Regina v Yow [2016] SBHC 107; HCSI-CRC 207 of 2016 (10 May 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Jurisdiction

CRC. No. 207 of 2015

Regina v. Collin Tuck Fook Yow

Date of hearing: 9^th May 2016
Date of Judgment: 10^th May 2016

Florence J for the Applicant
Kwaiga L for the Respondent

Ruling on Application to Stay Orders of the Magistrates Court

Kouhota PJ:

Introduction

On the 30^th April 2016, police obtained a Search Warrant to search Mr Collin Yow’s room at the Heritage Park hotel. The search warrant was executed the same day. The search warrant specifically authorised police officers to search for;

1. Laptops/computers/electronic work or storage devices,
2. Personal or mobile phones,
3. Bank cards/credit cards or debit cards,
4. Any relevant documents/items, found therein relating to the allegation.
   

The allegation was that Mr Collin Yow has misappropriated millions of dollars belonging to Solomon Islands Ports Authority (SIPA). Mr Yow has recently been terminated as the Chief Executive Officer of the SIPA and has made headlines in the local media.

The search warrant was executed at Mr Yow’s room at the Heritage Park Hotel where he resides. The properties seized included laptops, mobile phones and other electronic devices. At the time of search, his wife Mrs Helen Yao was present in the room and claimed that some of the properties the police want to seize were her personal properties. The properties however, were eventually taken by the police. The items claimed by Mrs Hellen Yow as her personal properties include,

1. One black Lenova laptop,
2. One silver apple Ipad,
3. One apple mini ( green cover),
4. One Samsung mobile ( white),
5. One white Samsung mobile phone with black leather cover.
   

All other properties seized are recorded on a standard RSIP form titled ‘Property Seized Record’ Annexure 2 to the sworn statement of Constable Amos Mebunir filed in support this application.

On the afternoon of the same day the police executed the Search Warrant and seized properties from Mr Yow’s room at the Heritage Park hotel. Mr Kwaiga, counsel for Mr Yow and Mrs Yow made an ex-parte application to the Magistrate’s Court to have the items which Mrs Yow claimed as her personal properties to be returned to her. The application was heard by Magistrate Esther Lelapitu. Magistrate Lelapitu’s orders were in the following terms;

“Upon hearing Mr Kwaiga of counsel for the claimant ex-parte application on 30^th April 2016 and having considered the material filed in the proceeding in support of his oral application, it is hereby ordered that;

1. That the 1^st and 2^nd respondent immediately search the properties belonging to the claimant Applicant’s wife namely Hellen Yow.
   
2. Subject to order 1 above, the properties of the claimant’s wife be returned by the 1^st and 2^nd respondent forthwith.
   
3. The terms of Order 1 and 2 above shall remain in force until further orders of this Court.
   

This is an application to stay the ex-parte order issued by Magistrates Esther Lelapitu dated 30^th April 2016.

Section 101 Criminal Procedure Code states, where it is proved on oath to a Magistrate or Justice of the peace that in fact or according to reasonable suspicion anything upon, by or in respect of which an offence has been committed or anything which is necessary to the conduct of an investigation into an offence has been committed or anything which is necessary to conduct an investigation into any offence is any building, ship, vehicle box, receptacle place, the Magistrate or Justice of the Peace may by warrant authorise ... a police officer or any person named in the warrant to search that place. Section 104(1) of the Criminal Procedure Code provides that anything seized as result of the execution of a Search Warrant shall be brought before a court and it may be detained until the conclusion of the case or the investigation, reasonable care must be taken for its preservation.

There are two errors in how this matter has been dealt with. First, there is no evidence that the properties seized were brought before a court as required by section 104(1) CPC. Secondly, it seems that the application by counsel for the respondent was made as a separate application outside of the provisions of CPC relating to search warrants and seizer. Counsel stated in Court that had the Police comply with the provisions of section 104 (1) of the CPC, he would have made the application then. The consequence of these errors are that the detention of the properties seized was illegal as section 104 (1) of the CPC was not complied with and second, the Magistrate acted ultra-vire when she entertained the application by counsel for the respondent and made the orders which were the subject of this application. The orders were made without legal basis. The powers or jurisdiction of Magistrates are provided under the Magistrate’s Court Act. The Magistrates Court is a creature of Statute hence its powers are confined within the Statutes. It does not have inherent jurisdiction to make orders not provided for by Statute. In view of this, the order of the Magistrate to search the properties of Mrs Helen Yow’s made on 30^th April, 2016 are made without legal basis and therefore are invalid. It follows therefore that Orders 2 and 3 which are subject to Order 1 are also invalid.

The properties seized by the police on 30th April from Mr. Collin Yow’s room at the Heritage Park Hotel were seized as a result of the execution of a search warrant issued under section 101 of the Criminal Procedure Code and not the orders of Magistrate Esther Lelapitu, made on 30th April 2016 which I have found to be invalid as they are made without legal basis. As the properties were not seized under Magistrate Esther Lelapitu’s orders made on 30th April 2016, they are not affected by Orders 2 and 3 of the same order.

Having found that Magistrate’s orders are invalid, it is not necessary for this Court to make any orders on this application, as an order for stay could only be made if there is a valid order in existence. In the present case, there is none.

In the circumstances, no order could be made to stay the orders of the Magistrate but in the interest of justice, I make the following orders,

1. The order of the Magistrate Court made on 30^th April 2016 be brought to this Court and quashed.
2. Police are ordered to bring the items seized under the Search Warrants to the Magistrate’s Court, to comply with section 104(1) of the Criminal Procedure Code within the next 48 hours. Any applications regarding the detention or release of those items could then be made at that stage.
   

The Court

Emmanuel Kouhota

Puisne Judge