Balaggan v State [2011] FJHC 376; HAM067.2011 (8 July 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CR. MISC. NO. HAM 067 OF 2011

BETWEEN:

MUSKAN BALAGGAN
f/n Rajinder Kumar
Applicant

AND

STATE
Respondent

Mr. R. Chaudhry (26th) and Mr. R. Gordon (4th) for the Applicant
Ms L. Vateitei for the Respondent

Date of Hearing : 26 May 2011and 4 July 2011
Date of Ruling : 08 July 2011

RULING
[Drug Trafficking – Jurisdiction]
_______________________________________________

[1] The applicant herein is facing one charge of being in possession of dangerous drugs, contrary to section 5(a) of the Illicit Drugs Control Act 2004, in this Court (HAC 49 of 2011). It is alleged that she with another was in custody and control of a suitcase of clothing soaked in a solution of cocaine.

[2] The applicant was first brought before the Magistrates Court in Nadi on the 30th January 2011 when her rights to counsel were explained and the case was adjourned until 11 February 2011 when she was represented by the counsel now appearing. A bail application was made and granted and the Magistrate thereupon transferred the case to this Court, pursuant to section 191 of the Criminal Procedure Decree 2009.

[3] By way of notice of motion and accompanying affidavit, the applicant seeks an order quashing the transfer order made below on the basis that she was not given an opportunity to be heard on the matter; and secondly she seeks an order from this Court that the matter be transferred back to the Magistrate in Nadi "to determine the issue of transfer". In her accompanying affidavit, the applicant goes further by seeking to have the matter heard in the Magistrates Court.

[4] Transfers to the High Court are made by a Magistrate pursuant to section 191 of the Criminal Procedure Decree 2009. The section reads:

"A magistrate may transfer any charges or proceedings to the High Court."

It can be noted that the power to transfer is a discretionary power and does not depend on the consent or application by any particular party. It is a power to be exercised on the Court's own motion.

[5] It is possible, indeed probable, that Counsel for the applicant is confusing this procedural route with a transfer under section 188(2) of the Code which does give parties the right to be heard. He was recently involved in such an application before Goundar J. in State v Mahendra Pal Chaudhry – HAM 058 of 2011S.

[6] The penalty for a conviction under section 5(A) of the Illicit Drugs Act is life imprisonment, or a $1,000,000 fine, or both. Such a serious offence then is totally without the ambit of the Magistrates Court and it is therefore no surprise that the matter was transferred to a Court with the powers to sentence such an offence should there be a conviction.

[7] The transcript of hearing extracted from the Nadi Magistrates Court record reveals that when the transfer order was made below, the applicant's counsel being present said nothing, let alone objected to the transfer. That counsel is the same counsel filing this notice of motion.

[8] Section 4(2) of the Criminal Procedure Decree 2009 allows a judge of the High Court to invest a magistrate with jurisdiction to try any offence triable in the High Court. This provision is again a discretionary one, on the motion of the judge and it is not to be invoked by application by either the prosecution of the accused. It could be suggested to the Court that a particular case might be suitable to be "sent down", but ultimately if is for the Court to decide whether to use that procedural path or not.

[9] Mr. Gordon before me on the 4th July last concedes that the transfer to this Court was properly within the powers of the Magistrate. He urges this Court however to have the case remitted back to the Magistrates Court where his client's "lesser role and particular circumstances" may be reflected in a lesser sentence than she would receive in this Court.

[10] The charge under the Illicit Drugs Act is not stated to be triable on indictment or summarily. Such a situation was addressed by Goundar J. in Wakeham – HAC 001/2010 (Lbs) where it was held that where an offence is not specified to be indictable or summary, it can be tried in the Magistrates' Court. This process is provided for procedurally in section 5(2) of the Criminal Procedure Decree, 2009.

[11] Mr. Gordon's submission that a lesser sentence may prevail in the lower court is unfortunately misconceived. Should a conviction ensue, then it is most probable that a Magistrate would send the matter back to this Court for sentence.

[12] There is no doubt that this Court is able to exercise its discretion to remit this case back to the Magistrates Court, pursuant to section 4(2) of the Criminal Procedure Decree. That path is a procedure now used regularly with the lesser robbery and burglary offences which a Magistrate is bound to transfer to the High Court. This is a procedural path only to be exercised with the Judge's discretion, and should a case be considered serious and in the public interest, then that discretion will not be exercised.

[13] This is a case of utmost gravity. If proved, the sentence is likely to be a long term of imprisonment possibly beyond that which a Magistrate could pass. Should this case be remitted to the Magistrate, then he would in all likelihood send it back up for sentence should a conviction be entered. There is no point in subjecting this accused to a "yoyo" change of Court venue. It is also a matter of public interest that persons accused of trafficking drugs in such a novel fashion through our principal airport should be tried in the High Court.

[14] The transfer order made by the Magistrate is a valid order and it will not be quashed or set aside.

[15] The case is now before this Court and a provisional hearing date has been fixed in September. There is no reason whatsoever why it should or would be sent back for trial in the Magistracy.

[16] The applications are refused.

Paul K. Madigan
JUDGE
At Lautoka
08 July 2011