Pillay v Regina [1978] FJSC 71; Criminal Appeal 77 of 1978 (6 October 1978)

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

Criminal Appeal No. 77 of 1978

BETWEEN

RAM SAMI PILLAY
s/o Govind Pillay
Appellant

AND

REGINA
Respondent

Mr. B.C. Patel & Mr. V. Kalyan, Counsel for the Appellant
Mr. A.M. Rabo, Counsel for the Respondent.

JUDGMENT

This is an appeal against a magistrate's order that compensation be paid to a complainant.

The appellant, landlord, was found guilty of increasing the rent from $40.00 per month to $60.00 per month over a period of 11 months without notifying the P.I.B.

The magistrate ordered him to refund $220.00 to the tenant which was the total overcharge for the period.

It was made on the application of the prosecution who quoted S.159 C.P.C. (below).

One ground of appeal is that the order should be set aside because the appellant was not given a chance to argue the question of legality. I am not sure that I appreciate this ground because the record shows that the landlord's advocate argued at some length that compensation should not be paid. There was nothing at all to prevent him in that address from submitting that the magistrate had no statutory power to make such an order. This ground fails.

The other ground is that the order for compensation was illegal.

Mr. B.C. Pate1 for the appellant referred to S.159 C.P.C. as amended by S.18 Ord. 13/69. S.159(1), as amended, reads,

"(1) Any court may, in its discretion, order the whole or any part of any fine imposed or money found on or in the possession of a convicted person to be applied in or towards -

(a) ...............

(b) the payment to any person of compensation for any loss or injury caused by the offence;

(c) ................"

It is clear from that section that where a fine is imposed the fine, if and when paid, may be utilised wholly or in part for the purpose of satisfying an order for compensation.

In the instant case the learned magistrate imposed no fine. He simply ordered payment of $15.00 as costs and $220.00 as compensation to be paid to the tenant. Thus there was no fund, i.e. no fine, out of which the compensation was to be paid. Clearly he was not acting under the provisions of S.159 although the complainant, had invited this course and had quoted S.159 as the authority for ordering compensation.

The ground of appeal says that the magistrate acted illegally and this allegation appears to be based on a contention that the learned magistrate purported to act under S.159 which gave him no authority to order compensation. But I have always understood that an act is illegal if it is contrary to the stated law or if one does something which one is not lawfully empowered to do. In awarding compensation the magistrate was not breaking the law. He had power under S.158(2) to order compensation. The subsection appears in Ord. 16/73 s. 6 which amends the C.P.C.

"(2) Any person who is convicted of an offence may be ordered to pay compensation to any person injured by or who suffers damage to his property or loss as a result of such offence and such compensation may be either in addition to or in substitution for, any punishment or other sentence."

If the law allows the magistrate to order compensation I fail to see how he can be said to be acting illegally in awarding it simply because he purports to act under the wrong section of the C.P.C. It is not illegal to refer to a wrong section unless in so doing he assumes a power he has not got.

In P.I.B. v. Ambika Prasad, Civil Appeal No. 17/77 the Fiji Court of Appeal considered a case in which rent had been increased as in this case and the magistrate had refused to make an order for compensation relating to the overpayment. The Court of Appeal mentioned that the learned magistrate had not been asked to exercise his jurisdiction under S.158 and said that he had no duty to consider that section unless specifically requested to do so. In the instant case the magistrate was specifically requested to award compensation although his attention was directed towards the wrong section of the C.P.C. Nevertheless he was asked to make an order which the C.P.C. empowers him to make. He did just that.

The appeal is accordingly dismissed.

What the learned magistrate has done is simply to award compensation amounting to the total amount of rent overpaid. No fine was imposed. As it happens the appellant is dead and therefore it is not possible to call upon him to show cause why this court should not remedy the magistrate's omission to impose a fine.

(Sgd.) (J.T. Williams)
JUDGE

LAUTOKA,
6th October, 1978.