Lapmiemben v Kuso [2009] PGDC 62; DC932 (30 July 2009)

DC932

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DC 100 of 2009

BETWEEN

BILL LAPMIEMBEN
Complainant

AND

MICHAEL KUSO
First Defendant

AND

ROLUTO SECURITY SERVICES, WEWAK
Second Defendant

Wewak: D Susame
2009: 30th July

CIVIL - Assault and Battery committed by a security guard during a search – whether a security guard manning a shop exit has power to conduct a search of a customer departing a shop – consideration of ss. 44, 49 of Constitution, ss. 3, 4 of Search Act 1977 and s.5 of Arrest Act 1977.

Cases Cited:

Collings v. Wilcock [1984] 3 All ER 374
Dalin More v. The State [1998] PNGLR 290
David Michael v Dennis Marus unreported N3374 of 30th May 2008

Counsel:

The complainant representing himself
The Defendants representing themselves

17th August 2009

DECISION

D Susame: Time and again we have heard many complaints from members of the public concerning searches that are conducted of individuals leaving shops by security guards. Concerns have been echoed against these searches which they say are illegal or unlawful. This is such a case. The complainant has commenced this proceedings after he was searched (a search he claims to be unlawful and in violation of his Constitutional Rights) at a particular stationary shop in Wewak. The incident happened on 6th March 2009. Instead of enforcing his particular rights that were infringed the complainant is seeking damages for assault and battery committed on him when he was searched of his person.

FACTS

The first defendant is employed as a security guard by the second defendant, a security firm which is providing security services at More Stationary Shop, Wewak. The first defendant was manning the main exit door. The complainant who is the Chairman of the Board of Management of Kusambuk Primary School, Yangoru proceeded out of the main exit after purchasing materials for the school. The first defendant, as it is claimed reached out and grabbed the sling of the complainant’s string bag and forcefully pulled the bag towards him to search it. The impact of the pull caused the complainant to lose balance and stumble. To avoid falling the complainant removed the bag from his neck and gave it to the first defendant to search it. After searching it he returned the bag to the complainant. The complainant obviously not happy questioned the first defendant why he did an unlawful search of his bag. The first defendant had replied it was his job to search every customer leaving the shop. The complainant responded he would seek legal advice and take the matter to court which he now does.

LAW OF TORT ON TRESPASS TO PERSON

At common law of tort an action for violation of a person’s body may be found on the tort of trespass to person. That action is based on the principle that every person’s body is “inviolate” (see Collings v. Wilcock [1984] 3 All ER 374 at p.378.

“Trespass to the person may take the form of either assault, which is threatened assault or battery which is actual infliction of harm by unlawful physical contact with the person’s body.” (His honour Injia j in Dalin More v. The State [1998] PNGLR 290

In David Michael v Dennis Marus unreported N3374 of 30th May 2008 His honour Cannings j precisely laid out three essential elements which must be found in an action for tort of trespass to persons. These are: 1. the defendant violated the plaintiffs body by threatening to harm (assault) and/or actually physically harming him; 2. Defendant acted intentionally; 3. Defendant acted unlawfully without lawful justification or excuse.

LAW OF SEARCH AND ARREST

Generally no person, citizen or non citizen shall be subjected to search of his person or personal property or premises by police or security guards or anyone for that matter unless authorized by law or by an order of a court. That basic right is guaranteed to everyone in this nation under the constitution which is the supreme law of our nation. (see ss.44 and 49)
The Search Act ch. 341 is the principle Act that regulates the basic rights under ss. 44 and 49. The Act amongst other things spells out circumstances searches may be conducted of persons, property or premises with or without a search warrant; how searches may be conducted of persons by those persons authorised to conduct a search. (see ss. 3 and 4 )

Section reads:

“3. CIRCUMSTANCES WHERE PERSONS MAY BE SEARCHED.

(1) Where a policeman believes on reasonable grounds that a person has in his possession–

(a) anything that has been stolen or otherwise unlawfully obtained; or

(b) anything used or intended to be used in the commission of an indictable offence,

he may stop and search that person in accordance with Section 4 and, where applicable, exercise the power of seizure under Section 10(1).

(2) Subject to Section 4, where a policeman believes on reasonable grounds that it is necessary to do so, he may, at the time of arresting a person, search his person, the clothing he is wearing and any property under his immediate control–

(a) for the purpose of ascertaining whether he is concealing a firearm or other offensive weapon; or

(b) for the purpose of preventing the loss or destruction of evidence relating to the offence for which he was arrested, and, where applicable,

may exercise the power of seizure under Section 10(2).

(3) Where a person in lawful custody is to be detained in a place of confinement he may, immediately before he is so detained, be searched at that place of confinement by a policeman or a member of the Correctional Service, as the case requires in accordance with Section 4, who may, where applicable, exercise the power of seizure under Section 10(3).

(4) The owner of a craft or a person in command of a craft or a person authorized by either of them or a policeman may in accordance with Section 4, search a person intending to board the craft and, where applicable, may exercise the power of seizure under Section 10(3).

(5) Where a person in command of a craft suspects that a person on board the craft constitutes a danger to the safety of the craft he may, or persons authorized by him may, search that person in accordance with Section 4 and, where applicable, may exercise the power of seizure under Section 10(4).”

The provision makes no mention of a security guard except a policeman, a warder and those other persons mentioned in subsections 4 and 5. Does that mean a security guard who is manning a shop against theft has no power at all to search a person? Many people are of the view that a security guard does not have any power to do so under the Act. I do not necessarily agree. A security guard does have power to conduct a search of a person but ONLY when he or she is executing a citizen’s arrest under section 5 of the Arrest Act ch. 339 which states:

“5. ARREST WITHOUT WARRANT BY MEMBER OF THE PUBLIC.

Subject to any requirements imposed by the law creating the offence, a person, other than a policeman, may, without warrant, arrest a person whom he believes on reasonable grounds–

(a) is committing; or

(b) has committed,

an offence for which the penalty is imprisonment.”

The guard’s power to conduct a search of a person at a shop is limited only when affecting arrest of a person who is committing or has committed an offence. A guard or a policeman for that matter does not have wide powers to conduct a search of every person who leaves a shop. Every individual has the freedom to move about in and out of a shop at anytime without being arbitrary searched of their persons or properties or being intruded of their right to privacy. These basic rights are guaranteed to us all under the constitution. The only time an individual can be searched is in consequence of being arrested for committing an offence in the shop. The search of course must be conducted with decency and with reasonable force as stipulated under section 4 of the Search Act.

There is one basic issue for deliberation which the whole case hinges on and that is whether the search conducted of the complainant was lawful?

EVIDENCE

The court has heard evidence from the parties. The complainant relied on his own testimony and testimonies of his two witnesses who happen to be at the scene of the incident and saw all that occurred. Their evidence is basically similar. As the complainant was passing through the main exit the first defendant reached out and pulled the string bag toward him to search it while the bag was still hanging down from the complainant’s neck. The tugging of the string bag caused the complainant off balance and to avoid falling he removed the bag and handed it to the first defendant who searched it and returned it to the complainant. Humiliated and disgusted the complainant questioned the first defendant if he had stolen anything to be subjected to search. The first defendant had responded it was his job to check customers and was acting under his boss’s instructions.

The first defendant did not have any witnesses but relied on his own testimony. He stated he was manning the main door while his other colleague was inside the shop keeping an eye on customers. He admitted searching customers departing the stationary shop that particularly day. But, he denied searching the complainant. He said he asked to search the complainant’s string bag and complainant unwillingly with some dissent removed it from his neck and threw it at him. He said he was shocked by complainant’s action. He just looked inside the string bag. The complainant asked why he had searched his bag as he was a big man. The first defendant replied it was his duty to search customers and return the bag to the complainant.

FINDING

Weighing the evidence on the scale I am inclined to accept the complainant’s evidence as more convincing. The court accepts that apart from other customers the first defendant did conduct the search of the complainant’s string bag. The first defendant in deciding to conduct the search of the complainant had pulled his string bag which was still hanging down his neck in front. The tugging of the string bag forced the complainant off balance almost sending him falling. The complainant being disgusted in the manner he was treated and searched immediately raised his dissent and questioned the first defendant what right he had to search him when he had not stolen anything.

Under the circumstances the search conducted of the complainant’s string bag was without justification and unlawful. No alarm has been raised by any staff member of the shop or the other guard that the complainant had been detected attempting to steal or actually stealing an item and putting it inside the string bag. From the evidence there was nothing concrete about the complainant’s behaviour that would have created a reasonable ground or suspicion for the first defendant to justify the search of the complainant. It is simply not enough for the first defendant to say it was his duty to search customers as his boss has issued instruction for him to do so. Whether his boss or the owner of the shop likes it or no a guard deployed in a shop has no wide powers to conduct a search of every individual that enters and leaves the shop. The law is clear.

The conclusion reached from the fore going discussions is that the search was unjustified and unlawful under the circumstances. In performing the unlawful search the first defendant has committed assault and battery on the complainant. Under the principle of vicarious liability the second defendant company is liable to pay damages for the wrong committed by its employee.

Accordingly, judgment shall be entered for the complainant with assessment of damages to be considered at a later date.

_______________________

Lawyer for the Complainant: Nil
Lawyer for the Defendants: Nil