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Rex v Tokelau [2025] TOSC 46; CR 195 of 2024 (6 June 2025)

In the Supreme Court of Tonga

Criminal Jurisdiction

Nuku’alofa Registry

CR 195 of 2024

Rex

v

Ofa ki’ Alaki Fo’ou Tokelau

VERDICT AND REASONS

The charges

1. By indictment, dated the 15^th September 2024, Ofa ki’ Alaki Fo’ou Tokelau (whom, hereafter, for convenience, I will refer to as “the defendant”) is charged with the offence of obtaining by false pretences, contrary to section 164 of the Criminal Offences Act (the Act). The offence is alleged to have occurred on or about 2^nd September 2022, at Sopu. The particulars of the alleged offence are that the defendant obtained 17,000 TOP from Ms Elisi Sikulu (Elisi) by the false pretence that he would order a red Toyota Dyna Double Cab motor vehicle from Japan for her.

The relevant law

2. Section 164 if the Act provides as follows:

Every person who by any false pretence obtains for himself or for any other person any money, valuable security or other thing whatever shall be liable to the same punishment as if he had committed theft.

Procedural history

1. On the 5^th of December 2024, the defendant pleaded not guilty to the offence. The trial of these proceedings commenced on the 6^th of June 2025 and concluded on the 9^th of June.
2. In coming to my verdict in the case, I have considered the evidence which has been adduced on behalf of both the prosecution and the defence. I have also had regard to the submissions made by prosecuting counsel and the defendant in their closing submissions. I do not have to resolve every issue in the case, only those issues that I consider necessary to determine whether the prosecution has, or has not, proved the case against the defendant. I am entitled to draw reasonable inferences from the evidence that I have heard, but only if I am sure that it is proper and fair to draw such inferences. Of course, I must not speculate on evidence that might have been called.
3. I have taken into account the fact that the defendant is representing himself and does not have the benefit of a lawyer. When reaching a conclusion about the truthfulness, reliability and accuracy of the evidence of the witnesses (both the witnesses for the prosecution and the defendant) I have been conscious not to draw conclusions from the demeanour of the witnesses. The demeanour of a witness is a notoriously unsatisfactory basis upon which to assess the truthfulness, reliability and accuracy of that person. I have, instead, looked at the evidence surrounding the evidence of each witness, in particular the contemporaneous documents that the prosecution and the defendant have produced, and I have reached my conclusions having regard to both the oral evidence of the witnesses and whether the surrounding evidence and the documents are consistent with the evidence of the witnesses.

Burden and Standard of proof

4. It is for the prosecution to prove each element of the offence against the defendant. The defendant does not have to prove anything. How then does the prosecution prove the case against the defendant? The answer is that the prosecution must satisfy me, beyond any reasonable doubt, that it has proved each element of the offence. Put another way, in more modern terminology, the prosecution must, on all the evidence in the case, make me sure that it has established each element of the offence. These expressions of the burden and standard of proof amount to the same thing.

What the prosecution must prove in this case

5. In order to prove its case, the prosecution must satisfy me so that I am sure about the following matters:

First, the prosecution must prove that the defendant made a false pretence (or, to use more modern terminology, a false statement), intending to deceive Elisi. The false statement(s) may be by words, writing, conduct, or a combination of all those things (R. v. Barnard [1837] EngR 546; (1837), 7 C. & P. 784). The false statement must be a representation of a past or existing fact (R. v. Welman (1853), 22 L.J.M.C. 118).

It follows from this analysis of the law that a promise does not become a false representation merely because it is later broken; but (as established under the caselaw in both England and Wales and the Commonwealth as to what amounts to a false pretence) a representation may be false if it misrepresents the current intentions or state of mind of the person making it or anyone else, so a promise may involve a false representation if the defendant never intended to keep that promise.

A representation is false if:

(a) it is untrue or misleading, and

(b) the person making it knows that it is, or might be, untrue or misleading.

The prosecution case is that the false statement(s) that the defendant made, at the time that the agreement was signed by him and Elisi, were: (i) that the defendant intended to order the motor vehicle for Elisi from the supplier in Japan; and (ii) that he genuinely believed that it would arrive in Tonga from Japan within a period of 4 months.

Secondly, the prosecution must prove that the false statement(s) led to the defendant obtaining a sum of money from Elisi. The prosecution case that the false statement(s) led to the defendant obtaining a total sum of 17,000 over some months after the alleged false statement(s) were made by the defendant.

6. Having heard the evidence and the submissions made on behalf of counsel in this case, it has become clear that the real issue in the case is whether, at the time that the agreement was signed, the defendant genuinely intended to order the vehicle for Elisa and whether he genuinely believed that the vehicle would arrive in Tonga from Japan within 4 months, rather than deceive her about those facts.

The evidence given at the trial

The prosecution case

Ms Elisi Sikulu

Elisi is 31 years of age and she is a weaver by occupation.

She said that she recalled purchasing a vehicle from the defendant. She made payments every Friday. The payments were made in accordance with the agreement. She said that she paid him weekly so that she could pay the sum of 17,000 TOP, whereupon the vehicle would be shipped to Tonga.

She said that the defendant offered her a discounted price of 25,000 TOP. She would have to deposit sums weekly, every Friday so that we can reach the sum of 17,000 TOP and that way we can finish off the payments.

The agreement was made verbally and then later documented. I was given a receipt when I made payments.

There was an agreement document (Exhibit P1).

She referred to paragraphs 2 and 3 of the written agreement.

The defendant showed my images so I could choose the vehicle I paid the deposit and he gave me a receipt.

The total amount for the vehicle was agreed upon as 25,000 TOP and he told me that I should deposit half the amount, so that the vehicle can be shipped here.

When I kept depositing amounts of 1000 TOP, weekly on Fridays, the defendant would say to me that he was waiting for the shipment. There came a time when it felt that the agreement was not going as we agreed.

We had agreed that by Christmas the vehicle would be here in Tonga.

The agreement was made on 5 September 2022. That is when we began the conversation and I deposited 6,000 TOP with the defendant. He said that by Christmas the vehicle would be here.

The vehicle did not arrive in Tonga by Christmas.

I had no further conversations with the defendant regarding the vehicle not arriving. When it did not arrive by Christmas, I asked him about it and he would always tell me that he was waiting for the shipment. He always gave me the same answer.

After Christmas, I was not satisfied. When the defendant told me that he was waiting for the shipment he would always give me the same answer, that he was waiting for the ship and that is what he said every time I asked him.

I approached the defendant to follow up on the vehicle’s status after Christmas. I would follow up every week after Christmas and I would go to Ofa’s house and he would not be there in Sopu.

After reaching out to the defendant, it came to a point at which I felt that my follow-ups were not being successful. So, after I had phoned the defendant several times I referred the matter to Lisiate Sikulu so that he could continue following the matter up with the defendant. Lisiate is the older brother of my husband.

I referred this to Lisiate so that I could return to Ha'apai (the group of islands just north of Tongatapu).

I told Lisiate so that he could continue to follow up on things with the defendant. I felt it was a complete waste of my time and that I would return to Ha'apai.

When I referred the matter to Lisiate, I gave him some documents regarding the incident. I gave him the agreement I had signed and all the receipts that the defendant had given to me after my deposit was paid.

Exhibit P2 are the receipts that the defendant gave to me. They are Ofa’s signatures.

I prepared all the documents so that Lisiate could continue with the follow-ups with the defendant.

The agreement was that once the vehicle arrived in Tonga, that was the end of the weekly payments, and that once the vehicle arrived in Tonga I would finalise my payments to the defendant.

We agreed that when the vehicle arrived it would be in good condition.

I returned to Ha'apai.

The defendant did not contact me again regarding the vehicle

I did not have any further conversations with the defendant, as Lisiate took over dealing with it.

Lisiate never contacted me

I did not receive any other vehicle from Ofa.

I paid a total of 17,000 TOP to the defendant

The money was not returned to me.

XX –

Put] the agreement was that the vehicle would not be shipped until you had paid 17,000 TOP Answer] That is untrue.

Lisiate Prescot Sikulu

I am 33 years of age

He works as a digital transformation at the PM’s office in Australia.

He confirmed that he recalled the agreement that contained all the information regarding purchasing the vehicle

The agreement was between Elisi and Ofa (the defendant).

The agreement was to purchase a truck and this would be received within 4 months

I knew about the agreement because I had resided together with Elisi before she moved back to Ha'apai.

I had no knowledge about the agreement, but I heard about the agreement. After 4 months I started to question Elisi about the status of the agreement.

Before she gave me the agreement, Elisi verbally informed me that it had been agreed that the vehicle would arrive in Tonga within four months. After 4 months the vehicle had not arrived so Elisi passed the documents on to me to deal with the matter on Elisi’s behalf.

The documents were given to me because I knew that Elisi did not have much knowledge about such agreements and I wanted to help her handle the agreements, as this is what my younger brother had worked for. i.e. the purchase of the vehicle.

The documents were passed to me so that I could follow up on the matter.

I was given copies of the receipts and another document that was just a note from Elisi, so she was aware of the money that she had given to the defendant.

The receipts were passed on to me. Elisi paid a total of 17,000 TOP

After I received the documents and the information from Elisi, she went back to Ha'apai. I contacted her and asked her to authorise me to file a complaint with the police. This started in 2023.

Elisi felt a bit ashamed because we come from a very poor family. It was just a feeling that Elisi had when she deposited all the money for the vehicle.

I identify the authorisation letter dated 10 March 2024.

After being authorised by Elisi, I then went with a letter to the Central Police Station to file a complaint, and I gave a witness statement.

I did have a conversation with the defendant. I had a chance to talk with the defendant before the complaint was made to the police. This would have been towards the end of 2023, before the time that the complaint was filed. The complaint was filed with the police in or about March 2024.

I spoke to the defendant more than once. I was not satisfied with his answers and that is why I filed a complaint

I followed things up with the defendant, and he would always say that they were waiting for the shipping.

The defendant did not state any specific date that the boat would arrive. All he kept saying was that it would be the next month and he always said that they were waiting for the ship to arrive.

The defendant did not give me any documents to confirm the delay of the ship arriving in Tonga, he would just inform me verbally that they were waiting for the ship to arrive. He did not confirm why the delay had happened, but he gave me information that was irrelevant. He would say that several companies had delays in shipping.

When I went to see the defendant, he provided a receipt all in Chinese, which I did not understand. The defendant did not provide me with any other documents regarding the shipping.

After I filed a complaint to the police, the police searched for Ofa. I tried to contact the defendant, but he did not answer his phone. The police found the defendant.

We then had a verbal agreement with the defendant that he would repay the amount monthly. I said that it was too late. The defendant repaid a total of 2,500 and after that, we had no contact with the defendant. The defendant contacted me and told me that there was a vehicle that had arrived but it was not the same vehicle. I went to the wharf and looked at the vehicle, it was not the exact vehicle that had been ordered. It was not red and it was not a Toyota Dyna according to the agreement, and it appeared to have been used for a long time. There was rust on the outside of the vehicle. The defendant did not produce any document to show that he had ordered the vehicle. The only document that he offered me related to a shipment of a blue vehicle, and it is not related to the vehicle that Elisi had agreed to buy. I submitted the documents when I completed my statement.

Bill of lading (Exhibit P3). This is the document that the defendant gave to me, dated 24 May 2023. It refers to a Mitsubishi, not a Toyota. The second bill of lading is in respect of a Toyota Toyoache.

These are the documents that the defendant showed me to try to satisfy me about the follow-ups that I made of him. I did not inform Elisi about all this information from the defendant.

The defendant did not tell me about any change in the model of the car that he was ordering.

There was no conversation with the defendant about changing the vehicle. The only offer that was made was when the vehicle arrived at the wharf. There was no conversation about changing the vehicle. I do not recall the date that I went to the wharf with the defendant, but it would have been before filing the complaint, probably within 3 months before filing the complaint.

The vehicle has never arrived and we have not received the vehicle.

XX -

Put] When we went to the wharf I told you that the payment for the vehicle had to be cleared or finalised before the vehicle could be shipped Answer] That is untrue.

Police Officer Mafua

34 years of age. He is a police officer in the CID.

The complaint and defendant were arrested and a statement was taken and he was bailed by the magistrates’ court.

The complaint was noted in the station diary and in my notebook. The note was made on the same day that the complaint was made, 19 June 2024.

I recorded the interview with the defendant on 19 June at 11:11 hours.

The defendant provided a Telegraphic Transfer (TT) dated 25 August 2023. I was aware of the TT, as it was a copy of the transfer to Japan dated 25 August 2023. We referred to the date of the complaint and compared it with the copy of the TT that the defendant had produced. We confirmed that the vehicle had not been received in Tonga. The TT that the defendant provided, we noticed the total amount of money shown on the TT and compared it with the total amount on the agreement.

The TT is Exh P4 and the value date is 25 August 2023. The date of the TT is 24 August 2023.

The amount on the TT is 24,872.27, whereas the amount on the agreement is 25,000. This is different to the amount paid by the complainant.

After we saw the difference in the payment, we asked the defendant if this was the correct copy of the TT and he said yes that is the total money transferred but there was another vehicle ordered which is included in the amount of the TT.

The defendant said that he had returned TOP 2,500 to the complainant.

Other complaints that we had received were shorter, but this delay was much longer. The TT does not refer to any vehicle.

The defence case

The defendant gave evidence on oath. When assessing the accuracy and reliability of the defendant’s evidence, I took into the fact that he did not have legal representation, and, therefore, was at a disadvantage.

The defendant gave an account of how the agreement came about. He said that the agreement was for Elisi to pay the 25,000 TOP to order this truck, and he said that they agreed on the amount for the amount of 25,000 to order the truck.

He told me that on 5 September 2022, Elisi said that she didn’t have the sum of 25,000 but she had a deposit of 6,000 and she would pay the balance per week. According to the defendant, he told Elisi that he could take a deposit and weekly payments, but until he had enough to pay the deposit with the suppliers in Japan, he could not order the vehicle. He explained that to order a vehicle from Japan you have to have a certain amount of deposit. He said that he contacted Ali International to see if he could start making payments for the truck until they have enough to ship the truck from Japan.

The defendant said in evidence that the suppliers in Japan told him that the truck was not available because the payment had to be made first, but they had another vehicle a Toyota Toyoache available. He said that he agreed with that proposal as it was the same truck, with the same features but just a different model. He said that he agreed with Ali International to change the vehicle because of waiting for the amount of the deposit.

On 16 Nov 2022, I made the first payment of the deposit with Ali International of 5,047.27 cents. (Exhibit D1) for the replacement vehicle.

He said that he agreed with Elisi that she would pay 1,000 every Friday. He said that sometimes she paid less than 1,000. That is why it took so long to make the payments. I find that the defendant’s evidence about this is wholly inconsistent with the documentary evidence. The receipts produced by Elisi for the payments make me certain that she made regular payments of 1,000 TOP, and that only on one occasion did she make a payment in the lesser sum of 500 TOP (on 29 November 2022).

Materialy, the defendant claimed in his evidence that he informed Elisi about the change in the truck when she came to make the payments on Fridays and she agreed. Every time that she made payments I explained that change. However, he was unable to state when she agreed on this. I find that the defendant’s evidence about this is untruthful. This suggestion was never put to Ilisi when she gave evidence, and whilst I accept that the defendant is not legally represented, this is an allegation that the defendant must have known was crucial to his case. At the commencement of his cross-examination of Elisi, I explained to the defendant that if he disagreed with any of the evidence that Elisi had given in her evidence chief then he must put that point to Elisi, to allow her to say whether she agreed or disagreed with what was being put to her. More importantly, the suggestion that Elisi had agreed to a change in the vehicle that was to be supplied to her is wholly inconsistent with the documentary evidence that has been produced during the trial. I asked the defendant why, if it was the case that there had been a variation of the contract in such a fundamental way, he had not prepared a new agreement of sale, particularising the agreed variation of the vehicle that was supplied. The defendant gave no satisfactory explanation as to why he had not prepared a new agreement. His evidence on this matter has driven me to the conclusion that I am sure that the defendant is fabricating this explanation and that he is not a truthful witness.

The defendant went on to say that the total payments that Elisi made amounted to 17,500 TOP. He said that the Telegraphic Transfer (TT) that he presented to the police represented a total of a total payment of 24,872.27 TOP, for two vehicles. He said that the two vehicles were supposed to be two Toyotas but that they (Ali International) changed one to a Mitsubishi. He told me that he told Elisi that the payment would have to be made in full before it could be delivered to her. He said that this was a verbal agreement varying from the written agreement. Again, upon careful consideration of all the evidence in the case, I am driven to the conclusion that I am sure that this account by the defendant is not truthful.

The defendant went on to say in evidence that he informed Elisi about the arrival of the truck when he received a cargo arrival notice from the shipping line. (Exh D2) dated 5 June 2023, when the truck arrived, the Toyota Toyoace. He said that this was the replacement vehicle which Elisi had agreed to. I reject the defendant’s evidence about this, I am sure that he is not telling the truth and that Elisi never agreed to accept an alternative vehicle.

The defendant said that this was the point when he had contact with Elisi’s brother-in-law (Lisiate). He said that he took him to show him the truck at the wharf and explained to him that he had to pay the balance of the balance of the 25,000 before it could be cleared. He said that Lisiate did not agree to that. He said that Lisiate said that the condition of the truck was not good, but that he reminded Lisiate that all the trucks sent from Japan were used trucks. He said that he told Lisiate that the vehicle required maintenance and that they needed to pay the balance of the 25,000 TOP. He said that after that he did not have any further contact with Lisiate until the police interviewed him. By that time the defendant had paid the brother-in-law 2,500 TOP. He stopped making payments when they filed the complaint. I find that the evidence given by the defendant, that there had been an agreement to alter the vehicle that was to be supplied to Elisi, completely unstainable and I am sure that he is fabricating this evidence. The defendant’s evidence is completely at odds with the documentary evidence and the evidence of Elisi and Lisiate. I found the evidence of Elisi to be a truthful account of the events. She was a reliable witness and whilst there might be small errors in her account of her dealings with the defendant, those small errors are entirely understandable, given the passage of time that has elapsed since her dealings with the defendant in 2022. Her evidence is supported in all material aspects by the evidence of her brother-in-law, Lisiate, who I also found to be a truthful and accurate witness.

Findings of fact

(1) Having considered all the evidence (including the exhibits produced by the parties) I make the following findings of fact. I am sure about the following matters:

1. That, in the course of dealing with Elisi between the 2^nd and 5^th September, 20222, the defendant represented to Elisi that he would order the vehicle described in exhibit P1 and that it would be delivered to her in Tonga from Japan within a period of 4 months.
2. At the time that the defendant made those representations, he had no such fixed intention to order the vehicle, nor did he believe that the vehicle would be delivered to Elisi within 4 months.

100. By making those representations, the defendant intended to deceive Elisi.

4. By making those representations, the defendant obtained the sum of 17,000 TOP from Elisa.
   

(2) Accordingly, I find the prosecution has proved its case against the defendant on the single count that he faces.

Verdict

(3) For the reasons set out above, the defendant, Ofa ki’ Alaki Fo’ou Tokelau, is found guilty of the offence of obtaining the sum of $17,000 from Elisi by false pretences.

Hon. Justice Garlick KC

6^th June 2025