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

C.No.739 & 743/00.
C.No.739/00

BETWEEN:

TEMISIO FIFITA
Plaintiff;

AND:

1. MINISTER OF POLICE
First Defendant
2. KINGDOM OF TONGA
Second Defendant

C.No.743/00

BETWEEN:

NUSI NAITOKO
Plaintiff;

AND:

1. MINISTER OF POLICE
First Defendant
2. KINGDOM OF TONGA
Second Defendant

BEFORE THE HON. CHIEF JUSTICE WARD in Chambers

Counsel: Mr S.T. Fifita for the Plaintiff
Miss S. Tupou for the Defendants

Date of Hearing: 11 January 2001
Date of Ruling: 25 January 2001

RULING

These two separate actions arise out of similar circumstances and depend on the interpretation of the same parts of the Prisons Act (Cap 36) and the Prison Rules. That interpretation could decide the whole action and I have directed it should be determined as a preliminary point. Counsel have filed written submissions and I have given them the opportunity to make any further oral submissions they wished.

In each of these cases, the plaintiff was arrested by the police and charged with being drunk in a public place. Each appeared before a magistrate in the morning of 11 July 2000, pleaded guilty and was fined $25.00 in the case of Fifita and $20.00 in the case of Naitoko. In both cases, the magistrate ordered payment forthwith and, in default of payment, ordered imprisonment for 4 days in the case of Fifita and for 3 days in the case of Naitoko. There is no evidence to link the two cases.

The men were taken to the Central Police Station in Nuku'alofa and despite their requests to be taken to prison were detained at the police station until the following day, 12 July, when they were transferred to the Prison at Hu'atolitoli.

Naitoko was released on 14 July and Fifita a day later on 15 July.

They claim, first, that their detention by the police at the police station was ultra vires the order of the committing magistrate and, second, that the total term served in each case was one day too long.

1. The warrant of commitment used in such cases is Form 10 of the Schedule to the Magistrates' Courts Act (Cap 11). It is addressed to each and all constables and the gaoler of the relevant prison and sets out the terms of the fine and the default of payment. It continues:

"You the said constables are hereby commanded to convey the defendant to the said prison and there to deliver him to the gaoler together with this warrant and you the gaoler of the said prison to keep the said defendant imprisoned for the space of………..unless the said sum of ……….be sooner paid."

The plaintiffs' case is that the terms of that warrant clearly only authorise the police officers to detain the prisoner for the purpose of conveying him to the prison. They had no right, Mr Fifita suggests, to hold him in the police station.

I agree that the officer's duty is to convey the prisoner and to deliver him to the gaoler to serve his sentence but I cannot accept that means the police may not take him to the police station on the way. There may be many practical difficulties about conveying the prisoner and there may be other people committed to prison during the course of the court sitting that same day. It would be unreasonable and unrealistic to expect the police to have to convey each and every prisoner directly to the prison as soon as he has been sentenced. As most criminal cases are the result of earlier police action, there will also be police documentation that needs to be carried out at the police station. The magistrate may have a number of cases during the same sitting and it is not practical to prepare and sign a warrant for each person as he is sentenced. As a result, the warrant may not be signed until later in the day and it would be wrong of the police to deliver a prisoner to the gaoler without a warrant.

Rule 105 of the Prison Rules sets out the duties of the admitting officer in the case of every newly admitted prisoner. They will inevitably take some time and I accept Miss Tupou's suggestion that, after a certain point in the afternoon, it may be reasonable to detain the prisoner in the police station until the following morning rather than deliver him to the prison late in the day and that will not be a breach of the terms of the warrant of commitment.

2. Mr Fifita told the court that the plaintiffs had attended court on the 11 July at 10 am in obedience to a summons. They had, he said, arrived well before that and were sentenced the same morning. He suggests that the first day of detention is that day. That would mean the second day was the 12th and the third day on which Naitoko should have been released was 13th. Fifita, similarly, should have been released on the fourth day which, on those calculations, would have been the 14th. His submission relies on the term "day" meaning a calendar day and on the period served including the day the order was made.

Miss Tupou points out that there is no definition of "day" in the Prisons Act. She explains that, as a result, the prison authorities have taken a day as being 24 hours. She points out that, with some exceptions with which we are not concerned here, by Rule 112 every prisoner shall be discharged at 1 p.m. "on the day when his sentence expires or otherwise terminates".

On that basis, the plaintiffs were sentenced at about 10 am on the 11th and Naitoko's sentence of three days would expire at 10 am on the 14th. By rule 112 he would then be released at 1pm of that day as he was. Similar reckoning would result in the release of Fifita at 1pm on the 15th as occurred.

I cannot agree with either proposition.

In the absence of any specific provision in the Act, it is necessary to take the provisions of the Interpretation Act (Cap1) into account. Section 19 provides:

"In every case in which an Act prescribes a particular number of days from a particular day or date for the doing of any act or for any other purpose, then in reckoning such number of days the specified day or date shall be excluded therefrom."

The Magistrates' Courts Act and the Criminal Offences Act give the courts the power to impose a sentence of imprisonment in default of payment of a fine.

I am satisfied that the proper calculation of any sentence of imprisonment should be made by excluding the day of the order. I also consider that the reference to day or date in section 19 means a calendar day and the wording of Rule 112 in my opinion clearly refers to calendar days also. In the present cases, it would mean that the first day of the sentence is the calendar day following the making of the order, namely 12 July. In the case of Naitoko the last day of his imprisonment would be the 14th. That therefore is the day upon which his sentence expires and so rule 112 requires that he should have been discharged at 1pm on that day. Fifita, on the same reckoning should have been released at 1 pm on the following day, the 15th. That is the time each man was released.

I consider the suggestion that the day should be a 24 hour day from the time of detention, whilst no doubt adopted to be as accurate and fair as possible, could, as a result of Rule 112, produce an unjustified difference in the period of time served for identical sentences passed on the same day. On that calculation, a man sentenced, for example, to three days imprisonment at midday on the 1st would be released at 1pm on the 4th whilst another man sentenced to the same penalty at 2pm on the same day would not be released until 1pm on the 5th. That would only be avoided by reading Rule 112 as meaning a calendar day which would be inconsistent with the basis of the original calculation.

Equally it means that any man sentenced, for example at 10am, will wait for his release until 1pm on the day his sentence expires with the result that he will remain in custody for three hours more than his sentence. I cannot accept that is the intention of the law.

No method of reckoning is totally fair and there are clear injustices that can arise from the adoption of the basis of calculation in section 1 of the Interpretation Act but I am satisfied that is the correct method under the law and I so rule.

NUKU'ALOFA: 25 January 2001.

CHIEF JUSTICE