Bulsara v Commissioner of Police [2000] FJLawRp 37; [2000] 2 FLR 33 (26 May 2000)

[2000] 2 FLR 33

IN THE HIGH COURT OF FIJI

H. P. BULSARA

v

COMMISSIONER OF POLICE
& ATTORNEY-GENERAL

High Court Civil Jurisdiction
Shameem, J
26 May, 2000
HBC 215/00

Protection against compulsory acquisition of property - Release of motor vehicle taken by police pursuant to a search warrant - whether vehicle bought with proceeds of crime and not properly transferred - Whether a common law "interests of justice" - Criminal Procedure Code ss68, 103, 106, 164; Proceeds of Crime Act 1997 s34; Constitution s40(I), 40(2A)

Police seized plaintiff's car - Honda Accord CX 439 - in the belief that it was obtained by two stolen Merchants Bank cheques. The plaintiff filed an originating summons seeking injunction to release of the vehicle. The court found that just as the fundamental rights provisions in Constitution must be construed broadly and generously to give effect to full measure of individual's rights and freedoms, so must restrictions to those rights be strictly and narrowly construed ... police may only deprive a person of property if there is a law allowing such deprivation and for reasons set out in Constitution s40(2). The court found fundamental breaches of the law and Constitution and ordered its immediate release.

Held - (1) Police have no statutory and common law powers to continue to detain vehicle, thus confiscation of plaintiff's vehicle was a nullity, police detention of the plaintiff's vehicle was unlawful in common law, was unconstitutional, a breach of the Constitution.

(2) The justification to continue detention was subject to reasonableness and once a view was ascertained that the vehicle was bought from proceeds of crime and no application was made under the Proceeds of Crime Act, the detention was not reasonable.

Order immediate release of plaintiff's vehicle from police custody.

Prem Narayan for plaintiff
Kini Keteca for defendants

26 May 2000.

JUDGMENT

Shameem, J.

On 2^nd May 2000 the Plaintiff filed originating summons against the first and second Defendants seeking the release of the Plaintiff's vehicle CX 439, which is currently in the custody of the police, at the Central Police Station. The Plaintiff seeks an injunction restraining the Defendants from interfering further with the vehicle, and costs.

The circumstances of the seizure of the vehicle are not in dispute. They are laid out in the affidavit of Umesh Chandra, sworn on 6^th April 2000, and of Adi Sen, Detective Inspector, sworn on 17^th May 2000.

On 13^th December 1999, a police investigation commenced in relation to two stolen Merchants Bank cheques to the value of $45,000.00 and $35,000.00. The police believe that the cheques were used to obtain a Honda Accord car CX 439 (the Plaintiff's car), for $25,000.00.

The vehicle was bought from Carpenter's Motors by one Shiu Raj. Shiu Raj then sold the car to the Plaintiff for $14,000 on 8th December 1999, five days after Shiu Raj had bought the car from Carpenter's Motors.

The Plaintiff discovered that the car had not been formally transferred to Shiu Raj, and checked the position with Carpenter's Motors. Carpenter's Motors informed the Plaintiff that the vehicle had been sold to Shiu Raj. The Plaintiff then became the registered owner of the vehicle. He intended to sell the vehicle through his car dealer company "John's Motor Mart."

On 24th December 1999, the police obtained a search warrant to seize the vehicle. The vehicle has remained at Central Police Station since that date.

No charges have been laid in respect of the stolen cheques, or the vehicle. The file has been sent to the Office of the Director of Public Prosecutions, but no decision has been made on sufficiency of evidence. No application has been made by the DPP under the Proceeds of Crime Act 1997, for a restraining order in respect of the vehicle.

At the hearing of this application, counsel for the Plaintiff submitted that the police had no legal basis for the continued custody of the vehicle. She said that no charges had been laid and that it was unreasonable for the police to continue to hold the vehicle. In response, counsel for the Defendants said that there may be evidence that the Plaintiff had reasonable cause to suspect that the vehicle he bought was stolen. As such, a charge may be brought against the Plaintiff.

However, he conceded that he was unable to say with any certainty that the car was needed as an exhibit in the case. He said that the car was probably bought with proceeds of a crime and that it was seized for that reason. He relied on the common law for continued detention of the vehicle pending a criminal prosecution.

It is not in dispute that the vehicle was lawfully seized by the police. A search warrant was issued under section 103 of the Criminal Procedure Code Cap. 21. That section provides:

"Where it is proved on oath to a magistrate or justice of the peace that in fact or according to reasonable suspicion anything upon, by or in respect of which an offence has been committed or anything which is necessary to the conduct of an investigation into any offence is in any building, ship, vehicle, box, receptacle or place, the magistrate or justice of the peace may by warrant (called a search warrant) authorise a police officer or other person therein named to search the building, ship, carriage, box, receptacle or place (which shall be named or described in the warrant) of any such thing which there is reasonable cause to suspect to have been stolen or unlawfully obtained be found, to seize it and carry it before the court issuing the warrant or some other court to be dealt with according to law."

Section 106 of the Criminal Procedure Code provides:

"(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."

Section 164 of the Code allows the court "in any proceedings" to make orders for the interim custody of any property produced in evidence or as to which questions may arise in the proceedings. Section 68 of the Code allows the police to make a report of any property seized whose ownership is in doubt, to the Magistrates Court for orders to be made for possession of such property.

Finally section 34 of the Proceeds of Crime Act 1997, provides that where a person has been convicted of a serious offence (which includes Larceny and Receiving Stolen Property), the Director of Public Prosecutions has the power to apply for a restraining order in respect of proceeds of crime. The DPP may also make such an application before a charge is laid. No such application has been made in this case. Section 40(1) of the Constitution (1998) provides:

"Every person has the right not to be deprived of property by the State otherwise than in accordance with a law."

A restraining order under the Proceeds of Crime Act 1997 is specifically provided for under the Constitution by virtue of section 40(2A) which provides that:

"Nothing contained in, or done under the authority of, a law is inconsistent with this section to the extent that the law makes provision for the acquisition of property by way of:

(c) confiscation of the proceeds of crime;"

The furtherance of a police investigation is not specified as a permitted limitation on the right expressed in section 40(1).

It is clear from the facts of this case that the police have no statutory powers to continue to detain the vehicle in question. The question is whether the common law justifies continued detention, and, if it does, the effect on the common law of section 40 of the Constitution.

The common law principle behind police powers to search and seize, is that the police must have reasonable grounds for believing that the property seized is material as evidence to prove the suspected offence (Ghani -v- Jones (1970) 1 QB 693, Reynolds -v- Metropolitan Police Commissioner (1985) QB 881.

Continued detention of items seized lawfully (on reasonable grounds) is also subject to the general principle of reasonableness.

In this case, I accept that the police had reasonable grounds for seizing the vehicle. However, in my view, once it was ascertained that the reason for continued detention was that it had been bought from the proceeds of crime, the detention failed to satisfy the reasonableness test.

In Ghani -v- Jones (supra) at p.706, Lord Denning MR said:

"I take it to be settled law, without citing cases, that the officers are entitled to take any goods which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be implicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary."

In Chic Fashions (West Wales) Ltd. -v- Jones [1967] EWCA Civ 4; (1968) 2 QB 299, p.316 Lord Diplock MR said:

"I decline to accept that a police officer who is unquestionably justified at common law in arresting a person whom he has reasonable grounds to believe is guilty of receiving stolen goods, is not likewise justified in the less draconian act of seizing what he, on reasonable grounds, believes to be the stolen goods in that person's possession. The purpose of the seizure in such a case is twofold; first that the goods may be produced as material evidence upon the prosecution of a criminal charge against the person from whom they were seized; and secondly, that after the trial they may be restored to their rightful owner, and a similar justification exists for their detention so long as the detainer has reasonable grounds for believing that such a charge will lie and that the goods will be material evidence upon its prosecution."

What are the "reasonable grounds" in this case? Adi Sen's affidavit does not suggest that the Plaintiff received the car knowing it was stolen, or in circumstances which suggested the same. Indeed the evidence shows that the Plaintiff made all proper inquiries about the circumstances of the sale of the vehicle to Shiu Raj.

As Lord Denning said in Ghani -v- Jones (supra) at page 704 one of the requisites for a reasonable seizure and detention of an article is that the police must have reasonable grounds to believe that the person in possession of it has himself committed the crime or is implicated in it, or that his refusal is unreasonable.

The common law relating to the custody of seized items, reflects the need to protect the freedom of the individual and the need to protect his possessions, with the public interest in bringing offenders to justice.

On these principles alone, the police have failed to show that they acted reasonably in detaining the Plaintiff's vehicle since December 1999, with no charges laid, and no application made under the Proceeds of Crime Act.

I also find that even if reasonable grounds had existed to detain the vehicle in the common law without a court order under section 106 of the Penal Code, the police would not be justified in holding the vehicle, because of the effect of section 40 of the Constitution.

The limitations on the right expressed in section 40, are specifically provided for in section 40(2) of the Constitution. A restraining order under the Proceeds of Crime Act, would provide a justifiable limitation. The common law principle of "interests of justice" does not.

Just as the fundamental rights provisions in the Constitution must be construed broadly and generously to give effect to the full measure of the individual's rights and freedoms, so must restrictions to those rights be strictly and narrowly construed.

As the Constitutional Court of South Africa said in State -v- Zuma & others [2015] ZALAC 53; (1995) (4) BLLR 401 at p.412 (per Kentridge J):

"Constitutional rights conferred without express limitation should not be cut down by reading implicit restrictions into them, so as to bring them into line with the common law."

Applying these principles, I am of the view that the police may only deprive a person of his or her property if there is a law allowing such deprivation and if that law is for one of the reasons set out in section 40(2) of the Constitution. No other limitation is possible.

In this case the police are not acting under any law in detaining the Plaintiff's vehicle. The procedure provided in the Proceeds of Crime Act 1997 for the confiscation of the proceeds of crime has not been utilised by the State.

In these circumstances the police detention of the Plaintiff's vehicle is not only unlawful in the common law, it is unconstitutional and a breach of section 40(1) of the Constitution.

I order its immediate release. The Defendants are to pay the Plaintiff's costs of this action which I set at $300.

Plaintiff's originating summons allowed

Marie Chan