Khan v The State [1994] FJHC 105; Haa0029o.93b (23 August 1994)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

MISCELLANEOUS ACTION 2 OF 1994
CRIMINAL CASE NO. 424 OF 1991
CRIMINAL APPEAL NO. 29 OF 1993

IN THE MATTER of an application under S.315 of the CPC, Cap. 21
by Haroon Khan son of Amir Khan

Between:

HAROON KHAN
s/o Amir Khan
Applicant

- and -

STATE
Respondent

Mr. M. Sadiq for the Applicant
M/s L. Laveti for the State

ORDER OF COURT
ON APPLICATION FOR BAIL

The applicant HAROON KHAN, who is the appellant in Criminal Appeal No. 29/93, has moved the court by way of motion dated 22 August 1994 for an order for admission to bail pending the outcome of the said appeal.

The background to the case is that after his conviction on 18 October 1993 at the Magistrate's Court, Labasa he was sentenced to 18 months imprisonment suspended for 3 years which said sentence was consecutive to previous suspended sentence. He was also fined the sum of $6000 in default 9 months imprisonment and was given a month to pay the fine.

In default of payment of the fine the applicant was committed to prison early last month and he is still there.

The applicant's said appeal was heard by me on 22 August 1994 and judgment is to be given on notice. Whilst awaiting judgment the applicant is praying for his release from prison on bail on such terms and conditions as the Court may deem fit.

Mr. Sadiq for the applicant submits that if bail is granted the State will not be affected for the period that the applicant will be out, will not count in relation to the imprisonment imposed. If the appeal is dismissed, he will have to serve the remainder of the term. On the other hand if Court came to the conclusion that suspended sentence remain and fine taken away then he will not be required to serve. But if normal fine was imposed he could pay it and save himself going to prison. He says that because $6000 fine is a lot of money the applicant was unable to pay it within the time given.

Miss Laveti for the State opposes the application and has referred the Court to the case of APISAI VUNIYAYAWA TORA, SHIU RAJ SINGH and DAMODAR NAIDU v REGINAM (Crim. App. Nos. 3 & 4 of 1978 FCA) and the principles there discussed. She says that in the case before the Court the applicant was arrested 9 months after sentence on 5 July 1994. He had time to pay. She says that there are no exceptional circumstances in the case to grant bail. As for the merits of appeal it is for the Court to decide.

Upon considering the submissions made by counsel for the applicant and the State, having heard the appeal and being familiar with the facts of the case and bearing in mind the principles involved in the granting of bail in such circumstances, I consider this to be a proper case in which I ought to make the order as prayed.

In TORA (supra) which was a case in which there was application for bail pending appeal it was stated by GOULD VP that:

"it has been a rule of practice for many years that where an accused person has been tried, convicted of an offence and sentenced to a term of imprisonment, only in exceptional circumstances will he be released on bail during the pendency of an appeal. This is still the rule in Fiji." (underlining mine).

This case is not one where a direct term of imprisonment has been imposed. The term only arose as a result of non-payment of a substantial fine. What is relevant here is what GOULD VP said further in his Order when he said:

"As a general rule, the merits of the appeal are not relevant to applications such as those now before Court, though there may be cases in which they are a factor to be taken into consideration." (underlining mine).

This is one of those cases where the merit of the appeal should be taken into account and I find that there is a great deal of merit in the applicant's appeal and there are chances of him succeeding, if not fully, partially, as far as imposition of fine is concerned. It is not necessary for me to say any more on the grounds for my belief, suffice it to say that for the purposes of this application I am fortified in my view on the basis of the decision in the case of EARLE UNDERWOOD v REGINAM (Crim. App. 69/83 Supreme Court of Fiji) where in a similar situation KERMODE J. discussed the principles which should be applied in imposing fine and referred to the following passage from Thomas in Principles of Sentencing 2nd Edition at p.320:

"Although the principle is not expressed in statute so far as the Crown Court is concerned, a fine should not normally be imposed without an investigation of the offender's means, and the amount appropriate to the offence considered in the abstract should be reduced, where necessary, to an amount which the offender can realistically be expected to pay. The Court has stated that 'it is axiomatic that where it is decided not to impose a custodial sentence, the court should be careful in imposing a fine not to fix that fine at such a high level that it is inevitable that that which the court has decided not to impose, namely a custodial sentence, will almost certainly follow'."

There his Lordship allowed the appeal and reduced the fine of $500 (for common assault by a constable on a member of the public) to $200 but with no alteration to the order imposing the period of imprisonment in default of payment of fine.

In the outcome, for the reasons given hereabove, in the circumstances of this case the applicant is ordered to be released immediately on bail pending the decision on the said appeal in a personal bond of $500 with one surety of like amount and to appear in Court upon being notified by the Deputy Registrar of the High Court.

D. Pathik
Judge

At Labasa
23 August, 1994

HAA0029O.93B