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Kum Kee v Abaiang Island Council - judgment [2002] KIHC 42; Civil Case 28 of 2001 (7 October 2002)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 28 of 2001

Between:

WAYSANG KUM KEE TRADING AS
WKK ENTERPRISES
Plaintiff

And:

ABAIANG ISLAND COUNCIL
1st Defendant

And:

THE ATTORNEY GENERAL ON
BEHALF OF THE KIRIBATI POLICE FORCE
2nd Defendant

For the Plaintiff: Mr Banuera Berina
For the 1st Defendant: Mr Aomoro Amten
For the 2nd Defendant: Mr Tion Nabau

Dates of Hearing: 25 & 26 & 27 September 2002

JUDGMENT

Mr Waysang Kum Kee has a business of harvesting, processing and exporting sea cucumber (bêche de mer). On 18 July 2001 he had a Fisheries Processing Establishment Licence, licensing premises for processing, drying and packaging facilities. The licence was subject to Conditions "stated on a separate sheet of paper". I have not seen them and assume the conditions were of no relevance in this action.

Mr Kum Kee did not have a licence to fish for sea cucumber. He gave as his reason that he did not employ the divers, merely bought the catch from them: the individual divers should have the licences. I reject Mr Kum Kee's reason. Mr Kum Kee supplied the mothership "Teitinraoi" (or "Itinraoi" as it is variously spelled in the papers) and the boat from which the divers dived: he supplied all the equipment. The arrangement was one of employer and employee. The divers were not paid a fixed sum but depending on their catch: it was piece work. They were employees nonetheless.

[There is one other argument which Mr Banuera Berina, for the plaintiff, had but did not stress. Nevertheless I deal with it. Mr Kum Kee has his office on Tarawa, not on Abaiang. The Abaiang bye-law (paragraph 3(a)) refers to "the business person". Mr Berina suggested that his client was not a "business person" on Abaiang but on Tarawa. There is no doubt Mr Kum Kee was carrying on the business of fishing at or near Abaiang and that is sufficient to make him a "business person" within the bye-law. Whether he had an office on Abaiang or not is irrelevant.]

The Fisheries Ordinance [Cap 33] provides for the licensing of a "local fishing vessel". The "Teitinraoi" is not licensed. The definition of a "fishing vessel" excludes a vessel "having an overall length of less than 7 metres". Paragraph 1 of the Statement of Claim describes the vessel as "a 20 ft wooden boat". The first defendant did not plead to the allegation and must be taken to deny it: the second defendant did not admit it. No evidence was given of the length of "Teitinraoi". I cannot say whether it needed a licence or not, whether it had overall length of more than seven metres. I referred to this matter in my judgment in civil case 49/00, Waysang Kum Kee t/a WKK Enterprises v Tabiteuea North Island Council and Attorney General (in respect of the Kiribati Police Force).

Some time before 18 July 2001 Mr Kum Kee had applied to the Abaiang Island Council for a licence under the Council bye-law. He sent $2,750 by money order to the Council. The Council refused to give him a licence and returned the money.

On 18 July Nikuata Beretitara was the captain of "Teitinraoi" which was acting as mothership for the divers diving for sea cucumber. Nikuata was in touch, usually daily, with his employer, Mr Kum Kee. The divers were diving at Abaiang. Nikuata:-

On 18 July 2001 divers diving at Abaiang outside lagoon: for sea cucumber – white teats. Usually found at 50-60m outside lagoon – beyond reefs a mile. Equipment and catch seized outside lagoon, beyond the reef: they were seized at the place where "Teitinraoi" was anchored: 30-40m from where the divers were diving. One policeman, Clerk (the lady) and one employee from Fisheries: others came with them.

Nikuata was told he was under arrest, ordered to move the vessel closer to the shore. All the equipment and the catch were seized.

Nikuata and the divers were soon released. The equipment and the catch were locked in a Council store room. Time at the hearing was taken up over who had custody of all this, the Council or the police. There was evidence of who had the key from time to time. The first and the second defendants were at odds. It doesn't matter. On outer islands there are not many places to store things. Necessarily police and council cooperate and work together, use each other's facilities. The relevant issue is who was responsible for the seizure, not who stored the things afterwards.

The sequence of events on 18 July was this. "Teitinraoi" was seen fishing for sea cucumber. The Clerk of the Council, Mrs Auataake Tabaki, complained to the police. The police acted on the complaint. Police Constable Tannang Tekiaketara set out in a speed boat, in company with the Clerk, her husband and a Fisheries officer.

Mr Tion Nabau, for the second defendant, argued that the police were merely the agents of the Council, acting on the complaint and at the direction of the Council. I reject the argument. The police received the complaint. They exercised their own discretion to act. It would be absurd to suggest that every time a citizen makes a complaint to the police and the police act on it, the police are acting as agents for the complainant. The police seized these things and they are responsible for the consequences. Who stored them subsequently and where is irrelevant.

The Council and the police believed they had the power to arrest and to seize the goods by virtue of the Abaiang bye-law "to regulate the harvesting of te kereboki in the Abaiang lagoon waters." The bye-law, a copy of which was tendered (Exhibit P6) is in an imperfect form: indeed I find it hard to believe that it could have been settled by a legal practitioner. In making the by-law the procedure followed, explained to me by the Council Clerk, was draft of the bye-law by the Council, draft sent to the Minister for Home Affairs, sent to the Attorney General. The bye-law should then have been returned to the Council to pass it and the Chief Councillor to sign it. It should finally have been sent to the Minister for his approval and signature.

I doubt if this procedure were followed, for two reasons. First, the imperfect form of the bye-law. Second, the date given for the approval of the Minister is 3 January 2001 while the dates on which it was made by the Council and signed by the Chief Councillor are shewn as 15 March and 16 March 2001, respectively.

Fortunately I need not canvass the validity or otherwise of the bye-law. About the only point clear is that it is to regulate activities in the lagoon. I have already set out the heading. Clause 3(d):-

Scuba diving gears are not allowed to be used when fishing for te kereboki in the Abaiang lagoon within 20 miles from the land.

The weight of evidence is that the divers were working outside the lagoon. This is the evidence of Nikuata. Tannang in evidence in chief said:-

"Teitinraoi" located west of islet called Teteirio right next to the reefs: nearer to other islets. Inside the lagoon: twenty minutes in speed boat from mainland.

But in cross examination by Mr Berina:-

Abaiang reef encircling the lagoon. To get into lagoon passages for boats. Diving done right outside the lagoon near the islet of Teteirio. Diving not done inside lagoon at all.

To the contrary Tonganiti Uatioua, Chief Councillor at the time, said:-

...we complained because of fishing of sea cucumber in our lagoon.

When complaint, ship in lagoon.

On the balance of probabilities I find that "Teitinraoi" was fishing outside the lagoon and the police and party boarded it outside the lagoon.

It has not been proven that Mr Kum Kee required a licence either under the Fisheries Act or under the Abaiang Bye-law to fish where "Teitinraoi" was fishing.

Mr Nabau made other submissions to justify what was done. He relied on three sections in the Criminal Procedure Code – sections 15 ("Powers of police officers to detain and search persons, vehicles and vessels in certain circumstances"), 18 ("Arrest by police officer without warrant"), and 104 ("Detention of property seized").

None applies here. Section 15(1) does not extend to a vessel, only to "any vehicle, package or otherwise". The eijusdem generis rule is not strong enough to extend those words to include a vessel. Especially as section 15(2) does give power to board a vessel but only to "any police officer of or above rank of sergeant." Tannang was a police constable. Section 18 deals with arrest. No complaint is made of the arrests. Section 104 contemplates things seized being "brought before a court". Nothing was brought before a court.

On 23 July Mr Kum Kee drew a blank cheque in favour of the Council. He sent Nikuata to Abaiang on 25 July with it to pay whatever was necessary to secure the release of the things seized. The Council Clerk and the Chief Councillor refused to accept the cheque. The Clerk gave a specious reason, something to do with bureaucratic processes directed by the Ministry of Finance in Tarawa. The Chief Councillor was nervous about the cheque as it was blank. In any case, he would not have accepted it as he wanted Mr Kum Kee prosecuted and the matter decided in court. On the other hand the Clerk said they "would have accepted cash"; "if on 23 July payment in cash, goods would have been released."

Whatever the reasons for refusing to accept the cheque, the Council was not obliged to accept payment by cheque. A cheque is not legal tender. It may, for example, bounce. No one is obliged to accept payment by cheque. When the things were finally released on 11 August payment was made in cash.

Despite the assertion of the Chief Councillor, on the balance of probabilities, had Nikuata tendered cash to the Clerk on 21 July, everything would have been released.

Subsequently there were negotiations between the plaintiff, the Chief Councillor who came to Tarawa, and others. I do not know what the negotiations were or who took part: the name of Betiota, Senior Adviser to Local Government, was mentioned. All I know is the upshot: on 11 August Nikuata paid in cash $4,443 to the Council, the Clerk asked Tannang to release everything and everything was released. How the $4,443 was made up was not in evidence but it is the amount which changed hands.

I think $4,443 must have had something with second paragraph of Clause 4(a) of the Bye-law:-

("The Company and Agent") – " - would be liable to pay a fine of $100.00 and it boats including its fishing appliances would be confiscated until the fine is paid plus double the price of the weight of the catch after being weight by the weighing officer".

There never was a prosecution. The police sent the file to Police headquarters in Tarawa for final decision. On 16 August it was closed and sent back to Abaiang. Supt Ritere Tautua said he:-

closed the case on 16 August because already received information money paid to Council: regarded it as a civil case.

No justification in law has been shewn to arrest anyone or to seize anything, either under the Fisheries Act or under the Abaiang Bye-law.

What follows? Obviously the Council must repay to the plaintiff the $4,443 handed over as a condition of the release. The Council has no right to the money.

What about the police? Mr Nabau referred me to several cases and generally to the book "Civil Actions against the Police" by Clayton and Tomlinson. The police had neither warrant nor, as it turned out, justification in law to act as they did.

The leading case so far as I can research the point, given our limited resources in Kiribati, is the decision of the Court of Appeal in Ghani and Others v Jones ((1969) 3 All ER 1700). The two other members of the court agreed in the judgment of Lord Denning M R. Two passages from the Master of the Rolls:-

The common law does not permit police officers, or anyone else, to ransack anyone's house, or to search for papers or articles therein, or to search his person, simply to see if he may have committed some crime or other. If police officers should so do, they would be guilty of a trespass. (@ 1703).

We have to consider, on the one hand, the freedom of the individual. His privacy and his possessions are not to be invaded except for the most compelling reasons. On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime. Honest citizens should help the police and not hinder them in their efforts to track down criminals. Balancing these interests, I should have thought that, in order to justify the taking of an article, when no man has been arrested or charged, these requisites must be satisfied:

First. The police officers must have reasonable grounds for believing that a serious offence has been committed – so serious that it is of the first importance that the offenders should be caught and brought to justice. (@ 1705).

I need not set out the other four requisites. The first is decisive in this case.

The Master of Rolls left vague what he meant by "a serious offence – so serious that it is of the first importance that the offender should be caught and brought to justice".

I have not been able to find any definition or explanation since of a "serious offence" either in England or Australasia. Ghani v Jones according to the ANZ Citator 2001, has been applied, considered, followed and distinguished in Australia: not followed once in New Zealand. I shall follow it in Kiribati. Wherever the line should be drawn between a serious offence and one not serious I am confident that taking sea cucumbers off Abaiang prohibited by a bye-law bringing a $100 fine and imprisonment for six weeks is not one of them: the police were not justified in acting as they did. They are liable to the plaintiff.

Mr Kum Kee gave evidence of his loss. The calculations are in Exhibits 6 and 6A. He was not cross examined on them: there is no other evidence. There is no reason not to accept his figures.

What period should I allow? The things were finally returned on 11 August after negotiations at which I can only guess. However if Nikuata had offered cash on 25 July the goods would have been returned. Mr Kum Kee could have had everything back on that day. I shall allow a loss of seven days, from 18 to 25 July. In the hope that the parties can agree on how much that is I shall ask counsel to make calculations.

Before parting with the case I venture to make an observation. If Parliament wishes to conserve the stock of sea cucumber around the shores of Kiribati and to regulate its harvesting, consideration should be given to strengthening the provisions of the Fisheries Act [Cap 33], the more effectively to provide for the regulation of the harvesting of sea cucumber. Perhaps also the Government could draft a model bye-law which the Island Councils could adopt so that they have effective power to regulate fishing in their own waters.

There will be judgment for the plaintiff against the first defendant, Abaiang Island Council, for $4,443 and against the second defendant, the Attorney General in respect of the Kiribati Police Force, for an amount to be assessed in accordance with these Reasons. Before entering judgment I shall adjourn the hearing to enable the necessary calculations to be made.

Dated the day of October 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE