Hsieh Lung-Kuei v Attorney General [2020] KIHC 15; Civil Case 43 of 2020 (26 June 2020)

IN THE HIGH COURT OF KIRIBATI 2020

CIVIL CASE NO. 43 OF 2020

[HSIEH LUNG-KUEI PLAINTIFF
[
BETWEEN [AND
[
[ATTORNEY-GENERAL IN RESPECT OF
[THE REPUBLIC DEFENDANT

Before: The Hon Chief Justice Sir John Muria

3 June 2020

Ms Taoing Taoaba for Plaintiff/Applicant
Ms Tumai Timeon for Defendant/Respondent

JUDGMENT

Muria, CJ: The plaintiff in this case has applied for the release of the vessel “Win Far 636” which is presently berthed at the Tarawa Port. The defendant opposes the application.

Brief background

2. The vessel, Win Far 636 sailed into Tarawa Port on 7 March 2020 on the direction of its owners, following the reported death of an I-Kiribati Observer on board the vessel. Upon arrival, the body of the deceased was taken off the vessel and police began their investigation into the alleged murder of the I-Kiribati Observer.

3. The deceased was medically examined and the autopsy report made by the examining doctor shows that the cause of death were: “severe intra-cranial hemorrhage and traumatic brain injuries due to severe traumatic head injuries and blunt force head trauma”.

4. The Win Far 636 was never the subject of an arrest. However, it was detained, not for committing any fisheries offence under the Fisheries Law or breach of fisheries agreements or licence condition, but for purpose of investigation by Police into the death of the I-Kiribati Observer on board the vessel. The police investigation into the death of the deceased is said to be “still on-going”.

5. There is no order sought and no order issued by the Court for the continued detention of the vessel Win Far 636 since its arrival in Kiribati. Its continued detention is said to be for the purpose of investigation of the alleged murder of the I-Kiribati Observe on board the vessel.

6. The owner of the vessel instructed Counsel to seek release of the vessel. Attempts were made to release the vessel but were not successful. The owner of the vessel sought to have arrangements made through the Bank to post security as a condition for the release of the vessel. That attempt had also been unsuccessful.

7. It is claimed by the plaintiff, and not disputed by the defendant, that the owner of the vessel was losing money due to the detention of the vessel in Kiribati. The plaintiff has taken out claim against the defendant, claiming damages against the defendant arising out of the detention of the vessel in Kiribati.

Whether the vessel should be released

8. The present application is for an order to release the vessel. The onus is on the plaintiff to show that the vessel should be released. There is no question here that the vessel was never under arrest for any offence against the Fisheries laws or for breach of any conditions of its licence. A ship can only be arrested for a maritime claim under the law (local legislation or any of the International Conventions to which Kiribati is party). In the present case, no breach of a local legislation has been shown nor a breach of an International Convention to which Kiribati is a party. It is therefore not surprising to note that the ship “Win Far 636” has never been arrested nor has it been brought into Kiribati Port under arrest.

9. As the ship “Win Far 636” has not been under arrest under any Order of the Court since it arrived in Kiribati on 7 March 2020, what is the legal position of its detention? The plaintiff’s argument is that the continued detention of the vessel since is unlawful, since no order of the Court for detention has been made and no warrant of arrest has been issued. The defendant’s case is that sections 45(2) and 61 of the Police Powers and Duties Act authorises the police to detain a vessel without Warrant for as long as is reasonably necessary.

10. The vessel “Win Far 636” entered Kiribati Port voluntarily on 7 March 2020 to drop-off the body of the deceased I-Kiribati Observer. Police investigation into the death of the deceased commenced also on 7 March 2020. This was confirmed by the affidavit of Liu Ming Fu sworn-to on 1 May 2020 and the affidavit of Takenibeia Bauro sworn-to on 25 May 2020.

11. It is important to bear in mind the following chronology of events:

“07/03/20 - The police commenced their investigation into the death of the I-Kiribati Observer on board the vessel
“Win Far 636”.

19/03/20 - Dr James Kalougivaki, after examining the deceased’s body, made a Medical Report confirming the cause of death of the deceased as:

(a) Severe intra-cranial haemorrhage and traumatic brain injuries
(b) Due to (or as a consequence of) severe traumatic head injuries
(c) Due to (or in consequence of) blunt force head trauma’.

20/03/20 - Police CID received CCTV footage of the vessel taken from the vessel’s cameras. The CID received the CCTV footage from the officers from the Ministry of Fisheries.

19/03-28/04/20 - Police obtained statements from the members of the ship’s crew.

- The crew members’ Passports were also seized.

20/03-30/03-20 - Dr Kalougivaki obtained saliva samples from the members of the ship’s crew for DNA testing at the Betio Police Headquarters.

04/04/20 - Dr Kalougivaki left for Fiji on special chartered flight with the DNA samples for testing in Fiji.

07/05/20 - Due to 14 days quarantine requirements,
Dr Kalougivaki submitted the DNA saliva samples for testing. It is expected that the results would be available within one or two months from 7 May 2020.

28/04/20 - Kiribati Police requested assistance from INTERPOL.

Beginning May 2020 The evidence obtained including CCTV footage, the crew’s statements, the pathologist’s report and some seaborne documents were sent to INTERPOL.

09/05/20 - Police conducted another search of the vessel, at which time devices were seized. The local IT experts were not able to extract information from the seized devices and so “our option will be to send the devices to our counterparts to extract the evidence and analyse them” for the case.

11/05/20 - Police applied for Search Warrant. The Magistrates’ Court granted the order issuing a Search Warrant on
21 May 2020 to search the vessel”.

12. In relation to the last event, it is obvious that the action taken was to “regularize” the search made by the police without a Warrant before
11 May 2020. The chronology of events shows the extent of the investigation taken by the police regarding the death of the deceased on board the vessel. Clearly the investigation is still going with the result of the DNA tests yet to be completed and received.

13. This application arose as a result of the detention of the vessel for the purpose of investigation into the alleged crime committed on board the vessel. It does not arise from a maritime claim. As such all the arguments about investigation by Ministry of Fisheries, Marine Resources Development into breaches of fisheries laws and fisheries licences are irrelevant. The vessel was not arrested or detained for any maritime breaches. The vessel came into Tarawa Port to drop-off the body of the deceased I-Kiribati Observer.

14. It is therefore important to note that the only reason to detain the vessel is that it is ‘a crime scene’ where the alleged crime was committed. In this regard, in my view, although the vessel is not under arrest for breaking fisheries laws, the police can detain the vessel since an alleged criminal offence is said to have occurred on the vessel which is a crime scene and must be preserved as such. Thus, having determined under section 54(1) that the vessel is a ‘crime scene’ the police can detain the vessel under section 45(2) of the Police Powers and Duties Act without Warrant.

15. There is a catch, however, when exercising the police powers under the Act to detain the vessel pending investigation, in particular where such detention is without an Order of the Court under section 45(2) of the Police Powers and Duties Act. The catch in section 61 of the Act is that the detention must not be any longer than is “reasonably necessary” in view of the fact that the detention is done without an order of the Court.

16. Section 61 of the Police Powers and Duties Act does not define the phrase “reasonably necessary” nor is it defined anywhere in the Act. However, the expression “reasonably necessary” has been the subject of many judicial determinations. What is common in all the cases is that what is “reasonably necessary” depends on the particular facts and circumstances of the case. Such circumstances would include the seriousness of the crime, information (if any) that are known to the police about the alleged crime, and the practical need to have the detention in place so as to properly carry out the investigation into the alleged crime. The Court in R -v- Clayton [2007] 2 S.C.R. 725, 2007 SCC 32 had these circumstances in mind when it said:

“A law authorizing detention is subject to Charter scrutiny. The common law regarding police powers of detention requires the state to justify any interference with liberty based on criteria which focus on whether the interference with liberty is necessary given the extent of the risk and the liberty at stake, and no more intrusive than reasonably necessary to address the risk. In determining the boundaries of police powers, caution is required to ensure the proper balance between enabling the police to perform their duties and the accused’s liberty and privacy interest. The determination will focus on the nature of the situation, including the seriousness of the offence; the information known to the police about the suspect or the crime; and, the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether the nature of the stop is no more intrusive than reasonably necessary”.

17. In Kiribati, the law, such as section 61 of the Police Powers and Duties Act is subject to the Constitution which protects the rights of the individuals. However, the law also recognizes reasonable limits to individual liberty as recognized in section 5 of the Constitution. Section 61 of the Police Powers and Duties Act is one such law which authorises reasonable limits on individual rights.

18. In the present case, and in the circumstances as set out in R -v- Clayton and in the light of the chronology of events set out in paragraph 11 above, the detention of the Vessel “Win Far 636” without Warrant is within the reasonable necessity to enable the investigation into the death of the I-Kiribati Observer on board that vessel to be carried out and completed. It may well be that at the completion of the investigation of the vessel as the “crime scene” in this case, it may no longer be reasonably necessary to detain the vessel any further.

19. For the above reasons, it would not be proper to order the release of the vessel at this stage of the investigation. The application for the release of the vessel “Win Far 636” is refused.

Miscellaneous Application No. 74/20

20. As to the defendant’s application for striking out the plaintiff’s claim brought by way of Notice of Motion, I do not think it is necessary to deal with that application. Pleadings have not yet closed in this case and the plaintiff is entitled to amend its case without leave of the Court.

21. The plaintiff has now amended its claim and has now filed a writ of summons which must now be served on the defendant. The pleadings are to proceed in the usual way.

22. ORDER: The plaintiff’s application for release of vessel is refused.

Dated the 26^th day of June 2020

SIR JOHN MURIA
Chief Justice