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R v Yu Xi Di [2025] TOSC 48; CR 37 of 2025 (26 June 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 37 of 2025

BETWEEN:

REX
- Prosecution

AND:

YU XI DI
- Defendant

SENTENCING REMARKS

BEFORE: HON. JUSTICE TUPOU KC
Appearances:
Mr. J Fifita for the Prosecution
Mr A. Fusimalohi on behalf of Mr. W Edwards for the Defendant
Date:
26 June 2025

The proceedings

1. On 24 April 2025, the Accused pleaded guilty to five counts of Obtaining Money by false pretences, contrary to section 164 of the Criminal Offences Act.
2. This morning the Defendant appeared with Mr. Penioni Lokotui as interpreter to inform the court that he did not understand he was pleading guilty to the five charges on 24 April, 2025 and said his counsel misunderstood his position that day.
3. Neither Mr A. Fusimalohi nor Mr. W Edwards appeared in court today, which meant that over 2 hour of the court’s time was wasted in getting the Defendant’s position clarified before this sentencing could proceed.
4. It was explained to the Defendant and Mr. Lokotui that on 24 April, 2025, the Defendant appeared with counsel and was arraigned with a Chinese national, Mike Liu as interpreter and the Defendant entered a guilty plea to all 5 charges. The sentencing was timetabled which provided a time for a pre-sentencing report from Probation and for the defendant to file submissions. The Defendant attended the Probation Services because a report was filed but failed to make submissions which ought to have included the documents pertaining to the payments he brought to the courts attention this morning.
5. At the end of an hour or so it became clear that the Defendant understood he was guilty of the said 5 charges but wanted to present information to the court that he had repaid some of the money back to the complainants and had an agreement to pay them back in full with repayments of $500 per month.
6. He claimed he had paid $8,300 to Zhong Fa Liu and $2,500 to Kong Hao Lin. The court adjourned to confirm that information, which it did except for Kong Hao Lin. In any event, that has no significant impact as on the whole, the court acknowledges that the Defendant has attempted to make restitution in favour of the complainants.

The offending

7. The Defendant is 43 and operates a store at Vaini known licensed under Naipuka Trading. The offending involved five different complainants and a total of $68,977.

Count 1

8. The first complainant is Kong Hao Lin, a businessperson of Neiafu, Vava’u. On or about Tuesday 7 November 2023, it was agreed that the Defendant would transport certain goods from Tongatapu to the first complainant for his business in Vava'u. The Defendant received a payment of $20,000 from the first complainant for the said goods. When the goods did not arrive on 29 November 2023, the first complainant lodged a complaint with the Police at Neiafu. The Defendant was arrested on 27 February, 2024 and admitted to the offending.

Count 2

9. Also on 7 November, 2023, the second complainant Zhong Fa Liu, a businessman of Kameli, Vava'u agreed that the Defendant would transport frozen meat from Tongatapu for the complainant’s shop in Vava’u, on 15 November 2023. The second complainant paid the Defendant $14,000. The frozen meat did not arrive and a complainant was lodged with the police. The Defendant admitted to the offending on 27 February, 2024.

Count 3

10. On Monday 20 November, 2023 the Defendant and the third complainant, Shu Jie You, also a businessman, of Neiafu, Vava'u agreed for the Defendant to ship meat and goods from Tongatapu to Vava’u for the third complainant’s shop. The third complainant paid the Defendant an amount of $11,950 in cash for the goods. The goods did not arrive in Vava’u on the agreed date and the third complainant lodged a complaint with the police on 3 December, 2023. On 27 February, 2024, the Defendant admitted the offending to the police.

Count 4

11. Also in November, 2023, the fourth complainant, Zu Xian Shi (Shi), a businessman of Neiafu, Vava’u paid the Defendant $13,395 for frozen goods to be transported to the complainant from Tongatapu. The frozen goods failed to arrive on the agreed date and a complaint was lodged with the police. The Defendant when questioned by police admitted the offending.

Count 5

12. Also on 20 November, 2023, the fifth complainant, Ming Hong Mo, a businessman of Kameli, Vava'u agreed that the Defendant would purchase and transport boxes of chicken quarters and lamb from Tongatapu to Vava'u. The fifth complainant paid the Defendant $9,632. The goods did not arrive and a complaint was lodged with the police. The Defendant admitted to the offending in his police interview.

Crown’s submissions

13. The Crown submits the aggravating features of the offending were:
    

a) the seriousness of the offence;

b) it involved multiple complainants;

c) breach of trust by the Accused;

d) the monies involved was substantial, with a total of over $60,000; and

e) the offence involved deceit and dishonesty
14. The Crown submits the following as mitigating features;

1. the Accused’s early guilty plea;
2. the Accused is a first-time offender;

100. cooperation with the Police.

Victim Impact Report

15. No impact report was received in respect of the first and second complainants. The third complainant has been an amount of $2,300, the fourth complainant over $4,000 and the fifth complainant over $2,000.
16. A supplementary report was to be filed after an update with the first and second complainants. No such report has been filed.

Sentencing Comparables

17. The Crown referred to the following comparable sentences:
    
    1. R v Kisione To’aho CR -2/2025, Tupou KC, 2 May 2025- The Accused pleaded guilty to two counts of obtaining money by false pretences. The Accused obtained a total of $29,600 from the Complainants. The mitigating features in this case included early guilty plea. The starting point was 24months for Count 1 and 14months for Count 2 which was reduced to 16months for Count 1 and 9months for Count 2. 16 months from his previous sentence was activated in full and an additional 8months was added resulting in 24 months imprisonment with the final 4 months to be suspended for 2 years on conditions.
    2. R v Sione Faka;osi, CR208/2024, Justice Tupou KC, 22 April 2025)- The Accused pleaded guilty to one count of obtaining money by false pretences obtaining a total of $11,600. A starting point of 18 months imprisonment was set and uplifted by 6 months for his previous convictions totalling up to 24months imprisonment, mitigating factors deducted 4 months leaving the final sentence at 20months with the final 4 months to be suspended for 2 years on conditions.
    100. R v ‘’Ekuasi, CR3 & 103 of 2022, LCJ Whitten- The starting point set here was 18months for Count 1(obtaining money by false pretences). The starting point was reduced by 20% for her late guilty plea. For CR 103 of 2022- This involved 3 counts of obtaining money by false pretences receiving a total of $20,500. The starting points were 20months- Count 1, 12months- Count 2 and 22months- Count 3. The starting points were reduced by 20%. In relation to CR3/22- 2 months from Counts 2 and 4 were added to Count 2 resulting in a sentence of 18 months imprisonment with the balance of the sentences to be served concurrently. In relation to CR103/22: a total of 43 months imprisonment was set. The resulting sentence in each proceeding is to be served cumulatively making a total of 61 months imprisonment, however having regard to the totality of the offending, it was reduced to 3 years’ imprisonment. The final year of the sentence was suspended for 2 years on conditions.
    4. R v Selupe, Supreme Court, CR47 of 2020- The Accused was charged with 5 counts of obtaining money by false pretences receiving a total of $59,950.00. The Court considered that because the dealing went over 14 months with each unrelated complainant, they are therefore separate crimes, and the sentences therefore are served cumulatively. The Accused was sentenced to 3 years’ imprisonment, with the final 12 months suspended on conditions.
    5. Vaikoula v R [2021] TOCA 5- The Court of Appeal affirmed the principle stated in Mo’unga v R [1998] Tonga LR 154, to effect that imprisonment for a purely property offence is not appropriate unless there are unusual circumstances that render imprisonment necessary.
    6. Kolomalu [2012] TOSC 25- “"The principles that apply to this kind of offending involve deterrence and denunciation or condemnation of such offending...It is this factor which in my view means that I have to impose a sentence of imprisonment. There are no cases which set a tariff in this area, and they vary greatly, ... I do not overlook cases which state that ordinarily offenders who steal property and the like should not go to prison if they are first offenders...I consider that the factors of trust, and the amount of money involved and systematic offending take the matter out of this category. Indeed, in Filihia Havili v Rex AC no 02/201 the Court of Appeal considered that ordinarily it is appropriate for an offence of dishonesty and trust to receive a custodial sentence".
       
18. The Crown suggested the following sentencing formulation:
    1. that Count 1 is the head sentence with the following starting points:

Count 1 - 24 – 30 months imprisonment;

Count 2 - 18- 24 months imprisonment;

Count 3 - 18- 24 months imprisonment;

Count 4 - 18- 24 months imprisonment; and

Count 5 - 18- 24 months imprisonment.

2. In light of his early guilty plea, clean record and cooperation with the police, a 10-month deduction was proposed for count 1 and 8 months for the remaining counts resulting in the following final sentences:

Count 1 - 14 – 20 months imprisonment;

Count 2 - 10- 16 months imprisonment;

Count 3 - 10- 16 months imprisonment;

Count 4 - 10- 16 months imprisonment; and

Count 5 - 10- 16 months imprisonment.

100. The final proposed sentences were:

i) Count 1 - 20 months imprisonment;

Count 2 - 16 months imprisonment;

Count 3 - 16 months imprisonment;

Count 4 - 16 months imprisonment; and

Count 5 - 16 months imprisonment.

2. that 6 months from Counts 1-5 be added to Count 1, resulting in a final sentence of 44 months imprisonment with the final 24 months suspended on conditions.

Pre-sentencing report

19. The Defendant is 44 and lives in Vaini with his wife and two children. He was born and raised in China and travelled to Tonga on a work visa and has maintained that status after 15 years in Tonga.
20. Apparently, he has had no formal education but owns a shop^[1], a restaurant with his wife and recently opened another shop. Yet he describes his occupation as a delivery driver for an unnamed Chinese firm.
21. As for the offending, the Defendant said he used the money he obtained to cover loss from his new shop and intends to return all of the complainant’s money. The Probation officer opined that the Defendant was aware of his illegal activities and that was the reason for his regret and guilt. She suggested a partially suspended sentence was appropriate on conditions.

Starting Point

22. The maximum statutory penalty for obtaining money by false pretence is the same as for theft^[2] and theft of anything of value in excess of $10,000 is 7 years’ imprisonment^[3].
23. The Court of Appeal in Mo’unga v R [1998] Tonga LR 154 at 156 held that “imprisonment for a purely property offence is not appropriate unless there are unusual circumstances that render imprisonment necessary.”
24. Factors of trust, the amount of money involved, systematic offending^[4] and demonstrated dishonesty^[5] have been held to amount of “unusual circumstances” that render imprisonment necessary.
25. In the instant case, the Defendant deceived the first and second complainants by calling them on the phone and asking if they required frozen goods shipped from Tongatapu and received their payment for the said goods. With further determination to deceive, he travelled to Vava’u and visited the third, fourth and fifth Defendants at their respective shops under the pretence he would ship them goods, collected the necessary payments and left.
26. The Defendant had no intention of sending to any of the complainants the goods because on his own account, he used the total of $68,977 he collected to pay off loans and unnamed losses he apparently suffered by opening his new shop. These circumstances plainly render imprisonment necessary.
27. In considering the maximum statutory penalty, the aggravating factors, the comparable authorities, principles discussed above and of denunciation and deterrence, at the same time being mindful that each case including the instant case is to be determined on its own facts I set a starting point for each count as below:

Count 1 - 24 months imprisonment;

Count 2 - 16 months imprisonment;

Count 3 - 16 months imprisonment;

Count 4 - 16 months imprisonment; and

Count 5 - 12 months imprisonment.

Cumulative or Concurrent

28. I now turn to the question of whether the sentences above ought to be served cumulatively or concurrently. In Hokafonu v R [2003] TOCA 3 at [51], the Court of Appeal was of the view that cumulative sentences should be imposed only if the offences are viewed as separate crimes or are unrelated. As further discussed in R v Asa [2020] TOSC 72 the court set out two necessary considerations:
    1. whether the offences were so closely connected that they should be regarded as part of one series of criminal activity; and
    2. whether in any event, the totality principle requires the sentences to be made, wholly or partially concurrent.
29. In this instant although the Defendant’s activity occurred between 7 to 20 November within a matter of 13 days, it involved 5 distinct and unrelated complainants and as such, I am satisfied, the sentences ought to be served cumulatively. A linear addition of the starting points amounts to a total of 88 months imprisonment or 7 years imprisonment.

Totality

30. I go on to consider the totality of this sentence. In Selupe, the former LCJ Whitten KC, on the issue of totality stated:

“The totality principle requires the court to have regard to the totality of the offending, particularly where the offences are a series of related offences. According to the principle, a court, which has correctly fixed a series of consecutive sentences as the appropriate periods, is obliged at the end of the process to consider whether the aggregate figure represents a proper period of incarceration to be imposed for the total criminality involved: McDonald v The Queen [1994] FCA 956; (1994) 48 FCR 555 at 563. Further, in cases where the prisoner has not previously been sent to gaol, the accumulation of sentences to be imposed ought not to result, unless there is no alternative, in a total which is a crushing first period of imprisonment. If possible, justice should especially avoid placing such a person where, in Milton’s words, “hope [can] never come [t]hat comes to all”. In a case of that kind, a first incarceration may have a very salutary effect, and the prospect that it may do so should not be left out of account when its length is fixed: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-63.”

31. In that case, His Honour, instead of attempting to dissect and add parts of one sentence to another as suggested by the Prosecution, he took the offending as a whole and set a starting point of 4 years’ imprisonment. He found an aggregate starting point of “6 years for a first-time offender would be a crushing sentence and out of proportion to the statutory maximum of 7 years.”
32. A linear addition of the instant sentence amount to an aggregate starting point of 7 years’ imprisonment. It would be a crushing sentence for this Defendant. To that end and having regard to the maximum statutory penalty, the comparable sentences relied on by the Prosecution, the quantum of the moneys obtained and the need to denounce and deter offending of this type, I fix a total starting point of 4 ½ years’ imprisonment.

Mitigation

33. For his early guilty plea, lack of previous convictions and cooperation with the police, I deduct 16 months form the starting point resulting in a final sentence of 3 years and 2 months imprisonment.

Suspension

34. In applying the principles for suspension in Mo’unga^[6], the Defendant is not young, the deception involved here was calculated and premeditated warranting a strong deterrence to the Defendant and for anyone who may intend to follow this path that if they succumb to this type of offending, a custodial sentence is almost certain.
35. I have considered the statement on the Defendant’s family and note that his wife operates a restaurant at Vaini and he is therefore not the sole breadwinner. Even if he was, the breadwinner argument “is rarely likely ever to be, on its own proper reasons for suspending a sentence”^[7] and in consideration of the nature of the offending and the impact on his victims, there is no justification to fully suspend the sentence here.
36. He has no previous convictions, pleaded guilty despite his attempts to say otherwise this morning, which I understand, was really a desire to put forth that he had made payments to the complainants in an amount of around $20,000. I have taken account of this information and find it to demonstrate his remorse and attempt to lessen the impact of his offending on the complainants, which also indicate he is likely to utilise any suspended period granted for rehabilitation. Accordingly, I suspend the final 24 months of the sentence imposed for a period of 2 years on conditions.

Result

37. The defendant, Yu Xi Di is convicted of five counts of obtaining money by false pretences and is sentenced to a total of 3 years and 2 months imprisonment.
38. The final 24 months of the sentence is suspended for a period of 2 years from the date of his release on the following conditions, that during the period of suspension, the Defendant is to:

a) not commit any offence punishable by imprisonment;

b) be placed on probation;

c) report to the probation office within 48 hours of his release from prison; and

d) complete a life skills or such other course as his probation officer may direct.

39. Failure to comply with the said conditions may result in the suspension being rescinded,

in which case, the Defendant will be required to complete the balance of his prison term.

40. Subject to compliance with those conditions, and any remissions under the Prisons Act, the result is that the defendant is required to serve 14 months’ imprisonment.
41. Lastly, the court must acknowledge its gratitude to Mr. Penioni Lokotui for his interpretation services and assistance to the court this morning, without it this sentencing would not have been finalised today. Malo ‘aupito.
    

P. Tupou KC
J U D G E
Nuku’alofa

26 June, 2025

^[1] On 1 April, he applied for the release of his passport to renew the license for his shop at Vaini.
^[2] s.164 of the Criminal Offences Act
^[3] S.145(b) of Criminal Offences Act
^[4] R v Kolomalu [2012] TOSC 25
^[5] Filila Havili v R AC no 02/2010
^[6] Mo’unga v R [1998] Tonga LR 154
^[7] R v Motulalo [2000] Tonga LR 311 p.313