Chen v Attorney-General of Fiji [1993] FJHC 106; Hbc0240j.90s (18 November 1993)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of Fiji

Dates of Hearing: 10th, 18th May, 14th September and
4th November 1993
Date of Judgment: 18th November 1993

In this case the Plaintiff who lives in Hong Kong claims damages for false imprisonment and malicious prosecution from the Defendant representing the Government of Fiji. He alleges that he is a Fiji citizen and holder of Fiji Passport No.278346 which is still current and valid. Before the 5th of June, 1990 he alleges he was operating a Textiles Business in Hong Kong.

In a Statement of Claim annexed to the Writ herein which was issued on the 12th of June, 1990 he alleges that on the 5th of June, 1989 he arrived from Tonga on business and on the same day at Nausori Airport the Immigration Authorities seized his passport and handed it over to the Fiji Police for investigation.

He claims that he was originally booked to travel to Australia and Hong Kong on the 9th of June, 1989 but could not leave Fiji on that day as scheduled because his passport was not released to him by the Immigration Authorities and/or Fiji Police. He alleges that he then changed his booking to the 17th of June, 1989 and even though he made several requests for the release of his passport the Immigration Authorities and/or the Fiji Police refused to return it to him. Following this, and here I paraphrase paragraphs 6 to 11 of the Statement of Claim, through his present solicitors he caused a Writ of Summons to be issued in the First Class Magistrate's Court at Suva being Action No. 1285 of 1989 against the present Defendant and the Principal Immigration Officer seeking the following:

On the 25th of August, 1989 the Learned Magistrate after considering all the facts and evidence adduced before him at the trial granted a declaration that the Police were not entitled to continue to detain the Plaintiff's passport and further that Immigration Officers were not entitled to prevent the Plaintiff from leaving Fiji if he so wished on his Fiji Passport No. 278346.

However the Plaintiff's passport was still not returned to him after the hearing in the Magistrate's Court when he requested it but he was informed that the decision of the Magistrate's Court would be appealed to the High Court of Fiji.

On the 30th of August, 1989 the Defendant filed Grounds of Appeal in the High Court of Fiji in Civil Appeal No. 9 of 1989 and the appeal was duly heard by Mr. Justice Palmer on the 16th of January, 1990.

On the 9th of February, 1990 Mr. Justice Palmer dismissed the appeal and re-affirmed the declaration made by the Learned Magistrate that the Plaintiff's passport should be returned to him forthwith and he further ordered the Defendant to pay the costs of the appeal.

On the 9th of February, 1990 at about 3 o'clock in the afternoon the Plaintiff was again taken into custody by the Fiji Police on receiving instructions from the Acting Director of Public Prosecutions and subsequently charged in criminal case No. 276 of 1990 with the criminal offences of -

(iv) obtaining a passport by False Statement contrary to Sections 309 and 343(1) of the Penal Code Act, Cap. 17; Sections (sic) 19(1)(a) of the Immigration Act, Cap. 88 and Section 6 of the Passport Act, Cap. 89 respectively.

The Plaintiff was bailed to appear before the First Class Magistrate's Court on Tuesday the 13th of February, 1990 to answer the charges alleged by the Police against him.

On the 13th of February, 1990 the Plaintiff pleaded NOT GUILTY to the above charges and on the 27th of June, 1990 the Director of Public Prosecutions entered a Nolle Prosequi. The Court thereupon discharged the Plaintiff and made a further order that his passport and other items belonging to him be returned to him. The passport was returned to the Plaintiff the next day by the Fiji Police.

The Plaintiff therefore alleges that he was wrongfully arrested and detained by the Immigration Authorities and/or the Fiji Police as from the 6th of June, 1989 until the 27th of June, 1990 for which he suffered physical and mental harassment and damages.

Alternatively the Plaintiff alleges that he was unlawfully and maliciously prosecuted by the Government of Fiji and/or its agents and/or employees in criminal case No. 276 of 1990 and thereby suffered great humiliation and financial loss. The Plaintiff then supplies the following particulars of his loss or damages:

(a) Accommodation Charges from 5/6/89 to 27/6/90
Grand Pacific Hotel 5/6/89 to 17/8/89 (74 days)	$1,776.70
South Seas Private Hotel 18/8/89 to 8/3/90 (202 days)	1,576.00
Private Flat at 12 Matuku Street 9/3/90 to 27/6/90 (111 days)	600.00	$3,952.70

(b) Meals Charges 387 days at $15.00 per day		5,805.00

(c) Travelling Expenses 300 days at $5.00 per day		1,500.00

(d) Telephone Expenses Fiji/Hong Kong		760.00

(e) Loss of Income in Textiles Business 5/6/89 to 27/6/90 (387 days)		62,270.00
		$70,335.00

In addition the Plaintiff claims that from the 6th of June, 1989 until his passport was returned on the 27th of June, 1990 by Court Order he suffered humiliation and embarrassment from the people in Fiji and Hong Kong.

The Statement of Defence admits that the Plaintiff was issued with a Fiji Passport No. 278346 which is still current and valid but does not admit that before the 5th of June, 1990 the Plaintiff was operating a Textiles Business in Hong Kong.

Save as to admit that on the 5th of June, 1989 the Plaintiff arrived from Tonga at the Nausori Airport the Defendant denies seizure of the Plaintiff's passport but states that on the Plaintiff's return from Tonga on the 5th of June, 1989 his passport was taken by the Immigration Officers as there was reason to believe that the Plaintiff was in wrongful possession of the passport and/or that it was obtained by means of false or misleading representation. Further it was later handed to the Police for investigation purposes.

The Defendant admits that the Plaintiff was interviewed at the Central Police Station on the 6th, 7th and 8th of June, 1989 and his passport was withheld while Police inquiries continued.

The Defendant does not admit that the Plaintiff was originally booked to travel to Australia and Hong Kong on the 9th of June, 1989 but could not do so as a result of the Defendant's seizure of the Plaintiff's passport.

Then there follow certain admissions by the Defendant to which, as will be seen later, I attach considerable importance. These are:

(i) That the Plaintiff, through his present solicitors caused a Writ of Summons to be issued in the Magistrate's Court at Suva in Action No. 1285 of 1989 against the present Defendant and the Principal Immigration Officer for the four Orders and relief I have mentioned earlier.

(ii) That on the 25th of August 1989 the Magistrate's Court having heard the facts and evidence adduced before it at the trial granted a declaration that the Police were not entitled to continue to detain the Plaintiff's passport and further that Immigration Officers were not entitled to prevent the Plaintiff from leaving Fiji if he so wished on his Fiji Passport No.278346.

(iii) The Defendant admits the passport was not returned to the Plaintiff because of the Defendant's appeal to the High Court of Fiji.

(iv) That on the 30th of August 1989, in the High Court of Fiji the Defendant filed Civil Appeal No.9 of 1989 which was duly heard by the Hon. Mr. Justice Palmer on the 16th of January 1990 and dismissed by the judge in a judgment delivered on the 9th of February, 1990. The Defendant also admits that Palmer J. re-affirmed the declaration made by the Learned Magistrate that the Plaintiff's passport should be returned to him forthwith and the Defendant was ordered to pay the Plaintiff's costs of the appeal.

(v) On the 9th of February 1990 at or about 3.00 p.m. the Plaintiff was again taken into custody by the Fiji Police on receiving instructions from the Acting Public Prosecutions Officer and subsequently charged in criminal case 276 of 1990 with the four offences I have previously mentioned.

(vi) On the 13th of February 1990 the Plaintiff pleaded NOT GUILTY to the above charges and on the 27th of June, 1990 the Director of Public Prosecutions entered a Nolle Prosequi and the Court further ordered that the passport and other items belonging to the Plaintiff be returned to him, which they were on the following day by the Fiji Police.

The Defendant denies the Plaintiff's allegations about wrongful arrest and detention by the Immigration Authorities and/or the Fiji Police as from 6th of June, 1989 till the 27th of June, 1990 and that the Plaintiff suffered any physical and mental harassment and damages thereby.

The Defendant also denies that he maliciously or without reasonable and probable cause prosecuted the Plaintiff but says that he did so in the bona fide belief that he was discharging a public duty.

I shall now summarise briefly the only oral evidence called in this case which was that of Mr. Edmund March on behalf of the Plaintiff.

Edmund March stated that he is a Company Director who holds a Power of Attorney from the Plaintiff dated 10th July, 1990. He is also a Chinese Interpreter who speaks several Chinese dialects including Cantonese in which he said he spoke to the Plaintiff. He stated that on the 1st of June, 1989 he met the Plaintiff at the Nausori Airport and arranged accommodation for him at the Grand Pacific Hotel. Thereafter he met the Plaintiff frequently in Suva.

On the 6th of June, 1989 he was asked by the Police Crime Branch to attend the Suva Police Station where the Plaintiff was interviewed by the Police then and on the 7th and 8th of June, 1989. He said that on the 6th of June the Plaintiff attended the Police Station in the morning until lunch time and on the two following days from 9.00 a.m. to about 1.00 p.m. He said that on the 8th of June the Officer-in-Charge, Inspector Hussain said in Mr. March's presence and in the presence of Immigration Officers that the Plaintiff had committed no offence. They asked him to return in the afternoon of 8th of June to collect his passport. They said since the passport had come from the Immigration Authorities it would have to be returned by them. He stated that either on the afternoon of the 8th of June or the next day a Mr. Kelei, the Acting Director, told Mr. March if the Plaintiff wanted to leave Fiji he could begin making arrangements whereupon Mr. March asked Mr. Kelei where the Plaintiff's passport was. He says Mr. Kelei then referred him to the Head of the Department, a Mr. A. Qera. When he saw Mr. Qera with the Plaintiff in Mr. Qera's office he says Mr. Qera advised them that he had referred the matter to the Minister "to be on the safe side". All the above evidence is of course only as to the fact of the conversations and not to prove the truth of the statements made. I agree with the submissions of counsel for the Defendant that it certainly could not establish that the Plaintiff had committed no crime. However in my view it is one of the matters to be considered when deciding whether or not the Defendant had just cause in retaining the Plaintiff's passport.

At this stage Mr. March stated that the Plaintiff had become very angry because Mr. March said he had been forced to change his bookings. In fact Mr. March said that he made telephone calls on behalf of the Plaintiff for this purpose. He then said that he attended the Magistrate's Court for two weeks during the Plaintiff's trial and that after the proceedings he knew the Plaintiff's passport had not been returned to him. He said that he had arranged other accommodation in Suva for the Plaintiff after the Plaintiff had been unable to afford to stay at the Grand Pacific Hotel. He said that he took the Plaintiff to the Grand Pacific Hotel to pay his accounts and that he had to pay the $1776.70 account. He produced receipts for this account. He then arranged for the Plaintiff to at South Seas Private Hotel from the 18th of August, 1989 to the 8th of March, 1990. He says that he went to the South Seas Private Hotel and paid his account for $1576.00 for which he holds receipts. He said then the Plaintiff went to a private flat to 12 Matuku Street, Suva from 9th March to 27th June, 1990 and paid rent of $600.00. He tendered receipts for all these expenses. The reason why the Plaintiff changed his accommodation was, according to Mr. March, that he had to obtain cheaper accommodation and that the Plaintiff had borrowed money from Mr. March. He also told Mr. March that as a result of being detained in Fiji because of the confiscation of his passport his Textiles Business had been adversely affected.

Mr. March also gave evidence that he attended various cafes and restaurants with the Plaintiff when both Mr. March and the Plaintiff paid for the meals they had. Mr. March estimated the cost of those meals at $5805 being 387 days an average cost of $15.00 per day.

All this evidence was given over the objection of counsel for the Defendant and of course in the absence of the Plaintiff it is to a large extent hearsay and I shall say more about it later after discussing the question of liability of the Defendant.

Mr. March also stated that the Plaintiff had incurred travelling expenses of $1,500.00 in travelling around Suva and to Sigatoka and Nadi. He said that he accompanied the Plaintiff once or twice from Suva to Sigatoka and Nadi where the Plaintiff was trying to do business.

He stated that the Plaintiff had telephoned from public telephones and from the office of FINTEL. Mr. March said that he spoke by phone in the presence of the Plaintiff to some of these people who the Plaintiff said were customers and that he had asked them not to take their business from the Plaintiff.

Again this evidence was given over the objection of Mr. Cope for the Defendant and of course is at best only evidence of the fact of the conversations and not of their truth; likewise when Mr. March stated that the Plaintiff had told him he had lost F$62,270.00 as a result of his being detained here.

In addition to the oral evidence of Mr. March the Plaintiff has tendered through Mr. March various receipts for alleged payments of the Plaintiff's expenses for accommodation, the Power of Attorney given to him by the Plaintiff and a certificate purporting to be by a Notary Public in Hong Kong that photocopies of a passport are true copies and extracts of the Fiji Passport No. 278346 issued to the Plaintiff on the 1st of May, 1989, a copy of the record of the proceedings in the Magistrate's Court and before Palmer J. in this Court and finally a copy of the Nolle Prosequi signed by the Director of Public Prosecutions on 27th of June, 1990.

After the tendering of these documents and conclusion of the evidence of Mr. March the Plaintiff closed his case and after a short adjournment counsel for the Defendant announced that the Defendant would not call any evidence and closed his case. A timetable for written submissions was then agreed but by consent this was extended until recently the Plaintiff filed his reply to the submissions of the defendant. I now consider these submissions.

The Plaintiff first relies on Section 3(1) of the Passports Act, Cap. 89 and here I can do no better than quote from the judgment of Mr. Justice Palmer at pages 7 - 8 where his Lordship said:

The Passport Officer shall, upon application made to him in the appropriate form, issue to any Citizen of Fiji who satisfies such conditions as may be prescribed, a passport in the appropriate form."

As to this the Plaintiff submits that since no evidence was called in this Court by the Defence to challenge the issuance of the Fiji Passport No. 378346 it has been proven by the Plaintiff on the balance of probabilities that:

(a) Fiji Passport No. 278346 was properly issued to him by the Immigration Authorities in 1989.

(b) The Plaintiff is a Citizen of Fiji according to the requirements of Section 3(1) of the Passports Act, Cap. 89.

Further, it is said, it is mandatory for the Passport Officer to issue a Fiji Passport to any Citizen of Fiji who satisfies such conditions as may be prescribed.

As to this the Defendant submits that the Plaintiff's submission is fallacious. The Defendant says that it is clear from the judgments in both the previous Court proceedings that neither of those claims of the Plaintiff was decided one way or the other by the Magistrate or Palmer J. Instead it is argued both judgments turn on the question of the reasonableness of the actions of the Police and/or the Immigration Authorities in continuing to detain the Plaintiff's Fiji Passport - particularly in the light of the decision in Ghani v. Jones (1969), 3 ALL E.R.1700. If this submission is intended to mean that the facts in Ghani v. Jones were different from those in the instant case I would agree. Ghani v. Jones was a case of a suspected murder. The Defendant, a Police Officer went to a house where the Plaintiffs lived and took away certain articles belonging to the Plaintiffs including their passports. The Police retained the passports on the ground that they believed they would assist them in their inquiries. The Court of Appeal, affirming the decision of the Trial Judge held that the Defendant was not entitled to retain the passports since it had not been shown that these were material evidence to prove the commission of the murder nor that the Police had reasonable grounds for believing that the Plaintiffs were in any way implicated in a crime and lastly that the passports and other letters had been kept long enough.

Both Palmer J. and the Magistrate relied on Ghani v. Jones in concluding that the Defendant had retained the Plaintiff's passport for too long. For these reasons that case is easily distinguishable on its facts from those in the instant case but in my judgment the decision of the Court of Appeal in Ghani helps the Plaintiff to this extent in the present case. At p.1705, letter C, Lord Denning M.R. said this when referring to the right of the Police to seize the property of an individual when investigating a crime:

"What is the principle underlying these instances? We have to consider, on the one hand, the freedom of the individual. His privacy and his possessions are not to be invaded except for the most compelling reasons. On the other hand, we have to consider the interest of society at large in finding out wrong-doers and repressing crime. Honest citizens should help the police and not hinder them in their efforts to track down criminals."

There is nothing to indicate nor has any suggestion been made by the Defendant that the Plaintiff here did not co-operate with the Police and the Immigration Authorities throughout his enforced stay in Fiji. It appears to me on the evidence given in the Magistrate's Court and to some extent that of Mr. March that he behaved as any honest Fiji Citizen should have behaved. His complaint is that the Defendant had no reasonable cause to detain his passport so that, as will be seen later, I consider Lord Denning's remarks do have some bearing on the issue before this Court.

The Defendant submits that because the judgments in the Magistrate's Court and by Palmer J. were so restricted it is therefore simply incorrect to say that because no evidence was called by the Defendant in these proceedings it has been proved that the Fiji Passport was properly issued to the Plaintiff and that he was a Citizen of Fiji. It is submitted that no evidence was given in this action on behalf of the Plaintiff that he was a Fiji Citizen, it was specifically put in issue by the Statement of Defence and consequently it is said the Plaintiff has failed to prove this issue. I do not accept this submission. As Palmer J. said in his judgment at p.7 there was no evidence produced by the Defendant before him or before the Learned Magistrate that there was any irregularity in the issue of the passport. Further Mr. Justice Palmer very succinctly formulated the reasons of the appeal brought by the Attorney-General against the Magistrate's decision when he said at p.2 of his judgment:

"The crux of the matter is the Respondent's assertion that he is a Fiji Citizen, having been born in Raki Raki on the 8th September 1961. The Appellant's case is that there is a suspicion and/or reason to doubt the existence or genuineness of the birth certificate relating to the Respondent and therefore his citizenship. On that basis it is argued that the Respondent may have obtained his Passport by fraudulent means."

If these were not enough I note that the Plaintiff's Statement of Claim mentions the above facts quoted by Mr. Justice Palmer and they were expressly admitted by the Defence. As was said by Lord Edmund-Davies in Farrell v. Secretary of State for Defence (1980) 1 W.L.R. 172 at p.180 pleadings continue to play an essential part in civil actions. He continued:

"To shrug off a criticism as 'a mere pleading point' is therefore bad law and bad practice. For the primary purpose of pleadings remains, and it can still prove of vital importance. That purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it."

In my judgment the Statement of Defence has clearly admitted the facts contained in paragraphs 6, 7, 9, 10 and 11 of the Statement of Claim and the Defendant cannot now seek to avoid his admission. The consequence is, and I so find, that there is no issue between the parties on that part of the case which is concerned with those matters of fact and therefore no evidence is admissible in reference to those facts. This, as I understand it, was held by Buckley J. in Pioneer Plastic Containers Ltd. v. Commissioners of Customs and Excise (1967) 1 Ch. 597.

Here one of my duties is to find whether or not the Plaintiff's passport was properly issued to him. The evidence satisfies me on the balance of probabilities that it was. I would only add that I am likewise satisfied that the Plaintiff did not obtain his passport by means of any false or misleading representations. In so holding I can only endorse what was said by Palmer J. and the Learned Magistrate that there is nothing in the material before me to suggest any fraud by the Plaintiff in obtaining his passport. It is desirable to add for the purposes of completeness that I consider Section 3 of the Evidence Act, Cap.41 assists the Plaintiff to prove that his Fiji Passport was properly issued to him. Section 3(2)(b) provides that a copy of an original document or of the material part thereof certified to be a true copy in such manner as a ...... court may approve may be admissible as evidence if, having regard to all the circumstances of the case, the court is satisfied that undue delay or expense would otherwise be caused.

I see no reason why on the grounds mentioned in Section 3(2) I should not accept the copy passport of the Plaintiff certified as a true copy by the Notary Public in Hong Kong and tendered as exhibit 'P2'.

As the Defendant did not call any evidence to challenge any material part of the information contained in the Plaintiff's passport I hold that there is ample evidence adduced before me that the Plaintiff is a Fiji Citizen and holder of that passport.

I therefore reject this first principal submission by the Defendant. This leads me to the allegation of false imprisonment by the Plaintiff. Before the Plaintiff can establish this he must show that he was actually imprisoned or physically detained. The Defendant accepts that in civil proceedings for false imprisonment where a Plaintiff can show that he or she was imprisoned or detained the burden of proof is then placed upon the Defendant to justify the lawfulness of the imprisonment or detention. However it is said it is not enough for the Plaintiff to allege this in his pleadings where they are denied by the Defendant as here. It is said that the Plaintiff must adduce admissible evidence to show in fact that he was imprisoned before the burden of proof switches to the Defendant to justify the imprisonment. The Defendant attempts to limit the period during which he says the Plaintiff may have been falsely imprisoned. First, on 5th June, 1989 when the Plaintiff arrived at Nausori Airport. Secondly, on 6th, 7th and 8th June, 1989 when the Plaintiff went to the Central Police Station. Thirdly, on 9th February, 1990 when the Plaintiff was charged with four offences. As to the first two periods the Defendant submits where was no admissible evidence led at the trial to support these allegations. As to the third period the Defendant has met the burden of proof on this and that as a matter of law the Plaintiff was not falsely detained for the whole of the period from the 5th of June, 1989 when his passport was seized until the 28th of June, 1990 when it was returned to him.

First it is wrong for the Defendant to suggest that the imprisonment or detention was not pleaded by the Plaintiff in relation to the matters of the 5th, 6th, 7th and 8th of June, 1989. A glance at paragraphs 2-12 of the Statement of Claim shows that all the relevant facts were there pleaded by the Plaintiff.

Secondly the Defendant argues that the essence of false imprisonment is the total deprivation of liberty within narrow geographical bounds. It is said that there is no evidence that the Plaintiff was so confined, indeed, the evidence is completely the opposite - that the Plaintiff was free to travel anywhere in Fiji. In my judgment this submission completely begs the question which in my view is simply whether, by the actions of the Defendant, the Plaintiff was confined to a country in which because of his business he had no wish to be confined. It is true that the Plaintiff was free to move about Fiji as he wished but the fact is, and I so find, that he did not wish this. I find as a fact that the Plaintiff came to Fiji on business purposes and wished to leave Fiji in furtherance of those purposes no later than the 17th of June, 1989.

In Clerk & Lindsell on Torts, 16th Edition at paragraph 17-15 false imprisonment is defined as a complete deprivation of liberty for any time, however short, without lawful cause.

The authors then quote what has been accepted as the classic definition of false imprisonment given by Termes de la Ley:

"Imprisonment is no other thing but the restraint of a man's liberty, whether it be in the open field, or in the stocks, or in the cage in the streets or in a man's own house, as well as in the common gaols; and in all the places the party so restrained is said to be a prisoner so long as he hath not his liberty freely to go at all times to all places whither he will without bail or mainprise or otherwise."

This definition was approved in Bird v. Jones (1845) 7 Q.B. 742 (reported at 115 E.R. 668) and Meering v. Grahame-White Aviation Company Ltd. (1919) 122 L.T. 44 at p.51.

In Sundarjee Brothers Ltd. v. Geoffrey John Coulter, Supreme Court Civil Appeal No. 756 of 1986 Rooney J. said at p.9:

"A person's right to leave Fiji may be infringed if his passport is withheld just as if he were personally confined."

It is true as counsel for the Defendant remarks that subsequently the Court of Appeal disapproved the judge's handling of the case in that he did not give the Attorney-General any opportunity of making legal submissions - see (1987) S.P.L.R. 139 at p.142. However with respect I endorse Rooney J's remark. Indeed a similar view was stated earlier by the Court of Appeal in John Allen Mendonca v. Attorney-General of Fiji and Another [1976] 22 FLR 105 at p.109 E-F where the Court said:

"Every restraint of the liberty of one person by another is in law an imprisonment and, if imposed without lawful cause, a false imprisonment which is an actionable tort - 37 Halsbury 3 Ed. 205, or as McCarthy J. put it in Blundell v. Attorney-General [1968] N.Z.L.R. (C.A.) 341.357.

'One fundamental rule of the common law we have inherited as part of our British system of justice is that any restraint upon the liberty of a subject against his will not warranted by law is a false imprisonment.'"

To summarise, the evidence satisfies me on the balance of probabilities that the Plaintiff was confined in Fiji against his will and without just cause from 5th of June, 1989 until the 28th of June, 1990 and was thus falsely imprisoned by the Defendant.

That is therefore sufficient to uphold the Plaintiff's claim. However, since I have received submissions on the alternative claim of malicious prosecution, in deference to counsel, I shall state briefly my views on this claim by the Plaintiff.

In Clerk & Lindsell on Torts (supra) at paragraph 19-05 the tort of malicious prosecution is defined in these terms:

"In action of malicious prosecution the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge, secondly that the prosecution was determined in his favour, thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious. The onus of proving every one of these is on the plaintiff."

It will be remembered that about 3.00 p.m. on the day on which Palmer J. delivered his judgment in favour of the Plaintiff, the Plaintiff was charged with the four offences mentioned at the beginning of this judgment. The Plaintiff argues that there could have been no reasonable or probable cause for his prosecution when two judicial officers, the Learned Magistrate and Mr. Justice Palmer, had already made pronouncements on the type and nature of evidence that the Immigration Authorities and Police held against the Plaintiff and yet the Acting Director of Public Prosecutions on the same day as Mr. Justice Palmer's decision instructed the Police to arrest the Plaintiff on the four charges.

Counsel for the Plaintiff asks, I think with considerable justification, how it was expected the prosecution case could be proved beyond reasonable doubt when the relevant Immigration file and documents relating to the Plaintiff had been missing from the very beginning?

Again, why did the Police leave the prosecution of the Plaintiff for eight months after his arrival in Fiji and choose only to charge him after two Courts had held that the Defendant through its various officers had no right to detain him?

The circumstances leading to the charges create in my mind a grave suspicion about the bona fides of the Defendant in the persons of the Police and the Immigration Authorities, and this suspicion is supported by the entry of the Nolle Prosequi on the 27th of June, 1990.

It is true as counsel for the Defendant submits that the Court should not speculate as to why the Nolle Prosequi was entered but, as anyone with any experience in the criminal courts knows, there are usually two main reasons why Nolle Prosequis are entered:

(i) the belief in the mind of the prosecutor that there is insufficient or insufficiently strong evidence in the possession of the State to make a successful conviction likely, and

(ii) this is linked with (i), the non-availability at the time the Nolle Prosequi is entered of a principal State witness or witnesses, it not being expected that those witnesses will become available in the foreseeable future.

Before I would be prepared to make a finding of malicious prosecution in this case I would require further evidence particularly from the Defendant. The most I am prepared to do is repeat the very strong suspicion I retain about the motives of the Acting Director of Public Prosecutions in entering the Nolle Prosequi in this matter and to say that I believe the prosecution of the Plaintiff was seriously misguided.

It follows from my findings that the Plaintiff is entitled to damages. Counsel for the Defendant did not make any submissions on damages because, as he put it, the Court had not determined which of the causes of action (if any) the Plaintiff had proved at the time the submissions were completed. In those circumstances I now propose to hear further argument from counsel as to the question of damages. The result is that there will be judgment for the Plaintiff for an amount of damages which I shall now assess and the costs of these proceedings.