Chand v Reginam [1971] FJLawRp 17; [1971] 17 FLR 86 (9 July 1971)

[1971] 17 FLR 86

IN THE SUPREME COURT OF FIJI

MAM CHAND alias JOHN MAM CHANDRA

v.

REGINAM

[SUPREME COURT, 1971 (Hammett C.J.), 11th June, 9th July]

Appellate Jurisdiction

Criminal law-Fiji Constitution-prisoner brought to court for continuation of hearing of charge of rape-charge of forgery filed and case called-plea of guilty followed by conviction-no breach of prisoner’s constitutional rights-Fiji Independence Order 1970 (Schedule) (Fiji Constitution) ss.5(1) (2), (3), 10(2) (c)-Penal Code (Cap. 11) s.377(3)-Criminal Procedure Code (Cap. 14) ss.79, 79(3), 80, 80(1); 89, 102, 191, 197(1) (2).

While the appellant was in prison on a charge of rape pending trial police officers on the 9th March, 1971, went to the prison to charge him with forgery of a passport. The appellant having refused to see them the prison authorities would not allow the appellant to be interviewed against his wishes. On the 12th March, 1971, the police filed in the Magistrate's Court a formal written charge of forgery and the case was put into the list for hearing on the morning of that day. The appellant had been brought to court for the adjourned hearing of the rape charge, and when at 11 a.m. the forgery charge was called, he entered the dock, the charge was read and explained to him and he pleaded guilty thereto; he was sentenced to -twelve months' imprisonment. On appeal it was contended that the appellant had not been given adequate time and facilities for the preparation of his defence to the forgery charge contrary to section 10(2) (c) of the Fiji Constitution. It was also contended that the prison officers had no authority to bring the appellant into court to answer the charge of forgery, that the appellant, being in custody, could not be said to be acting voluntarily, and that there had thus been a breach of section 5(1) of the Constitution, which provides that no person shall be deprived of his liberty save as may be authorised by law.

Held: l. It was clear from the record that when the appellant pleaded guilty to the forgery charge he was informing the court in unequivocal terms that he admitted the offence and had no defence. There was no breach of section 10(2) (c) of the Constitution, which only arises if the accused person has, or states he has, a defence i.e. on a plea of not guilty.

2. (a) The forgery charge was properly presented and the attendance of the appellant at the Magistrate's Court to answer it could have been compelled by a production Code: even if there had been an irregularity in this respect section 191 of the Code imposed a mandatory duty on the Court to proceed to deal with a case once the appellant did in fact appear.
   

(b) Section 5 of the Constitution had no application to the facts of the case.

Appeal to the Supreme Court against a conviction and sentence in the Magistrate Court: reported only on the question whether there had been a breach of the appellant's' rights under the Constitution of Fiji.

K. C. Ramrakha for the appellant.
Director of Public Prosecutions for the respondent.

The facts sufficiently appear from the judgment.

HAMMETT C.J.:

The appellant was charged in the Court below with the offence of forging a passport contrary to Section 377(3) of the Penal Code.

The particulars of offence read as follows:

"MAM CHAND alias JOHN MAM CHANDRA s/o Bechan, between 25th day of December, 1970 and 7th January, 1971, at Suva in the Central Division, forged a Colony of Fiji British Passport No. 35293 by removing the photograph of Indar Mal s/o Pitan and inserting his own photograph therein."

He elected summary trial and pleaded guilty. The prosecutor stated the facts which were admitted by the appellant. The learned trial Magistrate thereupon convicted the appellant of the offence charged and heard him before passing sentence of 12 months Imprisonment.
The appellant has appealed against sentence on the following grounds:

1. The conviction is bad in law since the charge against the appellant is unconstitutional and did not give him an opportunity, to prepare himself.

2. The appellant was at the time of the taking of the charge mentally disturbed, and under the effect of drugs.

3. The sentence is harsh and excessive.

From the bar table both Counsel, by consent, outlined the agreed facts that led up to the prosecution in the Court below.

The accused was originally charged in 1970 in the Magistrates Court in Suva with the offence of Rape. Whilst the Preliminary Inquiry was being held the accused was granted bail. He did not appear and surrender his bail when the case was called on 11th January, 1971, and a bench warrant was issued for his arrest. Enquiries revealed that he had gone to Tonga. He had travelled there on the passport of one Indar Mal that he had borrowed and forged by substituting therein his own photograph for that of Indar Mal.

He was returned to Fiji on 19th January, 1971, and that day appeared in Court, in Suva, in custody, on the authority of the bench warrant issued in the Rape case. He was then remanded in custody.

On his arrival at Nausori Airport from Tonga on 19th January, 1971, the accused was met by a Police Officer who wished to interview him in connection with this forged passport. The accused refused to allow the police to interview him.

On 9th March, 1971, whilst the accused was in prison, on remand on the 'Rape' charge, police officers went to Suva Jail to charge the accused with the offence of forging this passport. The accused refused to see them and the Prison Authorities would not allow the accused to be interviewed by the police against his wishes. As a result the Police left the prison without charging the accused with the offence of forgery.

On 12th March, 1971, the Police filed in the Magistrate's Court in Suva the formal written charge of Forgery in this case. On that day the appellant was brought to the Court on remand for the adjourned hearing of the preliminary inquiry into the pending charge of 'Rape.'

The charge of ‘Forgery’ was signed by a Magistrate and put into the list for hearing on the morning of 12th March. When the case was called some time before 11.00 a.m. the accused entered the dock and the charge of Forgery was read and explained to him. Although it was not necessary to do so, he was asked by the presiding Magistrate (Mr. G. Taylor) if he wished to be tried by the Supreme Court or by the Magistrate's Court and he elected Summary trial.
In reply to the charge he pleaded "It is true."

The facts were outlined and these were admitted by the accused. The learned trial Magistrate thereupon convicted him of the offence charged and after hearing him in mitigation imposed a sentence of 12 months Imprisonment.

Later during the afternoon of the same day the adjourned hearing of the preliminary inquiry on the ‘Rape’ charge was continued before another Magistrate, Mr. B.E. Elkan. It is conceded that during that hearing in the afternoon the accused complained that he was not feeling well. The case was then stood down to allow the accused to be medically examined. The doctor then issued a medical certificate, to the effect that he had examined the accused at 3.45 p.m. on 12th March, 1971, in which he said of the accused –

"He is not fit to attend Court now."

It is of no relevance to this appeal that the Magistrate (Mr. Elkan) insisted on continuing the hearing on the afternoon of the 12th March, 1971, despite this medical certificate, because he suspected the accused was feigning illness. I dealt fully with this matter in an order on revision f made later. In that order I ruled that it was irregular for a Magistrate to continue the hearing of criminal proceedings in the face of uncontradicted medical evidence that the accused was unfit to attend Court at the time. I did therefore set aside those proceedings and ordered that they be started de novo before another Magistrate. (See Order on Revision on Supreme Court Criminal Case No. 5 of 1971).

I now turn to the first ground of appeal which reads as follows:

1. The conviction is bad in law since the charge against the appellant is unconstitutional and did not give him an opportunity to prepare himself.

Counsel for the appellant rests his argument in support of this ground in the circumstances of this case on two sections in the Constitution. The first is Section 10(2) (c), the material part of which reads as follows:-

"Every person who is charged with a criminal offence:-

(a)..................................

(b)..................................

(c) shall be given adequate time and facilities for the preparation of his defence.

........................................."

Counsel for the appellant points out that the first time the appellant learned of the charge against him of Forging a Passport was on 12th March, 1971, when he was put up into the dock and the charge was read to him. He was thereupon tried and dealt with. Counsel complains that in these circumstances no time or opportunity was given the appellant to prepare his defence and, it is submitted, his fundamental constitutional rights in this respect were thereby violated.

The record of the proceedings in the Court below, (the accuracy of which was not questioned or challenged in any way at the hearing of the appeal) shows that at the hearing the charge was read and explained to the accused in the normal way. This procedure is prescribed by Section 197 of the Criminal Procedure Code, the material parts of which read as follows:-

"197. (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 and pass sentence upon or make an order against him, unless there shall appear to it sufficient cause to the contrary."

In compliance with the provisions of Section 197(2) the accused's plea of 'Guilty' was recorded in the accused's own words which were –

"It is true."

The prosecutor then outlined the facts in support of the charge in the following terms:-

"Accused borrowed passport from Indar Mal and took out photograph and inserted his own. He then went to Tonga. Immigration there were suspicious and they contacted Fiji. Enquiries made and offence came to light. Accused admitted offence."

When these were put to the accused he admitted them. In his plea in mitigation before sentence was passed the accused said –

"I did it because I didn’t want to be a stowaway. I wanted to pay my passage."

It is abundantly clear from the record that when the appellant pleaded ‘Guilty’ to the charge in the Court below, he was informing the Court in unequivocal terms that he admitted the offence charged and that he had no defence to it. The question of whether an accused is given adequate time and facilities for the preparation of his defence, under Section 10(2) (c) of the Constitution only arises if the accused has or states he has a defence i.e. on a plea of 'Not Guilty.' When an accused pleads 'Guilty' the Court should proceed to convict him and pass sentence without any further adjournment as it is required to do by Section 197(2) of the Criminal Procedure Code "unless there shall appear to it sufficient cause to the contrary."

In my view there was no violation of the accused's rights under Section 10(2) (c) of the Constitution in this case.

The second point relied on in support of the 1st Ground of Appeal rests on Section 5 of the Constitution. In this connection Counsel said he relied upon Section 5(1), the material part of which reads –

"No person shall be deprived of his liberty save as may be authorised by law............"

and on Section 5(2) which reads-

"Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention."

and on Section 5(3) which reads -

Any person who is arrested or detained

(a) for the purpose of bringing him before a court in execution of the order of a court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence,

and who is not released, shall be afforded reasonable facilities to consult a legal representative of his own choice and shall be brought without undue delay before a court."

Counsel submitted that there are only two ways under the laws of Fiji whereby a person may be brought before a court namely-

(1) Under arrest without a warrant where this is authorised, and

(2) On arrest under a warrant or in answer to a summons after the laying of a complaint under Sections 79 and 80 of the Criminal Procedure Code.

He submitted that the Prison Officers who were holding the appellant in custody on the charge of Rape, had no authority to bring the accused into Court to answer the charge of Forgery. He also submitted that there were no means by which the accused could be said to be acting voluntarily because he was in custody. He further submitted that the whole of the proceedings in the Court below were unlawful because there were no lawful means by which the accused could have been compelled to appear to answer this charge and that as a result the Court below had no power to read the charge to the accused or to require him to plead to it. He contended that the only lawful way in which the accused could have been proceeded against in this case, on the charge of Forgery, whilst he was being held in custody on the charge of Rape was by issuing a summons against him.

I have given careful consideration to the points raised by Counsel but I regret I can see no substance in them.

In the first place it is quite clear that the charge in this case, signed by a police officer, was properly presented as is expressly provided for by Section 79(3) of the Criminal Procedure Code, which reads –

"A complaint may be made orally or in writing, but, if made orally, shall be reduced to writing by the magistrate, and, in either case, shall be signed by the complainant and the magistrate:

Provided that where proceedings are instituted by a police or other public officer acting in the course of his duty, a formal charge duly signed by such officer may be presented to the magistrate and shall, for the purposes of this Code, be deemed to be a complaint."

On this the Magistrate was empowered to issue a summons, or if the complaint had been made on oath, a warrant, to compel the attendance of the accused, under the provisions of Section 80(1) which reads as follows:

"80(1) Upon receiving a complaint and having signed the charge in accordance with the provisions of the last preceding section the magistrate may in his discretion issue either a summons or a warrant to compel the attendance of the accused person before a magistrates' court having jurisdiction to inquire into or try the offence alleged to have been committed:

Provided that a warrant shall not be issued in the first instance unless the complaint has been made upon oath either by the complainant or by a witness or witnesses."

In these circumstances the provisions of Section 102 would apply.

These read as follows:-

"1. Where any person for whose appearance or arrest a court is empowered to issue a summons or warrant is confined in any prison, the court may issue an order to, the officer in charge of such prison requiring him to bring such prisoner in proper custody, at a time to be named in the order, before such court.

2. The officer so in charge, on receipt of such order, shall act in accordance therewith, and shall provide for the safe custody of the prisoner during his absence from the prison for the purpose aforesaid."

It is quite clear that the attendance of the appellant at the Court below could have been compelled by the issue of a "Production Warrant" under the provisions of Section 102. There is nothing on the record to show whether or not a production warrant was, in fact, issued. Where the prison authorities know that a person in custody is due to appear before the Court on a certain day, I understand they do as a matter of practice, act as if a formal production warrant had been issued, whether in fact this is so or not.

But quite apart from the issue of a "Production Warrant", Section 191 of the Code under the Part that governs the procedure in trials before Magistrates Courts is relevant. This section reads as follows:-

"If at the time appointed for the hearing of the case both the complainant, by himself or his barrister and solicitor, and the accused person appear before the court which is to hear and determine the charge, or if the complainant appears in the manner aforesaid and the personal attendance of the accused person has been dispensed with under section 89 of this Code, the court shall proceed to hear the case."

It would appear therefore, that even if there had been any irregularity in securing the attendance of the appellant at Court on 12th March, 1971 - which is denied by the Crown - the Code imposed a mandatory duty on the Court below to proceed to deal with the case once the appellant did, in fact, appear.

As I read Section 5 of the Constitution I find it difficult to see that it has any application to the facts of this case. It can hardly be said that the procedure followed by the Court below, when the appellant appeared in the dock in answer to the charge, was a procedure "not authorised by the law." On the contrary, the procedure followed was that which the court was not only authorised but, in fact, required to follow by the express provisions of Section 191 of the Criminal Procedure Code. In my view there are no merits in the first ground of appeal.

The second ground of appeal is that the appellant was mentally disturbed and under the effect of drugs at the time of the trial. There is nothing on the record and no material before me to support this ground of appeal.

It is not in issue that the trial in this case for Forgery took place some time before 11.00 a.m. on 12th March, 1971 and the Crown concedes that at 3.45 p.m. that afternoon in the course of the 'Rape' proceedings, a medical practitioner certified that the appellant was then not fit to attend Court. I refer to the Medical Certificate set out in my Order on Revision in Criminal Case No. 5 of 1971 to which Counsel for both sides have alluded.

In that Certificate the doctor expressly said that the appellant was on 12th March, 1971, under tranquillizers. He added that he had now also added anti-depression drugs and followed this by saying -

“He is not fit to attend Court now.”

This was at 3.45 p.m.

Whether his condition at 3.45 p.m. was as a result of the anti-depression drugs or not is not clear, but there is nothing in this Certificate to indicate that the appellant had been unfit to attend Court 5 or 6 hours earlier.

There was apparently nothing in the appellant's demeanour, speech or conduct before 11.00 a.m. that day at the time he was charged with Forgery in the Court below, which called for comment or for a note to be made on the record as was the case later in the day when he was being dealt with on the Rape charge.

It is possible that the accused's mental poise had been upset by the fact that he had been sentenced to 12 months Imprisonment on the Forgery charge in the morning and that this contributed to his eccentric behaviour in the afternoon when he was before the Court on the Rape charge. These are matters of conjecture, however, and there is nothing before me to indicate that he was unfit to be in Court or to be able to make his defence or that he did not understand the proceedings in the Forgery case on the morning of the 12th March, 1971.

Even at this stage, no evidence has been called - either medical or otherwise - to support this ground of appeal, or to show that the accused did not intend to plead guilty to or that he had any defence to the charge of Forgery.

But quite apart from that, the fact that an appellant is under the effect of drugs which, according to the medical certificate in the Rape case, were "tranquillizers", or is mentally disturbed is not alone sufficient to support an appeal against a conviction. It would only be so if it could be shown that there was some real doubt whether he was of unsound mind so as to be incapable of making his defence or of understanding the proceedings or was then medically unfit to attend Court and as a result the appellant was never really able to put his defence or his case before the court. In other words, it would have to be shown that there was some doubt whether the accused had ever had a fair trial. The case for the appellant in this respect falls far short of this and this was not contended either in the grounds of appeal or in the argument in support of them.

The last ground is against sentence.

There is no doubt that the sentence passed in this case was a severe one. The learned trial Magistrate indicated that he regarded the accused's offence of removing a photo from the passport of another person and substituting his own was a deliberate offence of some gravity. Whilst I accept the contention of Counsel for the appellant that the sentence passed was a severe one, I am not of the view that it was so severe as to be harsh or excessive or to merit interference with it by this Court.

For these reasons the appeal is dismissed.

Appeal dismissed.

Hammett C.J.