Fa'aoso v Paongo [2006] TOSC 37; CV394-2006 (11 September 2006)

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

CV 394/2006

BETWEEN:

‘OKUSI FA’AOSO:
Plaintiff

AND:

1. PC SALESI PAONGO
2. PC PENIOLA ‘AHOFONO
3. MINISTRY OF POLICE
4. KINGDOM OF TONGA
Defendants

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel: Mr Fifita for the plaintiff and Mr Kefu for the defendants

Dates of hearing: 8 September 2006
Date of judgment: 11 September 2006

JUDGMENT

Preamble

[1] Counsel for the plaintiff began his brief opening address at the commencement of this trial with a quotation on "liberty or death" which he attributed to Thomas Jefferson. It would seem that he made a similar opening speech in the case of Tonga v Ministry of Police [2000] Tonga LR 111. At page 116 of the official report on that case, Finnigan J. notes:

"Counsel for the plaintiff chose to open his case by quoting Thomas Jefferson; "Give me liberty or give me death", and I mention it because the remark was endorsed on behalf of the defendants by their counsel in his submissions."

[2] Before it becomes hallowed in precedent through repetition in this jurisdiction, it is perhaps timely to set the historical record straight. The remark was made, not by Thomas Jefferson, but by the American patriot, Patrick Henry, at a meeting of delegates held at a church in Richmond, Virginia, on 23 March 1774 -- 5 months after the Boston Tea Party. A commentator reported:

"He spoke without any notes in a voice that became louder and louder, climaxing with the now famous ending. Following his speech, the vote was taken in which his resolution passed by a narrow margin, and thus Virginia joined in the American Revolution."

[3] For the record, the final paragraph of Henry's speech, which embodies Mr Fifita's quotation, reads:

"It is in vain, sir, to extenuate the matter. Gentleman may cry, " Peace! Peace!" -- but there is no peace. The war is actually begun! The next gale that sweeps from the North will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others might take; but for me, give me liberty, or give me death!"

The plaintiff's case

[4] The claim is brought on behalf of a minor, 'Okusi Fa'aoso, who was savagely beaten by two police officers in September 2003 after being falsely accused of theft. The two police officers are named respectively as the first and second defendants. The plaintiff told the court that he was born on 4 February 1991, which would have made him only 12 years of age at the time of the attack but the statement of claim states his age at 13. The point was not picked up by counsel. To their credit, the defendants admitted liability and the hearing proceeded on the question of damages only. Senior Crown counsel, Mr Kefu, represented all the defendants.

[5] The plaintiff is the third child of a family of eight children. The 49 year-old father, Fuapau Fa'aoso, works as a planter. The family reside at Kolonga which is a village far out to the eastern side of Tongatapu. At the time of the incident, the plaintiff was in Form 1 at ‘Api Fo'ou College. He told the court that his mother is a close relative of Hon. Nuku, a Noble of the Realm, and for two years he had been staying at Hon. Nuku's home which is close to the college. He would return home to Kolonga on weekends. Hon. Nuku paid his school fees.

[6] Between the hours of 7 and 8 p.m. on a Friday night early in September 2003 (the exact date was not identified in evidence) Hon. Nuku dropped the plaintiff at "Sia Leka", a take-away/restaurant in Nuku'alofa. He was intending to return later to pick him up. Approximately 30 minutes later, as the plaintiff came out of the restaurant and started waiting for Hon. Nuku, he saw two women close by a vehicle having an argument and then one of the woman turned to him and accused him of having taken something from her car. He denied knowing what she was talking about and the defendants now accept that he was wrongly accused. The same woman then told the plaintiff that she was going to report the matter to the police and she walked off towards the police station.

[7] The plaintiff said that he remained outside the restaurant waiting for Hon. Nuku and a short time later the woman returned with police officer Paongo. At that point the plaintiff ran away. He was asked in evidence why he ran away. He replied, "I was scared."

[8] Paongo soon caught the plaintiff and he asked him about the missing items which he identified as a mobile phone, a bag and a wallet containing $1000. When the plaintiff denied any knowledge of the theft, the officer arrested him by grasping his collar, slapping and punching him and then forcing him to walk with him back to the Nuku'alofa Police Station. Other people were watching. The following events (minus the paragraph numbering) are taken from the pleadings in the statement of claim. The allegations were all admitted by the defendants in their statement of defence:

"At the front of the (police) station, Paongo continued battering the plaintiff. There was another officer present but he did nothing to help the plaintiff. Paongo took the plaintiff to the charge office and interviewed him regarding the lost mobile, bag, and a wallet that was stolen from a van parked in front of Sia Leka. The plaintiff told him that he did not know anything about them. The plaintiff then was taken upstairs where 'Ahofono questioned him about the theft of the said lost items. He also asked him his name, address, age, and his parents. He told 'Ahofono that he came from Kolonga, he was 13 years of age, and his parents' names. The plaintiff told 'Ahofono that he did not steal them and he knew nothing about the lost items. After the denial 'Ahofono battered the plaintiff by hitting and punching which caused the plaintiff to fall down and while on the floor 'Ahofono kicked him (he was wearing sandals) on the stomach and back. The plaintiff did not know how many hits, punches and kicks but there were not less than 10 altogether. The plaintiff was helpless while in the hands of the defendants. He could not do anything but apologise and beg for mercy for he was in pain. After the said battery the plaintiff was locked in a cell overnight. The next morning, Paongo and 'Ahofono took him upstairs and questioned him on the same matter. The plaintiff continued to deny any knowledge of the said stolen items. Paongo then hit the plaintiff on the face. The said hit caused the plaintiff to feel dizzy and darkness and he fell on the floor. On the floor he felt punches and kicks from Paongo all over his body. During this time, another police officer came into the interviewing room but did nothing to help the plaintiff. Paongo stopped battering the plaintiff and 'Ahofono who was at all times present, hit the plaintiff's head with a chair. The said hit was hard which injured (cut) the plaintiff's head. Blood ran out from the plaintiff's head injury. This was an unlawful battery on the plaintiff by 'Ahofono. 'Ahofono took the plaintiff downstairs to a water tap and told the plaintiff to wash off the blood. He also gave the plaintiff his T-shirt to hold onto his head to stop the blood flowing. The plaintiff was then taken upstairs again and again questioned. Before the plaintiff could say anything 'Ahofono moved and pointed his finger at him saying that he was going to hit him. The plaintiff was in fear and believed that 'Ahofono could hit him. This was an unlawful assault by 'Ahofono on the plaintiff. The plaintiff was in fear of further battery and assault. He told 'Ahofono that he stole the said properties and gave them to Tevita of Kolonga thinking that he would be released to go home."

[9] The statement of claim then described what happened when the police officers took the plaintiff back to his home village:

"Paongo and 'Ahofono then took the plaintiff to Kolonga in a police car to recover the lost properties from Tevita. At Kolonga, Paongo and 'Ahofono found out that the plaintiff was lying that (sic) he gave anything to Tevita. 'Ahofono then asked the plaintiff to show them where his parents' house was and the plaintiff told them where his parents' house was. Paongo and 'Ahofono went to the plaintiff's house and met his father, Fuapau Fa'aoso. Paongo and 'Ahofono told the father that they were after a case from Kolonga. After a few minutes talking they went back to the police car to go back to the station. At all these times at Kolonga the plaintiff was locked in the police car with another officer. When the police car was about to reverse the plaintiff's brother (Ma'ake) who happen to pass by the police car, told his father that the plaintiff was in the police car and he was injured. The father called out to the officers to wait for him. The police car was in a hurry to drive off but was blocked by traffic so the father reached it. This was the first time the father knew that the plaintiff was arrested and was injured for the defendants did not let the plaintiff's parents know that they had arrested the plaintiff. The father asked 'Ahofono and Paongo to take the plaintiff to hospital but the said officers took him to the station and locked him in the cell. Shortly after the locking of the plaintiff the father arrived at the station and asked whether the plaintiff was taken to the hospital. The officers said there was no vehicle available. The father told them that he could provide one to take the plaintiff to the hospital. He then asked Tevita of Kolonga to take the plaintiff to the hospital."

The plaintiff was eventually released from custody at approximately 4.30 pm on the Saturday afternoon having been arrested at approximately 8.30 pm the previous evening -- a total period of wrongful imprisonment of 20 hours.

[10] The plaintiff told the court that at the hospital he received five stitches to the wound to his forehead and the doctor gave him Panadol tablets to relieve the pain. He said that he had bruising on the back and side of his body from the kicks. He said that he continued to suffer pain and headaches for two weeks after the incident. He has been left with a small scar which is still visible today on his forehead just about the hairline. He said that he has been left with no other residual effects from the attack.

[11] The plaintiff said that he never returned to college after the incident for the reason that, as he was being released from custody, the two police officers threatened him a final time and told him that if they ever saw him in town again they would beat him up. It is difficult to know what to make of this evidence because it did not emerge from the pleadings nor was it brought up by his counsel in evidence. It arose out of questions from the Bench. The plaintiff said that he enjoyed school but he frankly acknowledged that he was not doing very well in his study. He said that, at the time, his ambition in life had been to help his father on the plantation when he left school and that is what he is doing now. Mr Kefu suggested that he could have gone to another college closer to Kolonga. I have taken notice of these matters but I am reluctant to place too much emphasis on them simply because they had not formed part of the plaintiff's case.

[12] In cross examination Mr Kefu asked the plaintiff to specify the exact number of slaps, punches and kicks he received on each occasion. The plaintiff gave numbers but I am reluctant to place too much weight on their accuracy. It struck me that the plaintiff was trying to be helpful to defence counsel in the same way that he readily admitted, when it was put to him by Mr Kefu in cross examination, that Hon. Nuku was the Minister of Police at the time the incident happened. Later, however, Mr Kefu acknowledged to the court that he had been mistaken and the Minister of Police at the relevant time had been Hon. Clive Edwards.

[13] The plaintiff's father, Fuapau, told the court how he first learned of what was happening to his son. He said that on the Saturday morning in question he was cleaning his shot gun when the police arrived at his home at Kolonga. 'Ahofono came to his house and told him that he was investigating a case involving the theft of a mobile phone and $1000 cash. The officer did not tell Fuapau that he had 'Okusi out in the police car. He said that they had checked out a neighbour, Tevita Filikitonga (then aged about 22), and he said that he wished to speak to Fuapau's son, Pio, about the alleged theft. The father told the officer to go ahead and speak to Pio who was in the house at the time. Pio was only 4 or 5 years old at the time and so, although the plaintiff did not give evidence about this aspect of the case, it is fairly obvious that in desperation he had given the police his young brother's name as the person he had given the stolen items to as a ruse in the same way that he had first told them he had given the items to Tevita.

[14] Fuapau told the court that when his other son, Ma'ake, came inside and told him that 'Okusi was outside in the police car injured, he immediately went to see him. As he approached the police car the driver attempted to do a U-turn and drive away quickly but another vehicle had turned into the road and blocked his exit. Fuapau called out to the police car to stop. He noticed that 'Okusi was in the back seat sitting between two police officers holding his forehead with a piece of cloth and he could see blood coming from the wound. Fuapau asked the police to let his son out of the car and they did so. He asked his son why he was injured. The plaintiff replied that he had been beaten up by the police for the suspected theft of a mobile and $1000 which belonged to a lady in town. He told his father that he knew nothing about the case.

[15] Fuapau said he told the police to take his son to hospital to have his wound attended to. The police said that they would do that and they then drove off. Fuapau saw his son again approximately 1 1/2 hours later at the Nuku'alofa Police Station. He had borrowed a car from his neighbour, Tevita, and had driven into Nuku'alofa to see how his son was and he was upset to find that he had still not received any medical treatment for his injury. He told 'Ahofono about his concerns and the officer replied, "it's okay because it's just a minor injury -- just a scratch." In the end, however, the police allowed Fuapau to take his son to hospital accompanied by a police officer. He received five stitches to his wound. The plaintiff was then returned to the police station and Fuapau next saw him between 5 and 6 p.m. that same evening following his release from custody.

[16] The court then heard how Fuapau made a personal complaint to the Minister of Police the following day. The defendants admitted the following further allegations pleaded in the statement of claim:

"The father made several complaints to the Minister of Police at the time about the unlawful actions of Paongo and 'Ahofono against his son and he was told that actions would be done against Paongo and 'Ahofono. Paongo and 'Ahofono with other officers went and apologised to the father but the apologies were not accepted. At one time some officers and Paongo and 'Ahofono successfully persuaded the father's younger brother, Sione Folo to go with them and apologise to the plaintiff's father. In fact they all went to the Minister of Police and the father told the Minister that he couldn't forget what his officers did to his son. He did not accept the apology. On 10.02.2004 the father wrote to the Minister of Police regarding his complaint against his officers and he was told that work on it was on (sic) for it would be better and faster if departmental disciplinary actions would be taken. The father went overseas hoping that disciplinary actions against the officers would be done as advised by the Minister. When the father came back in 2006 he found out that nothing had been done by the third defendant against Paongo and 'Ahofono. The father inquired about his complaint but the file was not found in the Police Department, he was very disappointed."

[17] It appears that no disciplinary action has been taken against the two police officers and, if that is the case, it is naturally a matter of some concern. The father also told the court about a medical report he obtained from the doctor who treated his son after the assault. He was requested by the police to give them the report and thereafter it disappeared. Crown counsel told the court from the Bar that he had also made inquiries as to the whereabouts of the medical report, but he had been unable to locate it.

Submissions

[18] The plaintiff has claimed damages of $29,000 made up as follows:

"1. Fear, pain, blood loss, and inconvenience

(including failing to take him to hospital) $2,000

2. Battery and assault $14,000
3. Unlawful imprisonment $3,000
4. Aggravated damages $3,000
5. Exemplary damages $7,000"
   

[19] Mr Fifita referred the court to several comparable cases including Lavaka v Ministry of Police [2000] Tonga LR 17 where a 14-year-old boy suspected of theft was taken into custody and beaten by the police with a belt and iron bar. He was given no opportunity of consulting a lawyer or his guardian. The victim in that case suffered bruises on his back and chest and he was distressed for a week. No medical treatment was required. The court awarded him damages totalling $13,500 made up as follows:

Unlawful imprisonment $3,000

Assault $5,500

Exemplary damages $5,000

[20] In Tonga v Ministry of Police [2000] Tonga LR 111, a 13-year-old boy had also been accused of theft. He was assaulted by a police officer about 50 times in the police car and when the police car arrived at the Nuku'alofa Police Station the officer struck the boy a blow on the back of his head causing him to fall down unconscious. Upstairs at the police station the boy was again assaulted, this time with an iron bar. He finished up with red and black bruises on his stomach and buttocks and with skin coming off his body in places. The plaintiff did not return to school again. The judge awarded him $12,500 general damages and $1,000 exemplary damages. The judge clearly would have awarded a higher figure than $1,000 for exemplary damages but the plaintiff had only claimed that figure.

[21] In an older authority, Manu & Kingdom of Tonga v Muller [1997] Tonga LR 192, the Court of Appeal had before it an appeal by the Crown in another case involving wrongful arrest, assault and false imprisonment by a police officer. The trial judge had awarded the plaintiff general damages in the sum of $10,000 and exemplary damages of $1,500. In that case, the plaintiff had been subjected to punches, blows and kicks by the police officer which had left him with a 5% permanent partial disability in his left knee. There was also an element of economic loss involved in that he was unable to work again as a rigger. The Court of Appeal upheld the damages award and, in relation to the award for exemplary damages, it noted:

"The award of $1,500 exemplary damages, in the circumstances found by the trial judge, was a modest one indeed. A high reward, in our view, would have been justified."

[22] Mr Kefu did not challenge the relevance of any of the authorities cited by Mr Fifita but he asked the court to note that in this case the defendants had admitted liability. He also made the point that when the police officer saw the blood coming from the wound to the plaintiff's forehead after he had hit him with the chair, he took the plaintiff downstairs, washed the blood away and took off his own T-shirt and gave it to the plaintiff to hold over the wound.

Findings

[23] As long ago as 1991 Chief Justice Martin, in the case of 'Akau'ola v Fungalei [1991] Tonga LR 22, issued the following admonition to police officers:

"A number of police officers still appear to believe that they have the right to exercise discipline over the public . . . such abuse of authority will not be tolerated, and where it is proved to have occurred it will be stamped on, with increasing severity, until the bully boy in uniform no longer roams our streets."

It is apparent from the cases I have referred to above and from the facts of the present case that this quite simple message from the former Chief Justice has not got through. There still seems to be a culture of violence in some quarters of the police force. Police officers must understand that their role in criminal investigations is exactly that. In other words, their task is to investigate the case through interviewing witnesses and through the appropriate use of forensic science and then come up with hard factual evidence that will stand up in a court of law. It is not, as I suspect some officers still believe, simply to extract a confession from the accused through the use of force and violence, if necessary.

[24] In December 1995 Tonga acceded to the Convention on the Rights of the Child. The convention still has to be properly ratified but, as this Court has noted in other cases recently, the accession indicates a willingness by the nation to be bound by its terms. Article 37 of the Convention, in four paragraphs, sets out the obligations of a State in regards to the apprehension and detention of a child (defined as a person under the age of 18). The opening words of each paragraph are relevant to the present case. They read:

"(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment . . .

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily . . .

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age . . .

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance . . . "

In the present case, all of these obligations have been flagrantly abused.

[25] There is one caveat which needs to be borne in mind in any assessment of damages which I suspect may not have been given appropriate recognition in some of the previous decisions in this area of the law. It was referred to by the Court of Appeal in Manu's case in these terms:

"It is important that the Supreme Court, in assessing damages, takes into account levels of ordinary income in Tonga and the value of money and general conditions in the kingdom."

[26] In Edwards v Pohiva (unreported) App No 01/03, judgment dated 25 July 2003, the Court of Appeal noted with approval that in fixing damages in a wrongful imprisonment case I, as the trial judge, had taken into account evidence relating to earnings in Tonga which I concluded gave a reasonably accurate barometer of the value of money in the Kingdom. In that case I noted:

"The relevant records show that the highest-paid public official is the Prime Minister, his basic salary is shown as $32,918. Ministers of the Crown have a basic salary of $28,760 and then the levels decrease down to the lower scales in the public service which lie somewhere between $2,500 and $3,500 per annum."

There has been some increase in rates of pay in the civil service since that case which received widespread publicity at the time but the fact still remains that many Tongans have no regular source of income. All these factors need to be borne in mind otherwise awards of damages could soon spiral and end up out of proportion in relation to the value of money and general conditions in the Kingdom.

[27] Compensatory damages or "basic damages" as they were referred to by the Court of Appeal in Edwards are awarded for pain and suffering and loss of enjoyment of life. In the present case under this head I have taken into account the nature of the unlawful assaults and battery the plaintiff was subjected to and his resulting injuries. I also note that he has not been left with any residual disability. Aggravated damages are simply another head of compensatory damages. They need not be specifically pleaded. They are designed to reflect the manner in which or the motives with which the wrong has been committed and they can include a penal element. Damages for false imprisonment can include compensation for loss of liberty and damage to reputation, humiliation and injury to feelings which can result from loss of liberty. Exemplary damages, as the Court of Appeal confirmed in the Edwards case are not only punitive but they may also be a deterrence. Both elements are appropriate in considering a case of police abuse.

[28] The Court of Appeal in Edwards also noted that exemplary damages should be awarded if, but only if, it is considered that the compensation awarded by way of basic and aggravated damages is in the circumstances an inadequate punishment for the defendants. I say at once that the award I propose to make in respect of basic and aggravated damages is, in my view, an inadequate punishment for the defendants, particularly given the warnings that this Court has issued to police officers in similar cases in the past and for that reason I will be making a separate award of exemplary damages.

[29] Under the head of compensatory or basic damages, including aggravated damages and damages for wrongful imprisonment, I award a total of $5,000. For exemplary damages I also award the sum of $5,000 making a total damages award of $10,000. The plaintiff is entitled to costs to be agreed or taxed.

NUKU'ALOFA: 11 September 2006

CHIEF JUSTICE