Land Transport Authority v Taoi [2002] FJHC 142; HAA0030J.2002S (6 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0030 OF 2002

Between:

LAND TRANSPORT AUTHORITY
Appellant

And:

SAMUELA TAOI
Respondent

Ms A. Neelta for Appellant
No Appearance for Respondent

Hearing: 2nd August 2002
Judgment: 6th August 2002

JUDGMENT

On 14^th August 2001, the Respondent was charged with the offence of driving an unregistered vehicle. The charge read as follows:

Statement of Offence

DRIVING UNREGISTERED MOTOR VEHICLE: Contrary to Section 49(3) and 114 of the Land Transport Act 1998.

Particulars of Offence

SAMUELA TAOI, on the 14^th day of August 2001, at Suva in the Central Division drove a vehicle on Brown Street when the said vehicle was not duly registered and had its motor vehicle licence expired on 09.01.99.

The case was called in the Suva Magistrates= Court on the 18^th of October 2001. The Respondent did not appear and the matter was adjourned to 4^th December 2001. The Respondent pleaded guilty and agreed to the facts. The Traffic Infringement Notice, tendered to the court, and the affidavit of the booking officer, also tendered showed that on the 14^th of August 2001, at 7.58pm at Brown Street, the Respondent drove a vehicle (Registration number CF148) in respect of which the motor vehicle licence had expired.

The Respondent was a first offender and said he was able to pay a fine. The case was adjourned to 6^th December 2001 for mitigation and sentencing. On the 6^th of December 2001 a plea in mitigation was tendered in writing. It is not included in the certified court record, but the court file contains handwritten representations which read as follows:

AThis car CF148 was left in the garage in Vatuwaqa for about 2 years by the first owner before I bought it this year.

I get all the details of this car from the LTA office and what I have to pay in it I pay them $10.00 for suspension of owner and also to proceed on repairs and body work without paying the arrears till I bringing in for fitness.

On this late afternoon when I drive the car back after repairing when I was going home. The LTA check team stops me and tow my car to Valelevu.

I can=t release my car whereas I have to pay all the fees that they require i.e.:

1. Seizure or impound vehicle $70.00
2. Unregistered vehicle per trip 6.50
3. Miscellaneous or arrears of w/tax

2 years 83.58

4. Replace of no: plates 16.00
5. Remove or suspension by owner 29.00
6. Towing fees to be paid to

W/wreckers 60.00
_______

Total $256.08
_______

And to pay for the fitness and wheel tax for this year -

Wheel Tax 63.50

Fitness 27.00

Transfer fees 13.50

I hope I already given enough money to the LTA about my car rather than to pay another $200 or $500 on this penalty.@

The case was then adjourned to 11^th December 2001 for sentencing. On 11^th December it was adjourned again. No reason is given for the adjournment. On 24^th December 2001, the court noted:

A1. Accused paid $50 cash - part payment of fine.

2. Adjourned 30.1.02 mention to get balance.@
   

On 30^th January 2002, the court record reads:

A1. Accused paid $50 cash to Court.

2. Adjourned 28.2.02 for Mention.
3. Bail extended.@
   

On 28^th February 2002 the Respondent was convicted as charged, fined $200 (which had already been paid) and the application for prosecution cost was denied. The application itself is not recorded, nor the grounds for it, nor are reasons given for the refusal of the application. The Appellant appeals against the refusal to order costs. The grounds of appeal read as follows:

A(a) That the learned magistrate erred in law and fact failing to act judicially in the exercise of his discretion to decline the award of said cost or expenses: Suva City Council and Ravin Chand s/o Pramesh Chand Criminal Appeal No. 0020 of 1997 (H.C.) Suva City Council and Savita Nand Lal d/o Prabhu Lal Criminal Appeal 0021 of 1997 (H.C.F.) and Sharp v Wakefield and Others [1891] UKLawRpAC 8; (1891) A.C. 173.

(b) That appellant is a body corporate under Land Transport Act and has to pay court fees to institute proceedings, which is in the sum of $33.00.

(c) That the appellant says that they are entitled to recover their cost of the actions.@

Costs

Section 158 of the Criminal Procedure Code provides:

AIt shall be lawful for ... any magistrate to order any person convicted before him of an offence ... to pay to a ... private prosecutor such reasonable costs as to such ... magistrate may seem fit, in addition to any other penalty imposed.@

As counsel for the Land Transport Authority submitted, prosecutors appearing for the Authority are private prosecutors, public prosecutors being persons appointed under section 73 of the Code, the Attorney-General, the Director of Public Prosecutions, State counsel, any police officer and any person acting under the directions of the Attorney-General. Under the Magistrate Court (Amendment) Rules 1994, the cost incurred in filing a private prosecution including the filing of the complaint, the drawing up of a formal charge and the issuing of summons to the accused, is $33.00.

Counsel submitted at the hearing of this appeal that the learned Magistrate erred in failing to consider the questions of costs judicially, and that he ought to have ordered costs to be paid to the prosecutor because the Land Transport Authority incurred costs in prosecuting traffic offenders. She referred to the decisions of Fatiaki J in Suva City Council -v- Ravin Chand Crim. App. No. HAA0020 of 1997, and Suva City Council -v- Savita Nand Lal Crim. App. No. HAA0021 of 1997.

These authorities were obviously given to the learned Magistrate because they are both included in the court record.

In both cases, the Suva City Council had brought proceedings against the respondents under the Public Health Act, Cap. 111. The offences were formally proved, and the respondents were ordered to pay $10 fine each and $10 costs. The Council appealed on the ground that the Magistrate ought to have ordered the full costs of prosecution ($33.00). The appeal succeeded, Fatiaki J saying at page 5:

AIn my considered opinion, given the ... minimum fees payable in the Magistrate Court for the institution of a criminal prosecution, there is no justification at all for the trial magistrate=s observation that the amount of costs sought by the prosecutor was excessive.@

The discretion given to the court under section 158 of the Criminal Procedure Code must be exercised judicially. A good place to start in considering whether or not to order costs, is to calculate the costs incurred by the private prosecutor in bringing the prosecution. Another consideration is the law enforcement role of the private prosecutor. Private prosecutors from bodies such as town and city councils, or the Land Transport Authority exercise important roles of enforcing statutory offences which are in the public interest to enforce. Ordinarily, the costs incurred by such bodies, in prosecuting, ought to be ordered to be paid by the accused unless there are particular circumstances which justify non-payment of costs. One such relevant consideration might be the conduct of the accused or the Authority during and before the hearing. The relevant factors in relation to a costs order are not exhaustive.

In this case, the record shows that the application for costs was not considered judicially. No reasons were given for the refusal. Nor were the grounds for the application recorded. For this reason the order that costs should not be paid is quashed.

As to whether I should now substitute a costs order, I take into account the costs the Respondent said he incurred as a result of the Abooking@ of his vehicle. He said in the Magistrates Court that excluding the costs of registration, he had incurred a cost of $256.08 in respect of towing fees and release of the impounded vehicle. However I see that the sum of $256.08 included the cost of wheel tax arrears for two years, and the replacing of number plates. These sums of money would have been payable by the Respondent anyway. The additional costs of paying for the towing of the vehicle are not extraordinary costs. All vehicle owners whose vehicles are towed away normally pay the costs of such towing. I do not accept that the expense already incurred by the Respondent, justify a refusal to order the costs of prosecution.

In the circumstances I consider that costs of $33.00 ought to be considered and I so order. The Respondent must pay the Appellant $33.00 within 7 days or serve 5 days imprisonment in default.

On reading the court record, I note that the case was adjourned on several occasions to give the accused time to pay the fine before sentence was imposed. This is irregular. Firstly, a fine is a sentence and must be imposed giving a time limit for payment. It is quite wrong in law to ask the accused to pay the fine before sentence is delivered. Secondly, the court is not a debt-collecting agency, and cases should not be adjourned to give the accused time to pay compensation or fines before sentence is delivered. If compensation is ordered, the sentence must specifically include such order. If the court is not sure that the fine will be paid, it can order payment in instalments in accordance with any finding as to means and may fix a term of imprisonment in default of payment. Despite this irregularity, the fine of $200 in respect of the offence was right in principle.

In summary this appeal is allowed.

Nazhat Shameem
JUDGE

At Suva
6^th August 2002