Director of Public Prosecutions v March [1977] FJSC 29; Criminal Appeal 033 of 1977 (27 May 1977)

Fiji Islands - Director of Public Prosecutions v March - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.33 OF 1977

BETWEEN:

:

THE DIRECTOR OF PUBLIC PROSECUTIONS
Appellant

AND:

1. EDMOND MARCH
2. SANESH s/o S. Prasad
3. MOHAN LAL s/o Keshoji
i
Respondents

JUDGMENT

The three respondents were jointly charged with the offence of Supplying Liquor After Hours contrary to section 47(1)(a) and (3) of the Liquor Ordinance. Cap.167.

The trial Magistrate on the 3rd February, 1977 found on the facts that the offence had been proved beyond reasonable doubt.

In respect of the second and third respondents, the trial Magistrate convicted both of them and sentenced each of them to pay a fine of $50 or two months' imprisonment in default.

As regards the first respondent, the trial Magistrate purported to exercise his discretion under section 38 of the Penal Code and discharged the first respondent without conviction.

The Director of Public Prosecutions appeals against the order discharging the first respondent without conviction on the ground, that the order is manifestly inappropriate having regard to the nature and circumstances of the offence.

The main argument adduced by counsel for the appellant is, that on the facts of the case, the trial Magistrate did not exercise his discretion in a judicial manner, and his order should be set aside and a conviction entered against the first respondent.

In his judgment the trial Magistrate said:

"However, so far as Accused 1 is concerned, I consider that the unprecedented muddle by the prosecution in presenting this case, from which I exclude Learned Counsel who finally appeared, the uncertainty and I'm sure no little expense which he incurred are more than sufficient punishment and accordingly I exercise my powers under Section 38 and he is discharged without conviction.

Accused 2 and 3 are convicted as charged."

Section 38(1) of the Penal Code provides as follows:

"38.-(1)Where a court by or before which a person is found guilty of an offence, not being an offence for which a fixed sentence is prescribed by law, is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Ordinance is not appropriate, the court may, with or without proceeding to conviction, make an order discharging him absolutely, or, if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order, and subject to such other conditions, if any, including the payment of costs or compensation, or the restitution of goods or the payment of money in lieu of goods, as may be specified in such order."

Under section 38 of the Penal Code, the trial Magistrate had a discretion, (inter alia), in the instant case, either to discharge the first respondent without proceeding to conviction, or to discharge him after conviction.

In exercising his discretion. the trial Magistrate had to have "regard to the circumstances of the offence and the character of the offender."

The criteria by which the exercise of a discretion should be judged, have been indicated in a number of English cases which are referred to in S.A.. de Smith's "Judicial Review of Administrative Action 3rd Edition" at pages 247 to 249. In the case of Sharp v. Wakefield [1891] UKLawRpAC 8; (1891) A.C. 173, 179 referred to at page 248, a case involving the judicial discretion of licensing Justices Lord Halsbury L.C. stated that the Justices were to act "according to the rules of reason and justice, not according to private opinion . . . .according to law and not humour". This discretion was to be "not arbitrary, vague and fanciful, but legal and regular."

The first respondent was the licensee, and the trial Magistrate correctly pointed out in his judgment, that the offence was an absolute one, and knowledge of the offence was not required.

The extract from the trial Magistrate's judgment quoted above indicates his reasons for exercising his discretion in favour of the first respondent.

The instant case was an unusual one in that, not only did the Court's file disappear, but the prosecution's file also disappeared. The record shows that the disappearance of the files caused considerable confusion, which counsel for the appellant conceded caused an "unholy muddle". It is clear from the trial Magistrate's judgment, that "this muddle" was a factor, if not the major factor, in exercising his discretion under section 38 of the Penal Code in favour of the first respondent.

In my view, this "unprecedented muddle" was not a factor to be considered by the trial Magistrate when he came to consider whether he should convict the first respondent. It had no relevance to "the circumstances of the offence and the character of the offender".

All three respondents were represented by one counsel, and the reasons given by the trial Magistrate for discharging the first respondent without conviction, could apply equally to the other two respondents whom the trial Magistrate convicted.

It is clear, that the trial Magistrate must have adopted an individualised approach to the first respondent when exercising his discretion since the reasons he gave, as regards the first offender, applied equally to the other two respondents. It is necessary to examine the record to ascertain what facts were established, as regards the first respondent, which were favourable to him, and which could have influenced the trial Magistrate in the exercise of his discretion.

There was the unsworn statement of the first respondent. The trial Magistrate stated, "I believe the accused 1 (the first respondent) entirely". While the trial Magistrate was entitled to take this unsworn statement into account despite the fact that it could not be tested by cross-examination, when the statement is examined the main excuse which emerges is that the first respondent knew nothing about the offence.

There was clear evidence of a sale and supply of liquor under the first respondent's licence, outside the hours specified in section 47(1)(a) of the Liquor Ordinance, on the 3rd day of October, 1975 on which date the specified hours when liquor could be sold were between 8 a.m. and 5 p.m. on weekdays. Section 47(3) provides that any licensee who sells liquor in contravention of the section shall be guilty of an offence.

Section 47(3) differs from section 62(4) of the Liquor Ordinance which latter section, provides that it is an offence for the licensee and any other person who contravenes the section to sell liquor in broach of the terms of a Restaurant Licence. The legislature specifically provided in section 47(3), that it is the licensee who sells or supplies the liquor in contravention of the section who commits an offence.

The failure by the trial Magistrate to convict the first respondent who was the licensee, runs counter to the clear intention of the legislature and cannot, in the circumstances, be considered to be a "legal and regular" exercise of his discretion.

In exercising his discretion, the trial Magistrate under section 38 of the Penal Code also had to consider the character of the first respondent. There was no evidence before him at the time he purported to exercise his discretion, as to the character of the first respondent. and the discharge without conviction incorporated into the body of the judgment precluded the trial Magistrate from considering matters relevant to character such as whether the first respondent had any prior convictions. Instead of having proceeded to sentence on an adjudication of guilt or innocence and embodying same in his judgment, the trial Magistrate in his judgment should have found the first respondent guilty as charged and thereafter proceeded to record and consider information pertaining to the character of the first respondent in the usual way, before purporting to exercise the powers conferred by section 38 of the Penal Code.

The appeal is accordingly allowed. The order discharging the first respondent without conviction is set aside and the first respondent is convicted of the offence of Supplying Liquor After Hours, contrary to section 47(1)(a) and (3 of the Liquor Ordinance.

Before hearing the prosecution as to whether the first respondent has any prior convictions and his counsel in mitigation for the purposes of sentence, I would refer to another matter.

The record indicates that. when interviewed by the police, the police asked the following questions and the first respondent answered those questions as under:

Q: Under whose name is the licence granted ?

A: Edmund March - it is my licence.

Q: Is Mohan Lal selling liquor for you?

A: He is selling for himself - that is in the agreement.

Q: Whose is the business of Funland?

A: Its Mohan's.

Q: That means the liquor licence is under your name and Mohan is only running the business for himself?

A: Yes.

It is clear from the foregoing questions and answers, and from the evidence of Mohan Lal, the second respondent, that the licensed premises are occupied by Funland Amusement Ltd., of which company the second respondent is Manager and a Director. It appears, that that company is the tenant or lessee of K.W. March Ltd., and the agreement between the two companies is that Funland Amusement Ltd., sells liquor under the first respondent's licence. It is a reasonable assumption, that there is consideration for the use of the liquor licence. Mohan Lal refers in his evidence to the fact, that his company sold liquor and he had the key to the liquor stocks.

Under section 18 of the Liquor Ordinance, a licence cannot be granted to a corporate body, but it is clear from this section, and from section 52 of the Ordinance, that the intention of the Ordinance is that the licensee should be the person who is in a position to comply with the obligations imposed on the licensee by the Ordinance. By permitting Funland Amusement Ltd., to sell liquor under his licence, the first respondent put himself in a position where he could not perform those obligations.

It appears to me, that the first respondent disqualified himself, either from obtaining a licence or a renewal thereof. Section 18(c) of the Ordinance makes it clear, that a licence should only be granted or renewed to a person who can "properly supervise the licenced premises". The first respondent, on the facts, could not comply with section 52(2), unless the true position is that Mohan Lal is his servant or agent.

This is the second occasion within a period of less than two months, that it has come to my knowledge, that a licensee has purported to lease his liquor licence to another person. In Criminal Appeal No. 92 of 1976 Ambika Prasad Sharma v. Prices and Incomes Board there was also mention of the leasing of an off-licence and the fact that rent had been increased because the tenant had the benefit of that off-licence.

The Liquor Tribunal is obviously unaware of this situation and, will no doubt, take appropriate action when this judgment is brought to its attention.

R.G. Kermode

Suva,
27th May, 1977.