Kasim v Commissioner of Police [2001] FJHC 133; HBC0471.1999 (3 December 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. HBC0471 OF 1999

BETWEEN:

MOHAMMED KASIM
Plaintiff

AND:

COMMISSIONER OF POLICE
First Defendant

AND:

THE DIRECTOR OF IMMIGRATION
Second Defendant

AND:

THE ATTORNEY GENERAL OF FIJI
Third Defendant

Miss Prem Narayan for the Plaintiff
K.T. Keteca for the Defendants

Dates of Hearing: 18th April, 5th July 2001
Date of Judgment: 3rd December 2001

JUDGMENT

On 13^th December 1998 the Plaintiff who is a Motor Car Sales and Spare Parts Dealer of Suva was travelling to Auckland from the Nadi International Airport.

Upon his presenting his passport to the Immigration Counter the Plaintiff was detained by the Second Defendant through its officers and later escorted to the Airport Police Post where he was further detained. During his detention at the Airport Police Post the Plaintiff's luggage was recalled from the flight and searched by the First Defendant through his officers.

The Plaintiff was not informed as to why he was brought to the Airport Police Post by the officers of the First Defendant. He was detained for a period of 1 hour and 10 minutes.

The Plaintiff was not charged with any offence nor informed as to why he was detained. He had to enquire himself from the officers as to why he was detained and was informed that there was a charge against him pending in Suva. The Plaintiff then requested the officer-in-charge of the Post to speak to the CID Suva Branch and seek clarification. Upon this being done the Plaintiff was released.

He missed the flight that he was to board and instead had to arrange for another flight to travel to Auckland. As a result of the delay caused by his unlawful detention he claims to have sustained economic loss in that he failed to secure $70,000.00 worth of Japanese secondhand spare parts thus rendering his travel to Auckland unsuccessful. No official apologies were made by any of the Defendants.

On the 6^th of January 2000 the Plaintiff was once again travelling from Nadi to Auckland and was again prevented from boarding his aircraft by the Second Defendant through its officers at the Immigration Counter and then escorted to the Airport Police Post where he was detained again for approximately 45 minutes. He was not informed as to why he was detained nor was he charged with any offence. His baggage was searched. The Plaintiff once again requested that the First Defendant's officers speak to the CID Suva Branch and again, upon the instructions of a superior officer the Plaintiff was released. This time he managed to board the flight on which he was booked as it had been delayed in its schedule. Once again no official apology was made to him by any of the Defendants for their conduct.

On the 12^th of October 1999 the Plaintiff issued a Writ against the Defendants claiming damages in the form of special damages in the sum of $1,453.00, general damages and exemplary damages. He also claims compensation under Section 41 of the 1998 Constitution for breach of his constitutional rights and interest under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act and the costs of these proceedings.

Liability was admitted and the Plaintiff seeks damages for the following constitutional breaches:

(1) detention by the Second Defendant at the Nadi Airport Immigration Counter;

(2) detention by the First Defendant at the Airport Police Post;

(3) failure of the First Defendant to inform the Plaintiff of the reason for his detention;

(4) failure by the First Defendant to inform the Plaintiff of his right to consult a legal practitioner;

(5) failure to allow the Plaintiff to communicate with his spouse or next-of-kin;

(6) unlawful and unreasonable search of the Plaintiff's baggage without a search warrant to do so;

(7) Depriving the Plaintiff of his constitutional right of freedom of movement when he was detained at the Nadi International Airport.

As a result of these alleged breaches the Plaintiff claims he sustained severe shock, stress and mental anguish and has suffered loss and damage. He says that these damages occurred as a result of his unlawful detention in broad daylight in public which subjected him to humiliation and disgrace thereby bringing him into ridicule and contempt.

Part of the special damages the Plaintiff claims comprised $300.00 for a taxi fare from Auckland Airport to the dealer in a suburb of Auckland from whom he expected to buy the spare parts. He conceded in cross-examination that his wife's brother took him from the airport to the dealer so that his claim for special damages must be reduced by $300.00 to $1,153.00.

I am satisfied on the evidence that as a result of the Plaintiff being wrongly detained on the 13^th of December 1998 he failed to obtain the spare parts which made his second trip necessary.

The two incidents at the airport have many similarities. On the first occasion on the 13^th of December after he was taken into Police custody the Plaintiff stated that he was told by the Police who took him from the Immigration Counter to the Police Post that he was under arrest. He asked them why but they did not reply and began searching all his luggage, brief case and wallet and his trouser pockets. When the Police rang Suva they were told that there was a robbery case again him in Suva and they were going to take him there. When it transpired there was no such case pending the Plaintiff re-packed his luggage but was very distressed. The Police carried his luggage to the airline. The Plaintiff stated that while he was at the Police Post he did not think he could walk away and I am satisfied that until clearance was obtained from Suva the Police would not have let him walk away.

On the second occasion on the 6^th of January 1999 he was prevented by the Immigration Officer from being admitted into the airport lounge after the officer had spoken to the Police. While he was being detained he said he felt "really bad".

The Plaintiff stated that at all times on both occasions he was treated courteously by the Police at Nadi. They apologised to him but said that they had instructions from Suva and had to obey them.

The Defendants called only one witness, Senior Superintendent Emosi Vunisa who is the Director of Criminal Investigations in Fiji. He stated that he was responsible to the Immigration Department for what is called a "Watch-List" which has a list of names of people charged with criminal offences and those who are under investigation for criminal offences. The Plaintiff's name was on this list and Superintendent Vunisa admitted that it should have been deleted from it. He apologised to the Plaintiff for the two incidents and said that the Police Force now has a new system for maintaining the register of persons under investigation for criminal and other offences. He also stated that the Plaintiff had a small criminal record consisting of seven convictions five of them being for assault. He stated that the last offence for which the Plaintiff was convicted was in 1994 and as at the 18^th of April this year he had a clean record.

The Defendants argued that there are many mitigating circumstances in their favour. They say that both incidents occurred as a result of an honest mistake in removing the Plaintiff's name from the "Watch-List" and that they have now apologised to the Plaintiff. Thus they say this is not a case where Police Officers deliberately flouted the law and their conduct could not be regarded as outrageous and contumelious. Rather it was an honest error of judgment based on a mistake.

While I accept that an apology can go some way to mitigating damages and that the Plaintiff was at all times treated courteously by the Defendants nevertheless I am satisfied that he was humiliated and his feelings hurt by the actions of the Defendants. If there was some excuse for their actions on the first occasion there certainly was none for what they did on the second occasion. Where liberty of the subject is concerned the Police and for that matter the Immigration Department cannot be too careful. It was the duty of both Departments, particularly the Police, to keep their records up to date and this was not done. To me it indicates an attitude of indifference which it is hoped will not occur again. While I accept that any country must have some system for monitoring the arrivals and departures of persons in the country in the interests of national security the fact remains that there is nothing in the Police Act or the Criminal Procedure Code which allows the First Defendant to arrest or detain a person simply because his name appears on a "Watch-List". Likewise nothing in those Acts empowers the First Defendant to determine who will leave the country or not.

Although the Plaintiff claims general damages, in my judgment his proper claim is for aggravated damages. In Gary Mark Lackersteen v. Melvin Lawrance Jones and Others (1988) NTSC 60 Asche C.J. described the difference between aggravated and exemplary damages after reviewing various authorities on the subject. He said, "The basis for aggravated damages lies in compensation of a particular kind based not on physical injury or discomfort but on humiliation and injury to feelings". He went on, "There can not be any implication that a person of bad reputation cannot be humiliated and insulted". In the instant case the Plaintiff did not have a bad reputation although he had committed some criminal offences for which he had been duly punished. I have been referred to a number of authorities on the question including Josaia Vakacoko v. The Commissioner of Police HBC 145 if 1998S, unreported judgment of Scott J. of the 10^th of December 1999, Epeli Seniloli and Another v. Semi Voliti HBA No. 0033 of 1999, unreported judgment of Shameem J. of 22^nd February 2000 and Marika Lawanisavi and Other v. Pesamino Kapieni ABU 0049/98S, unreported judgment of the Court of Appeal of the 13^th of August 1999. Whilst I find these judgments of some assistance the facts in them particularly in Vakacoko and Seniloli which were both cases of unlawful imprisonment are different from those in the present case. Both Judges awarded damages, in the case of Vakacoko, $4,000.00 for wrongful detention for six days in a small cell without any mattress, pillow or mosquito coil and in the case of Seniloli, $6,800.00 for four hours detention of a boy aged 14 who was handcuffed to a post for a time.

It seems that in neither of these two cases was the question of constitutional rights argued although in Seniloli the Plaintiff relied on the United Nations Convention on the Rights of the Child. Here the Plaintiff makes his claim for exemplary damages on the Constitution to which I shall refer in a moment. Before doing so however I consider it fair to award the Plaintiff aggravated damages for the humiliation he suffered of $5,000.00. On the question of exemplary damages which are punitive in nature because their function is to punish or mark the disapproval of the Court, it is relevant to consider certain parts of the 1998 Constitution. The preamble to the Constitution contains this penultimate paragraph:

"REAFFIRMING our recognition of the human rights and fundamental freedoms of all individuals and groups, safeguarded by adherence to the rule of law, and our respect for human dignity and for the importance of the family .........."

Then Section 2(1) of the Constitution states:

"This Constitution is the supreme law of the State."

This is no mere empty form of words. It is an affirmation or declaration of faith, no more nor less than the sentence which begins the Creed in the Roman Catholic liturgy: "Credo in unum Deum" - "I believe in one God" - the fundamental basis not only of the Roman Catholic but also of most other religions.

Thus, human rights and the fundamental freedoms enshrined in Sections 23 (personal liberty), 26 (freedom from unreasonable searches and seizure), 27 (rights of detained persons), and 34 (freedom of movement), for example, are to be at all times protected and respected by those persons having the authority and duty to do so. There can be no half-way house.

The officers of the First and Second Defendants did not accord the Plaintiff the rights guaranteed him by these Sections and for this I am satisfied they must pay him exemplary damages which I assess at $5,000.00. I therefore make the following awards:

Aggravated damages $5,000.00- interest thereon at

4% from the 12^th of October 1999 to the 3^rd of

December 2001 = $5,000.00 + $400.00 = $5,400.00

Special damages $1,153.00 - interest at 2% from

the 12^th of October to the 3^rd of December 2001 =

$1153.00 + $46.12 = $1,199.12

Exemplary damages $5,000.00 = $5,000.00

Total award = $11,599.12

I also order the Defendants to pay the Plaintiff's costs which I fix at $800.00. There will be orders accordingly.

JOHN E. BYRNE
JUDGE