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Police v Chong Nee [2018] WSSC 2 (17 January 2018)

SUPREME COURT OF SAMOA
Police v Chong Nee [2018] WSSC 2

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

OLIVER SAMMY JUNIOR CHONG NEE male of Aleisa.
Accused

Counsel: A Matalasi for prosecution
L Vaa-Tamati for accused

Judgment: 17 January 2018

JUDGMENT BY SAPOLU CJ

The charges

1. The accused stood trial on four charges to which he had pleaded not guilty. These charges are:
   • (a) theft, contrary to s.161 of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment pursuant to s.165 (b) because the value of the stolen motor vehicle exceeds $1,000;
   • (b) intentional damage to property when the accused knew or ought to have known that danger to life was likely to result from his actions, contrary to s.184 (1) of the Act, which carries a maximum penalty of 14 years imprisonment;
   • (c) intentional damage to property, contrary to s.184 (2) of the Act, which carries a maximum penalty of 7 years imprisonment; and
   • (d) endangering transport with intent to cause danger to a person or with reckless disregard for the safety of a person by doing an act to a vehicle that is likely to cause danger to a person, contrary to s.185 (1) of the Act, which carries a maximum penalty of 14 years imprisonment.

The evidence

2. The evidence adduced by the prosecution to prove the charges was either not contested or seriously contested by the defence during cross-examination. The defence relied essentially on the medical evidence that it called to try and exonerate the accused from criminal responsibility for his actions.
3. According to the testimony of the complainant Jason Tamaalii who lives at Aleisa, on Sunday 22 October 2017, he came in his brand new Toyota Hilux double-cab pick up vehicle to a cake shop at Lotopa and bought a cake for his wife’s birthday. After that, he drove to the Farmer Joe supermarket at Ululoloa to buy a box of ice cream. He parked his vehicle in front of the supermarket where some people were selling cooked food (faleaiga vela) and went inside the supermarket. Because the cream on the cake had not fully set, the complainant did not turn off the engine of his vehicle so that its air condition would still be on. Shortly after he entered the supermarket, the prosecution witness Penate Maposua, one of the women who were selling cooked food in front of the supermarket, rushed over and told him that someone has driven away in his vehicle.
4. Penate Maposua testified that on Sunday 22 October 2017, the accused was standing around where she and other people were selling cooked food in front of the Farmer Joe supermarket at Ululoloa. About 1:00pm in the afternoon, the complainant came and parked his vehicle in front of the supermarket and went inside. He did not turn off the engine of his vehicle. The accused then went over and got inside the complainant’s vehicle. She came over and tapped the bonnet of the vehicle and told the accused that it was not his vehicle but the accused simply reversed the vehicle, turned it around, and drove off. So she ran inside the supermarket and told the complainant that someone has driven away in his vehicle.
5. The complainant further testified that when he came out of the supermarket, his vehicle had disappeared. One of the securities at the supermarket told him that his vehicle was being driven towards Aleisa. The complainant then called the police for help. He also called his older brother Tagaloa Tupai Atoa for help. About five minutes later, the police arrived and they went with the complainant towards Aleisa to look for his vehicle. Soon afterwards Tagaloa Tupai Atoa (Tagaloa) who came in his own Toyota Hilux double-cab pick up vehicle with other people joined the search for the complainant’s vehicle. When Tagaloa came to an access road that goes inland from the main road at Aleisa, he drove up this access road. He saw the complainant’s vehicle in front of the very last house along the access road. He then called the complainant and the police.
6. When the complainant and the police arrived, the accused turned around the complainant’s vehicle and drove it back towards the access road. He appeared to be trying to head seawards again towards the main road but he was blocked by the police vehicle. The accused then turned the vehicle he was driving inland and drove further inland. At that time he was being chased by the police vehicle and Tagaloa’s vehicle. When the tar sealed part of the access road ended, the accused continued driving the complainant’s vehicle on a vehicle track which was rough and bumpy. The track ended at a fenced cattle farm (pa povi). But that did not deter the accused. He kept on driving into the cattle farm being followed by the police vehicle. At that time, Tagaloa’s vehicle which was following behind the police vehicle got stuck at the gate of the cattle farm because of the slippery mud.
7. The accused then turned the complainant’s vehicle around inside the cattle farm and headed back towards the gate where Tagaloa’s vehicle was stuck while being followed by the police vehicle. He smashed the complainant’s vehicle into Tagaloa’s vehicle pushing it back before the complainant’s vehicle got stuck on a log and came to a stop. The police then went over and brought the accused out of the vehicle. From the photographs produced in evidence by the prosecution, it is obvious that both the complainant’s and Tagaloa’s vehicles were badly damaged.
8. The accused did not give evidence but Dr George Tuitama who is a general psychiatrist at the mental health unit of the National Hospital was called by the defence. Dr Tuitama testified that he had examined the accused and that he suffers from bipolar disorder. As I understand Dr Tuitama’s evidence a bipolar disorder is not the same thing as insanity. It was also clear from the doctor’s evidence in response to questions from the Court that at the material times the accused was suffering from diminished responsibility. I therefore further adjourned this matter and asked counsel to provide written submissions on whether diminished responsibility can be a defence in this case. Such submissions have been provided.

Evidence applied to the charges

(a) Theft

9. In relation to the charge of theft, it is clear from the evidence of the prosecution witness Penate Maposua that the accused took the complainant’s vehicle. She said that the complainant parked his vehicle in front of the Farmer Joe supermarket at Ululoloa and went inside. At that time she and other people were selling cooked food. The accused who was standing around there then got inside the complainant’s vehicle and she went over and tapped the bonnet of the vehicle and told him it was not his vehicle. However, the accused reversed the vehicle, turned it around and drove away. In these circumstances, the taking of the vehicle by the accused was also dishonest.
10. The evidence of the witness Penate Maposua together with the evidence of the complainant and his brother Tagaloa clearly show that the accused had the intention of permanently depriving the complainant of his vehicle. The evidence of the complainant and his brother Tagaloa show that they found the vehicle parked in front of the last house alongside the access road that goes inland from the main road at Aleisa. When they and the police tried to approach the vehicle the accused tried to drive away as if to come seaward towards the main road. When blocked by the police vehicle, the accused turned the vehicle inland and drove away until he came to the cattle farm at the end of the access road. He then drove the vehicle inside the cattle farm while the police and Tagaloa were still giving chase in their vehicles. The accused then turned the vehicle around inside the cattle farm and headed back to the gate of the farm where Tagaloa’s vehicle was stuck in the mud. He smashed the complainant’s vehicle into Tagaloa’s vehicle and came to a stop on a log which suggests that he was still trying to get away. All of this evidence clearly suggests that the accused had the intention to permanently deprive the complainant of his vehicle.
11. I am therefore satisfied that the prosecution has proved the charge of theft beyond reasonable doubt.

(b) Intentional damage to property when the accused knew or ought to have known that danger to life was likely to result

12. The uncontradicted evidence of Tagaloa shows that when the accused turned around inside the cattle farm and headed back to the gate of the farm where Tagaloa’s vehicle was stuck, the accused drove straight into Tagaloa’s vehicle. The force of the impact pushed Tagaloa’s vehicle back.
13. Tagaloa said that he was still inside his vehicle when the vehicle driven by the accused came straight to his vehicle. Fearing for his life, he jumped out of his vehicle just in time before the vehicle driven by the accused smashed into his vehicle. He would probably have been seriously injured or die (uma) if he had remained in his vehicle.
14. From this evidence, I am satisfied that the prosecution has proved beyond reasonable doubt the charge of causing intentional damage to property when the accused knew or ought to have known that danger to life was likely to result from his actions.

(c) Intentional damage

15. The present charge of intentional damage relates to the damage caused to the complainant’s vehicle. It is clear from the evidence of the complainant and that of his brother Tagaloa that the accused intentionally drove the complainant’s vehicle into Tagaloa’s vehicle. The accused must have known that his actions would result in damage to both vehicles. In fact both vehicles were badly damaged.
16. The impact of the collision caused Tagaloa’s vehicle which was stuck in the mud to move backward.
17. I am satisfied that the prosecution has also proved this charge of intentional damage beyond reasonable doubt.

(d) Endangering transport with intent to cause danger to a person or with reckless disregard for the safety of a person by doing an act to any vehicle that is likely to cause danger to a person

18. It is clear from the evidence that the accused intentionally drove the complainant’s vehicle into Tagaloa’s vehicle while Tagaloa was inside his vehicle. It is also clear from the evidence that the accused had acted with reckless disregard for the safety of Tagaloa who was inside his vehicle. Fearing for his life, Tagaloa jumped out of his vehicle to save himself.
19. I am also satisfied that the prosecution has proved this charge beyond reasonable doubt.

Diminished responsibility

20. The issue of diminished responsibility arose from the evidence of Dr George Tuitama the general psychiatrist at the mental health unit of the National Hospital who was called by the defence. Dr Tuitama gave as his opinion that at the material times the accused was suffering from diminished responsibility due to his bipolar disorder.
21. In England, diminished responsibility is a statutory defence by virtue of s.2 of the Homicide Act 1957 (UK) to the charge of murder and may reduce murder to manslaughter. So in England, diminished responsibility is not a common law defence but a statutory defence. And it is a defence only to a charge of murder. In New Zealand, diminished responsibility is not a statutory or common law defence. There is no statue in Samoa including our Crimes Act 2013 which provides for a defence of diminished responsibility to the charge of murder. Therefore diminished responsibility as a defence does not apply in this case.

Conclusion

22. All four charges against the accused have been proved beyond reasonable doubt.

CHIEF JUSTICE