Hasrath v Police [1943] FJLawRp 19; [1875-1946] 3 FLR 340 (15 July 1943)

[1875-1946] 3 FLR 340

SUPREME COURT OF FIJI

Appellate Jurisdiction

HASRATH

ats

POLICE

Corrie, C.J.

July 15, 1943

Distillation Ordinance 1877 — s. 22^[1] — interpretation—whether utensils for distilling ejusdem generic with a stillhead or worm — penalty originally fine only — substituted fine and imprisonment by Defence (Amendment) Regulation 1942 — Provision of s. 34 of Distillation Ordinance that "all penalties and forfeitures under this Ordinance shall be recovered before the District Commissioner" — whether Magistrate had jurisdiction to impose imprisonment.

Appellant was convicted in the Magistrates Court, Lautoka, on a charge of having upon his premises utensils for distilling contrary to section 22 of the Distillation Ordinance, 1877. The utensils in evidence comprised three drums, a bucket and a bowl. After conviction and before sentence the District Commisioner put a question to the Superintendent of Police who thereupon stated that there were soldiers in the locality and Appellant was sentenced to a fine and imprisonment.

HELD – (1) The words "or other utensils for distilling whatsoever" are not to be construed ejusdem generis with the words "any unlicensed still or any stillhead or worm."

(2) In determining the jurisdiction of a District Commissioner under the Distillation Ordinance the Court must look to that Ordinance (and not solely to the Summary Jurisdiction Procedure Ordinance.)

(3) It is proper for the Magistrate to obtain information relevant to sentence from the Police after conviction and before passing sentence.

[EDITORIAL NOTE. - Defence (Amendment) (No. 66) Regulations, 1942 are no longer in force but s. 22 of the Distillation Ordinance (Cap. 193) has been amended to provide for a fine and imprisonment. Furthermore s. 34 of the original Ordinance, here held to limit the jurisdiction of the District Commissioner to punishment by fine, is no longer in force - vide Cap. 193 s. 31 for jurisdiction of a Magistrate as to forfeiture.

The general issue as to whether a Magistrate's jurisdiction is to be sought in the Ordinance creating the offence and providing the punishment is subject to the following observations:-

(a) By virtue of s. 71 of the Magistrates Courts Ordinance, Cap. 3 where in any existing Ordinance etc. the term "District Commissioner" or "District Commissioner's Court" is used in relation to a Court or judicial proceeding there shall be substitute for such term the term "Magistrate" or "Magistrate's Court" as the case may be. This section does not appear in Cap. 3 but has been given effect to in the revision of the laws.

(b) The Summary Jurisdiction Procedure Ordinance 1876 is repealed. S. 4 was as follows:-

"Wherever in any Ordinance regulation or rule heretofore passed or made or hereafter to be passed or made it is enacted that any conviction or order may be made or enforced or any fine penalty forfeiture or term of imprisonment imposed or inflicted the proceeding there shall unless it be otherwise specially provided or except in the case of an indictable offence be taken and has in a summary manner under this Ordinance."

The corresponding legislation as to the jurisdiction of Magistrates is in the Criminal Procedure Code (Cap. 4) s. 4-9 (Revised Edition Vol. 1 page 65).]

Cases referred to: -

(1) Hakim Khan ats. Police [1943] 3 Fiji LR
(2) R. v. Campbell [1911] 6 Cr. Ap. 131; 27 TLR 256; 14 Dig. 332.

APPEAL AGAINST CONVICTION and sentence. The facts appear from the judgment.

P. Rice for the Appellant.
A. G. Forbes for the Respondent.

Corrie, C.J. – This is an Appeal against a judgment given on 16th December 1942 in the Magistrate's Court, Lautoka, whereby the Appellant Hasrath was found guilty upon an Information charging him with, on 8th October, 1942, having upon his promises utensils for distilling, contrary to s. 22 of the Distillation Ordinance 1877.

The first and second grounds of appeal are as follows:—

"1. That there was no proof that the said utensils were for the purpose of or were used for distilling and that the only evidence before the Court was that the said utensils could be built up and put together in such a way that they could be used for distilling.

2. That the words 'or other utensil for distilling whatsoever in section 22 of the Distillation Ordinance 1877 should be construed ejusdent generis with the words 'any unlicensed still or any stillhead or worm' and that the said utensils consisting of three drums a bucket and a bowl as found do not constitute a still nor are they ejusdein generis with a stillhead or worm."

I hold that there was evidence before the Magistrate upon which he could find that the utensils in respect of which the Appellant was charged were utensils for distilling within the meaning of the section.

The Appellant further argues that the sentence imposed was illegal and excessive.

S. 22 provides that a person found guilty thereunder should upon conviction "be liable to a penalty not exceeding £200 nor less than £50, or to imprisonment with or without hard labour not exceeding six months nor less than one month." By s. 2 of the Defence (Amendment) (No. 66) Regulations 1942 it was provided that there should be substituted the words "be liable to a fine not exceeding £200 or to imprisonment with or without hard labour for a period not exceeding twelve months or to both such fine and imprisonment."

The sentence imposed upon the Appellant was "fined £25 distress or two months I.H.L. and also to six months I.H.L. sentences to be cumulative." The Appellant's contention is that, having regard to the wording of s. 22 and of s.34, the Magistrate had no jurisdiction to impose a sentence of imprisonment. This argument is based upon the fact that in s. 22, as originally enacted, the term "penalty" is used as equivalent to the term "fine" and exclusive of imprisonment, while in s. 34 the jurisdiction conferred upon a District Commissioner, which is the jurisdiction at present exercised by a Magistrate, is in terms, "all penalties and forfeitures under this Ordinance shall be recovered before the District Commissioner of the District where the seizure or other circumstances supporting such seizure or forfeiture shall occur."

The reply of the prosecution is that a District Commissioner has full jurisdiction under the Ordinance by virtue of s. 4 of the Summary jurisdiction Procedure Ordinance^[2] Rep 1876 and that s. 34 of the Distillation Ordinance merely determines as between District Commissioners which shall have jurisdiction.

This Court, however, has already held in the case of Hakim Khan that the question whether a charge is triable upon Information or summarily cannot be determined solely by reference to s. 4 of the Summary Jurisdiction Procedure Ordinance and it follows that in determining the jurisdiction of a District Commissioner under the Distillation Ordinance the Court must look to the terms of that Ordinance.

The provisions of s. 34 that "all penalties and forfeitures under this Ordinance shall be recovered before the District Commissioner," cannot be held to authorise the passing of a sentence of imprisonment. The Court therefore holds that on this ground the Appeal succeeds.

The Appellant has also taken objection to the fact that after he was found guilty but before sentence, the Superintendent of Police stated, in reply to a question by the Magistrate, that there were soldiers in the locality.

This, however, was a perfectly proper course for the Magistrate and the Superintendent to take, in accordance with the judgment of the Court of Criminal Appeal in R. v. Campbell 6 Cr. Ap. 132.

If the Superintendent's statement had been incorrect, the Appellant or his Counsel could have intervened. The sentence imposed in the Magistrate's Court is set aside and the Appellant will pay a fine of £25 or, in default will serve a term of four months' imprisonment with hard labour.

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^[1] Cap. 193.Revised Edition Vol. III page 2260.
^[2] Rep. Vide Editorial Note.