Ali v Commissioner of Police [2011] FJHC 137; Civil Action 14.2009 (23 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 14/2009

IN THE MATTER of Breach of Section 106 of Criminal Procedure Code

BETWEEN:

SETH RIZAWAN ALI (father's name Rustam Ali) of Suva, Businessman.
PLAINTIFF

AND:

COMMISSIONER OF POLICE
FIRST DEFENDANT

AND:

ATTORNEY-GENERAL OF FIJI
SECOND DEFENDANT

AND:

DIRECTOR OF PUBLIC PROSECUTIONS
PARTY DEFENDANT

Appearances: Mr V. Maharaj for the Plaintiff
Mr R. Raramasi for the Defendants
Date and Place of Hearing: 15 November, 2010
Date and Place of Judgment: 23 February, 2011
Judgment of: Justice A.L.B.Brito-Mutunayagam

JUDGMENT OF THE COURT

1. By Originating Summons dated 14 January, 2009, the Plaintiff instituted this action against the Commissioner of Police and AG and sought Orders for:
   
   1. A Declaration that the retention of the Plaintiff's properties by the first Defendant is in breach of Section 40(1) of the Constitution of the Republic of Fiji Islands;
      
   2. A Declaration that the Defendant has breached $ 106 of the Criminal Procedure Code;
      
   100. an Order that the Defendant pay damages for the seizure and continued detention of the Plaintiff's properties, loss of business and damages for distress and anxiety of pending criminal charges for over 5 yrs.
        

Application was made by Counsel for the Plaintiff for an Order of Court with respect to a) and b) above and the Judgment of the Court is in respect of same.

2. On 3 February,2011,Counsel for the Plaintiff supported a motion filed on behalf of the Plaintiff to delete paragraph 1 of the relief sought (sub-paragraph a) of 1.above) and the following to be substituted:
   

a Declaration that the retention of the Plaintiff's properties by the first Defendant is in breach of Plaintiff's common law rights.

Counsel for the Plaintiff also moved to have deleted in the caption of the Originating Summons and Affidavit of the Plaintiff, the words "IN THE MATTER of Breach of Section 40(1) of the Constitution of Fiji". Counsel for the Defendants did not object to the said application and Order was made permitting the amendments.

3. The Plaintiff in his Affidavit dated 8 January,2009, in support of its Originating Summons, states that on 2nd November 2004, he was charged by the Police with Dealing with infringing objects contrary to Section 121(i)(d) of the Copyright Act 1999. The Police in the course of their investigations had seized from his business premises three Pentium brand 4 computers, Receipt Books,D.V.D.'s, C.D's and a Register. The Plaintiff states that he was tried of the offence and acquitted on 12th March, 2007.The learned Magistrate had ordered the Prosecution to return all the seized items to him. It is further stated in the Affidavit that none of the items that were seized from him were used or tendered as exhibits at the trial. The Director of Public Prosecutions had appealed against the decision of the learned Magistrate and the High Court on 16th July,2008, had made Order for a permanent stay of all proceedings .On 25th May,2007,and 13th October, 2008, the Plaintiff's Solicitors had written to the Director of Public Prosecutions for the return of the seized items, but the Police had failed to return the said items.
   
4. The Affidavit in Reply of Sgt Jese Raicebe, (the Police Officer who had conducted the investigation) filed on behalf of the First and Second Defendants states that the items were seized by the First Defendant in the course of their investigations on the strength of a search warrant. It is further stated that the matter was directly under the carriage of the Director of Public Prosecution and a directive or court order was not given for the release of the seized items. The Affidavit also states that the First Defendant believes that the detention of the items was lawful and the Office of Director Public Prosecution had a legitimate reason for the retention of the items.
   

Counsel for the Defendants clarified at the hearing that three computers were seized and not three hard drives as stated in paragraph 12 of the Affidavit in Reply of Sgt Jese Raicebe.

5. On 12 March,2009, upon an application by the Defendants, the Court had granted leave to make the Director of Public Prosecution a party Defendant in this case, for documents to be served and the Director of Public Prosecution to file Affidavit in Reply within 21 days, which has not been filed.
   
6. The Magistrate had acquitted the Plaintiff on 12th March 2007, and further ordered all items seized from "the accused in course of the investigation and prosecution of this matter belonging to the accused and his business to be returned to him forthwith".
   

The Director of Public Prosecutions appealed against the decision of the learned Magistrate acquitting him of the charge. The High Court on 16th July, 2008 made order that this proceedings be stayed permanently and stated as follows;

At paragraph 50;

"......... the confiscation of the respondent's business tools ie. three computers and documents which were taken away by the police and still not returned to this day severely affecting the running of his internet cafe. All these were taken away and kept from his use for 5 years 9 months even though in his trial in the Magistrate Court, none of these items were tendered as exhibits. I note that despite the court order made by the learned Magistrate that these items be released to the respondent, it is still not done."

At paragraph 51;

"What I find totally unacceptable is the fact having cautioned interview the respondent and confiscated 3 of his computers and some documents necessary for the running of his internet business, these items were not returned to him as soon as it was established by the police that they would not be used as exhibits in the trial, as it later turned out. This is an abuse of the criminal procedure process and it cannot be condoned."

At paragraph 57;

"What was even more astounding was the admission by counsel for the appellant that the primary reason for pursuing this appeal against the respondent was the need to obtain a High Court determination on certain legal issues raised by the Magistrates Court decision, for future guidance in the novel area of copyright law prosecution. In my view it is unfair to take the respondent through another procedure where the continuation of the breach of his rights continues. It seems to me the fairer approach is for the State to accept the decision of the Magistrate Court and ask the Magistrate Court to state a case to the High Court under Sections 329 to 339 of the CPC, covering the issues of law for determination. In that way the respondent does not have to live under a cloud of suspicion and stress".

At paragraph 64;

" In conclusion, the length of delay in disposing this proceeding against the respondent, is unreasonable and inexcusable. I am further satisfied that the respondent's rights under section 29(3) of the Constitution has been breached. I have considered the interest of the public in this proceeding, unfortunately I find that there are no other remedies available but that the interest of justice and fairness dictates that this proceeding be stayed permanently. I order accordingly".

7. In Crystal Clear Video Ltd v Commissioner of Police (1988) FJHC 1, Fatiaki J stated that the common law principles relating to the powers of police officers to seize goods in respect of which there is a reasonable suspicion that an offence has been committed has been recently restated by Lord Denning M.R. in Chief Constable of Kent v V.(1982)3 All E.R. 37 at pg 39 as follows:
   

"I need say nothing today of the power of the police to arrest a person. I speak first of their power to seize or detain goods. This was considered by this court in Chic Fashions (West Wales) Ltd v Jones [1967] EWCA Civ 4; [1968] 1 All ER 229, [1968] 2 QB 299. That case showed that on entering a house with a search warrant or by the occupier's consent the police have power to seize goods which they reasonably believed to have been stolen or obtained fraudulently by deception. They can thereafter detain the goods for such time as is reasonably necessary to complete their investigations into the theft or fraudulent obtaining. If their investigations indicate that the goods have been stolen or fraudulently obtained by deception, the police can detain them further so that they can in due course be restored to their rightful owner and, where necessary, be produced as material evidence at the trial of an accused person. But, once it appears that the goods were not stolen or fraudulently obtained and are not needed as evidence, then the police should restore them to the person from whom they were taken: see Ghani v Jones [1969] 3 All E.R. 1700, [1970] 1 QB 693, Malone v Comr of Police of the Metropolis [1979]1 All E.R. 256, [1980] 1 QB 49 and R v Uxbridge Justices, ex p Comr of Police of the Metropolis [1981] 1All E.R. 940, [1981] QB 829, unless in special circumstances the court directs them to be held until after the trial".

8. Section 106 of the Criminal Procedure Code(Cap 21) provides that:
   
   1. When any such thing is seized and brought before a court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation.
      
   2. If any appeal is made, or if any person is committed for trial, the court may order it to be further detained for the purpose of the appeal or the trial.
      
   3. If no appeal is made, or if no person is committed for trial, the court shall direct such thing to be restored to the person from whom it was taken, unless the court sees fit or is authorised or required by law to dispose of it otherwise.
      
9. Section 106 1) and 2 ) of the Criminal Procedure Code deals with the instances when an item seized may be detained. Sub-section 3) provides that if no appeal is made, or if no person is committed for trial, the court shall direct the item to be restored to the person from whom it was taken, unless the court sees fit or is authorised or required by law to dispose of it otherwise.
   
10. The facts are undisputed in this matter. The learned Magistrate had acquitted the Plaintiff and further ordered all items seized from him to be returned forthwith. The High Court held that the failure to return the items, as soon as it was established by the police that they would not be used as exhibits in the trial is an abuse of the criminal procedure process. The Plaintiff's Solicitors had written to the Director of Public Prosecutions for the return of the seized items, but the Police failed to return the seized items.
    
11. I therefore hold that the continued detention of the Plaintiff's items is unlawful and grant declaration that the retention of the Plaintiff's properties by the First Defendant is in breach of $ 106 of the Criminal Procedure Code. I also grant Declaration that the retention of the Plaintiff's properties by the first Defendant is in breach of Plaintiff's common law rights. Costs are awarded to the Plaintiff against the First Defendant summarily assessed at $500.
    

A.L.B.Brito-Mutunayagam
JUDGE

23 February 2011