Kim Kae Jun v Director of Public Prosecutor [1999] SBHC 151; HCSI-CC 423 of 1999 (20 December 1999)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 423 of 1999

KIM KAE JUN AND THE CREW OF THE VESSEL NO. 1 NEWSTAR·

-v-

THE DIRECTOR OF PUBLIC PROSECUTOR &
THE COMMISSIONER OF POLICE

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 423 of 1999

Hearing: 20 December 1999
Interlocutory Judgment: 20 December 1999

J. Katahanas for Applicants

MURIA CJ: This application had been fixed for 9.30 am today for inter partes hearing following last Thursday hearing at which an interim injunction was issued against the Defendants, restraining them and their officers from obtaining or purporting to obtain any statements from the plaintiffs following the plaintiffs’ exercise of their constitutional right to remain silent. At the hearing this morning, no appearance had been made by or on behalf of both defendants, although their offices had been respectively served. The Director of Public Prosecution’s office was served with the interim order at 10.30 am on Friday following the hearing and the Commissioner of Police’s Office was served at about 4.30pm of the same day.

The Court had received no explanation for the non-appearance by the defendants at this hearing. The Court will require such explanation from the defendants as they are both considered to be Officers of the Court and who had or at least their Offices had been served with the Court process in this matter.

Turning now to the application, Mr. Katahanas urged the Court to make permanent the interim order granted on Thursday 16 and dated 17 December 1999. Before I can determine that point, I will briefly set out the circumstances of this case as relayed to the Court now by Mr. Katahanas.

After the hearing last Friday the ship No. 1 New Star together with its Master and crew, except the chief engineer, left. It is not known whether they had already left this Country’s jurisdiction but they certainly had already left Point Cruz Harbour and they have not been seen since Saturday morning. The Court was told that the chief engineer had been left behind in Honiara. The Court was also further told that Peter Bennett, one of the Directors of Mishima Fishery Company Ltd, reported to the Police about the ship leaving the country without authorisation. The ship was said to have left about 7.00 am Saturday 18, and Mr. Bennett was said to have alerted the Police at about 9.30 am that same morning. Search and Rescue Centre had also been notified. Mr. Bennett then attempted to contact Fisheries Department but that was unsuccessful. The Court was not told of any action taken by the authorities to whom reports of the missing vessel were made. But if something had been done there would have been a chance that the vessel would have been apprehended. The ship had now left without paying the security of USD338, 463. 00 or providing the bank guarantee as ordered by the Court. This is a serious concern which those authorities responsible for ensuring the orders of the court are complied with need to be reminded of.

The interim order made by the Court against the defendants on Friday was to safeguard the constitutional rights of the plaintiffs, namely the master and crew of NO.1 New Star. In particular the master, Kim Kae Jun who had been charged with offences under the Fisheries Act was entitled to protection granted under our law. He exercised his right to remain silent when the police wanted to obtain statements from him. He was entitled to exercise that right and the law afforded him protection of his right.

The other crew members had also been approached by the police for the purpose of obtaining statements from them in connection with the alleged fishing activities by the ship. They had taken legal advice. They relied on the protection of the law on the right to remain silent. On application to the Court, the interim order also extended the protection provided by the Constitution to them. The basis for that protection was·that if the police were to obtain statements from those crew members as part of the police interrogation of the master and his crew members then the crew members must also be allowed the protection which the indicted master had enjoyed. The protection provided under section 3 of the Constitution would apply to all of them in those circumstances.

The right to remain silent is constitutional right to which everyone in this country is entitled, citizens or non-citizens alike. Section 3 of the Constitution guarantees the protection of the right to life, liberty, security of the person and the protection of the law. Although not specifically mentioned, that provision, in its broad application, must accord a right to silence to an accused, detained person or a suspected person who is under interrogation. Once such person exercised his or her constitutional right to remain silent he or she cannot be compelled to give his statement to anyone unless otherwise ordered by the Court. Thus to obtain a statement from an accused person or from the others (such as the crew members in this case) who may be “suspected persons” for the purpose of interrogation in respect of the indicted person, after exercising their right to silence would be a breach of the Constitution. The relief granted by the Court for any breach of the Constitution is available against both the State and individual in this country. For those reasons the Court granted the interim injunction against the defendants.

As it was an ex parte application, the Court was not able to hear the defendants’ position on the matter. Hence the interim order was made and the matter was brought back to Court on an inter partes basis this morning so that the Court would be able to hear the defendants’ position.

As it now turns out to be, the master and his crew, except the chief engineer, Mr. Park Sung Dae, left the jurisdiction in breach of the order of the Court made on 10 December 1999. Consequently I do not see any reason why the Court should make the interim order dated 17 December 1999 against the defendants permanent. The master and the crew had flouted the law of this country and no protection in the terms which they sought can be afforded to them. For if they, seek justice, they too must do justice. They failed and they can seek no assistance from the Court in such circumstances.

Mr. Katahanas sought nevertheless that Mr. Park Sung Dae (whom Counsel’s law firm now represents having, with leave of the Court, withdrawn from representing the master and the other crew members) should still enjoy the protection as that enjoyed by an indicted person. I am afraid, there is no evidence to show that the police investigation and taking of statements from him at this stage were part of an interrogation of him as an accused or suspected person. Having granted him interim injunction, he would now have to show that he is claiming his right to remain silent by virtue of a status, namely “accused person” or “suspected person” before this Court can grant him the permanent order which he seeks against the defendants in this case. He fails to do that and so the right he claims cannot be properly said to be available to him.

For those reasons the application for permanent injunction against the defendants is refused. The interim order dated 17 December 1999 granted against the DPP and his officers and the Commissioner of Police and his officers is now discharged.

Order accordingly.

(GJB Muria)
CHIEF JUSTICE