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Li v Attorney General [2018] WSSC 137 (8 February 2018)

THE SUPREME COURT OF SAMOA
KEJI LI v ATTORNEY GENERAL [2018] WSSC 137

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

KEJI LI of Lotopa and Fiji
Applicant

A N D

THE ATTORNEY GENERAL established pursuant to Article 41 of the Constitution of Samoa 1962

Counsel:
H Schuster for Applicant
L Su’a-Mailo for the AGO

Decision date : 15 February 2018

RESERVED DECISION OF TUALA-WARREN J ON APPLICATION FOR AN ORDER TO REVOKE ATTORNEY GENERAL’S DEPARTURE PROHIBITION ORDER

Background

1. On 24 October, the Applicant pleaded guilty of one charge of negligent driving causing death pursuant to section 39A of the Road Traffic Ordinance 1960.
2. He was sentenced by Justice Clarke on 8 November 2017. The Applicant was convicted and sentenced to pay reparation of $10,000 and to perform 200 hours of community work.
3. On 16 November 2017, on application by the Applicant, Justice Clarke cancelled the community work sentence of 200 hours and substituted in place of that sentence 90 hours community work and a fine of $650.00 to be paid within 7 days, in default 4 weeks imprisonment (pursuant to section 33(A)(3)(C) of the Community Justice Act 2008).
4. he Attorney General filed an appeal against sentence on 17 November 2017 (“the Appeal”).
5. On 25 May 2017, 24 November 2017 and 21 December 2017, the Attorney General issued Departure Prohibition Orders (“DPO”) by way of letters to the Chief Executive Officer of the Ministry of Prime Minister and Cabinet (“MPMC”).
6. On 1 December 2017, the Applicant filed an urgent application for an order to revoke Departure Prohibition Order against him dated 25 May 2017 and 24 November 2017 (“the Application”).
7. On 25 January 2018, the AG filed a Notice of Motion opposing the Application (“the Opposition”).
8. I heard submissions on 8 February 2018.
9. This is my reserved decision.

The Application

10. The grounds of the Application are;
    1. The Respondent applied for a DPO without notice and in his absence and it was not just in the circumstances for a DPO to be granted;
    2. The Respondent has not made out a justifiable case on the balance of probabilities and in the absence of proof or affidavit in support, the DPO registered by virtue of a letter dated 25 May 2017 and 24 November 2017;
       1. Is not required in Samoa’s national interest; or
       2. Is not required in Samoa’s national security.
    100. The filing of the application for the said Order is an abuse of process;
    4. the order was without just cause and unreasonable under the circumstances.
11. A declaration by the Applicant dated 1 December 2017 accompanies the Application (it is titled “Urgent Affirmation in support of an application for an order to revoke departure prohibition order against the Applicant dated 25 May 2017 and 24 November 2017”).

The Opposition

12. The Opposition is made on the grounds that;
    • (a) Pursuant to section 26(1)(c) of the Immigration Act 2004(“IO”), the AG has absolute discretion to make an order prohibiting a person from departing Samoa if the person is currently involved as a party in a criminal case that is before the Supreme Court or Court of Appeal and it is not in the interests of justice for the person to depart Samoa;
    • (b) The DPO made on 25 May 2017 and also on 24 November 2017 was made pursuant to section 26(1)(c) of the IO and as per section 26(8) of the IO, such order can be made without giving notice to or in the absence of the person and without the person being given the opportunity to be heard if the AG determines in his absolute discretion that it is necessary to do so. In any event, as per letter by Counsel for the Applicant dated 20 November 2017, it was clear from that letter that he no longer represented the Applicant, and the Notice of Appeal was served personally on the Applicant;
    • (c) The DPOs made on 25 May 2017 and 24 November 2017 were made as a result of criminal charges which were being determined before the Court. The second DPO was as a result of the Notice of Appeal filed and thus there is no need for any supporting affidavits or documents filed;
    • (d) There has been no abuse of process;
    • (e) The DPO is not unreasonable under the circumstances.

Submissions of the Applicant

13. The submissions of the Applicant can be summarised as follows;
    • (a) the DPOs granted by the AG do not comply with the provisions of section 26 of the IO and should be quashed;
    • (b) Under the Supreme Court Rules, Motions and Applications must be supported by affidavit (Rules 188-190);
    • (c) Whilst the AG has the authority to make an order without notice, once it is made, the AGO is required to serve it on the person affected by the order. Service then invokes the person’s right to seek a review of the order by a Supreme Court judge;
    • (d) in order for the Court to exercise its power to amend or revoke an order made under s26(1)(c) of the IO, it needs to view the AGO’s motion or an interested party’s application and supporting affidavit as to why such a person should be prohibited from leaving. A prohibited person needs to address the reasons given to support the prohibition and show they are applicable to his/her situation or can be overcome by measures demonstrated to the satisfaction of the Court;
    • (e) Section 26(1)(c) is not a blanket basis for prohibiting a person from leaving the jurisdiction, nor is the national interest or national security. Reasons must be provided to support the grounds;
    • (f) the Applicant works for Huawei Company based in Suva and they provide service to Bluesky and Digicel. His livelihood depends on his providing this service for his employer. Samoa is a lucrative client and he will be sent here by his company to serve the needs of the clientele. (Declaration by Applicant dated 1 December 2017);
    • (g) the form of the DPOs dated 25 May 2017 and 24 November 2017 are not orders in the usual wording and format of an order nor is there a motion and affidavit supporting the motion. They are in the form of letters written to the MPMC;
    • (h) the letter of 24 November 2017 is made outside of the three month limit laid out in section 26(1); and
    • (i) The order made on 25 May 2017 has lapsed.

Submissions of the Respondent

(a) The Respondent had three submissions.
(b) The first is that section 26(8) states that the AG has absolute discretion to make the order without giving notice to the Applicant and without giving the applicant an opportunity to be heard. It is submitted that in light of the appeal filed on 17 December 2017, the AG had the absolute discretion to issue the DPO against Mr Li as it was absolutely necessary given that Mr Li was a national of China and was party to the appeal filed with the Court of Appeal.
(c) The second submission is that the Court can only revoke orders made under s26(1)(a) and (b). Furthermore the law does not stipulate the form in which the DPO should be made, nor does it stipulate that a formal motion be filed by the AG.
(d) The third submission is that the onus is on the Applicant to satisfy the Court on a balance of probabilities that the order should be revoked. The Applicant has failed on a balance of probabilities to show why the DPO should be revoked.

The Law

(a) The relevant section of the IO which governs the AG’s issuance of a DPO is provided below;

26. Attorney General departure prohibition order – (1) The Attorney General, upon the Attorney General‘s own motion or upon application by any interested party, in the Attorney General‘s absolute discretion, may make an order for such period of time, up to a maximum of 3 months, prohibiting a person from departing or attempting to depart from Samoa for any place outside Samoa on 1 or more of the following grounds:

(a) that the Attorney General has determined that it is not in Samoa‘s national interest for the person to depart from Samoa; or

(b) that the Attorney General has determined that it is not in the interests of Samoa‘s national security for the person to depart from Samoa; or

(c) that the person is currently involved as a party or as a witness in a civil or criminal case which is before the Court of Appeal or the Supreme Court or the Lands and Titles Court or the District Court and it is not in the interests of justice for the person to depart from Samoa; or

(d) that the person is currently on bail; or

(e) that the person is required to be available in Samoa as part of an investigation of a criminal offence punishable in Samoa or elsewhere by imprisonment for 2 years or more.

(2) At any time the Attorney General may revoke or amend an order made under subsection (1).

(3) A person subject to an order made by the Attorney General under subsection (1) may apply to a Judge of the Supreme Court within 7 days of the person receiving notification of the order to have the order revoked or amended but any application under this subsection shall not suspend the operation of such order.

(4) A Judge of the Supreme Court shall only revoke or amend an order made by the Attorney General under subsection(1)(a) or (b) if the person subject to the order establishes to the satisfaction of the Judge on the balance of probabilities that the order:

(a) where it was made on the grounds provided in subsection

(1)(a), is not required in Samoa‘s national interest; or

(b) where it was made on the grounds provided in subsection

(1)(b), is not required in Samoa‘s national security.

(5) The hearing of an application made under subsection (3) or this subsection may be closed to the public upon application by the Attorney General if the presiding Judge is satisfied that the disclosure of any information about or details of the hearing may put Samoa‘s national interest or national security at risk, and upon application by the Attorney General the presiding Judge may prohibit a person from disclosing or publishing in any form any information about or details concerning the hearing if the Judge is satisfied that the disclosure or publication may put Samoa‘s national interest or national security at risk.

(6) A person who knowingly breaches an order of a Judge made under subsection (5) commits an offence.

(7) At any hearing under subsections (3) and (5) the presiding Judge shall not require the Attorney General to disclose to the person subject to an order made under subsection (1) any information, document or other material which the Attorney General has certified:

(a) is vital to Samoa‘s national interest or national security; and

(b) the disclosure of which would put Samoa‘s national interest or national security at risk.

(8) Despite the provisions of any other law, the Attorney General may make an order under subsection (1) without giving notice to or in the absence of the person and without providing the person an opportunity to be heard if the Attorney General determines, in the Attorney General‘s absolute discretion, that it is necessary to do so.

(a) The jurisdiction of the Supreme Court is provided in section 39 of the IO as follows;

39. Jurisdiction of Courts – Despite any other law and subject only to the jurisdiction conferred on the Court of Appeal and the Supreme Court under Articles 4, 80 and 81 of the Constitution, the Court of Appeal, the Supreme Court and the District Court have only such original, appellate and revisional jurisdiction in relation to and concerning this Act as provided explicitly by this Act.

(b) Article 4 of the Constitution is ‘Remedies for the Enforcement of Rights’, Article 80 is ‘Jurisdiction on Constitutional Questions’ and Article 81 is ‘Jurisdiction in Respect of fundamental rights’.

Discussion

(c) The DPO which was issued on 25 May 2017 is now a non-issue as rightly asserted by the Applicant. DPOs issued by the AG have a time limit of 3 months.
(d) There are currently two(2) DPOs before the Court which have not reached their expiry dates, that is the DPO issued on 25 November 2017 and the DPO issued on 21 December 2017. The opposition was filed on 11 December 2017, before the DPO dated 21 December 2017 was issued.
(e) The starting point is the jurisdiction of the Supreme Court as provided in section 39 of the IO. The Supreme Court has such original, appellate and revisional jurisdiction in relation to and concerning the IO as provided explicitly by the IO.
(f) Section 26(3) gives the Supreme Court the power to revoke or amend an order made by the Attorney General under s26(1) of the IO, upon the application of a person subject to the order. Therefore, there is no question that the Supreme Court can revoke or amend a DPO made by the AG.
(g) It appears that the most significant issue for the Applicant is the process by which the AG made the order. It is submitted by the Applicant that the words “...upon the Attorney General’s own motion...”, invoke the Supreme Court(Civil Procedure) Rules 1980 which deal with motions, specifically Rules 188-191. These Rules are as follows;

188. Proceedings by motion - Every civil proceeding not required to be commenced by way of action may be commenced by way of motion supported by affidavit:

Provided however that this rule shall not apply to any proceedings taken under the Divorce and Matrimonial Proceedings Act 1961.

189. Filing motions - (1) Every originating motion shall be made by filing it with the Registrar and it shall set forth briefly the nature and grounds of the relief sought by the applicant.

190. Notices of motion - (1) Except where otherwise provided, or where the Court is satisfied that the nature of the motion is such that it may properly be made and determined ex parte, every motion shall be heard and determined only after due notice has been given to such persons as the Court may consider entitled thereto.

(2) All persons to whom notice has been given by the direction of the Court, or who appear on the hearing of the motion, shall be deemed to be parties to the proceeding.

191. Forms - (1) Motions may be made in form 52 or form 53 as the case may require, or in forms to the like effect.

(2) Every order made on a motion may be in form 54.

(h) The Applicant submits that the AG cannot issue the DPO without a motion, filed by his office to him and a supporting affidavit of one of his lawyers to him as he is acting in a judicial capacity.
(i) In order to address this submission by the Applicant, it is important to look at the principles of statutory interpretation contained in the Acts Interpretation Act 2015, specifically section 7;

7. Principles of interpretation - (1) An Act is considered as speaking from time to time, and if a matter or thing is expressed in the present tense, the Act applies to the circumstances as they arise, so that effect may be given to the Act according to its spirit, true intent, and meaning.

(2) An Act must be interpreted in such manner as best corresponds to the intention of Parliament.

(3) The intention of Parliament is to be derived from the words of the Act, having regard to:

(a) the plain meaning of ordinary words; and

(b) the technical meaning of technical words; and

(c) the whole of the Act and the specific context in which the words appear; and

(d) headings and any limitation or expansion of the meaning of words implied by them; and

(e) grammar, rules of language, conventions of legislative drafting and punctuation.

(4) If the application of subsection (3) would produce:

(a) an ambiguous result; or

(b) a result which cannot reasonably be supposed to correspond with the intention of Parliament, the words are to receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

(5) In applying subsection (4), the intention of Parliament may be ascertained from:

(a) the legislative history of the Act or provision in question; and

(b) the explanatory memorandum or any other material that was before Parliament; and

(c) the second reading speech made to Parliament during the passage of the Bill that became the Act;

(d) any relevant report of a commission, committee (including a committee of Parliament) or other similar body that was tabled in Parliament before the Act was passed;

(e) the official record of proceedings of Parliament; and

(f) treaties and conventions to which Samoa is a party.

(6) This section does not limit the material, rules or principles of interpretation that may be considered by the courts in interpreting an Act.

(j) In line with this section, the plain meaning rule in section 7(3)(a) above originated in a passage from the judgment of Lord Tindal in the Sussex Peerage Case [1844] EngR 822; (1844), 11 Cl. & Fin. 85, 8 E.R. 1034. He wrote:

If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble...and “the mischiefs which [the makers of the Act] intended to redress.

(k) On my reading of the words in section 26, specifically the words “...upon the Attorney General’s own motion...”, the intention of Parliament is clear and unequivocal. A DPO can be issued by the AG either on his or her own motion, or upon application of any interested party. The intention of Parliament is to make provision for situations where the AG does not require an application from anyone to issue a DPO and acts on his or her own accord. The AG can issue a DPO pursuant to s26 of the IO if the AG determines that it is not in Samoa’s national interests for the person to depart Samoa, or the AG determines that it is not in the interests of Samoa’s national security for the person to depart Samoa, or the person is currently involved as a party or as a witness in a civil or criminal trial which is before the Court of Appeal or the Supreme Court or the Land and Titles Court or the District Court and it is not in the interests of justice for the person to depart from Samoa, or that person is currently on bail, or that person is required to be available in Samoa as part of an investigation of a criminal offence punishable in Samoa or elsewhere by imprisonment for 2 years or more.
(l) It is neither practicable nor logical for the AG to first require a motion and a supporting affidavit from his office before he issues a DPO. As Counsel for the Applicant conceded, the process for a court DPO may be lengthy. Therefore I find that the wording of section 26 provides a more efficient process with no need for a motion to be filed. With respect to the Applicant’s submission, the Supreme Court (Civil Procedure) Rules must be complied with when there is an application made to the Supreme Court under section 25 of the IO for a Court Departure Prohibition Order.
(m) This is a clear cut situation of the AG appealing the sentence imposed on the Applicant and a Notice of Appeal being duly filed and served on the Applicant. The Applicant is therefore a respondent in a criminal trial before the Court of Appeal and it is not in the interests of justice for him to depart Samoa before his case has been heard and determined by the Court of Appeal.
(n) There are several matters which call for comment. The first is that the AG has absolute discretion to issue a DPO under s26(8) of the IO. This can be done without giving notice to, or in the absence of the person, and without providing the person with an opportunity to be heard (s26(8) IO). The AG can also make an order for a maximum period of 3 months (s26(1) IO). The AG can revoke or amend his or her own order (s26(2) IO). The Supreme Court can revoke or amend that order upon the application of a person subject to the order (s26(3) IO).
(o) The Supreme Court’s jurisdiction is that provided explicitly by the IO. Therefore in relation to revoking or amending the AG’s DPO, explicit provision is made in s26(4)-(7) as to how the Supreme Court shall approach revocation or amendment of a DPO issued by the AG under s26(1)(a) or (b), in relation to national interest or national security. It is conceivable that the need for guidance is because ‘national interest’ and ‘national security’ are general terms, in need of proof. On the other hand, the grounds in s26(1)(c), (d) and (e) are clear cut and can be disposed of quite simply. A person is either a party or witness before a Court (s26(1)(c)), the person is either currently on bail or not(s 26(1)(d)), and a person is either required as part of an investigation of a criminal offence or not (s26(1)(e)). Detailed evidence and submissions on these grounds are neither necessary nor required.
(p) Both DPOs currently in place, dated 24 November 2017 and 21 December 2017 were issued after the Notice of Appeal was filed by the AG. Both satisfy the ground under s26(1)(c) of the IO. The notable between the two DPOs is the form taken by each. The wording of the DPO dated 21 December 2017 is more closely aligned with s26. I see no issue with the form of the DPO dated 21 December 2017.
(q) With respect to the submission by the AG that the Court can only revoke a DPO made under s26(1)(a) and (b), this is incorrect. The jurisdiction of the Supreme Court to revoke or amend a DPO issued by the AG under s26(1) is found in s26(3) of the IO.
(r) Therefore while there is no specific guidance on how the Court should approach revocation or amendment of a DPO issued under s26(1)(c), the onus is on the Applicant to satisfy me on a balance of probabilities that he is not currently involved as a party in a criminal case before the Court of Appeal, and that it is in the interests of justice that he depart Samoa.
(s) The Applicant has not satisfied me.

Conclusion

(t) It is undisputed that the Applicant is currently involved as a party in a criminal case before the Court of Appeal and I am satisfied that it is not in the interests of justice for him to depart Samoa until his criminal case is heard and determined by the Court of Appeal.
(u) The Application is therefore denied and the DPO issued by the AG dated 21 December 2017 remains in force.

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN