Chand v State [2007] FJHC 45; HAM003.2007 (3 August 2007)

IN THE HIGH COURT OF FIJI
AT LABASA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM 3 of 2007

Between:

KAMLESH CHAND
Applicant

And:

THE STATE
Respondent

Hearing: 30th July 2007
Ruling: 3rd August 2007

Counsel: Mr. A. Kohli for Applicant
Ms K. Bavou for State

RULING

This is an application for bail pending appeal. It was heard in open court, on video link from the Labasa High Court. The circumstances of the application are unusual.

The Applicant was charged with being in possession of 9.4 grams of Indian hemp. In his affidavit, sworn on the 25th of July 2007, he says that he believed that a plea of guilty to the charge of possession would result in a fine. He pleaded guilty on the 4th of July 2007. The facts were read out. They were that the police received information that the Applicant, a shopkeeper of Taganikula, had drugs at his home. A search was conducted on the 11th of March 2004 and the drugs were found in a plastic bag, hidden between the timbers in the fireplace at the Applicant’s house. The drugs were analysed at the Koronivia Research Station and found to be cannabis sativa. The Applicant was arrested and charged.

On the 5th of July the learned Magistrate delivered his sentence. In his sentencing remarks he said the following:

"The facts are that the Police received information on 9th March 2004 that the accused was selling marijuana from his shop in Taganikula. A search warrant was obtained and executed on the accused’s house, and Police found dried leaves in a plastic bag. The Government Analyst later discovered that the dried leaves were in fact 9.4 grams of cannabis sativa. The accused admitted that allegation of possession and admitted that he had been selling marijuana for the last two years."

The learned Magistrate then sentenced the Applicant to 5 months imprisonment on the basis that the Applicant was a seller and not a user. In the last paragraph of the sentencing remarks he said –

"The accused is therefore sentenced to 5 months imprisonment. I have considered a suspended sentence for this offence but the reported cases in the High Court show that a suspended sentence might be available for people caught in possession of drugs for personal use, it is not available for those who deal with drugs for profit."

On the same day counsel for the defence and the prosecutor approached the presiding Magistrate in chambers, saying that there had been a mistake. They had agreed to a guilty plea and the prosecutor had agreed to take out of the summary of facts, all reference to the selling of the drugs. However, inadvertently the prosecutor had tendered a written summary which did allege selling. Both parties asked the learned Magistrate to revise his sentence. He did so, declared the plea an equivocal one, and granted bail to the Applicant for the 17th of July.

He then researched the matter and concluded that once sentence had been imposed, he was functus officio and that "any alteration of the sentence can only be done by an appellate court on appeal or review." Re (an infant) v. Recorder of Manchester and others [1971] AC 481. He advised counsel to appeal the matter or to seek review in the High Court.

The Applicant then moved the High Court to grant him bail pending appeal. The grounds of appeal proposed are that the learned Magistrate erred in taking into account the written summary of facts, and erred in relying on those facts when they had not been agreed to by the Applicant.

The State opposes bail, saying that the discrepancy in the facts did not affect the conviction, that in any event the possession of 9.4 grams of Indian hemp could have resulted in a custodial sentence of between 6-9 months because the Applicant was not a young first offender and that there were no exceptional grounds justifying bail.

Bail

The relevant factors in a bail pending appeal application are whether there are any exceptional factors justifying bail, such as an obviously meritorious appeal, or a delay in the hearing of the appeal which would lead to a substantial term being served before the hearing date.

In this case, the appeal is against sentence alone. While a custodial sentence could not have been ruled out, it is clear from the learned Magistrate’s sentencing remarks that he imposed a custodial sentence solely because of the allegation of sale. The Applicant is a 42 year old first offender but a suspended sentence was ruled out because the learned Magistrate found the Applicant to be a seller and not a user. However, the Applicant did not agree to this when the facts were read out. In these circumstances, it appears that there are obvious merits in the appeal. The dispute in the facts do not render the plea equivocal, but it challenges the basis of the sentence imposed.

Secondly, this appeal will now be heard on the 21st of September 2007. By that date the Applicant will have served almost 3 months of his 5 month term. This is a substantial proportion of his sentence and would frustrate his appeal.

In these circumstances bail is granted, on the basis that the Applicant has shown exceptional circumstances. The appeal will be heard on the 21st of September 2007 in Labasa.

Nazhat Shameem
JUDGE

At Suva
3rd August 2007