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Tavake v Kingdom of Tonga [2008] TOLawRp 58; [2008] Tonga LR 304 (19 December 2008)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CV 296/2007

Tavake

v

Kingdom of Tonga

Ford CJ
13 and 15 October 2008; 19 December 2008

Civil law – false imprisonment – damages sought – exemplary damages not sought – damages awarded

Following the civil disturbance and riots which occurred in Nuku'alofa on 16 November 2006, a number of people were apprehended and kept in police custody. The 25-year-old plaintiff was one such person. He subsequently brought a claim for damages in the sum of $40,000 against the Crown for false imprisonment and for assault by senior police officers at the Central Police Station. The plaintiff was taken into custody on 22 November 2006 and placed in handcuffs until he was eventually moved to the Nukunuku Police Station on 28 November 2006. The plaintiff's hands were handcuffed behind his back. The cuffs were applied very tightly and every time he moved they dug into his raw flesh. His hands soon became swollen and puffy and he experienced great pain and suffering. He was unable to go to the toilet or use the bathroom. When the plaintiff was transferred to Nukunuku Police Station on 28 November, the cuffs were removed. He was then held at the Nukunuku Police Station until 20 December 2006. The plaintiff acknowledged that subsequently he pleaded guilty to a charge that while being riotously assembled he had begun to damage the Ministry of Finance building. In his pleadings he claimed that the handcuffs had been used by the police to secure a confession from him. The Crown did not challenge the handcuff evidence which formed the basis of the assault charge but it did dispute the false imprisonment claim. It denied the plaintiff's allegation that he had not been informed of the reason for his arrest and it denied his further allegation that he had not been taken before a magistrate within 24 hours of his arrest as was required by section 22 of the Police Act (Cap 35).

Held:

1. On making an arrest without warrant a police officer must tell the person why he was being arrested unless the circumstances are such that he must already know the general nature of the alleged offence. If the police failed to inform a suspect accordingly, the arrest will be held to be unlawful. The court was satisfied that the plaintiff had been informed of the general nature of the alleged offence.

2. The court was not satisfied that the plaintiff had been taken a before magistrate within 24 hours of his arrest as was required under section 22 of the Police Act. The plaintiff had, therefore, been lawfully arrested but his detention had become unlawful when the police failed to take or send him before a magistrate as required by section 22 of the Police Act. The plaintiff was entitled to damages for false imprisonment from that point on.

3. In section 22, Parliament has prescribed specific provisions to protect the individual against the excess or abuse of the powers of arrest and detention. Even in times of emergency, the police were not above the law. There were rules; the police must stick to them - see Roberts v Chief Constable of Cheshire [1999] EWCA Civ 655; [1999] 1 WLR 662.

4. In assessing damages, it was necessary to take into account the real value of money in the Kingdom and the fact, which was common knowledge, that a large percentage of people were unemployed with no available government benefits or regular source of income.

5. A claim for exemplary damages must be specifically pleaded and, as no exemplary damages had been claimed, they could not be awarded.

6. For the period the plaintiff was unlawfully detained in handcuffs at the Central Police Station, he was awarded compensatory and aggravated damages in the sum of $2400.

7. The plaintiff made no complaint about his treatment at the Nukunuku Police Station. For the period he was wrongfully detained at Nukunuku he was awarded $550.

8. For the pain and suffering and humiliation the plaintiff endured as a consequence of the handcuff assault, he was awarded damages in the sum of $1500.

9. In total, the plaintiff was awarded $4,450 together with costs to be agreed or taxed.

Cases considered:

Edwards v Pohiva [2003] Tonga LR 231

Fainga'a v Lelea [2005] Tonga LR 8

Fifita v Fakafanua [1998] Tonga LR 127

Lavaka v Ministry of Police [2000] Tonga LR 17

Roberts v Chief Constable of Cheshire [1999] EWCA Civ 655; [1999] 1 WLR 662

R (SK) v SSHD [2008] All EK(D) (6 November 2008)

Thompson v Commission of Police [1997] EWCA Civ 3083; [1997] 2 All ER 762

Statutes considered:

Bail Act 1990

Evidence Act (Cap 15)

Police Act (Cap 35)

Police and Criminal Evidence Act 1984 (UK)

Regulations considered:

Emergency Powers (Maintenance of Public Order) Regulations 2006

Counsel for the plaintiff : Mr Edwards
Counsel for the defendant : Mr Kefu

Judgment

The Claim

[1] The 25-year-old plaintiff is one of a considerable number of people who were apprehended and kept in police custody during the period immediately after the civil disturbance and riots which occurred in Nuku'alofa on 16 November 2006. The plaintiff seeks damages against the Crown for false imprisonment and for assault by senior police officers at the Central Police Station. The damages claimed total $40,000 made up of $20,000 in respect of each alleged cause of action.

[2] The claim for false imprisonment is essentially based in the alternative on two grounds. First, that the plaintiff was not charged with any offence or informed of the offence for which he was arrested. Secondly that he was not taken before a Magistrate "to be charged, bailed or otherwise dealt with pursuant to section 22 of the Police Act (Cap 35)."

[3] The claim for assault was based on the fact that during the entire period the plaintiff was held in the cells at the Central Police Station "from 22 November 2006 until 28 November 2006 his hands were continuously handcuffed behind his back causing him to suffer extreme and severe pain."

[4] At the conclusion of the evidence for the plaintiff, Crown counsel sensibly acknowledged that liability was not disputed in relation to the claim for assault and all that the Court would be asked to determine under that head would be the amount of damages. The Crown, however, strongly denied the allegation of false imprisonment.

Case for the plaintiff

[5] The plaintiff lives with his parents in a house close to the Mu'a Police Station. On 22 November 2006, while the plaintiff was working at the family bush allotment, two police officers, PC Fakalelu and PC Finefeuiaki, visited his home and left a message with his father asking him to call at the police station when he returned from the bush. That same afternoon, the plaintiff returned from work and, after taking a bath, he walked down to the police station. He was placed in a cell and later that same afternoon he and other suspects were handcuffed and taken into the Central Police Station at Nuku'alofa. When he was placed in cell No 7 at Central Police Station his handcuffs were removed.

[6] On the morning of the 23rd of November the plaintiff was taken to the CID (Criminal Investigation Department) room and interviewed briefly. He told the court that he identified himself in a police photograph and then an officer told him that he had seen him in a group marching towards the Prime Minister's office on the day of the riots. The plaintiff denied participating in such a march and he said in evidence that he was then immediately taken downstairs by an officer who handcuffed his hands behind his back on the way downstairs and put him back in his cell. The plaintiff said that the cuffs were very tight and he could not move around. The handcuffs remained in place until the plaintiff was eventually removed to the Nukunuku police station on 28 November 2006.

[7] In his statement of claim the plaintiff described how the handcuffs dug into his raw flesh every time he moved and his hands became swollen and puffy. He experienced great pain and suffering physically and mentally and often urinated in his pants without being able to control himself. In his evidence before the Court the plaintiff elaborated on these allegations. He said that twice a day he and his cellmates were fed half a loaf of bread and they had a plastic bottle from which they could fetch water from the toilet. The plaintiff said that he had to rely on his cellmates to feed him but sometimes he would have to feed himself by bending over and eating into the bread on the floor while his hands were cuffed behind his back. Again, he was reliant on his cellmates to fetch him water but he described how on some occasions he would have to bite into the top of the bottle and tilt his head back in order to have a drink. He was unable to use his hands.

[8] The plaintiff also described his embarrassment when he had to defecate because he had to rely on his cellmates to remove his pants. During the six days in which his hands were handcuffed behind his back he did not have a bath or shower and he was not allowed outside the cells for exercise or fresh air. He told how, if he needed to urinate during the night when his cellmate's were asleep he would end up urinating in his clothes.

[9] Photographs taken some four months after the handcuffs were applied in which scarring on his right wrist is clearly visible were produced to the Court. It appears from the photographs that the wound on his wrist had actually become infected. A medical report made out on the same day the photographs were taken confirmed that the wound was caused by handcuffs during his period of confinement. The scars on his right wrist were still visible at the time of the trial, nearly 2 years after the event.

[10] The plaintiff said in evidence that he repeatedly asked police officers to remove his handcuffs but some simply swore at him and others told him that they did not have authority. He said that on 27 November he asked the Officer in Charge at the Central Police Station, Inspector Kainga Hia, to remove the handcuffs but the Inspector said that he could not do so because the directions he received came from his superior officers. The following day, Inspector Mema Latu came through checking the cells and the plaintiff said that he also asked him to remove the cuffs. He told the Court that Mema asked him to "back up" to him so he could check his wrists. After doing so, he told him to remain there while he called for another officer to come and remove the handcuffs. Later that same day the plaintiff was taken to Nukunuku Police Station where he remained until his eventual release from custody on 20 December 2006. His hands were not in cuffs while at Nukunuku.

[11] In cross-examination the plaintiff acknowledged that subsequently he had pleaded guilty to a charge that while being riotously assembled he had begun to damage the Ministry of Finance building.

Comment

[12] As indicated earlier, Crown counsel did not challenge the handcuff evidence given by the plaintiff and, to his credit, he did not seek to downplay the serious nature of the ensuing assault or take exception to Mr Edward's description of the incident as "torture". Because the assault was admitted, the Court did not hear from the police officer who applied the handcuffs or from Inspector Kainga Hia.

[13] Inspector Mema Latu gave evidence for the Crown about a disturbance that had occurred in one of the cells but that evidence had never been put to the plaintiff or his witnesses and, in any event, there was no suggestion that the plaintiff had been a participant. The evidence was that in cell No. 7 where the plaintiff was kept, there could have been in excess of 30 inmates at any one time but only a very small proportion might be handcuffed. The inspector was asked by the Court why handcuffs were applied at all to the prisoners in the cells and he replied that it depended upon the seriousness of the offence alleged against them. That issue was not explored any further.

[14] In his pleadings, the plaintiff alleged that the handcuffs were used as punishment to secure a confession and it resulted in the plaintiff eventually making an admission of guilt of the offence alleged against him to the police on 11 December 2006.

[15] As Crown counsel is aware, towards the end of 2007 I presided over an extensive voir dire hearing on the admissibility in criminal proceedings of statements and admissions taken by the police in other riot related cases not dissimilar to the present case. I concluded that the documents in question were inadmissible because, in breach of section 21 of the Evidence Act (Cap 15), they had not been given voluntarily. Handcuffs had been used to force many of those admissions. In the present case, the fact that the handcuffs placed on the plaintiff for his transportation from the Mu'a Police Station to the Central Police Station were removed when he was put in the cells at Central and then applied again the following day only after the police had tried unsuccessfully to secure an admission of guilt from him indicates that the claim in the plaintiff's pleading is correct and the real reason for the application of the handcuffs was to secure a confession.

The arrest

[16] Given the admission in relation to the handcuff evidence, Crown counsel concentrated his attention on the other alleged cause of action, namely false imprisonment. As already indicated, there were two grounds put forward by the plaintiff as the basis for his false imprisonment claim. First, that his arrest had been unlawful because he had never been informed as to why he was being arrested and, secondly, that the police had failed to take him before a magistrate within 24 hours of his arrest in breach of section 22 of the Police Act (Cap 35) which meant that his continued period in police detention beyond that period constituted false imprisonment. I will first deal with the circumstances of the plaintiff's arrest.

[17] The defence called evidence from former police Constable Lauteau Finefeuiaki who was the arresting officer. The constable was subsequently suspended from the police force pending his trial on a manslaughter by negligence charge on which he has now been acquitted. Mr Finefeuiaki told the court that he and other officers at the Mu'a Police Station had the task of arresting suspects from the eastern districts who were involved in the riots. The names of the suspects would be provided on a daily basis to police stations in outlying areas from the Central Police Station in Nuku'alofa after they had been identified from video and DVD footage. The witness said that his instructions were that when he arrested suspects, it was not necessary to give them details of the specific charge or charges alleged against them and so he would simply say to each suspect words to the effect that they were being arrested and would be taken to the Central Police Station because of allegations of offences committed in connection with the 16/11 riots.

[18] As was noted by Webster CJ in Fainga'a v Lelea [2005] Tonga LR 8, on making an arrest without warrant a police officer must tell the person why he is being arrested unless the circumstances are such that he must already know the general nature of the alleged offence. If the police fail to inform a suspect accordingly, the arrest will be held to be unlawful.

[19] I am satisfied that not only was the plaintiff informed by Constable Finefeuiaki of the general nature of the alleged offence in the present case but, given the circumstances that existed in Tongatapu at that time with the state of emergency and multiple arrests being made daily arising out of the riots, the plaintiff would have been keenly aware of the reason for his arrest. I venture to suggest that in those days with the Emergency Decree and army roadblocks in place in all built up areas the only arrests being made, in fact, would have been of suspects in connection with the riots.

Section 22 of the Police Act

[20] I turn now to consider the second ground of the plaintiff's claim of false imprisonment, namely, the failure of the police to take him before a magistrate within 24 hours of his arrest in breach of section 22 of the Police Act. Section 22 provides:

"(1) A police officer making an arrest without warrant shall, without unnecessary delay and subject to any provisions under any Act as to bail or recognizance, take or send the person arrested before a magistrate there to be charged or before a police officer of the rank of sergeant or above or before the police officer in charge of the police station.

(2) If it is not practicable to bring the person arrested before a magistrate having jurisdiction within 24 hours after he has been so taken into custody, the police officer of the rank of sergeant or above or the police officer in charge of the police station shall inquire into the case and shall grant or withhold bail in accordance with the Bail Act 1990."

[21] The plaintiff's pleadings leave much to be desired and an amended statement of claim filed on the day the trial began still failed to rectify the inconsistencies in the relevant dates. The principal inconsistency is found in the dates of the alleged false imprisonment. The plaintiff identifies his period of imprisonment in his statement of claim as being the period from 22 November 2006 until 20 December 2006 but then he goes on to claim that he "was unlawfully imprisoned or detained for 17 days" which is obviously a lesser period of time than the 28 day period between 22 November and 20 December. It behooves all counsel to take great care with their pleadings and submissions so as to present their client's case in a clear and accurate manner. If there are inconsistencies and uncertainties then they should be rectified through appropriate application for amendment. The Court cannot be left to speculate as to counsel's intention.

[22] There was conflicting evidence as to when the plaintiff was, in fact, taken before a magistrate. For the Crown, Inspector Mema Latu told the Court that he took the plaintiff before Magistrate Mafi on 25 November 2006 and the magistrate then ordered that be kept in custody until 20 December 2006.

[23] The inspector explained that in the "circumstances that existed in Nuku'alofa" during the period immediately following on from the riots, it was no longer practical to follow the usual procedure of taking an arrested person before a magistrate at the court or at the magistrate's home. A special room had, therefore, been set up at the police station for the use of magistrates and arrested persons would be taken before the magistrate who happened to be on duty at that special office on the particular day.

[24] The inspector produced a photocopy of a page from the police station cell book which included the entries relating to the plaintiff. The English translation of the entry made by the inspector on 25 November 2006 reads: "Mag. S. Mafi ordered to be detained to the 20/12/06 Ref SD 65 11:30 hours 25/11/06." The letters "SD" stand for "station diary". The inspector was unable to produce the relevant station diary. He told the Court that it had "gone missing."

[25] In his evidence, the plaintiff strongly denied that he had been taken before a magistrate on 25 November. He was adamant that the first time he had seen a magistrate was when he saw Magistrate Mafi on 20 December 2006 and on that day the magistrate had ordered his release from custody. Mr Edwards challenged Inspector Latu's evidence to the contrary and said that it raised a number of unanswered questions.

[26] Mr Edwards reminded the Court that he had called on behalf on the plaintiff two witnesses who were also in custody on 25 November 2006 and, according to the cell book entries, they were allegedly seen by Magistrate Mafi on that day and the magistrate had ordered them to be kept in custody until 20 December 2006. These two witnesses told the Court that they were being kept in custody at the Nukunuku Police Station on 25 November and at no time that day did they see Magistrate Mafi. When this evidence was put to Inspector Latu in cross-examination, the inspector said that they had been brought into the Central Police Station to be seen by Magistrate Mafi on 25 November but in their evidence the witnesses had denied leaving the Nukunuku Police Station any time that day. Like the plaintiff, they claimed that the first and only time they saw a magistrate was on 20 December 2006. Both these witnesses appeared to be credible. Mr Edwards also noted that the time shown in the cell book when Magistrate Mafi allegedly saw one of the accused from Nukunuku was 1130 hrs which was exactly the same time that, according to the cell book, the plaintiff had been allegedly taken before Magistrate Mafi.

[27] Perhaps the strongest submission made by Mr Edwards in relation to this conflict of evidence was expressed as follows:

"12. On 25 November 2006 it was the third day the plaintiff was under handcuff (sic) and he was experiencing great pain. If he was taken before a magistrate he would have surely asked the magistrate to release the handcuffs. It would have been an opportunity for him to seek relief but the fact remains that the plaintiff was not afforded that opportunity."

I must say that I find that submission quite compelling. The Crown accepted that the plaintiff had had his hands handcuffed behind his back continuously between 22 and 28 November.

[28] One of the other witnesses called by the plaintiff, who I found to be totally credible, was a 30 year-old schoolteacher, Tevita Ma'ameivai Latu. He had been arrested on a charge of treason arising out of the riots but the charge was later dropped. Mr Latu was kept in cell No. 7 along with the plaintiff. He told the court that the plaintiff's wrists had started to swell up "from the early stages" of having them handcuffed. He continued:

"His hands were puffy. I think the cuffs were very tightly put on. They caused a lot of pain. Every time he moved they clicked and got tighter and tighter. He had to remain still at most times. The cuffs were causing a skin rash -- like suffocating his hands. Just got worse and worse."

[29] Against that background, the suggestion that the plaintiff was seen by Magistrate Mafi on 25 November (his third day in handcuffs) with his hands still handcuffed behind his back simply defies credibility. I cannot accept that the magistrate would have seen the plaintiff with his hands handcuffed behind his back and have simply allowed him to be taken back to cell No. 7 under that same restraint. At the same time, I find it difficult to accept that Magistrate Mafi would have made an order under section 22 of the Police Act without actually seeing the accused. That is the whole purpose of section 22. An accused person is to be taken or sent before a magistrate there to be charged.

[30] It was open to counsel to subpoena Magistrate Mafi and his evidence may well have clarified some of the issues in dispute. For whatever reason, however, the magistrate was not called as a witness.

[31] My conclusion, therefore, is that the plaintiff had been lawfully arrested but his detention became unlawful when the police failed to take or send him before a magistrate as required by section 22 of the Police Act. The plaintiff is entitled to damages for false imprisonment from that point on.

[32] For the record, I note that in its pleadings, the defendant referred to the Emergency Powers (Maintenance of Public Order) Regulations 2006 which came into effect the day after the riots on 16/11/06 but no submissions were presented by either counsel in relation to those regulations.

Damages

[33] I deal first with the issue of damages for false imprisonment. The principles were restated by the Court of Appeal in Edwards v Pohiva [2003] Tonga LR 231. False imprisonment is a tort of strict liability. There is no onus on the plaintiff to prove that the imprisonment was unlawful or malicious. Once the plaintiff establishes the fact of imprisonment, that is sufficient to make out a prima facie case and the onus then falls on the defendant to prove that the detention was lawful.

[34] When a suspect is taken before a magistrate pursuant to section 22 of the Police Act to be charged, there is a presumption in the Bail Act 1990 in favour of bail. In other words, the magistrate at that point in time is required to release the accused on bail unless he is satisfied that one or other of the five circumstances stipulated in section 4 (1) of the Bail Act have application. One of the stipulated grounds for refusing bail is if there are substantial grounds for believing that the suspect might interfere with witnesses or otherwise obstruct the course of justice.

[35] In other words, it is conceivable that even had the police complied with section 22 and taken the plaintiff before a magistrate to be charged, the magistrate may have ordered his continued detention in custody. The question arises as to whether, in those circumstances, the plaintiff is still entitled to recover damages.

[36] In Roberts v Chief Constable of Cheshire [1999] EWCA Civ 655; [1999] 1 WLR 662 the English Court of Appeal was faced with a not dissimilar factual situation. That case was concerned with the English statutory equivalent of section 22 of the Police Act. Part IV of the (English) Police and Criminal Evidence Act 1984 (PACE) sets out the rules limiting the period in which an arrested person may be detained in police custody. Although not identical in wording to the English provisions, section 22 of the Police Act is similar in effect in that it has been interpreted by the court to mean that an arrested person shall not be kept in police detention except in accordance with its provisions.

[37] Section 34 of PACE provides that "A person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act" (emphasis added). In other words, the legality of the detention is explicitly conditional on compliance with certain matters. Section 22 of the Police Act does not expressly spell out those same consequences but there no longer can be any doubt that compliance with the requirements of section 22 is mandatory and that any breach will give rise to an action for false imprisonment – see Fifita v Fakafanua [1998] Tonga LR 127, 134 and Lavaka v Ministry of Police [2000] Tonga LR 17, 24.

[38] Commenting on the relevant English statutory provisions, Clerk & Lindsell on Torts (19th ed) 15-32 states: "Any significant breach of the provisions of Pt IV would seem to render further detention of that person unlawful and constitute false imprisonment."

[39] In Roberts the plaintiff had been arrested on suspicion of conspiracy to burgle and had been taken to the police station for questioning. Section 40 of the (English) Police and Criminal Evidence Act 1984 required the detention of a person kept in police custody to be reviewed by a custody officer not later than six hours after his detention began. The plaintiff's detention in police custody had begun at 11:25 p.m. His review, which should have been carried out within six hours, i.e. by 5:25 a.m., was not carried out until 7:45 a.m. It was common ground that had the review being carried out on time the police would have been authorised to continue the plaintiff's detention. Mr Roberts brought a claim for false imprisonment for his unlawful detention between 5:25 a.m. and 7:45 a.m. The judge held that the failure to conduct a timely review rendered the plaintiff's detention unlawful and he was therefore entitled to damages for his detention for the 2 hour and 20 minute period between 5:25 a.m. and 7:45 a.m. He gave judgment for the plaintiff in the sum of £500.

[40] On appeal it was argued on behalf of the defendant Chief Constable that the plaintiff could only prove false imprisonment if he could show that if the review had been carried out at the appropriate time he would have been released. The Court of Appeal held that the plaintiff was entitled to review by 5:25 a.m. and in the absence of that review he was in principle entitled to liberty. His further detention was therefore unlawful. It had also been argued on behalf of the Chief Constable that instead of £500, the judge should only have awarded nominal damages because if a review had taken place on time the plaintiff would still have been detained. Commenting on this submission, Clarke L.J., delivering a judgment with which the other members of the Court of Appeal concurred, said (p 668):

"It is my view that this was an infringement of the plaintiff's legitimate rights to have his case reviewed and that, although the outcome may not have been affected by the failure to review in time, this infringement cannot be regarded as a purely nominal matter or a matter compensatable by entirely nominal damages. There are rules, the police must stick to them. . . . The question is whether the judge should have ordered only nominal damages on the basis that if the police had acted properly and carried out a review the plaintiff would have been detained anyway. I see the force of that submission. At first sight it seems wrong that a person who, but for the unfortunate mistake that was made, would have been detained throughout the relevant period, should be entitled to damages for his detention during that period. However, I have reached the conclusion that the submission cannot be accepted.

As I have already said, it is common ground that the tort of false imprisonment is actionable per se, that is without proof of special damages. It does not, of course, follow that a plaintiff who has been falsely imprisoned can recover something more than nominal damages. As a matter of general principle such a plaintiff is entitled to be put into the position in which he would have been if the tort had not been committed."

[41] The Court of Appeal upheld the award of £500 but noted that the amount was "substantially more" than it would have awarded particularly given the fact that the plaintiff had been asleep during the 2 hour and 20 minutes in question.

[42] In a very recent (last month) case the English Court of Appeal distinguished the Roberts decision – see R (SK) v SSHD [2008] All EK(D) (6 November 2008) and suggested that non-review by a Magistrate did not give rise to an action in false imprisonment and the remedy for any such failures lay elsewhere. The SK decision can clearly be distinguished, however, because the rules in that case were contained in secondary legislation whereas in the present case they are contained in statute. In section 22 of the Police Act Parliament can be taken to be signalling that the provisions outlined are mandatory conditions for lawful detention (even if the section fails to say so in as many words). Roberts, therefore, indeed applies.

[43] In summary it seems to me that the "review" which the police failed to have carried out in a timely manner in the Roberts case is similar in principle to the review the magistrate would have had to carry out in the instant case had the plaintiff been taken before him promptly as required under section 22 of the Police Act. In section 22 Parliament has prescribed specific provisions to protect the individual against the excess or abuse of the powers of arrest and detention. Even in times of emergency, the police are not above the law. As Clarke L.J. expressed it in Roberts: "There are rules, the police must stick to them."

[44] One of the most recent authorities in the Kingdom on the question of damages for the tort of false imprisonment is the decision of the Court of Appeal in Edwards v Pohiva where the court awarded $30,000 to two of the plaintiffs and $27,000 to the third plaintiff on account of general and aggravated damages. The period of the false imprisonment covered 26 days. The court acknowledged that in Tonga the award was "a very substantial amount." The larger sum equated to $1153 per day.

[45] There are significant differences between the circumstances of that particular case and the one before me. Not least of all, the Court of Appeal specifically noted as aggravating features the fact that the plaintiffs were law-abiding citizens and yet "for reasons beyond comprehension" they were held in the maximum security section of the prison. In the present case it was accepted that the plaintiff had committed the serious offence of unlawfully beginning to damage the Ministry of Finance Building while being part of a riotous assembly.

[46] Another feature of the case before me is that the plaintiff, very fairly, made no complaint at all during his evidence about his treatment at the Nukunuku Police Station where he was detained between 28 November and 20 December. In cross-examination he confirmed that he was not kept in handcuffs at Nukunuku and he described the food he was given at Nukunuku as being "very good because visitors would come and bring food there."

[47] I have approached the assessment of quantum for the period of false imprisonment in two stages. First, for the undoubtedly more serious initial period when, after he should have been taken before a magistrate, he was unlawfully detained at the Central Police Station until 28 November and then I turn to the second stage when he was detained at Nukunuku Police Station.

[48] In his pleadings, the plaintiff simply claims "damages". Such damages are usually referred to as general damages and they are only awarded as compensation to the plaintiff for the injury or damage he has suffered from the false imprisonment. Another form of compensatory damages are what is known as aggravated damages and they can only be awarded when there are aggravating features about the defendant's conduct which justifies the making of such an award. There is authority to the effect that aggravated damages can only be awarded when they have been specifically claimed by the plaintiff -- see Thompson v Commission of Police [1997] EWCA Civ 3083; [1997] 2 All ER 762, 774. In the present case aggravated damages were not specifically pleaded but counsel for the defendant conceded that they should be recoverable. I think that this concession was properly made. In his statement of claim, the plaintiff certainly identified the conduct that would support such a claim.

[49] For compensatory and aggravated damages during the period the plaintiff was unlawfully detained in handcuffs at the Central Police Station, I award damages in the sum of $2400.

[50] For the remaining period at Nukunuku (bearing in mind that the total number of days the plaintiff claims in respect of is only 17) my award is based on a much reduced scale which contains no element of aggravated damages. My assessment takes into account the real value of money in the Kingdom and the fact, which is common knowledge, that a large percentage of the workforce is unemployed with no available government benefits or regular source of income.

[51] My award for the second period of detention at Nukunuku is in the amount of $550 making a total award of damages on account of the false imprisonment in the sum of $2950. The plaintiff has not sought exemplary damages and there is clear authority that a claim for exemplary damages must be specifically pleaded. The defendant has made no concessions in relation to the question of exemplary damages.

Damages for assault

[52] The plaintiff's second head of damages claim is on account of the assault and the consequential pain and suffering and injury he thereby suffered during the six-day period he was incarcerated at the Central Police Station with his hands handcuffed behind his back. Counsel for the plaintiff described this treatment as "torture" but he acknowledged that Tonga was not a party to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which came into force on 26 June 1987. It is now accepted by most international jurists that the prohibition against torture is part of customary international law, and, furthermore it is a jus cogens rule from which States cannot derogate – whether they are a party to the various treaties which prohibit it or not.

[53] I accept counsel's description of the assault in question as "torture". I can think of no better word for it. The pain, suffering and humiliation endured by the plaintiff during that period of time would have undoubtedly been severe in every respect. It was inflicted intentionally and unlawfully by police officers. In this day and age no suspected person in police custody should be subjected to that type of treatment.

[54] Inevitably in cases of this nature, there is going to be some overlap between an award of damages for assault and an award of aggravated damages but in reaching my assessment I have done my best to avoid the risk of a double counting. To that extent I can confirm that had this particular head of claim, i.e. the assault, stood on its own, the amount awarded would have been considerably greater. As it is, however, the figure I fix for damages in respect of the unlawful assault is $1500.

Summary

[55] The plaintiff succeeds in his claim and is entitled to damages against the defendant in the total sum of $4450 made up as explained above. He is also entitled to costs in an amount to be either agreed or taxed by the Registrar.