Hou v Attorney General [1990] SBHC 28; HC-CC 211 of 1989 (4 May 1990)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 211 of 1989

PETER HOU

-v-

THE ATTORNEY GENERAL

High Court of Solomon Islands
(Ward C.J.)

Hearing: 27 April 1990
Judgment: 4 May 1990

A. Radclyffe for the Plaintiff
P. Afeau for the Defendant

WARD CJ: This is a claim for damages for wrongful arrest and false imprisonment relating to police investigation of the theft of a chainsaw at Pacific Timbers. The plaintiff was taken by the police on 24th February 1989 from Pacific Timbers to Naha Police Station at approximately 11.00 am and kept there in custody until the next day when, at about 9.00 am, he was remanded in custody by a magistrate. Two weeks later he was released when the case was withdrawn by the police.

As originally pleaded, the plaintiff alleged that he was never informed of the reasons for his arrest and that he was not brought before a magistrate until 27th February. The latter was the result, it appears, of a mistake in the police diary of events and so is no longer pursued. The former point has been conceded by the plaintiff in evidence. He told the court that he was informed of the fact and reason for his arrest.

Thus the case is now only concerned with the reasons for the arrest and detention of the plaintiff. Did the police have good reasons to suspect the accused and had they sufficient evidence then to charge and detain him?

The police witnesses told the court that, after the theft had occurred, they had spoken to the appellant and he had denied the offence. They had also searched his house without success.

The reason he was arrested later was because of information received from an informer; a 'source' as the police called him. He was a man of known criminal character who had been supplying information to the police for some time. He had given information that had led to 16 convictions in the Central Magistrates Court and the police considered him very reliable. They agreed that, in order to protect him, they never intended to call him as a witness so his information was in the nature of a lead only and the police would need to find evidence to support the charge elsewhere. One possible source would be the accused man himself but it was clear that he was determined to maintain his denial of any offence despite a number of interviews.

Section 18 (a) of the Criminal Procedure Code gives a police officer the right to arrest, without a warrant, any person whom he suspects on reasonable grounds of having committed a cognisable offence. Having done so, he must by section 20 take him before a magistrate without unnecessary delay.

Mr Radclyffe for the plaintiff suggests that the police here, knowing, as they did, the character and antecedents of the informer, should not have believed him without some other corroboration and, therefore, on his information alone did not have reasonable grounds for suspecting him.

I am afraid I do not agree. In this case the police had information from a source that had proved reliable previously and this gave them reason to suspect it was true this time. As such they had a right to arrest him and, having done so, the delay in bringing him before a magistrate could not be considered unnecessary.

Having said that, I feel the police have acted badly in this case. The information they had received from their informer simply described the accused near the scene on the night of the offence carrying a bag that appeared heavy. The accused, it should be added, lives in the area.

On such evidence, the police would have been wise to seek some further evidence before arresting the accused man. Arrest is a serious interference with personal liberty. It is not something to be taken lightly and, whilst I accept the police felt they had reasonable grounds for suspicion, they must equally have known that, as the case stood, they had insufficient evidence to take it any further.

Having done so, faced with consistent denials of the offence by the accused and knowing they would not call their informant, they then sought a remand in custody. That was an extraordinary step to take. It is unfortunate the magistrate did not examine the reasons a little more closely.

The grounds given were that the police still needed to interview witnesses and that the property had not been recovered. The first ground means nothing. Why should the fact they still have to interview witnesses require a suspect being kept in custody? If it is claimed he may interfere with those witnesses, that would be a different matter but, in such a case, the magistrate should seek details of the basis of such belief.

On the second ground, had the magistrate asked only very basic questions, he would have discovered that the accused's house had already been searched some time before and that there was nothing further to suggest he had the property.

Such a case was clearly one where the accused should have been bailed. As this was a weekend the magistrate had been brought to the Police Station where, I accept, it may be unsatisfactory to enquire properly into the matter. In such a case, the magistrate should never remand a man in custody beyond the next court day so the case may be properly considered.

As a result of the magistrate's decision in this case, the plaintiff spent 2 weeks in custody for an offence the police had to concede they could not start to prove.

This was achieved by the due process of the Criminal Procedure Code and so this action must fail. However that does not avoid the fact that the police sought a remand in custody in such a case and the reasons for that remand leave a suspicion they were hoping, by that, to force a confession out of the accused. Equally, they should, knowing that this man was in custody, have decided before the remand date whether they would ever be able to obtain evidence and withdraw the charge as soon as it became clear they could not.

Claim dismissed. However, I feel the defendants must pay the costs of the plaintiff as it was their action that caused this case.

(F.G.R. Ward)
CHIEF JUSTICE