Xiang Lin Timbers v Attorney General [2019] SBHC 85; HCSI-CC 519 of 2018 (4 July 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Xiang Lin Timbers v Attorney General
Citation:
Date of decision:	4 July 2019
Parties:	Xiang Lin Timber v Attorney General
Date of hearing:	14 March 2019, 12 June 2019
Court file number(s):	519 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota PJ
On appeal from:
Order:	The claim is dismissed with cost for defendant on standard basis
Representation:	Mr. W Rano for the Claimants Mr. S Banuve for the First and Second Defendants
Catchwords:
Words and phrases:
Legislation cited:	Criminal Procedure Code, s101 [cap 7] Civil Procedure Rules 2008
Cases cited:	Rano v Commissioner of Police [2016] SBCA 19

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 519 of 2018

XIANG LIN TIMBERS
Claimant

V
ATTORNEY GENERAL
(Representing Central Magistrate Courts)

ATTORNEY GENERAL
(Representing the Commissioner of Police)

Date of Hearing: 14 March 2019, 12 June of 2019
Date of Judgment: 4 July 2019

Mr. W Rano for the Claimants
Mr S Banuve for the First and Second Defendants

JUDGMENT

Kouhota PJ

The claimant by an amended category C claim filed on 18^th February 2019 under Rule. 7.41 and Rule 15.3.2 seek the following reliefs;

(a) An order that the Search warrant issued on 30^th November 2018 and effected on the claimant be brought up to this court and quashed.
(b) Alternatively, a declaratory order that the search warrant issued on 30^th November 2018 was and or is null and void.
(c) Further in the alternatively, where the reliefs in (a) and (b) are not urgent, a declaration that the search warrant issued on 30^th November 2018 is null and void.
(d) An order that the Second Defendant be permanently restrained or alternatively declared that they should not:

• (i) Carry out;
• (ii) Conducting;
• (iii) Participating in any investigation against the Claimant.

(e) An order that the Second Defendants returns to the Claimant all items and or properties were taken by them during the execution of the search warrant on 30^th November 2018.
(f) Alternatively, an order that the Claimant’s properties seized by the Second defendants be brought before this Court forthwith for preservation with reasonable access to the parties.
(g) General and Exemplary Damages against the Defendants.
(h) Cost on indemnity basis.

Counsel for the claimant submits that;

(a) There are no particulars of offences or indications of what offences the Complainant was to have committed.
(b) There is simply no adequate if not, real “reasonable suspicion” which had been proved on “oath” in that:

• (i) No such offence can reasonably be deduced from the face of the search warrant;
• (ii) (No complaints were made against the Claimant instead all complaints made on “oath” by Mr Temapi were addressed against the Temotu Provincial Officers;

(c) No offence known to law was alleged against the Claimant; and
(d) The court has been misled as to the search warrant in that officers did not prove on oath that the Claimant was suspected of committing offences or offence known to law, rather was only fed with mere conjectures.

The claimant further alleged that the second defendants, in particular, Detective Temapi, failed to comply with the proper requirements of the law or otherwise was reckless and careless in ensuring the administration of justice is done properly because his mind was, and is clouded by the fact that he and his team of investigators had conflicts of interest, had personal interest in the outcome of their investigations and had interest in the land the origin of the complaints. In support the claim, the claimant relied on the sworn statement of Mr Ara filed on 18^th December 2018 and Mr Chua Kock Chuan filed on 13^th February 2019.

The claim was served on the defendants and the defendants have filed their defences. The defendants in their defence denied the claim and state that the warrant was validly issued in that;

(1) both the application and search warrant made it clear what alleged offence police were investigating;
(2) Section 101 requires the police have reasonable suspicion that an offence had been committed and there is no need for the application for a search warrant to identify the precise crime alleged- Rano v Commissioner of Police [2016] SBCA 19
(3) There is no obligation in s.101 to identify any offence in the warrant itself, as the warrant is the authority for search and defines its limit whilst the application must identify the fact, that there is at least an investigation into the offence and broadly identify the criminality alleged;
(4) That the amended claim for judicial review filed is an abuse of process as the issues raised in paragraph 7 of the Amended Claim has been settled in Rano v Commissioner of Police [2016] SBCA 19 which the claimant must know and binds the High Court.
(5) That the claimant has no arguable case in terms of r.15.3.18 (a) of the Solomon Islands Courts (Civil Procedure) Rules 2008 to warrant the amendment claim being heard.

The defendants further submit that the search warrant issued in this instance was validly issued, therefore, there has been no breach of section 9 of the Constitution nor is any basis for trespass or any damages could be awarded. Defendants also submit that there is no basis for return of the items seized in the course of the execution of the search warrant on 30^th November 2018 as the items are needed for investigation.

At this Conference Rule, 15.3.17 required the court must consider the matters set out in Rule 15.3.18. The rule states; the court will not hear the claim unless it is satisfied that:

(a) The claimant has an arguable case; and
(b) The claimant is directly affected by the subject matter of the claim; and
(c) There has been no undue delay in making the claim, and there is no other remedy that resolves the matter fully.

The main issue of contention in this matter is the validity of the search warrant issued by the Magistrate and executed on the claimant office at Ranadi on 30^th November 2018.

I had considered the materials filed and the submission of counsel and I am satisfied that the claimant has been affected by the subject matter of the claim. In view of the fact the only issue is a question of law, I use my discretion under rule 15.3.21 and will determine the claim now, rather than setting the matter for trial.

The crucial issue in this claim is the validity of the search warrant executed on the claimant office at Ranadi on 30^th November 2018.

The power to issue search warrants by a magistrate or a justice of the peace is provided under section 101 of the Criminal Procedure Code (CPC), Cap 7. Section 101 says, that 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 any offence is in any building, ship, vehicle ... the magistrate or justice of the peace may by warrant authorise a police officer or other person therein named to search the building, ship, vehicle named or described in the warrant. The search warrant also authorised police officer or other person carrying the search to seized anything found or any other thing which there is reasonable suspicion has been stolen or obtained unlawfully.

Counsel Rano for the claimant inter alia submitted that there are no particulars of offences or indication of what offence the complainant was said to have committed or suspect to have committed and no complaints were made against the claimant, instead all complaints made on oath by Mr Temapi were addressed against the Temotu Provincial officers and that no offence known to law was alleged against the claimant. He submits that the court was misled as to the search warrant in that the officer did not prove on oath that the claimant was suspected of committing offences or offences known to law but rather only being fed with mere conjectures.

Having viewed the materials before the court, I am afraid I do not accept that submission. There is no requirement in section 101 that a search warrant could only be issued against a person who is suspected of committing an offence or to specify the particulars of the offence committed. All that is required in section 101 of the CPC is that it was proved on oath before 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 conduct an investigation into any offence is at any of the places mentioned in section 101. The thing does not have to be at a place in possession of or owned by the person suspected to have committed an offence.

Thus in the present case, even if the persons suspected were in Lata, Temotu Province, if documents or anything is necessary for the police investigation were suspected on reasonable grounds to be in the claimants office in Honiara, the magistrate could lawfully issue a search warrant authorising the Police Officers to search the Claimant’s office or premises in Honiara.

I accept the submission of the Solicitor General and on the materials before the court, I find that the search warrant which is the subject of this claim was validly issued. It follows therefore that there was no breach of section 9 of the Constitution by the defendant. The claim is dismissed with cost for Defendants on standard basis.

The Court
Justice E Kouhota
Puisne Judge