Kaburoro v Republic [1979] KICA 1; 1979 KILR 92 (19 October 1979)

[1979] KICA 1; [1979] KILR 92

COURT OF APPEAL OF KIRIBATI

Criminal Appeal No 2 of 1979

KAITANGARE KARURORO
AND
SIX OTHERS

v

THE REPUBLIC

(Spring P., Thompson and Nicholson JJ.A)

Bairiki, 16th and 19th October 1979

Appeal to Court of Appeal - Intimidation - section 30(1) (b) of Public Order Ordinance (Cap. 95) - definition of "person" in section 30(1) (b) of Cap. 95 - definition of "person" in section 3 of the Interpretation and General Clauses Ordinance (Cap 1) - appeals against conviction dismissed - reading and translation of document does not make offence more serious - all sentences should have been the same - appeals against sentence by first and seventh appellants allowed.

The seven appellants were convicted by the High Court sitting at Betio (O'Brien Quinn C.J.) on 26th April 1979 of Intimidation contrary to section 30(1) (b) of the Public Order Ordinance (Cap. 95). The first and seventh appellants who had read out and translated the intimidatory document were sentenced to 3 months' imprisonment while the remaining five were bound over in the sum of $200 to keep the peace and be of good behaviour for a period of six months. The convictions and sentences were in respect of their actions in marching to the British Phosphate Commissioners' Office on Banaba (Ocean Island) on 14th February 1979 and presenting an ultimatum to the Manager. Only one ground of appeal was argued before the Court of Appeal and that was to the effect that the entity of the British Phosphate Commissioners not having been proved, and no direct evidence forthcoming from such entity, the learned trial judge had no material on which to decide if the publication had caused such Commissioners any apprehension, or was likely to cause the same. There was also an appeal against sentence.

HELD: (1) That in section 30(1) (b) of the Public Order Ordinance (Cap. 95) the word "person" must be construed in accordance with the provisions of section 3 of the Interpretation and General Clauses Ordinance (Cap. 1) and, that being so, that it was immaterial that the prosecution did not prove whether the British Phosphate Commissioners were natural persons or was a body corporate or unincorporate.

(2) That since the responsibility of all of the appellants, as established, was the same, all of them should have been dealt with in the same way and the sentences on the first and seventh appellants would be reduced and made the same as that passed on the other appellants.

K.C. Ramrakha, Barrister, for the Appellants
M. Takabwebwe, State Advocate, for the Republic

THOMPSON J.A. (delivering the Judgment of the Court):-

The appellants were convicted by the High Court of an offence against Section 30(1) (b) of the Public Order Ordinance (Cap. 95). The first and seventh appellants were sentenced to three months' imprisonment. The other five appellants were bound over in the sum of $200 to keep the peace and be of good behaviour for a period of 6 months. All the appellants now appeal against their conviction; the first and seventh appellants appeal against the sentence imposed on them.

2. In the notice of appeal four grounds of appeal against conviction were stated in respect of all the appellants. However, at the commencement of the hearing of the appeals Mr Ramrakha, who represented all the appellants, abandoned two of them; then, in the course of the hearing, he abandoned a third. In the result he relied upon only one ground of appeal against conviction. That is stated in the notice of appeal as:-

"The entity of the British Phosphate Commissioners not having been proved, and no direct evidence forth-coming from such entity the learned trial judge had no material on which to decide if the publication had caused such Commissioners any apprehension, or was likely to cause the same".

3. In his submissions to the Court on this ground, Mr Ramrakha stated it in terms of a failure by the prosecution to prove that the British Phosphate Commissioners was or were "a person" or "persons" within the meaning of the word "person" as used in Section 30(1) (b) of the Public Order Ordinance (Cap. 95).

Section 30(1) reads:-

"30. (1) Any person who without lawful authority or reasonable excuse does or says anything or behaves in a manner or utters or distributes any publication which is likely to make some other person apprehensive as to what may happen -

(a) to such other person or to any member of the family or any dependant of such other person;

(b) to any property, business, undertaking or interest of such other person or of any member of the family or any dependant of such other person;

(c) to any building or place occupied by such other person or by any member of the family or any dependant or such other person; or

(d) to any business or undertaking in which such other person or any member of the family or any dependant or such other person is employed.

shall be liable to a fine of two hundred dollars and to imprisonment for two years."

4. Mr Ramrakha drew attention to the reference in paragraph (5) to "member of the family" and "dependants" of the person to whom a publication is uttered and argued that, since only a natural person can have a family or dependant, the word "person" in that paragraph must be construed as meaning only a natural person and not a body corporate or any other body which might otherwise be regarded by the law as being a person.

5. Mr Takabwebwe, representing the Republic, referred the Court to the provisions relating to the word "person" contained in section 3 of the Interpretation and General Clauses Ordinance (Cap. 1); that provision is -

"'person' includes any public body and any body of persons, corporate or unincorporate, and this definition shall apply notwithstanding that the word "person" occurs in a provision creating or relating to an offence or for the recovery of any fine or compensation;"

6. Section 2 of the same Ordinance contains provision for the application of the provisions of that Ordinance to other Ordinances.

7. Subsection (1) of that section reads -

"(1). Save where the contrary intention appears either from this Ordinance or from the context of any other Ordinance or instrument, the provisions of this Ordinance shall apply to this Ordinance and to any other Ordinance in force, whether such other Ordinance came or comes into operation before or after the commencement of this Ordinance, and to any instrument made or issued under or by virtue of any such Ordinance."

8. The word "person" in paragraph (b) of section 30(1) of the Public Order Ordinance (Cap. 95) must, therefore, be construed in accordance with the provisions of section 3 of the Interpretation and General Clauses Ordinance (Cap. 1), unless a contrary intention appears either from that Ordinance, i.e. Cap. 1 or from the context in which it is used in the Public Order Ordinance (Cap. 95). Mr Ramrakha's argument is, in fact, that a contrary intention does appear from the context in which it is used in section 30(1) (b) of the latter Ordinance.

9. Apart from the reference to the family and dependants of a person to whom a publication is uttered, there is nothing in the context of that section or of the Ordinance generally from which there might be inferred any intention that the word "person" used in that section should not be construed in accordance with the provisions of section 3 of the Interpretation and General Clauses Ordinance (Cap. 1). Nor, in our view, can such an intention be inferred from the reference to family and dependants. The fact that public bodies, bodies corporate and unincorporated bodies of persons cannot have families or dependants is no reason for depriving them of the protection afforded by that section. We are satisfied, therefore, that in section 30(1) (b) of the Public Order Ordinance (Cap. 95) the word "person" must be construed in accordance with the provisions of section 3 of the Interpretation and General Clauses Ordinance (Cap. 1). That being so, it is immaterial that the prosecution did not prove whether the British Phosphate Commissioners are natural persons or is a body corporate or unincorporate.

10. That the British Phosphate Commissioners did exist and that they were carrying on a mining business was established by the evidence of Mr Elliott, their Manager on Banaba. His evidence also established that the document presented to him by the appellants and read out publicly by the first and seventh appellants did cause him, as the manager of the British Phosphate Commissioner's mining business on Banaba, apprehension about what might happen to that business. The document was exhibited at the trial; it contained a threat to obstruct mining operations if mining was not stopped within 24 hours. There was undoubtedly ample evidence on which the learned trial judge could properly find, as he did, that the uttering of the publication was likely to cause apprehension on the part of the British Phosphate Commissioners as to what might happen to their mining business.

11. Accordingly the appeal of each of the appellants against conviction is dismissed.

12. With regard to the appeals of the first and seventh appellants against the sentences imposed on them, Mr Ramrakha has submitted that those two appellants should not have been dealt with differently from the other five appellants. The evidence adduced at the trial established that, immediately before the document was presented to Mr Elliott and read out, there was an Orderly and peaceful procession by over 100 Banabans to his office and that the seven appellants were at the front of the procession. At that time the first appellant, Kaitangare, was the Deputy Chairman of the Rabi Council of Leaders, the Banabans' representative body, and the seventh appellant, Teem, was the Assistant Secretary of that Council. Whether any of the other appellants held any offices or was a member of the Council was not disclosed by the evidence. However, the learned trial judge, in paragraph 15 of his Judgment, found that "the utterance of the publication alleged was a concerted action on the part of all the accused". Apart from the fact that the first appellant read out the document and that the seventh appellant read out a translation of it into Gilbertese no finding of fact was made which differentiated between the actions of any one of the seven appellants and those of the others of them or between their responsibility for those actions. Nor was any evidence adduced on which such a differentiation might have been made. In our opinion the reading out of the document and of the translation of it by the first and seventh appellants respectively does not make the offences committed by them more serious than the offences committed by the other five appellants who, as the learned Chief Justice found, all took part in the concerted action of uttering the publication.

13. The appellants were dealt with on the basis that none of them had any previous convictions. We consider that, since the responsibility of all of them, as established, was the same, all of them should have been dealt with in the same way.

14. Accordingly the appeals of the first and seventh appellants against sentence are allowed. The sentence of three months' imprisonment imposed on each of them is set aside. In substitution for that sentence we order that each of them be bound over in the sum of $200 to keep the peace and be of good behaviour for a period of six months from the date on which sentence was passed on them in the High Court, that is to say from 26th April, 1979.