State v Kumar [1993] FJHC 94; HAJ0005j.1993s (15 October 1993)

IN THE HIGH COURT OF FIJI
At Suva
Revisional Jurisdiction

REVISION NO. 5 OF 1993

IN THE MATTER OF SECTION 323
OF THE CRIMINAL PROCEDURE CODE

and

IN THE MATTER OF SUVA TRAFFIC
CASE NO. 1031/93

Between:

THE STATE
Complainant

- and -

KISHORE KUMAR
s/o Gideon
Respondent

Mr. I. Wickramanayake for the State
Mr. P. Sharma for the Respondent

JUDGMENT

On the 15th of April 1993 the respondent pleaded 'guilty' to an offence of DRIVING A MOTOR VEHICLE WHILST THERE WAS PRESENT IN HIS BREADTH A CONCENTRATION OF ALCOHOL IN EXCESS OF THE PRESCRIBED LIMIT: Contrary to Section 48(1)(a) of the Traffic (Amendment) Act No. 20 of 1986.

After the plea was taken the prosecution outlined the facts of the case indicating that after the respondent was stopped because of his erratic driving he "failed" two consecutive breathalyser tests carried out on two different devices in that there was recorded on his breath a concentration of alcohol in excess of the prescribed level of 35 microgrammes of alcohol in 100 millilitres of breath.

The Magistrate Court record then comprehensively sets out the mitigation urged on behalf of the respondent by his Counsel and thereafter the case was adjourned for sentence.

On the 28th of April 1993 the following sentence was passed on the respondent:

"SENTENCE

The accused pleaded guilty to the offence of Driving a Motor Vehicle whilst there is present in the Breadth a concentration of Alcohol in Excess of the Prescribed Limit, Contrary to Section 48(1)(a) of the Traffic Act Cap. 176 as inserted by Sections of the Traffic (Amendment) Act Cap. No. 20 of 1986.

The accused Counsel in mitigation submit that the accused apologises for his behaviour. The accused is a resident of Lautoka, and on the 5th of March 1993, the family had some difficulty in that his daughter aged 15 years went missing. He was given some information that she was in Suva and therefore came to Suva in search of her. He met some people who were to give him some information and to extract the information he had some drinks with them. The Counsel for the accused further submit that the accused is a sole breadwinner and a family man. The accused he said does not usually engage in such behaviour.

The Court having considered the accused is a first offender, who pleaded guilty to the offence and given his emotional feeling at that period in time and the circumstances surrounding the missing daughter. The Court considers that in the proper exercise of its powers under Section 44 of the Penal Code, order conditional discharge for 12 months."

It is clear from the above that the learned trial magistrate considered that this was an appropriate case for the exercise of his discretion in terms of Section 44 of the Penal Code (Cap.17) which provides: (so far as relevant)

"44 - (1) Where a Court by or before which a person is found guilty of an offence, not being an offence for which a fixed sentence is prescribed by law, ... the Court may, with or without proceeding to conviction, make an order discharging him absolutely or, if the Court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order ..."

Furthermore although it is plain that the respondent was found guilty of the offence to which he had pleaded 'guilty' equally clearly, the trial magistrate in dealing with the case did not "proceed to conviction" as he was entitled to in terms of Section 44. Certainly there is no entry or record of a conviction against the respondent to be found anywhere in the Magistrate Court record.

By memorandum dated the 21st of June 1993 the learned Director of Public Prosecutions (D.P.P.) seeks the revision of the above sentence on the ground:

"The sentence is illegal as Section 48(1)(a) of the Traffic Act attracts a mandatory disqualification for at least 3 months."

Before dealing with the substantive issues raised in this revision it is necessary to point out that Section 325(5) of the Criminal Procedure Code (C.P.C.) prohibits the entertainment of any proceeding by way of revision "... where an appeal lies from any finding, sentence or order, and no appeal is brought (by) the party who could have appealed."

In this latter regard in the light of Section 308(5) of the C.P.C. there can be no doubting that the D.P.P. is a party to the action and thereby entitled to appeal (as opposed to the trial magistrate) to the High Court against any judgment, sentence or order of the Magistrate Court.

In the face of that entitlement and the apparent failure to appeal against the sentence or order of the Magistrate Court Counsel for the respondent submits that there is some doubt surrounding this Court's jurisdiction to entertain the present proceedings.

I am satisfied however that the present proceedings are not strictly brought "... at the instance of (a) party who could have appealed" since the same was initiated by the Court itself. In the circumstances they may be entertained by the Court. The respondent's preliminary objection is dismissed.

Having regard to the respondent's hitherto unblemished record the relevant penalty subsection of the Traffic (Amendment) Act 1986 reads:

"(14)A person convicted of an offence against Subsection (1) or (9) is liable to the following penalties -

(a) Where that person has no previous convictions within the last preceding 5 years for an offence against Subsection (1) or (9) or Section 39 -

(i) a fine not exceeding $400; and

(ii) mandatory disqualification from holding or obtaining a driving licence for a period of not less than 3 months nor more than 2 years;"

It will be immediately obvious that before a person is liable to suffer the penalties set out in the subparagraphs he must first be "... convicted of an offence against Subsection (1) or (9)."

In other words in the absence of a "conviction" there is in my view no power or duty cast upon a magistrate to impose either of the penalties set out in the subparagraphs notwithstanding the use of the term "mandatory".

In this case the respondent was charged with an offence contrary to Subsection (1) and although he pleaded 'guilty' to the offence, as earlier pointed out, the trial magistrate conditionally discharged him without recording a conviction.

When this was drawn to the attention of Learned Counsel for the D.P.P., he advanced the rather startling proposition that having regard to the mandatory nature of the penalty provided for the offence charged, the trial magistrate was duty-bound to convict and disqualify the respondent on his plea of 'guilty'. I cannot agree.

Section 206(2) of the C.P.C. which deals with the position in the Magistrate Court where an accused person pleads 'guilty' to a charge provides:

"(2) If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by him, and the Court shall convict him and pass sentence upon or make an order against him, unless there shall appear to it sufficient cause to the contrary."

Furthermore Section 215 of the C.P.C. provides:

"The Court having heard both the prosecutor and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or make an order under the provisions of Section 44 of the Penal Code."

Clearly the law provides various alternative courses which a Magistrate Court may adopt on a plea of 'guilty' or after trial, including the making of an order under Section 44 of the Penal Code and very clear words are required in order to limit the choice of alternatives otherwise available to a Magistrate Court dealing with a guilty plea or faced with making a decision after trial.

Needless to say I cannot support the proposition that the general statutory discretion given to a Magistrate Court whether to convict, discharge or acquit a person and in sentencing a person who has been found guilty can be impliedly limited or excluded not by an express "ouster clause", but by reference to the penalty provided by the legislature for a particular offence albeit in a later enactment.

Almost one and three quarter centuries ago in R. v. Mayor of London (1829) 32 R.R. 561, Lord Tenterden said at p.564:

"... this principle is, that the jurisdiction of the Courts, as to matters originally cognizable by them, cannot be taken away except by express words, or perhaps, by necessary implication which must be intended of the use of such words as are absolutely inconsistent with the exercise of the jurisdiction by the ... Courts, and to which effect cannot be given but by the exclusion of such a jurisdiction."

In this case the Court's power and discretion under Section 44 of the Penal Code has not been expressly excluded nor in my view is such a course necessarily implied by the legislature. In my view the continued existence of the discretion and the provision of a mandatory penalty "on conviction" far from being "absolutely inconsistent" may quite happily co-exist.

Needless to say if I uphold the submission of State Counsel in this regard then the practical effect could well lead to a total absence of 'guilty' pleas in the majority of breathalyser prosecutions - one may well ask, "Why would an accused person plead guilty to a breathalyser offence since he would have to be convicted and be disqualified no matter how blameless he might be?"

This is moreso as a conviction for an offence of refusing or failing to undergo a breath test [contrary to subsection (9)] also carries a "mandatory disqualification".

Indeed, I would venture to say that most magistrates, who deal with the large majority of cases that come before our Courts daily, must have found from time to time, that mandatory or fixed penalties for offences operates harshly in some instances and there are undoubtedly occasions when they may seek to avoid such a consequence if possible.

This may have been what occurred in this case where rather than convict the accused and be faced with imposing an unduly harsh penalty, the trial magistrate chose to conditionally discharge him without conviction under Section 44 of the Penal Code.

In Quelch v. Collett (1948) 1 K.B. 478 a not dissimilar case in which the respondent was convicted of using a motor vehicle when uninsured which, in England, as in Fiji, is an offence that carries compulsory disqualification in the absence of special reasons (See: Section 4(2) of the Motor Vehicles (Third Party Insurance) Act Cap. 177), the justices who heard the case conscious that there were no "special reasons" in the case, dealt with the respondent in terms of the Probation of Offenders Act 1907 (U.K.) (which is in similar terms to Section 44 of our Penal Code Cap. 17) and dismissed the information.

On a case stated for the opinion of the High Court as to whether or not the justices had authority to deal with the case as they did Humphrey J. delivering the leading judgment said at p. 480ff:

"My answer is that they have the most complete authority (to) do it. There were obviously circumstances in this case which they were entitled to regard. It is immaterial whether I should have regarded them myself or not. They were entitled to regard them as extenuating circumstances both in regard to the peculiar facts which led up to the commission of the offence, and also in regard to the respondent himself ..., I think the justices were completely right in taking the view that it was within their jurisdiction to apply the Probation of Offenders Act, 1907."

This brings me to State Counsel's alternative argument where it was forcefully submitted that since the offence with which the respondent was charged is "... an offence for which a fixed sentence is prescribed by law...", there is no discretion vested in the trial magistrate to invoke Section 44 of the Penal Code and in purporting to act under the section the trial magistrate had acted ultra vires.

By way of illustration Counsel submitted that the offence of Murder is an example of "an offence for which a fixed sentence is prescribed by law ..." In such a case it is argued it would be unthinkable that an accused person who pleaded guilty to Murder could be absolutely or even conditionally discharged under Section 44 of the Penal Code.

With all due regard to the sentiments behind the submission the argument is only "unthinkable" because the sentence for Murder is truly one fixed by law as clearly and expressly prescribed in Section 200 of the Penal Code.

The wording of the present penalty subsection however is not so clear. To begin with, it uses the phrase "... is liable to the following penalties -" (as opposed to 'shall be sentenced to') and which expression State Counsel accepts is indicative of a sentencing discretion. Furthermore the actual penalties themselves bear a discretionary element within them as to the amount of the fine which may be set below a fixed maximum and the length of the disqualification that may be imposed within a fixed range.

Counsel submits however that the word "mandatory" was purposely inserted to eliminate the very kind of considerations that the trial magistrate took into account in this case. "Mandatory" in Counsel's submission meant "shall be imposed". Again, I cannot agree.

True the disqualification penalty is described as "mandatory" but in my view that qualification refers to the cumulative nature of the disqualification that must be imposed by a sentencing Court and NOT to the discretion of the Court whether or not to inflict any punishment at all.

In my view mindful of where the term occurs in the subsection, the word "mandatory" when used as an adjective has the meaning, according to the Shorter Oxford English Dictionary, "of ... conveying a command..." To whom one might ask is the command being conveyed? the answer must surely be, to the convicted driver forbidding him from holding or obtaining a driving licence, and not as submitted by State Counsel, to the sentencing Court compelling it to impose a penalty for which the convicted driver "is (only) liable to" suffer.

Furthermore a disqualification being in the nature of a disability or deprivation or denial of a status or qualification required for some purpose, in this case, to drive a motor vehicle, once imposed, has an unconditional even 'mandatory' effect.

Then again bearing in mind that Section 48 occurs in PART III of the Traffic Act, it might be that the term "mandatory" was purposely used so as to exclude or forestall any application under Section 30(2) of the Traffic Act for the removal of such disqualification.

The submission also over-looks the use of the conjunctive "and" between the 2 types of penalties which in effect renders the penalties cumulative. In other words upon a conviction for an offence under Subsections (1) or (9) of Section 48 of the Traffic (Amendment) Act 1986, the Court, in the event it should be of the view that punishment should be inflicted is obliged in my opinion, to impose a sentence comprised of both a fine as well as a period of disqualification.

It is only to that limited extent that I would agree with Counsel's submission that the Court is dutibound to disqualify, to accept the submission in its entirety would be, in effect, to read "... is liable to ..." in the general part of the penalty subsection as "... shall be sentenced to ...", which I cannot do.

It may well be that there is an alarming co-relation between the incidence of driving offences and the consumption of alcohol and it might be that the legislature (as with dangerous drugs) had decided to adopt a "hardline" deterrent approach to all 'drink-related' driving offences by imposing disqualification without exception, but in doing so, involving as it sometimes does the deprivation of an individual's means of earning a livelihood, the legislature must make its intention clear and unambiguous. Regrettably in this instance it has not.

This Court is not here concerned with questions of policy or the desirability or efficacy of imposing automatic minimum penalties for 'drink-related' driving offences, rather, the Court's function is to give effect to the 'intention of the legislature' so far as may be ascertained from the express words used in the enactment according to their plain and ordinary meaning within the context in which they occur.

Counsel for the respondent also referred to Halsburys 'Laws of England' in support of a judicial discretion whether to disqualify or not in a breathalyser offence.

I have not however been greatly assisted by the citations which are based on English legislation which specifically provides for not disqualifying where "special reasons" exist.

Needless to say in this case given the strictness of the law on "special reasons", I would only make the observation that whilst the consumption of alcohol by the respondent was a "means" to obtain the information he sought as to his missing daughter's whereabouts, that cannot and does not "excuse" his driving afterwards.

Be that as it may having carefully considered the various submissions made I am firmly of the view that the course adopted by the trial magistrate was not only 'lawful' but also appropriate in the circumstances of the case.

Accordingly I decline to revise the order of the trial magistrate. The sentence will remain unaltered.

(D.V. Fatiaki)
JUDGE

At Suva,
15th October, 1993.

HAJ0005J.93S