Court denies application
In the interest of justice, Supreme Court Justice Tafaoimalo Leilani Tuala-Warren has denied the application by Kei Ji Li to depart Samoa until his criminal case is heard and determined by the Court of Appeal.
Kei Ji Li is the driver of a vehicle that collided with a bus, killing an elderly man from Leauva’a in March 2017.
In October 2017, he pleaded guilty of one charge of negligent driving causing death and was sentenced by Supreme Court Justice Leiataualesa Darryl Clarke to pay reparation of $10,000 and to perform 200 hours of community work.
“On 16 November 2017, on application by the applicant, Justice Clarke cancelled the community work sentence of 200 hours and substituted in place of that sentence 90 hours community work and a fine of $650 to be paid within seven days, in default four weeks of the Community Justice Act 2008.”
Last year, November, the Prosecution appealed against sentence and issued a Departure Prohibition Orders (D.P.O.) by way of letters to the C.E.O. of the Ministry of Prime Minister and Cabinet.
According to the order, in December 2017, Kei Ji Li filed an urgent application to order to revoke Departure Prohibition Order against him and a hearing was held.
During the hearing, the prosecution noted that under the Immigration Act 2004, the A.G. has absolute discretion to make an order prohibiting a person from departing Samoa if the person is currently involved as a party in a criminal case that is before the Supreme Court or Court of Appeal and it is not in the interests of justice for the person to depart Samoa.
Justice Tafaoimalo pointed out in her ruling that whilst the A.G. has the authority to make an order without notice, once it is made, the A.G.O. is required to serve it on the person affected by the order.
“Service then invokes the person’s right to seek a review of the order by a Supreme Court judge and in order for the Court to exercise its power to amend or revoke an order made under S26(1)(c) of the IO, it needs to view the A.G.O.’s motion or an interested party’s application and supporting affidavit as to why such a person should be prohibited from leaving.
“A prohibited person needs to address the reasons given to support the prohibition and show they are applicable to his/her situation or can be overcome by measures demonstrated to the satisfaction of the Court.”
According to the accused’s argument through his lawyer, Kei Ji Li works for Huawei Company based in Suva, Fiji, and they provide service to Bluesky and Digicel.
“His livelihood depends on his providing this service for his employer.
“Samoa is a lucrative client and he will be sent here by his company to serve the needs of the clientele.”
They argue that the first is that under the law, the A.G. has absolute discretion to make the order without giving notice to the applicant and without giving the applicant an opportunity to be heard.
“It is submitted that in light of the appeal filed on 17 December 2017, the A.G. had the absolute discretion to issue the D.P.O. against Mr. Li as it was absolutely necessary given that Mr. Li was a national of China and was party to the appeal filed with the Court of Appeal.”
Furthermore they argue that the law does not stipulate the form in which the D.P.O. should be made nor does it stipulate that a formal motion be filed by the A.G.
“The third submission is that the onus is on the applicant to satisfy the Court on a balance of probabilities that the order should be revoked.
“The applicant has failed on a balance of probabilities to show why the D.P.O. should be revoked.”
Justice Tafaoimalo noted the D.P.O., which was issued on 25 May 2017, is now a non-issue as rightly asserted by the applicant.
The D.P.Os issued by the A.G. has a time limit of three months.
From the bench, Justice Tafaoimalo pointed out that it appears that the most significant issue for the applicant is the process by which the A.G. made the order.
The accused submits that the A.G. cannot issue the D.P.O. without a motion, filed by his office to him and a supporting affidavit of one of his lawyers to him because he is acting in a judicial capacity.
“In order to address this submission by the applicant, it is important to look at the principles of statutory interpretation contained in the Acts Interpretation Act 2015, specifically section.”
She stated if the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.
“The words alone best declare the intention of the lawgiver.
“But if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble and ‘the mischiefs which [the makers of the Act] intended to redress.
“On my reading of the words in section 26, specifically the words “upon the Attorney General’s own motion”, the intention of Parliament is clear and unequivocal. A D.P.O. can be issued by the A.G. either on his or her own motion, or upon application of any interested party.
“The intention of Parliament is to make provision for situations where the A.G. does not require an application from anyone to issue a D.P.O. and acts on his or her own accord.”
The Supreme Court Justice pointed out that it is neither practicable nor logical for the A.G. to first require a motion and a supporting affidavit from his office before he issues a D.P.O.
“This is a clear cut situation of the A.G. appealing the sentence imposed on the applicant and a Notice of Appeal being duly filed and served on the applicant.
“The applicant is therefore a respondent in a criminal trial before the Court of Appeal and it is not in the interests of justice for him to depart Samoa before his case has been heard and determined by the Court of Appeal.”
Justice Tafaoimalo concluded that while there is no specific guidance on how the Court should approach revocation or amendment of a D.P.O, the onus is on the accused to satisfy the court on a balance of probabilities that he is not currently involved as a party in a criminal case before the Court of Appeal, and that it is in the interests of justice that he depart Samoa.
“The applicant (Kei Ji Li) has not satisfied me.
“It is undisputed that the applicant is currently involved as a party in a criminal case before the Court of Appeal and I am satisfied that it is not in the interests of justice for him to depart Samoa until his criminal case is heard and determined by the Court of Appeal.
“The application is therefore denied and the D.P.O. issued by the A.G. dated December 21, 2017, remains in force,” stated Justice Tafaoimalo.