Bintan Mining Solomon Islands Ltd v Attorney General [2019] SBHC 23; HCSI-CC 286 of 2018 (20 March 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Bintan Mining SI Limited v Attorney General
Citation:
Date of decision:	20 March 2019
Parties:	Bintan Mining SI Limited v Attorney General
Date of hearing:	7 November 2018
Court file number(s):	CC 286 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:
Order:	The court hereby declares that the second Search Warrant was issued in contravention of S.101 of the CPC. Conjunction order 1, court hereby makes an order that the Second Warrant be removed to his honourable court and be quashed Court hereby order that the Defendant returns all the properties seized during the execution of the second Search Warrant forthwith to the claimant Compensation and damages are awarded to the claimant to be assessed Order is hereby granted restraining the Defendants or their respective servants and agents from inspecting or otherwise dealing with the documents seized pursuant to the second Search Warrant until further or earlier order. Order is hereby made requiring the Defendants to deliver up the documents seized pursuant to the second Search Warrant to the Registry of the High Court until further or earlier order. Cost of this application is payable to the Claimant by the Defendants.
Representation:	Mr. J Ivanisevic and M. W Togamae for the Claimants Mr. F Hollison for the First and Second Defendants
Catchwords:
Words and phrases:
Legislation cited:	Criminal Procedure Code, s101, Penal Code, s91,
Cases cited:	Rano v Commissioner of Police, Chede v Attorney General, SINPF v Attorney General

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 286 of 2018

BINTAN MINING SI LIMITED
Claimant

V

ATTORNEY GENERAL
First Defendant
(Representing Detective Sergeant Michael Alumvolomo and the Police Commissioner)

ATTORNEY GENERAL
Second Defendant
(Representing Magistrate Emily Zarariko Vagibule)

Date of Hearing: 7 November 2018
Date of Ruling: 20 March 2019

Mr. J Ivanisevic and M. W Togamae for the Claimants
Mr. F Hollison for the First and Second Defendants

RULING ON APPLICATION FOR INTERLOCTORY ORDERS.

FAUKONA J: The Claimant is a company incorporated in Solomon Islands, and is a holder of mining lease ML 01/14, to undertake mining activities on Rennell Island.

2. On 15^th August 2018, Sgt Michael Alumvolomo, confirmed by Police officers, attended the Claimant’s office at Hyundai Mall, Honiara, to execute a Search Warrant issued under the hand of Magistrate Mrs Vagibule of the Central Magistrates Court, Honiara.
3. There were two Search Warrants issued. One was by the Principle Magistrate Mr Seuika and the other was by the Second Class Magistrate Mrs Vagibule.
4. The major ground upon which the Search Warrants were sought, was that Police had reasonable suspicion that certain public officers were paid by the Claimant for the period between 2014 and 2018. Therefore it is relevant and necessary to obtain copies of the payment vouchers used and kept in the possession of the Claimant.
5. Sergeant Alumvolomo having equipped with an application for a Search Warrant, and an affidavit in support often referred to as ground to Search Warrant, seek an audience with the Principal Magistrate Mr Seuika and eventually obtain the first order for a Search Warrant on 15^th August 2018, in the morning.
6. Sergeant Alumvolomo and other Police Official then proceeded to Hyundai Mall to execute the Search Warrant upon the claimant's office, and demanded production of those documents implicated by the warrant. Unfortunately, after some discussions, it was realized that the Search Warrant did not name the Claimant but a rival entity known as Bintang Borneo. Sergeant Alumvolomo and his police officers then returned.
7. I noted there is evidence that the Claimant did not consent to the search of its office, even on the first occasion. It was clear that Police had conceded their execution of the first Search Warrant was invalid, hence left and obtained the second one.
8. By conceding meant the first Search Warrant was wrong in form, addressed to a wrong party, hence was invalid and the Defendants should be liable for damages. I must, therefore award damages to the Claimants against the Defendants.

Second Search Warrant

9. It would appear the argument by the Defendants premise on the fact that the Search Warrant was validly issued. Upon that argument emerged the issue of whether the Search Warrant was validly issued? And whether those acts were done under the authority of law or not.
10. S.9 of the Constitution attributes that except with his own consent, no person shall be subjected to the search of his person or entry by others on his premises. And subsection (2) states nothing contained in or done under the authority of any law shall be held, or be inconsistent with, or contravention of this section, to the extent that the law in question makes provision, or 2 (c) for the purpose of authorising the entry upon any premises for the purpose of preventing, or detecting criminal offenses and except so far as that provision, or as the case may be, anything done under the authority thereof as shown not to be reasonably justifiable in a democratic society.
11. Indeed the Claimant did not consent to the search of its office or its property being taken and detained by police.
12. With no doubt, the discretionary power of the Magistrate to issue a Search Warrant is enshrined in S.101 of the Criminal Procedure Code (CPC). However, that provision emphasized a number of elements. Each must be satisfied in order to enliven the discretion, otherwise a Search Warrant cannot properly be issued by the Magistrate. If a Search Warrant is issued where the limbs are not satisfied, the Search Warrant is ultra vires and is of no effect.
13. The major argument profess by the Defendants is that there is no unusuality in form, all the relevant facts had been supplied in the information including the exposition of the offence, and the relevant section in law directly connected between the Search Warrant, the application, and what the police sought to further their investigations. The Counsel then refers to the case of Rano v Commissioner of Police^[1].
14. Two significant aspects of S.101 pointed out by the Counsel for Claimant are, one that the incorporated date of Claimant was 29^th April 2004. It was an incorrect date. It was a date where another company was incorporated. I noted that to be true from the documents attached to Ms. Willie’s sworn statement filed on 16^th August 2018. Should the Defendants wish to maintain the integrity of the form, then there should be an application to vary the date of registration of the Claimant’s Company. Meanwhile, there was no variation and the registration still refers to another different company which had mining interest and connection.
15. Secondly, the requirement under S.101 vested an obligation upon the Police Officer to whom the Search Warrant was issued, that whatever seized be taken to the issuing court. In the current case, there is no evidence this requirement had been complied with.
16. By virtue of the two failures identified, would the Searched Warrant still be valid. It may be valid when it was granted but if the law required that whatever seized be dealt with in a manner set out by the statute, any noncompliance will render the Search Warrant ineffective.
17. It must be noted the Defendants, role as define was the full compliance with the processes in terms of documentation, expression of the law and formal application, all must in order, before the warrant issued is valid.
18. However, despite the process may be in order, the Claimant asserts that there was an error on the face of the record. Error amplified here simply referred to as lack of evidence available before the Magistrate to form a “reasonable suspicion” that an offence known in law has occurred and that there is evidence related to anything in connection available at the Claimant’s office.
19. This boils down to the requirement of law which upon proof on oath by way of evidence, that Police had reasonable suspicion that an offence of corruption had been committed, and that the payment vouchers could be necessary documents in the possession of the Claimant, connected with offence, therefore warrant issuant of the Search Warrant.
20. The words “reasonable suspicion” of having committed a criminal offence under the law is a requirement that Police must have reasonable suspicion that the Claimant and other Public officers committed corruption. Mere suspicion is not enough. The suspicion must be a reasonable one. In other words, the suspicion must be based on reasonable grounds^[2]. Having consulted English authorities and the wording of the English legislation His Lordship Palmer (as he was then) formed the view that the phrase is no difference from the words used in a Legislation. He further expressed his view that there must be reasonable grounds or reasonable basis for the suspicion to exist.
21. His Lordship further referred to English Code of Practice, paragraph 6 of Page 6 of his judgment, that reasonable suspicion does not require certainty, nor that the officer concerned has to be satisfied beyond reasonable doubt. In contrast to mere suspicion, reasonable suspicion must be founded on fact. There must be some concrete basis for the officer’s suspicion related to the Claimant.
22. It has to be noted that the suspicious offence is corruption contrary to section 91 of the Penal Code. The definition of S.91, among others, involves two major aspects of corruption. One that being employed by Public Service corruptly ask for, or receives, or obtain any property, or benefit for himself. If the act of asking for, receives or obtain were not accompanied by force then corruptible act involves the person who receives and the person who gives in a mutual manner and understanding. The circumstance of this case seem to warrant that to commit an official corruption offence require two persons to complete the unlawful act of corruption. Ultimately one offender cannot possibly fulfil the act of corruption, it has to be two or more.
23. As an Applicant would he not reasonably suspect the Claimant as part of the whole entire episode, involved in the corrupt activity? If so, would it be possible to be included in the information for a ground Search Warrant, and also included in the sworn statement in support? There was nothing. An investigation cannot focus on one party of a crime whilst the other is left out.
24. The Claimant’s submission asserts the grant of the Search Warrant was an error premise on lack of evidence to support, at least on a minimal standard.
25. The fact deposed by Sgt Alumvolomo is that “it was observed by a Police informant who confirmed during the period between 2014 and 2018, that he often saw some Police Officers walking in and out of the office of the Claimant at Hyundai Mall in Honiara. Informant confidently adamant that the officers must have received payments from the Claimant.
26. The period upon which was covered by the information and affidavit is quite large. Practically it will ne quite difficult to prove on offence alleged to have committed within a period of 4 years. It would be bad to insert such in a charge sheet as well.
27. It would appear the informant must be a person having an office or placed in the vicinity of the Claimants office since 2014, to enable him monitor those who went in and out of the claimant's office for 4 years. In particular unspecified public Officers from the 3 different Ministries. Bearing in mind the Claimant’s office is on the third floor not easily accessible by the public. Worst still the officers from the 3 ministries were not named.
28. There were no specific dates, or instances of payments, or suspected payments being requested, or received by public officers identified. No cashing of cheque observed, or unexplained spending of wealth was asserted, even at least sight signing of papers by the Public Officers. These are very significant matters given the nature of offences alleged.
29. A search warrant cannot be founded or nothing that is bad in law^[3], and cannot be used to fish for evidence^[4].
30. Indeed there was nothing before the Magistrate as evidence or this court to indicate enquiries were made to verify the information provided by the unnamed informant before applying. Indeed it is a pure speculation on the part of the informant to assert payments were made. The informant’s belief is irrelevant to the proper issuant of the Search Warrant. The suspicion must be reasonable, one held by the Applicant and proves on oath. None of these was available on material before the Magistrate.
31. Therefore what was deposed by Sergeant Alumvolomo cannot give rise to reasonable suspicion. What is established was unnamed Public Officers attended the Claimant’s office during 4 years period. That is sketchy and insufficient to gaze a charge and to impose upon the Claimant’s rights. It is not an offence for a public officer to attend at business office, and there may be good reason to do so.
32. Based on what was stated in the information and the affidavit, there were no or insufficient grounds to support a conclusion that there was a reasonable suspicion that the Claimant had committed on offence and that something associated with that offence committed is at Claimant’s office. What was alleged was a mere speculation.
33. I noted certain provisions which render immunity to a Magistrate. This case does not anticipate to that extent. It only concerns the decision of Magistrate to issue a Search Warrant.
34. In conclusion I find from evidence and submissions that the issuant of the Search Warrant premise not on good fact but mere suspicion. Therefore I must grant the orders the Claimant sought.

Application for interim injunctions

35. In respect to application for restraining orders, the submissions by the Attorney General omits or does not concern the issue. Whether the Attorney General concedes to it or not does not expressly stated.
36. However, I have perused the documents in support of the application for restraining orders, and I find they are all in order. Without objection, I must, therefore, grant the orders sought.

Orders:

(1) The Court hereby declares that the second Search Warrant was issued in contravention of S.101 of the Criminal Procedure Code.
(2) In conjunction to Order 1, the Court hereby makes an order that the second Search Warrant be removed to this honourable court and be quashed.
(3) The court hereby order that the Defendant returns all the properties seized during the execution of the second Search Warrant forthwith to the Claimant.
(4) Compensation and damages are awarded to the Claimant to be assessed.
(5) An order is hereby granted restraining the Defendants or their respective servants and agents from inspecting or otherwise dealing with the documents seized pursuant to the second Search Warrant until further or earlier order.
(6) An order is hereby made requiring the Defendants to deliver up the documents seized pursuant to the second Search Warrant to the Registry of the High Court until further or earlier order.
(7) Cost of this application is payable to the Claimant by the Defendants.

The Court.
JUSTICE R FAUKONA
PUISNE JUDGE.

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^[1] [2016]SBCA 19, SICOA – CAC 13 of 2016 (14 October 2016).
^[2] Chede v Attorney General [1993] SBHC 36;HC-CC127 o 1991 (24 March 1993)
^[3] SINPF v Attorney General [1999] SBHC-75; HC-CC 42 of 1999(23/3/1999).
^[4] Ihid (3).