Kenson King v Attorney General

• Jurisdiction: St Vincent and the Grenadines
• Judge: Henry, J.
• Judgment Date: 04 May 2023
• Neutral Citation: VC 2023 HC 6
• Docket Number: SVGHCV2020/0140
• Court: High Court (Saint Vincent)

Between

Kenson King

Claimant

and

Attorney General

1 ^st Defendant

Brion Duncan

2 ^nd Defendant

Dwight James

3 ^rd Defendant

Alex Primus

4 ^th Defendant

Before:

The Hon. Mde. Justice Esco L. Henry High Court Judge

SVGHCV2020/0140

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Ms. Shirlan Barnwell for the claimant.

Mrs. Joezelle Allen for the defendants

BACKGROUND

Henry, J.

1 The claimant Mr. Kenson King alleged that he was wrongfully arrested and wrongfully imprisoned at the hands of three police officers (Sgt. Brion Duncan, CpI. Dwight James and CpI. Alex Primus) on May 22 ^nd 2020. He claimed further that he was wrongfully detained for about thirty-two hours and released without being charged with a criminal offence. He sued the Crown and the three police officers for general, aggravated and exemplary damages and costs.

2 Messieurs Brion Duncan, Dwight James and Alex Primus acknowledged that Sgt. Duncan arrested Mr. King. They averred that he was arrested for the offence of inciting violence and threats in relation to a Facebook post made by him. They accepted that he was detained for several hours pending the outcome of further investigations. They maintained that the arrest and detention were lawful and they denied liability. I have found the defendants liable.

ISSUES

3 The issues are three-fold:–

• 1. Whether Kenson King was arrested unlawfully?

• 2. Whether Kenson King was unlawfully detained?

• 3. To what remedy, if any, is Kenson King entitled?

ANALYSIS

Issue 1 — Was Kenson King unlawfully arrested?

4 Kenson King is employed as a prison officer at the prison in Kingstown, Saint Vincent. Around 8.45 a.m. on May 22 ^nd he was there, when Officers Brion Duncan, Dwight James and Alex Primus. Sgt. Duncan met him and told him that they were there to arrest him in connection with a Facebook post made by him. Sgt. Duncan showed him a printed copy of the post and he read it.

5 The full text of the post is relevant. It states:

‘See when I speak about Ralph allyo does vex (sic). Now, i (sic) have an uncle named mohammed King. Some know him as Hanniffe. He has two licensed firearms. He keeps on terrorizing his brothers. I had to personally give him a warning in 2015. Numerous reports have been made against him by my father and now Archie his younger brother. He keeps on threatening my uncle to shoot him. They both live in the family house. Now, my uncle went to the colonaire police station to make a report against Haniffe just in the week. The police came and confiscated the guns. Now this morning haniffe can have the guns, firing shots in the air and bragging THAT HE CALLED RALPH AMD (sic) RALPH CALLED THE COLONAIRE POLICE STATION AND THREATENED THEM, ASKING THEM IF THEY GAVE LICENSE FIR (sic) GUNS TO HANNIFFE. Now you remember what happened with the nurse that Mitch killed? I know this is not gonna be a repeat of that. When i (sic) decide to take matters into my hands, i wanna see who is gonna come tell me something.’ (Underlining added)

6 Mr. King recalled that Sgt. Duncan told him that he was being placed under arrest ‘for making a Facebook post that is liable to cause fear and alarm in the public’. He said he asked the officer which part of the post would cause fear and alarm to the public, to which he replied, ‘the last part about Nurse Taylor’. He enquired how is that likely to cause fear and alarm to which the officer replied, ‘I do not know’. He was placed under arrest and taken to the Major Crimes Unit at the central police station in Kingstown. After about 45 minutes he was escorted to the Criminal Investigations Department (‘CID’).

7 According to Mr. King, he spent the night on a chair at the CID. The next day his lawyer Mr. Jomo Thomas visited him having already done so the previous day. Mr. King spent that second day on a chair in the CID. At around 11.00 a.m., Sgt. Duncan asked him if he was willing to give a statement and cautioned him. He declined to do so whereupon Sgt. Duncan left him. His lawyer returned later that day and made certain inquiries of the police. At around 8.00 p.m., he was released without being charged with an offence.

8 Mr. King also recounted an incident which took place on May 18 ^th 2020 at his home in Park Hill which he considered to be related to his arrest. He explained that while at home, he saw a pickup containing police officers stop at his gate. One of the officers introduced himself as Corporal Jack and told him that they had come to arrest him. He inquired what was the reason for the arrest. CpI. Jack replied that he did not know. When Mr. King refused to accompany him unless he was told why he was being arrested, CpI. Jack placed a telephone call. Mr. King claimed that he overheard the conversation. He was able to hear the person on the other end of the line say to CpI. Jack that he did not know the reason for the arrest. CpI. Jack reportedly made another telephone call and then told Mr. King that he was being arrested for violating various sections of the Cybercrime Act. King asked which sections to which CpI. Jack responded that he did not know.

9 Mr. King then telephoned his attorney and permitted her to speak with CpI. Jack. She notified the officer that if he was unable to state the reason for the arrest, Mr. King would not accompany him. The police officers left at that point. Mr. King admitted that he made the Facebook post but denied that it amounted to a threat on anyone's life or that he thereby threatened to murder or kill anyone. He expressed consternation that he was still detained for thirty-two hours to facilitate ongoing investigations despite his admission.

10 Mr. King testified that on reading the Defence, he interpreted statements in it to mean that the defendants did not charge him following his May 22 ^nd arrest, because they determined after further investigations that they did not have sufficient evidence to charge him. He stated that to be required to sit for about thirty-two hours, except when showering, was oppressive. He said that it is difficult to sleep in that position. According to him, the conditions were deplorable. He complained about the stench of urine emanating from the cell located about 3 feet from where he was required to sit and said that it was an assault on his dignity and integrity and was degrading. He was embarrassed and distressed.

11 He testified that the police never inquired whether he had a gun and they conducted no search of his house for weapons. He denied being told by Sgt. Duncan, CpI. James or CpI. Primus that he was being arrested on suspicion of threatening to commit the offence to kill or murder anyone or other offence as asserted by them in their Defence. He stressed that his right to liberty must not be treated lightly or with scant regard. He claimed that the police did not protect his right to liberty and he stressed that the defendants must not be allowed to abuse their power and arbitrarily take away his liberty. In his opinion, he was punished for expressions that do not amount to a criminal offence.

12 Mr. King maintained this stance under cross-examination. He said also that the name ‘Ralph’ in his Facebook post refers to the Honourable Prime Minister of Saint Vincent. He denied that the words ‘taking matters into my own hands’ are a reference to him murdering someone.

13 Sgt. Duncan averred that he has been a police officer with the Royal Saint Vincent and the Grenadines Police Force (‘RSVGPF’) since October 8 ^th 2004. He has been attached to the Major Crimes Unit from 2008 up to the present. He testified that on May 22 ^nd 2020, Superintendent (‘Supt.’) Francis summoned him, Corporals Alex Primus and Dwight James to his office. He notified them of a report of inciting violence and threats made against Mr. King and dispatched them to the prison. They travelled in police transport P-1528 to go on their mission. They were dressed in plain clothes. On arrival, they identified themselves to Mr. King. Sgt. Duncan notified him of the report communicated by Supt. Francis and cautioned him. Sgt. Duncan said that he made no reply. He then arrested Mr. King on suspicion of ‘those offences’ mentioned in the report and took him to the CID where he outlined to Supt. Francis what had transpired.

14 Sgt. Duncan's witness statement was admitted as his evidence in chief. He was specific about the offences about which Superintendent Francis informed them, however when referring to what reports he notified Mr. King of, he said that he ‘informed him of the said reports as stated and the circumstances surrounding those reports of which he was a suspect and [he] cautioned him’. Under cross-examination he acknowledged that the offences he spoke to King about were those mentioned by Supt. Francis, specifically ‘inciting violence and threats’.

15 He accepted that it is reasonable to describe Mr. King's Facebook post as him venting about a family issue. He could not say however, whether any threat was made to Prime Minister Ralph Gonsalves in the post. He made no attempt to conduct an interview with Mr. King at the police station. He explained that he was not the officer responsible for further investigation of matters related to the Facebook post or for releasing Mr. King. He did not know if he was kept at the station for about thirty-two hours after the arrest.

16 Sgt. Duncan testified that during basic training and before May 22 ^nd 2020 he was trained to make arrests and had made numerous arrests. He averred that Supt. Francis is a senior police officer. He agreed with the suggestion that if a superior officer issues an unlawful directive to him he should not comply. He insisted that he formed the opinion for himself that there was cause to arrest Mr. King with respect to the Facebook post.

17 CpI. Dwight James has been a member of the RSVGPF since December 2000. His colleague CpI. Alex Primus became a member...