IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 14/11

MINISTRY OF HEALTH

V

SHALENDRA SINGH

Mr. Naibuka Waqa for the Ministry of Health
Accused appeared in person

Ruling on Cost

1] The Accused is charged with following offence by the Ministry of Health. 

CHARGE:
Statement of Offence [a]
First Count

SALES OF TOBACCO PRODUCTS IN SMALL QUANTITIES: Contrary to Section 16 (1) and Section 16 (2) of the Tobacco Control Decree 63/2010.

Particulars of Offence [b]

SHALENDRA SINGH on the 11th of April 2011 at the Makoi Kava Shop, Makoi, Nasinu in the Central Division did sell a single cigarette roll to Dinesh Singh.

BACKGROUND

2] The prosecution's story as follows. On the 11th day of April 2011, Authorised Officers of the Ministry of Health together with a Police Officer from Valelevu Police Station were inspecting retailers of tobacco products in the Nasinu area when they came across the accused, Mr. Shalendra Singh of 4 Mahendra Street, Davuilevu, Nausori selling a single cigarette roll to a Mr. Dinesh Singh.

3] On the day in question, Authorised Officers Mikaele Kocovanua and Michael Bonnar with Police Constable 3984 Iosefo Lesidra were inspecting retailers in Makoi. At about 6.09 pm, the team was passing by Makoi Kava Shop when Authoried Officer Kocovanua noticed a Mr. Dinesh Singh come out of the shop with an ignited cigarette roll in his hand. Authorised Officer Kocovanua approached Mr. Singh and asked him where he bought the cigarette roll from and he pointed to the shop he just came out from Mr. Singh was also asked if he could identify the person who sold the cigarette roll to him and he pointed at the accused who was serving at the counter that time. Authorised Officer Kocovanua relayed his observations to Authorised Officer Bonnar. 

4] On the basis of the information provided, Authorised Officer Bonnar approached the accused with PC 3984 Lesidra. Authorised Officer Bonnar told the accused that he had committed a prohibited act by selling a single roll. The accused was then booked for the sale of tobacco products in small quantities contrary to Section 16 (1) (a) and (2) of the Tobacco Control Decree 63/2010. The accused was served with a Tobacco Control Fixed Penalty Notice and warned for Prosecution.

5] On 06th June 2011 this case was called in open court and charge was read over to the accused and he pleaded not guilty to the charge. The prosecution then asked adjournment to served disclosures. It was allowed and 15th July 2011 was given to serve disclosures. On that date the prosecution again asked adjournment on same ground. 26th August 2011 was given. On that date the prosecution withdrew charge against the accused under section 169 of the Criminal Procedure Decree 2009 and court gave consent and Accused consequently discharged by the court.

6] On the same day, after withdrawal of charge, the accused made written application for cost. This application was opposed by the prosecution. Then the prosecution submitted written submission in this regard. This Ruling is for today. 

7] The grounds for cost application can be summarized as follows; 

a) The accused operates a small business known as Makoi Kava Centre and due to above case, he had to make nine appearances in court on following dates: 16-05-2011, 23-05-2011,06-06-2011, 17-06-2011,08-07-2011,12-07-2011,15-07-2011,01-08-2011, and 26-08-2011. 

b) Therefore he suffered loss of income including vehicle running cost.

c) There was no evidence against him they should have withdrawn the case rather than dragging it on. 

d) He therefore claims compensation from Ministry of Health as follows

Loss of Income	9X $100 =	$900	
Vehicle Running Cost (Fuel)	9X$20 =	$180	
Total		$1080	

8] In return the prosecution says that the accused in this case is being charged by the Ministry of Health for the sale of tobacco products in small quantities contrary to Section 16 (1) (a) and (2) of the Tobacco Control Decree 2010. The Prosecution alleges that on April 11, 2011, the accused sold a single Benson & Hedges cigarette roll to a Mr. Dinesh Singh at Makoi, Nasinu. The case against the accused was instituted through a Fixed Penalty Notice as provided for under Section 22 (1) of the Tobacco Control Decree 2010. The case was first called on June 6, 2011 and adjourned on three (3) occasions for Service of Disclosures. On the second adjournment date, July 15 2011 the Prosecution had informed the Court if Disclosures were not ready by the next call date, it would consider withdrawing the charge. On August 26, 2011 the Prosecution made an application for the charge against the accused to be withdrawn under Section 169 (1) of the Criminal Procedure Decree 2009.

9] REASONS FOR WITHDRAWAL OF CHARGE has been stated by the prosecution as follows; 

a) The Prosecution's case against the accused is based on the information provided by the buyer, Mr. Dinesh Singh, to the Booking Officer, Mr. Michael Bonnar, that he had bought a single cigarette roll from the accused on April 11, 2011.

b) When the matter was adjourned on the first two occasions by Your Worship, the Prosecution made a number of attempts at great expense to the State to locate the buyer so that his statement could be taken down but to no avail.

c) Without the evidence of the buyer, the Prosecution would not be in a position to successfully prove the charge against the accused.

d) In the absence of the Prosecution's primary witness and to avoid further wasting the Court's precious time, the Prosecution advanced an application on August 26, 2011 to this Honorable Court for the charge against the accused to be withdrawn under Section 169 (1) of the Criminal Procedure Decree 2009.

THE LAW ON AWARDING OF COSTS

10] Section 150 of the Criminal Procedure Decree 2009 provides the Court powers to award costs against the accused or the Prosecutor. It says; 

"A judge or Magistrate may order any person convicted of an offence or discharged without conviction in accordance with law, to pay to a public or private Prosecutor such reasonable costs as the Judge or Magistrate determines in addition to any other penalty imposed".

11] Furthermore, Section 150 (2) of the Criminal Procedure Decree 2009 stipulates that:-

"A Judge or Magistrate who acquits or discharges a person accused of an offence, may order the Prosecutor, whether public or private, to pay to the accused such reasonable costs as the Judge or Magistrate determines".

12] However, Section 150 (3) of the Criminal Procedure Decree 2009 states that:-

"An order shall not be made under Sub-Section (2) unless the Judge or Magistrate considers that the Prosecutor either had no reasonable grounds for bringing the proceedings or has unreasonably prolonged the matter"

13] In the light of the above provision court could evade the awarding of cost if the prosecutor had reasonable grounds for bringing the proceedings or has not unreasonably prolonged the matter. 

14] The Prosecution says that it had reasonable grounds for bringing proceedings against the accused before the Court and not to abuse our Court process. If the Prosecution had been able to locate its primary witness and obtain his written statement, it would have been able to provide the accused with his Disclosures within reasonable time. In addition, the absence of its primary witness's evidence would not have allowed the Prosecution to successfully prosecute its case against the accused should this matter proceed to trial. The Prosecution also submits that it did not waste the Court's precious time by unnecessarily prolonging this matter.

DETERMINATION

15] It could be noted from the Court Record that this particular case was only adjourned on three (3) occasions from the first call date to the day the Prosecution advanced its application for withdrawal of charge. The case records clearly indicates case was called on 06th June 2011 and plea was taken and date given to serve disclosures. On 15th July again prosecution moved a date to serve disclosures. On 26th August 2011, the charges were withdrawn by the prosecution. Thus, this court cannot hold that there is an unreasonable delaying or prolonging this matter. Therefore only ground avails for awarding cost is Prosecutor had no reasonable grounds for bringing the proceedings. 

16] In State v Basa [2011] FJHC 446; HAC138.2010 (18 August 2011) His Lordship Justice S Thurairaja extensively discussed with awarding cost against the State. In considering that the prosecutor had no reasonable grounds to bring this action, I note that the prosecutor was acting on PW1's, Mr. Dinesh Singh's deposition. They said that they cannot find or locate the PW1. It seems at the time of detection that authorised officer failed to record the statement. This is a sheer lack of negligence by the authorised officer. If he could have recorded PW1's statement then and there, there won't be any difficulty to serve disclosures or to be prosecuted promptly. 

17] In Basa( supra) case the court consider in awarding cost against the State the terms of improper, unreasonable behaviour and negligent.. In this case the authorised officer acted negligently. Definition for Negligent was described in Basa case (supra) considering English Authorities. It was held; 

 "Negligent" was to be understood in an untechnical way to denote failure to act with the competence reasonably expected of ordinary members of the profession.

18] This all impediments for non prosecution were created by the authorized officer who did not record the PW1's statement. Without evidence in hands the prosecution has filed the case. The authorized officer therefore acted negligently. They may have thought that the accused would plead guilty and case may be easily ended up. If this is the way they do in other cases, serious concern to be drawn by the higher officials. Because that the Prosecutor had no reasonable grounds/evidence for bringing the proceedings. I therefore hold that this case had been filed without evidence to prove its charge and the prosecution is liable to pay cost to the accused. 

19] The next question is the quantum of cost. It is clear that case called only three days in open courts. Thus, the accused cannot claim 9 days. The accused said that he closed the Kava shop on these days and he lost his income, which is $100 per day. Then he must be paying tax to the Inland Revenue Department. Surprisingly, he did not produce payment of tax or any other proof that he earns $100 per day. The accused further claims vehicle running cost, but he did not tender any fuel receipts to that effect. As the prosecution failed to prove their case, the accused failed to prove his claim. Awarding cost is a discretionary remedy. The accused should adduce or produce materials to exercise court's discretion, mere assertion that he suffered a loss due to the action of prosecution, is inadequate to exercise court's discretion, it must be well founded. 
20] I therefore make following orders;

a)	The accused's application for cost is hereby dismissed

b)	No cost in this application

c)	The accused has liberty to file civil action

On 24th October 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu