Court rules Police, Fisheries raid was illegal; orders gov’t to pay TP$5000 compensation

Tu’utu’uni Fakamaau’anga Lahi’ ki he pule’anga’ ke totongi ‘a e $5000 ko e huhu’i ‘enau halaloto’api ‘o hua ‘i Ma’ufanga ‘a e ngāue’anga ‘i he Blue Pacific ‘a ia ne ‘i ai ha ‘iate tuku’anga ‘one’one mo koniteina. Ko e hua ‘eni ne ngāue fakataha ai ‘a e kau polisi’, mo ha timi mei he Potungāue Toutai ka koe’uhi ne ‘ikai ha’anau ngofua (warranty) mei ha fakamaau ke fai ‘a e hua ko eni ne tu’utu’uni ai ke totongi ‘a e $5000 ki he maumau ne hoko’ ‘a ia ko e $2000 ki he hala loto ‘api mo e maumau pea $2000 ki he puke ta’efakalao mo e $1000 ki he toe maumau pe pea fakafoki ‘a e kaponga’i ‘anga 'e 83 ne nau puke’. Ko e ‘ohofi foki ‘eni ‘i he tui ne ‘i ai ‘a e mokohunu ta’efakalao ne tauhi he ngāue’anga’ ni pea ne ma’u ia ‘e he kau polisi’ hili ha’anau tuku atu ha vakapuna taloni (drone) ke ne asiasi he ‘api’ ni. Ne ‘ikai foki kole ngofua e kau polisi’ ni ki ha fakamaau, fakatatau mo e lao', ki mu’a pea fai ‘a e ‘ohofi hua ko ‘eni tu’unga he’enau tui ‘oku ‘atā pe ke nau fai ‘a e hua’ ni ta’e ha uāleni fakatatau ki he kupu 123 ‘o e lao’ ‘a ia ‘oku ‘atā ai ki he kau polisi’ ke nau hua ta’e ha uāleni ha me’alele, feitu’u pe vakapuna kapau kuo nau tui kuo ‘i ai ha hia mātu’aki mamafa kuo fakahoko ai. Mahino mei he tu'utu'uni 'a 'Eiki Fakamaau Lahi Whitten, ne faitotonu pe kau polisi hono ngāue'aki 'a e kupu'i lao ni ka ko e pango' he 'e lau ia ai kuo nau hala loto 'api.

The Supreme Court has ordered the government to pay TP$5000 compensation after police and fisheries officers raided a business without a warrant.

The raid took place on March 25 this year on a property in Ma’ufanga, known as the Blue Pacific, which operates as a  sales yard for sand and the storage of containers.

The raid was part of a joint operation aimed at combating illegal, unreported and unregulated fishing in Tonga.

Constable Halapua gave evidence that based on reports received and video footage filmed from a drone, he led a team to raid the property.

The nature, reliability and amount of evidence cited by officers involved in the case was called into question during the trial by Lord Chief Justice Whitten.

Halapua testified that on the day of the search he had discussed the matter with Chief Inspector Saimone Fifita and Inspector ‘One’one of the police prosecutions division, who told him he could rely on Section 123 of the Tonga Police act to conduct the search without a warrant.

S.123 says that places, vehicles, vessels and aircraft can be searched without a warrant  if a police officer is satisfied, on reasonable grounds, that a serious offence has been committed, is being committed or is about to be committed and that it would be impracticable, unreasonable or not in the interests of justice if the officer was required to apply for a warrant in order to conduct a search in relation to the offence.

The government officers believed beche de mer (sea cucumbers) were hidden on the premises of Blue Pacific. The Court was hearing a complaint from the company’s manager, De Feng Mo.

Feng said Halapua refused to let him call his lawyer and knocked the phone out of his hand. Other employers also had their phones confiscated and one staff member was stopped from leaving the premises.

During the two hour search no beche de mer were found.

Feng said he was repeatedly asked where he had hidden the sea cucumbers.  Feng said that he did not know what the officer was talking about. He said Halapua told him not to lie.

Halapua said 83 shark fins were found drying and were confiscated. They were later found to belong to Feng’s wife, Katalaine Fehoko.

The judge said that while the government officials had committed trespass, it was the result of “honest, if erroneous, opinion” about whether S.123 applied in this particular situation.

“It did not reflect any outrageous or high-handed manner in the way the officers undertook the operation and reached the decision to search without warrant,” Judge Whitten said.

The judge ordered the government to pay Feng TP$1000 for trespass and TP$1000 in exemplary damages.

The government was also ordered to pay TP$2000 in compensation for unlawful detention and assault and TP$1000 in exemplary damages.

The government has also been ordered to pay Feng’s costs and to return the shark fins.

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