Director of Fair Trading and Consumer Affairs v Surendra Prasad Motors [2002] FJHC 173; HAA0069J.2002S (2 October 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0069 of 2002S

Between:

DIRECTOR OF FAIR TRADING & CONSUMER AFFAIRS
Appellant

And:

SURENDRA PRASAD MOTORS
Respondent

Hearing: 27th September 2002
Judgment: 2nd October 2002

Counsel: Ms S. Waqainabete for Appellant
Respondent in Person

JUDGMENT

On 27^th November 2001, the Respondent was charged with the following offence:

Statement of Offence

ACCEPTING PAYMENT WITHOUT BEING ABLE TO SUPPLY AS ORDERED: Contrary to section 67(1)(b) of the Fair Trading Decree No. 25 of 1992.

Particulars of Offence

Between the 24^th day of July and the 24^th day of August 1998, SURENDRA PRASAD MOTORS, a business registered under the Registration of Business Names Act Cap. 249 whose registered office is at Lot 2 Hanuman Street, Bhindi Subdivision, Vatuwaqa, Suva, had accepted part-payment of $480.00 (Four Hundred and Eighty Dollars) for an oral agreement to carry out general repair works on the body of the car whose registration number is BI 052. For which at the time of the acceptance there was a reasonable awareness that the business would not be able to supply the car whose registration number is BI052 within the given time.

The matter was called before a Magistrate on 13^th December 2001. Neither prosecution, nor the accused appeared. The case was adjourned to 8^th February 2002. On that day, the Respondent (who was not represented by counsel), pleaded not guilty to the charge. The case was adjourned to 4^th March 2002 for mention, and then to 14^th May 2002 for another mention. On 14^th May, the prosecutor failed to appear. The case was adjourned again to the 10^th of June 2002. On 10^th June 2002, the case was again adjourned for mention to 24^th June 2002. No reasons were given for the granting of these numerous mention dates. On the 24^th of June 2002, the prosecutor again did not appear. The Respondent said he had not been served with any of the witness statements (Adisclosures@) and the court noted as follows:

AI note the complainant=s unavailability. This is not the first time that they have not appeared. Accused has appeared throughout from 8/2/02. I exercise my discretion under section 203 of the Criminal Procedure Code and dismiss the charge. Accused discharged.@

The Director of Fair Trading and Consumer Affairs has filed an appeal against this order. The appeal petition mistakenly refers to the order as one for acquittal. In fact, the Respondent was not acquitted, he was purportedly discharged. However, counsel for the Appellant, said at the hearing of this appeal that the Suva Magistrate=s Court had refused to accept a fresh charge for filing after the Adischarge@, because the order was treated as an order for acquittal.

The grounds of appeal are as follows:

(a) the learned Resident Magistrate erred in law when he failed to exercise his discretion judicially to allow an adjournment;

(b) the learned Magistrate erred in law applying section 308 CPC in the manner that he did.@

The purported dismissal of charge was made under section 203 of the Criminal Procedure Code. It was made, not on a date set for hearing, but on a mention date. The Respondent in his written submissions, said that the dismissal of the charge did not lead to acquittal, and was justified because the offence was allegedly committed in 1998. He further said that the appeal was trivial, misconceived and should be dismissed.

Adjournment

It is not apparent from the record, why the case was continuously being adjourned from December 2001. In the absence of any application made by either party for an adjournment, it is safe to assume that mention dates were being fixed because the court itself was not ready to set a hearing date. Further, on three occasions, the case was being handled by other magistrates. It is true that the prosecutor failed to appear on two occasions, and that the accused was present on all occasions. However, if the case was being continuously adjourned at the court=s convenience, the decision to dismiss the charge because the prosecutor did not appear, does not appear to be in the interests of justice. The best course of action would have been either to set a hearing date convenient to the accused (the prosecutor having forfeited her right to be consulted) or to set another mention date to agree on a hearing date. Although, there was no one present to request an adjournment, the learned Magistrate should have considered that as an option anyway.

As the Court of Appeal said in Rajesh Chand & Shailesh Kumar -v- the State Crim. App. No. AAU0056 of 1999S:

AWhere 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.@

The learned Magistrate failed to consider that the case had been adjourned on numerous occasions without a hearing date being set, that those adjournments had not been at the request of the prosecution and that the 24^th of June 2002, was not set for the hearing of the trial, but was only a mention date. The decision not to adjourn to another date was therefore not made judicially. This ground of appeal succeeds.

The dismissal of the charge

Section 203(1) of the Criminal Procedure Code provides as follows:

AIf at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which has made the order of adjournment, such court may unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused was present, and if the complainant does not appear the court may dismiss the charge with or without costs as the court shall think fit.@

As I said in The Ministry of Labour & Industrial Relations -v- Merchant Bank of Fiji Ltd. Crim. App. No. HAA0011 of 2002, the discretion to dismiss the charge under section 203 of the Criminal Procedure Code, must be exercised judicially. In this case the decision was made on a mention date, without making an enquiry about the readiness of the accused for trial or about the possibility of simply setting a hearing date. The dismissal of the charge was followed by a refusal to accept a fresh charge. There was therefore real prejudice to the prosecution.

This ground of appeal succeeds on the ground that the learned Magistrate failed to exercise her discretion under section 203 of the Code, judicially.

Result

The grounds of appeal against the dismissal of the charge are successful. I order that the case be remitted to the Magistrate=s Court for a hearing date to be set on the basis of the original charge.

Nazhat Shameem
JUDGE

At Suva
2^nd October 2002