Application by Sheng and Application by Chee [1993] PGNC 100; [1993] PNGLR 105; N1145 (17 February 1993)

N1145

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE CONSTITUTION SS 44 AND 57 AND
IN THE MATTER OF THE APPLICATION OF CHAI CHEN SHENG AND
IN THE MATTER OF THE APPLICATION OF KIANG CHIN CHEE

Rabaul
Doherty J

17 February 1993

CONSTITUTIONAL LAW - Powers of search in Fisheries Act are subject to s 44 Constitution - Powers to search should be interpreted to uphold the spirit of the Constitutional freedom from arbitrary search - Whilst the National Court has power to interpret and enforce Constitutional rights, ultimate power of interpretation is vested in the Supreme Court.

CONSTITUTIONAL LAW - Constitutional litigation - National Court could interpret and enforce Constitutional rights - National Court has no interpretative role of declaring statutes contrary to s 38 Constitution.

CONSTITUTIONAL LAW - Pre-independence statute subject to Constitution - Strict interpretation of statute to conform with Constitution.

EVIDENCE - Illegally obtained evidence - Order of non-admissibility.

Facts

The applicants sought a declaration that a search for documents and papers on board a fishing vessel without a warrant was in breach of the constitutional right of freedom from arbitrary entry and search; and that the powers of entry and search under s 9 of the Fisheries Act Ch 214 was unconstitutional as it did not conform with ss 38 and 44 of the Constitution.

Held

1. Section 44(a)(v) of the Constitution applies to the Fisheries Act.

2. The powers vested by the Fisheries Act on an officer are wide and should be strictly interpreted to avoid the legislation being unconstitutional.

3. The powers of search are limited to those things specified in the s 9 of the Fisheries Act.

4. Whilst the National Court has powers to interpret and enforce constitutional rights, ultimate powers to give some of the declarations sought are vested in the Supreme Court.

Cases Cited

Alex v Golu [1983] PNGLR 117.
Chern Jin Fa v Nanura [1990] PNGLR 506.
Komidese v Kuabaal [1985] PNGLR 212.
PNG Ready Mixed Concrete v The State [1981] PNGLR 396.
Re Jacob Prai [1979] PNGLR 42.
SCR No 1 of 1981 [1981] PNGLR 151.
SCR No 2 of 1980 [1981] PNGLR 50.
State v Embogol (1977) unreported N91.
State v Iga [1990] PNGLR 146.
State v Painke (No 2) [1977] PNGLR 141.

Counsel

F Damen, for the State.
J Reeves, for the applicants.

17 February 1993

DOHERTY J: These cases were not argued together but the arguments relating to one were adopted in total by counsel in the other once counsel for the plaintiffs in the first case indicated they were not pursuing their arguments under s 37 of the Constitution.

I will, therefore, consider the law relating to the cases together.

Both matters relate to the application of s 44(a)(v) and, possibly, s 53 of the Constitution to the Fisheries Act Ch 214. As counsel have noted and submitted, I raised the provisions of s 18 of the Constitution before and during the hearing. Am I bound by s 18 to refer the matter to the Supreme Court? The declarations and orders sought are:

(a) a declaration that the search and entry of F.V. Shing Tai Sheng 33 and F.V. Kaiser 103 and related seizure of documents and records by Gisa Kamingan was illegal and in breach of the applicant's rights under the Constitution;

(b) an order that the documents seized and detained by the said Gisa Kamingan be returned forthwith to the applicant;

(c) a declaration that such documents and copies of them, being illegally obtained, are not admissible in evidence in any prosecution against the applicant by the said Gisa Kamingan alleging contravention of the Fisheries Act Ch 214.

(d) a declaration that the Fisheries Act Ch 214 is not an act which complies with s 44(a) of the Constitution.

(e) a declaration that the Fisheries Act Ch 214 is not an act which complies with ss 44(b) and 38 of the Constitution.

(f) a declaration that any power of search and entry and, in particular, the powers of seizure and detention under s 9(d) of the Fisheries Act Ch 214 are unconstitutional.

The first three are specific to the applications and the circumstances arising to the applicants' situation. The latter three are general, regarding whether the Fisheries Act and some of the provisions and powers therein offend against provisions of the Constitution.

The applicants seek to enforce the right of freedom from arbitrary search and entry in s 44 of the Constitution through s 57 of the Constitution. The facts giving rise to these applications are as follows:

F.V. Kaiser 103 - Chai Chen Sheng, a Taiwanese national, is captain of the vessel. On 22 November 1992, a crew member fell overboard and was drowned. Where exactly this happened, I do not know; but after the body was recovered, the vessel travelled to Rabaul intending to arrange to land and transport the body home. Formalities with customs, health department, and quarantine were completed in Rabaul.

On 25 November 1992, a person came on board the vessel. He was not dressed in anyway distinguishing him from any other member of the public nor did he have an identification card or document showing his identity. He did not have a search warrant. The captain had no common language with the person who came aboard, and it was another crew member who informed the captain that the person was from the Department of Fisheries. It subsequently was learnt that the man was Mr Gisa Kamingan. Despite protests, Mr Kamingan conducted a search of the vessel and removed various documents. The captain protested. He says Mr Kamingan undertook to return the documents the next day. They have not been returned. Instead, the captain, Chai Chen Sheng, has been charged with an offence of having in his charge a foreign boat for taking fish without having a licence in force under s 6(2)(a), a charge laid under s 12(1)(c) of the Fisheries Act Ch 214.

The prosecutor purported to adduce evidence against the applicant by way of charts taken during the search. What use was intended with other documents, e.g. log books and crew lists, or passports in the other case, is not apparent at all from the facts.

F.V. Shing Tai Sheng - the ship came into Rabaul to collect supplies. The Rabaul agent was contacted and clearance obtained. The ship arrived on the night of 4 November 1992 and completed customs formalities the next morning. That same day, a customs officer and Mr Kamingan came on board and inspected the fish wells. Thinking all was in order, the ship left; but it was arrested for failing to clear customs properly. There was a scuffle over some shark fins between the crew and customs. The crew pleaded guilty to all charges arising from this. Mr Kamingan again came on board and again seized various papers and documents. He charged the master with fishing without a licence.

I am presuming for the purposes of this application that Mr Kamingan was an "officer", as provided in the interpretation provisions of the Act. There is no evidence to show his actual status before the court. Was he a public servant appointed under the interpretation provisions of the Fisheries Act? If he was so appointed, why did he not present any identification to this effect? However, these are matters not immediately before me as the applicants apply for declarations enforcing constitutional rights as set out above.

The importance of regulating fishing, the conservation of fish and the protection of marine species and the protection of resources within territorial seas are matters which have attracted great publicity and consciousness throughout the world in the past decade.

The Fisheries Act Ch 214, a pre-Independence act re-enacted on Independence, states it is "An act relating to fisheries".

Section 9 gives wide powers to an "officer". These include, inter alia:

"(a) board or enter on a boat that he has reason to believe has been used, is being used or is intended to be used for fishing, and search the boat for fish and for equipment used or capable of being used for fishing; and

(b) enter and search any vehicle, premises or place:

(i) in or on which he has reason to suspect that evidence of an offence against this Act may be found; or

(ii) that it is necessary or expedient to search to ascertain whether this Act is being or has been complied with; and

(c) examine any equipment that is found in or on any boat, vehicle, premises or place, being equipment that he has reason to believe has been used, is being used or is intended to be used for fishing; and

(d) seize, take, detain, remove and secure any fish, boat, net, trap or equipment that he has reason to believe has been taken or used, is being used or is intended to be used in contravention of this Act; and

(e) arrest, without warrant, a person whom he has reason to believe has committed an offence against this Act; and

(f) require the master or other person in charge of a boat that he has reason to believe has been used, is being used or is intended to be used in contravention of this Act:

(i) to bring the boat to a place in the country specified by the officer; and

(ii) to remain in control of the boat at the place until an officer permits him to depart from that place; and ...

(j) require the master or other person in charge of a boat in respect of which a licence under this Act is required to produce the licence for the boat (and he may take copies of, or extracts from, the licence)".

On the question of powers of this Court relating to constitutional interpretation, I have been referred to State v Painke (No 2) [1977] PNGLR 141, where Frost CJ held:

"Section 18(1) of the Constitution confers exclusive jurisdiction on the Supreme Court as to any question relating to the interpretation or application of any Constitutional law. But both counsel agreed that as that section is expressed to be subject to the Constitution, and as under ss 57(1) and 22 it was envisaged that such a question fell within the jurisdiction of both the National Court and the Supreme Court, there was no requirement to refer to the Supreme Court any question relating to the application and interpretation of s 37(3). I consider this view to be correct. It does not seem to me possible for the National Court to exercise its jurisdiction under s 57(1) and (3) to make an order which is necessary for the protection of a Constitutional right or freedom unless that Court both interprets and applies the relevant Constitutional provision."

Counsel for the applicant quotes also from Re Jacob Prai [1979] PNGLR 42; State v Embogol, unreported N91, and PNG Ready Mixed Concrete v The State [1981] PNGLR 396.

I consider that the National Court does have powers to consider and interpret the Constitution. A further example is Komidese v Kuabaal [1985] PNGLR 212, where the National Court interpreted a provision s 37(20) and enforced rights under s 37 of the Constitution. However, counsel for the applicant goes further and seeks a declaration relating to s 38 of the Constitution. If one looks at the case law submitted by counsel and other such cases (in particular those dealing with detention), the National Court enforced rights or interpreted and applied provisions of the Constitution but did not take the next step of striking down or declaring a law or part thereof unconstitutional or invalid. If consideration is given to the cases where such declarations were made after referral under s 18(2) of the Constitution, eg SCR No 1 of 1981; Re Inter-Group Fighting Act [1981] PNGLR 151 or SCR No 2 of 1980; Re s 14(2) of Summary Offences Act [1981] PNGLR 50, as opposed to those hypothetical referrals under s 19, it will be noted they are made by the Supreme Court.

Section 18(1), preceded with the provision "subject to this Constitution ...", gives interpretative powers to the Supreme Court "to the exclusion of other courts". Laws are made by the Parliament representing the will of the people. Whilst the National Court, being a single judge, can and does interpret and enforce constitutional rights, I do not consider it so within the jurisdiction to take a further interpretative role of declaring certain laws contrary to s 38 of the Constitution, which interpretative role is vested in the supreme judicial body, the Supreme Court.

Hence, despite what appears to be a consensus on the part of both counsel, I do not consider I have powers to make the declarations in (d), (e), (f). Since these involve important rights and powers, I will refer them to the Supreme Court should either or both counsel so wish.

However, I have no reservation, and it is the consensus, that I have the jurisdiction to make interpretations and apply the provisions of relevant sections of the Constitution to the case before me.

The applicants seek to enforce the freedom from arbitrary search per s 44 of the Constitution. It is within Division 3 of Part III of the Constitution, and it is not disputed that it is a right that applies to all persons within the jurisdiction.

The section provides that no person shall be subjected to search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law. The entry laws specifically provided for by the Constitution include by court order, under a warrant, for a public purpose of inspecting for a rate or tax, for maintaining of public health and safety etc. These provisions are not directly applicable to the case before me, and both counsel agree that if the provisions of search provided by s 9 of the Fisheries Act are not to offend s 44, they must be powers falling under s 44(a)(v). This relates to a law with the purpose of inspecting or taking copies of documents relating to the conduct of a business, trade, profession or industry in accordance with a law relating to that business, trade, industry or profession.

Mr Damen, for the State, says further that s 44 is not the relevant provision at all as it relates to entry and search, but the complaint relates to the seizure and detention of property, that is, the papers and documents.

In considering the powers under s 9 of the Fisheries Act vis a vis the Constitution, I consider the section should be interpreted so the spirit of the law giving freedom from arbitrary search in the Constitution is honoured.

If one contrasts the wide powers of any officer of the public service authorised by the Minister under the Fisheries Act with the more limited powers of the police, who are members of a disciplined force, the need for circumspection is apparent. As Kapi DCJ said in Alex v Golu [1983] PNGLR 117 at 120: "The police have no right to enter a house and seize property. This is the very reason for the right under s 44 of the Constitution. They can do this, i.e. enter a house, under the exceptions provided for under s 44 of the Constitution and the Search Act 1977." I adopted this ruling with respect in State v Iga [1990] PNGLR 146. Such wide powers should be strictly interpreted to ensure the freedoms, spirit, and letter of the law are maintained.

I consider, and it is not disputed, that the Fisheries Act is an act regulating an industry. Hence, the law must be for the purpose of inspecting documents relating to the conduct of the industry or taking copies of those documents.

The powers under s 9 of the Fisheries Act are to board or enter a boat that the officer has reason to believe has been used or is intended to be used for fishing and search for fish and for equipment used or capable of being used for fishing.

On the evidence before me, I cannot ascertain what reason Mr Kamingan had to believe the vessel had been used or was intended to be used for fishing other than the very obvious name (F.V. meaning fishing vessel) and, possibly, its external appearance (I have no evidence concerning that), but he could only have had a constitutional right to enter if such a reason existed. Presuming he had such a reason, then he was empowered to enter.

Once he had entered, his powers to search the boat are limited to a search "for fish" and "equipment used or capable of being used for fishing". Once he goes beyond those items, the search is not authorised by law. It becomes an arbitrary illegal search in contravention of the Constitution.

The items Mr Kamingan took did not by any stretch of the imagination come within the definition of fish in the Fisheries Act.

Did they then come within "equipment used or capable of being used for fishing"? Equipment used or capable of being used for fishing is not defined by the act. I am referred by both counsel to the decision of Los J in Chern Jin Fa v Nanura [1990] PNGLR 506, where the word "equipment" in s 9(d) of the Fisheries Act was considered. It would appear that the constitutional provisions of search and entry were not submitted on or considered by His Honour in that appeal.

I note that s 9(d) refers to "equipment" preceded by the words "fish", "boat", "net", "trap"; hence, the arguments on the ejusdem generis rule of interpretation. Section 9(a) is not so general. It refers to "equipment used or capable of being used for fishing".

The things taken in the search (other than the shark fins and the cigarettes) were papers, documents, books. They were not capable of use in fishing. A person could not put a paper into the sea and secure a fish with it.

To adopt Los J's analogy, "any unspecified 'equipment' must be capable of helping the fishermen to look for fish and enable them to catch fish".

The things taken were not equipment in that sense; they were papers, books, crew lists written on paper, documents. The section must be read in the light of s 44 and subject to its restriction.

Further, there is no evidence that these papers are "things used by fishermen when fishing", again adopting Los J's words. The "equipment" in s 9(a) is restricted by the words I have quoted, whereas "equipment" in s 9(d) is not so restricted; but I consider that it would be frustrating the intent of the act to overly stress this point.

I consider that the officer had no power or right to search for the papers he did search and seize. Even if he did have power to search for papers and documents, the power in s 44(a)(v) is to inspect documents and to take copies. These documents were detained despite an undertaking to return them. There is no power in s 44(a)(v) to go beyond inspecting and copying. Counsel for the State says the real complaint of the applicants is the detention, and that relates to s 53 of the Constitution. There may be some merit in this, but I am satisfied that the search as carried out by Mr Kamingan was an arbitrary and unconstitutional one in which he overstepped the powers conferred on him.

If the whole powers vested by the Fisheries Act are now thrown into doubt, then it is the over-zealous and high-handed execution of his powers that caused it.

This court has power to grant remedy for breaches of constitutional rights. I look to Alex v Golu (supra) for such a precedent. I consider the documents, papers, and books taken were taken illegally. They are to be returned. Being illegally obtained, they may not be used in evidence against the applicants.

_____________________

Lawyer for the State: Public Prosecutor.
Lawyer for the applicants: Warner Shand.