but did not wish to have his suspicion confirmed” (my emphasis), R. v Sherif, Ali (Siraj), Ali (Muhedin). Mohammed, Abdurahman and Abdullari [2008] EWCA Crim 2653 (jury are entitled to conclude, if satisfied that the defendant deliberately closed his eyes to the obvious because he did not wish to be told the truth, that that fact was capable of being evidence in support of a conclusion that the defendant did indeed either know or believe the matter in question) (my emphasis) ...”

116. Here, Fifita and Lolani became trade partners prior to or at least by 4 April, 2023 when he and Mafi exported a shipment of manioke to him. Because of that connection, when an alleged disagreement arose between Lolani and the original consignee of the subject crate, Unaloto Ki Loma Tupou (“Unaloto”), it was arranged with the help of one Topini Manu, that the consignment be sent to Fifita.
117. The following proven facts support the notion that Fifita had actual knowledge of the presence of methamphetamine in the subject consignment:

a) the use of Mafi’s name as the consignee, and the ingenuine reason behind it;

b) the exchange of messages on facebook at paragraphs 76 and 79 above;

c) the false declarations on the IAD form^[11];

4. Fifita removing the first offending bucket of laundry powder and placing it amongst goods that already passed inspection;
5. his telling Iuna that the package was “stuff for smoking” and by his own suggestion to Iuna and admission during his evidence that he had said it was “ice”;
6. his bribe of Iuna with money after she discovered the first offending package;
7. his bribe of Punaivaha with money to prevent his arrest, noting that both bribes occurred prior to any testing of the content of the said packages or confirmation that they contained methamphetamine;
8. his willingness to use his wife’s name to hide behind;
9. his concoction of a story that Iuna had framed him; and
10. pretentiously blaming Lolani for not telling him about the methamphetamine;

118. I therefore reject his evidence where inconsistent with that of the Prosecution witnesses.
119. For those reasons, I am satisfied that the Prosecution has proven beyond any reasonable doubt so that I am sure that Fifita on 27 April, 2023 at Ma’ufanga, did knowingly, without lawful excuse imported 1157.4 grams of methamphetamine, a class A illicit drug.
120. As for Mafi, she was a willing party in all of this and knew that the crate contained illicit drugs. She agreed to be the consignee and I am not persuaded of the reason for using her name. Their conduct in getting the crate released did not support the excuse. Mafi’s single task in the process of clearing the consignment was to provide her identification card to obtaining the BOL.
121. From that point onwards, she allowed Fifita and he willingly proceeded to the restricted area for consignees and took care of whatever was required to clear the crate. That was not conduct of someone who did not know how clearing a crate worked.
122. Strategically, Mafi required a convenience stop after receiving the BOL leaving Fifita to do the job. There was no evidence as to why the completion of the IAD form and clearing of the crate could not wait until Mafi was present.
123. Mafi admitted she saw the photos at P13 including the packages of white powder at pgs.9 and10 which Fifita admitted was illicit drugs. She also candidly admitted she was suspicious. That suspicion ought to have triggered an inquiry on her part to find out the truth about the content of the crate and suspicious circumstances under which it was changed to her name while in passage.
124. Mafi made no such inquiry and I therefore find that she deliberately shut her eyes to the obvious and refrained from inquiry because she suspected the truth but did not wish to have her suspicion confirmed imputing knowledge as in Warner v Metropolitan Police Comms [1969] 2 A.C 256 at 279, HL and the authorities referred to above.
125. Accordingly, I am satisfied that the Prosecution has discharged its burden and proven beyond any reasonable doubt so that I am sure that Mafi on 27 April, 2023 at Ma’ufanga, did knowingly, without lawful excuse imported 1157.4 grams of methamphetamine, a class A illicit drug.

Counts 4 and 5

126. I found both Sergeant Punaivaha and customs officer, Iuna to be witnesses of truth and accept that Fifita offered money to bribe them from undertaking their respective official duties. Not only did Fifita fail to put part of his allegations to them under cross examination, I have found nothing that substantiate Fifita’s allegation that ‘Iuna had prior knowledge of the illicit drugs in the consignment or that she framed him and Mafi.
127. Thus, I am satisfied that the Prosectuion has proven beyond any reasonable doubt to the point that I am sure that Fifita on 27 April, 2023:
     1. did offer money to Sergeant Sione Punaivaha to induce him to refrain from carrying out his duty as a police officer to avoid getting arrested for importing illicit drugs.; and
     2. did offer money to ‘Iuna, to induce her to refrain from carrying out her duty as a customs officer by abstaining from reporting the suspected illicit packages found in the buckets he imported.
        

Result

128. I find Fine Tevita Fifita guilty of Counts 1, 4 and 5 and is convicted accordingly.
129. I find Vaivevea Mafi guilty of Count 6 and is convicted accordingly.

Sentence

130. After delivery of the verdict, the Director for Public Prosecutions submitted that the accused be sentenced.
131. As the sentence for the offendings under Counts 1 and 6 are by law, it is appropriate that sentencing not be delayed any further.
132. Pursuant to s.3(e) of the Illicit Drugs Control Act, I sentence:
     1. Fine Tevita Fifita to life imprisonment for count 1; and
     2. Vaivevea Mafi to life imprisonment for count 6.
        

P. Tupou KC
J U D G E

NUKUÁLOFA: 6 June, 2025

^[1] P2
^[2] P3
^[3] Entry 8, photo at P2 pg.4
^[4] Entry 9, refer photo at P2, pg.3
^[5] Ibid,entry 10
^[6] Exhibit P2, photograph 11
^[7] Ibid. photographs 12
^[8] Fifita confirmed he took those pictures
^[9] P13, pg.16
^[10] considered in R v Motuliki [2002] TOSC 22
^[11] I do not consider this to fall under constructive notice as in Flintshire C.C v Reynolds [2006] EWHC 195 (Admin);170 J.P.73, DC although I accept the form was filled out by the broker, Fifita admitted he informed the broker of the content that he filled out.