Director of Public Prosecutions v Prasad [1978] FJSC 24; Criminal Appeal 005 of 1978 (22 March 1978)

THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 5 OF 1978

DIRECTOR OF PUBLIC PROSECUTIONS
Appellant

v.

1. AJIT PRASAD s/o Dhyan Prasad
2. SUBRAMANI s/o Kup Sami
3. AJAY PRASAD s/o Dhyan Prasad
4. ARUN PRASAD s/o Dhyan Prasad
Respondents

JUDGMENT

On the 2nd November, 1977 the respondents were convicted by the Magistrates Court Suva of the offence of giving False Information to a Public Servant and were each sentenced to six months' imprisonment suspended for 12 months.

The Director of Public Prosecutions appeals against the sentences on the ground that they are manifestly lenient in the circumstances of the case and wrong in principle.

As the first respondent had left Fiji before notice of the appeal was served on him, Counsel for the Crown withdrew the appeal so far as it related to the first respondent.

Mr. Parmanandam for the second, third and fourth respondents sought leave to file and argue a cross-appeal against conviction out of time. Counsel for the Crown consented to the application and leave was granted. The cross-appeal was argued first.

There are four grounds of appeal in the cross-appeal as under:

"(a) That the Learned Trial Magistrate erred in law by failing to consider the charge against each of the Appellants separately. Hence there has been a substantial miscarriage of justice.

(b) The Learned Trial Magistrate erred in law holding that the Suva Amusement Park was not an existing organisation when the evidence disclosed to the Contrary, a fact material to the conviction. Hence there has been a substantial miscarriage of justice.

(c) The Learned Trial Magistrate erred in law and fact in holding that the four accused jointly gave the false information specified in the particulars when the evidence disclosed to the contrary. Hence there has been a substantial miscarriage of justice.

(d) That the conviction ought to be quashed in view of the fact that both the Statements of Offence are the same with the particulars arising out of the same set of facts. Hence there has been a substantial miscarriage of justice."

There is no merit in the first ground. The learned trial Magistrate in his judgment fully set out the part played by each of the respondents. He found as a fact that all of the four accused conspired to create an entirely fictitious entity to persuade the District Officer to issue a permit to the first and second accused and he found that the charge was proved against each accused. The first ground fails.

As regards the second ground, the Magistrate found that the Suva Amusement Park did not exist "other than in the imagination of the four accused". There was ample evidence to support this finding and the second ground also fails.

The Magistrate found as a fact that all four accused "jointly gave the false information" to the District Officer. The use of the word "jointly" is not a happy choice and better words, which the Magistrate used earlier in his judgment would have been "conspired to".

The applicants for the permit to hold a lottery were the first and second accused. In their joint first application they disclosed that the lottery proceeds were to be devoted in aid of the "Suva Amusement Park". The District Officer sought written confirmation from the Suva Amusement Park to the effect that there was agreement that a certain proportion of the proceeds would be devoted towards the Park. The third accused Ajay Prasad on 9th August, 1976 in answer to the District Officer's letter of 4th August, 1976 wrote as President of the Promotion Club informing the District Officer that the Club had "agreed with Suva Amusement Park regarding your reference". The fourth accused by letter of the same date, showing an address "Suva Amusement Park 10 Butt Street", confirmed agreement between the Promotion Club and Suva Amusement Park to give the Park some of the proceeds to the lottery. The evidence was clear and the Magistrate so found that all four accused conveyed the same false information to the District Officer namely that the Suva Amusement Park was an existing organisation in support of an application to obtain a lottery permit. The third ground fails.

There is likewise no merit in the fourth ground. There were originally two charges both alleging the same offence, the second being an alternative charge. The particulars of the offences alleged different false information was given to the District Officer and the Magistrate found the alternative charge proved. The fourth ground fails.

I turn now to the appeal by the Director of Public Prosecutions against sentence.

Counsel for the Crown contended that three aspects of the offence should have been considered by the learned trial Magistrate.

1. It was a planned offence;

2. The possible consequences of the offence and the benefits to the accused;

3. The amount of remorse shown by the accused.

He argued that the sentences should be converted to immediate custodial sentences of six months' imprisonment.

The Magistrate was fully aware of the serious nature of the offence and the consequences to the public as appears from the record. They were matters he took into account. He also took into account the fact that all accused were first offenders.

What counsel for the Crown really complains about is that the Magistrate suspended the sentences. Under section 28A of the Penal Code a Court is empowered to order that the term of imprisonment be suspended. Under section 28A(3) where a Court passes a sentence for a term not exceeding six months imprisonment he shall not suspend the sentence in the instances listed (a) to (c) inclusive mentioned in the subsection. The instant case does not fall within any of the listed instances.

Section 28A(3) is similar to corresponding legislation in the United Kingdom except that the Fiji legislation has the negative word "not" inserted. In England where a sentence not exceeding six months imprisonment is imposed it is mandatory to suspend the sentence except in the instances listed. The insertion of the word "not" in the corresponding Fiji legislation makes suspension in the same circumstances discretionary except where the case comes within one the instances listed in subsection 3 where the Magistrate cannot suspend sentence.

As was pointed out in R. v. Gumbs 19 Cr.App.R. 75 appellate court never inter interferes with the discretion of the court below merely because the appellate court might have passed a somewhat different sentence. For an appellate court to reverse a sentence there must be some error of principle involved. Counsel for the Crown has not satisfied me that the learned trial Magistrate erred in principle in imposing the sentences of six months and suspending them and that being so there are no grounds for interfering with the sentence.

The appeal is dismissed.

R.G. Kermode
JUDGE

Suva,
22nd March, 1978.