IN THE HIGH COURT OF TUVALU 2022

CRIMINAL APPEAL NO.1/21

BETWEEN
			REGINAM				APPELLANT

   AND

			FOLIKI ALFRED			RESPONDENT

Before 		Hon Judge   Sir John Muria

Hearing		15th March 2022

Ms M. Ako for Appellant
Ms N. S. Tusipese for Respondent

J U D G E M E N T

Muria J:	This is an appeal by the prosecution against the decision of the learned Senior Magistrate made on 9th March 2021 ordering the respondent to be released from detention in prison pursuant to section 300 (1) (b) of the Criminal Procedure Code (CPC).  The Respondent opposed the appeal.

	Brief background

2.	The respondent was a Kiribati citizen but has I-Kiribati and Tuvalu blood.  He came to Tuvalu in January 2018 without valid travel documents by the MV Nivaga III voyage from Kiribati to Tuvalu.  It was on 30th January 2020 that the respondent was arrested and charged with two counts of offences against the Immigration law of Tuvalu.  On the first count he was charged with unlawfully entering Tuvalu and secondly, with unlawfully present in Tuvalu contrary to section 17(1)(i) of the Immigration Act.

3.	Following his arrest and being charged the respondent was detained and kept in remand custody at the prison since 1st February 2020 without any Court Order.  He was also declared a prohibited immigrant under section 10 of the Immigration Act.  At the time of the hearing before the Senior Magistrate’s Court on 9th March 2021, the respondent had been in detention for one (1) year and eight (8) days.

4.	At the hearing before the learned Senior Magistrate on 9th March 2021, the respondent pleaded guilty to both counts preferred against him.  The learned Senior Magistrate imposed a fine of $200.00 to be paid within six weeks and in default, one-month imprisonment.  The respondent was also ordered to keep the peace and not to re-offend while in Tuvalu.

5.	In addition to the penalties imposed, the learned Senior Magistrate exercised the Court’s power under section 300(1)(b) of the CPC and ordered the release of the respondent from custody.  It is against the order of the release of the respondent from custody under section 300 of the CPC that the prosecution now comes to this Court on appeal.

	Grounds of Appeal

6.	There are only two grounds of appeal relied on by the prosecution are:

“1.	That the Senior Magistrate erred in law when she incorrectly directed herself to exercise powers under section 300(1) (b) of the Criminal Procedure Code;

 2.	That the Senior Magistrate erred in law after having incorrectly exercised powers under section 300 (1) (b) of the Criminal Procedure Code, she directed for the release of the Respondent.”

and the Orders sought are:

“a.	That paragraph 1 of the Senior Magistrate’s direction(s) and orders(s) in the be quashed;

  b.	That appropriate orders are made for the release or treatment of the Respondent; and

  c.	Any further orders this Court deem fit.”

	Arguments

7.	In her submission, Ms Ako of Counsel for the prosecution argued that the learned Senior Magistrate was wrong in law when she exercised her power’s under section 300(1)(b) of the CPC to release the respondent from custody.  Counsel relies on the affidavit of Efren Jogia to support the argument that section 88 (1) of the Police Powers and Duties Act (PPD Act) justifies the detention of the respondent as it was “reasonably necessary” to prevent the continuation or repetition of the offence of unlawful presence of the respondent in Tuvalu.  It is thus suggested that the continuing detention of the respondent was “reasonably necessary” and to have him released under section 300 CPC would not be right.

8.	Ms Tusipese of Counsel for the respondent, on the other hand submitted that the respondent was arrested in February 2020 and detained by the Police since then until 9th March 2021 when the Senior Magistrates ordered his release pursuant to section 300 (1) (b) of the CPC. Counsel contended that the continued detention of the respondent by the Police for more than one (1) year without a Court Order was unlawful.  Counsel further submitted that section 88(1) of the PPD Act does not and cannot be used by the Police to justify the detention of the respondent for more than 24 hours, let alone more than 12 months.

	Determination

9.	There was some mention of sections 122 and 123 of the PPD Act in the course of arguments.  However, I do not feel those two provisions are relevant for the purpose of this appeal.  Those two provisions deal with detention of a person suspected of committing a felony.  The relevant provisions relied upon in this appeal are section 88 (1) of the PPD Act and section 300 (1) (b) of the CPC and I set them out below.

10.	Section 88 (1) of the Police Powers and Duties Act (PPD) provides as follows;

“(1)	A police officer, without a warrant, may arrest an adult who the police officer suspects, on reasonable grounds, has committed or is committing an offence, if it is reasonable necessary for 1 or more of the following reasons:

a.	to prevent the continuation or repetition of an offence, or the commission of another offence;

b.	to make inquiries to establish the person’s identity;

c.	to ensure the person’s appearance before a court;

d.	to obtain or preserve evidence relating to the offence;

e.	to prevent the harassment of or interference with, a person who may be required to give evidence relating to the offence;

f.	to prevent the fabrication of evidence;

g.	to preserve the safety or welfare of any person including the person arrested;

h.	to prevent a person fleeing from a police officer or the location of an offence;

i.	because the offence is an offence against section 169(Offence to assault or obstruct police officer) or 170 (Offence to contravene direction or requirement of police officer);

j.	because of the nature and seriousness of the offence.”

11.	Section 300(1)(b) of the CPC provides as follows:

“ (1) 	The Senior Magistrate’s Court or the High Court whenever it thinks fit may direct-
			
(b)	that any person illegally or improperly detained in public or private custody within such limits be set at liberty;
			”

12.	It is to be noted that section 88 (1) of the PPD Act empowers a police officer to arrest an adult person without warrant “if it is reasonably necessary” for one or more of the reasons set out in paragraphs (a) to (j).  Counsel for the appellant, as well as Efren Jogia in his affidavit relied on the provisions of section 88 (1) to justify the detention of the respondent as “reasonably necessary” for more than a year to prevent the continuation or repetition of the offence of unlawful presence in Tuvalu.  As will become apparent shortly, the Appellant’s argument must fail.

13.	On any reading of Section 88 (1) of the PPD Act, that provision does not and cannot authorise the detention of the respondent.  All that Section 88 (1) does is to authorise the police to arrest an adult person without warrant if the police suspects on reasonable ground, that the person has committed or is committing an offence and that it is reasonably necessary to arrest the person for any of the reasons set out in subsection (1) paragraphs (a) to (j).  The procedure to detain him must be found elsewhere.

14.	Counsel for the respondent very correctly pointed out that arrest and detention are two different processes.  No authority is given to the police under section 88 (1) of the of the PPD Act to detain the respondent, let alone detaining him for more than one (1) year without any order from the Court.  The detention of the respondent in this case is not only, unreasonable, it is also unlawful.

15.	The procedure to detain a person who is arrested without warrant is set out in the Criminal Procedure Code.  

16.	It hardly needs pointing out that any prosecuting authority would do well to observe the provision of section 23 of the Criminal Procedure Code, after arresting a person without a warrant.  Section 23 of the CPC provides:

“23. 	Detention of person arrested without warrant.

When any person has been taken into custody without a warrant for an offence other than murder or treason, the officer of or above the rank of sergeant or the officer in charge of the police station to whom such person shall have been brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate magistrate’s court within 24 hours after he has been so taken into custody, inquire into the case, and unless the offence appears to the officer to be of a serious nature, release the person on his entering into a recognisance with or without sureties, for a reasonable amount to appear before a magistrate’s court at a time and place to be named  in the recognisance, but where any person is retained in custody he shall be brought before a magistrate’s court as soon as practicable:
			
Provided that an officer of or above the rank of sergeant or the officer in charge of the police station may release a person arrested on suspicion on a charge of committing any offence, when after due inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with the charge.”

17.	Having remarked on the failure by the authorities responsible to observe the laws and proper procedures under the Immigration Laws, the Criminal Procedure Code and Bill of Rights provisions under the Constitution, the learned Senior Magistrate pointed out that:

“It is obligatory and dutiful that officers mandated under the laws ensure that they fully understand, and seek to observe the clear procedures relevant in such cases and importantly comply with procedures.”
	
18.	The main thrust of the Appellant’s complaint in this appeal is that the learned Senior Magistrate was wrong in law when she exercised the Court’s power under section 300 (1) (b) of the CPC to order the release of the respondent from detention.  The record shows that at the hearing, the respondent pleaded guilty to the charges of unlawful entry and unlawful presence in Tuvalu and the Court imposed a fine and a binding over to keep the peace on the respondent.  

19.	Having found that the respondent had been unlawfully and improperly detained for more than one (1) year, the learned Senior Magistrate exercised the Court’s power under section 300 (1) (b) and ordered the release of the respondent from custody, in addition to paying a fine for the two offences to which he pleaded guilty.

20.	The conditions for the Court to exercise the power under section 300 (1) (b) are respondent’s legal entitlement to the protection of the law and that the police have illegally or improperly detained him. The Court found that the respondent had been unlawfully detained in this case.  The learned Senior Magistrate was plainly correct to exercise the Court’s power under section 300 (1) (b).  No criticism can stand against the Order made by the learned Senior Magistrate in this case, particularly in view of the lengthy detention of the respondent since 1st February 2020 without any order of the Court.

21.	The result is that the appeal fails and it is dismissed.

	The Orders of the learned Senior Magistrate are affirmed.

	Dated on the 22nd day of March 2022.

Sir John Muria
Judge