Chang v Reginam [1977] FJSC 43; Criminal Appeal 061 of 1977 (29 July 1977)

Fiji Islands - Chang v Reginam - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL No. 61 of 1977

CHANG HOON CHANG
Appellant

v.

REGINAM
Respondent

JUDGMENTThe appellant was, on his own plea, convicted of escapincaping from lawful custody contrary to section 130 of the Penal Code and wntenced to 3 months' imprisonment.

He appeals againstainst the sentence on the ground that it is harsh and excessive. But for the fact that the prosecution failed to inform the Court of an important and relevant fact relating to the commission of this offence, I would have summarily dismissed this appeal.

Asked if he had anything to say in mitigation, the appellant informed the Court that he had been repeatedly assaulted by other prisoners because they thought he was an "informer". He feared that these beatings would continue unless he escaped and lodged a complaint with the prison headquarters at Korovou. Whether the police had made any enquiries into these allegations is not known, but the prosecutor failed to confirm the truth of what the appellant said.

Learned Crown counsel is able to confirm that the appellant had in fact been assaulted by other prisoners and suffered injuries to his face. I have no doubt that the learned Magistrate would have taken a slightly different view of the offence if this confirmation had been forthcoming at the trial.

The appellant is a fragile looking youth and his fear of further ill-treatment can be understood. On the other hand the learned trial Magistrate did not, despite the appellant's record, take too serious a view of the offence for he imposed what he described as "a mitigated sentence".

I do not consider it proper to grant the appellant a discharge in respect of this offence, for it would be wrong to allow a prisoner to consider "escape" a legitimate means of registering a complaint. But for the fact that the prosecution had failed fully to present to the Court the circumstances surrounding the commission of the offence, I might have left the sentence undisturbed. In the circumstances, however, the sentence of 3 months' imprisonment is set aside and in its place is substituted a sentence of one month's imprisonment.

G. Mishra
ACTING CHIEF JUSTICE

Suva,
29th July, 1977