IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 81/2005

BETWEEN:

KESTER YEE of 109 Church Street, Nadera, Nasinu, Suva in the Republic of the Fiji Islands, Businessman.
Plaintiff

AND:

THE COMMISSIONER OF THE FIJI POLICE FORCE Ratu Sukuna House, MacArthur Street, Suva in the Republic of the Fiji Islands.
First Defendant

AND:

THE ATTORNEY-GENERAL of the Republic of the Fiji Islands, Suvavou House, Victoria Parade, Suva.
Second Defendant

______________________________________________________________________________
Before: Master Anare Tuilevuka
Counsels: Messrs Prem Narayan & Associates for the Plaintiff
 Attorney-General's Office for the Defendant

Date of Ruling: 08th February 2011

RULING
(Assessment of Damages)

[1].	In this case, the parties have agreed to special damages in the sum of $37,092-01 in 2008. This is recorded in a set of Minutes of Pre-Trial Conference filed herein on 9th day of May 2008 and signed by Ms Prem Narayan for the plaintiff and Mr Raramasi Salakubou for the defendants. 

The parties agree as follows:

1.0	Special damages
1.01	Special damages agreed to is the sum of $37,092-01.
1.02	Interest on the special damages at the rate of 3% per annum commencing from 12 February 1999 in the sum of $9,102.48.
1.1	Costs
2.01 Costs payable to the Plaintiff is agreed in the sum of $4,000-00.

DATED this 9th day of May 2008.

Sgd. Sgd
Prem Lata Narayan Salakubou Raramasi

[2].	Some two years earlier, on 13th March 2006, Interlocutory Judgement was ordered by consent by Master Udit:

UPON HEARING Ms. Prem Narayan Counsel for the Plaintiff and Ms Daiana Buresova Counsel for the Defendants. (sic)

(a)	It is this day ordered by consent there will be an Interlocutory Judgement for the Plaintiff as to liability. Damages are still to be assessed.

(b)	The case is adjourned for three weeks for parties to consider settlement and/or prepare their documents ready for trial of the assessment of damage.

(c)	The case is adjourned to 7 April 2006 at 8.45 a.m.

Dated and sealed at Suva this 27th day of October 2006. (sic)

[3].	When the case was called before me on 21st May 2010, both Ms Narayan and Mr Salakubou appeared before me and confirmed the above interlocutory judgement on special damages. The only issue before me now is as to what measure of general damages the plaintiff is entitled to. Before I get onto this, let me just recite some background into the plaintiff's claim.

[4].	The plaintiff is seeking damages for breach of sections 26; 27(1)(a),(b),(c) and (d); 29(3); and 38(1) and (2) of the Constitutional Amendment Act 1997.

[5].	I note that the alleged cause of action for breach of section 38 based on allegation of discrimination and the alleged cause of action for breach of section 27 for unlawful detention (as appear on paragraphs 3.1 (a) and (b) of the plaintiff's submissions – both accrued on 12th February 1999. The claim however was filed on 23rd February 2005 which was just over six years from the date the cause of action accrued. It is out of time and there is no record of leave ever being sought by the plaintiff in respect of this part of the claim. I note though that neither of the defendants' counsel had completely overlooked this point in their pleadings and submissions and Order 18 Rule 7(1) requires that this be pleaded specifically.

[6].	By way of background, in January 1999, the plaintiff set up a social club styled Kester's Catering Room at the Metropole Building in Suva. The club provided recreational activities for the elderly members of the Chinese community in Suva. However, barely a month after he set up the club, on 12th February 1999, the plaintiff was at the Central Police Station in Suva to report that he had been robbed of the sum of $9,000-00. However, as it turned out - at the police station, he was to be charged with robbery with violence. 

[7].	His first causes of action relate to the alleged violation of his rights on the 12th February 1999. As stated, though these are well out of time, the defendants' lawyers did not plead section 4 of the Limitation Act. In any event, the plaintiff alleges that he was discriminated upon on the day in question when he was called "kai china" and was not informed of the nature of the charge – let alone was he given an opportunity to consult legal counsel nor was he allowed to contact his wife and or children.

[8].	In August 1999 – the police allegedly visited him again at his premises twice – first on the 3rd and then on the 14th.

[9].	The cause of action alleged for the 3rd is unlawful search is unlawful search for failing to provide a search warrant and lack of respect for the privacy of his family by leaving the plaintiff's house in a mess and using derogatory terms against the plaintiff and his family.

[10].	For the 14th of August, the plaintiff seeks damages for breach of constitutional rights when, allegedly in their search, the defendants failed to provide a search warrant or to inform the plaintiff as to why they were searching this house and also conducting the search whilst the plaintiff was asleep, failing to respect the privacy of the plaintiff and in particular forcefully awaking him and seizing all moveable chattels for no reasonable purpose.

[11].	For the 24th of October 2001, the cause of action pleaded is breach of constitutional rights for the police's failure to inform him that he was being detained when he was being detained, or the reasons for his detention, for failing to inform him of his right to communicate with his spouse, failing to treat him with respect and using derogatory terms, and failing to release on bail.

[12].	The plaintiff also pleads breach of constitutional rights when he was recharged for a robbery offence for which he had been discharged and for failure to prosecute within a reasonable time (Criminal Case 3356/01) and also for a gaming offence (Criminal Case 3339/01).

[13].	I also see the words "malicious prosecution" appearing on the pleadings vis a vis the recharging.

[14].	The main difficulty I face in assessing general damages in this case stem from the following: 

(i)	there was no open court hearing on assessment of damages. 

(ii)	counsels had simply filed written submissions and asked me to rule thereon.

(iii)	yet the submissions filed are at variance on some crucial aspects. 

(iv)	the theme that runs right through defendants' counsel's submissions is that:

 "the defendants had fully complied with the requirement of the law which was acceptable under the abrogated Constitution (Amendment) Act 1997.......The Plaintiff was detained and his properties were seized in accordance [with] the requirement of the law which was authorised under the abrogated Constitution (Amendment) Act 1977" 

(see paragraph 3.2 of submissions of defendants' counsel).

(v)	the defendants' counsel then submitted as follows:

"The defendants submit that the Plaintiff is not entitled to be awarded with general damages. The Defendants lawful action will consequently cause damages to the Plaintiff. As a matter of public policy, police are normally immune from actions of negligence in respect of their activities in investigation and suppression of crime; pursuant to Hill v Chief Constable of West Yorkshire. This case was cited with authority by Fiji Court of Appeal when dismissing the appeal in James Satish Bechu v CoP & A-G"

(vi)	the tone of the defendants' counsel's submissions appear to renege on their earlier admission to liability – however, the general matrix of facts is agreed between the parties.

(vii)	there is a fine line between when a police arrest, detention, seizure of goods, re-charging a discharged accused etc is perfectly within the lawful entitlement of the police and when it becomes unlawful and a breach of the constitutional or human right of an individual.

(viii)	but one thing is for certain – is that authorities are abound both in Fiji and abroad that there is a wide protection afforded to the police. The defendants' counsel cites various case authorities all of which endorse the wide protection to police officers in their duty to investigate and suppress crimes and to seize and keep goods in respect of which there is a reasonable suspicion that an offence has been committed (see Hill v Chief Constable of West Yorkshire (1988) 2 ALL E.R. 238; Chief Constable of Northumbria v Costello (1999) 11 Admin L.R. 81; Tiara Enterprises Ltd v A-G [2009] FJHC 155; HBC 418 of 1997 (29th July 2009) and Crystal Clear Video Ltd v Commissioner of Police [1988] FJHC 1; [1988] SPLR 130 (22 July 1988); R v Zotti [2002] SASC 164 (24 May 2002; Bainivalu v Fiji Police Force [2004] FJHC 286). 

(ix)	where they disagree is whether or not there was a breach of the provisions of the constitution. This is a triable issue. Both parties have simply relied on submissions filed. 

[15].	I reiterate my view based on the above authorities that - the law must presume the defendant officers to perform in accordance with the law the raid, the searches and the seizure which they carried out. So – it is on the plaintiff to prove otherwise at a trial. Proof of these cannot be determined summarily – let alone on the basis of legal submissions.

[16].	I remind myself that the defendants' counsels have indeed conceded to liability and even agreed to special damages. Yet – I also observe that the tone of their submissions in relying still on the wide protection of the law vis a vis police investigations and even in the decision to recharge the plaintiff. I ask whether the prior admission to liability should now act as an estoppel to the defendants from now relying on the immunity provided under the law.

[17].	It is also impossible to decide whether or not the plaintiff is entitled to exemplary or aggravated damages as this will depend on the conduct of the defendants – of which no evidence has been put before me. 

[18].	In the circumstances – I resolve that it is best to adjourn the hearing of assessment for general damages to another date to be fixed by and before Master Amratunga.

Anare Tuilevuka
Master

At Lautoka 
08th February 2011.