Republic v Kum Kee [1999] KIHC 37; Criminal Review 01 of 1999 (11 August 1999)

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

HIGH COURT CRIMINAL REVIEW 1/99

BETWEEN:

THE REPUBLIC
Appellant

AND:

WAYSANG KUM KEE
Respondent

JUDGMENT IN REVIEW

This application for review is brought by the Attorney-General.

The accused, Waysang Kum Kee, as charterer of the vessel MV Massimond, had been charged under the Shipping Act, 1990, with carrying excess passengers.

The case came before the Betio Magistrates' Court on 11 March 1999. The accused pleaded not guilty and, on the application of the police, the case was adjourned to 18 March 1999.

On the 18th March 1999 the police were not ready to proceed. The prosecutor told the court that he thought the accused had previously pleaded guilty. The case was again adjourned until 25 March 1999.

On 25 March 1999, the police led evidence from one witness but then requested an adjournment because the Director of Marine, who was the complainant, had not come to court. The application for an adjournment was opposed by counsel for the accused and the court refused it, but allowed the police prosecutor a 15-minute adjournment. At the end of that time the complainant had still not appeared. Counsel for the accused then submitted to the magistrates that because the complainant had not come to court the case should be dismissed. The magistrates agreed and dismissed the case.

The Attorney-General's request for a review of that decision is on the grounds that the magistrates should have given the police prosecutor an opportunity to reply to that submission and that the proper order would have been to adjourn the case until the Director of Marine could attend or, alternatively, to issue a warrant of arrest to compel him to attend court to testify.

In my view there was nothing wrong with the decision of the magistrates' court. The case had already been adjourned twice. The second adjournment became necessary because of an error made by the police prosecutor. When the case finally came on for hearing the defence was ready to proceed. It would have been a miscarriage of justice for the court to have granted yet another adjournment simply because the complainant had not bothered to come to court.

What the magistrates' court did in refusing another adjournment was in accordance with what is, or should be, established practice. Under section 187 of the Criminal Procedure Code Cap. 17 the court must proceed to hear the case if both the complainant, by himself or by his advocate ("advocate" includes a public prosecutor – sec. 185(2)), and the accused person appear before the court. This is just what the court did in the present case. There was no reason given to the court by the police prosecutor for the non-appearance of the complainant and thus no adjournment was justified.

It should be remembered that a complainant is more than just another witness. He is the person responsible for laying the complaint which brings the accused to court. It thus becomes essential for the complainant or his advocate to also come to court. The importance of this requirement is borne out by the Criminal Procedure Code. Under section 185(1), if the complainant or his advocate does not come to court then the court shall dismiss the charge unless there is some proper reason to adjourn the case. Under section 190(1), if an adjournment has been granted and the complainant fails to appear on the next occasion then the court may, in its discretion, dismiss the charge.

In the present case, the complainant was at all times represented by the police prosecutor. At the hearing, the police prosecutor was unable to give any explanation to the court for the failure of the complainant to appear. All he could say was that "my witness has not come". In those circumstances, it was correct for the court to proceed to deal with the case on the evidence before it. Only one witness gave evidence for the prosecution and such evidence was not capable of supporting a conviction. The magistrates' court was therefore correct to dismiss the charge.

The Attorney General argues that the magistrates' court should have given the police prosecutor an opportunity to reply to the submission for the accused that the charge should be dismissed. I agree, but what could he have said? His application for an adjournment had already been refused, he had no further evidence to call, and the evidence that he did adduce was not sufficient to prove his case. Thus, while the Attorney General's argument is academically correct, there was no resulting miscarriage of justice.

I therefore do not find any reason to interfere with the decision of the magistrates' court.

There is one other matter I should deal with briefly. The People's Lawyer has submitted by letter an argument that the High Court does not have the power under section 81 of the Magistrates' Courts Ordinance Cap. 52 to set aside a decision of acquittal as petitioned by the Attorney General. I disagree. The High Court has been given wide powers under S.81 to review proceedings in magistrates' courts, including the power to "make such orders as justice may require and give all necessary and consequential directions (S.81(2))(h)). "Justice" cannot be taken to flow only in the direction of the accused. In my opinion, the High Court, in an appropriate case, has the power on review to set aside any decision of a magistrates' court given in a criminal case and order a retrial, but not to convert an acquittal into a conviction.

THE HON R B LUSSICK
CHIEF JUSTICE
(11/08/99)