Chandra v Land Transport Authority [2004] FJHC 89; HAA0024J.2004S (8 April 2004)

IN THE HIGH COURT OF FIJI

AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0024 OF 2004S

Between:

SURESH CHANDRA
Appellant

And:

LAND TRANSPORT AUTHORITY
Respondent

Hearing: 2nd April 2004
Judgment: 8th April 2004

Appellant in Person
Mr. V. Vosarogo for Respondent

JUDGMENT

The Appellant was convicted on the 16th of September 2003 of the following offence:

Statement of Offence

EMISSION OF VISIBLE SMOKE: Contrary to regulations 47 and 87 of Land Transport (Traffic) Regulation 2000.

Particulars of Offence

SURESH CHANDRA on the 18th day of March 2003 at Suva in the Central Division drove a motor vehicle registration number CJ971 at Laucala Bay Road and caused visible smoke to be projected from the exhaust pipe for a period in excess of 10 seconds.

He pleaded not guilty and his trial commenced on the 29th of August 2003. An LTA Officer Epeli Naunivalu gave evidence that on the 18th of March 2003 he was on duty at Laucala Bay Road at 2.45pm when he saw the Appellant’s vehicle emitting smoke. He followed the vehicle towards Flagstaff and timed the emission of smoke. The emission was continuous for 15 seconds. He stopped the Appellant outside the USP bus stop, interviewed him and served him with a Traffic Infringement Notice.

Asaeli Roko also gave evidence. He was with PW1 on the 18th of March 2003 and is a trained vehicle examiner. He advised PW1 to time the smoke emission for 15 seconds or 400 metres “because sometimes, when drivers use wrong gear, it could cause visible smoke.” They followed the vehicle to monitor the smoke emission.

Under cross-examination he said that the smoke being emitted was visible but not black and that when the fuel system is not working properly, it will emit smoke.

The Appellant made a dock statement. He said that he was a qualified mechanic and that the way the inspection had been carried out was not proper. He said that on the 19th of March 2003 his vehicle was examined at the LTA, and that the examiner found no defects in the vehicle.

The learned Magistrate held that the only question for the court was whether the driver of the vehicle had caused or permitted visible smoke to be projected from the exhaust pipe or any other part of the vehicle for more than 10 seconds. He said he was satisfied of this beyond reasonable doubt and convicted the Appellant accordingly. He was fined $90 plus $33 costs. Although he was given 14 days to pay the fine he has not paid this fine apparently because he was advised not to by the court. At the hearing of this appeal, I advised him to pay immediately because if he did not he was at risk of being imprisoned for 3 months.

The Appellant appeals against conviction and sentence. His grounds are that Regulation 47 of the Land Transport Regulations lacks clarity, that visible smoke is not indicative of a faulty vehicle, that he was victimised by the LTA officers and that the 10 seconds period specified in the Regulation was unrealistic. In court he argued a further ground, that PW1’s watch was a measuring instrument which did not comply with the National and Trade Measurement Decree 1989.

Counsel for the LTA opposed the appeal, saying that the Regulation required no proof of a mechanical defect, that the TIN was issued after the commission of the offence and that the 1989 Decree did not apply to watches.

Regulation 47 of the Land Transport (Traffic) Regulations 2000 provide:

“A driver of a motor vehicle on a public street must not cause or permit visible smoke to be projected from the exhaust-pipe or from any part of the machinery of the motor vehicle for a period in excess of 10 seconds.”

The evidence led at the trial was that the Appellant’s vehicle emitted smoke for 15 seconds. The Appellant at the trial did not dispute this. His defence was that his vehicle which was carrying a heavy load of passengers up a hill, emitted smoke not because of a defect but because it is a diesel-fuelled vehicle which always emits smoke. Indeed he said in his dock statement that his vehicle was not defective and that the emission of smoke in relation to defects in the vehicle was not conclusive.

It may be that the Appellant’s vehicle has no defects. However the mischief aimed at in Regulation 47 is not a defective vehicle. It is the emission of visible smoke. Whether the cause is the diesel engine, or an engine problem is irrelevant to conviction. It may be relevant to sentence. The Appellant agreed that Regulation 47 provided for no exemptions in relation to diesel engines.

In relation to the National and Trade Measurement Decree 1989, I see very little relevance of that Decree to this offence. Firstly, the Appellant does not deny the emission of visible smoke. At the trial he did not deny the length of time the emission was visible. Secondly, the officers timed the smoke for 15 seconds, 5 seconds more than the statutory provision. This must be well beyond any margin of error. Lastly, I doubt that the Decree applies to watches used by Land Transport Officers to time smoke. If it did apply, then police officers using their watches to record times in police notebooks, and witnesses giving evidence of times in the course of ordinary cases would be required to submit their watches for verification before using them.

Sections 12, 13 and 14 of the National and Trade Measurement Decree 1989 refers to measuring instruments which may be verified by the Chief Inspector of Weights and Measures if the Chief Inspector considers it necessary to do. Section 14 provides that “where the Chief Inspector is satisfied that a primary standard of measurement has been verified or re-verified” he may sign and issue a certificate of verification. Section 15 provides that for any legal purpose, where it is necessary to ascertain whether a measurement of a physical quantity for which there are Fiji legal units of measurement made in terms of those units, that fact shall be ascertained by means of, by reference to, an appropriate standard of measurement and not in any other manner. Section 15(2)(a) provides that a measuring instrument not being used for trade may be verified by an inspector at the request of any person. Section 15(2)(b) provides that the Minister may declare by notice in the Gazette a measuring instrument to be an instrument to which the Decree shall apply as if the instrument were used for trade. There is no notice declaring watches to be measuring instruments to which the Decree applies.

A reading of these provisions makes clear that the decision to verify an instrument lies with the Chief Inspector. Any person can ask for a certificate of verification in relation to a measuring instrument, and any instrument used in legal proceedings should use one of the standard units of measurement specified by schedule to the Decree. In relation to time, the primary unit is seconds.

There is no requirement under these provisions to submit all measuring instruments (not used for trade) for verification. There is no legal requirement to verify measuring instruments used in a criminal trial, such as a watch, unless either the Chief Inspector decides to so verify, or any person requests such verification. Further, in using seconds to measure time, the LTA was using a unit of measurement specifically provided for in the National and Trade Measurement (Units and Standards) Regulations 1989. Lastly I note that the National and Trade Measurements Regulations 1989 only require timing devices to be inspected under Regulation 84, when those devices are used for the provision of services or for trade. Clearly, a watch carried by a law enforcement officer does not fall into this category.

Section 79 of the Land Transport Act 1998 provides that a police officer or authorised officer, in the performance of his/her duty under the Act may use any equipment prescribed by regulations for the enforcement of provisions under this Act. There are no regulations relating to the use of watches. Police officers need not get certificates of verification on their watches before using them in the detection of crimes. Nor do Land Transport Officers need such certificates. If an accused person wishes to challenge the timing recorded by the Authority officer, then he should do so as a matter of evidence, and on the basis of his own timing.

In this case, the witnesses not only timed the emission, they followed the Appellant for 400 metres up the Laucala Bay Road. Clearly the Appellant had no grounds on which he can now challenge the accuracy of PW1’s watch.

As for his submission that the officers did not issue the TIN after the offence was committed, this is contradicted by the evidence of the prosecution witnesses and the TIN itself.

This appeal must fail. It is dismissed.

Nazhat Shameem
JUDGE

At Suva
8th April 2004