Singh v The State [2001] FJHC 110; Haa0067.2001s (4 December 2001)

IN THE HIGH COURT OF FIJI AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0067 OF 2001S
(Suva Magistrates Court Cr. Case No. 2741 of 1999)

BETWEEN:

RAJ SINGH
Appellant

&

THE STATE
Respondent

Counsel: Mr T Fa for Appellant
Mr P Bulamainaivalu for the Respondent

Hearing: 30th November 2001
Judgment: 4th December 2001

JUDGMENT

This is an appeal against a decision of the Suva Magistrates’ Court, to proceed to trial in the absence of the Accused in respect of the following charges:

COUNT ONE

Statement of Offence

FAILING TO PAY A WORKER TO WHOM THE WAGES REGULATION (ROAD TRANSPORT) ORDER 1993 APPLIED, REMUNERATION NOT LESS THAN THE STATUTORY MINIMUM REMUNERATION: Contrary to Section 9 (2) of the Wages Council Act Cap.98.

Particulars of Offence

Raj Singh f/n Chandar Pal Singh trading as Piccadilly Taxis being an employer at Suva in the Central Division did during the period 1.5.95 to 6.5.95 failed to pay Gurbachan Singh f/n Jiwan Singh to whom the Wages Regulation (Road Transport) Order 1993 applied, wages not less than $1.76 per hour payable to a Light PSV Driver as prescribed by the said Order thereby underpaying the said worker the sum of $66.72. The notice is attached.

COUNT TWO

Statement of Offence

FAILING TO PAY A WORKER TO WHOM THE WAGES REGULATION (ROAD TRANSPORT) ORDER 1997 APPLIED, REMURATION NOT LESS THAN THE STATUTORY MINIMUM REMUNERATION: Contrary to section 9(2) of the Wages Councils Act Cap 98.

Particulars of Offence

Raj Singh f/n Chandar Pal Singh trading as Piccadilly Taxis being an employer at Suva in the Central Division did during the period 06/10/97 to 11/10/97 failed to pay Gurbachan Singh f/n Jiwan Singh to whom the Wages Regulation (Road Transport) Order, 1997 applied, wages not less than $1.81 per hour payable to a Light PSV driver as prescribed by the said Order thereby underpaying the said worker the sum of $70.32. The notice is attached.

He was convicted and sentenced to a fine of $10.512.48.

State Counsel had conceded this appeal. He was right to do so.

The record shows that after the charges were filed by the Department of Labour on the 8^th of December 1999, no less than four hearing dates were set by the court, each of which was vacated on the application of the prosecution.

The Accused was present on the every hearing and mention date from 22^nd February 2000 to the 7^th of February 2001. On 17^th January 2001,. The Chief Magistrate transferred the case under section 70 of the Criminal Procedure Code, to Ms Kaimacuata. Section 70(1) (e) (ii) allows the Chief Magistrate where “such an order is expedient for the ends of justice” to transfer a particular case to any other magistrates’ court of equal jurisdiction.

However inexplicably, the case was instead called not before Ms Kaimacuata, but before another Magistrate, to whom the case had not been transferred. It was this third Magistrate who ordered that the case be “formally proved “ in the absence of the accused. Her jurisdiction to make any orders in respect of a case which had been transferred to another Magistrate was non-existent.

It is also apparent from the record, that the Magistrate who decided to proceed without the accused, did so without considering the history of the case, in particular the number of adjournments sought by the prosecution. As the Court of Appeal said in the recent decision in Rajesh Chand & Shailesh Kumar v The State Crim. App. No. AAU0056 of 1999S, (decision delivered on 22^nd November 2001):

“Where the refusal of an adjournment would seriously prejudice a party, the application should be granted. If not granted, an appellate court will intervene if the discretion has not been exercised judicially or where its exercise was based on a wrong principle or resulted in an injustice.”

In this case the learned Magistrate failed to exercise her discretion judicially and the exercise of her discretion resulted in an injustice to the Accused who had pleaded not guilty, and had appeared on every court date set previously. In any event, I do not consider that she had the jurisdiction to make an order for “formal proof” when the case had been transferred to another Magistrate.

For these reasons, this appeal is allowed. The convictions and sentences are set aside and the case is remitted to the Magistrates’ Court to set a new hearing date.

Nazhat Shameem
JUDGE

At Suva
4^th December 2001