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Prasad v State [2021] FJCA 256; AAU77.2020 (29 December 2021)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU 77 of 2020

[In the High Court at Suva Case No. HAA 028 of 2020]

[In the Magistrates Court at Suva case No.567/20]

BETWEEN:

KUNAL EDWIN PRASAD
JAGJEET SINGH
ASHWIN CHANDRA

Appellants

AND:
THE STATE

Respondent

Coram: Prematilaka, ARJA

Counsel: Appellants absent and unrepresented

: Mr. R. Kumar for the Respondent

Date of Hearing: 24 December 2021

Date of Ruling: 29 December 2021

RULING

[1] The appellants were charged in the Magistrates court at Suva with one count each of criminal trespass contrary to section 387 (1) (a) (3) and theft contrary to section 291 (1) of the Crimes Act No. 44 of 2009.

[2] All of them had pleaded guilty to the said charges and upon conviction, 01^st and 03^rd appellants were sentenced to an aggregate imprisonment term of 10 months’ with a non-parole period of 08 months and 03 weeks while the 02^nd appellant was sentenced to an aggregate imprisonment term of 09 months with a non-parole period of 07 months and 03 weeks.

[3] According to the High Court judgment, the gist of the appellants’ appeal against sentence had been described as follows:

2. Being aggrieved by the said sentences, the Appellants filed a joint in this Chis Court o fohe following grounds (in verbatim):
   
   1. That the sentencing Magistrate failed to give suve sufficient credit for mitigating circumstances, factors of remorseful [sic] thus consideration [sic] accused previous convictions.
      
   2. That the sentencing Magistrate has failed to consider the fact while preparing the sentencing delivering:
      
      1. That the stolen items were fully recovered
      2. That the accused all did cooperate and offer assistance to the police during investigation guilty remorsefully confess in caution interview statement.
         100. While considering suspend [sic] sentence see: paragraph 190 (?) considered accused previous conviction thus punished accused as double jeopardy.
              

[4] In a well-considered judgment, the learned High Court judge had dismissed the appellants’ appeal on 01 July 2020.

[5] Thereafter, all three the appellants had lodged ‘An application for review of the Judgment’ and in addition, the 01^st and 03^rd appellants had filed an ‘Application for the Stay on Proceedings ..’. As the appellants had tendered the above papers in person this court decided to treat their so-called applications as a second-tier appeal under section 22 of the Court of Appeal Act against the High Court judgment.

[6] The matter came up before this court on 29 March 2021, 22 October 2021, 29 November 2021 and 24 December 2021. None of the appellants was present in court on any of the said dates.

[7] The affidavit filed by the respondent reveals that the 01^st and 02^nd appellants had served their sentences and been released from prison. The 03^rd appellant is supposed to be serving a sentence in respect of another case but had served the sentence imposed on him in this case.

[8] There is documentary proof attached to the respondent’s affidavit by way of ASP R. Taoka’s ‘service of notice of motion’ of the notice of motion being served on the 01^st and 02^nd appellants via the sister of the 01^st appellant and wife of the 02^nd appellant respectively notifying them of the mentioned date of 24 December 2021.

[9] It is very clear that the appellants are attempting to canvass the same issue namely that the Magistrate had allegedly not considered the fact of recovery of stolen items in the matter of sentence which was canvassed in the High Court, in the current proceedings before this court.

[10] Upon a perusal of the High Court judgment, it becomes abundantly clear that the learned High Court judge had dealt with it correctly as follows:

15. According to the Summary of Facts admitted, the stolen items were recovered by the police in a seizure based on information provided by an informant, and not as a result of ‘any action taken by the offender to make restitution for the loss arising from the offence’. There can be no doubt that the recovery mitigated the harm caused to the victim. However, the recovery in this case in my opinion cannot be regarded as an indication of remorse on the part of the Appellants. Therefore it cannot be said that the Learned Magistrate erroneously failed to take this consideration into account as an indication of remorse.
    

[11] Therefore, there is no question of law in this second-tier appeal. Some examples of actual questions of law could be found in Naisua v State [2013] FJSC 14; CAV0010.2013 (20 November 2013), Morgan v Lal [2018] FJCA 181; ABU132.2017 (23 October 2018), Ledua v State [2018] FJCA 96; AAU0071.2015 (25 June 2018) and Turaga v State [2016] FJCA 87; AAU002.2014 (15 July 2016).

[12] The right of appeal against a decision made by the High Court in its appellate jurisdiction is given in section 22 of the Court of Appeal Act. In a second-tier appeal under section 22 of the Court of Appeal Act, a conviction could be canvassed on a ground of appeal involving a question of law only [see also paragraph [11] of Tabeusi v State [2017] FJCA 138; AAU0108.2013 (30 November 2017) and designation of a point of appeal as a question of law by the appellant or his pleader would not necessarily make it a question of law [see Chaudhry v State [2014] FJCA 106; AAU10.2014 (15 July 2014). It is therefore counsel’s or an appellant’s duty properly to identify a discrete question (or questions) of law in promoting a section 22(1) appeal (vide Raikoso v State [2005] FJCA 19; AAU0055.2004S (15 July 2005).

[13] A sentence could be canvassed only if it was unlawful or passed in consequence of an error of law or if the High Court had passed a custodial sentence in substitution for a non-custodial sentence [vide section 22(1)(A) of the Court of Appeal Act].

Jurisdiction of a single Judge under section 35 of the Court of Appeal Act

[14] There is no jurisdiction given to a single judge of the Court of Appeal under section 35 (1) of the&#1 href="http://www.paclii.orii.org/fj/legis/consol_act/coaa157/">Court of Appeal Act to consiuch an appeal made made under section 22 for leave to appeal, as leave is not required under section 22 but a single judge could still exercise jurisdiction undction 35(2) [vide Kumar v State [2012]2012] FJCA 65; AAU27.2010 (12 October 2012] and if the single judge of this Court determines that the appeal is vexatious or frivolous or is bound to fail because there is no right of appeal the judge may dismiss the appeal under section 35(2) of the Court of Appeal Act (vide Rokini v State [2016] FJCA 144; AAU107.2014 (28 October 2016)].

[15] Therefore, if an appeal point taken up by the appellant in pith and substance or in essence is not a question of law then the single judge could act under section 35(2) and dismiss the appeal altogether [vide Nacagi v State [2014] FJCA 54; Misc Action 0040.2011 (17 April 2014), Bachu v State [2020] FJCA 210; AAU0013.2018 (29 October 2020)], Munendra v State [2020] FJCA 234; AAU0023.2018 (27 November 2020) and Dean v State AAU 140 of 2019 (08 January 2021), Verma v State [2021] FJCA 17; AAU166.2016 (14 January 2021) and Narayan v State [2021] FJCA 143; AAU39.2021 (10 September 2021) and Wang v State [2021] FJCA 146; AAU47.2021 (17 September 2021)].

[16] The appellants cannot seek a rehearing of the appeal before the High Court in the Court of Appeal. The narrow jurisdiction under section 22 of the Court of Appeal Act is for the Court of Appeal to rectify any error of law or clarify any ambiguity in the law and not to deal with any errors of fact or of mixed fact and law which is the function of the High Court. That is the intention of the legislature and the court must give effect to that legislative intention.

[17] I have already concluded that no question of law alone has been urged by the appellants and therefore, the appeal should be dismissed in terms of section 35(2) of the Court of Appeal Act.

Order

1. Appeal (bearing No. AAU 77 of 2020) is dismissed in terms of section 35(2) of the Court of Appeal Act.
   

Hon. Mr. Justice C. Prematilaka

ACTING RESIDENT JUSTICE OF APPEAL