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Criminal Offences [Cap 18]

LAWS OF TONGA

[1988 Ed.]

CHAPTER 18

CRIMINAL OFFENCES

ARRANGEMENT OF SECTIONS


SECTION

1. Short title.
2. Interpretation.
3. Accused not to be convicted of offence not charged.

PART I-ATTEMPTS TO COMMIT CRIME


4. Impossibility of committing the crime according to intent of offender is no defence.
5. Punishments for attempts to commit crime.
6. Accused charged with committing an offence not to be acquitted if evidence only established an attempt.
7. Accused charged with attempt may be convicted although evidence establishes full offence.

PART II-ABETMENT, HARBOURING CRIMINALS, CONSPIRACY. ETC.


8. Abetment of crime and punishment of abettor.
9. Jurisdiction.
10. Trial.
11. Proof.
12. Abettor deemed a party to any offence which he ought to have known would be committed as a result of his counselling.
13. Harbouring criminals.
14. Compounding crimes.
15. Conspiracy.

PART III-EXEMPTIONS FROM CRIMINAL RESPONSIBILITY


16. Criminal liability of children.
17. Criminal liability of persons suffering from mental disease.
18. Procedure where accused on arraignment appears to be insane.
19. Procedure where accused was insane at time of committing the crime.
20. Custody of accused person found to be insane.
21. Intoxication.
22. Criminal liability of married women.
23. Criminal liability for acts of involuntary agents.

PART IV-PUNISHMENTS


24. Different kinds of punishment.
25. Payment of compensation.
26. Fines.
27. Fines: payment of, not enforceable until expiration of 14 days from conviction.
28. Imprisonment for non-payment of fine: period of, how reckoned.
29. Person imprisoned for non-payment of fine to be released on payment. Procedure on part payment of fine.
30. Power to -impose fine instead of imprisonment.
31. Whipping.
32. Imprisonment.
33. Death sentence: King's assent: power to commute.
34. Chief Justice on pronouncing sentence of death to forward report to Prime Minister.
35. Sentence of death: how executed.
36. Medical officer to supply certificate of death after execution of offender.
37. Inquest by magistrate on body of person executed.
38. Privy Council to appoint place of burial for executed criminals.
39. Power of Privy Council to make regulations with respect to execution of sentence of death.
40. Sentence of death not to be passed on expectant mother.
41. Procedure where women convicted of capital offence alleged to be pregnant.

PART V-TRIAL OF OFFENCES AND ALTERNATIVE VERDICTS


42. Trial of offences.

PART VI-PROCEDURE AGAINST CORPORATIONS


43. Procedure on charge of offence against corporation.

PART VII-OFFENCES AGAINST THE STATE


44. Treason.
45. Concealment of treason.
46. Attempts to injure or alarm the King.
47. Sedition.
48. Definition of seditious intention.
49. Deprivation of civil rights.
50. Acceptance of bribe by government servant.
51. Bribery and attempted bribery of government servant.
52. Extortion by government servant.
53. Fraudulent conversion by government servant.
54. False receipt: issue of, by. government servant.
55. Assaulting or obstructing government servants.
56. Intimidating government servants.
57. Use of threatening, etc., language to government servant.
58. Refusal to assist public officer, etc., in prevention of crime.
59. Making counterfeit coin or having dies, etc., used in making same.
60. Impairing or diminishing current coin.
61. Knowingly uttering counterfeit coin.
62. Importing, etc., counterfeit currency.

PART VIII-OFFENCES AGAINST JUSTICE, THE PUBLIC PEACE AND PUBLIC MORALS


63. Perjury.
64. False statements.
65. Wrongful interference with course of justice.
66. Attempts to bribe jurors.
67. Unlawful society.
68. Managing unlawful society.
69. Being member of unlawful society.
70. Prosecution under sections 67 and 68.
71. Power of entry, arrest, search etc.
72. Declaration by King in Council.
73. Forfeiture of insignia etc.
74. Unlawful assembly and riot.
75. Punishment for unlawful assembly.
76. Making proclamation for rioters to disperse.
77. Rioters demolishing buildings etc.
78. Going armed in public.
79. Bigamy.
80. Keeping a brothel, etc.
81. Trading in prostitution.
82. Gaming houses.
83. Games of mere chance.
84. Use of disguise.

PART IX-OFFENCES AGAINST THE PERSON


85. Definition of homicide.
86. Definition of culpable homicide.
87. When culpable homicide amounts to murder.
88. When culpable homicide is manslaughter only.
89. What matters amount to extreme provocation.
90. When extreme provocation will not avail.
91. Penalty for murder. No death sentence against person under 16 years of age.
92. Manslaughter and manslaughter by negligence.
93. Penalties for manslaughter and manslaughter by negligence.
94. Person charged with manslaughter may be convicted of dangerous driving.
95. Omissions to perform a legal duty.
96. When death to be deemed to have been caused by an act or omission.
97. Indirect cause of death.
98. Child as the object of homicide.
99. Infanticide.
100. Attempt to commit suicide.
101. Inciting or assisting to commit suicide.
102. Concealment of birth.
103. Procuring miscarriage of woman or girl.
104. Woman or girl procuring her own miscarriage.
105. Supplying means of miscarriage.
106. Grievous bodily harm.
107. Bodily harm.
108. Attempt to intimidate.
109. Discharging firearm with intent to intimidate, etc.
110. Exploding dynamite etc. with intent to intimidate,
111. Threatening documents.
112. Common assault.
113. Assault, obstruction.
114. Unlawful imprisonment.
115. Cruelty to children and young persons.
116. Enticing or taking away children.
117. Enticing married woman to desert her husband.
118. Rape.
119. Order restricting publication.
120. Attempted rape.
121. Carnal knowledge of girl under 12 years of age.
122. Attempt to have carnal knowledge.
123. Belief that girl is more than 12 no defence.
124. Indecent assault.
125. Indecent assault on child. Consent no defence.
126. Procuring the defilement of females.
127. Procuring defilement of females by threats, fraud or administration of drugs.
128. Abduction of women.
129. Abduction of girls.
130. Juvenile offender may be whipped.
131. Offender charged with rape may be convicted of indecent assault, etc.
132. Incest by male person.
133. Incest by female person.
134. Definition of relationship.
135. On charge of incest or attempted incest accused may be convicted of rape, etc.
136. Sodomy and bestiality.
137. Assault with intent to commit sodomy.
138. Indecent assault on man.
139. Attempted sodomy. Indecent assault upon a male.
140. Evidence.
141. Proceedings may be in camera.
142. Whipping for certain offences.

PART X-OFFENCES AGAINST PROPERTY


143. Definition of theft.
144. What things are capable of being stolen.
145. Punishment for theft.
146. Whipping.
147. Taking things according to Tongan custom.
148. Receiving.
149. Summons charging theft may also contain charge of receiving.
150. Person may be charged at preliminary inquiry before magistrate with other acts of theft against the same person.
151. Finding of lost property: (1) Duty of finder. (2) Duty of District Officer.
152. Explanation as to stealing of thing found.
153. Having possession of thing reasonably suspected of being stolen.
154. Robbery.
155. Assault with intent to rob.
156. Extortion.
157. Demanding property with menaces.
158. Embezzlement.
159. Falsification of accounts.
160. Person may be charged at preliminary inquiry before magistrate with other acts of embezzlement, etc., against the same person.
161. Person charged with embezzlement or fraudulent conversion may be convicted of theft and vice versa.
162. Fraudulent conversion of property.
163. Fraudulent conversion by trustees, administrators, etc.
164. Obtaining money or property by false pretences.
165. Obtaining execution or valuable security by fraud.
166. Obtaining credit by false pretences.
167. Obtaining goods on credit by unauthorized use of employer's name.
168. Obtaining goods on credit by wrongfully having them charged to relative's account.
169. Obtaining execution of document by false pretences as to its contents.
170. Forgery.
171. Punishment for forgery.
172. Knowingly dealing with forged documents.
173. Housebreaking.
174. Unlawful entry into buildings by night.
175. Unlawfully being on enclosed premises at night.
176. Being armed with instrument and intending to break and enter a building.
177. Arson.

PART XI-WILFUL DAMAGE TO PROPERTY AND ANIMALS, TRESPASS, BURNING OFF UNDERGROWTH, ETC.


178. Wilful damage to buildings, vessels, wharves, etc.
179. Wilful damage to beacons, buoys, etc.
180. Interference with landmarks and survey pegs.
181. Wilful damage to commodities.
182. Killing or maiming cattle.
183. Killing or maiming other animals.
184. Wilful damage to trees or cultivated plants, etc.
185. Wilful damage to fish fences, nets, etc.
186. Wilful damage to fences.
187. Wilful damage to things not otherwise provided for.
188. Trespass.
189. Taking and using cattle without owner's consent.
190. Burning things in towns without proper precaution.
191. Burning off undergrowth. Notice to be given and proper precautions taken.

PART XII-RESTITUTION OF PROPERTY CRIMINALLY OBTAINED AND DISPOSITION OF MONEY TAKEN FROM PRISONER ON ARREST


192. Power of Court to order restitution of property criminally obtained.
193. Power of Court to order restitution where stolen property pawned by thief.
194. Court may order money taken from prisoner on arrest to be applied in payment of compensation.
195. Court may order money taken from prisoner on arrest to be paid to innocent purchaser of stolen property which is restored to rightful owner.

PART XIII-PROSECUTIONS AND PROCEDURE IN RELATION THERETO


196. In what Courts prosecutions may be brought.
197. Who may prosecute.

PART XIV-PROBATION OF OFFENDERS


198. Court may release convicted offenders on recognizance to be of good behaviour.
199. Court may place convicted offender on probation.
200. Court shall give offender notice of terms of probation in simple language.

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CHAPTER 18

CRIMINAL OFFENCES

Acts Nos. 10 of 1924, 11 of 1924, 21 of 1926, 7 of 1929, 5 of 1930, 5 of 1931, 6 of 1935, 15 of 1935, 16 of 1935, 12 of 1936, 7 of 1939, 4 of 1942, 11 of 1942, 24 of 1942, 13 of 1943, 7 of 1944, 4 of 1948, 5 of 1948, 5 of 1949, 23 of 1950, 6 of 1952, 6 of 1954, 9 of 1956, 12 of 1957, 13 of 1957, 9 of 1958, 13 of 1958, 14 of 1958, 9 of 1959, 7 of 1962, 16 of 1962, 20 of 1966, 8 of 1967, 13 of 1969, 8 of 1975, 13 of 1978, 19 of 1978, 26 of 1978, 6 of 1980, 8 of 1984, 26 of 1984, 9 of 1987, 46 of 1988.

AN ACT RELATING TO CRIMINAL OFFENCES

[6th September, 1926]


Short title.

1. This Act may be cited as The Criminal Offences Act.

Interpretation.

2. In this Act unless the context otherwise requires-

"cattle" means the male, female or young of any animal of the following kinds, namely: horse, ass, mule, kine, sheep, goat or swine;

"Court" means the Supreme Court or a Magistrate's Court;

"currency" includes paper money, Treasury Notes, Bank Notes and metallic money the circulation of which is legally authorized (Added by Act 5 of 1930);

"night" means the time between the hour of 6 in the evening of any day and the hour of 6 in the following morning (Substituted by Act 13 of 1943);

"public place" means any road, highway, street, market, place or wharf and includes any building or vessel to which for the time being the public are entitled or permitted to have access either without any condition or upon conditions of making any payment and any building or place to which the public have the right of access or which is for the time being used for any public or religious meeting or assembly or as an open Court;

"valuable security" means any document which entitles or is evidence of the title of any person to any thing or proprietary right of any kind whatsoever and for the purposes of this Act a valuable security shall be deemed to be of the same value as the title to the thing or proprietary right which such security is evidence of and postage stamps shall be deemed to be of the same values as are specified on their faces;

"vessel" means every kind of ship, punt, boat or raft.


Accused not to be convicted of offence not charged.

3. Except where otherwise provided in this Act no person charged with an offence shall be found guilty of any other offence on the evidence submitted to the Court, if such evidence is insufficient to establish the offence with which such person is charged. (Added by Act 15 of 1935, Amended by Act 9 of 1958.)

PART I-ATTEMPTS


Definition of attempt.

4. (1) An attempt to commit an offence is an act done or omitted with intent to commit that offence forming part of a series of acts or omissions which would have constituted the offence if such series of acts or omissions had not been interrupted by the voluntary determination of the offender not to complete the offence or by some other cause.

(2) A person who attempts to commit an offence by any means shall not be acquitted on the ground that by reason of the imperfection or other condition of the means or by reason of the circumstances affecting the person against whom or the thing in respect of which the crime was intended to be committed it was not possible to commit the crime according to his intent.

Illustrations
A points a gun at B believing it to be loaded and meaning immediately to discharge it at him. A is guilty of an attempt to harm B although the gun is not, in fact, loaded.
A puts his hand into B's pocket intending to steal. A is guilty of an attempt to steal although there is nothing in the pocket.


Punishment for attempts.

5. (1) Every person who attempts to commit any offence punishable by imprisonment shall (unless the punishment for an attempt to commit such offence is otherwise expressly specified by law) be liable to imprisonment for a period not exceeding one-half of the longest period to which a person actually committing that offence might be lawfully sentenced.

(2) Every person who attempts to commit any offence punishable by fine shall (unless the punishment for an attempt to commit such offence is otherwise expressly specified by law) be liable to a fine not exceeding one-half of the maximum fine which a person who had actually committed the said offence might be sentenced to pay.

Conviction for attempt on charge of offence

6. Where the complete commission of the offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused person may be convicted of this attempt and punished accordingly:

Provided that after a conviction for the attempt the person so convicted shall not be liable to be tried again for the offence which he was charged with committing.

Conviction for attempt when full offence proved.

7. Where an attempt to commit an offence is charged but the evidence established the commission of the full offence the accused for attempt shall not be entitled to be discharged but he may be convicted of the attempt and punished accordingly:

Provided that after a conviction for the attempt the accused person shall not be liable to be tried again for the offence which he was charged with attempting to commit.

PART II.-ABETMENT, HARBOURING CRIMINALS, CONSPIRACY, ETC.


Abetment of crime and punishment of abettor.

8. Every person who directly or indirectly commands, incites, encourages or procures the commission of an offence by any other person and every person who knowingly does any act for the purpose of facilitating the commission of an offence by any other person is an abettor and shall (unless otherwise expressly specified by any enactment)-

(a) where the offence is actually committed in pursuance or during the continuance of such abetment be liable to the same punishment as if he himself had actually committed that offence; and

(b) where the offence is not actually committed shall be liable where the offence abetted was murder to imprisonment for life or any less period and in the case of abetment of any other offence to imprisonment for a period not exceeding one-half of the longest period to which a person committing that offence might be sentenced or to a fine not exceeding one-half of the maximum fine which a person committing that offence might be sentenced to pay.

Illustrations
A and B are fighting unlawfully; C and others hinder a police officer from stopping the fight. C and the others are guilty of abetting the fight.
A offers B $10 to assault C. A is guilty of abetting an assault on C.
A encourages B to break and enter a shop. If B is discovered and arrested while attempting to do so, A will be liable on a charge of abetting to imprisonment for three and a half years, one-half of the longest sentence that can be imposed for housebreaking. If B actually completes the offence of housebreaking, A is liable to 7 years' imprisonment.


Jurisdiction.

9. Whoever abets an offence shall be punishable in the Supreme Court or in the Magistrate's Court according as he would be punishable if he had committed that offence.

Trial.

10. An abettor may be tried before with or after a person abetted and although the person abetted is dead or is other-wise not amenable to justice.

Proof.

11. Every person who counsels, incites or procures another to commit an offence which that other afterwards commits is an abettor of that offence although it may be committed in a different manner from that which was counselled.

Illustration
A incites B to murder C by shooting him. B commits the murder by poisoning C. A is an abettor of B's crime.


Abettor deemed a party to any offence committed as a result of his counselling.

12. Every person who counsels, incites or procures another to commit an offence is a party to every offence which that other commits in consequence of such counselling, inciting or procuring and which the person counselling, inciting or procuring knew or ought to have known would be likely to be committed in consequence of such counselling, inciting or procuring.

Illustrations
A incites B to steal from C. B in attempting to do so is discovered by C and murders him. Here A is guilty only of abetting theft and not of abetting murder.


Harbouring criminals.

13. Every person who knowing or having reason to believe that criminals. any person has-

(a) committed an offence; or

(b) been charged by any prosecuting authority with any offence; or

(c) been issued with a summons by any court in respect of any offence; or

(d) been remanded for or is awaiting trial in any court in respect of any offence; or

(e) been convicted of any offence;

does without lawful authority or reasonable excuse any act with intent to impede his apprehension, prosecution or the execution of the sentence is guilty of an offence and is liable on conviction on indictment to imprisonment for any period not exceeding 3 years. (Substituted by Act 6 of 1980 and Amended by Act 9 of 1987 and Act 46 of 1988.)

Compounding crimes.

14. (1) Every person who-

(a) offers or agrees to forbear from prosecuting or giving evidence against a person on a criminal charge in consideration of money or any other valuable thing or any advantage whatsoever to himself or to any other person, or

(b) accepts or agrees to accept or offers to accept any reward upon pretence or on account of restoring to any person or of helping any person to recover anything which has been stolen or otherwise dishonestly appropriated by any crime punishable under Part X of this Act upon the understanding that no prosecution on account of the offence shall be proceeded with,


shall be liable to imprisonment for any period not exceeding 2 years.

(2) Where a person causes any wasteful employment of the police by knowingly making to any person a false report tending to show that an offence has been committed, or to give rise to apprehension for the safety of any persons or property, or tending to show that he has information material to any police inquiry, he is guilty of an offence and is liable on summary conviction to a fine not exceeding $500 or to imprisonment for any period not exceeding 6 months. (Inserted by Act 9 of 1987 Amended by Act 46 of 1988.)

Conspiracy.

15. (1) If 2 or more persons agree to act together with a common purpose in order to commit or abet an offence whether with or without any previous concert or deliberation each of them is guilty of conspiracy to commit or abet that offence as the case may be.

(2) If 2 or more persons are guilty of conspiracy to commit or abet any offence each of them shall in case the offence is committed be liable to be punished as if he had actually committed that offence or shall in case the offence is not committed be punished as if he had abetted that offence.

PART III-EXEMPTIONS FROM CRIMINAL RESPONSIBILITY AND RESPONSIBILITY FOR ACTS OF INVOLUNTARY AGENTS


Criminal liability of children.

16. (1) Nothing shall be deemed an offence which is done by a person under 7 years of age.

(2) Nothing shall be deemed an offence which is done by a person of or above 7 and under 12 years of age unless in the opinion of the Court or jury such person had attained sufficient maturity of understanding to be aware of the nature and consequences of his conduct in regard to the act of which he is accused.

Illustrations
Sub-section (1). A aged 6 years throws a stone at and wounds B. A cannot be convicted.
Sub-section (2). A aged 8 years steals a ring. A ought to be convicted if the magistrate or the jury think that A was aware he was committing an offence.


Person suffering from mental disease.

17. (1) A person shall not be responsible at law for an act or omission charged against him as an offence if at the time of doing the act or making the omission he is proved to have been insane in that he was suffering from such a state of mental disease as to deprive him-

(a) of capacity to understand the physical nature and quality of such act or omission; or

(b) of capacity to understand that such act or omission was wrong. (Amended by Act 13 of 1978)


(2) A person who is suffering from mental disease at the time of doing the act or making the omission charged against him as an offence and who owing to such mental disease is affected by delusions on some matter or matters but whose mental condition does not render him irresponsible at law within the meaning of subsection (1) is criminally responsible to the same extent as if the facts with respect to which such delusions exist were real.

Procedure where accused on arraignment appears to be insane.

18. If any accused person appears before or upon arraignment in the Supreme Court to be insane, a jury may be sworn to try whether he is sane or insane and the jury after hearing evidence for that purpose shall find whether or not he is insane and unfit to take his trial:

Provided that a verdict under this section finding an accused person to be insane shall not prevent such person from being tried for the offence with which he is charged in case he subsequently becomes of sound mind.

Procedure where accused was insane at time of committing the crime.

19. If upon the trial in the Supreme Court of any person against whom any act or omission is charged as an offence, evidence is given that such person at the time when such act or omission took place was insane within the meaning of section 17 hereof, then if it appears to the jury that he was so insane as aforesaid at the time when such act or omission took place the jury shall return a special verdict that the accused is not guilty because he was insane at the time when he did the act or made the omission. (Amended by Act 13 of 1978.)

Custody of accused person found to be insane.

20. (1) Where any person is found to be insane under the provisions of either section 18 or section 19 hereof the Court shall order him to be detained in safe custody pending the decision of the Privy Council.

(2) The judge shall forthwith report the finding of the jury and the detention of the accused to the Prime Minister, who shall submit the matter to the Privy Council for decision as to the place and mode of detention of the accused.

Intoxication.

21. (1) Save as provided in this section intoxication shall not constitute a defence or any criminal charge.

(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged, at the time of the act or omission complained of, did not know that such act or omission was wrong or did not know what he was doing and-

(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or

(b) the person charged was by reason of intoxication insane temporarily or otherwise at the time of such act or omission.


(3) Where the defence under the preceding subsection is established then in a case falling under paragraph (a) thereof the accused person shall be discharged and in a case failing under paragraph (b) the provisions of this Act relating to insane persons shall apply.

(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention specific or otherwise in the absence of which he would not be guilty of the offence.

(5) For the purpose of this section "intoxication" shall be deemed to include a state produced by narcotics or drugs. (Substituted by Act 15 of 1935.)

Married women.

22. A married woman committing an offence in the presence of her husband shall not be presumed to have committed it under his compulsion.

Involuntary agents.

23. Every person intentionally or negligently causing any involuntary agent to cause an event shall himself be deemed to have caused such event.

"Involuntary agent" means any animal or other thing and also any person who is exempt from liability to punishment for causing the event by reason of infancy, insanity or otherwise under the provisions of this Part of this Act.

Illustrations
A induces a child under 7 years of age to steal a thing for him. A is guilty of theft.

A causes a dog to attack and grievously hurt B. A is guilty of the harm caused to B.

PART IV.-PUNISHMENT


Different kinds of punishment.

24. (1) The following punishments may be inflicted-

(a) payment of compensation;

(b) fine;

(c) whipping;

(d) imprisonment; and

(e) death.


(2) (a) It shall be lawful at the discretion of the Court, for the infliction of punishment (other than punishment by death) to be deferred for any period not exceeding 12 months from the date of conviction.

(b) Where punishment is deferred under the foregoing paragraph, it shall be lawful for sentence to be passed on the first convenient day after the expiration of the period of deferment ordered by the Court, save that any person who is convicted of a further offence after the court has deferred sentence shall be sentenced for the offence for which sentence was deferred at the same time as he is being sentenced for that further offence. (Inserted by Act 19 of 1978 and Amended by Act 9 of 1987.)


(3) (a) It shall be lawful for the Court when imposing a sentence of imprisonment to suspend the whole or part of such sentence for any period up to 3 years;

(b) Such sentence will be conditional on the offender not being convicted of an offence punishable by imprisonment during the period of suspension;

(c) In the event of the offender being convicted of an offence punishable by imprisonment during the period of suspension he will thereupon be sentenced to serve the term of the suspended sentence in addition to the punishment imposed for such subsequent offence. (Inserted by Act 9 of 1987.)


Payment of compensation.

25. (1) Any person who is tried and convicted in the Supreme Court of an offence may be adjudged by the Court to make compensation to any person injured or suffering loss by his offence.

(2) Any person tried and convicted in a Magistrate's Court of an offence may be adjudged by the Court to make compensation not exceeding $500 to any person injured or suffering loss by his offence. (Amended by Acts 7 of 1962 and 13 of 1978.)

(3) Any such compensation may be either in addition to or in substitution for any other punishment and in default of payment thereof the convicted person is liable to imprisonment for any period not exceeding 12 months. (Amended by Acts 9 of 1987 and 46 of 1988.)

Fines.

26. (1) Where a person convicted of an offence is sentenced to pay a fine the Court shall, by its sentence, direct that if the person fails to pay the fine at the time appointed he shall be imprisoned for a period not exceeding one year unless the fine is sooner paid.

(2) Any imprisonment to which any person is sentenced and becomes subject under subsection (1) shall commence at the expiration of the imprisonment to which he is sentenced for his offence. (Substituted by Act 9 of 1987.)

Time may be granted for payment.

27. The Court imposing any fine may grant time to pay the same provided that no longer period than 3 months shall be granted. (Substituted by Act 13 of 1957.)

Imprisonment for non-payment.

28. Whenever an offender is imprisoned for non-payment of a fine, the period of his imprisonment shall be reckoned as beginning from the date on which he entered the prison and not from the date of his conviction.

Person imprisoned for non-payment of fine to be released on payment.

29. (1) Any person imprisoned for non-payment of a fine may pay or cause to be paid to the keeper of the prison the sum specified in the warrant of commitment and the keeper shall receive the same and shall thereupon discharge the prisoner if he is not in custody for any other matter. (Amended by Act 9 of 1987.)

Procedure on part payment of fine.

(2) Where any such person as aforesaid pays or causes to be paid to the keeper of the prison any part of the sum specified in the warrant of commitment, the keeper shall discharge the prisoner (if not in custody for any other matter) as soon as he has completed a proportion of his sentence equal to that proportion of the sum specified in the warrant which still remains unpaid.

Power to impose fine instead of imprisonment.

30. Where any person is convicted of any offence punishable by imprisonment such person may be sentenced to pay a fine in lieu thereof. (Substituted by Act 13 of 1978 and Amended by Act 26 of 1984.)

Whipping.

31. (1) It shall be unlawful to sentence any female to be whipped.

(2) Sentence of whipping may be passed upon a male offender only when the law expressly provides that the offence of which he has been convicted is punishable by whipping.

(3) A male offender may be sentenced to be whipped once or twice and the Court when pronouncing any such sentence shall specify the number of strokes to be inflicted on each occasion:

Provided that in the case of any male offender under 16 years of age the total number of strokes to which he is sentenced shall not exceed 20 and in the case of any other male offender the total number of strokes prescribed by such sentence shall not exceed 26. No person who has been whipped shall be again whipped within 14 days. (Amended by Act 9 of 1987.)

(4) Every sentence of whipping shall be carried out by the chief gaoler or gaoler for the district within the prison precinct and in the presence of a magistrate.

(5) Where the person sentenced to be whipped is a male under 16 years of age the whipping shall be inflicted on the breech with a light rod or cane composed of tamarind or other twigs. In the case of any other male offender the whipping shall be inflicted on the breech with a cat of a pattern approved by the Cabinet. (Amended by Act 9 of 1987)

(6) No sentence of whipping shall be carried out until the offender has been examined by a doctor or a Government medical assistant and certified by him that there is no mental or physical impairment of the offender such as to render him unfit to undergo such punishment. (Amended by Act 8 of 1984.)

(7) No sentence of whipping shall be carried out on an adult unless ordered or approved on review by the Cabinet, and for the purposes of this subsection "adult" means a person who is 16 years of age and over. (Added by Act 4 of 1942, Amended by Acts 5 of 1948 and 9 of 1987.)

Imprisonment.

32. Every person sentenced to imprisonment or committed to prison shall be subject to imprisonment with hard labour unless the contrary is expressed in the sentence or warrant.

Death sentence.

33. (1) When any person is condemned to death the sentence shall be that such person shall be taken to the place of execution and there hanged by the neck until he is dead.

King's assent.

(2) No sentence of death shall be carried into execution until the King with the consent of the Privy Council has signified assent thereto.

Power to commute.

(3) It shall be lawful for the King with the consent of the Privy Council to commute a sentence of death to imprisonment for life.

Chief Justice to forward report to Prime Minister.

34. The Chief Justice so soon as conveniently may be after pronouncing any sentence of death shall forward to the Prime Minister for submission to the Privy Council his notes of evidence taken at the trial with a report in writing containing any recommendation or observations on the case which he may think fit to make.

Sentence of death: how executed.

35. Sentence of death shall be executed under the direction of the Minister of Police or of such other officer as the Privy Council may appoint, and the gaoler, a medical officer and such other officers of the prison as the Minister of Police or other officer appointed as aforesaid shall require, and such minister of religion as the Privy Council may at the request of the prisoner approve may be present at the execution.

Medical officer to supply certificate of death.

36. As soon as may be after sentence of death has been executed on the offender the dead body shall be examined by a medical officer who shall ascertain the fact of death and shall sign a certificate thereof and deliver the same to the Minister of Police. The Minister of Police or other officer appointed under section 35 hereof shall also sign a declaration to the effect that sentence of death has been executed on the offender. (Amended by Act 9 of 1958.)

Inquest on body of person executed.

37. (1) The magistrate for the district in which the prison in which the sentence of death was carried out is situated shall within 24 hours after the execution hold an inquest on the body of the offender and the jury at the inquest shall inquire into and ascertain the identity of the body and whether sentence of death was duly executed on the offender.

(2) No officer of the prison or prisoner confined therein shall in any event be a juror on the inquest.

Privy Council to appoint place of burial for executed criminals.

38. The Privy Council shall by writing under its seal appoint some fit place for the burial of offenders executed and the body of every offender shall be buried in such place.

Regulations with respect to execution of death sentence

39. The Privy Council may from time to time make such regulations to be observed on the execution of sentence of death as they may deem expedient for the purpose of guarding against any abuse in the execution, for giving greater solemnity thereto and for making known without the prison walls the fact that the execution is taking place.

Sentence of death not to be passed on pregnant woman.

40. Where a woman convicted of an offence punishable with death is found in accordance with the provisions of this Act to be pregnant the sentence to be passed on her shall be a sentence of imprisonment for life instead of sentence of death. (Added by Act 16 of 1939)

Procedure where woman convicted of capital offence alleges she is pregnant.

41. (1) Where a woman convicted of an offence punishable with death alleges that she is pregnant or where the Court before whom a woman is so convicted thinks fit so to order the question whether or not the woman is pregnant shall before sentence is passed on her be determined by a jury.

(2) Subject to the provisions of this subsection the said jury shall be the trial jury that is to say the jury to whom she was given in charge to be tried for the offence and the members of the jury need not be resworn:

Provided that-

(a) if any member of the trial jury either before or after the conviction dies or is discharged by the Court as being through illness incapable of continuing to act or for any other cause, the inquiry as to whether or not the woman is pregnant shall proceed without him; and

(b) where there is no trial jury or where a jury have disagreed as to whether the woman is or is not pregnant or have been discharged by the court without giving a verdict on that question, the jury shall be constituted as if to try whether or not she was fit to plead and shall be sworn in such manner as the Court may direct.


(3) The question whether the woman is pregnant or not shall be determined by the jury on such evidence as may be laid before them either on the part of the woman or on the part of the Crown, and the jury shall find that the woman is not pregnant unless it is proved affirmatively to their satisfaction that she is pregnant. (Added by Act 16 of 1935)

PART V.-TRIAL OF OFFENCES AND ALTERNATIVE VERDICTS


Trial of offences.

42. (1) Where a person is arraigned on an indictment-

(a) he shall in all cases be entitled to make a plea of not guilty in addition to any demurrer or special plea;

(b) he may plead not guilty of the offence specifically charged in the indictment but guilty of another offence of which he might be found guilty on that indictment;

(c) if he stands mute of malice or will not answer directly to the indictment, the Court may order a plea of not guilty to be entered on his behalf and he shall then be treated as having pleaded not guilty.


(2) On an indictment for murder a person found not guilty of murder may be found guilty-

(a) of manslaughter, or of causing grievous bodily harm with intent to do so, or of wounding with that intent;

(b) of an offence of which he may be found guilty under a written law specifically so providing; or

(c) of an attempt to commit murder, or of an attempt to commit any other offence of which he might be found guilty,


but he may not be found guilty of any offence not included above.

(3) Where on a person's trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the Court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.

(4) For purposes of subsection (3) any allegation of an offence shall be taken as including an allegation of attempting to commit that offence.

(5) Where a person arraigned on an indictment pleads not guilty of an offence charged in the indictment but guilty of some other offence (whether an offence of which he might be found guilty on that charge or an offence separately charged), and he is convicted on that plea of guilty without trial for the offence of which he has pleaded not guilty, his conviction of the one offence shall be an acquittal of the other.

(6) Subsections (1) to (3) (inclusive) apply to an indictment containing more than one count as if each count were a separate indictment. (Inserted by Act 9 of 1987.)

PART VI-PROCEDURE AGAINST CORPORATIONS


Procedure on charge of offence against corporation.

43. (1) Where a corporation is charged with an offence before a Magistrate's Court, the Court may commit the corporation for trial by an order in writing under the hand of the Magistrate empowering the prosecution to prefer a bill of indictment in respect of the offence named in the order.

Form Schedule

(2) The form of order under subsection (1) shall be in the form as the Form in the Schedule.

(3) A representative may on behalf of a corporation-

(a) make a statement before the Magistrate in answer to the charge;

(b) consent or object to summary trial or claim trial by jury.


(4) Where a representative appears, any requirement of the Magistrates' Courts Act that anything shall be done in the presence of the accused, or shall be read or said to the accused, shall be construed as a requirement that the thing shall be done in the presence of the representative or read or said to the representative. Cap. 11

(5) Where a representative does not appear, any such requirement, and any requirement that the consent of the accused shall be obtained for summary trial does not apply.

(6) Subject to this section, the provisions of the Magistrates' Courts Act relating to the inquiry into and trial of indictable offences apply to a corporation as they apply to an adult.

(7) Where a corporation is charged jointly with an individual with an offence before a Magistrate's Court, then if the offence is not a summary offence but one that may be tried with the consent of the accused, the Court shall not try either of the accused summarily unless each of them consents to be so tried.

(8) Where a corporation is arraigned on an indictment before the Supreme Court, the corporation may enter in writing by its representative a plea of guilty or not guilty, and if either the corporation does not appear by a representative or, though it does so appear, fails to enter as mentioned above any plea, the Court shall order a plea of not guilty to be entered and the trial shall proceed as though the corporation had duly entered a plea of not guilty.

(9) In this section the expression "representative" in relation to a corporation means a person duly appointed by the corporation to represent it for the purpose of doing any act or thing which the representative of a corporation is by this section authorised to do, but a person so appointed shall not, by virtue only of being so appointed, be qualified to act on behalf of the corporation before any Court for any other purpose.

(10) A representative for the purposes of this section need not be appointed under the seal of the corporation, and a statement in writing purporting to be signed by a managing director of the corporation, or by any person (by whatever name called) having, or being one of the persons having, the management of the affairs of the corporation, to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this section shall be admissible without further proof as prima facie evidence that person has been so appointed. (Inserted by Act 9 of 1987.)

PART VII-OFFENCES AGAINST THE STATE


Treason

44. Every person who-

(a) levies or conspires to levy war against the King or the Government; or

(b) attempts to assassinate the King or the heir to the throne; or

(c) attempts to depose the King; or

(d) joins in a rebellion against the King; or

(e) incites any person to assassinate or depose the King or to assassinate the heir to the throne


is guilty of treason and shall on conviction thereof be sentenced to death or to imprisonment for any period not exceeding life and his lands and other property shall be forfeit to the Crown.

Concealment of treason.

45. Every person who being aware of any intended treason omits to give information thereof to the Minister of Police or to the Governor of the district or the Government representative for the district shall be liable to imprisonment for any period not exceeding 7 years.

Attempts to injure or alarm the King.

46. Every person who with intent to injure or alarm the King wilfully-

(a) points at the King any description of firearm or weapon whatsoever, or

(b) throws or attempts to throw anything at the King, or

(c) strikes or attempts to strike the King with any weapon or in any other manner whatever,


shall be liable to imprisonment for any period not exceeding 10 years.

Sedition.

47. (1) Every person who speaks any seditious words or makes, publishes, imports or distributes any seditious document or is party to a seditious conspiracy shall be liable to imprisonment for any period not exceeding 7 years.

(2) Seditious words are words expressive of a seditious intention.

A seditious document is a document expressive of a seditious intention.

A seditious conspiracy is an agreement between 2 or more persons to carry into execution a seditious intention.

Definition of seditious intention.

48. A seditious intention is an intention to do any of the following matters-

(a) to excite disaffection against the King of Tonga or against the Parliament or Government of Tonga;

(b) to excite such hostility or ill-will between different classes of the inhabitants of the Kingdom as may be injurious to the public welfare;

(c) to incite, encourage or procure violence, disorder or resistance to law or lawlessness in the Kingdom;

(d) to procure otherwise than by lawful means the alteration of any matter affecting the Constitution, Laws or Government of the Kingdom. (Amended by Act 13 of 1978.)


Deprivation of civil rights.

49. Any person who shall be sentenced to 2 years imprisonment or more for treason, concealment of treason or sedition shall be deprived of his rights as a citizen and shall not hold an appointment in the public service nor vote in any election for representatives to the Legislative Assembly nor serve on a jury unless pardoned by the King.

Acceptance of bribe by government servant.

50. Every person employed as or acting in the capacity of a Government servant who shall demand or accept any money or valuable consideration of any description whatever as an inducement to do or abstain from doing any act in the execution of his duty as such Government servant or as an inducement for showing favour or disfavour to any person shall be liable to imprisonment for any period not exceeding 3 years.

Bribery of government servant.

51. 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.

Extortion by government servant.

52. Every person employed as or acting in the capacity of a Government servant who from an improper motive and under colour of office demands or accepts from any other person any money or valuable consideration whatever which is not due from such person at the time when it is so demanded or accepted shall be liable to imprisonment for any period not exceeding 5 years.

Fraudulent conversion by government servant.

53. Every person who being employed as or acting in the capacity of a Government servant fraudulently converts to his own use or to the use or benefit of any other person or in any manner fraudulently disposes of any money valuable security or thing of any description whatever or any part thereof which has been entrusted to or received by him by virtue of his employment as a Government servant shall be liable to imprisonment for any period not exceeding 10 years.

False receipt: issue of, by government servant.

54. Every Government servant who wilfully gives to any person a receipt for an amount of money or property different from the amount actually paid over or delivered to such Government servant shall be liable to imprisonment for any period not exceeding 5 years.

Assaulting or obstructing government servants.

55. Every person who assaults, resists or wilfully obstructs any Government servant in the lawful execution of his duty shall be liable on conviction to imprisonment for any period not exceeding 12 months, or to a fine not exceeding $250, or to both such fine and imprisonment. (Amended by Acts 23 of 1950, 20 of 1966 and 9 of 1987.)

Intimidating government servants.

56. Every person who, with a view to induce any Government servant to do or refrain from doing any act in the lawful execution of his duty, intimidates such Government servant or his wife or children or injures or threatens to injure his property shall be liable on conviction to imprisonment for any period not exceeding 12 months, or to a fine not exceeding $250, or to both such fine and imprisonment. (Amended by Acts 23 of 1950, 20 of 1966 and 9 of 1987.)

Use of threatening, etc., language to government servant.

57. Every person who uses threatening, abusive or insulting language or behaviour towards any officer in the service of the Government shall be liable on conviction to imprisonment for any period not exceeding 12 months, or to a fine not exceeding $250, or to both such fine and imprisonment. (Amended by Acts 23 of 1950, 20 of 1966 and 9 of 1987.)

Refusal to assist in prevention of crime.

58. Every person who being lawfully required by any public officer, police officer or other person to render assistance in preventing the commission of any offence or in arresting any person or in preventing the rescue or escape of any person, refuses or neglects to render such assistance shall be liable to a fine not exceeding $250 and in default of payment to imprisonment for any period not exceeding 6 months. (Amended by Act 9 of 1987.)

Making counterfeit currency

59. (1) Every person who-

(a) makes any counterfeit currency resembling or apparently intended to resemble any of the current currency of the Kingdom of Tonga or of any foreign state or country, or

(b) has in his possession or makes any dies or other instruments or materials intended to be used in the making of counterfeit currency,


shall be liable to imprisonment for any period not exceeding 5 years. (Amended by Acts 5 of 1930, 16 of 1962 and 13 of 1978.)

(2) Any counterfeit currency or any dies, instruments or material used in making any counterfeit currency found in the possession of any person may be seized and shall be delivered up to the Treasurer or to any person authorized by him for the purpose by order of the Court before which the offender is tried. (Added by Act 12 of 1936.)

Impairing current currency.

60. Every person who shall impair or diminish any of the current currency of the Kingdom of Tonga or of any foreign state or country with intent that when so impaired or diminished it shall pass as current currency either in Tonga or elsewhere shall be liable to imprisonment for any period not exceeding 5 years. (Amended by Acts 5 of 1930, 16 of 1962 and 9 of 1987.)

Uttering counterfeit currency.

61. Every person who shall utter any currency resembling or apparently intended to resemble any of the current currency of the Kingdom of Tonga or of any foreign state or country, knowing such currency to be counterfeit, shall be liable to imprisonment for any period not exceeding 5 years. (Amended by Acts 5 of 1930, 16 of 1962 and 13 of 1978.)

Importing, etc., counterfeit currency

62. Any person who imports or receives or obtains in any manner whatsoever any counterfeit currency knowing the same to be counterfeit with intent to utter the same shall be guilty of an offence against this Act and on conviction be liable to imprisonment for any term not exceeding 5 years. (Added by Act 5 of 1930.)

PART VIII-OFFENCES AGAINST JUSTICE, THE PUBLIC PEACE, AND PUBLIC MORALS


Perjury.

63. (1) Perjury is the making by any person upon oath or affirmation, either in a judicial proceeding or in any affidavit or solemn declaration, of any material statement relating to a matter of fact, opinion, belief or knowledge which the person making such statement knows to be false.

(2) Every proceeding shall be deemed to be judicial within the meaning of subsection (1) which is held before any Court or before any person having power to take evidence on oath or affirmation.

(3) Every person who commits perjury or counsels or procures a person to commit any perjury which is actually committed shall be liable to imprisonment for any period not exceeding 7 years.

(4) Every person who attempts to induce another to commit perjury shall be liable to imprisonment for any period not exceeding 2 years.

False statements.

64. (1) Any person who knowingly and wilfully makes otherwise than on oath a statement false in a material particular and the statement is made-

(a) in an account, certificate, declaration, entry, inventory, notice or other document which he is authorized or required to make attest or verify by any written law; (Amended by Act 9 of 1987.)

(b) in any oral declaration or oral answer which he is required to make under or in pursuance of any written law; or (Amended by Act 9 of 1987.)

(c) in any written statement made to the police by such person as a witness to or in connection with any criminal offence alleged to have been committed by any other person, provided that he signed at the end of his written statement an acknowledgement that he was warned that if he knowingly and wilfully made therein any statement false in a material particular he became liable to prosecution; (Inserted by Act 26 of 1978.)


shall be guilty of an offence and on conviction thereof shall be liable to imprisonment for a term not exceeding 2 years or to a fine not exceeding $500 or to both such fine and imprisonment. (Amended by Act 9 of 1987.)

(2) No prosecution shall be instituted against any person for an offence under this section unless the same shall be commenced within 2 years from the time of the commission of such offence. (Added by Act
7 of 1929.)

Interference with course of justice.

65. Every person who conspires or attempts to interfere wrongfully in any manner with the course of justice in any matter, civil or criminal, shall be liable to imprisonment for any period not exceeding 4 years.

Bribing jurors.

66. (1) Every person who shall offer any inducement of any description whatsoever to another for the purpose of influencing such other person's decision as a juror in any matter civil or criminal shall be liable to imprisonment for any period not exceeding 3 years.

(2) Every person who refrains or offers to refrain from prosecuting any offence in return for any valuable consideration, favour or reward received or to be received from any offender shall be liable to imprisonment for any period not exceeding 4 years.

Unlawful Society.

67. (1) A society includes any combination of 10 or more persons whether the society be known by any name or not.

(2) A society is an unlawful society-

(a) if the King in Council by Order in Council declares the society to be a threat or a danger to the peace order and good government of the Kingdom; or

(b) if it aims at, or was formed for, or engages in, any one or more of the following:

(i) levying war or encouraging or assisting any person to levy war on the Government or the inhabitants of any part of the Kingdom;

(ii) killing or injuring or inciting to the killing or injuring of any person;

(iii) destroying or injuring or inciting to the destruction or injuring of any property;

(iv) subverting or promoting the subversion of the Government or of its officials;

(v) committing or inciting to acts of violence or intimidation;

(vi) interfering with, or resisting, or inciting to interference with or resistance to the administration of the law; and

(vii) disturbing or inciting to the disturbance of peace or order in any part of the Kingdom.

(Inserted by Act 8 of 1967)

Managing unlawful society.

68. Any person who manages or assists in the management of an unlawful society commits an offence and is liable to imprisonment for 7 years. (Inserted by Act 8 of 1967)

Being member of unlawful society.

69. Any person who-

(a) is a member of an unlawful society; or

(b) knowingly allows a meeting of an unlawful society or of members of an unlawful society to be held in any house, building or place belonging to or occupied by him, or over which he has control,


commits an offence and is liable to imprisonment for 3 years. (Inserted by Act 8 of 1967)

Prosecution under Sections 68 and 69.

70. (1) A prosecution for an offence under sections 68 or 69 shall not be instituted except with the consent in writing of the Prime Minister:

Provided that a person charged with such an offence may be arrested or a warrant for his arrest may be issued and executed, and any such person may be remanded in custody or on bail, notwithstanding that the consent of the Prime Minister to the institution of a prosecution for the offence has not been obtained, but no further or other proceedings shall be taken until that consent has been obtained.

(2) In any prosecution for an offence under sections 68 or 69 it shall not be necessary to prove that the society consisted of 10 or more members; but it shall be sufficient to prove the existence of a combination of persons and the onus shall then rest with the accused to prove that the number of members of such combination did not amount to 10.

(3) Any person who attends a meeting of an unlawful society shall be presumed, until and unless the contrary is proved, to be a member of that society.

(4) Any person who has in his possession or custody or under his control. any of the insignia, banners, arms, books, papers, documents or other property belonging to an unlawful society, or wears any of the insignia, or is marked with any mark of the society, shall be presumed, unless and until the contrary is proved, to be a member of the society. (Inserted by Act 8 of 1967).

Power of entry, arrest search etc.

71. Any police officer may without warrant enter with or without assistance any house, buildings, tent, vessel, aircraft or into any place whatsoever in which he has reason to believe that a meeting of an unlawful society or of persons who are members of an unlawful society is being held, and to arrest or cause to be arrested all persons found therein, and to search such house, building, tent, vessel, aircraft or other place and seize or cause to be seized all insignia, banners, arms, books, papers, documents and other property which he may have reasonable cause to believe to belong to any unlawful society or to be in any way connected with the purpose of the meeting. (Inserted by Act 8 of 1967)

Declaration by King in Council.

72. When a society is declared to be an unlawful society by an order of the King in Council, the following consequences shall ensue-

(a) the property of the society within the Kingdom shall forthwith vest in an officer appointed by the Prime Minister;

(b) the officer appointed by the Prime Minister shall proceed to wind up the affairs of the society and, after satisfying and providing for all debts and liabilities of the society and the cost of winding up, if there shall then be any surplus assets, such assets shall become the property of the Government and may be disposed of as the Prime Minister may direct. (Inserted by Act 8 of 1967)


Forfeiture of insignia etc.

73. Subject to the provisions of section 72, insignia, banners, arms, books, papers, documents and other property belonging to an unlawful society shall be forfeited to the Government for disposal in such manner as the Prime Minister may direct. (Inserted by Act 8 of 1967)

Unlawful assembly and Riot.

74. (1)

(a) When 3 or more persons assemble with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace, those 3 or more persons constitute an unlawful assembly.

(b) It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.


(2) When an unlawful assembly takes a step towards executing, or begins to execute, the purpose for which it assembled by committing a breach of the peace to the terror of the public, the assembly is called a riot, and the persons assembled are said to be riotously assembled. (Inserted by Act 8 of 1967)

Punishment for unlawful assembly.

75. (1) Any person who takes part in an unlawful assembly commits an offence and is liable to imprisonment for a period not exceeding one year.

(2) Any person who takes part in a riot commits an offence and is liable to imprisonment for a period not exceeding 2 years. (Inserted by Act 8 of 1967)

Making proclamation for rioters to disperse.

76. (1) Any magistrate or, in his absence, any police officer not below the rank of sub-inspector or any officer in charge of a Police Station, in whose view 5 or more persons are riotously assembled, or who apprehends that a riot is about to be committed by 5 or more persons assembled within his view, may make or cause to be made a proclamation in the name of the King, in such form as he thinks fit, commanding the rioters or persons so assembled to disperse peaceably.

Dispersion of rioters after proclamation.

(2) If upon the expiration of a reasonable time after such proclamation has been made, or after the making of such proclamation has been prevented by force, 10 or more persons continue to riotously assemble together, any person authorised to make a proclamation, or any police officer, or any person acting in aid of such person or police officer, may do all things necessary for dispersing the persons so assembled, or for apprehending them or any of them, and, if any person resists, may use all such force as is reasonably necessary for overcoming such resistance, and shall not be liable in any criminal or civil proceedings for having, by the use of such force, caused harm or death to any person.

Rioting after proclamation.

(3) If a proclamation is made commanding the persons engaged in a riot or assembled with the purpose of committing a riot to disperse, every person who, at or after the expiration of a reasonable time from the making of such proclamation, takes or continues to take part in the riot or assembly commits an offence and shall be liable to imprisonment for a period not exceeding 5 years.

Preventing or obstructing the making of proclamation.

(4) Any person who forcibly prevents or obstructs the making of the proclamation referred to in this section commits an offence and is liable to imprisonment for a period not exceeding 10 years; and if the making of the proclamation is so prevented or obstructed every person who, knowing that it has been so prevented, takes or continues to take part in the riot or assembly, is liable to imprisonment for a period not exceeding 15 years. (Inserted by Act 8 of 1967.)

Rioters demolishing buildings etc.

77. (1) All persons who, being riotously assembled together, unlawfully pull down or destroy or begin to pull down or destroy any building, machinery or structure commit an offence and are liable to imprisonment for life.

(2) All persons who, being riotously assembled together, unlawfully damage any of the things mentioned in sub-section (1) commit an offence and are liable to imprisonment for a period not exceeding 7 years.

(3) All persons who, being riotously assembled together, unlawfully and with force prevent, hinder or obstruct the loading or unloading of any vehicle, vessel or aircraft, or the starting of any vehicle or the sailing or navigation of any vessel or the departure or arrival of any aircraft, or unlawfully and with force board any vehicle, vessel or aircraft with intent to do any such act aforesaid commit an offence and are liable to imprisonment for a period not exceeding 5 years. (Inserted by Act 8 of 1967).

Going armed in public

78. Any person who goes armed in public without lawful excuse in such manner as to cause terror to any person commits an offence and is liable to imprisonment for a period not exceeding 5 years and his arms shall be forfeited to the Government. (Inserted by Act 8 of 1967.)

Bigamy.

79. (1) Every person who-

(a) being lawfully married, goes through a form of marriage with any other person, or

(b) goes through a form of marriage with any person whom he or she knows to be married,


is guilty of bigamy and shall be liable to imprisonment for any period not exceeding 3 years.

(2) The fact that the parties would if unmarried have been incompetent for any reason to contract marriage shall not be a defence upon a prosecution for bigamy.

(3) It shall be a sufficient defence upon any prosecution for bigamy if it is proved-

(a) that at the time of the marriage in respect of which the charge is brought the defendant's husband or wife as the case may be had been continually absent from the defendant for 7 years or more and had not been known by the defendant to be alive at any time within that period; or

(b) that at the time of the marriage in respect of which the charge is brought the defendant honestly believed upon reasonable grounds that the husband or wife as the case may be was dead; or

(c) that at the time of the marriage in respect of which the charge is brought the defendant honestly believed upon reasonable grounds that the first marriage was invalid; or

(d) that the previous marriage had been dissolved by a decree of divorce or had been declared void from the beginning by any court of competent jurisdiction.

Illustration

Sub-section (2). On the prosecution of A for bigamy it will be no defence to prove that A's alleged bigamous marriage was to a person whom he was by law prohibited from marrying on the ground of consanguinity.


Keeping a brothel, etc.

80. (1) It is an offence for a person to keep a brothel, or to manage, or act or assist in the management of, a brothel.

(2) It is an offence for the lessor or landlord of any premises or his agent to let the whole or part of the premises with the knowledge that it is to be used in whole or in part, as a brothel, or, where the whole or part of the premises is used as a brothel, to be wilfully a party to that use continuing.

(3) It is an offence for the tenant or occupier, or person in charge, of any premises knowingly to permit the whole or part of the premises to be used as a brothel.

(4) It is an offence for the tenant or occupier of any premises knowingly to permit the whole or any part of the premises to be used for the purposes of habitual prostitution.

(5) A brothel is a house or room or place of any kind whatever kept, used or resorted to for purposes of prostitution.

(6) For purposes of this section premises shall be treated as a brothel if people resort to it for the purpose of lewd homosexual practices in circumstances in which resort thereto for lewd heterosexual practices would have led to its being treated as a brothel for the purpose of this section.

(7) Any person who is guilty of an offence under this section is liable on summary conviction to a fine not exceeding $500 or to imprisonment for any period not exceeding one year. (Substituted by Act 9 of 1987, Amended by Act 46 of 1988.)

Trading in prostitution.

81. (1) Every male person who knowingly lives wholly or in part on the earnings of prostitution shall be liable to imprisonment for any period not exceeding 2 years and in the case of a second or subsequent conviction the Court may in addition to any term of imprisonment awarded order him to be whipped in accordance with the law for the time being in force regulating the punishment of offenders by whipping. (Amended by Act 9 of 1987.)

(2) For the purposes of subsection (1) a man who lives with or is habitually in the company of a prostitute, or who exercises control, direction or influence over a prostitute's movements in a way which shows he is aiding, abetting or compelling her prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution, unless he proves the contrary. (Inserted by Act 9 of 1987.)

(3) Every woman who for purposes of gain exercises control, direction or influence over a prostitute's movements in a way which shows she is aiding, abetting or compelling her prostitution is guilty of an offence and is liable on summary conviction to a fine not exceeding $500 or to imprisonment for any period not exceeding 2 years. (Inserted by Act 9 of 1987, Amended by Act 46 of 1988.)

(4) Any person who in any public place solicits or importunes for immoral purposes shall be liable to imprisonment for any period not exceeding 6 months. (Added by Act 11 of 1942.)

(5) Any male person who, whilst soliciting for an immoral purpose, in a public place with intent to deceive any other person as to his true sex, has on or about his person any article intended by him to represent that he is a female or in any other way impersonates or represents himself to be a female shall be guilty of an offence and shall upon conviction be liable to a fine not exceeding $100 or to imprisonment for a period not exceeding one year or to both such imprisonment and such fine. (Inserted by Act 19 of 1978.)

(6) A police officer may arrest without a warrant a person found committing an offence under this section. (Inserted by Act 9 of 1987.)

Gaming houses.

82. (1) Every person who keeps a gaming house shall be liable to imprisonment for any period not exceeding one year.

(2) A gaming house is a house, room or place of any kind whatever kept or used as a place of resort for gaming.

(3) "Gaming" means the playing of any game of mere chance for money or other stakes of any description whatever or the playing at any game of mixed chance and skill for excessive stakes or otherwise to the injury of public morals.

(4) Any person who acts as a person having the management or care of a gaming house shall be deemed to be a keeper thereof whether he is in fact a keeper thereof or not.

(5) The owner or occupier of any house, room or place who knowingly permits the same to be used as a gaming house shall be deemed to be a keeper thereof whether he is in fact a keeper thereof or not.

Games of mere chance.

83. Every person who plays for money or other stakes of any description whatever at any game of mere chance shall be liable to a fine not exceeding $10 and in default of payment thereof to imprisonment for any period not exceeding 2 months.

Use of disguise.

84. Any person who without lawful excuse is found in any place disguised by the blackening of his face by wearing a mask or by any other means whatsoever shall be guilty of an offence and shall upon conviction be liable to a fine not exceeding $100 or imprisonment not exceeding one year or to both such imprisonment and such fine. (Added by Act 6 of 1952.)

PART IX.-OFFENCES AGAINST THE PERSON


Definition of homicide.

85. Homicide is the killing of a human being by any means whatsoever and is either culpable or not culpable.

Definition of culpable homicide.

86. (1) Culpable homicide consists in the killing of any person either-

(a) by an unlawful act; or

(b) by omission without lawful excuse to perform or observe towards such person any legal duty; or

(c) by the commission of an unlawful act combined with the omission of a legal duty; or

(d) by causing a person through threats or fear of violence or through deception to do an act which causes that person's death; or

(e) by wilfully frightening a child or sick person.


(2) Culpable homicide is either murder or manslaughter.

When culpable homicide amounts to murder.

87. (1) Culpable homicide is murder in any of the following cases-

(a) if the offender intended to cause the death of the person killed; or

(b) if the offender intended to cause to the person killed any bodily injury which the offender knew was likely to cause death and was reckless whether death ensued or not; or

(c) if the offender intending to cause the death of one person or intending to inflict on one person bodily injury likely to cause death and being reckless whether death ensues or not kills a different person by accident or mistake although he does not mean to hurt the person killed; or

(d) if the offender for the purpose of accomplishing any unlawful object does an act which he knows or ought to have known to be likely to cause death and thereby kills any person even though he may not have desired to hurt any person in order to effect his object.


(2) Culpable homicide is also murder in each of the following cases whether the offender does or does not know that death is likely to ensue-

(a) if he means to inflict grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (3) of this section or for the purpose of facilitating the flight of any person who has committed or attempted to commit any of such offences and death ensues from such injury;

(b) if he administers any stupefying or overpowering thing for either of the purposes mentioned in paragraph (a) of this subsection and death ensues from the effects thereof;

(c) if he by any means wilfully stops the breath of any person for either of the purposes mentioned in paragraph (a) of this subsection and death ensues from such stoppage of the breath.


(3) The following are the offences referred to in paragraph (a) of subsection (2) treason, escape or rescue from prison or lawful custody, resisting lawful apprehension, murder, rape, abduction, robbery, housebreaking, arson.

When culpable homicide is manslaughter only.

88. A person who commits culpable homicide shall be deemed to be guilty of manslaughter and not of murder if any of the following matters are proved on his behalf; namely-

(a) that he was deprived of the power of self-control by such extreme provocation given by the other person as is mentioned in section 89 hereof; or

(b) that he was justified in causing some harm to the other person, and that in causing harm in excess of the harm he would have been justified in causing, he acted from such terror of death or grievous hurt as in fact deprived him for the time being of the power of self-control; or

(c) that in causing the death he acted in the belief in good faith and on reasonable grounds that he was under a legal duty to cause the death or to do the act which he did. (Amended by Act 13 of 1978.)


What matters amount to extreme provocation.

89. The following matters may amount to extreme provocation to one person to cause the death of another person namely-

(a) an unlawful assault committed upon the accused person by the other person which was of such a kind either by reason of its violence or of accompanying words, gestures or other circumstances of aggravation as to be likely to deprive any person of ordinary character being in the circumstances in which the accused person was, of the power of self-control;

(b) the taking up by the other person at the beginning of an unlawful fight of an attitude manifesting an intention of manifesting instantly attacking th