R v Wong Thien Seng [2019] SBMC 28; Criminal Case 90 of 2019 (17 September 2019)

IN THE WESTERN DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT GIZO )
(Criminal Jurisdiction)

Criminal Case: 90 of 2019

REGINA
Applicant

WONG THIEN SENG
Accusedcused

Date of hearing: September 11^th, 2019
Date of ruling: September 17^th, 2019

Mr. Andrew Ega Kelesi for the Crown
Mr. George Gray for the Defendant

RULING

1. This is an application by the crown seeking the court to further adjourn the trial to a later date suitable by court. The application was done pursuant to section 191 of the Criminal Procedure Code. The defence objected to the application and relied on section 10 of the Solomon Islands Constitution, that the fair trial within a reasonable time has been deprived, thus, seeks the court to instead dismiss the charge of Human trafficking against the accused for “want of prosecution”.
   
2. I intend to first deal with the crown’s application for further adjournment. Should I find on the affirmative and or satisfied that there is some genuine basis for adjournment, I will proceed to set a new trial date for this case. If, however, I find on the negative, I will move to consider the application for dismissal by the defence.
   
3. Mr Kelesi for crown submitted that the trial date which was set to commenced on 9^th September, 2019, must now be vacated, and seeks the court’s indulgence to further adjourn to another possible and suitable date for trial. His application pivots on the fact that bad weather during the week has simply vetoed any trip to Vella la Vella to bring the crown witnesses to Gizo. Hence, unable to serve summonses. He closes his submission by stating that mother nature is not on the crown’s favour and that it is beyond their control.
   
4. Mr Gray for the defence vigorously objected to the crown’s application for further adjournment. He submitted that this matter was set for trial on 3 separate occasions and now will be the fourth adjournment sought. He also submitted that crown has failed miserably to prepare the summonses in due time for service on their witnesses. They made the application without showing proof of service of summons.
   
5. He argued that the starting point to ask for an adjournment in such circumstance would be to provide the proof of summons to justify their conduct, preparation and seriousness towards the trial for this matter, then only they can rely on the mother nature or the “act of god”. For reason that they had failed to show with concrete evidence the service of summons on crown witnesses, he objected any further adjournment and seeks the court to dismiss the matter and acquit the defendant, for what he submitted “want of prosecution”.

Brief history of proceeding

6. This matter has been subjected to numerous adjournments. I do agree with Mr Gray that this matter was transferred from Central Magistrates Court (“CMC”) to Western District Magistrates Court (“WDMC”) because crown had obtained an order for transfer of matter to Gizo, in the High Court. The High Court order was obtained ex-parte after Principal Magistrates Seuika’s direction order for trial to be conducted in Honiara.
   
7. I noted from the record of proceedings that Mr Gray has strongly objected to any trial in Gizo but all was in vein when His Lordship Deputy Chief Justice, Mwanesalua granted the order ex-parte.
   
8. When the matter was transferred to WDMC, I took over and the vior dire trial proceeded successfully which the Record of Interview was consequently ruled inadmissible and was thereby excluded.
   
9. Thereafter, instead of going on to trial proper, crown sought further adjournment for reason that the then crown prosecutor was hesitant to do a part-heard trial. Mr Gray had conceded that a new trial date to be fixed and applied to have the matter transferred back to Honiara. His submission then, was for the matter to be transferred back to Central Magistrates Court in Honiara, because the Defendant was working at Earth Movers Limited, Honiara, hence, had to incur expenses with travelling fares and accommodation in Gizo. He also stated that the interpreter which the Court engaged is a Mandarin lecturer at Solomon Islands National University (SINU), any movement from Honiara down to Gizo for proposed trial will tamper with her lecturing schedules.
   
10. Unfortunately, I had ruled that the matter be adjourned to a later date for trial in Gizo. The basis for my finding then, was to hear the matter where the complaint arose and to exhaust all alternatives before any consideration can be made to transfer matter. Hence, I grant a lengthy adjournment and set matter for trial proper to commence on 9^th September, 2019. The Defendant and Mr. Gray’s appearance on all interim mention dates were dispensed.
    
11. On the 9^th of September, 2019, the crown opted for a short adjournment to 11^th September, 2019, this was to allow police to travel to Vella la vella for service of summonses due to the bad weather.
    
12. On the 11^th September, 2019, all were in dismay as the bad weather continues. They asked for further adjournment for possible trial. This is the basis for the ruling today.
    

Discussion

Courts discretion to grant adjournment

13. I agree with both counsels that the discretionary power to grant any adjournment rests squarely in the hands of the presiding magistrate after careful consideration to the circumstance, this is to coincide with the notion of fair trial according to law^[1]. Mustill LJ, with whom Schiemann J concurred, stated at page 712; ‘The power to refuse an adjournment is not a disciplinary power to be exercised for the purpose of punishing slackness on the part of one of the participants in the trial. The power to adjourn is there so that the court shall have the best opportunity of giving the fairest available hearing to the parties.’
    
14. In R v Jones^[2] the Court held; ‘many applications for adjournments are made which are plainly without foundation. If these applications are to be made in a bona fide way, then we think it is highly desirable that they should be supported by evidences, with verbal evidence or affidavit.
    
15. I must agree with the defence submission that there is no evidence or proof of service of summonses on the crown witnesses to substantiate the ground for seeking further adjournment. Cleary, they had foreshadowed such an encounter, even if they are intending to do the service on 9^th September, 2019, what guarantee are that the witnesses will be at their home village. We had set this matter for trial beginning this year, hence, more than ample time for them to prepare all these preliminary matters, which apparently, they had failed to do.
    
16. At this juncture, it is safe to state that I will not accept any further adjournment for possible trial in Gizo. I accordingly rule that out for what I have just stated.
    

Dismissal for Want of prosecution

17. The starting point for the Court to consider in any application for dismissal for want of prosecution is section 187 (1) and 192 (1) of the Criminal Procedure Code. In the case of R v Aitorea^[3] at paragraph 19 of his decision, Apaniai PJ stated;

“Apart from the general power of a magistrate to dismiss a charge which has not been proved to the required standard, the statutory powers of a magistrate to dismiss charges are provided for under sections 187 (1) and 192 (1) of the CPC. Section 187 (1) gives a magistrate a discretion to dismiss a charge where the complainant fails to appear on the date listed for the hearing of the case. That discretion will not be so exercised if "proper reason" exists. Similarly, section 192 gives the magistrate a discretion to dismiss a charge where a complainant fails to appear.”

18. This is the direct quote of sections 187 (1) and 192 (1) of the Criminal Procedure Code:

187. - (1) If, in any case which a Magistrate's Court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, 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, the court shall dismiss the charge, 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.

192. - (1) If at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which has made the order of adjournment, such court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs as the court shall think fit.

19. The case of Aitorea^[4] pertains to an appeal case after the Magistrate dismissed the charges against the accused for want of prosecution when the prosecutor was present in court. The Magistrate refused to allow further adjournment for failure by the prosecution to prepare for trial and proceed to dismissed the matter for want of prosecution. This appeal ground was upheld and matter remitted back to Magistrates Court for error on the presiding Magistrates part in failing to consider the above two sections which deals specifically with dismissal for want of prosecution.
20. What is clear after reading both sections and case of Aitorea is, the Magistrate can only invoke the discretion to dismiss charge for want of prosecution if the prerequisite matters as stipulated above are present. Obviously, the public prosecutor was in court when he made the application for adjournment, this in itself should strike a chord that if this court proceeds to grant the application for dismissal under either section, then clearly it would be without legal basis. For reason that the Magistrates Court is a creature of statute, I wish not to accept the defence application for dismissal on want of prosecution which would simply getting us overboard.
    

No further adjournments in Gizo

21. For what has now become apparent, I will not entertain any further adjournment for trial in Gizo. The office of DPP, Public Solicitors Office, National Judiciary and the Defendant has incurred substantive costs for the past few adjournments made in Gizo, all these adjournments apart from the vior dire trial never progressed effectively.
    
22. We cannot continue to allow another time for vacation which will simply affect the purpose of fair trial. I noted that the DPP officer in carriage, PSO officer in carriage and the Mandarin interpreter are all Honiara based. Further, most of the witnesses are stationed in Honiara and other provinces. Only two witnesses which were regarded as crucial resides in Western Province and no constructive information given to confirm their availability. Therefore, in my view if I am to adjourn this matter again here, it will simply be akin to throwing a fishing line in a drain/ pothole so to speak, effectively one would have anticipated that he or she will get nothing, similarly we will simply exhaust all the allocated office funds when we reach the trial proper.

High Court ex-parte order dated, 12^th April, 2018

23. I acknowledge that the High Court ex-parte order granted on 12^th April, 2018, is an interim order and had served its specific purpose, thus, it’s legal effect must now be redundant for that reason.
    

Decision

24. Upon considering what I have discussed earlier in this ruling I make my decision as follows: -
    1. Dismissed both applications by the Crown and Defence.
    2. Order that this matter be hereby transferred back to Central Magistrates Court in Honiara for setting of a trial date and effective progression.
    3. The matter will be brought before the attention of Mr. Andrew Talasasa for allocation and fixing of an appropriate date for trial proper before another Principal Magistrate.
    4. Defendant’s bail is hereby extended on the same terms until summon to attend the Central Magistrates Court in Honiara for mention or trial.
    5. Order accordingly.
       

THE COURT

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MR. LEONARD. B. CHITE

Principal Magistrate

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^[1] See section 191 of the Criminal Procedure Code
^[2] [1971] VicRp 7; [1971] VR 72

^[3] [2011] SBHC 23
^[4] Ibid