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Killoran v Hahembe [2005] PGNC 157; N2793 (16 February 2005)

N2793

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

OS 61 OF 2005

BETWEEN:

PATRICK KILLORAN
Plaintiff

AND:

DANIEL HAHEMBE,
SENIOR RADIO INSPECTOR
First Defendant

AND:

PAPUA NEW GUINEA RADIO COMMUNICATIONS AND TELECOMMUNICATIONS TECHNICAL AUTHORITY
Second Defendant

Waigani: Davani, .J
2005: 16 February 2005

STATUTES – interpretation – warrant to search and seize issued – to seize ‘apparatus’ – items seized not ‘apparatus’ within the meaning of the act – Radio Spectrum Act 1996 s. 2

PRACTICE AND PROCEDURE – Warrant to search and seize – improperly addressed – defective in form – void and of no effect – Radio spectrum Act 1996 s. 12 (1) (2)

Counsel:
G. Sheppard and F. Griffin for the Plaintiff/Applicant
P. Amaiu for the Defendants

DECISION

16th February, 2005

Davani .J: Background - On 16th February, 2005, both plaintiff and defendant’s lawyers appeared before me on the hearing of the plaintiff’s notice of motion filed on 11th February, 2005. This motion filed by Young and William Lawyers, sought amongst others, orders that all personal and office equipment seized by the defendants from the plaintiff’s home and office at Mt Hagen, be released and returned to him forthwith and further that the Search Warrant dated 27th December, 2004, issued by the Port Moresby District Court, be declared unlawful, void and of no effect.

The originating summons filed in support of that application on 11th February, 2005, did not seek the return of properties but sought orders for Certiorari and Mandamus. After questioning by the bench, plaintiff’s counsel then sought an amendment to the originating summons for an order in the nature of a mandatory injunction that all of the plaintiff’s properties that were seized from his home and business premises be returned to him, forthwith. The original orders sought for Certiorari and Mandamus were withdrawn with the court’s leave. Additionally, the court was of the view that the second defendant would not be prejudiced in any way by the amendments seeking the mandatory injunctive orders because it had known of the plaintiff’s desire to have his properties returned to him since 12th February, 2005, when the court documents filed in these proceedings were faxed to it under cover of Young and Williams letter to it of 11th February, 2005, which is attached as annexure ‘A’ to Pala Wagalu’s affidavit of service sworn on 15th February, 2005 and filed in these proceedings.

Counsel for the defendants requested an adjournment of the hearing of the motion, which I refused. The basis for refusal was that the plaintiff’s lawyer had faxed to the second defendant, letter dated 11th February, 2005 to which was enclosed documents filed in these proceedings which were originating summons filed on 11th February, 2005, notice of motion filed on 11th February, 2005, affidavit of Patrick Killoran sworn and filed on 11th February, 2005 and undertaking as to damages. Furthermore, when the matter came before me on 11th February, 2005, which was when the plaintiff moved ex parte for injunctive orders, I directed that plaintiff’s counsel serve all court documentation upon the defendants and to return to court on Wednesday, 16th February, 2005 at 9.30am for the hearing of the matter. I also note that the letter from Young and Williams Lawyers to the second defendant dated 11th February, 2005, bears an acknowledge receipt note signed by the second defendant’s legal secretary, one Nebun Dori, on 14th February 2005, at 3.55pm, where she acknowledged receipt of all court documentation filed in these proceedings and in support of the plaintiff’s motion.

I noted also that in-house counsel for the second defendant’s reasons for an adjournment was that he was out of Port Moresby and had only returned on the 15th February, 2005. I found that not to be a good enough reason considering the second defendant is a very large organization and that if it had had notice of this application since 11th February, 2005, and considering the importance of the matter, that it should have briefed the matter out to other lawyers or briefed another lawyer within its employ rather than wait for Mr Amaiu’s return.

After refusal of the defendant’s application for an adjournment and on hearing plaintiff and defendant’s counsel on the application, I ruled that the Search Warrant taken out by the second defendant on 27th December, 2004, at the Port Moresby District Court was unlawful, void and of no effect. I informed counsel I would give detailed reasons for my decision and which I now do.

Evidence and the law - By an information laid under the Radio Spectrum Act 1996, the first defendant, a senior Radio Inspector with PANGTEL, obtained a Search Warrant to enter the plaintiff’s property located at Kagamuga Airport Mt Hagen, and to seize anything that he may find that would be or is related to an illegal possession of radio equipment without a license. The first defendant had reason to believe that the plaintiff had installed an illegal connection of an Australian VFAT service in Mt Hagen with links to Oil Search Gobe in the Southern Highlands Province. The Search Warrant was to enter and conduct searches there and to seize, as referred to earlier.

The plaintiff’s application is supported by his affidavit sworn on 11th February, 2005, which deposes amongst others, that on Wednesday, 9th February, 2005, at about 2.30pm, the first defendant and five police officers, without the plaintiff’s notice or consent, forcefully entered his premises at Kagamuga Airport. The first defendant identified himself as an officer attached to the PNG Radio Communications and Telecommunications Authority (PANGTEL) and advised that he had authority to search the plaintiff’s home and business premises. This authority was the Search Warrant in question issued by the Port Moresby District Court on 27th December, 2004. The plaintiff deposes that though he protested that he did not have any illegal radio connections on his property, the first defendant and others conducted the search any way. The list of equipment taken from the plaintiff’s property is attached as Annexure ‘B’ to the plaintiff’s affidavit and are the following;

- PANGTEL’s receipt of confiscated equipment addressed to the plaintiff at PO Box 43 Mt Hagen, and which lists items taken as;

From the plaintiff’s office

• 1 x tech A4 mouse (non-wireless);
• 1 x DEL laptop model- PP1, Inspirion 7500
SUB ASSY PN: 0009963T-12961-9AF-1501 A00;
• 1 x power adaptor;
• 1 x enclosed in 1 black and red Canterbury carry bag;
• 1 x Softline maroon phone directory;
• copies of global internet account;
• Dilmin purchase orders for coffee;
• Ela Motors parts;
• Memory stick files (pack up).

From the plaintiff’s house

• 1 x laptop Toshiba –PSM30A-OU2V9 model no. 24103161P;
• model-14-port USB HTB and cable;
• 1 net comm CM5600 modem;
• 1 wireless logi tech mouse;
• 1 net gear wireless router WGT624 V2 and Power adaptor;
• 1 computer power adaptor.

The plaintiff deposes that these equipment contain records and data relevant and necessary for his coffee business as well as his own personal records. He deposes that without access to and use of those records, the conduct of his business is seriously prejudiced.

By way of submissions on the law in support of the plaintiff’s claims to have his property returned to him, Mr Sheppard for the plaintiff, referred the Court to the definition of the word ‘apparatus’ in s. 2 of the Radio Spectrum Act 1996 which states that it is "any equipment capable of effecting radio communication, whether by transmission or both." He submitted that this means that ‘apparatus’ would either be a satellite dish or anything to do with radio communication and transmission. I did not hear anything to the contrary from Mr Amaiu.

He then referred the court to a copy of the Information which the first defendant relied on when making the application for the warrant, which Information was issued under the Radio Spectrum Act 1996 and which states that the plaintiff was;

"illegally having possession of radio apparatus namely VSAT (equipment) installed to transmit and receive and operate radio communication satellite networks without licence contravening s. 9 (1) and 11 (1) (2) of the Radio Spectrum Act 1996."

Based on that information, the District Court issued the Search Warrant, now the subject of this application. The Search Warrant was issued relying on Information on oath referred to above of Daniel Hahembe, Senior Radio Inspector of PANGTEL, the first defendant in these proceedings.

The Search Warrant states that the plaintiff "...operates satellite company through illegal connection of Australian VSAT service in Mt Hagen, Western Highlands Province and link to Oil Search Gobe, Southern Highlands Province...namely illegally in possession of radio equipment VSAT services installed and operation without licence from PNGTEL"

The Search Warrant is addressed to the plaintiff and further below at the bottom page of the Warrant, it is stated therein;

"You are hereby ordered to enter and conduct search at the premises or building in which Mr Killoran is operating his SATNET QLD Satellite company at Gobe, Southern Highlands Province and also from Kagamuga Airport, Mt Hagen, Western Highlands or upon exact location of the place or business he is operating from in Mt Hagen, Western Highlands Province.

And seize anything you may find that relates to illegal possession or Radio Equipment (VSAT) without licence."

Mr Sheppard submitted that the Search Warrant was defective in form because it was issued to the wrong person, then referred the Court to s. 12 (1) (2) of the Radio Spectrum Act 1996 which states;

"12. Search and seizure

(1) Where a Magistrate of a District Court or Local Court is satisfied by information on oath that there are reasonable grounds for suspecting that any apparatus in connection with which an offence against this Act has been or is being committed is on or in any place, vehicle, vessel, or aircraft, he may grant a search warrant to a person authorized by PANGTEL;

(2) a warrant under subsection (1) authorizes the person to whom it is addressed to enter and search, by force and with assistants if necessary, the place, vehicle, vessel or aircraft the subject of the warrant, and to seize and remove any ‘apparatus’ in or on it in connection with which an offence against this Act appears to him to have been committed."

In this case, the Search Warrant is addressed to the plaintiff when it should have been addressed to "...a person authorized by PANGTEL." (see s. 12 (1) of the Radio Spectrum Act 1996). The plaintiff is not a person authorized by PANGTEL. He is the person PANGTEL has just taken out a Search Warrant against to seize any ‘apparatus’ in or on his property which he ( the plaintiff) is using and which, by that use, has perpetrated the commission of an offence under the Radio Spectrum Act 1996.

Additionally, Mr Shephard submitted that pursuant to ss. 2 and 12 (1) (2) of the Radio Spectrum Act 1996, the equipment liable to be confiscated must fall within the definition of the word ‘apparatus’. He submitted that the list of items referred to in annexure "B" to the plaintiff’s affidavit do not fall within the definition of the word ‘apparatus’ because they are not equipment capable of effecting radio communication whether by transmission or both. The confiscated equipment are computers, power adaptors, Canterbury carry bag, phone directory, global internet accounts, coffee purchase orders, Ela Motors parts and memory stick file. Mr Sheppard submits that these are not ‘apparatus’ within the meaning of s. 2 of the Radio Spectrum Act 1996.

Mr Amaiu for the first and second defendants submitted that the equipment that was confiscated by the first defendant may have been used for an illegal purpose by the plaintiff and so should continue to remain with the second defendant’s servant or agents until such time investigations are complete. He however was unable to substantiate with evidence or submissions on the law whether these confiscated equipment are ‘apparatus’ within the meaning s. 2 of the Radio Spectrum Act 1996 and whether they were in fact used for an illegal purpose. He also could not say why the Search Warrant was addressed to the plaintiff and not to a person authorized by PANGTEL, in accordance with s. 12 (1) of the Radio Spectrum Act 1996.

Officers authorized by Warrant and by the law to arrest or seize must carefully read the Warrant and the enabling legislation to assure themselves that they are in fact properly authorized to arrest and or seize. They in effect will hamper, impede and/or obstruct individual concerned from carrying out their daily activities and may even deprive them of their qualified Constitutional rights to freedom of movement and protection from unjust deprivation of property (see ss. 51 and 53 of Constitution). The effect of warrants issued by courts is such that the individual/s concerned or affected by it are literally at its mercy. It therefore is incumbent on those applying for warrants and who will thereafter execute them, to ensure that the warrants are in the proper form and that those executing the warrants are properly authorized to do so.

Orders - I found on hearing the parties that the court should issue a declaration that Search Warrant dated 27th December, 2004, is unlawful, void and of no effect because of the following brief reasons;

1. It is not in the form required by s. 12 (1) of the Radio Spectrum Act 1996;
   
2. and that the properties that were confiscated by the first defendant do not fall within the definition of "apparatus" as defined in s. 2 of the Radio Spectrum Act 1996 and that the properties should be returned forthwith to the plaintiff.
   

These are the court’s formal orders;

1. The Search Warrant dated 27th November, 2004, issued by the Port Moresby District Court pursuant to application DC608 of 2004 is unlawful, void and of no effect;
   
2. All that personal and office equipment seized by the first defendant from the plaintiff’s home and office premises at Mt Hagen, Western Highlands Province on 9th February, 2005, be released forthwith and returned to the plaintiff at Mt Hagen;
   
3. That the first and second defendant pay the plaintiff’s costs of the application;
   

4. Time be abridged to time of settlement to take place forthwith.
_____________________________________________________________________

Lawyers for the Plaintiff/Applicant : Young and Williams Lawyers
Lawyer for the Defendants : In-house counsel