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Wong v Chin Foot Hap [1994] SBHC 72; HCSI-CC 134 of 1991 (14 January 1994)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No.134 of 1991

WILSON WONG

-v-

CHIN FOOT HAP AND ATTORNEY GENERAL

(Palmer J.)

Hearing: 7th September 1993
Judgment: 14th January 1994

F. Waleilia for Appellant
T. Kama for the Respondent
C. Ashley for Attorney General

PALMER J: There are two parts to this claim. One is for malicious prosecution and the other is for false imprisonment. The first part relates to a complaint lodged by a police officer, Mr Eric Erekali, before the Principal Magistrate (Central), against the Plaintiff, for simple larceny contrary to section 254(1) of the Penal Code. The second part related to the purported detention of the Plaintiff in the cell in the Central Magistrates’ Court during the times that he had appeared at the court in answer to his bail.

The facts of the case are as follows. On or about the 28th of June 1990, the first defendant reported to the Police, that the Plaintiff had stolen fishing gears, packing cases, packing equipment and packing materials, from a warehouse owned by May Seafood Company Limited, of which he was a director of the said company.

In the Police Docket marked number CRB 839/90, and submitted as an exhibit to this court, at page one and entry marked number (1), date: 28 June 1990, time 0900hrs, it read:

"Extracted from Crime Diary No. 6 that Mr Chin Foot Hap Cl-Quality Food Honiara, P.O.Box 521 Honiara. Reported to Police that one by the name of Wilson Wong had stolen his properties as fishing gears, packing cases, packing materials and parking (sic) equipment worth of about $4,000.00 (SI) at White Rive. Incident occurred sometimes in 1988."

At entry number (6) in- the docket detective constable Eric Erekali was instructed to proceed with the investigation of the case.

At entry number (8) and dated 28 June 1990, it was recorded that a statement had been obtained from the complainant. That statement is marked A-l in the docket and dated 26th of June 1990.

At entry number (11) and dated 2nd July 1990, it was recorded that a statement of person by the name of Wang Peng Chia was taken and filed in the docket.

That statement is marked A-2 and dated 2nd July 1990.

At entry no. 12, and dated 2nd July 1990, it was recorded that the Plaintiff and another person, brought to the Police Station several properties. These included:

(1) 44 knives in a small bag;

(2) 4 spark plug;

(3) 18 packets of rabbit staples;

(4) 1 packing case stapler;

(5) 3 yellow plastic coil rolls.

At entry no. 16 and dated 12th July 1990, it was recorded that a fax telex had been received from Mr Chin and filed in the docket. This is marked A-3 together with the translation.

Under entry no. 21, it was recorded that the Plaintiff called in to the Police Station and his statement under caution obtained and filed in the docket. This was on the 29th of September 1990.

Under entry no. 22, and dated 1st October 1990, it was recorded that the first defendant had called into the station and an additional statement obtained. Entry 23, and dated 2nd October 1990 then reads:

"This is a case of simple larceny which occurred sometimes in 1988 and it was just reported this year as per docket.

The complainant of this case is Mr Chin Foot Hap and the suspect of the case is Mr Wilson T. Wong. Amount of items taken was $4,000.00.

The suspect in 1988 in the night had taken a vehicle to White River to where the properties of Mr Chin and Mr Su a Taiwanese who had already left the country that time due to the business was not in good health and took the items and took it to Mr Wang Peng Chia’s residence and left it there

This was done without authority of the two directors of that company who owned the properties Mr Su and Mr Chin.

The suspect was interview but denied allegation saying he had bought but which was false as evidence enclosed.

I forward yours for your views and possible charge to be laid."

In response to this entry, immediately below it, the following entry was made:

"No need to hold the case too long. Date of offence had been some two year back. If we can have the complainant to clarify about what month in 1988. Then formally charge suspect for the offence as reported."

The next entry is dated 3rd October 1990 and records that the Plaintiff was then formally charged and bailed for an appearance in court on the 8th of October 1990.

On the 8th of October 1990, the Plaintiff appeared in court represented by Mr Waleilia. A plea of ‘not guilty’ was entered. The case was then adjourned for trial on the 6th of November 1990. On that date the case against the Plaintiff could not proceed as not all of the witnesses for the prosecution had been served. The case was then further adjourned to the 11th of December 1990. On that date the case against the Plaintiff was withdrawn and the plaintiff was acquitted under section 189(2) (b) (i) of the Criminal Procedure Code.

THE LAW

In Streets On Torts, 6th Edition, at page 395, the tort of Malicious Prosecution is defined as:

"It is a tort maliciously and without reasonable and probable cause to initiate against another judicial proceedings which terminate in favour of that other and which result in damage to his reputation, person, freedom or property."

In the text ‘Civil Actions Against The Police,’ by Richard Clayton and Hugh Tomlinson, at page 246, the elements of the tort are neatly set out. These are:

"(1) that there has been a prosecution which has caused him damage;

(2) that the prosecution was instituted or continued by the defendant;

(3) that the prosecution was terminated in his favour;

(4) that the defendant acted without reasonable and probable cause; and

(5)·that the defendant acted maliciously."

These five elements must necessarily be proved for the tort of malicious prosecution to be established.

DAMAGE

It is not disputed that Mr Wong is a member of the Marovo Area Council and that as a result of the prosecution, it did appear that his name and reputation had been severely tarnished, as he was not re-elected in the next council elections. Further, it has not been disputed that the plaintiff had incurred legal costs, amongst other things, in the effort to extricate himself from the criminal charge made against him.

PROSECUTION

In the case of Danby-v-Beardsley (1980) 43 L.T. 603, Lopes J. stated that the question to be asked in respect of this was:

"Is there any evidence to show that the defendant was actively instrumental in putting the law in force?"

In ‘Streets on Torts,’ Sixth Edition, at page 395, the learned author put the question in the following way: "The defendant must have been ‘actively instrumental’ in instigating the proceedings."

However, the learned author continued:

"If he merely states the facts as he believes them to a policeman or a magistrate, he is not responsible for any proceedings which might ensue as a result of action taken by such policeman or magistrate on his own initiative. It is enough if the defendant has set the prosecution in motion before a body which has jurisdiction to deal with it. Charging the plaintiff will no doubt constitute setting the prosecution in motion."

In the text ‘TORT’ by C.D. Baker, 4th Edition, the learned author made the following statement:

"The defendant must be the person 'actively instrumental’ in causing proceedings to be brought against the plaintiff. In the large number of prosecutions brought by the police, the prosecutor is the police officer who conducts the prosecution, even though he may have acted on the advice of his superior officers in deciding to prosecute. A private person who gives information to the police or to a magistrate as the result of which a prosecution is brought is not the prosecutor, since the decision to prosecute is not his."

The question before this court is whether the first Defendant was ‘actively instrumental’ in causing the proceedings to be brought against the plaintiff?

The evidence before this court is that on or about the 26th of June 1990, the First Defendant lodged a report with the police, that the Plaintiff had stolen some of his property from a house at White River. The things stolen were listed as: ‘some fishing gears (fishing nets), packing cases, packing materials, and packing equipments’. The value as put by the First Defendant in his statement was about $4,000.00. In his evidence under oath, the First Defendant stated that prior to the report being made by him to the police; he had spoken to Mr Su Ching Kuo, the owner of those goods alleged to have been stolen. He stated that Mr Su had complained to him that some people were using his carton boxes to export to Taiwan. Those boxes contained the words of his company, May Sea Food Company Limited, printed in them. It seems that Mr Su then found out later that it was the Plaintiff who was responsible for that, and so authorised the First Defendant to investigate the Plaintiff.

There is evidence of a fax, alleged sent by Mr Su to the First Defendant dated 15 June 1990. A copy of this is marked A-3 in the police docket. It is written in Chinese characters, but a translation has been made by another responsible Chinese, Mr Ken Chan, a Managing Director of the company, Technique Radios Centre Limited. The translation reads:

"Mr Chan Foot Hop would you please accept my full authority to investigate Mr Wilson Wong, whom without my consent, stole various packing cartons and equipment."

The First Defendant relies on this authorisation to make the report to police. It also seems that from his prior knowledge obtained from a man from the Weather Coast of Guadalcanal, by the name of Chris, and a Taiwanese man by the name of Mr Wang, he then lodged the report with the allegation that a number of things had been stolen by the Plaintiff.

Apart from the above things and information provided by the First Defendant, there is no other evidence to show that he played an active role in the investigation and final decision-making to charge the Plaintiff. Applying what C.D. Baker said, the First Defendant merely gave the necessary information to the police, from which subsequently a prosecution eventuated. But the decision to prosecute was not made by him. Also applying what the learned author in. 'Street on Torts' had said; the first defendant was merely stating the facts as he believed them to be to the police when he reported the matter. He did not set the prosecution in motion by charging the Plaintiff. It was the police who did that. Accordingly, I am not satisfied that the First Defendant was the prosecutor in that case, or took an active part in the prosecution of the case against the Plaintiff. Accordingly, the claim against him should be dismissed.

I am satisfied that it was the police who proceed with this case and prosecuted it.

FAVOURABLE TERMINATION OF THE PROSECUTION

A favourable termination will include the situation where the prosecution was discontinued with the leave of the court. (See Watkins-v-Lee (1839) 5M. & W.270). In this case, the proceeding was terminated on the basis that the prosecutor could not proceed as the key witness was not available in the country. The prosecutor accordingly applied to have the case withdrawn under section 189(2) (b) (i), with the· court’s leave. This was granted and the Plaintiff was acquitted. I am satisfied this third element has been established.

LACK OF REASONABLE AND PROBABLE CAUSE

The generally accepted meaning of the phrase ‘lack of reasonable and probable cause’ is that as explained by Hawkins J. in the case of Hicks-v-Faulkner (1881) 8 Q.B.D. 167 at 171,:

"an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that person charged was probably guilty of the crime imputed."

The above statement was subsequently approved in the House of Lords in the case of Herniman-v-Smith (1938) A.C.305.

Four questions have been drawn up by the learned author in the text ‘Civil Actions Against the Police’ by Richard Clayton and Hugh Tomlinson. The questions are as follows:

(1) Did the prosecutor have an honest belief in the guilt of the accused?

(2) Did the prosecutor have an honest conviction of the existence of the circumstances relied on?

(3) Was this conviction based on reasonable grounds?

(4) Did the matters relied upon constitute reasonable and probable cause for the belief in the accused’s guilt?

The first two questions are subjective, whilst the latter two are objective. In respect of the first question, the learned author at page 257 made the following comment:

"The beliefs of the prosecutor are relevant to reasonable and probable cause and if the prosecutor personally does not believe the accused is guilty then he lacks reasonable and probable cause even if a reasonable man could have believed in the accused's guilt on the basis of the facts known to the prosecutor."

In ‘Street on Torts,’ Sixth Edition, at page 398, the learned author made the following comments, in respect of proving the question, whether the prosecutor or the defendant believed that the plaintiff was probably guilty:

"Evidence should be given by the plaintiff of some fact or facts which, either inherently or coupled with other matters proved in evidence, would permit the inference that the defendant did not believe in the plaintiff's guilt. If such evidence is given, the question must be left to the jury, whether it has been proved to their satisfaction that the defendant did not believe in the plaintiff's guilt. But unless such evidence is given it is not proper to put a question to the jury as to the defendant's belief. This question to the jury must be formulated precisely and should not refer to reasonable cause. It should be either: ‘Did the defendant honestly believe in the plaintiff’s guilt?’ or ‘Did he honestly believe in the charges he was referring?’......Merely to prove that the defendant had before him information which might or might not have led a reasonable man to form an opinion that the plaintiff was guilty is not evidence that the defendant did not believe him to be guilty. If this ground is relied on, the plaintiff must give some evidence from which an inference may be drawn as to what the defendant’s belief actually was: it is not sufficient to give evidence from which a guess may be made as to what it was. Nor is it sufficient merely to supply evidence of reasons for non-belief and if such evidence is relied on there must also be evidence that those reasons were in fact operative."

Did the investigating officer, in this case, Mr Erekali, have an honest conviction in the guilt of the accused?

The crucial evidence to this came from the witness, Eric Erekali himself. This witness stated that he had been instructed by his superior, Station Sergeant Karani, to investigate a report of a complaint lodged by the First Defendant on a case of simple larceny against the Plaintiff. He stated that the first thing he did, was to obtain the statement of the First Defendant. He also got the statement of another witness, Wang Peng Chiao. At about the same time, he collected several items as stated by Mr Chia, to have been brought to his house by the Plaintiff, one night. At entry number 12, in the police docket, it is recorded that those items were received by police. Wang Peng Chia's evidence, would confirm what the First Defendant had been told by the man from Weather Coast, Chris, who was living at that time, at the house at White River, where the goods were alleged to have been stolen from. This witness then proceeded to ask the police at Seghe for assistance in locating the plaintiff at Marovo, and the properties, alleged to have been stolen.

The statement under caution of the Plaintiff was subsequently obtained by this witness. A further statement from, the First Defendant was obtained, and then the Plaintiff was formally charged by this witness.

There is also a copy of a fax which was handed to Mr Erekali by the First Defendant, as coming from Mr Su Ching Kuo, who was also, one of the partners in the Company, May Sea Food Limited. In fact, there were only two shareholders; the First Defendant and Mr Su.

Under cross-examination by Mr Kama, Mr Erekali said that by looking at the fax (i.e. the translation of it being done by an independent person) he was satisfied that the First Defendant had a right to report the case to the police. He also stated that the value of the goods was accepted by him, because it was given by the complainant, who knew what he was talking about. Further, he did not believe the statement of the Plaintiff, because he did not prove to him, that he had bought the goods, as alleged, in his statement under caution.

As to the question of ownership of the goods, this witness stated, that he believed that the goods belonged to May Sea Food Company, because this was stated in the statement of the First Defendant, and from the fax of Mr Su Ching Kuo. He said that he had asked the First Defendant about the ownership of the goods, but he was told, that the First Defendant was one of the Directors of the company. Accordingly, it seems he felt that it was safe to rely on his evidence.

Under further cross-examination by Mr Waleilia, he stated that it never occurred to him that the First Defendant may have been lying to him.

When asked about the absence in the country of two key witnesses, Mr Su, and Mr Tsai, he stated that he was hoping that a conviction could be obtained anyway against the Plaintiff.

When asked about the origins and the veracity of the fax given to him by the First Defendants, he said:

"I received it from him and I believe him on his statement."

When this witness was asked whether he was concerned when the Plaintiff said he will sue the First Defendant, he said:

"Well depends on evidence then will charge anyone. It never crossed my mind that if the charges were false that it would ruin him. The law required us to charge anyone irrespective of status. I did not think at that time that this case will end up like this and so did not think in this way."

The evidence of the witness, Eric Erekali demonstrated one thing very clearly. This is, that he held in my assessment of his evidence, an honest belief in the guilt of the accused. Despite tough and pressing cross-examination from Mr Waleilia, this witness repeatedly stressed, that he believed the statement and the report made to him by the First Defendant. In other words, he was convinced that the Plaintiff was probably guilty. His actions, and the way and manner he carried out the investigation, and finally the charge laid against the Plaintiff, demonstrated this belief quite clearly.

The second question relates to whether Mr Erekali held an honest conviction of the existence of the circumstances relied on.

The evidence as assessed in my view showed that this witness believed in the existence of the contents of the statements obtained from the First Defendant and Mr Wang, and the fax as translated to him from Mr Suo. He did not believe the Plaintiff, despite been told by the Plaintiff, that he had bought certain goods he had. Even when the goods sought for were not obtained from the home of the Plaintiff at Marovo, this did not deter this witness, from his honest conviction that the circumstances surrounding the case did exist.

The third question, relates to whether the conviction held by this witness was based on reasonable grounds. This is an objective question and the standard in which it is to be assessed is that of ‘an ordinarily prudent and cautious man’. In the case of Abbot-v-Refuge Assurance Co. (1962) 1 Q.B.432 at 454, also quoted in the text, ‘Civil Actions against The Police,’ at page 258, Upjohn L.J. suggested a number of steps such a person should have taken:

"(1) he or his advisers would take reasonable steps to inform himself of his true state of the case.......;

(2) he or his advisers would finally consider the matter upon admissible evidence only;

(3) in all but the plainest cases, he would lay the facts before counsel of standing and experience in the relevant branch of the law and receive the advice that a prosecution is justified...... In addition, of course, the defendant must bona fide accept and act on the advice and, though that is part of a subjective test, it cannot be wholly removed from consideration at this stage."

Upjohn L.J. then stated at pages 454-455 that a failure to take any of the above steps would be evidence from which a judge may infer the absence of a reasonable and probable cause.

In respect of step (1), it is further stated by Lord Atkin in Herniman-v-Smith [1938] A.C. 305 at 319,

"It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence but whether there is a reasonable and probable cause for the prosecution."

Did the police take such reasonable steps?

The actions of the police must be assessed against the report lodged to them by the First Defendant.

In the statement made to Police by the First Defendant dated 26th June 1990, he stated:

"During that same year as my business partner had left, I received an information that one by the name of Wilson Wang had taken some of my properties of White River, such as, some fishing gears (fishing nets), packing cases, packing materials, and packing equipments. According to my source, a truck was used to pick up what he had taken away.

And my witness were my workman that time by the name of Chris of Weather Coast of Guadalcanal and a Taiwan man by the name of Mr Wang living at Henderson. At this state, I think its about $4,000.00 or so being the value of my properties."

The picture clearly painted in that statement is that the First Defendant was the person to be contacted for any necessary information or confirmations about any doubts that the police may have.

So, although the police may have been aware that the report was lodged on behalf of someone from Taiwan, as stated in the evidence of Eric Erekali, the statement produced by the First Defendant on the 26th of June 1990, would seem to allay any fears or doubts, that the police may have about the ownership and identity of those goods, and their value. In his statement to the police, the First Defendant did specifically refer to the alleged stolen goods as his properties.

On one hand therefore, the reliance of the police on the First Defendant’s knowledge would seem to be reasonable.

The question before this court however is, did the investigating officer take reasonable steps to acquaint himself about the true state of his case? The police may have reasonable grounds to rely on the statement of the First Defendant. But was that sufficient?

The first point to note about the contents of the statement of the First Defendant is that it was very general. What sort of fishing nets were alleged stolen? How many? And what was their value? How many packing cases were stolen and what was their value? What about the packing materials? What were these and their value? And the packing equipment? What were these, and their value?

Secondly, it was alleged that these goods were stolen from a house at White River. Who saw the Plaintiff stealing those things from that house? And at what time and date was this? In the First Defendant’s statement he mentioned the name of a person from the Weather Coast of Guadalcanal, called Chris. No statement was obtained from him. It is therefore not known whether Chris would have been able to give material evidence about the alleged theft of those goods from the house at White River by the Plaintiff. Did the investigating officer take reasonable steps in respect of this? The answer, with respect, is no.

Apart from what Chris may have been able to give, there was no one else mentioned, who could be interviewed about the alleged theft from the house at White River.

The statement of Wang Peng Chia only showed that certain goods, such as fishing nets, packing cases and packing equipment, more specifically belts, were brought to his house sometime in the month of December 1988 by the Plaintiff. It also showed that when the. Plaintiff was asked about the items, he was told that he had bought them from Tai Leng Tu. There is however, no evidence whatsoever that those goods were stolen by the Plaintiff. A reasonable person would then have sought to obtain a statement from Tai Leng Tu as well.

The third point to note is that when the fax from Mr Su Ching Kuo, was translated, it only referred to various packing cartons and equipment. There was no mention of fishing gears, such as nets. Further, no mention was made of the estimated value of those goods stolen; how many and what they were. A reasonable person would have sought to obtain further details from the First Defendant about the fishing nets, the packing cartons and equipment. There is no evidence that this was done by the investigating officer.

An investigating officer should not accept parrot-like, what was stated to him in any report, but must apply his mind consciously, as to the elements of the particular offence, and ask himself/herself the basic question, what Am I looking for here; in other words, what are the information or details, that are required to establish, a reasonable and probable cause, or a prima facie case. When he or she asks himself that question, it may mean, that he may have to get further details from that particular witness. It needs to be understood that many times, the person reporting the complaint is not schooled in the law. An investigating officer on the other hand, has had some basic training in investigative work. He has a basic understanding of the law and the offences that are involved. He has a basic understanding of what to look for. And if he is not sure, then he can consult his superiors. And if they don't know, then they have direct access to the Director of Public Prosecution’s Office, to speak to a legal counsel about their problem.

There is a fourth point to note. After some items had been confiscated by the police from Mr Wang Peng Chia’s residence, there is no evidence to show that those things were shown to the First Defendant to identify as part of the goods stolen. The list of the things confiscated included 44 knives and 4 spark plugs. There is nothing in the statement of the First Defendant which referred to these goods.

The rabbit staples, packing stapler and the yellow plastic coils may be relevant. A reasonable person would however have asked the First Defendant to confirm that those goods were part of the alleged things stolen. There is no evidence that this was done.

Had the investigating officer probed deeper into the matters before him, he may inevitably have come to the conclusion that he should get a statement from Mr Su Ching Kuo himself.

In his statement under oath before this court, the First Defendant repeatedly stated that by the time Mr Su had left the country at the end of August 1988, he was virtually keeping himself apart from the things stored by Mr Su at the White River house. He stated that Mr Su did not give him a list of what items were kept there when he left. He thought that Mr Wang Peng Chia would draw up a list for him before he left the country, but he did not do so either. He therefore instructed Yam and Company, a chartered accountant firm, to do a stock take, and to be responsible for the items at the White River house. He also stated that before Mr Su left the country, they had basically wound up the company and divided its assets and properties between them.

The above information would have become known to the investigating officer had he probed further. He may then have come to the inevitable conclusion that a statement should have been obtained from Mr Su, and may be from Yam and Company.

This brings me to the second question, whether the matter was considered in the light of the admissible evidence available. There is no evidence that this was done. I say this because, had this been done honestly, several obvious points would stand out. Most of these have already been mentioned when dealing with the first question.

First, it had not been established what specific things were stored at the house at White River; and secondly, what specific things were removed.

Thirdly, the alleged taking of those goods was based on hearsay evidence. We do not know if Chris, the man from the Weather Coast of Guadalcanal, would have supplied that information, as no statement was obtained from him. There was therefore no admissible evidence to say that the Plaintiff took those alleged items from the house at White River.

Fourthly, there is no admissible evidence to show that the, (i) 44 knives in a small bag (ii) 4 spark plugs, (iii) 18 packets of rabbit staples, (iv) 1 packing case stapler, and (iv) 3 yellow plastic coil rolls, confiscated by the police, had been stolen by the Plaintiff.

Fifthly, there is no admissible evidence to show that the above goods were part of the goods alleged stolen at the White River house.

The third and final question is whether the facts as ascertained by the investigating officer were laid before any legal counsel of standing for advice.

The only evidence that we have is that the facts were made known to the CIO/C (I presume this is the Chief Investigation Officer/Central). No one from the Prosecution Branch/Central was required to peruse the file and their advice or opinion obtained. No one also from the D.P.P’s Office was consulted. It is understandable that the DPP’s Office need not be consulted in fairly clear, straightforward and simple cases. However, same thought in my view should be given to having say, the Head of the Prosecution Branch, to be given an opportunity, to peruse such files before a final decision is taken whether to commence the prosecution of an accused in such situations.

It is quite possible that had the Head of the Prosecution Branch or someone from DPP’s Office been informed, that the Plaintiff may never have been charged.

The ultimate answer to the question of whether the conviction of the investigation officer was based on reasonable grounds would have to be answered in the negative.

The fourth and final question is whether the matters relied upon constitute reasonable and probable cause for the belief in the accused’s guilt.

The answer to this in any view is fairly straightforward. The investigating officer relied almost exclusively on the statement of the 1st Defendant. However as already spelled out, the contents of that statement in my view could not have amounted to a reasonable and probable cause for the belief in the accused's guilt. The standard applied here, it must be remembered, is that of an ordinarily prudent and cautious one.

I am satisfied accordingly that there was a lack of a reasonable and probable cause in the prosecution of the Plaintiff. This brings me to consider the final element of malice.

In the text ‘Civil Actions Against The Police’ at page 261, the learned authors stated that the word ‘malice’.....does not mean spite or hatred but merely wrongful motive. It is wrongful to intend to use legal process for something other than its legally appointed and appropriate purpose." And quoting Alderson B. in the case of Steve-v-Midland Counties Ry [1854] EngR 661; (1854) 10 Ex. 352 at 356,:

"Any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice is a malicious motive on the part of the person who acts in that way."

In Clerk and Lindsel on Torts, 13th Edition, at page 1077, paragraph 1915, referred to by Mr Waleilia, the learned author made the following definition as quoted from Mitchell-v-Jenkins [1833] EngR 829; (1833) 5 B & Ad. 588. per Parke B:

"The term ‘malice’ in this form of action is not to be considered in the sense of spite or hatred against an individual, but of malus animus and as denoting that the party is actuated by improper and indirect motives."

The learned author then continued:

"The proper motive for a prosecution is, of course, a desire to secure the ends of justice. If a plaintiff satisfied a jury, either negatively that this was not the true or predominant motive of the defendant or affirmatively that something else was, he proves his case on the point. Mere absence of proper motive is generally evidenced by the absence of reasonable and probable cause."

The crucial question therefore on this point, is whether there is in existence, malice on the part of the prosecution.

One of the main submissions of Mr Waleilia in support of this is that the investigating Officer knew all along that at least one of the key witnesses for the,prosecution resided outside of the country. The investigating officer knew or should have known that that witness’s evidence was crucial to the successful prosecution of the case. Accordingly, he should have made enquiries about the availability of that witness to attend a court hearing before doing anything further. There was no evidence of that, and accordingly, the investigating officer should have never charged the Plaintiff in the first place. This he infers is evidence of improper motive.

I do not think I need to add anything further to this submission, as it is fairly clear and understandable. The availability of a crucial witness within the country to attend to a court hearing must be an important consideration to bear in mind. If it is known right from the beginning of the investigation, that a crucial witness is not available in the country, and that without his evidence no successful prosecution can be conducted, then that should weigh heavily in the mind of the investigating officer as to the question of whether he should go ahead and charge the suspect or not. He may find that there are other evidence available from which the case can be proceeded with.

The distinctive factor however, in this case is that, not only was the witness, Mr Su Ching Kuo, whose evidence had been considered by prosecution to be crucial, overseas, but no statement had been obtained from him. If his evidence was considered to be crucial, then why wasn't a statement obtained right from the beginning? Even at this point of time, the prosecution does not really know what sort of evidence he would give, and whether that will be material evidence. Mr Su left the country some two years earlier, (August of 1988) and it is questionable what useful information or evidence, he can provide as to the theft of the goods, at the house at White River, when the alleged theft occurred, after he had left the country. Is this a genuine reason, or is it a facade for a groundless charge which prosecution were aware about.

The court has heard how the investigating Officer had expressly stated and explained why he accepted and believed the statement of the 1st Defendant, and subsequently had charged the Plaintiff. Yet, at the trial; the prosecutor could not rely on the evidence of the 1st Defendant alone, to even commence the hearing. The 1st Defendant is a resident of this country and available within the country. What this shows very clearly is that, the prosecutor knew that the 1st Defendant’s evidence would have been insufficient.

The crucial question then is, did the investigating Officer know despite his belief in the guilt of the Plaintiff, that there was no reasonable and probable cause for the prosecution of the Plaintiff?

We know that the prosecutor, on his appearance before the Magistrates’ Court, on the 11th of December 1990, at least recognised, or knew, that the evidence of the 1st Defendant was insufficient. What about the investigating Officer?

The answer of Eric Erekali in response to a question asked under crass-examination by Mr Waleilia, as to the absence of two key prosecution witnesses, is quite illuminating. He had replied that he was hoping that a conviction could be obtained anyway against the Plaintiff.

Did he mean that he was hoping for a conviction based on the circumstances relied an, i.e. essentially, the statement of the 1st Defendant?, or did he mean to say that he was hoping for a conviction, although he knew that the charge was groundless?

The evidence as assessed by me showed very clearly that there was an absence of a reasonable and probable cause for the prosecution. Did he know, or should he have known about it.

One of the essential ingredients in a charge of simple larceny is the physical taking and carrying away with intent to permanently deprive the owner thereof. There is however no evidence of this in this case. The investigating Officer knew or should have known that was so. And if he says that he did not know, then it was because he did not apply his mind to it, when he should have done. It is no excuse or defence to say, "Oh! I did not think about that."

In seeking to bring offenders to justice, he must not only act honestly, but properly and competently. If he is forgetful, careless or incompetent, then that is evidence in my view of knowledge or constructive knowledge. In other words, he knew that it was an essential ingredient in a charge of simple larceny to establish that these was a taking and carrying away by the Plaintiff, but unfortunately, he did not apply his mind to it at that time or during the investigation and the charging, of the Plaintiff. With respect, such excuse or explanation is not sufficient to exculpate such persons from the element of knowledge. So if he is held to have known that the charge was groundless and yet proceeds to prosecute the Plaintiff that is evidence of malice.

In my humble opinion, the investigating officer knew that the charge was groundless, despite his honest belief on the guilt of the plaintiff.

His honest belief as already pointed out was not based on reasonable grounds. It was based largely on hearsay evidence and mere conjecture. The essential ingredients of the offence were not made out, and the investigating officer knew or should have known had he applied his mind consciously to them. The fact that he did not apply his mind did not exculpate him. Rather, it is evidence in my view of improper motive. That he was so intensely caught up with his desire to bring the offender to justice that he had acted improperly. In other words, his pure desire to secure the ends of justice had become adulterated. He was relying on a groundless charge which he knew or ought to have known anyway, to initiate a prosecution, and hopefully a conviction. This is evidence of malice.

An analogy can be drawn with the facts of Leiba-v-D. Buckman, Ltd; and another, [1952] 2 ALL ER. 1057. The Plaintiff had been hired by the Defendant Company to do work for it. The Plaintiff had then represented to the second Defendant that he required a set of tools for the work. He was given 20 pounds. Sometime after, the second defendant was given two receipts, one 9 pounds for small tools, and another for 7 pounds 15s for precision tools. The balance was spent on petrol. Later the Plaintiff was given a further sum of is pounds for the purchase of paints. It was subsequently discovered by the second defendant that the receipt for 7 pounds 15s given for the precision tools was forged. This angered the second Defendant and he terminated the agreement with the Plaintiff forthwith. He then demanded the return of items purchased with the money. However, only paint materials to the value of 7 pound 17s were received. The second Defendant then preferred a charge against the Plaintiff for theft of the remaining amount of 27 pounds 3s (i.e. 35 pound less 7 pounds 17s). This charge was dismissed. The Plaintiff then took a civil action against the second Defendant for malicious prosecution.

The majority of the Court of Appeal, (Denning L.J. dissenting) held that where there was a theft of only 7 pounds 15s (as shown in the evidence) and reasonable and probable cause is shown as regarding this, and yet the Plaintiff was prosecuted for 27 pounds 3s., then the Plaintiff should succeed on a claim for malicious prosecution.

Jenkins L.S. found that there was evidence before which the jury could find that the second Defendant did not honestly believe that the Plaintiff had stolen the sum in question. He found that it was proper for the jury to believe the second Defendant that he held an honest belief as to the theft of the 7 pound 15s, but not for the remainder of the money. Accordingly the Plaintiff was entitled to succeed.

Denning L.J. analysed the issue of malicious prosecution by posing the question whether the second Defendant knew that the charge was groundless.

The application in this case is simple. The investigating officer knew or in my view ought to have known, because had he applied his mind to it (which he should have done), he would have come to the inevitable conclusion that the charge was groundless anyway, and yet he went ahead and prosecuted the plaintiff, hoping for a conviction on basically hearsay evidence. This certainly is evidence of improper motive, as it was no longer seeking to secure justice, but merely hoping that justice may be secured when there was no legal basis for it.

The element of malice accordingly has been established.

This brings me to the second claim for false imprisonment. This can shortly be disposed of. With respect to the submissions of Mr Waleilia, the alleged deprivation of the liberty of the Plaintiff was not done by the police, but a practice done at the direction of the court. It is an administrative practice set up at the convenience of the court to ensure that all persons bailed to appear at a certain time, at the court, remain at the court premises on appearance, and do not sneak off again, and thus wasting the courts time, in either having to wait for them when they turn up again later that morning, or day, or in having to wait for them whilst the police go looking for them.

The practice was adopted by the court several years back to deal with the problem of accused persons who would turn up at the court at the time specified in their charge sheet, but then go off again after waiting for sometime, and making the excuse that their case was not called that day. The practice does not single out any person. It applies to all accused and therefore the Plaintiff was not an exception.

The court is entitled to adopt whatever administrative procedure is convenient and to direct the police to enforce it. I accept it may have been inconvenient to the Plaintiff but that is a matter that will have to be tolerated, as it is at the convenience of the court. The fact that an accused has been placed in the cell at the court does not mean that the accused is denied access to his Solicitor. If his solicitor wants to see him, then he can see the police officer or the prison warder on duty at the court, and his solicitor should then be allowed to see the accused, either at the cell premises or outside.

This claim accordingly is without foundation.

This now brings me to consider the question of damages.

Under the head of Special damages claimed, the amounts allowed are as follows:

(i) Travel expenses, to attend court hearings on 3 occasions (8/10/90, 6/11/90 and 10/12/90, at $107.00 for one way Batuna - Honiara and return per Western Pacific Air services ($101.00 x 2 x 3) plus trip to Honiara to instruct a Solicitor in August of 1990 : $856.00
(ii) Translation fees: $25.00
(iii) Loss of time away from work: denied.
(iv) Fax, telephone and investigation: The amount claimed is
Excessive. He will be allowed only: $100.00
(v) Accommodation in Honiara: denied.
(vi) Legal fees. $645.00
$1,626.00

For damages for malicious prosecution, I accept that the prosecution of the Plaintiff did have some adverse effect on his reputation and especially when he was at that time a member of the Marovo Area Council. It is also most likely that as a result of that he was not re-elected.

The English cases on this are not very helpful as the facts of most of them are quite different. Taking everything into account I am satisfied a reasonable sum would be $3,000.00. This amount is award for malicious prosecution. Costs of this case also to be borne by the 3rd Respondent.

(A.R. Palmer)
JUDGE