IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAU0076D OF 1993

Between:

DIRECTOR OF PUBLIC PROSECUTIONS
Appellant

And

RONELL SANJAY SEN
Respondent

Counsel: Ms. Kaimacuata for Appellant
Mr. Ram Chand for Respondent

Hearing: 11th October 1994
Decision: 21st October 1994

ORAL RESERVED DECISION OF PAIN J.

This appeal was heard by me on the 11th October 1994 and adjourned until today for counsel to provide copies of decisions referred to in argument.

The Respondent pleaded guilty in the Magistrates Court on the 21st of June 1993 to a charge under Section 48 (1) (a) of the Traffic Act of driving with a breath/alcohol concentration equal to the prescribed limit. After hearing the facts from the prosecution and submissions in mitigation by counsel the learned Magistrate dealt with the case in the following manner:

"Convicted as charged. Unique case. First offender. Good record so far. Borderline case. This case warrants exercise of discretion under S.44. I discharge the accused on condition not to re-offend within 6 months and on payment of $30 cost. 28 days to pay - 4 weeks in default".

Section 44 of the Penal Code empowers a court to convict and discharge (absolutely or conditionally) or to discharage "without proceeding to conviction" (absolutely or conditionally). From the record in this case it is clear that the Magistrate purported to convict and conditionally discharge the Respondent.

Counsel for the Appellant submitted that the Magistrate had no jurisdiction to impose a discharge in this case. Section 44 of the Penal Code specifically provides that this cannot be done for "an offence for which a fixed sentence is prescribed by law". It was submitted that, in terms of Section 48 (14) (a) (ii) of the Traffic Act a period of disqualification must be imposed for a breath/alcohol offence. Such disqualification is mandatory. It is therefore a 'fixed penalty' and Section 44 of the Penal Code cannot be applied.

In her submissions, Counsel for the Appellant referred to the case of DPP. v Sukendra Singh (Crim. App. No.76 of 1992) and subsequently provided a copy of the decision for me. That concerned an appeal against a conditional disqualification imposed in the Magistrates Court under Section 48 (14) of the Traffic Act. The learned judge said,

"I agree with Mr. Forster and accept that the Court below acted ultra vires when it made the order in relation to Respondent's driving licence. The provisions in respect of which respondent was convicted did not confer any power in the Court below to make any condition to its order of disqualification. The disqualification is mandatory and any attempt by the Court below to do otherwise is ultra vires".

However that decision dealt with the power of the court to impose a conditional disqualification. A disqualification order had been made and the jurisdiction to discharge under Section 44 of the Penal Code without any disqualification was not addressed.

Counsel for the Respondent submitted that the particular and unique circumstances of this case justified the imposition of a conditional discharge despite the statutory provision for disqualification. Counsel also advised that such a discharge had been upheld in a recent decision of this Court although he was unable to provide a copy of that decision.

I have located and read this decision given by Fatiaki J. on 15.10.93 in the case of The State v Kishore Kumar (Revision No. 5 of 1993). The facts and issues are very similar to the decision now under appeal. In that case the defendant pleaded guilty to a charge of driving with excess alcohol in his breath. The Magistrate exercised the power under Section 44 of the Penal Code and ordered a conditional discharge for six months. That order was confirmed on review.

In his decision, the learned Judge first noted that the penalty provisions of Section 48(14)(a) of the Traffic Act only apply in respect of a person convicted of a breath/alcohol offence. He held that as no conviction had been entered by the Magistrate there was "no power or duty cast upon (him) to impose either of the penalties set out in the subparagraphs" The word "conviction" can have more than one meaning but I need not consider this particular issue. The present case is different because the Magistrate did enter a conviction against the Respondent.

However the learned Judge dealt with two other issues in his decision. He rejected a submission that the Magistrate was duty bound to convict and disqualify the defendant because of the mandatory nature of the penalty. He found that the Courts' powers under Section 206(2) of the Criminal Procedure Code (not to enter a conviction if there appears sufficient cause to the contrary) and Section 44 of the Penal Code (to grant a discharge) had not been excluded, expressly or by implication) by the later provisions of Section 48 (14) (a) of the Traffic Act.

The learned Judge also held that the provisions of Sections 48(1)(a) and 48(14)(a) of the Traffic Act do not create "an offence for which a fixed sentence is prescribed by law" which would prevent a discharge under Section 44 of the Penal Code. He pointed out that the Traffic Act merely makes the Defendant liable to a fine and mandatory disqualification. The use of the phrase "is liable to" denotes an element of discretion. There is no statutory injunction that the Court shall impose a disqualification. The learned Judge also found nothing compelling in the use of the word "mandatory".

Applied to this present case the decision in The State v Kishore Kumar effectively disposes of the appeal. It has not been submitted that the case was wrongly decided. Certainly Section 48(14) is worded in a clumsy fashion. It differs, for example, from similar legislation in England (e.g. Section 35(2) of the Road Traffic Act 1930) and New Zealand (e.g. Section 30(3) of the Transport Act 1962). Those statutes make a person who commits the offence liable to a fine or imprisonment and specifically provide that the Court shall order a period of disqualification unless there are special reasons to order otherwise. In Police v Wise 1987 1 NZLR 290 the Court of Appeal held that this expressly provided for a minimum penalty of disqualification to be imposed unless the special reasons defined in the section were found.

I was advised by Counsel for the Respondent that Section 48 of the Traffic Act is based upon equivalent legislation in Australia. However no information has been provided about the wording of the penalty provision in the Australian Act nor of any Australian authorities on this particular issue.

If the State wishes to challenge the validity of the decision in the State v Kishore Kumar then the issue must be addressed in a proper way. I would not consider differing from the reasoned judgment of this Court without a specific submission and substantive argument.

On the basis of that case the appeal cannot succeed and it is dismissed.

JUSTICE D.B. PAIN
HAU0076D.93S