Yee v State [2002] FJHC 238; HAM0047D.2002S (9 December 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO: HAM 47 OF 2002S

Between:

KESTER YEE & OTHERS
Applicant

And:

THE STATE
Respondent

Hearing: 3rd December 2002
Ruling: 9th December 2002

Counsel: Mr N. Vere for Applicant
Ms A. Prasad for State

RULING

This is an application for leave to appeal out of time from a decision of the Suva Magistrates Court to accept the re-filing of charges after the discharge of the accused under section 198 of the Criminal Procedure Code.

The Applicant, was charged with the following offences on the 17th of November 1999.

FIRST COUNT

Statement of Offence

OPERATING A COMMON GAMING HOUSE: Contrary to Section 4(1) of the Game Act, Cap. 273.

Particulars of Offence

KESTER YEE s/o Yee Quan, on the 14th day of August, 1999 at Suva in the Central Division, being the occupier of a Social Club at Metropole Building, used the same premises as a common gaming house.

SECOND COUNT

Statement of Offence

PLAYING IN A COMMON GAMING HOUSE: Contrary to Section 6(1)(a) of the Gaming Act Cap. 273.

Particulars of Offence

CHUNG WAH SONG, KIMBLEY CHUNG, NANG YEE FOO, TOM HOI YUEN, YEE HOO and HUAN ZHAN HUA, on the 14th day of August 1999 at Suva in the Central Division, were found playing Majong Games in a common gaming house.

At some time (not disclosed by the motion and affidavit of Kester Yee) the accused was discharged. On the 24th of October 2001, the DPP filed fresh charges, apparently identical to the original charges.

The Applicant, in a Petition of Appeal annexed to the affidavit of Kester Yee, states that the re-filing of the charges was an abuse of the process and contrary to section 202(7) of the Criminal Procedure Code (Amendment) Act No. 37 of 1998 in that the case has now continued for more than 12 months since the filing of the original charges. The Petition further states that a trial would be in breach of the constitutional right to a fair trial within a reasonable time.

It is unfortunate that the affidavit filed is silent on what actually occurred in court after the re-filing of charges. When counsel make applications for enlargement of time, they must ensure that the affidavit material discloses all matters relevant to the application. What I am told from the bar table by both counsel, is that counsel for the Applicant made submissions to the learned Magistrate that fresh charges should not be accepted because of the delay in the matter, and because the Applicant had, in effect been acquitted. On the day designated for argument, counsel for the Applicant failed to appear. State counsel submitted that the re-filing of charges was lawful and proper after the decision of this court in Ministry of Labour -v- Merchant Bank Crim. App. HAA 11 of The lThe learned Magistrate accepted the State’s submissions, after reading the judgment, and ruled that the trial proceed, on the basis of the re-filed charges. Neither counsel was able to tell me whether a written ruling had been recorded.

The Applicant filed a petition of appeal on the 24th of June 2002 in the High Court. He was (excluding the legal vacation) five months out of time. On being advised by me that he would need to make an application to enlarge time, he then filed this notice of motion on the 26th of November 2002. He is now 11 months out of time. The trial has been adjourned, awaiting determination of this application.

Relevant factors for applications to enlarge time are that counsel was not present at the hearing in the Magistrate’s Court and needed time to prepare the petition, a difficult question of law is involved, the sanction of the DPP was needed, or that counsel was unable to get the court record, or the ruling appealed from despite applying for it. I would add to these factors, an unrepresented appellant who is not aware of how to file appeals, and an appeal with obvious merit.

In this case, no reason was given for the late filing of the appeal. However at the hearing of this application, counsel said that the delay was caused by the learned Magistrate’s failure to provide a written ruling. There is no evidence before me that a request had been made for it, either verbally or in writing. Further, if I am to accept what I was told from the bar table, counsel for the Applicant did not appear at the time designated for submissions on whether the charges could be re-filed. Finally, no proper reason has been given to me for the delay in applying for enlargement of time when the Applicant already knew on the 24th of June 2002, that the appeal petition was out of time.

On the question of the appeal proper, this is clearly an interlocutory appeal. Although such an appeal is permitted in principle, by statutory amendment to section 308 of the Criminal Procedure Code, it is important to remember that an interlocutory appeal can have the effect of causing delay in, and fragmenting, a criminal trial. For that reason, any such appeals should be promptly filed, and just as promptly heard.

As to merits, I am not satisfied that the appeal has any merit at all. The question of autrefois acquit was dealt by me in the Ministry of Labour -v- Merchant Bank (supra) where I held that a dismissal of a charge under section 198 of the Criminal Procedure Code was a discharge following which fresh proceedings could be brought. Further, I said in that judgment that a plea of “autrefois acquit”, must be considered in the light of all the circumstances of the first hearing, including the question of whether the accused had ever been in peril of a conviction, and whether there had been a trial on the merits of the case.

As to the issue of delay, it is my understanding that this submission was never made to the learned trial Magistrate. I consider that this issue ought first to be canvassed in the court in which the proceedings are currently being conducted. If that court rules against the accused, and proceeds to conviction, the Applicant can appeal against the result, citing delay as a ground of appeal against conviction.

In all the circumstances, taking into account the delay in filing this application, and the merits of the appeal I consider that the Applicant has not shown good cause for enlarging time. This application is refused. The trial should proceed forthwith.

Nazhat Shameem
JUDGE

At Suva
9th December 2002