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Hussein v The Prices & Incomes Board [2005] FJHC 450; HAA0058J.2005S (21 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0058 of 2005S

Between:

SAJJAD HUSSEIN
Appellant

And:

PRICES & INCOMES BOARD
Respondent

Hearing: 14th October 2005
Judgment: 21st October 2005

Counsel: Mr. R. Sharma for Appellant
Mr. H. Rabuku for the Respondent

JUDGMENT

This is an appeal against a sentence of a total of $3,000 in fines, imposed for three breaches of the Counter-Inflation Act Cap 73.

The first charge read as follows:

Statement of Offence

FAIL TO GIVE TWELVE WEEKS WRITTEN NOTICE TO THE PRICES AND INCOMES BOARD FOR THE PROPOSED INCREASE IN RENT: Contrary to paragraph 2 of the Counter-Inflation (Notification of Proposed Increase in Rent) Order 1996 (Legal Notice 63/96) and sections 30(1) and 32 of the Counter-Inflation Act, Cap 73.

Particulars of Offence

SAJJAD HUSSEIN f/n Mohammed Hussein, did on the 24^th day of June 2003, at Suva in the Central Division, being the landlord of a residential premises proposed an increase in the monthly rent from $250.00 to $300.00 failed to give twelve weeks written notice to the Prices and Incomes Board for the said proposed increase in the monthly rent in respect of the letting of the said premises under the tenancy to which the Act applies.

The remaining two charges were in identical terms except that they relate to two other flats in the same block.

Initially, the Appellant pleaded guilty to the charges, on the 11^th of November 2004 but when he said, in mitigation, that it was his brother who had increased the rent, the learned Magistrate correctly set aside the pleas and entered pleas of not guilty instead.

After several mention dates, the pleas were again taken on the 11^th of April 2005. The Appellant’s plea is not recorded, but it is apparent from the record that his intention was to plead guilty. Counsel for the Appellant does not submit otherwise.

The facts were that the Appellant owned (and owns) four residential flats at Amy Street in Toorak. There were rent restriction orders in place, for each of these flats. Without giving notice to the Prices and Incomes Board, the Appellant increased the rents on three of the four flats to $300 from either $250 or $255 per month. He did so without giving the requisite 12 weeks notice to the Board. Under caution the Appellant said that he needed to increase the rent to meet his loan repayment. A copy of the tenancy agreement of the 24^th of June 2003 in respect of one of the three flats was tendered in evidence.

These facts were admitted. He was a first offender. In mitigation he said that although he was not the legal owner in 2003, he was the landlord. He confirmed that he owned four flats.

The sentencing remarks then read as follows:

“The Accused is hereby fined $1000 for each of the 3 Counts in default 3 months imprisonment on each count. Sentence to run consecutively plus $50.00 costs in default 14 days. Time to pay – 29 days to pay.”

The Appellant now appeals against sentence, saying that the sentence was wrong in law, and manifestly high, and that the learned Magistrate did not allow the Appellant to mitigate. In her submissions at the hearing of the appeal, counsel for the Appellant submitted that the Magistrate exceeded his jurisdictional limit on fines, that the fines were imposed without a means test as to the Appellant’s ability to pay, that the “in default” clause was contrary to section 35(2) of the Penal Code and that the total fine was unduly harsh and excessive.

Counsel for the Respondent opposed the appeal saying that the court was empowered by statute to pass the fines imposed, and that the Counter-Inflation Act, the provisions of which were intended to protect the tenant from unconscionable increases in rent, was at last being enforced.

There is no dispute that the Act applied to the premises owned and letted by the Appellant.

Paragraph 2 of Legal Notice No. 63 of 1996 provides:

“At least twelve weeks written notice shall be given to the Pries and incomes Board of any proposed increase in any rent including ground rental in respect of the letting or continued letting by any person or class of person (including the State) of any premises under any tenancy to which the Act applies.”

Section 30(1) of the Counter-Inflation Act provides that any person who contravenes any order made under the Act, shall be guilty of the offence. Section 32 of the Act provides that any person who commits an offence under the Act shall be liable to a fine not exceeding $2000.

The maximum fines that can be imposed by the Magistrates’ Court is $15,000. Section 7 of the Penal Code was amended in 2003 to raise the jurisdictional limit of the Magistrates’ Court. There is therefore no question of the learned Magistrate exceeding his jurisdictional limit.

However, no fines should be imposed in any court without first conducting a means test. As D.A. Thomas in his “Sentencing Principles” said at page 320:

“... a fine should not normally be imposed without an investigation of the offender’s means, and the amount appropriate to the offence considered in the abstract should be reduced, where necessary, to an amount which the offender can realistically be expected to pay.”

In Haroon Khan v. The State 40 FLR 182, Pathik J referred to R v. King (1970) 2 ALL ER 249 and R v. Lewis (1965) Crim. L.R. 121, and quashed a fine where the Magistrate failed to inquire into means before imposing a fine. In Earle Underwood v. Reg. Crim. App. No. 69 of 1983, Kermode J said:

“Where a Magistrate proposes to impose what he considers might be a large fine for the person he has convicted, a lot of time, trouble and expense would be saved if he made inquiry of that person’s means before imposing the fine.”

In Sereima Bokadi v. The State Crim. App. HAA0075 of 2002S, I said:

“In assessing means, the sentencing court should consider regularity of employment, expected and current wages, financial burdens on the offender, and other sources of income. Fines should not be ordered to be paid over excessive periods of time, and it is wrong in principle to order payment of fines expecting another person to pay it (other than the offender). The exception is the payment of a juvenile’s fines by his parent or guardian. Lastly, in assessing the offender’s means, a court is entitled to rely upon information given to it by the offender and is under no duty to conduct an independent means of inquiry.”

As was said in Wright v. R (1977) Crim. L.R., although the court must ask about the offender’s means, the offender himself had the responsibility of providing such information to the court as wages slips, bank statements and mortgage payments.

In this case there was no means inquiry at all. In the course of the outlining of the facts, the court was told that the Appellant owned four flats, from which he received a monthly income of $1000. There was no further inquiry about his mortgage repayments, the size of any dependent family or any other regular expenses. Although the $1000 fine per count appears to be correct in principle, the learned Magistrate failed to inquire into the Appellant’s ability to pay the fine. In the absence of such inquiry, no committal warrant could have been issued for a sentence of imprisonment to be served in default of payment, because of the terms of section 23(2) of the Constitution. That section provides that a person may not be deprived of his personal liberty by court order on the ground of failure to pay a fine, unless the court considers “that the person has wilfully refused to pay despite having the means to do so.”

The sentences imposed must therefore be quashed, and the case must be remitted to the same Magistrate, to sentence afresh after conducting a means inquiry. It is the Appellant’s duty to take to court, all relevant documents showing his monthly expenses and income.

This appeal is allowed.

Nazhat Shameem
JUDGE

At Suva
21st October 2005