|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
[Report an error]
[F.A.Q.]
Tonga Consolidated Legislation |
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.
----------------------------------------
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