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Lu v Kiribati Police Services [2019] KIHC 73; Civil Case 29 of 2019 (26 July 2019)

IN THE HIGH COURT OF KIRIBATI 2019


CIVIL CASE NO. 29 OF 2019


[JINGUI JAMES LU APPLICANT
[
BETWEEN [AND
[
[ATTORNEY GENERAL in respect of
[KIRIBATI POLICE SERVICES RESPONDENT


Before: The Hon Chief Justice Sir John Muria


14 June 2019


Ms Kiata Kabure for Applicant
Ms Tewia Tawiita for Respondent


JUDGMENT


Muria, CJ: The applicant comes to this Court seeking a declaration and orders arising out of the seizure and detention of his money in the sum of USD 19,550.00 cash found in his possession at Bonriki International Airport on 17 January 2019. The applicant was preparing to board the Fiji Airways Flight FJ 230 bound for Nadi.


Brief background


2. On 17 January 2019 at the Departure Lounge, at Bonriki International Airport, the Aviation Securities found the applicant to have in his possession
USD 19,550.00. The Immigration Departure Form was given to the applicant to fill in and in the currency declaration section on the Form the applicant had to declare whether he was taking more than A$5,000.00 out of the country.


3. The applicant did not declare that he had USD 19,550.00 which was found on him. The police were called in and seized the USD 19,550.00 from the applicant. The money has been kept with the police until now.


Issues


4. The respondent suggested that the issue is whether or not the money
USD 19,550.00 found in the possession of the applicant before departing Kiribati was lawful. There is nothing whatsoever to suggest the sum of US$19,550.00 was not lawful or was tainted in any way. Just because a person has more than $5,000.00 in his possession when leaving Kiribati does not make the amount of money itself unlawful. The offence is “failing to declare” the amount of more than the equivalent of $5,000.00 that a person has in his or her possession when leaving or entering Kiribati.


5. Although Counsel did not cite the provision of the law that creates the offence of failing to declare currency, that provision is Section 115A of the Proceeds of Crimes Act 2003 as amended by the Proceeds of Crimes (Amendment) Act 2005. The prescribed Immigration Departure Form is only a means to facilitate the requirements of the law on currency reporting as required by section 115A. See Republic –v- Wenjung Yu [2013] KIHC 13; Criminal Case 34 of 2012 (4 March 2013).


6. The issue is, as correctly put by Ms Kabure, whether the continued detention of the Applicant’s $19,550.00 USD lawful or not. The amount detained by the police is US$19,550.00 as confirmed in the affidavit of Police Constable Mweretaka Roobe.


Arguments


7. Ms Kabure of Counsel for the applicant submitted that detaining the applicant’s money (US$19,550.00) beyond 24 hours after it was seized under section 116 of the Proceeds of Crimes Act at Bonriki Airport without a Court Order is unlawful. The applicant’s money was seized on 17 January 2019 and at the time of filing of this application on 7 May 2019 there was still no Court order authorizing the continued detention of the applicant’s money. Such detention of the applicant’s money, argued Counsel, is contrary to section 117 of the Proceeds of Crime Act.


8. For ease of reference, I set out sections 116 and 117 of the Proceeds of Crimes Act (POC Act).


“116. An authorized officer may seize and detain any currency that is brought into or taken out of Kiribati if:


(a) The amount is not less than the equivalent of $1,000 (or a higher amount prescribed by regulation for this paragraph); and

(b) There are reasonable grounds for suspecting that it is:

117(1) Currency detained under section 116 may not be detained for more than 24 hours after it is seized.


(2) However, the Court may order its continued detention for a period not exceeding 3 months from the day it is seized, upon being satisfied that:


(a) There are reasonable grounds for the suspicion mentioned in section 107(1)(b); and

(b) Its continued detention is justified while:

(3) The Court may subsequently order the continued detention of the currency if satisfied of the matters mentioned in subsections (2)(a) and (b), but the total period of detention may not exceed 2 years from the date of the first order made under subsection (2)”.


9. No order has been made for the continued detention of the applicant’s money. As such, Counsel submitted, the continued detention of the applicant’s US$19,550.00 is unlawful and should be released to the applicant.


10. Ms Tawita, on the other hand, contended that the applicant’s US$19,550.00 was lawfully seized and its continued detention is also lawful. Counsel relied on various provisions of the Police Powers and Duties Act to show that the continued detention of the applicant’s money is lawful.


11. Ms Tawita submitted that section 117 of the POC Act applies but it is not the sole authority applicable in this case. As such, Counsel argued that non-compliance of section 117 is not fatal in the present case. Counsel suggested that sections 7, 63 and 67 of the Police Powers and Duties Act (PPD Act) are applicable. Counsel went on to contend that the PPD Act prevails over other Acts. The argument for the respondent is, therefore, that the combinations of the provisions cited justify the continued detention of the applicant’s money, even without any Court order as envisaged under section 117 of the POC Act.


12. Responding to the arguments in support of the applicability of section 63 of the PPD Act, Ms Kabure submitted that section 63 does not apply to the present case. Counsel submitted that section 63 applies only where a police officer at a public place “finds a thing” which the police officer suspects on reasonable ground to be evidence of a commission of an offence. In such a case the police may seize the thing.


Consideration and Determination


13. There is no dispute in this case that the applicant had in his possession US$19,550.00 on 17 January 2019 when he was about to board his flight out from Kiribati. He was required by law to declare that he had more than AUD5,000.00 in his possession. He failed to do so and as a result the US$19,550.00 was seized from him by the police who were called to the scene at the Bonriki International Airport.


14. Senior Police Constable Bunaua Abaua confirmed seizing the money, the amount involved and its detention in paragraphs 5 and 6 of his affidavit of
11 June 2019:


“5. Upon receiving the report, myself and Sgt Buanibwaro went to the Bonriki International Airport and checked with custom officers about the above report. They handed over to us the money and we counted it and confirmed that the amount found, carried by the applicant before departure was US$19,550.


6. We seized that money and brought it back to the Criminal Investigation Division (CID) to be kept in custody as part of the evidence for any possible offences committed: failure to declare amount exceeding $5,000 give false information and misleading Immigration officers”.


15. It is obvious from the submission of Ms Tawita that the police relied on sections 7, 63 and 67 of the PPD Act 2008 to seize and detain the applicant’s US$19,550.00 in this case. It is therefore essential that those provisions be considered first.


16. First of all, the PPD Act was enacted for the purposes set out in Section 2 of the Act and are stated as follows:

“(a) to provide the powers that are necessary for effective modern policing and law enforcement; and

(b) to consolidate and rationalize the powers and duties that police officers have for investigating offences and enforcing the law; and

(c) to provide consistency in the nature and extent of the powers and duties of police officers; and

(d) to standardize the way in which the powers and duties of police officers are to be exercised; and

(e) to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers; and

(f) to enable the public to better understand the nature and extent of the powers and duties of police officers”.


17. These objectives are reiterated in the Explanatory Memorandum to the Act presented to Parliament by the Attorney General. In the main, the Act is to help consolidate and enhance the ability of police officers in investigating offences and enforcing the law.


18. Section 7 of the PPD Act provides as follows:


“7. Relationship between this Act and other Acts

(1) If another Act confers a power or imposes a duty on a police officer, this Act prevails over that Act to the extent of any inconsistency between the two Acts.

(2) A police officer may exercise a power in accordance with this Act in order to do something under another act, even though the other Act specifies the way to exercise the power.

(3) The object of this section is to allow police officers to rely generally on this Act, as opposed to a number of Acts, for their powers and duties”.

19. Section 67 of the PPD Act provides as follows:

“67. Purpose of this Sub-division

The purpose of this Sub-division is to ensure, as far as practicable, that a seized thing –

(a) is retained by the police service only for as long as is reasonably necessary in the circumstances; and
(b) is handled in an efficient, safe and accountable way”.

20. Accepting that the PPD Act is intended to facilitate the harmonious relationship between the PPD Act and other statutes, section 7 does not and cannot authorise non-compliance with the other statutes. What it does and can do is to harmonise the two provisions of the law so as to do what the law requires to be done in relation to a particular subject matter. Commercial Tax Officer, Rajasthan –v- M/S Binari Cement Ltd and Another [2014] 3 S.C.R. 1.


21. Section 7 cannot be given the interpretation which Counsel for the respondent suggested so as to disregard the requirements of section 117 of the POC Act. That cannot be correct.


22. As subsection (2) of section 7 clearly provides, a police officer is to exercise his power under the PPD Act “in order to do something under another Act” even though the other Act provides the way to exercise such power. The requirement of section 117 of the POC Act is a Court Order to be obtained to ensure that the continued detention of the applicant’s US$19,550.00 is lawful.


23. Section 63 of the PPD Act is in the following terms:


“63. Seizing evidence generally

(1) This section applies if a police officer -
(2) The police officer may seize the thing –
(3) Having seized a thing, the police officer may –
(4) If the police officer restricts access to the seized thing, a person commits an offence if the person tampers, or attempts to tamper, with the seized thing, or something restricting access to the seized thing, without the approval of a police officer.

(5) The maximum penalty for an offence under this section is a fine of $2,000.

(6) The police officer may photograph the seized thing or the place from which the thing was seized.

(7) The police officer may stay on the place and re-enter the place for the time that is reasonably necessary to remove the seized thing from the place”.

24. It is plainly obvious that section 63 applies in two conjunctive situations, namely if a police officer lawfully enters a place or is at a public place and finds at the place a thing which he suspects on reasonable ground to be evidence of the commission of the offence or the thing found poses a risk of serious harm or death to a person. Not only that section 63 speaks of “a police officer” finding things at a public place or where the police officer lawfully enter, but the police officer must also ascertain the owner of the thing found. If the thing found and seized is no longer necessary to keep for investigation purposes, it must be returned to the owner. See Section 68 of the PPD Act.


25. Counsel for the respondent relied on section 63 of the PPD Act to justify the continued detention of the applicant’s money which was seized from him on
17 January 2019 because the police believed that the money seized was the result of the criminal offence committed by the applicant. Thus submitted by Counsel, the detention of the money was crucial to provide for possible evidence of any offence committed by the applicant in this case.


26. In relation to section 67, Counsel argued that the section authorizes the police to retain the seized money “for as long as is reasonably necessary” for the purpose of investigation into the case against the applicant. Counsel further submits that section 67 of the PPD Act prevails over sections 116 and 117 of the POC Act, so that even if the continued detention of the money may have been contrary to section 117 of the POC Act, section 67 of the PPD Act justifies its continued retention in the present case.


27. I deal next with the suggestion by Mr Tawita that section 67 of the PPD Act prevails over section 117 of the POC Act even if section 117 has been contravened. Counsel cites no authority whatsoever to support the proposition of law she now advances that one statutory provision can override another independent statutory provision. Counsel simply makes the bold statement that section 67 of the PPD Act would prevail over section 117 of the POC Act if there was a conflict between the two. Let me briefly say it once again as I did in the past, that the Court finds it absolutely unhelpful when Counsel hardly support legal proposition which they make with case law authorities. This is a sign of lack of seriousness on the part of Counsel in presenting legal arguments.


28. Writing on taking legal arguments seriously, Michael Sean Quinn makes the point that “serious lawyers take legal arguments seriously”:
Michael S Quinn, Argument and Authority in Common Law Advocacy and Adjudication: An Irreducible Pluralism of Principles, 74 Chi – Kent L. Rev. 655 (1999), p. 657. It is part of a lawyer’s duty to the Court to advance legal arguments which are properly researched and supported with case and statute law authorities. As Markovits puts it, “Extracting binding precedent from the past is one hallmark of legally-revelatory common law argumentation. It is the way lawyers in common law legal systems take legal arguments seriously”:
Richard S Markovits, Taking Legal Argument Seriously: An Introduction 74 CHI – KENT L. Rev. 317 (1999).


29. The Court is not going to do legal research and hunt for authorities for Counsel. I encourage Counsel to be serious in their practice of the law, including assisting the Court with good and authoritative legal arguments.


30. In my view the PPD Act is an Act of general character applicable to modern policing and law enforcement together with its general objectives as set out in section 2. Section 67 is a provision conferring general power on the police to be applied on things which police officers find and seize. Arguably, a police officer may also exercise his powers under the PPD Act to deal with cash or anything that he or she finds, depending on the natures and facts of case.


31. Section 117 of the POC Act on the other hand, deals specifically with the seizure and detention of currency that is attempted to be taken out of the country above the limit of AUD 5,000.00 without declaring it. This is the subject matter of the present case to which section 117 applies.


32. The rule of statutory construction applicable in such a situation is that the specific provision of the statute prevails over that of the provision of a statute of general application.


33. When one reads sections 63 to 73 in Division 4 in Part III of the PPD Act, dealing with Seizing Things, it is obvious that they apply to things found by police officers at public places or in places where they lawfully enter by Warrant. That is not the situation with which we are dealing with in the present case. The scenario with which we are concerned in the present is about an alleged attempt to take currency out of Kiribati in an amount exceeding $5,000 AUD or its equivalent without declaring it. Section 63 of the PPD Act cannot, therefore, apply to the present case to the exclusion of section 117 of the POC Act.


34. Section 67 of the PPD Act authorizes the retention of a thing seized only for as long as is reasonably necessary in the circumstances. That, of course, is in relation to “a thing” found by “a police officer” and which was subsequently seized.


35. In the present case the circumstances are concerned with the discovery of the exportation of currency from Kiribati in the amount of more than $5,000 AUD without declaring it. The discovery was done by an “authorized officer” resulting in the seizure and detention of the applicant’s money in the sum of US$19,550.00 under section 116 of the POC Act.


36. Section 117 of the POC Act places limits on detention. The detention of the seized currency is specifically stated to be an initial period of 24 hours and may be continued for a period not exceeding three months. The continued detention may be further extended but may not exceed two years from the date of the first order.


37. Sections 63 and 67 of the PPD Act do not apply to the present case now before the Court. The applicable provisions are sections 116 and 117 of the POC Act.


Whether the detention of the applicant’s US$19,550.00 lawful


38. The issue to be determined is the lawfulness of the continued detention of the applicant’s US$19,550.00. There is no dispute that the applicant had US$19,550.00 in his possession and that he failed to declare it as required by section 115A of the POC Act when he was leaving Kiribati on flight FJ 230 on
17 January 2019. Consequently, pursuant to section 116 of the POC Act the Authorised Officer seized the US$19,550.00. The police were notified and came to seize and detained the money.


39. As required by section 117(1) of the POC Act, the currency may be detained for 24 hours without Court order. Any further detention of the currency beyond 24 hours required a Court order as provided by subsection (2) of section 117 for a period not exceeding three months. There is no dispute whatsoever in this case, following the initial seizure and detention of the applicant’s money on 17 January 2019, no Order has been sought by the respondent for the continued detention of the applicant’s money until today which is now six months since the applicant’s money was seized and detained. On any view one may have on action or lack of it on the part of the respondent, the continued detention of the applicant’s money must surely not in keeping with the requirements of section 117 of the POC Act.


40. I have already rejected the argument that section 67 of the PPD Act can override section 117 of the POC Act so that the applicant’s money seized on
17 January 2019 can continue to be detained by the respondent “for as long as is reasonably necessary” for the purpose of investigation into the applicant’s case. Section 67 of the PPD Act cannot be interpreted in the manner suggested by Counsel for the respondent, so as to give it a superior effect over the specific statutory authority that section 117 of the POC Act has.


41. The rule on statutory interpretation which promotes harmonious construction of statutes must be applied so that if there is disharmony between two independent provisions of law on the same subject matter, the specific provision must prevail. Put another way, general statute must give way to special or specific statute. This rule finds its origins in the Latin maxim “generalia specialibus non derogant”: Seward –v- Owners of “The Vera Cruz” (1884) 10 Appeal Case 59; Barker –v- Edger [1898] UKLawRpAC 50; (1898) A.C. 748; and Commercial Tax Officer, Rajasthan –v- M/S Binani Cement Ltd & Another [2014] 3 S.C.R. 1; Civ. App.
No. 336 of 2003, Supreme Court of India. See also Edmond –v- U.S. [1997] USSC 40; 520 U.S. 651; Warden, Kewisburg Penitentiary –v- Marrero[1974] USSC 201; , 417 U.S. 653.


42. Section 117 of the POC Act specifically applies in the present case and must prevail. Its requirement for an order to lawfully continue detaining the applicant’s money seized from him on 17 January 2019 have not been complied with until the present time. If there are reasonable grounds to continue detaining the applicant’s money, the respondent could have sought an Order from the Court for the continued detention of the money after the initial 24 hours as required by section 117(2). No such order had been sought and granted, since perhaps there are no reasonable grounds existing any more for the continued detention of the applicant’s money or the respondent simply ignored the statutory requirement.


43. The continued detention of the US$19,550.00 belonging to the applicant by the respondent without an order is, in my judgment, unlawful.


44. The respondent also argued that the applicant has now been charged with three offences, one contrary to section 115A of the POC Act, one contrary to section 122 of the Penal Code, and one contrary to the Immigration Ordinance (Cap 41). Counsel informed the Court that the charges were filed in Court on
7 June 2019. Ms Tawita submitted that the filing of the charges also legitimizes the continued detention of the applicant’s money.


45. The present proceedings are civil arising out of the seizure and detention of the applicant’s money on 17 January 2019. No application for the continued detention of the applicant’s money has been made since 17 January 2019. Even after the charges were said to have been filed, no application has been filed seeking an order to continue the detention of the applicant’s money pending the determination of the criminal charges against the applicant. In my judgment, as the continued detention of the applicant’s money is in breach of section 117 of the POC Act and therefore unlawful, the subsequent filing of the charges against the applicant on 7 June 2019 cannot absolve the unlawfulness of the continued detention of the applicant’s money.


46. Further, to accept the suggestion that the subsequent filing of the charges on 7 June 2019 breathes legitimacy to the respondent’s unlawful act of detaining the applicant’s money, contrary to section 117 of the POC Act, would amount, in my view, to permitting the respondent to benefit from their wrongful conduct. In a limited sense, the legal principle expressed in the maxim “ex turpi causa non oritur actio” would apply to prevent the respondent from benefiting from their unlawful conduct: Scott –v- Brown [1892] UKLawRpKQB 170; (1892) 2 QB 724; Hall –v- Hebert [1993] 2 SCR 159.


47. For the above reasons, the applicant’s application must succeed and I grant the following declarations as sought:


  1. A declaration that the respondent failed to apply within 24 hours to the Court for an Order for the continued detention of the applicant’s US$19,550.00 cash following its seizure on 17 January 2019.
  2. A declaration that the continued detention of the applicant’s US$19,550.00 thereafter without Court Order is in breach of section 117(1) and (2) of the POC Act and therefore unlawful.
  3. An Order that the applicant’s US$19,550.00 be released and returned to him forthwith.
  4. The applicant shall be entitled to general damages to be assessed for the continued unlawful detention of his US$19,550.00 until to date.
  5. The applicant shall be entitled to his costs of these proceedings, to be taxed, if not agreed.

Dated the 26th day of July 2019


SIR JOHN MURIA
Chief Justice

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