| Fiji Islands - Daumaka Ltd v Fiji National Provident Fund - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 15 OF 1998
EN:
:
DAUMAKA LIMITED
Appellant
AND:
FIJI NATIONAL PROVIDENT FUND
Respondent
CRIMINAL APPL APPEAL NO. 16 OF 1998
IGN=CENTER>BETWEEN:
:
GAO ZHONG LIN
Appellant
AND:
FIJI NATIONAL PROVIDENT FUND FUND
Respondent
Cou Mr J Maharaj forj for Appellants
Mr A Gates for Respondents
Hearing: 16th July l998
Decision: 20th July 1998
DECISION OF P.
Two related appeals against sentence have been been heard together. They involve identical prosecutions under the Fiji National Provident Fund Act against the appellant company Daumaka Limited and against Gao Zhong Lin, a director of Daumaka Limited who, in terms of Section 52
the Act, is deemed to be guilty of offences committed by the company. For convenience I will refer to them respectively as the company
and the director.
Two identical charges were laid in Magistrates Court against both, the company and the director. These alleged:
1. A failure on 1.1.2.96 to pay FNPF contributions of $33.60 for the month of November 1996 in respect of an employee Maria Dimara
(Sections 13 & 49(1)(b).
2. A failure on 15.10.96 to pay FNPF a surcharge of $156 on the total amount of contributions that had not been paid to the Fund (Sections
14 & 49(1)(f).
Each charge carries a maximum penalty of a fine of $500 or imprisonment for one year.
The summonses for these charges were served on the company and the Director on 11th August 1997. At the same time they were each served
with a notice pursuant to Section 50 of the Act giving details of contributions of other employees unpaid for the period from November
1995 to November 1996 amounting to $6549.06 and a notice pursuant to Section 51 of the Act of surcharges on contributions that had
been levied and remained unpaid amounting to $406. In terms of sections 50 and 51 a defendant who is convicted under certain provisions
of Section 49 of the Act may be ordered by the Court to pay such outstanding moneys to FNPF and the provisions of the Penal Code relating to fines shall apply thereto.
On 12th January 1998 pleas of guilty to both charges were entered in the Magistrates Court by both the Company and the Director.
The very brief record of the remainder of the hearing on that day states:
"Fact Facts as charged contribution $33.60
Count 1 - on account employer Maria Dimara
Count 2 - Facts as charged. Did not pay $156/-
On Count 1 a sum of $6549.06 is outstanding still.
On Count 2 a sum of $406/- is outstanding.
I also ask for costs $33/-.
Accused: Facts admitted.
Court: Convicted as charged of both counts.
Mitigation: First offender. I ask for leniency.
Financial difficulties.
Court: 20/1/98 (Sentencing)"
Sentence was imposed on 20th January 1998. The brief record of that hearing in respect of the company states:
"COURT SENTENCE: I have considered the mitigating circumstances and pass the following sentence:
Count 1 - Fined $400/- in default distress
Count 2 - Fined $100/- in default distress
I also make order that the accused company pay outstanding sum of $6549.06 together with costs $33. All payments to be made within
21 days in default distress. 28 days to appeal".
The equally brief record in respect of the Director states:
"COURT - SENTENCE: I have considered the mitigating circumstances and pass the following sentence:
Count 1 : Fined $300/- in default 6 months imprisonment
Count 2 : Fined $100/- in default 2 months imprisonment
I also order the accused director to pay costs $33/- in default 15 days imprisonment. Fines and costs to be paid within 21 days. 28
days to appeal".
Both the company and the Director appeal against these monetary penalties. The grounds are that the learned Magistrate failed to place
proper weight on the plea in mitigation , failed to properly consider the financial and economic circumstances of the appellants,
unreasonably ordered payment to be made with 21 days and that the total penalties are harsh and excessive.
This prosecution involved a single charge of failing to pay FNPF contributions of $33.60 and a single charge of not having paid surcharges
of $156. However, both the company and the Director were equally liable for the two breaches. The learned Magistrate had a discretion
as to penalty and as to whether payment of outstanding contributions of $6,549.06 and surcharges of $406 should be ordered. In the
event, the learned Magistrate imposed total fines of $900 for the two single breaches and ordered the company to pay the unpaid contributions
of $6,549.06. With costs the total monetary impositions were $7,515.06. That is a substantial sum that should only be ordered after
due deliberation and a consideration of all the relevant circumstances. Counsel for the appellants submits that this was not done.
Unfortunately, there are some unsatisfactory features in this case.
In the first place, a more comprehensive summary of facts should have been provided by the prosecution. The statement "facts
as charged" will rarely be sufficient. The court hearing the case should be given full details of the offending to assess its
gravity and appropriate sentence. Information regarding the defendant that is relevant to sentence should also be given. This would
include known financial circumstances. All this is best provided in the form of a written summary of facts.
A magistrate is required to keep a record of a proceeding which is to be forwarded to the High Court in the event of an appeal. This
record should include details of any submissions in mitigation. It may not be practical to record every word but the substance of
the submissions should be noted to assist this court in the event of an appeal. In this case the record of the submissions in mitigation
comprises only 8 words, yet counsel for the appellants advises that he addressed the court for approximately 45 minutes. If this
is so, then fuller notes should have been taken by the learned Magistrate and forwarded to this court. The very sparse notes have
placed the appellants at a disadvantage.
Furthermore, the learned Magistrate has given no reasons for the penalties that have been imposed. He merely stated that he had considered
the mitigating circumstances without saying what they were or how they influenced his decision. The imposition of monetary penalties
totalling $7,515.06 is a sentence of some magnitude. Reasons for imposing such a sentence should be given for the benefit of the
accused, for the benefit of this court in the event of an appeal and in the public interest.
Finally, on the face of the record, the learned Magistrate failed to take into account the means of the appellants (particularly the
company) when fixing the monetary penalties and imposing a time limit of 21 days for payment. A court should consider the means of
an offender when considering a monetary penalty. This principle was succinctly stated by the learned Chief Justice in Regina v Saras Wati [1983] 29 FLR 168 at pages 168 and 169:
"It is well established that a Court should not usually impose a fine without first enquiring and satisfying itself as to the
offenders ability or means to pay. In the absence of such an inquiry it is more than possible that an offender will be unable to
pay a fine in time or at all and will, in default, have to serve a sentence that the court originally decided not to impose, namely
imprisonment. ..... The question of allowing time to pay and the length of time to be given should invariably be the subject of representations
by the offender".
All these matters created difficulties for this Court in determining the merits of the appeal. I considered remitting the case back
to the Magistrates Court for rehearing. However, I have received considerable assistance from both counsel which enables me to give
a decision.
Counsel for the Respondents has provided the Court with a schedule of sentences imposed in the Magistrates Court on prosecutions by
FNPF for similar offences over the past 6 months. Both counsel agree that the company should be ordered to pay the outstanding contributions
of $6549.06 but counsel for the appellants advised that the enforcement of payment within 21 days would financially ruin the company’s
business. In view of the paucity of information contained in the record I asked counsel to discuss the ability of the company to
pay the amount due. Counsel for the respondent subsequently advised that FNPF had received a cheque for $1000 and would be prepared
to accept payment of the balance at the rate of $700 per month. Counsel for the appellants advised that this was within the financial
ability of the company to pay.
In my view the total fines of $900 imposed upon the company and the director in this case are manifestly excessive. Although they
are separate legal entities and are separately liable for the default, they are nevertheless both being prosecuted for the same offences.
The schedule of penalties imposed in other cases shows, in respect of limited liability companies, that in 18 cases only the company
has been prosecuted, in 10 cases only a director has been prosecuted and in 9 cases both the company and a director have been prosecuted.
The fines generally range between $50 and $200 where only the company has been prosecuted, between $60 and $225 where only the director
has been prosecuted and $120 to $225 (total of both) where the company and the director have been prosecuted. (There are some exceptional
cases in this latter category where total fines of $400, $600 and $1200 have been imposed, the last two of which both relate to the
same company).
In fixing the fines the Court must have regard to the actual offences in relation to the prescribed maximum of $500. In this case
there were two charges of failing to pay contributions of $33.60 in respect of one employee only and failing to pay surcharges of
$156. The FNPF also sought an order for payment of outstanding contributions of $6,549.06. Charges had not been laid in respect of
these unpaid contributions but they do give some indication of the company’s history in complying with its obligations. They
represent unpaid contributions on total wages of in excess of $46,000. The financial and social purposes of this legislation can
only be achieved with strict compliance by employers.
I have regard to these matters, the fact that the company and the director were first offenders and the level of fines imposed in
other cases. The Appellants have also had the further cost of this appeal. In the circumstances I will reduce the total fines to
$350.
The order for payment of outstanding contributions must stand but payment will be ordered by instalments of $700 per month.
Accordingly, the appeals are allowed and I make the following orders:
1. In respect of Appeal 15/98 by Daumaka Limited (Magistrates Court Case 1229/97):
(a) On count 1, failing to pay FNPF contributions, the fine of $400 is quashed and a fine of $125 is substituted, to be paid within
21 days and in default distress
(b) On count 2, failing to pay surcharge, the fine of $100 is quashed and a fine of $50 substituted, to be paid within 21 days and
in default distress.
(c) The order that the company pay the unpaid FNPF contributions of $6,549.06 together with costs of $33 is confirmed but this total
sum of $6,582.06 is to be paid by instalments of $700 per calendar month and in default of payment of any such instalment the amount
outstanding shall become immediately due and payable and leviable by distress.
2. In respect of Appeal 16/98 by Gao Zhong Lin (Magistrate’s court case 1230/97):
(a) On count 1, failing to pay FNPF contributions, the fine of $300 is quashed and a fine of $125 is substituted to be paid within
21 days and in default 14 days imprisonment
(b) On count 2, failing to pay surcharge, the fine of $100 is quashed and a fine of $50 substituted, to be paid within 21 days and
in default 7 days imprisonment
(c) The order for payment of $33 costs is confirmed but payment is to be made within 21 days and in default 5 days imprisonment.
Justice D B Pain
HAC0015D.98S
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