Chand v Price and Incomes Board [2010] FJHC 303; HAA005.2010 (13 August 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. HAA 5 OF 2010

BETWEEN:

PRAKASH CHAND S/O KHEM RAJ
T/A ELITE REFRESHCO
APPELLANT

AND:

PRICE & INCOMES BOARD
RESPONDENT

Counsel: Mr. A. Sen - for the Appellant
Mr. L. Sovau - for the Respondent

Date of Hearing: 12 August 2010
Date of Judgment: 13 August 2010

JUDGMENT

1. The appellant above named was originally charged before the Magistrate of Labasa on the following ground.

CHARGE

(Private Complaint)

(a) Prakash Chand f/n Khen Raj T/A Elite Refreshco

(b) of (b) Labasa Town

is charged on the complaint of Sakiusa Nasoiri, Inspector of Prices and Incomes Board, Labasa with the following offence:-

Statement of Offence [c]

Having for Sale by Retail Fixed Price Control Goods at Excessive Price: Contrary to Paragraph 3(4) of Counter Inflation (Price Control) (Food Stuff) NO 7 Order 2009 (Amendment) (NO 3) 2009 and Section 21(a), 30 (1) and 32 of Counter Inflation Act Cap 73.

Particulars of Offence [b]

Magistrate

Prakash Chand f/n Khem Raj T/A Elite Refreshco of Labasa Town did on the 16th day of November 2009 at Labasa Town in the Northern Division being a trader having for sale by way of Retail 5 packets of 375 gram FMF Breakfast Crackers Biscuits at $1.50 instead of $1.44 per packet allowed.

Date: 30/11/09

2. The Magistrate has imposed FJD 600 + 33.75 cost and indefault 3 months imprisonment.

3. The appellant has preferred an appeal on the following grounds.

1. The Learned Magistrate erred in Law and in fact in imposing a sentence of more than $100 in absence of the accused.
   
2. The Learned Magistrate erred in Law in imposing a sentence which is ultra virus.
   
3. The sentence imposed by the Learned Magistrate is harsh and excessive and wrong in principle taking into consideration the nature of offence committed and the accused being the first offender.
   

4. When the Counsel made Submission at the hearing of the appeal submitted an additional ground of appeal namely that the Learned Magistrate has not convicted the appellant but proceeded to impose a fine therefore the sentencing is bad in Law.

5. The Counsel for the appellant requested the Court to consider the ground of appeal, primarily and if he fails, the other grounds can be considered. Considering the nature of the ground of appeal, I too agree that this should be considered initially before the other grounds are considered.

6. I perused the proceedings of the Magistrate court record, it states as follows:

"7/12/09

Prosecution - Mr. Sakiusa

Accused - Not Present

Plead guilty in writing as for accused pleaded guilty, I impose a fine of FJD 600 + 33.75 and in default 3 months imprisonment".

7. On perusing the entire proceedings, I make following observations.

1. Accused was not present.
   
2. The accused was not represented.
   

100. The Magistrate has not found the accused guilty.
     

4. Conviction was not entered.
   
5. Accused person was not given an opportunity to plea in mitigation.
   
6. Sentencing is arbitrary.
   
7. Reasons are not given for the sentence.
   

8. On perusing the court record, I find many irregularities in the file but I will confine myself to the above issues only.

9. Now I consider the relevant Law, Section 215 of the Criminal Procedure Code states as follows:

"215. The court having heard both the prosecutor and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or make an order under the provisions of section 44 of the Penal Code". (emphasis added)

10. It will be useful if we consider Section 206 of the Procedure Code.

"206-(1) The substance of the charge or complaint shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge.

(2) If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him (emphasis added) and pass sentence upon or make an order against him, unless there shall appear to it sufficient cause to the contrary".

11. I inquired from the State Counsel whether the Magistrate had convicted the accused appellant the answer was negative.

12. On mere reading of the Sections of the Procedure Code, if a conviction is not directly or indirectly entered it will be a patent error which cannot be cured in appeal.

13. In David Kio vs Reginam 13 FLR 21. The Court of Appeal decided as follows:

"In our view, however, an inferential conviction is not a sufficient compliance with the law. The judgment must state unequivocally that the accused person is convicted, or at least that he is found guilty of the offences concerned. Otherwise there arises the situation referred to by the Lord Chief Justice in Joseph v. R [1948] A.C. 215 at p.220".

14. In Siru Luluakalo v R (1962) 8 FLR 12 discuss the question of what constitutes a conviction.

"In the essence of the matter is that there should be a judgment of the Court pronouncing the accused person guilty, and when that has been done the accused has properly been convicted, whether or not that precise word is used in the judgment."

15. In the case of Jean Charles Confiance v. R. [1960] E.A. 567, the Court of Appeal for East Africa had occasion to consider points arising from very similar sections of the Seychelles Criminal Procedure Code, the question being whether certain deficiencies in a judgment were merely curable irregularities or were fatal. In the course of a detailed discussion of the factors involved Gould Ag. V.P., delivering the judgment of the court, said, at p.571:

"In our opinion the sections of the various codes now under consideration are intended to lay down what shall be incorporated into a judgment in a criminal case. But it follows from many decisions of this court, some of which are referred to above, that the interpretation placed on the sections is such that non-compliance with at least some of the requirements of the sections is to be regarded as mere irregularity. As, however, it is axiomatic that there must be a judgment in a criminal trial, it also follows that certain requirements must be regarded as basic, as non-compliance with them would result in there being no judgment at all." and at p.572.

""Having regard to the use of the word in English criminal law and to the sections of the code now being considered we are of opinion that, in a case where a court has decided that an accused person is guilty, the basic elements of the judgment are the conviction and sentence."

Applying these principles to the present case I find that the absence of a conviction is a basic defect and one which is not curable by this Court.

16. I consider State vs Nakautoga (1998) FJHC 21 HAA 0130d.97S (26 February 1998) Justice Pain states as follows.

"The word "Conviction" has been considered in many cases in many jurisdictions. In England, the leading authority is S v Recorder of Manchester & Ors (1971) A.C.48 H.L. In Fiji it has been considered by the Court of Appeal in Siru Luluakola vs. R 8 F.L.R 12, David Kio v R 13 F.L.R and page 21 Babu Ram v R (Criminal Appeal No. 36 of 1972) and by the High Court in Waqavesi Bogitini v R. 29 Fiji Law Reports 134 and Epeli Delai v the State (Criminal Appeal No. 22 of 1995). A relevant New Zealand authority is R v McLead [1988] NZCA 102; (1988) 2 NZLR 65. It is clear from these cases that the word "Conviction" can have one of two meanings. That is either the finding of guilt or acceptance of a plea of guilty or the final judicial determination of the case. In S v Recorder of Manchester (supra) Lord Upjohn explained the distinction (at page 506) as

"The Primary meaning of the word "Conviction" denotes the judicial determination of the case; it is a judgment which involves two matters, a finding of guilt or the acceptance of a plea of guilty followed by sentence.

But the word "Conviction" is used also in a Secondary sense that is, to express a verdict of guilty or acceptance of a plea of guilty before the adjudication which is only completed by sentence."

17. In Epeli Delai v. State Crim. App HAA 0022 of 1995 Justice Pain came to a conclusion. In that case the appellant had pleaded guilty in the Magistrate's Court to a charge of act with intent to cause grievous harm. He was sentenced to two years imprisonment. He appealed to the High Court against severity of sentence, but on appeal, also submitted that the sentence was invalid because no formal conviction had been entered.

18. Now I consider the present case. When the case was called the accused appellant was not present and unrepresented, on the same day the Magistrate has imposed a sentence. Considering the law and the decided case this unacceptable. The Learned Magistrate should have given an opportunity to the accused appellant to inform the court whether his plea of guilt is unequivocal. Further he should have been given an opportunity to submit his plea in mitigation. Both fundamental things are not done.

19. Considering the Criminal Procedure Code, I am of the view that the Magistrate should convict the person in uncertain terms. If not the word conviction is not written, it should be explained by other means that the Magistrate was convinced with the plea and he finds him guilty. If that is not done, it will be patent error in Law.

20. In the light of above factors, I am convinced with the submission of the counsel for the appellant that the accused appellant was not properly convicted, therefore anything flaws from a nullity ab initio has no value.

21. Since there is no conviction the sentence is void therefore I acquit the accused appellant.

22. Appeal allowed.

S. Thurairaja
JUDGE

Solicitors: - Mr. A Sen for the Appellant
- Officer of the Director of Public Prosecutions for the State