Regina v Kasi [2011] SBHC 113; HCSI-CRC 141 of 2009 (22 September 2011)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 141 of 2009

REGINA

-V-

HELLEN KASI

Hearing: 16 December 2010
Ruling: 22 September 2011

R. Barry and A. Kelesi for the Crown/Appellant
S. Valenitabua for the Respondent

Palmer CJ.

1. This is an appeal by the Crown against orders of the Magistrates' Court issued on two different dates on 3rd March 2009 and 23rd March 2009.
   
2. There are four grounds of appeal. The first ground avers that the presiding Magistrate erred in law when he struck out the charge ("original charge") of making liquor for want of prosecution on 3rd March 2009. The prosecution say that he had no jurisdiction to do so.
   
3. The second, third and fourth grounds relate to the order of 23rd March 2009. Ground (2) avers that the court erred when another Magistrate took over proceedings from the original Magistrate that had carriage of the matter. Under ground (3) it is alleged that the presiding Magistrate erred when he refused to allow the respondent to plead to the re-laid charge which had been struck out earlier, and ground 4, argues that the sentence imposed was manifestly inadequate.
   

Ground 1

4. The issue for determination under this ground is whether the magistrate had discretion to dismiss for want of prosecution.
   
5. The facts which gave rise to this issue can be summarised as follows. The respondent had been charged on or about 27 December 2008 for making liquor contrary to section 50(2)(c) of the Liquor Act[1]. She appeared on 16 February 2009 at the Magistrates' Court and the matter adjourned further for two weeks to 2nd March 2009. On that day the file could not be located and so it was further held over to 3rd March 2009. On that occasion, Counsel for the respondent informed the court that his client would enter a guilty plea. The prosecutor then asked for the matter to be stood down while she looked for the police docket. On hearing this, defence counsel applied to the court to have the matter struck out for want of prosecution. The presiding Magistrate accepted the application and dismissed the matter.
   
6. The Magistrates' Court is a creature of statute. Its powers are prescribed by statute derived primarily from the Magistrates' Courts Act (cap. 20) and the Criminal Procedure Code (cap. 7) ("CPC"). It has no inherent jurisdiction like the High Court[2]. When dealing with applications for dismissal or a striking out in such circumstances, the court is obliged to take cognisance of the provisions of those applicable legislation.
   

In Grassby v. The Queen[3], referred to in Ross on Crime[4], Dawson J pointed out that there may be implied powers which the court may draw upon in the discharge of its judicial functions quite similar to those exercised by a superior court but more limited in extent. I quote:

"A magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise ....Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but that they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is ...fundamental."

7. The court is obliged to look to the applicable legislation for powers to dismiss for want of prosecution, if it exists. In that regard, the closest thing in the legislation when a magistrate can consider the exercise of its powers to dismiss for want of prosecution is spelled out in sections 187 and 192 of the CPC.
   
8. In so far as it is applicable, section 187 gives power to a magistrate to dismiss the charge if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear by himself or by his advocate, ..., unless for some reason it shall think it proper to adjourn the hearing of the case until some other date, upon such terms as it shall think fit, in which event it may, pending such adjourned hearing, either admit the accused to bail or remand him to prison, or take such security for his appearance as the court shall think fit. In this instance, the power to dismiss does not arise under the said provision for the prosecutor was present in court. The presiding Magistrate therefore had no jurisdiction to entertain the application for dismissal for want of prosecution.
   
9. In so far as section 192 of the CPC is concerned, the court also has power to dismiss the charge if the complainant fails to appear at the hearing or further hearing of the matter. Where the prosecutor appears, then this section does not apply. Note that a complainant includes a public prosecutor[5]. The presiding magistrate therefore also had no power to dismiss for want of prosecution in those circumstances for the prosecutor was present throughout in court.
   
10. The effect of the non-applicability of those provisions must mean that the appeal under ground (1) must be allowed. The presiding magistrate had no jurisdiction to dismiss the charge for want of prosecution.
    
11. Even if the presiding magistrate had discretion to dismiss for want of prosecution, I accept submissions of learned Counsel Mr. Barry that proper reason had been provided for the matter not to be dismissed. The matter had initially been adjourned for mention only and not hearing and therefore when defence counsel informed the court for the first time that a guilty plea would be entered, it was only proper in the circumstances for an adjournment to be given or the matter stood down when the prosecutor informed the court she was not ready to proceed with the arraignment of the respondent. The reason given, so that the police docket could be obtained to enable her have the respondent arraigned, was entirely proper in the circumstances. I find there was no basis in law for the charge to be dismissed for want of prosecution. A magistrate should take more care or time to determine such applications and not rush a decision.
    
12. In his submissions, Mr. Barry also raised another valid point (conceded by defence Counsel, Mr. Valenitabua), that the presiding Magistrate, Mr. Kalea, of Class II jurisdiction, could not deal with a case where the maximum penalty exceeded one year or a fine of $200.00. The maximum penalty prescribed for that offence was 3 years imprisonment or a fine of $1,200 or both. I am satisfied the appeal therefore could also have been allowed to that extent.
    

Ground 2.

13. This raises the ground that the court breached the provisions of section 55 of the Magistrates' Courts Act by having a different Magistrate take over proceedings after adjournment to deliver decision. Section 55 provides as follows:
    

"55. Where a Magistrate has issued any summons or warrant or otherwise taken or commenced any proceeding or matter whether civil or criminal, under any authority however conferred, and subsequently ceases to act as such Magistrate, it shall be lawful for the person in whose hands such summons or warrant may be to execute or serve the same in the same manner as if the Magistrate who issued the summons or warrant had not ceased to act as such Magistrate and any successor of such Magistrate, or any person acting for such Magistrate, may hear, determine, execute, enforce, and carry to completion any proceeding or matter so commenced as aforesaid save that, except where otherwise provided by any other Act for the time being in force relating to criminal or civil procedure, such Magistrate shall commence the trial of any such cause or matter ab initio."

The police had re-charged the accused on or about 10 March 2009, following the dismissal of the original charge. On 18th March 2009, the matter came before Magistrate Kalea for consideration whether the charges should proceed. After hearing submissions he adjourned to 23rd March 2009 to deliver his decision. On the said date however, a different Magistrate appeared to deliver decision on the matter. Unbeknown to the parties, the matter had been transferred to a new Magistrate.

Mr. Barry submits that the actions of the original Magistrate in transferring the case was wrong.

Mr. Valenitabua for the respondent on the other hand submits that the matter which came before the court on 23rd March 2009 was a fresh charge and had not yet been listed for hearing. He pointed out that only where the matter had commenced for trial should the matter commence afresh; that had not happened in this case and therefore no breach of the provisions of section 55 had occurred. I agree with submissions of Mr. Valenitabua. The presiding magistrate however ought, where he was going to cease carriage of the matter, have the parties recalled, inform them in open court of his intention and give them opportunity to make fresh submissions before the succeeding Magistrate if they so desired. I am not satisfied in any event that what happened was a breach of section 55 of the Magistrates' Court Act.

Ground 3.

14. The third ground challenged the decision of the succeeding Magistrate, Mr. Samani when he declined to have the original charge re-laid and put to the respondent. He reasoned it seems that he lacked jurisdiction to have the respondent re-charged and that the only recourse was to appeal the order of Magistrate Kalea.
    
15. I am satisfied Magistrate Samani erred in so declining jurisdiction in that the dismissal of the original charge by Magistrate Kalea had the effect of a discharge only and not an acquittal for the respondent had not been arraigned[6].
    
16. The appeal in respect of the original charge therefore should be allowed, the orders of the Magistrate Court of 3rd March and 23rd March 2009 quashed and the matter remitted to the Magistrates' Court for the respondent to be re-arraigned.
    

Ground 4.

17. This ground relates to a separate charge of making liquor contrary to section 50(2)(b) of the Liquor Act. When police went to the residence of the respondent on 10 March 2009 to have her re-charged they discovered about 150 litres of kwaso that had been brewed. She was charged for the offence of having utensils for brewing liquor and taken to court. She entered a guilty plea on 23rd March 2009 and was fined $180.00 by the presiding Magistrate.
    
18. Prosecution appeals against the sentence on the ground that it is manifestly inadequate when taking into account the maximum sentence of a fine of $1,200.00, or 3 years imprisonment, or both.
    
19. The principles of sentencing on appeal where the ground is that the sentence imposed is manifestly inadequate are well established. A court of criminal appeal may not substitute its own opinion merely because it would have exercised its discretion differently[7]. In R. v. Payne[8], the Full Bench said:
    

"The principles to be applied ... for leave to appeal against sentence are well known. Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained."

Three guiding principles can be gleaned from that statement of the Full Bench of the Court when leave is being granted as follows:

(i) To establish some matter of principle;
(ii) To give guidance to sentencing judges; and
(iii) To maintain adequate standards of punishment for a crime or to correct a sentence which is so disproportionate to the seriousness of the crime.

20. Mr. Barry submits that the penalty imposed failed to give due regard to the seriousness with which parliament viewed this type of offending and failed to give adequate weight to the aggravating matters and deterrence. I couldn't agree more. The reason this law was enacted was to stop the illegal brewing of liquor which not only is hazardous in terms of the lack of quality control of such activity and therefore a danger to the health and well being of those who consume it, but that it also deprives the Government of duties that should be paid from the sale of liquor. There have been instances of people having died for consuming such illegal alcoholic drinks. The production of such alcoholic drinks also breeds a culture of black markets and the widespread availability of cheap liquor which in turn translates into a climate of drunkenness and disorderliness within the community in which it is produced. The community should not tolerate this type of activity and report to the police those within their community engaged in it. It does no one any good. The courts should reflect that seriousness of the law by ensuring that an appropriate penalty is imposed.
    
21. As a court of record a magistrate is obliged to give reasons for any sentence imposed, specifying what matters etc. were taken into account when passing sentence. By failing to do that it is difficult to appreciate the justification for the sentence imposed in the circumstances of this case. It would be open therefore to an appellate court to conclude that the presiding magistrate did not take all relevant factors into account before passing sentence.
    
22. I am satisfied the sentence of $180.00 is too lenient. This was a glaring show of disrespect and disdain for the law by the respondent. It was only a couple of months earlier, in December 2008 that she had been charged for a similar offence and was prepared to repeat the offence. This can only be viewed as an aggravating factor. Balancing the fact that she had no previous convictions and that the primary motivation can only be to make quick and easy money, a fine of $600.00 is appropriate in the circumstances. The fine of $180.00 is quashed and a fine of $600.00 substituted.
    

ORDERS OF THE COURT:

1. Allow appeal under grounds (1), (3) and (4) and dismiss appeal under ground (2).
   
2. Quash orders of the Magistrates' Court dated 3rd March and 23rd March 2009.
   
3. Remit the matter of the original charge back to the Magistrates' Court for re-hearing and direct that it be called at the Magistrates' court (Honiara) for mention/directions on Monday 3rd October 2011 at 9.30 am.
   
4. Substitute sentence of a fine of $600.00 in respect of the second charge for having on her premises utensils for making liquor contrary to section 50(2)(b) of the Liquor Act.
   
5. Whereas the sum of $180.00 having been paid, she is required to pay the outstanding fine of $420.00 within thirty days and in default, imprisonment of twenty days.
   

THE COURT.

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^[1] This is the original charge
^[2] See section 77(1) of the Constitution which confers on the High Court unlimited original jurisdiction in both civil and criminal matters and also section 84 of the Constitution which confers supervisory powers on the High Court over the Magistrates’ Court.
^[3] [1989] HCA 45; (1989) 168 CLR 1, 87 ALR 618, at pages 16-17, 628
^[4] Fourth Edition, p. 877-878
^[5] Section 187(2) CPC.
^[6] R. v. Maenu and Tuita, CRC 11 of 1998, 1^st May 1998 at page 5
^[7] House v. The King (1936) 55 CLR 499; Lowndes v. The Queen [1999] HCA 29; (1999) 195 CLR 665; (cited by Ross on Crime, 3^rd Edition at page 93)
^[8] [2004] SASC 160; (2004) 89 SASR 49; 146 A Crim R 98 (CCA) at 70; 119