Namakin v Republic [1998] KIHC 64; HCCrA 15.98 (27 November 1998)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrA 15/98

BETWEEN:

DAISY NAMAKIN
Appellant

AND:

THE REPUBLIC
Respondent

Mr B Berina for the Appellant
Ms P Tebao for the Respondent

Date of Hearing: 27 November 1998

JUDGMENT

On 15 January 1998 the appellant pleaded guilty before Betio Magistrates' Court in case No. 49/98 to a charge of storing liquor in her shop without a licence contrary to section 80(1) of the Liquor Ordinance Cap. 50. She was convicted and fined $25. On the same day, in case No. 72/98, the police prosecutor applied to the same court for an order forfeiting liquor seized by the police from various premises, including the appellant's shop. The minutes of those proceedings do not indicate whether or not the appellant was still present in court at the time. The case was adjourned until 22 January 1998, at which time the magistrates' court ordered that liquor seized by the police from 8 different premises be forfeited under section 81 of the Ordinance. The appellant's liquor was amongst the liquor forfeited. Not all of the 8 premises were shops; some were clubs.

That decision is now appealed on the ground that the Magistrates' Court erred in law in making the order of forfeiture in the absence of the appellant.

The appellant was obviously aware that her liquor had been seized by the police. Under section 81, where liquor has been seized and a conviction follows, the court has a discretion to order the liquor to be forfeited. In my view, the validity of the forfeiture is not dependent on the convicted person being present when the forfeiture is ordered. The court would have been functus officio so far as the appellant was concerned had it sought to further deal with the appellant after fining her. However, the court was not functus so far as the disposal of the liquor was concerned.

However, the point is academic for the following reason. The appellant pleaded guilty to an offence under section 80(1) and was convicted and fined. Under section 80(2), any liquor seized is automatically forfeited upon a conviction under section 80(1). There was no need for the court to have made an order of forfeiture at all in the case of the appellant. The magistrates probably intended that the forfeiture expressed to be under section 81 was to apply to all of the liquor seized from the 8 premises.

The appeal therefore has no merit and is dismissed.

THE HON R B LUSSICK
CHIEF JUSTICE
(27/11/98)