Ta'ufo'ou v Prisons Department [2001] TOSC 2; C 0296 2000 (22 January 2001)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

C.NO.296/00

BETWEEN:

LATU TA'UFO'OU
Plaintiff;

AND:

1. PRISONS DEPARTMENT
2. KINGDOM OF TONGA
Defendant

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr S.T. Fifita for the Plaintiff
Mr 'A. Kefu for the Defendants

Date of Hearing: 15 January 2001
Date of Judgment: 22 January 2001

JUDGMENT

On 9 April 1997, the plaintiff was sentenced to serve a total of 5 years and three months imprisonment and he was admitted to Hu'atolitoli prison. Under the Prison Rules he could earn a maximum remission of one quarter of that sentence by a marks system.

In 1998, in celebration of His Majesty's 80^th birthday, a number of prisoners were released or had their sentences reduced. No explanation was given as to the method of, or reason for, selection of the prisoners who were to be treated in this manner but it was ordered that the plaintiff was to have his sentence reduced by one quarter.

Remission is earned under a marks system set out in the Prison Rules. The maximum remission that can be earned by a male prisoner is one quarter of his sentence and, in order to achieve that, he will need to earn a total of 8 marks a day. Thus the total marks needed to achieve maximum remission will be eight times the number of days in the served portion of his sentence. However, marks may not be awarded if the prisoner does not work properly or fails to behave. In such cases, the prisoner will only be awarded a basic 6 marks per day.

In the present case, the prison authorities interpreted the order for reduction in honour of the King's birthday as a deduction of a quarter of the total sentence irrespective of the marks system and then calculated his remission on the remainder. As a result of such calculations the plaintiff's earliest release date would have been 9 November 1999. He, along with the other prisoners who were to benefit from the King's birthday, was told of that date in about July 1998.

However, by the time the day for his release dawned, the plaintiff was 50 marks short of the required total and so he was required to serve an extra six days imprisonment. That would have resulted in his release on 14 November 1999 but, as that was a Sunday, he was released on the previous day, the 13^th.

He seeks damages for false imprisonment in respect of those extra days.

The defence case is that, after the provisional release date had been calculated as 9 November 1999, the prisoner started avoiding prison duties by claiming to be sick. A prison officer produced the records from the prison in which were shown 25 days when the plaintiff was sick and did not work. Their case was that he was not genuinely sick but simply malingering to avoid his duties.

The plaintiff denies being sick on most of those days but says that he was at the hospital on two occasions for bronchitis. He called Dr Latu who saw the plaintiff at Vaiola Hospital on 3 February 1999. That date is not recorded as one upon which the prisoner lost marks but Dr Latu said the record showed that a colleague had also seen the plaintiff five days before. The prison records show that he did not earn marks on 28, 29 and 30 January which would have included that previous visit.

When a prisoner is unable to carry out his allotted work because of sickness, he only receives the basic 6 marks. The only exception is under rule 188 which provides that any prisoners in hospital or the infirmary "if injured on the public works or in the performance of their duty (without any fault of their own)" shall be awarded the full 8 marks per day. That is the only exception and if they are unfit for work for any other reason, even if they are in hospital, they will only receive 6 points unless there is a special recommendation for more. Thus it does not matter whether the plaintiff was genuinely sick or malingering on the days he is recorded as having failed to do his work because of sickness.

The record shows the plaintiff was sick on the 50 days identified and so he only received 6 points for each of those days. The plaintiff denies being sick on more than a few days. On those few days and on the days he was at hospital, he was there for bronchitis which had been caused by having to work in the fields in wet weather without adequate, or any, wet weather clothing. If that had been the case he would have been entitled to 8 points for those days but his own witness, Dr Latu, told the court that bronchitis would not have been caused by such conditions. I accept his expert opinion on this and so the exception in Rule 188 does not apply to the plaintiff. Quite why his visit to the hospital on 3 February did not lose him points is not clear on the evidence but the other visit five days before clearly resulted in him receiving only 6 marks and, on the basis of Dr Latu's evidence, that was correct.

The plaintiff brought this action and bears the burden of proving that he was released later than he should have been. There is no dispute that he was released after the date that would have applied had he received full remission. I consider that the burden of proving the correct reason for that delayed release shifts to the defendant. I have considered the evidence of the prison officer called and the prison record and I am satisfied the defence has proved on balance that the plaintiff failed to carry out his work on the days they have stated. The burden is on the plaintiff to prove that he came within the exception under rule 188 and was thus entitled to full marks on any of those days and he has failed to do so. He admitted he was sick on some days in the period from July 1998 to November 1999 but produced no clear evidence to challenge the defence dates beyond a vague denial that he was sick on all of them.

In the circumstances, I am satisfied that the prison authorities were correct to require him to serve the extra six days in custody and the plaintiff's claim fails.

Before I leave the case, I should state that the plaintiff raised a complaint that he was never properly advised of the marks system when he was first admitted and neither was he told he had lost marks nor that he could challenge or appeal that decision. He also told the court that he was assured he would be released on 9 November and was never told subsequently that he would not until he was told in a casual conversation shortly before the 9^th.

I do not consider these matters alter his claim but I state that, as far as the first is concerned, he had served two previous sentences and I have no doubt at all that he knew about the marks system. As far as the second is concerned I believed the evidence of the prison officer who said he had mentioned the delayed release date to the prisoner more than once. I did not believe the plaintiff's account.

The claim is dismissed with costs to the defendants.

NUKU'ALOFA: 23 January 2001.

CHIEF JUSTICE