Chief Justice awards damages in unlawful police search [1]
Wednesday, November 25, 2020 - 20:25. Updated on Thursday, November 26, 2020 - 10:51.
The Lord Chief Justice has awarded damages to a private business and its director, after ruling that Tongan Police officers and civil servants from the Ministry of Fisheries held an unlawful search for sea cucumbers, alleged to have been illegally harvested during the closed season.
The civil action was brought by plaintiffs, Pacific Capital Industries Ltd. and De Feng Mo (second plaintiff) against defendants, the Kingdom of Tonga (sued due to the conduct and actions of Tonga Police officers and civil servants from the Ministry of Agriculture, Food, Forest and Fisheries).
Lord Chief Justice Whitten QC in a judgment on November 23, at the Nuku'alofa Supreme, ruled for the plaintiffs.
They were claiming damages for unlawful entry, trespass, assault and unlawful detention arising out of the search on March 25, this year without a warrant at the business compound in Ma'ufanga.
The search was conducted pursuant to section 123 of the Tonga Police Act, subsection (1) which provides for search of places, vehicles, vessels and aircraft without warrant.
The main issue for consideration in this case was whether s.123 applied to make the entry and search lawful.
The Lord Chief Justice said the main contest on the evidence was between Feng and Senior Constable Halapua.
The other deponents for the plaintiffs corroborated the version given by Feng.
Similarly, the other deponents for the defendant largely corroborated the account given by Halapua.
Taskforce
The Lord Chief Justice said the first plaintiff is the registered lessee of land with buildings in Ma’ufanga, known as ‘Blue Pacific’, where it operates a sales yard for sand and storage of containers.
Feng (second plaintiff) is the sole director of the first plaintiff and manager of the said business.
Halapua has been a police officer for 16-years, with duties to have included search and rescue operations and special operations. He is currently a member of the Band Unit.
The Court heard, between March 9-31 this year, a combined taskforce of members from the Tonga Police and the Ministry of Fisheries (part of the Ministry for Food, Fisheries and Forests) conducted a joint operation aimed at combating illegal, unreported and unregulated fishing in Tonga.
Halapua said on the afternoon of March 25, a briefing took place with members of the task force. Then at about 4:00pm, they set out to the Blue Lagoon, and he led the team.
According to both his statements of claim and defence, four police officers and 14 officers from the Ministry of Fisheries arrived at the Blue Lagoon compound. However, in his affidavit, Halapua then said that the search team comprised of two police officers, about four officers from Fisheries, and a Chinese and Tongan interpreter.
Halapua stated that when they arrived at the Blue Lagoon, the gate was open so they entered the compound. When they arrived, they saw three Chinese males, including Feng outside the veranda of a building at the front of the compound. Halapua told Feng that they were there to search the property.
Feng is said to have asked Halapua whether they had a search warrant. Halapua responded that, “section 123 of the Tonga Police Act' gives police officers the authority to conduct a search without a warrant.”
The Chief Justice said, Feng then asked Halapua for permission to speak to his lawyer, Mr Edwards by mobile phone.
Feng said he was refused and his mobile phone was removed from him and thrown to the ground.
In contrast, Halapua’s evidence was that when Feng asked if he could call his lawyer, Halapua advised against doing so due to operational security purposes and for the prevention of risks of unauthorised release of sensitive information pertaining to the search.
He deposed to asking Feng to hand over his phone and Feng voluntarily did so.
Feng said that two employees of his business and two visitors (all Chinese nationals) who were on the premises also had their phones removed by police.
At the same time, Feng said he asked Halapua the reason for the search, but he received no answer. Feng then asked one of the fisheries officers to explain what was going on. He was told that it was a MAFFF operation, which started on March 1-31.
Search
On Halapua's side, he said that he asked the visitors to remain on the compound for the duration of the search and that they, again, voluntarily did so.
He sought to emphasise that at no time were they forced or held against their will for interrogation on the compound before or during the search.
On the other hand, the accounts of the plaintiffs’ witnesses was that one of the Chinese visitors (Mr Jackie) went to his car and got in it to leave when he was stopped by a police officer and brought back to the group where he then also had his mobile phone removed.
By that account, Halapua told them all that no one was leaving the property until the search was completed.
The officers searched the entire compound included through the house, bar area, kitchen, storage area and ceiling of the house.
Fisheries officers dug and sounded for underground storage. Feng deposed to being instructed by the officers to contact the owners of containers, which contained salt and building materials to bring the keys to be opened for inspection. The 16 containers were opened and searched.
Sea cucumbers
Feng then deposed that after the search was completed, Halapua questioned him and his Chinese associates.
He was repeatedly asked where he had hidden the sea cucumbers. Feng said that he did not know what the officer was talking about. He said Halapua told him not to lie and asked him repeatedly where he had hidden the sea cucumbers.
Halapua said that during the search, the officer found 83 shark fins. He was advised by the fisheries officers that Feng did not have a valid license to process shark fins and so they were seized.
Feng said that the shark fins belonged to his wife and that she held a licence to purchase, process and export shark fins. They were purchased in August 2019 and were placed outside in the sun to air and to keep in good condition. They were openly displayed and drying on the front patio.
During the course of the proceeding, the plaintiffs filed a supplementary bundle of documents, which included a fish export license dated March11, 2019 in the name of Feng's wife.
Halapua deposed that at the end of the search he showed Feng the search list and asked him whether he was satisfied with the search that was conducted to which Feng allegedly responded "yes" and then signed the search list.
Feng said that he told Halapua he was going to contact his lawyer about the search because he was not happy with the way he had been treated and what the officers had done. To that, Halapua told him words to the effect that he could please himself and do whatever he wanted. Feng agreed that he was asked to sign the search list, which he did.
The search party did not find any sea cucumbers or bech-de-mer.
Reliable information
Halapua was also cross-examined about the “reliable information” upon which the decision to search without warrant proceeded.
He said that during the course of the operation (approximately three-weeks) the team received information from a number of different sources, that Feng was in possession of sea cucumbers, but that sea cucumbers were in the area of the Blue Lagoon. The sources were various fishermen who caught the sea cucumbers.
However, upon later questioning, Halapua said that information he acted on was not from fishermen but from the fisheries officers involved in the investigation. He only spoke with three or four civilians whose information he said was consistent with the information gathered by the fisheries officers.
Once they all sat down together and shared the information received, and identified that it all led to the area of the Blue Lagoon (or Blue Pacific as it was once known) Halapua formed the view that the information was reliable.
However, when asked about how many sources had given such information the day before the search that is, the latest in time, Halapua said just one, said the Chief Justice.
In addition, he explained that he received information that there were sea cucumbers at the property from a fisheries officer who took a video recording on March 24, of drums with sea cucumbers inside being loaded from a white minivan in the area.
To that point, there had been no mention in any of the affidavits filed nor through discovery, of the video referred to by Halapua. He did not have any information about when any sea cucumbers were to next be exported or otherwise removed or disposed of.
He said that because he saw on the video that cucumbers were about to be removed from the property, Halapua said that they were brought there for the purpose of processing and export, that the vehicle had reversed and loaded the drums of sea cucumbers, he formed the view that they were being taken away at that time.
Closed season
Meanwhile, 'Amanaki Paea a technical officer at the Ministry of Fisheries said to having gathered reliable information that Feng was in possession of sea cucumbers (bech-de-mer), during the closed season.
Under cross-examination, he said that he had not given any information to the police but that he had gathered information from certain people and his co-workers.
However, he could not remember the names of his co-workers who had given him information relevant to the investigation.
He was then asked, whether he understood what was meant by the English language phrase, reliable information. He said he did not.
He then went on to say that he and the other fisheries officers working on the case first discussed the information between themselves and then provided that information to their superior officers who then provided it to the police. He otherwise corroborated salient aspects of Senior Constable Halapua’s evidence.
Unlawful
Meanwhile, the plaintiffs claimed that the entry and the search violated their constitutional rights.
The defendant had contended that those rights are subject to law, which includes s.123 of the Tonga Police Act which, in turn permits police to conduct searches without a warrant where the requirements provided for therein are satisfied, said the judge.
"I am not satisfied that it provided reasonable grounds for being satisfied that there were sea cucumbers at the Blue Lagoon. To be reliable, the information must be verifiable. To be verifiable, the source of the information must be identifiable, the content should be detailed and it must be capable of being tested."
He said, in the majority of cases where the lawfulness of searches without warrant are not challenged, no issue will arise.
“However, when the validity of the search is challenged, as here, police must ensure that they are in a position to demonstrate that the information was reliable, or to put it more accurately, that is constituted reasonable grounds for satisfaction as to the two requirements....It is unsatisfactory for law enforcement officers to raise and hide behind a banner of so-called “reliable information” without endeavouring to reveal the sources and content of that information and to demonstrate why it was considered to be reliable,” he said.
The Lord Chief Justice said here, as noted the fishermen were not called or identified.
“Only the barest detail of the content of the information was disclosed. Further, there was no evidence, for example, as to any previous dealings with any of the fishermen by which the officers could have assessed the reliability of the information given on this occasion.
“At the same time, the assumed reliability rested solely on the number of sources and the commonality of sea cucumbers being taken to the area in which the Blue Lagoon is located.
“However, even if the assessment of that information was thought to be reasonable grounds for the search, it was not supported at least by a video footage.
“As Tolu Fa’aui said, the purpose of deploying the drone was to confirm the information obtained from the fisherman. The drone video footage added nothing to the strength of the defendant’s case for reasonable grounds to search without a warrant other than the presence of a van attending Feng’s premises.
“The irrefutable fact, accepted by all the defendant’s witnesses who were examined on the issue, was that contrary to Halapua’s description of it to Inspector ‘One’one, the video did not depict any evidence of the presence of sea cucumbers on the premises. The vision of buckets was equivocal at best,” he said.
No evidence
The Lord Chief Justice then said, whether it was impracticable, unreasonable or not in the interests of justice to apply for a warrant was not even considered by Halapua.
He deferred that decision to Inspector ‘One’one. Unfortunately, Halapua gave the Inspector inaccurate or incomplete information, particularly about the drone footage, which misled the Inspector into assuming urgency and a risk of losing evidence if the taskforce did not attack the Blue Lagoon immediately.
"I find that there was no or no sound evidence or basis for any view that it was impracticable, unreasonable or not in the interests of justice to apply for a warrant. To put it in positive terms, in the circumstances and the timing before Halapua, it was practicable, reasonable and in the interests of justice for him to have applied for a warrant before conducting the search. His failure to do so rendered the search unlawful.”
He said, as a consequence of the finding of unlawful entry and search, it was accepted by both counsel that the defendant’s officers committed the trespass on the land leased by the first plaintiff.
Damages
Feng also claimed damages for his unlawful detention for the period of the search, which was for some two-hours. His companions who were also detained are not parties to the action and therefore no claim is made for them.
Neither counsel made any submissions on the legal principles applicable to the claim for unlawful detention (as it was termed in the pleadings).
The Chief Justice was satisfied on the evidence that when one of Feng’s companions (Mr Jackie) attempted to get in his vehicle and leave the property, he was stopped from doing so by the police and brought back to the group where he, Feng and the others were told by Halapua that they were not to leave the property until the search was completed.
“I do not accept that they voluntarily agreed to remain,” he said.
The fact that the officers then conducted the search by requiring Feng to open containers and by questioning him is consistent with Halapua’s intention to prevent Feng from leaving. The only real issue of dispute on the facts between Feng and Halapua was in relation to the complaint of assault, he said.
He then ordered that defendant pay the first plaintiff damages for trespass in the sum of $1,000 and exemplary damages in the sum of $1,000.
The defendant is to pay the second plaintiff damages for unlawful detention and assault in the sum of $2,000 and exemplary damages of $1,000.
In addition, the defendant is ordered to pay the plaintiffs’ costs of the proceeding.