Khan v Commissioner of Police [2005] FJHC 626; HBC0049.1999 (22 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0076 OF 2004

BETWEEN:

YASIR KHAN
PLAINTIFF

1^st DEFENDANT

AND:

THE COMMISSIONER OF POLICE

2^nd DEFENDANT

CHIEF EXECUTIVE OFFICER/PERMANENT SECRETARY
Ministry of Home Affairs & Immigration

3^rd DEFENDANT

THE ATTORNEY-GENERAL OF FIJI

Mr H A Shah for the Plaintiff
Mr F. Abu for the Defendants

Date of Hearing: 23 June 2005
Date of Judgment: 22 July 2005

JUDGMENT OF FINNIGAN J

In this Action the Plaintiff seeks damages from the Police and from the Ministry of Home Affairs & Immigration for unlawful arrest and detention by police officers and Immigration officers. He claims that he was unlawfully arrested on 1 March 2004 and was unlawfully detained in Natabua Prison until the afternoon of 2 March 2004. He claims he was unlawfully arrested again on 13 March 2004 and unlawfully confined until 17 March 2004. He claims that during both periods of wrongful confinement he was treated inhumanely and subjected to physical and mental trauma, that his rights under the constitution of the Republic of the Fiji Islands were violated and that he is entitled to damages. He seeks damages for the wrongful arrest and confinement and further damages for violation for his constitutional rights. He seeks costs on an indemnity basis.

To prove his case the Plaintiff alone gave evidence. For the Defendants only two witnesses gave evidence but they illuminated what had happened. These were the police officers who effected the arrests. No Immigration officers appeared or gave evidence. Counsel for the Defendants was surprised and disappointed by their failure to appear and give evidence.

The Facts:

The relevant facts that emerged from the evidence of the 3 witnesses are undisputed. In the absence of evidence from the Immigration officers further facts may be inferred or not, depending on the evidence. The Plaintiff is a Pakistani National who has lived for some time in Fiji. He resides here under an exemption which entitles him to enter and remain in Fiji without a permit. This was issued under Section 7(3) of the Immigration Act Cap 88 and in March 2004 the exemption was current until 16 July 2004. He is married. His wife was born in Lautoka and they married at Nadi on 22 September 2000. In March 2004 they had 1 child and expected another.

On 23 February 2004 the Plaintiff’s wife made a written statement to the Police at Lautoka. She alleged that the Plaintiff had assaulted her the previous day and threatened her. In the statement she said “All I wanted to inform Police is that I don’t want to stay with him. I really wanted him out of my life since he does not want to work only drinks and he smokes a lot. Also I wanted to tell Police that he also goes to Maururu in Ba for witchcraft, also to warn him not to come to my parents place or come close to me and my daughter”.

For what then occurred no reasons are disclosed by the evidence. On 26 February 2004 a document purporting to be a Warrant of Detention over the signature J M Waqanisau the Chief Executive for Home Affairs & Immigration was issued in Suva. The document has amendments, made apparently all before the time of signature, so that the printed document addressed to the Commissioner of Police became addressed to the “Commissioner of Prisons” and the “Prisons Authority”.

GOVERNMENT OF FIJI

WARRANT OF DETENTION

TO: THE COMMISSIONER OF PRISONS AND ALL WHOM IT MAY CONCERN

Whereas on the ________________________________ day of___________________19____, a

__________________________________removal order under section 15 of the Immigration Act, Chapter 88 was made in respect of YASIR KHAN, a copy of which order is annexed to this warrant:

Now, therefore in exercise of the powers conferred upon the CHIEF EXECUTIVE OFFICER Home Affairs and Immigration by section 15 of the Immigration Act, Chapter 88 and all other powers thereunto enabling I J M WAQANISAU CHIEF EXECUTIVE Home Affairs and Immigration Fiji, do hereby direct that the said YASIR KHAN be taken into custody and be detained by the prisons authority and be placed as soon as may be thereafter upon a ship or aircraft leaving Fiji for PAKISTAN.

[And I do further direct that the removal of the said YASIR KHAN may be affected before the completion of any sentence of imprisonment imposed upon him under the provisions of the Immigration Act and these presents shall be sufficient warrant for the Controller of Prisons to discharge the said YASIR KHAN into your custody before the completion of such imprisonment.]

Dated this 26^th day of February, 2004

Sgd: J M WAQANISAU

Chief Executive Officer for Home

Affairs & Immigration

NOTE: - To be signed in triplicate: Original to Commissioner of Prisons, Duplicate to master of ship or aircraft, Triplicate to Controller of Prisons.

The police officers in Lautoka, Ba and Vuda Point acted on this warrant. On 1 March 2004 a police officer who gave evidence with two Immigration officers who did not arrested the Plaintiff in Lautoka. He was taken to the Immigration office at Lautoka and detained there sitting in a chair without lunch until 2.00pm. He was then taken to Natabua Prison, kept there for about 1 hour and then taken back to the Immigration office where he waited until the staff finished for the day. Nothing was said to him and though he asked for the opportunity to talk to his lawyer that was refused. A person or persons at the Immigration office sent him to the home of one of their drivers as their detainee. He spent the night in that house. The following morning about 7.30 to 8.00am he was taken back to the Immigration office and was kept there until 4.00pm. At about that time an Immigration officer came from Nadi, conversed with the Plaintiff, released him and told him to come back next day. He went back the next day, he was told by a person in the office there was no Immigration officer, he should go and when the need arose he would be called back.

On 13 March 2004 the Plaintiff was in Ba. A police officer arrested him about 9.00am and took him to the police station in Lautoka. There he sat and waited until 2.00pm when he says an Immigration officer from Lautoka took him with 2 police officers to Nadi International Airport where he says the main Immigration office is located upstairs. He says it was a large office with computers tables and chairs. He was told to sit in a chair. He was given no food and although he asked for contact with his lawyer it was refused. He said he was shown a document of rules he did not know its contents but he was told that he was an illegal immigrant in Fiji. When the shift was changed at about 8.00 or 9.00pm he was given tea and bread. Later in the night he was shown into a small office and told to lie on the carpet on the floor. He was still wearing the clothes he wore when arrested and had been able only to wash his face and hands.

The following morning 14 March 2004 he was given bread and tea and spent the day sitting on a chair with the office staff. He was given nothing else. One of the office staff shared his food with him. In the evening 2 Immigration officers came and asked him questions about who he was and where he was from. He said they checked in the computer and found his visa was there. This was at about 9.00pm. He was given bread and tea. He was sent to sleep again on the floor where he had spent the previous night. He still had not showered or changed his clothes or been given the opportunity to talk with his lawyer. He had been required not to leave the Immigration office except for visits to the bathroom.

The following day 15 March passed in much the same way. He was again fed by a member of the staff who shared his lunch. Being a Muslim he was given the opportunity to pray but being unclean he was unable to. He was given tea and bread for dinner and again slept in the small office.

This pattern continued until about 3.00pm the next day 16 March 2004, except on that day he had nothing to eat. At about 3.00pm he was sent to Natabua Prison. He was fingerprinted and at about 4.30pm was put in a cell. By this time the other prisoners had been fed. He spent the night there and the following morning he was given food and was taken to the Magistrates’ Court in Lautoka by 2 Immigration officers from Lautoka. He was still wearing the clothes in which he had been arrested and was still unshaven. He said his hair was hard from dirt and he was smelling all over.

As it happened, when the Plaintiff was arrested at Ba he was with a friend and that friend alerted the Plaintiff’s solicitor. The solicitor had written to the Principal Immigration officer at Nadi Airport asking for a copy of the detention/deportation order. That request was not answered, but it brought him into contact with Mr Tuberi, who replied to the solicitor on 16 March in the following terms;

Dear Sir

RE: MR YASIR KHAN

Please be advised that the Department is now making some arrangements to repatriate the above named Pakistani national back to his country.

Mr Khan has advised that he had given his passport to you for safe keeping and as such I request that you hand over the document to the officer or to this office at your earliest.

I look forward to your cooperation please.

Yours faithfully

Sgd:

Eroni Tuberi

Immigration Officer

The solicitor replied the same day.

Dear Sir

Re: MR YASIR KHAN

I acknowledge your letter dated 16^th March 2004 received by me at 3.30pm.

Firstly, I am unable to accede to your request in the absence of my client’s authority and/or a Court Order requiring me to release his passport to the Immigration Department.

Secondly, you are being put on notice that I have received instructions to file a claim against you personally and the Immigration Department for acting mala fides against Mr Yasir Khan and the basis of my instructions are as follows:-

1. A Mr Azizu Dean also known as Babu of Dean’s Shopping Centre and your neighbour has paid you substantial sums of money to personally harass Mr Yasir Khan
   
2. The said Mr Dean is a regular visitor to your house and we have witnesses in hand who will confirm Mr Dean’s nightly visits to your house.
   
3. Your frequent phone calls during office hours to Mr Azizu Dean’s mobile number is being provided to the Police as evidence of official corruption.
   
4. You are no doubt aware that Mr Dean has disclosed his personal interest in Mr Yasir Khan’s wife to you and hence his interest in having Mr Yasir Khan shipped out of Fiji.
   

We are alleging direct official corruption on your part and are forwarding copies of this letter to the Permanent Secretary for Immigration and to the Commissioner of Police for an official investigation against you.

In the interest of justice and fair play we ask that you let an independent Immigration Officer or an assignee from the Permanent’s Secretary for Immigration’s office in Suva to handle Mr Yasir Khan’s matter.

Additionally, we are faxing you with an Order of Habeas Corpus to produce Mr Yasir Khan in Lautoka Magistrate’s Court at 9.00am tomorrow to answer charges of wrongful detention.

Yours faithfully

Sgd

HAROON ALI SHAH

The following day 17 March 2004 there was a hearing before a Magistrate on an application for a Writ of Habeas Corpus at which an Immigration officer appeared. After hearing both parties, the Magistrate issued the Writ and the Plaintiff was released. The Immigration officer who appeared was Mr Eroni Tuberi.

The Submissions of Counsel

Counsel for the Plaintiff submitted that the Immigration officers were acting mala fides. He pointed to his letter of 16 March, [set out above], where he had written to the Immigration Officer Mr Tuberi on 16 Marcy 2004 putting him on notice of such a claim, with details. To that letter there had been no reply and at the hearing there had been no evidence. After the Magistrate’s Court hearing in which the Magistrate held that the Warrant for Detention was illegal and set it aside there was no appeal and there has been no challenge to that finding. The Warrant for Detention itself is on its face not complete. Neither has been any evidence to justify the issue of a valid warrant of detention or for keeping the Plaintiff in custody. There was no justification at all for detention in an Immigration office with its attendant discomforts, or in the home of a departmental employee. The officer(s) responsible provided little food and little opportunity for personal hygiene. Food was supplied by a sympathetic employee.

Counsel sought substantial damages, leaving the assessment to the Court, and cited no authorities. He referred to my earlier judgment in which I awarded to the Plaintiff damages against the Police for a related cause of action. That was “Yasir Khan –v- Commissioner of Police and Attorney-General of Fiji HBC0075 of 2004, Judgment 13 April 2005”.

He submitted that there is no provision in the Immigration Act to found the issue of the warrant that was produced in this case.

Counsel for the Defendant relied on Article 16 of the Constitution of Fiji and the provisions of the Immigration Act Cap 88 which govern the issue of permits to reside in Fiji. He mentioned particularly Section 4 which gives an Immigration officer or Police officer certain rights once there is reasonable cause to suspect any person is in breach of the Act. He referred to Section 11(2)( c ) and submitted that it was the Plaintiff’s duty to show he had a permit to work in Fiji. He submitted that it is not a duty of Immigration department officers to confirm whether the Plaintiff was illegally in Fiji. The duty was his to produce his permit to work in Fiji and he did not do so.

Counsel mentioned also that it was an offence for the Plaintiff to open a shop in Fiji without a permit. Counsel submitted that the extended exemption under Section 7[3] of the Act which the Plaintiff has does not allow him to work in Fiji. I did question the evidential basis for some of Counsel’s submissions and their relevance. It should not be necessary to point out that the Immigration officers did confirm on their computer [according to the unchallenged evidence of the Plaintiff] that he did have a valid permit to reside in Fiji.

Counsel relied on Section 17 of the Act to submit that the arrest and detention of the Plaintiff were based on reasonable suspicion and that no damages suit could lie. The Immigration officer in his submission were protected by that section. I found no evidence by which to evaluate these submissions. Counsel urged the Court to dismiss the claim for those reasons and to award costs to the Defendant.

Decision

The submissions of Counsel for the Defendants are without force because in the absence of the 2^nd Defendant there was no evidence to support them.

I am not an authority on the Immigration legislation of Fiji, and the submissions I heard will certainly not make me one. I am not able to say from the statute available to me whether the form called “Warrant of Detention” [above] is valid of not. There have been Immigration Regulations and Amendments made since the 1985 revised edition of the statute. The form may be authorized in those instruments, I do not know, but it shows nothing on its face to indicate that it has lawful authority. However even if the form is a valid exercise of lawful authority, this form as issued was not. Its necessary foundation on its face is a valid removal order made under Section 15 of the Immigration Act Cap 88. There is no removal order at all stated there, the form is blank. There was no evidence of any removal order. In the absence of other evidence, this form and the Immigration officer’s request for the passport for repatriation appear to be capricious abuse of authority. The authority is claimed by J M Waqanisau, Chief Executive for Home Affairs & Immigration. He is the main Defendant, but he did not appear. He did not tell me what authority he had to issue the form. He might have had, but even so, what authority was given by the form to the Police? By hand writing and by typing the police were deleted from the form and were given by the Chief Executive no authority.

Prima facie there were no grounds for a removal order and the election of the 1^st Defendant not to give evidence leads me to conclude there could have been no valid removal order.

Thus I conclude that the Plaintiff was unlawfully arrested and unlawfully detained. The major events that occurred are set out above and those I adopt as my findings of fact.

The two Police Constables who effected the arrests seemed to me to be blameless in the execution of what they were told was their duty. Nonetheless I hold the police authority is liable because they appear to me to have acted with no authority to arrest and detain and I heard no submissions on their behalf to the contrary.

To assess damages that are a fair reflection for both parties of the wrong that was done I must go back to my judgment in HBC0075 of 2004. That was the present Plaintiff’s separate claim against the Police for an unlawful arrest on 25 February 2004. I now know that the two arrests and detentions in the present case were second and third in a serious of three over a 3-week period. In that case, after referring to authorities, I awarded against the Police $70,033.51 and costs on an indemnity basis fixed at $5,000.00 plus costs and disbursements. I was unaware then of the whole history, and think these two cases should have been tried together. The Plaintiff had been detained 24 hours and I calculated aggravated damages at $2,200.00 per hour, together with interest at 4% on that amount from the date of issue of the writ to the date of judgment, and exemplary damages of $15,000.00. I now have to be consistent with those awards in considering my assessment.

From that case I need repeat only very little. Suffice it to say that I rely upon the same authorities and that I again condemn what was a gratuitous exercise of power over the powerless without authority and without responsibility. There was a second and third repetition in the present case of the clear breach, first by the police authorities and then by the Immigration officers, of several Articles in the Constitutional Bill of Rights, notably Article 26 Freedom from unreasonable searches and seizure, Article 27, the Rights of Arrested or Detained Persons and Article 34(3) Freedom of Movement. This was a wanton incursion by the State into the liberties of an individual.

I adopt without repeating the other statements I made authorities I adopted and reasoning I followed in that judgment. I will not however assess the aggravated damages on an hourly rate, the sum would be beyond what principle allows. Aggravated damages are in my view justified and for both incidents taken as one whole I assess damages at $75,000.00 and make no award of interest thereon.

The case for exemplary damages also is made out and on a stronger foundation than in the previous case. There the Plaintiff was deposited and abandoned at the Magistrate’s Court and a writ was needed to obtain his release. In the present case there was a more substantial interference with his liberty. There were more serious indignities added, particularly the detention in the home of the Department’s driver, the detention in the office at the Airport with the sleeping and personal hygiene discomforts, particularly the deprivation of food and the incarceration [again without an evening meal] in the prison. There was humiliation in accepting food from a sympathetic departmental official. He was taken in custody again to the Magistrate’s Court, but there were no charges against him. I assess exemplary damages with caution but am unable to escape the gravity of what occurred. I fix the amount at $25,000.00.

I have already awarded damages against the Police in the previous case. Here they were acting only as arresting agents for the Second Defendant. These damages therefore are assessed against the Second Defendant only.

In addition to the damages awards I grant costs to the Plaintiff on the same basis as before namely $5,000.00 together with all costs and disbursement incurred by the Plaintiff’s solicitor on behalf on the Plaintiff in prosecuting this claim up to and including obtaining judgment, as proved to the satisfaction of the Registrar.

D.D. Finnigan
JUDGE

At Lautoka
22^nd July 2005