Land Transport Authority v Deo [2002] FJHC 166; HAA0020.2002B (1 November 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA0020 OF 2002

BETWEEN:

LAND TRANSPORT AUTHORITY
APPELLANT

AND:

CHANDRA SEN DEO
s/o Shiu Lakhan
RESPONDENT

Mrs A. Neelta - Counsel for the Appellant
In Person - Respondent

JUDGMENT

This is an appeal by the Land Transport Authority against the decision of Labasa Magistrate’s Court delivered on 27^th June 2002 whereby the respondent was discharged under Section 201(2)(b)(ii) of the Criminal Procedure Code. The learned Magistrate also refused costs to the Appellant.

FACTS

The Respondent had been charged with the offence of Driving Unregistered Motor Vehicle Contrary to Section 49(1) and (3) and Section 114 of the Land Transport Act 1998. The particulars of offence were that "Chandra Sen Deo on the 12th day of May 2002 at Savusavu in the Northern Division drove light goods vehicle along Savusavu town when such vehicle had not been duly licensed (or paid)".

The respondent admitted the facts as charged and additionally that the vehicle was unlicensed for five months. He was convicted.

In mitigation the respondent told the court that his vehicle had been detained by police in Savusavu from January to March for a criminal case. He took it back in March. He took the vehicle for fitness on 9^th May 2002 but vehicle did not pass the tests so he took it on 13^th May 2002 when he was booked.

After conviction the learned Magistrate discharged him under Section 201(2)(b)(II) of the Criminal Procedure Code.

GROUNDS OF APPEAL

(a) that the learned Magistrate erred in law and fact by discharging the respondent under Section 201(2)(b)(11) of the Criminal Procedure Code Cap 21 when no such application was made by the Prosecutor for the respondent to be discharged.

(b) that the Magistrate erred in law and in fact when he used his discretion to discharge the respondent when no such discretion was available to the Court when the penalty is fixed by Law.

(c) That the appellant is a body corporate under the Land Transport Act 1998 and has to pay court fees to institute proceedings, which is in the sum of $11.00.

(d) That the learned Magistrate erred in law and facts in failing to act judicially in the exercise of his discretion to decline the award of the said cost and expenses.

(e) That the appellant says that they are entitled to recover their cost of the action.

Section 201 of the Criminal Procedure Code reads as follows:

"(1) The prosecutor may with the consent of the Court at any time before a final order is passed in any case under this Part withdraw the complaint.

(2) On any withdrawal as foresaid –

• (a) where the withdrawal is made after the accused person is called upon to make his defence, the court shall acquit the accused.
  
• (b) Where the withdrawal is made before the accused person is called upon to make his defence, the court shall subject to the provisions of section 210, in its discretion make one or other of the following orders:
  
  • (i) an order acquitting the accused;
    
  • (ii) an order discharging the accused."
    

This Section was obviously not open to the learned Magistrate. The section is available at any time before the "final order is passed".

Here the learned Magistrate not only convicted the respondent but also by way of sentence discharged him. The final order of the court is the sentence after which the court is functus. Under Section 201 a prosecutor at any time before sentence is passed can withdraw the complaint. There was no such application for withdrawal from the prosecutor so the learned Magistrate could not have discharged the respondent under Section 201 of Criminal Procedure Code.

The learned Magistrate probably had Section 44 of the Penal Code in mind when he discharged the respondent after convicting him. Section 44 of the Penal Code reads as follows:

"(1) Where a court by or before which a person is found guilty of an offence, not being an offence for which a fixed sentence is prescribed by law, is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Act is not appropriate, the court may, with or without proceeding to conviction, make an order discharging him absolutely, or, if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order, and subject to such other conditions, if any, including the payment of costs or compensation, or the restitution of goods or the payment of money in lieu of goods, as may be specified in such order."

The appellant submits that a discharge under Section 44 of the Penal Code is not open to the court, as the penalty is one fixed by law. It relies upon Land Transport Authority v. Eroni Volavola – Criminal Appeal HAA0066 of 2002S in support of its contention. In Eroni Volavola the respondent was charged under Section 51 and 87 of the Land Transport (Traffic) Regulations 2000 and not under Land Transport Act. The penalty for offence under Section 51 is provided under Land Transport (Fees and Penalties) Regulations 2000 and the fixed penalty is two demerit points and a fine of $70.00 and the maximum penalty is three demerit points and a fine of $500.00 in default three months imprisonment.

The fixed penalty is an extra judicial system of penalty. There is no conviction by the court before such penalties are paid. Those who pay fixed penalties do not appear before a Magistrate or a Court. The whole concept of Traffic Infringement Notices and fixed penalties is for purpose of expeditious despatch of minor infringements of traffic laws. It is also for the convenience of the public because it is not even necessary that the person booked himself go and pay the penalty. He/she can send any one else to pay the penalty on his/her behalf. The fixed penalty is paid at the Office of LTA and not in court.

A person who has been issued with a Traffic Infringement Notice has a choice. He can either pay the fixed penalty or elect to go to court where he can either plead guilty or not guilty. He/she would, if convicted, be sentenced by the court. Once a person has elected to be tried by a court and if convicted, the Magistrate would sentence him/her after mitigation. The Magistrate has a discretion to impose any form of sentence he deems fit in the circumstances of the case. There is no minimum fixed penalty in such a situation. A Magistrate can fine him if he wishes to a sum below the fixed penalty, which a person would have paid, if he had elected not to come to court. He can fine him any sum up to the maximum depending on circumstances of offence and the offender.

The case of State v. Alifereti Nakautoga – Criminal Appeal HAA0130 of 1997 dealt with the peculiar circumstances under the Dangerous Drugs Act where a minimum mandatory sentence of imprisonment was prescribed by law and a court could not impose a sentence below that regardless of the circumstances. It is in such circumstances where a minimum mandatory sentence is prescribed that Justice Pain considered that Section 44 of the Penal Code could not be invoked in sentencing an accused.

I am therefore of the view that a discharge under Section 44 of the Penal Code is open to a court in the present case, because there is no fixed penalty prescribed once a person has elected to come to court. Only the maximum penalty is prescribed not the minimum.

The respondent is charged for committing an offence under Section 47(3) of the Act. Section 114(1) which deals penalties reads:

"The penalties prescribed in the third column of the schedule are prescribed as the maximum penalties against the sections of the Act respectively mentioned."

There is no fixed minimum for this offence so the learned Magistrate had the option to sentence the respondent as he deemed fit including discharging the respondent. Having said that a discharge is open to a court, one must still not lose sight of requirements of section 44 which must be satisfied before a court exercises its discretion. The factors to consider are:

(a) the nature of offence
(b) the circumstances of offender
(c) that probation order under Probation of Offenders Act is not appropriate.

The learned Magistrate probably considered that a discharge following conviction was appropriate as he may be of the view that conviction by itself was a sufficient penalty.

COSTS

At the conclusion of the case the prosecution asked for $11.00 costs, which is the filing fee. The learned Magistrate said: "Costs refused. Have discharged accused. No reason why he should pay costs."

The Land Transport Authority is a statutory body given powers to enforce traffic laws of this country. It files numerous cases in courts throughout the country and has to pay filing fees in court. It incurs these costs in the conduct of the statutory duties imposed on it by Parliament in the public interest. Costs for the Authority therefore are important factor in prosecuting offenders.

The relevant provision relating to costs is section 158(1) of the Criminal Procedure Code, Cap 21. It reads:

"It shall be lawful for a judge of the High Court or any magistrate to order any person convicted before him of an offence or discharged by him without conviction under the provisions of Section 44 of the Penal Code, to pay to a public or private prosecutor such reasonable costs as to such judge or magistrate may seem fit, in addition to any other penalty imposed."

The section gives the court a discretion to award costs. An exercise of discretion is a judicial act. The learned Magistrate felt that since he had discharged the accused, no costs should be awarded. He did not even refer to Section 158 of the Criminal Procedure Code, which suggests that even in a case of absolute discharge without conviction costs may be ordered. There is nothing on the record to show that the Authority acted unreasonably either in booking or in the conduct of the case. In fact the respondent had an alternative avenue open to him. He knew his vehicle was not licensed. He should have applied to the Authority for a permit to drive an unregistered vehicle on a public street for purpose of taking it to an authorized office for inspection – see Section 4(1)(d) of the Land Transport/Vehicle Registration and Construction/Regulations 2000. He chose not to do that resulting in the Authority having to file this action. The appellant is a statutory body, which has incurred the filing fees, and it is entitled to those costs unless the respondent shows good cause to the contrary. The appellant is entitled to the costs of filing in Magistrate’s Court which is $11.00 and $22.00 filing fees on appeal that is a total of $33.00. The respondent is ordered to pay $33.00 costs to the appellant within seven (7) days. The final order therefore are that the respondent’s discharge after conviction remains unaltered albeit under Section 44 of the Penal Code. The respondent is to pay5 $33.00 costs to the appellant.

{ Jiten Singh }
JUDGE

At Labasa
November 2002