Regina v Sharma [1977] FJSC 155; Criminal Case 77 of 1977 (26 August 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. 77 of 1977

BETWEEN

REGINA
Appellant

AND

SHIU NARAYAN SHARMA
s/o Hari Chand Maharaj
Respondent

Mr. Ikbal Khan, Counsel for the Appellant
Mr. H. C. Sharma, Counsel for the Respondent.

JUDGMENT

The accused a shopkeeper with an off-licence pleaded Not Guilty to selling 32 bottles of beer outside permitted hours.

The beer was delivered at 9.55 P.M. which is many hours outside permitted hours. Under S. 47 of the Liquor Ordinance, Cap. 167, as amended, the hours of sale are 8 A.M. - 6 P.M. and 8 A.M. - 1.00 P.M. on Saturdays.

The offence occurred on 19th September, 1975, a Friday.

It is disturbing that although this offence occurred on 19^th September, 1975 the police did not file a charge until 20/2/76. One is bound to wonder why it took the police several months to bring this charge into the court. It was mentioned 7 times before a hearing was fixed for 11.5.77.

On 11.5.77 the accused changed his plea to one of guilty and he was discharged under S.38 (1) P.C.

The Crown now appeals on the ground that that order was manifestly lenient.

Crown Counsel referred me to R v. Paras Ram, Cr. App. 21/77 in which Stuart J. expressed his view on the use of S.38(1), and with which I respectfully concur. The power under S.38(1) P.C. is to be exercised most sparingly and only after a very careful consideration of all the facts which should be explained in the record.

Mr. Sharma, for the accused said in mitigation that the accused had not sold the beer outside of permitted hours and that this is what he told the police when he was questioned. In outlying the facts the prosecution stated that the accused told the police that he had sold the beer at 5.00 .P.M.

Mr. Sharma said that the beer had been left in the accused's frig. because the purchaser had not frig. of his own and he wanted cold beer for a party. It was then collected at 10 P.M. by the purchaser.

It was the kind of explanation which could readily spring to the lips of any person charged with such an offence.

This explanation was adhered to by Mr. Sharma during the appeal and he said that he doubted whether he should have allowed the accused to plead guilty. He said that the accused was being charged for granting a favour to a customer.

The charge is framed under S.47(3) of the Liquor Ord., Cap. 167, which makes it an offence to sell or supply liquor outside permitted hours.

No definition of "sell" or "sale" appears in the Liquor Ordinance but the Sale of Goods Ordinance Cap. 206 says in S.2(i),

"sale includes a bargain and sale as well as a sale and delivery."

Thus in this case before the sale could be completed there must be a delivery.

By S. 3(3) of the Sale of Goods Ordinance,

"Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale; ......."

In order to understand S. 3(3) one has to appreciate how the property in goods is transferred and this is explained in Part III of that Ordinance. By S.19,

"Where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained."

It would be difficult to think of 32 bottles of beer in an off-licence, which no doubt stores hundreds of bottles, as ascertained goods. Off-licences in Fiji invariably have sold and unrefrigerated bottles of beer stores for sale. It would be unlikely that 32 specific bottles in the frig. Or cooler were at the time of payment wrapped up and placed apart and so appropriated to the purchaser. By Rule V(ii) of S.21 when the vendor delivers unascertained goods to the buyer, (in this case 32 bottles of beer) he is deemed to have appropriated the goods to the contract.

In the instant case 32 bottles of cold beer were handed over to the customer at 9.55 P.M. and the buyer than accepted them. It would not be until they were handed over that the particular bottles of beer became ascertained and it would not be until then that the property in them was transferred. Consequently the sale was not completed at 5.00 P.M. when the money was paid but was simply an executory contract until 9.55 P.M. at which time the sale of the 32 bottles was completed by handing them over.

It follows then that there was nothing ambiguous or erroneous in the plea of guilty tendered by the appellant on the advice of his lawyer, Mr. Sharma. The facts put forward by the accused himself show that although the contract of sale was entered into at 5.00 P.M. it was not completed until 10.00 P.M.

The learned magistrate referred to the offence as trivial and I am not sure what he meant. Did he mean that the Liquor Ordinance created a trivial offence when it forbade the selling of liquor outside of permitted hours? If that is so then there can be no point in establishing any permitted hours if the judiciary are going to say, of their own accord, that such offences are too trivial to merit punishment.

Riding a cycle at night without a light is a petty or summary offence, but whether, when such an offence is actually committed, it is trivial depends upon where the cyclist is riding. If it is on a very minor road scarcely ever used at night by motor vehicles the offence may be regarded as trivial. But if it occurs on a busy main road which is unlighted and unrestricted as to speed it ceases to be trivial and becomes serious although it is nevertheless petty.

Had the beer been sold a mere 10 minutes after permitted hours one may take the view that it was trivial.

No doubt it seems anomalous that restaurant licences permit the sale of intoxications until very late hours and an off-licence is restricted to 6.00 P.M. However, that is what the legislature intends and the Courts should not regard statutory offence as so trivial as to merit no punishment. It is as good as saying that the legislature ought not to have created such an offence. One looks not at the type of offence but at the created such an offence. One looks not at the type of offence but at the circumstances surrounding it in order to determine whether it is trivial.

In the instant case the legislature provides for a fine of $200 and 6 months imprisonment for the offence in question.

In my view the fact that the offence occurred 4 hours outside permitted hours is one feature which ought not to be regarded as trivial. It shows a complete disregard for permitted hours. Likewise 32 bottles of beer can scarcely be regarded as such a negligible quantity as to come within the meaning of trivial.

Although one may hold views to the effect that such laws are not very effective or that they operate unfairly they nevertheless have to be obeyed and enforced. If off-licences could sell intoxicants until 10.00 P.M., one would probably find late night drunks in rural areas in the vicinity of off-licences where there are not the means of controlling or restraining them.

People holding parties which consume large quantities of beer can scarcely rely upon refrigerators if they have them, and they use quantities of ice to cool it. The purchase in the instant case could adopt the same means.

With all respect to the learned magistrate I do not regard this as a trivial offence of its kind.

I set aside the magistrate's order and impose a fine of $30.00 which I have kept on the low side having regard to the fact that the offence is now nearly two years old.

Accused allowed 7 days to pay.

(SGD) J.T. WILLIAMS
JUDGE

LAUTOKA,
26th August, 1977.

Director of Public Prosecutions for the Appellant
Messrs. Patel & Sharma for the Respondent.

Date of Hearing: 11th August, 1977.