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Suva City Council v Wati [2011] FJHC 338; HAA065.2010 (31 May 2011)

IN THE HIGH COURT OF FIJI
APPELLATE JURISDICTION

SUVA MAGISTRATES COURT CASE NO.99 OF 2009
CRIMINAL APPEAL CASE NO.: HAA 065 OF 2010

BETWEEN:

SUVA CITY COUNCIL
APPELLANT

AND:

VIMLA WATI
RESPONDENT

Counsels: Mr. N.Lajendra for Appellant
Mr. D.Singh for Respondent

Date of Hearing: 15th and 22nd March 2011
Date of Judgment: 31st May 2011

JUDGMENT

1. The Appellant Suva City Council had filed a complaint against the Respondent Vimla Wati in the Magistrate's Court under Regulations 12 (1)(2), 17 (7), 18 and 137 (1) of the Towns (Building) Regulations made pursuant to Public Health Act (Cap 111).
   

The particulars stated in the charge sheet was as follows:

"Particulars of Offence

VIMLA WATI f/n Binessar Singh of 24 Burerua Street, Suva in the Central Division did on the 5th day of August, 2009 having been served with a notice by the Building Surveyor of Suva City Council to pull down and remove the unauthorized structure namely illegal girls hostel (double storey building, 2 units) on Certificate of Title No. 11900 being Lot 9 on D.P.2705 at 24 Burerua Street, Suva without having plans and specifications approved by the Council, failed to comply with such notice."

2. The complaint was filed on 17/07/09. After several calling dates the Respondent pleaded guilty to the charge on 24/05/10. Thereafter this case was mentioned on 26/05/2010, 28/06/10, 15/07/10, 09/08/10 and 09/09/10. On the 09/09/10 the Magistrate had passed the sentence.

3. The Learned Magistrate had imposed a $100.00 fine in default 10 days imprisonment. Further she was also ordered to pay $150.00 cost to the prosecution in default 15 days imprisonment.

4. Having aggrieved with the said sentence the Plaintiff appellant preferred an appeal.

5. The Appellant submits that the sentence is manifestly lenient and contrary to law.

6. Counsel for the appellant submits Court to consider section 137 (1) of the Town (Buildings) Regulations made pursuant to Public Health Act (Cap 111) and sections 61 and 56 of the Sentencing and Penalties Decree, 2009.

7. Section 137 (1) of the Town (Building) Regulations states as follows:

"Any person who erects a building in contravention of these Regulations shall be liable to a fine not exceeding $100 and also a daily fine not exceeding $10.00 per day for any continuation of the offence."

8. Section 61 (1) of the Sentencing and Penalties Decree 2009 reads as follows:

"Transitional provisions"

"A Court hearing any proceeding for an offence which was commenced prior to the commencement of this Decree shall apply the provisions of this Decree if no sentence has been imposed on the offender prior to the commencement of this Decree."

9. Sentencing and Penalties Decree 2009 came into operation on the 1st February 2010. In this case the Respondent pleaded guilty on the 24th May 2010 and the Sentence was imposed on 9th September 2010. Undoubtedly the Decree is applicable to this case.

10. The fine stated in the original Act was amended by Section 56 (1) (a) of the Sentencing and Penalties Decree 2009.

The above section reads as follows:

"In all Acts, Decrees, Promulgations and Regulations now or at any time in the future in force in Fiji –

(a) a reference to the imposition of a fine or maximum fine of less

than $100 shall be deemed to impose a fine or maximum fine, as the case may be, of $100, unless otherwise specified in Regulations made under section 58;

(b) a reference to a fines expressed as dollars shall become a reference to an amount of penalty units being 1 penalty unit for each $100 of the fine, and one penalty unit for a remaining amount of a fine that is less than $100."

11. Date of offence stated in the plaint was 5th August 2009; the Sentencing and Penalties Decree 2009 came into operation only on 01/02/2010. Section 59 (1) of the said Decree states as follows:

"The penalties fixed by the operation of this Decree shall apply only to offences committed after the date of commencement of this Decree."

12. As per the above section, this Decree will not operate retrospectively. On a mere reading of this section enhanced fine will not apply to this offence.

13. Considering Section 61 (2) of the Sentencing and Penalties Decree 2009 reads as follows:

"On the hearing of any appeal against a sentence imposed by a court prior to the commencement of this Decree, the court hearing the appeal may –

(a) confirm the original sentence to apply in accordance with any law under which it was made at the trial of the offence; or

(b) vary the original sentence and impose any sentence in accordance with this Decree."

(Emphasis added)

14. On mere reading of section 59 (1) and section 61 (2) the original Court cannot act retrospectively but the appellate court can vary the sentence in accordance with the Decree.

15. If this Court uses the theory of the literal rule of interpretation of statute, the respondent should be imposed a fine according to the new amendment.

16. When an accused is punished, he should be punished by the law at that time. This theory is globally accepted. Therefore finding of the Magistrate, that the Respondent to pay $100 is acceptable and this Court also agree with the said fine.

17. Section 56 (2) of the Sentencing and Penalties Decree 2009 states as follows:

"Sub-section (1) does not apply to fines that are expressed to be for continuing offences, which shall be set at one-half of the substantive fine for each day that an offence continues, and these shall be expressed as penalty units in accordance with sub-section (1)."

18. As per section 137 (1) of the Town (Building) Regulations and section 56 (2) of the Sentencing and Penalties Decree 2009, the minimum fine for each day, the offence continues is $50.00.

19. The Learned Magistrate had not imposed a continuation fine. In the order he states:

"...since accused pleads guilty before hearing and taken steps to regularize the approval, I do not impose continuation fine..."

20. Section 137 (1) clearly says "shall be liable to a fine not exceeding (now minimum) $100 and also a daily fine ..." (emphasis added) Hence, I am of the view that there is no discretion given to the Magistrate to refrain from imposing a continuation fine. This Court finds this part of the Sentencing is inappropriate and also inconsistent with section 137 (1), therefore the order is unacceptable.

21. Considering the sentencing the Respondent this Court Act under Section 55 (7) (5) of the High Court Rules. The relevant section states as follows:

"The Court may give any judgment or decision or make any order which ought to have been given or made by the court, tribunal or person and make such further or other order as the case may require or person and make such further or other order as the case may require or may remit the matter with the opinion of the Court for rehearsing and determination by it or him".

22. This incident had happened (as charged) on 5th August 2009. Charge was filed on the 17th September 2009. Respondent pleaded guilty on the 24th May 2010 and sentenced on 9th October 2010.

23. As per standard rules on interpretation of statutes, unless the new Act/Decree specifically provides it cannot be implemented retrospectively.

24. Considering the above principle this Court sentence the Respondent as per the law it was then in operation.

25. In the mean time this Court also mindful that the Sentencing and Penalties Decree 2009 came into operation on 1st February 2010. If the Respondent was continuing with the offence, the new law should be applicable to the offence continuing beyond 1st February 2010.

26. Lord Dunedin in Whitney v Inland Revenue Commission (1926) AC 27 at p.52 said:

"A statute is designed to be workable, and the interpretation thereof by a Court should be to secure that object, unless crucial omission or clear direction makes that end unattainable."

This is quoted by Maxwell on interpretation of statutes as an essential guide.

27. The Public Health Act (Cap 111) was enacted on the 1st January 1936 and amended several time subsequently. Relevant section was inserted on 26th October 1965 almost 45 years ago. The money value had been changed very seriously. Therefore the legislators thought fit to amend the minimum fine to suit with the new value of the currency.

28. Considering the mischief of rule of the interpretation of statute the Court should impose the fine from the date of operation for the continuing offence.

29. Having regard to the above, the Court imposes the following sentence on the accused Vimla Wati.

This Court imposes $100.00 fine and $10.00 a day for the continuing offence till 31st January 2011. Fine of $50.00 a day from 1st February 2010 to the 9th October 2010.

For the purpose of easy calculation the breakdown is stated here.

1) Fine $100.00.

2) Fine for continuing offence from 12/08/2009 to 31st January 2010 at the rate

of $10.00. (172 x10) = $1720.

3) Fine for continuation of offence after the amendment from 1st February 2010 to 9th October 2010 at the rate of $50.00. (136 x 50) = $6800.

The total amount of fine is $8620 in default 24 months imprisonment.

30. The accused Vimla Wati is given time to pay the fine in two installment. 1st installment of $4000 be paid on or before 30th June 2011 the 2nd installment of $4620 be paid on or before 15th August 2011.

31. When the fine is fully paid 90% of the said fine to be released to the Suva City Council.

32. 30 days to appeal.

33. Appeal allowed.
    

S Thurairaja

Judge

At Suva

Solicitors
Naidu Law for Appellant
Office of the Director of Public Prosecution for State