B.R. Kwon v Suva City Council (No 1) [2000] FJLawRp 57; [2000] 2 FLR 63 (24 October 2000)

[2000] 2 FLR 63

IN THE HIGH COURT OF FIJI

B.R. KWON

v

SUVA CITY COUNCIL (No. 1)

High Court
Criminal Appellate Jurisdiction
Shameem J
24 October, 2000
HAA 081/2000 (on appeal from Suva City Council Case 16/00)

Service - Summons not personally served - whether effective service on Solicitor - Formal proof evidence required to secure conviction - application of Constitution despite purported abrogation - Criminal Procedure Code ss82-85, 88(1), (4), 89; Town Planning Act (Cap. 139) ss 27(1)(b), 27(5)

The appellant appealed against his conviction and sentence for a breach of sections 27(1)(b) and 27(5) of the Town Planning Act Cap. 139. The grounds of appeal were threefold. Firstly, that the summons was served on a salesman of the Company owned by the appellant rather than him personally. Secondly, that there was insufficient evidence to secure a conviction during the formal proof of the case. Thirdly, that the Magistrate failed to give the appellant a time limit to pay the fine imposed.

HELD - (1) The summons should have been served personally because the appellant is being charged personally. Service on a servant would only have been acceptable if it had been served at his place of residence;

(2) Appearance by counsel presupposes effective service and cures any defect of service if the summons had been served on the appellant person;

(3) The Constitution applied to criminal procedures despite purported abrogation of it;

(4) Evidence led at formal proof was sufficient to prove elements of the offence and there was no reason why the magistrate could not convict and proceed to sentence.

(5) An error of the magistrate in not imposing a time limit within which to pay a fine is curable by prescribing a time of one month in default of which the term of imprisonment may be imposed.

Sentence is varied to $400 fine to be paid within 28 days, in default 4 months imprisonment plus costs of $50.00 to be paid by the Appellant within 28 days, in default 1 month imprisonment. The Appellant is ordered to cease operations within 28 days.

Cases referred to in judgment
appl Ved Prakash v NLTB HBC 409D/96
appl Mitchell & Others v Director of Public Prosecutions & Another [1986] LRC (Const.) 35

Tamara Jayatilleke for appellant
Rajesh Gopal for respondent

24 October, 2000.

JUDGMENT

Shameem, J.

This is an appeal against conviction and sentence. On 8^th August 2000, the Appellant was convicted of the following offence:

Statement of Offence

ACT IN CONTRAVENTION OF TOWN PLANNING SCHEME: Contrary to sections 27(1)(b) and 27(5) (as amended by Act No. 8/97) of the Town Planning Act, Cap 139.

Particulars of Offence

B R KWON at Suva in the Central Division, did on the 14th day of October 1999 having been served with a notice by the Suva City Council to stop using the land on Lot 5, DP 2805, CT 11778, 406 Fletcher Road, Vatuwaqa, Suva situated within a Commercial AB zone in such a manner that contravenes the Town Planning Scheme, namely using the said land for Industrial (motor repairs) purposes failed to comply with such notice.

The Appellant was sentenced, after the prosecution "formally proved" the offence, to $400.00, and 4 months imprisonment in default of payment. He was also ordered to pay costs of $50 (in default 1 month imprisonment) and was ordered to cease contravention of the town planning scheme within 28 days.

The Appellant now appeals against conviction and sentence on the following grounds:

"(1) The Learned Magistrate erred in law and in fact in convicting your Petitioner by not taking into account that the summons were not served personally on the Petitioner.

(2) The Learned Magistrate erred in accepting prosecution evidence without proof.

(3) The Learned Magistrate erred in not giving a time limit to pay the fine and the legal costs."

Counsel for the Appellant, at the hearing of the appeal, submitted that service of the summons in respect of the charge was never served on the Appellant, the service on an employee (a salesman) of B.R. Kwon & Co. was defective, and that the ensuing proceedings were therefore a nullity. She said that it is not clear who instructed Mr T. Bukarau to appear on the first day of the hearing, and that since Mr Bukarau is presently remanded in custody, it was difficult to obtain clarification in that regard.

She further said that the evidence presented at the formal proof hearing was inadequate and that the conviction was unsafe. Finally, she submitted that the failure to impose a time limit for the payment of fine, rendered the sentence wrong in law.

Counsel for the Respondent conceded that service was not on the Appellant, but said that it was served on his employee on the business premises. He said that any defect in service was cured by the appearance of counsel on 11th May 2000, in response to the charge. He said that the facts disclosed during formal proof were more than sufficient to warrant conviction. He said that the sentence could be clarified by the imposition of a reasonable time to pay.

Ground 1 - Service

It is not disputed that the Summons, issued under sections 82 and 89 of the Criminal Procedure Code was not served on the Appellant, Mr B.R. Kwon. Instead it was served on 7th April 2000, on one Sudhakar Goundar, a salesman of B.R. Kwon of 406 Fletcher Road, Nabua.

Section 88(1) of the Criminal Procedure Code provides:

"Whenever a magistrate issues a summons in respect of any offence other than a felony he may, if he sees reason to do so, and shall when the offence with which the accused is charged is punishable only by fine and/or imprisonment not exceeding three months or by disqualification from holding or obtaining a driving licence, dispense with the personal attendance of the accused, provided that he pleads guilty in writing or appears by a barrister and solicitor."

There are several conditions precedent to the operation of section 88(1). Firstly that summons has been issued, secondly that the offence is not a felony, and thirdly that the accused has pleaded guilty in writing or that he/she is represented by counsel. In cases punishable only by fine and/or imprisonment for up to three months, personal attendance must be dispensed with provided there is a plea of guilty in writing or representation by counsel.

An offence under section 27(1) of the Town Planning Act (as amended by Act No. 8/97) is punishable with a fine of up to $1000. As such section 88(1) of the Criminal Procedure Code allowed the Magistrate to proceed to dispense with personal attendance as long as counsel appeared for the accused.

The presence of counsel presupposes effective service on the accused. Counsel on the record said he appeared for the Appellant and entered a plea of not guilty. There is no ambiguity on the record, in this regard. Furthermore, although counsel for the Appellant now says (from the Bar table) that the Appellant never instructed Mr Bukarau and does not know why he was in court, I cannot accept such assertions which have not been put before the court properly in an affidavit form.

On the record therefore, the Appellant was represented, and the proceedings could proceed in his absence.

The remaining issue is whether the failure to serve the Appellant was later cured by the appearance of counsel on behalf of the Appellant, when the case was called.

There is no doubt that service was defective. Section 82 of the Criminal Procedure Code provides:

"Every summons shall, if practicable, be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons."

Section 83 provides:

"Where the person summoned, cannot by the exercise of due diligence be found, the summons may be served by leaving one of the duplicates for him with some adult member of his family or with his servant residing with him or with his employer."

Section 84 provides:

"If the service in the manner provided by sections 82 and 83 cannot by the exercise of due diligence be effected, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides, and thereupon the summons shall be deemed to have been duly served."

Finally, the provision for service on a company is different. Section 85(1) provides:

"Subject to the provisions of any other written law, service of a summons on an incorporated company or other body corporate may be effected either by serving it personally on any officer of the corporation or by sending it by registered letter addressed to the registered or other principal office of the corporation in Fiji.'

Service on a company may therefore be effectively made by service on an officer of the company or by registered post. It is possible therefore, that the bailiff thought that service on a salesman of the company, satisfied section 85. However, the Appellant is charged personally and not as a company. On that basis, service on a servant would only have been acceptable if it had been served at his place of residence.

Service therefore was technically defective. The purpose of the service requirements is to ensure that accused persons are given notice of the time, and details of the hearing of the charge against them. It is a requirement of the common law and constitutional right not to be tried in one's absence.

Section 28(1)(h) of the Constitution (1997) provides:

"Every person charged with an offence has the rights ... not to have the trial take place in his or her absence unless:

(i) the court is satisfied that the person has been served with a summons or other process requiring his or her attendance and has chosen not to attend;"

I am aware that there was a purported abrogation of the Constitution on May 29th 2000 by the Military. However, such abrogation is now subject to legal challenge in the High Court, and I find that unless proven otherwise, the Constitution continues to apply to all criminal proceedings. (see Madraiwiwi J in Ved Prakash v. NLTB Civil Action HBC 409D/96, also Haynes P in Mitchell v. DPP (1986) LRC Const. P.66).

I find therefore that the purpose of sections 81-85 of the Criminal Procedure Code is to protect this right to be present during the trial. I also find that when counsel appeared for the Appellant, and entered a plea of "Not Guilty" on his behalf, that this constitutional purpose was satisfied. Although counsel for the Appellant says that Mr Bukarau was never instructed, she has not presented any evidence to that effect. In the absence of such evidence, the court record must be accepted. The record shows that Mr Bukarau appeared on the two occasions prior to the hearing date, for the Appellant. It shows that Mr Bukarau was told of the adjourned date. In the circumstances I find that the Appellant through his counsel chose not to attend the hearing and that section 28(1)(h) of the Constitution, and section 88 of the Criminal Procedure Code, were satisfied in spirit and form .This ground fails.

Ground 2

The second ground states that the evidence led on formal proof was insufficient to satisfy the court that the offence had been committed. The court record is sketchy on the evidence led and accepted. It reads as follows:

"Formal Proof - Josevata Koroi Senior Town Planning Assistance Suva City Council

confirms contents of Affidavit - Ex 1

Illegal works still continuing prohibited under Town Planning Scheme

Sentenced as on evidence sheet."

The Formal Proof "Evidence Sheet" discloses the following facts:

"On the above date and location an inspection was carried out by Joe Koroi and Stir Town Planning Assistant of the Suva City Council and this revealed that the Defendant was carrying out an industrial (motor repairs) works in a commercial B zone which is prohibited under the Town Planning Scheme.

A notice was served to the Defendant on 13/9/99 to stop all illegal works by the 13^th of October 1999. The notice was not complied with. A prohibition notice was served on 11/2/00 and this was also neglected."

Section 27(1)(b) of the Town Planning Act Cap 139 provides:

"Subject to the provisions of this section the local authority may at any time - ...(b) where any building or land is being used in such a manner as to contravene any provision of the scheme, prohibit it from being so used;"

Section 27(2) provides that before taking any action under the section, the local authority shall serve a notice on the owner and on the occupier of the building or land, and on any other person affected, specifying the action it intends to take, and the grounds for such action.

Section 27(3) provides that 3 months notice shall be given to owner/occupier/ interested person before the proposed action is taken. Clearly this provision allows time to remedy the default. One month from service of notice is given to the owner/occupier before action is taken by the local authority. This period can be extended if the owner/occupier makes representations to the local authority. Section 27(5) creates the offence of using "any building or land in a manner prohibited under the provisions of this section."

The facts given in evidence before the Learned Magistrate, show the nature of the breach of section 27(1)(b), and the service of a notice on 13^th September 1999 to stop all works under section 27(2). A prohibition notice was served on 11th February 2000. On non-compliance, the Appellant was charged on 16^th March 2000, more than one month after service of the prohibition notice.

It appears therefore that the evidence on formal proof satisfied all ingredients of the offence under section 27 of the Act. Although the Town Planning Scheme was not tendered, it was clear that the prohibition under the scheme was to use a commercial B zone land for industrial works.

In the circumstances I see no reason why the Magistrate should not have convicted as charged and proceeded to sentence.

Counsel now says that the owner could also have been charged under section 27. That may well be the case. However, the occupier is also liable to prosecution under section 27(5) and indeed, any person who uses the building or land concerned. This does not invalidate the charge against the Appellant.

I consider therefore that the evidence on formal proof was sufficient to lead to a conviction. This ground is dismissed.

Ground 3

There is no doubt that the Magistrate failed to give the Appellant a time limit to pay the fine imposed.

Section 88(4) of the Penal Code provides that a prescribed time must be given for payment of fine in the case of a person in respect of whom personal attendance has been dispensed. This then allows the court to issue summons to the Defendant to show cause for non-payment when the prescribed time has lapsed.

However this error may now be cured by prescribing a time of one month in default of which the term of imprisonment may be imposed after the procedure in section 88(4) is complied with.

The appeal against sentence therefore succeeds to the extent that sentence is now as follows: $400 fine to be paid within 28 days of the date of this judgment, in default 4 months imprisonment. Legal costs of $50.00 to be paid by the Appellant within 28 days in default 1 month imprisonment. The Appellant must cease operations within 28 days.

Appeal against sentence granted.

Mereseini R Vuniwaqa and Marie Chan