S Karan Construction Co Ltd v The State [2001] FJHC 69; HAM0023d.2001s (13 September 2001)

Fiji Islands - S Karan Construction Co Ltd v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

1"> AT SUVA

MISCELLANEOUS JURISDICTION

MISCELLANEOUS ACTION NO: HAM0023 OF 2001S

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BETWEEN:

S. KARAN CONSTRUCTION CO. /span>

Applicant

AND:

THE STATEn>

Respondent

Mr N. Shivam for Applicant

Mr V.Vosarogo for Respondent

Hearing: 11th September 2001

Decision: 13th September 2001

DECISION

On 13th of August 2001, the Appellant Company was convicted, on its own plea of guilty to the followinences:

p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> FIRST COUNT

Statement of Offence

BREACH OF HEALTH AND SAFETY AT WORK ACT ON SAFE SYSTEM OF WORK: Contrary to SectiSection 9(1) of the Health and Safety at Work Act of 1996.

Particulars of Offence

S. KARAN CONSTRUCTION LIMITED, an employer, on or about the 28/4/99 at Thomson St Suva in the Central Division, failed to ensure the health alth and safety at work of its workers by failing to provide adequate protection from the noise and dust abatement that its workers were exposed to during the digging process.

SECOND COUNT

Statement of Offence

: 1">

BREACH OF HEALTH AND SAFETY AT WORK ACT ON SAFE SYSTEM OF WORK: Contrary to Section 9(2)(f)(i) of the Health and Safety at Work Act of 1996.

Particulars of Offence

S. KARAN CONSTRUCTION LIMITED, an employer, on or about the 28/4/99 at Thomson Street, Suva in the Central ion, failed to develop in c in consultation with their workers a policy relating to health and safety procedures that would enable effective co-operation between the employer and the workers in promoting and developing measures that would ensure the worker’s health and safety at work.

The sentence passed was $10,000 fine on Count 1, a,000 fine on Count 2. The fines were to be paid by 31st August 2001.

On 22nd August 2001 a Petition of Appeal against severity of sentence was filed in the Court of Appeal, and on 11th September 2001, thplication for stay of execuexecution of sentence pending appeal was heard. The application is made on the grounds set out in the affidavit of Shashi Sharma, Law Clerk who deposes as follows:

a) &nnsp;&&nsp;;&nspp;&nssp;&nsp; &nbsppan>sny decision on apon appeal would be rendered nugatory if enfont ofsentes noted;

b) &nnsp;&&nsp;;&nspp;&nssp;&nsp; The fine imposeexor exorbitant and unreasonable;

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c) nbsp; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; Thellant appealed tled the decision promptly;

d) ; &nnsp;&&nsp;;&nbp; &nbp; &nnbp;& Payment of t of the fines will cause the company fina hard

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I note that leave has not been applied for or granted for this appeal under Section 21 of the Court of Appeal

In his submissions counsel for the Applicant, submitted that the principleevant to this application should be those applicable to appo applications for stay of judgment pending appeal in civil matters. He submitted that the payment of the fines would render the appeal nugatory, that the State would not be prejudiced if the payment of the fines was delayed until the appeal was heard, and that the Applicant Company would be unable to function if it had to pay the $15,000 now.

State Counsel opposed the application saying that the princ of bail pending appeal were relevant to this application. He said that those were that thet the payment of the fines should only be stayed in exceptional circumstances, that there were no such exceptional circumstances in this case, and that if the appeal succeeded, the State would simply repay a portion of the fines to the Applicant.

It appears to me, that the principles governing stay of execution of a civil judgment, and the principles governing bail pendipeal are not vastly differefferent. In both jurisdictions, the court must be satisfied that there are exceptional circumstances justifying stay, and that the appeal has some prospects of success. In a “civil stay” the court must consider, on a balance of convenience, the competing interests of the parties. In a “criminal stay”, the court must consider whether a substantial term of imprisonment will be served before the appeal is heard (Linotype-Hell Finance Ltd. -v- Baker (1992) 4 ALL ER 887; Amina Begum Koya -v- The State Crim. App. AAU0011/96S). In both jurisdictions the court has an absolute unfettered discretion, and in both cases, the onus is on the Applicant to show exceptional circumstances or that the appeal will be frustrated if stay is not granted.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In considering this application I therefore take innsideration all these principles. Rule 51(3) of the Court of Appeal Rules provides as follofollows:

“Where any person has been convicted and is thereupon sentenced to the payment of a and, in default of such pach payment, to imprisonment, and he intimates to the judge of the court of trial that he is desirous of appealing against his conviction, such judge may, if he thinks right so to do, order such person forthwith to enter into recognizances in such amount and with or without sureties in such amount as such judge may think right to prosecute his appeal, and subject thereto, may order that payment of the said fine shall be made at the final determination of his said appeal, if the same be dismissed.”

The difficulty with this Rule is that it envisages a fine at a person who can be sent to prison in default of payment of fine, and can give no protectotection to the State in the case of convicted companies. Presumably in the event of non-payment of a fine by a company, the State would be constrained to issue civil proceedings to enforce the fine. Section 51(4) of the Rules provides that an appellant who has been sentenced to the payment of a fine and has paid that fine, shall if his appeal is successful, be entitled to a return of the sum paid, or any part thereof. The Rules are silent on whether a court can suspend the payment of a fine, if imprisonment is not an option, pending appeal. In contrast, section 315 of the Criminal Procedure Code allows the Magistrates’ Court and the High Court to suspend any sentence pending appeal, using the words “order for bail or suspension.”

Rule 51 of the Court of Appeal Rules does not therefore appear to give the High Court the specific power to stay a fine pending appeal where there is no order for a term of imprisonment to be served in default of payment of fine.

However, this court and no doubt the appellate court, has powers to regulate its own processes, and to prevent an abuse of. In Pinson -v- Pins Pinson (1991) 5 PR NZ 177 Smellie J granted a stay of execution pending the hearing of an appeal from the Family Court to the High Court of New Zealand finding that he had inherent powers to control the processes of the court. To that end, I consider that I have powers to suspend any sentence pending an appeal against it. As I have already pointed out, this appeal appears to be incompetent because under section 21(c) of the Court of Appeal Act, the Appellant requires the leave of the Court of Appeal to appeal against sentence alone. The Appellant must apply for such leave forthwith.

Nevertheless assuming that leave will be granted, I go on to consider whether the fines imposethis case ought to be suspended pending appeal. On both civh civil and criminal tests for suspending a sentence pending appeal, the Applicant has failed to show exceptional grounds.

The only ground which might be said to be unusual or exceptional in this case, is that the Applicant is so financially crippled that the company cannot pay. On the affidavit evidence before me, I cannot accept the Applicant’s claim of financial hardship. The affidavit evidence on this issue is sparse and uninformative. There is no statement of the Company’s assets and liabilities nor of the existence of other creditors who might be pressing for payment. Indeed no such evidence of financial means, was submitted to me in mitigation, beyond submissions from the bar table. For this application for stay, the Applicant had even more time to find and present such evidence, but it chose not to do so. In the circumstances I do not accept the assertion of financial hardship. Nor do I consider that the fact that this was the first case arising from a new piece of legislation, to constitute unusual or exceptional grounds.

Nor can I accept that the appeal will be rendered nugatory if the fines are paule 51 specifically provides that if the appeal is successfcessful, the fines must be repaid to the Appellant in part or in full. It is not of course suggested that the State will not be in a position to repay the fines.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Although there may be merit in the appeal (although no leave has been sought), no authorities have been provided too show me that the sentencetences passed were wrong in principle or manifestly excessive.

In all the circumstances this application is refused. The Applicant is already out of time on the payment of fines and pay them within 7 days of s of this judgment.

Nazhat Shameem

JUDGE

At Suva

13th September 2001

Ham0023d.01s