DAHOO S v STATE OF MAURITIUS & ANOR

2007 SCJ 156

2007 MR 55

Record No. 5835

IN THE SUPREME COURT OF MAURITIUS

In the matter of:

Surendra Dahoo
Appellant
v.
1. The State of Mauritius
2. The Commissioner of Police
Respondents
…

JUDGMENT

This is an appeal in an action for faute, based on alleged unlawful arrest and

detention, which was brought by the appellant (“the plaintiff”) against the respondents

(“the defendants”) before the Intermediate Court. After hearing evidence, the learned

Magistrate dismissed the plaint with costs, holding that the plaintiff had failed to show on

a balance of probabilities that his arrest was unlawful.

The only evidence before the Court was that of the plaintiff, no evidence having

been adduced by the defendants. The plaintiff’s evidence in relation to his allegation of

unlawful arrest was in essence as follows. At all material times he was working as Chief

Security 0fficer at Emeraude Hotel, Belle Mare. On 16 May 2000 he brought to order

one canvasser who had been disturbing a client of the hotel in his quiet enjoyment of the

beach by the salesmanship exercise which such canvassers normally perform in view of

selling services such as excursions. On 18 May 2000, the canvasser came back with

about five other persons and indulged in threatening behaviour. As they were about to

assault him, he brandished from his pocket a “gadget” which looked like a cigarette
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lighter and bore the design of two chillies; he threatened them away by pretending that it

was capable of emitting tear gas. On the next day – Friday 19 May 2000 – police

officers came to the hotel and informed him that those persons had made a declaration

to the effect that he had used a federal streamer with tear gas upon them. The plaintiff

denied that allegation and, in a bid to show to the police that he did not use a federal

streamer capable of emitting tear gas, he remitted to the police the “gadget” which he

had brandished to scare off those persons. He was requested by the police to come to

Belle Mare Police Station to give a statement and later on the same day, the police

secured from him his identity card. On the next day – Sunday 21 May 2000 – at about

2.30 p.m., whilst he was on duty at the main gate of the hotel the police came and

arrested him. He was detained overnight and taken to court the next day. He was

thereafter released on bail in the afternoon of the same day. On 3 July 2000 the

provisional charge against him was struck out following a report of the Forensic Science

Laboratory to the effect that the exhibit secured only contained chilly sauce.

In their plea, the defendants had denied the allegation of unlawful arrest and

averred that the police had acted lawfully and in good faith in arresting the plaintiff

following a reasonable suspicion that he had committed an offence.

The learned Magistrate held that the plaintiff had failed to prove his case on a

balance of probabilities on the basis of the following findings:

(1) that the plaintiff, who had been requested by the police to call at Belle

Mare police station had thereby been “technically already under arrest”

and that his failure to voluntarily turn up at the police station warranted his

actual arrest on 21 May 2000.

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(2) that the plaintiff was arrested “following a <just cause> or what is more

commonly known as <reasonable suspicion> of him having committed an

offence by the police.”

(3) that the prosecuting authorities took a prompt decision, upon receipt of

the F.S.L. report, to strike out the provisional charge against the plaintiff.

The grounds of appeal are as follows:

(1) “Because the learned Magistrate was wrong in law to hold that the

appellant (then plaintiff) was, upon being requested several times by

the police to call at the Police Station, ‘technically already under

arrest’.

(2) Because the learned Magistrate erred in law when finding that the

arrest of the appellant (then plaintiff) on Sunday 21st May 2000 at

around 14.30 hours was lawful on the ground that the Police was

acting on ‘just cause’ or ‘reasonable suspicion’.

(3) Because the learned Magistrate’s finding that the prosecuting authority

acted with due diligence after (emphasis added) the arrest is totally

irrelevant to the issue to be decided, i.e. whether the arrest on Sunday

21 May 2000 at around 14.30 hours was lawful or not and

consequentially whether the detention was lawful or not.”

As far as ground 1 is concerned, it is clear to us that the learned Magistrate has

misdirected herself by referring to an erroneous consideration, the so called “technical

arrest”. Whilst conceding that there has been such misdirection, Counsel for the

respondents has submitted that it did not affect the crucial finding on the issue of
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unlawful arrest. We are unable to agree with this submission as it does appear from the

tenor of the judgment that this was one of the findings which led the learned Magistrate

to her conclusion that the arrest was not unlawful.

With regard to ground 3, the learned Magistrate again appears to have been

influenced by an irrelevant consideration.

Finally, in relation to ground 2, the learned Magistrate has totally failed to refer to

the evidence on record in reaching a hasty conclusion that the arrest was effected upon

reasonable suspicion. The evidence on record was solely that of the plaintiff whose

case was that there was no justification for his arrest and the learned Magistrate was not

entitled to infer in the absence of the evidence of the police officers concerned, that

there had been reasonable suspicion on the part of police officers.

As rightly conceded by Counsel for the State, an arrest may be unlawful, even if

the arrest was within the powers of the police, if there has been an improper exercise of

such powers. In Holgate-Mohammed v Duke [1984 1 AC 437], a case referred to by

Counsel for the respondents, the House of Lords was called upon to decide an issue of

wrongful arrest, by a detective constable, of a woman on suspicion that she had stolen

jewellery. The arrest had been effected under section 2(4) of the Criminal Law Act 1967

which conferred a power on the police to arrest a person without a warrant upon

reasonable cause to suspect that person to be guilty of an arrestable offence. The

House of Lords held (as per the Judgment of Lord Diplock, with which the other Lords

concurred) that

(1) whether the constable had reasonable cause to suspect the

woman to be guilty of the offence was a condition precedent for

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the exercise of the power to arrest, and was a question of fact for

the Court to determine;

(2) once that condition precedent had been fulfilled, the arrest could

still be unlawful if, and only if, there was an unreasonable exercise

of the power under the well known Wednesbury principles laid

down by Lord Greene M.R. in Associated Provincial Picture

Houses Ltd v Wednesbury Corporation [1948 1 K.B. 223: those

principles are applicable not only in applications for judicial review

but also for the purpose of founding a cause of action for damages

in tort;

(3) in the case falling under their consideration, it had been

established that the constable had reasonable cause to suspect

the woman (the appellant), and the constable had been shown not

to have unreasonably exercised the power inasmuch as he had

arrested her for a purpose which was well established as one of

the primary purposes of detention upon arrest: namely, for the

purpose of using the period of detention to dispel or confirm his

reasonable suspicion by questioning the suspect.

It is to be noted that it was on the basis of the evidence given by the constable that the

House of Lords affirmed the decision of the Court of appeal that the constable’s exercise

of discretion was not ultra vires under Wednesbury principles.

A decision as to whether the police had a power to arrest the plaintiff in a case

like the present one could only be reached following an explanation by the police as to

the precise powers under which the arrest had been effected and the purpose of the
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arrest, (whether preventative, punitive, protective or as a necessary measure for

enquiries: see Blackstone’s “Criminal Law in Practice” 1996 edition, p. 874.) Those facts

are within the sole knowledge of the police and it follows that a plaintiff who alleges

unlawful arrest and detention will establish a case for those responsible for his arrest to

answer once he establishes that he has been arrested in circumstances which per se do

not automatically justify an arrest. The burden then shifts to those responsible for his

arrest to show that the arrest was lawful. Were it not so, little protection would be

afforded to one of our most cherished constitutional rights.

Section 5 of our Constitution lays down that no person shall be deprived of his

personal liberty save as may be authorised by law in certain specified circumstances.

To arrest someone is to deprive him of his liberty by virtue of one of the exceptions

provided. It follows that the burden of showing the applicability of one of the derogations

to that fundamental right must fall on the person invoking that derogation. To satisfy that

burden, the person responsible for the arrest must invoke the precise law, falling under

the derogation, under which the power to arrest was exercised, and must show that

there was a proper exercise of that power.

The learned Magistrate surmised that the arrest had been effected under section

25 of the District and Intermediate Courts (Criminal Jurisdiction) Act. Apart from relying

on an enactment which had never been invoked as the source of the powers whereby

the arrest was effected, the learned Magistrate’s blunder also consisted in invoking a

totally irrelevant section which deals with an arrest “between sunset and sunrise”

whereas the arrest with which we are concerned took place in the early afternoon. And

the learned Magistrate’s reliance on this irrelevant section follows an incorrect quotation
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of that section as bearing the words “between sunrise and sunset” whereas the section

contains the words “between sunset and sunrise”.

It is to be noted that section 22 of the same Act would also not be applicable

since it empowers the police in Mauritius to arrest a person without a warrant “on a

reasonable charge made of a crime committed … by the party charged” (emphasis

added) whereas it had not been shown that the appellant was suspected of an offence

punishable by penal servitude such as to fall within the definition of “crime” in section 4

of the Criminal Code. Indeed, Counsel for the respondents has suggested that the

arrest was made upon reasonable suspicion that an offence had been committed under

the Firearms Act. The only pertinent offence under that Act would be possession of a

weapon designed or adapted for the discharge of a noxious gas, under section 9 of that

Act. This offence would not, however, fall within the definition of “crime” in section 4 of

the Criminal Code, (not being punishable by penal servitude but by imprisonment) such

that section 22 of the District and Intermediate Courts (Criminal Jurisdiction) Act would

not apply.

Counsel for the respondents has finally submitted that the police had power to

arrest the appellant under section 13F of the Police Act. We are unable to accept this

submission, as that enactment was clearly designed to apply only in circumstances

where the police reasonably suspect that an offence involving a serious risk to public

safety and public order has been committed, which was not the case here. Section 13F

of the Police Act provides as follows:

“(1) A police officer who has reason to suspect that a person has

committed or is about to commit an offence which will endanger public

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safety or public order, may arrest that person and use such force as may

be necessary for that purpose. (emphasis added)

(2) A person arrested under subsection (1) shall be brought within 48

hours of his arrest before a Court.”

This section was added to the Police Act to reproduce a provision of the Public

Order Act upon the repeal of that latter Act. Although the power of arrest contained in

that section was considered as justified on a permanent basis – as opposed to powers

relating to states of emergency – it is still a power intended to be exercised only in

relation to offences involving a danger to public safety or public order as opposed to

offences primarily causing prejudice to individuals. Besides the police never claimed in

the Court below that they had been exercising their powers under that section of the law.

Moreover, even if the police had a power to arrest, in the present case, by virtue

of some enactment, it had not been shown to have properly exercised that power. The

evidence on record merely showed that the plaintiff was given to understand that he was

arrested in connection with an allegation of having administered tear gas; and the

circumstances of the arrest – effected upon a person with no criminal record, working as

a Chief Security Officer at a Hotel, at his place of work, two days after the declaration

had been made, without any indication of any enquiry about the exhibit secured, and

after the police had earlier deemed it fit to simply request him to call at the police station

instead of arresting him – were sufficient to establish a prima facie case of unlawful

arrest and detention and did call for an explanation by the police as to the purpose of the

arrest. The failure of the defendants to adduce any evidence resulted in the prima facie

evidence becoming conclusive evidence, on a balance of probabilities, of an unlawful

arrest and detention.

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Accordingly, on a proper direction, the learned Magistrate would have been

bound to hold the defendants liable for “faute” consisting in unlawful arrest and

detention.

Counsel for the appellant has invited us to take notice of the practice of the police

in Mauritius to arrest as a matter of course when there is a power to arrest given under

an enactment. We indeed feel it appropriate to draw to the attention of the police and of

their legal advisers that even where there is a power to arrest, it must not be exercised

as a matter of course: the discretion to arrest must be exercised in a reasonable

manner.

In the light of our conclusions above, we reverse the judgment of the learned

Magistrate and remit the case to her with a direction to find the defendants’ liability

established and to assess the quantum of damages in the light of the evidence on

record.

E. Balancy
Judge

N. Matadeen
Judge
26 June 2007

Judgment delivered by Hon. E. Balancy, Judge

For Appellant : Mr. Attorney J. Gujadhur

Mr. G. Glover, of Counsel

For Respondents : C.S.A.

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Mrs. D. Madhub, State Counsel

[#Delivered by: Hon. E. Balancy, Judge and Hon. N. Matadeen, Judge#]

[#Delivered on: 26 June 2007#]