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Tong v Attorney General [1985] SBHC 16; [1985-1986] SILR 112 (8 November 1985)

1985-1986 SILR 112

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 82 of 1985

TONG

v

ATTORNEY GENERAL

High Court of Solomon Islands
(Wood C.J.)
Civil Case No. 82 of 1985

8 November 1985 at Honiara

Constitution 8.14 (freedom of movement) - whether right abridged by withholding passport after final acquittal on charge c/s Passport Act - whether such withholding lawful under Passport Act s.7(1) whether s.14(3)(c) of Constitution applies to dual nationals

Facts:

The applicant had turned in his passport to the Principal Immigration Officer (“the Officer”) on being informed that it was needed for a criminal investigation.

Later the Officer further informed the applicant that his passport was no longer valid under s.14(2) of the Passport Act 1978 because of “unauthorised alterations”, some childish scribbles having been made in it. Accordingly, the applicant asked for a replacement and paid the prescribed fee.

The applicant was acquitted of the charge of obtaining a passport by false statement and the appeal of the DPP was dismissed on 17 May 1985. Thereafter the passport was returned to the applicant by the Registrar of the High Court, but the applicant handed it back to the Officer for the replacement he had already paid for. The Officer refused to issue a replacement or to return the original on the grounds that the case was not yet finished as the Citizenship Committee was looking into the question of his citizenship.

The applicant then brought this action seeking a declaration that the continued withholding of his passport was in breach of ss.5 and 14 of the Constitution; compensation in accordance with s.17 of the Constitution, and an order that the respondent forthwith release the applicant’s passport.

The respondent argued that withholding the passport was lawful under s.7(1) of the Passport Act 1978 which provides that an officer may retain a passport if he has good reason to believe that it was obtain by false statement and that s.14(3)(c) of the Constitution which allows restrictions on the movement of non-Solomon Islands citizens should be deemed to apply to the applicant because his Solomon Islands citizenship was in doubt due to his dual nationality.

Held:

1. The scribblings did not alter, add to, delete or erase anything in the passport, therefore it remains valid in terms of s.142(2) of the Passport Act 1978.

2. The Officer lawfully held the passport pursuant to s.7(1) of the Passport Act 1978 only until 17 May 1985, the date the appeal against the applicant’s acquittal was dismissed.

3. The applicant was a citizen of Solomon Islands to whom s.14(3)(c) of the Constitution did not apply and as of 17 May 1985 was the lawful holder of a passport which was unlawfully witheld from him restricting his movement in breach of s.14 of the Constitution.

Accordingly, the declaration and order sought were granted as follows:-

1. The withholding of the passport since 17 May 1985 was in breach of the Constitution;

2. The respondent was ordered to return the original passport or, alternatively, to issue a replacement forthwith; and

3. $5,000 compensation was awarded pursuant to s .17 of the Constitution.

Cases considered:

Ghani and Others v. Jones (1969) 3 All ER 1700
Jamakana v. Attorney-General and Another (1983) SILR 127

John Muria for the Applicant
Reginald Teutao for the Respondent

Wood CJ: This application is brought before the Court by way of notice of motion for which leave was granted by this Court on August 27, 1985 pursuant to Order 61A of the High Court (Civil Procedure) Rules, 1964 (as amended). The right of action claimed by the applicant is brought under s.14 of the Constitution of Solomon Islands as enforceable under the provisions of s.18 of the Constitution.

The applicant, who is a director of two Solomon Islands companies, was born in the Republic of China and resides at Chinatown, Honiara. On May 30, 1980 he applied for Solomon Islands citizenship which was granted to him on July 7, 1980 under Certificate No. 4834. It is common cause that at no time under any law has this certificate been revoked or the applicant informed in any manner whatsoever that he has for any lawful reason lost his citizenship of Solomon Islands. There have indeed been suggestions in correspondence of uncertainty concerning the legality of the applicant’s citizenship and suggestions by the Chief Immigration Officer that he “may have lost his citizenship” but Mr Teutao has conceded that in law the applicant is still at the moment a citizen of Solomon Islands by virtue of Certificate No. 4834.

The applicant’s case is that on August 12, 1980 he applied for a Solomon Islands passport which was granted to him on September 16, 1980. Earlier in 1980 he had applied for a permit to enter Taiwan from a Taiwanese trade delegation visiting Solomon Islands at the time which he received in September 1980. This “permit” was issued in the form of a “passport” and was held by a Principal Magistrate in another case to be a passport. This finding of fact of the Principal Magistrate was upheld by this Court in a subsequent appeal (DPP v. Sunny Tong Criminal Appeal Case No. 10 of 1985).

On or about October 5, 1984 the applicant was accused of having two passports in his possession and went to see the Principal Immigration Officer (as he then was) explaining that the Taiwanese passport was supposed to be only a permit to enter Taiwan. He also handed over to the Principal Immigration Officer both his Taiwan passport and his Solomon Islands passport. He was then unable to obtain back his Solomon Islands passport being informed that it was needed for the purposes of a criminal investigation which eventually led to a prosecution under the Passports Act 1978. This prosecution resulted in the acquittal of the accused. I think it is important in passing to note the reason for the acquittal. He had been charged with the offence of obtaining a passport by false statement or representations c/s 6 of the Passports Act in that he had on August 12, 1980 made a statement or representation that he had not previously held or applied for a passport of any description which to his knowledge was untrue for the purpose of procuring a passport. The Courts found that the prosecution had failed to prove that the applicant knew that he was applying for a passport and not merely a permit to visit Taiwan in early 1980 when he approached the Taiwanese trade delegation. One curious aspect of this case has always been that although the document issued by the Republic of China is in the nature and form of a passport it requires the holder to obtain a visa before entering Taiwan. I have never heard of any other passport which requires the nationals of its own country to obtain a visa to visit the mother country. It surely suggests that the applicant was not regarded as a full national of Taiwan although the passport states that he is.

Ever since the applicant handed in his passport to the Principal Immigration Officer he has made numerous attempts to get it back. The reason given was originally that is was wanted for purposes of the criminal investigation. By February 4, 1985 he was informed by the Principal Immigration Officer that the Solomon Islands passport was no longer a valid document under s.14(2) of the Passports Act 1978 because of “unauthorised alterations”. I have examined the passport in question which, as the applicant has explained, contains childish scribbles. These scribbles are in green ink which colour the join between the cover and page 1, pages 2 and 3, 4 and 5, across the middle of page 14, between pages 30 and 31 and page 32 and the back cover. On pages 4 and 32 the scribbling has strayed from the join onto the pages. These scribblings have not altered, added to, deleted or erased anything at all in the passport and for anyone to hold that it is invalid in terms of s.14(2) of the Passports Act 1978 would receive no support in this Court. It is of course open to the holder of such a passport to ask for a replacement if he so wishes. In the event the applicant has applied for a replacement and paid the prescribed fee or $30.

The applicant was acquitted of the criminal charge on April 4, 1985 and the appeal by the Director of Public Prosecutions was dismissed on May 17, 1985. After the appeal the applicant’s passport was returned to him by the Registrar of the High Court but the applicant handed it back to the Principal Immigration Officer for a replacement which he had already paid for. The Principal Immigration Officer however refused to issue a replacement passport or to return the original passport on the grounds that the case against the applicant was not yet finished and that the Citizenship Committee were looking into the question of his citizenship. This situation has continued in spite of repeated requests until this application first came before the Court on August 27, 1985 when leave was granted for this motion. The motion was adjourned at the request of the respondent on condition that the applicant be granted a valid travel document within seven days to enable him to travel. An Emergency Certificate was issued to the applicant on August 29, 1985 but when he used this in September he found that it was generally unacceptable and that he could not obtain a visa on it in order to enter Taiwan.

The applicant now seeks the following redress from this Court.

(a) a declaration that the continuing withholding of the applicant’s Solomon Islands passport and persistent refusal to deliver the same to the applicant by the Principal Immigration Officer so that the applicant could not leave Solomon Islands is unlawful and unconstitutional being in breach of ss.5 and 14 of the Constitution;

(b) compensation from the respondent in accordance with s.17 of the Constitution; and

(c) an order that the respondent do forthwith release the applicant’s passport to him.

Mr Teutao’s main argument for the respondent, if I understood him correctly, is that the withholding of the applicant’s passport is sanctioned by the law. In support he cites s.7(1) of the Passports Act 1978 which reads as follows-

“It shall be lawful for the Passport Officer, any immigration officer or police officer to take and retain possession of any passport in any case where he has good reason to believe that the passport is in the wrongful possession of any person, or that the passport or a renewal or endorsement in respect thereto has been obtained by means of any false or misleading representations or of any statement that is false or calculated to mislead in a material particular.”

There is no argument that the applicant was acquitted on April 4, 1985 of a charge of obtaining his passport by means of a false or misleading representation and that the Director of Public Prosecutions’ appeal against that acquittal was dismissed by this Court on May 17, 1985. I would accordingly hold that up to May 17, 1985 the applicant’s passport was lawfully taken and retained by the responsible authorities and that up to that time the applicant’s motion cannot succeed. In my judgment the situation seems to change on May 17, 1985 when the applicant’s passport was returned to him by the Court. The applicant is a citizen of Solomon Islands and the passport is his passport lawfully in his possession. He has been acquitted of the offences specified in s.7 and I cannot see how s.7(1) of the Passports Act 1978 can be invoked now by the respondent after May 17, 1985.

S.14(1) and (3)(c) of the Constitution read as follows-

“14(1) No person shall be deprived of his freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Solomon Islands, the right to reside in any part of Solomon Islands, the right to enter Solomon Islands and immunity from expulsion from Solomon Islands.

(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law makes provision-

(c) for the imposition of restriction on the movement or residence within Solomon Islands of any person who is not a citizen of Solomon Islands or the exclusion or expulsion from Solomon Islands of any such person.”

Mr Teutao has argued that although the applicant is a citizen of Solomon Islands to whom s.14(3)(c) would not normally apply it should be deemed to apply to the applicant because his citizenship is in doubt in consequence of his dual nationality with Taiwan.

The facts of the situation on May 17, 1985 and the situation which continues up to the date of this judgment is that the applicant is a citizen of Solomon Islands holding a valid Solomon Islands passport which has been withheld from him.

In Ghani and Others v. Jones (1969) 3 All ER 1700 the plaintiffs had their passports taken and detained by the Police in connection with a case of alleged murder. The Court of Appeal held that the Police were not entitled to retain the passports since it had not been shown that these were material evidence to prove the commission of the murder, nor had it been shown that the Police had reasonable grounds for believing that the plaintiffs were in any way implicated in a crime or accessory to it; furthermore the passports had been kept long enough. In this case the applicant’s passport has now been kept for over a year and nearly six months since May 17. 1985. To withhold a passport clearly restricts the movement of the applicant and he has shown this to be the case by demonstrating that even in the Pacific area a Solomon Islands Emergency Certificate is a travel document which is largely unacceptable by other countries.

In my judgment the principles enunciated in the case of Jamakana v. Attorney General and Another (1983) SILR 127 apply to this case and I would therefore grant the Declaration and order sought as follows-

1. The withholding of the Solomon Islands Passport from the applicant since May 17, 1985 and the refusal to return the said Passport to him is unlawful and unconstitutional and is in breach of s.14 of the Constitution.

2. I order the Respondent to return the applicant’s passport to him forthwith or alternatively issue him with a replacement passport.

It follows that the applicant is entitled to compensation under s.17 of the Constitution. The principles to be applied are set out in Jamakana op. cit. The applicant has had considerable problems over the past six months culminating in an abortive journey to Port Moresby, Manila and Hong Kong involving airfares and hotel expenses. They have not been quantified but the amount awarded in Jamakana has been suggested by Mr Muria and I would accept that $5,000 is a reasonable sum. I award the applicant $5.000 compensation and the costs of this cause.