State v Tuisolia [2010] FJHC 401; HAC019.2010 (30 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO.: HAC. 019 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

SAKIUSA TUISOLIA & PATRICIA IMRANA JALAL
ACCUSED PERSONS

Hearing: 22nd July, 2010.
Ruling: 30th July, 2010.

Counsel: Prosecution [State] - Ms. Puamau
Accused Persons - Mr. Devanesh Sharma &
Mr Pravesh Sharma

RULING

[1] The Director of Public Prosecutions had filed information on 12/3/2010 against the two accused in respect of 8 counts. The two accused sought a permanent stay in respect of all counts. This court having considered the application for the stay and after hearing the Counsel for both parties, stayed the proceedings in respect of counts No. 1, 2, 3, 5, 6 and 7. Trial in respect of the remaining counts namely Counts No. 4 and No. 8 was to be taken up on 22/7/2010.

[2] On 22/7/2010, Director of Public Prosecutions sought to file an amended information by amalgamating the charge in count No. 1 which was stayed by the ruling of this court dated 19/7/2010, with count No. 4 of the information dated 12/3/2010.

[3] The learned Counsel for the defence took up an objection against the amendment of the information on the basis that the amendment based on amalgamation was bad in Law, and that such amendment will in any event cause embarrassment to the accused. The learned Counsel relied on Sections 214(9) and (10) of the Criminal Procedure Decree 2009.

[4] Further, the Counsel submitted that by the proposed amendment the prosecution attempts to include count No.1, which was permanently stayed by court pursuant to the application for stay by accused.

[5] I have carefully considered the submissions made by learned Counsel for both parties on the issue. I am of the view that the application for amendment of the information has been made in order to include the charge in count No.1, which is already stayed permanently by this court after inquiry. I am further of the view that the prosecution is not entitled to include the charge in an amended information when permanent stay as issued by this court on 19/7/2010 is in force. This, I conclude as an abuse of process. Therefore, I refuse the application for amendment of the information.

[6] The learned Counsel for Defence submitted that count No.4 was in any event bad in Law for the reason that the period within which the prosecution has to be initiated has lapsed under Section 219 of the Criminal Procedure Code Cap. 21. Counsel further submitted that in terms of the judgment in the case of Mohammed Hakim Dean v Reginam [1973] 19FLR 158 at 162, if the daily penalty does not exceed $100, the action has to be instituted within 6 months from the date of the offence. He further submitted that the maximum daily penalty that could be imposed in this case was $4 in terms of Section 16 of the Public Health Regulations Cap.111, and as such the action has to be instituted within 6 months from the date of offence.

[7] Section 219 of the Criminal Procedure Code (Cap. 21);

Except where a longer time is specifically allowed by law, no offence, the maximum punishment for which does not exceed imprisonment for six months... or a fine of one hundred dollars or both, shall be triable by a magistrates' court, unless the charge or complaint relating to it is laid within six months from the time when the matter of such charge or complaint arose.

[8] In count No. 4, the period during which the offence alleged to have been committed continuously, was from 5th day of February 2009 to the 4th day of June 2009. The actions were instituted in the Magistrates' Court against the 1st accused Sakiusa Tuisolia and the 2nd accused Imrana Jalal on 23rd December 2009 and on 31st December 2009 respectively. Therefore proceedings were instituted after a lapse of 6 months from the date of the commission of the alleged offence in respect of both 1st and 2nd accused.

[9] In case of Regina V. Wooster (1959) 123 Can. Crim. Cas. 255, Cullinton JA, citing R v. Penchard 65 Can.C.C. 113 [1936] 1D.L.R. 546 on period of limitation said:

"The Magistrate in my opinion had jurisdiction to hear and determine the matter of the information if any part of the time was within the six months period of limitation. If it then appeared that the offence had taken prior to six months before laying of the information, he should and no doubt would have dismissed the complaint. If, on the other hand, the evidence disclosed an offence within the six months period he should have made a conviction in the form directed by the order of the County Court Judge."

[10] In the above case, a part of the period covered in the charge was within the period of limitation. In the instant case the total period covered in the charge in count No. 4 in respect of the alleged continuing offences had been prior to 6 months before laying of the charge.

[11] The manner in which the penalty should be calculated in continuing offences for the purpose of the limitation mentioned in section 219 of the Criminal Procedure Code, and their categories were discussed in Mohommed Hakim Dean V. Reginam (supra). Continuing offences could be divided into four categories. They are:

(i) A continuing offence for which only a single penalty is laid down;

(ii) A continuing offence which carries a daily penalty;

(iii) An offence in respect of which the original act which is prohibited is a non continuing offence, but subsequent conduct is of a continuing nature e.g. erecting a building to a prohibited height, and thereafter continuing the building at such a height after notice by the relevant authorities; and

(iv) An offence which is intrinsically continuous but only carries a single penalty until the happening of a particular event, after which it carries a daily penalty e.g. where it is expressly provided that the daily penalty applies if the contravention is continued after conviction.

[12] In count No.4, the 1st and the 2nd accused are charged for the offence of operating a restaurant without a restaurant licence, contrary to section 4 (1) and 16 of Public Health (Hotels, Restaurant and Refreshment Bars) (Suva) Regulations. The penal section 16 of the regulation reads:

Any person convicted of an offence under the provisions of these Regulations shall be liable on conviction in the case of a first offence to a fine not exceeding $20, and in the case of a second offence to a fine not exceeding $40, and in the case of a subsequent offence to a fine not exceeding $100 or to imprisonment for a term not exceeding 6 months or to both such fine and imprisonment, and in the case of a continuing offence, to a further fine not exceeding $4 for each day during which the offence continues.

[13] The count No. 4 of the information in this case carries a daily penalty of $4 for the days of continuance of the offence. Therefore the offence in count No 4, which is the subject matter of this case comes within the 2nd category mentioned above as described in the case of Mohommed Hakim Dean .

[14] Referring to the limitation period in terms of section section 209 of the Criminal Procedure Code (Fiji), (which is similar to the present section 219), Grant, Ag. C.J. in case of Mohommed Hakim Dean V. Reginam (supra) said;

'I am of the view that an offence which carries a daily penalty is a continuing offence which occurs from day to day...., and that it is the maximum daily penalty which may be imposed that determines whether or not the offence falls within the ambit of Section 209 of the Criminal Procedure Code. If the daily penalty does not exceed $100 then the continuing offence is caught by section 209 of the Criminal Procedure Code to the extent that the days charged must be limited to the period of six months from the laying of the charge.....'

[15] In the instant case, the maximum daily penalty, which is prescribed in section 16 of the Public Health (Hotels, Refreshment and Bars) Regulations is, a fine not exceeding $4 for each day during which the offence continues, which is less than $100 as mentioned in section 219 of the Criminal Procedure Code. The charges were laid against the 1st and 2nd accused after a lapse of 6 months as mentioned above. Therefore, count No. 4 is caught within the limitation prescribed in the said section 219 of the Criminal Procedure Code, and is clearly bad in law as claimed by the 1st and 2nd accused, which cannot be cured. Hence, I make order that the trial cannot proceed in respect of count No. 4 against the 1st and the 2nd accused. I therefore discharge the 1st and the 2nd accused from proceedings in respect of count No. 4.

[17] Prosecution may proceed on the remaining count No. 8 against the 1st accused. The prosecution may proceed with the remaining count No 8 againstthe 1st accused.

Priyantha Fernando
Puisne Judge

At Suva
30/072010