IN THE HIGH COURT OF FIJI
AT LAUTOKA
IN THE WESTERN DIVISION

MISCELLANEOUS ACTION NO.: 241 OF 2014

BETWEEN:

AZAD MOHAMMED
APPELLANT

AND:

MINISTRY OF HEALTH
RESPONDENT

Counsels: Appellant in Person
Mr. S. Babitu for the Respondent

Date of Judgment: 23rd July, 2015

JUDGMENT

1. On the 25th day of August, 2014 the Appellant was found guilty after trial on the following charge and was convicted by the Magistrate's Court at Sigatoka.

CHARGE
Statement of Offence

 Sale of Tobacco Products in Small Quantities: Contrary to Section 16 (1) (9) and (2) of the Tobacco Control Decree 63/2010.

Particulars of Offence

 AZAD MOHAMMED on the 26th day of April, 2013 at Kabisi, Sigatoka in the Western Division did sell a loose cigarette roll to Mr Anil Kumar.

2. Upon the conviction of the said offence, the Appellant was fined ten penalty units equaling to FJD1,000.00. 

3. Appellant's application for leave to appeal out of time was successful and the matter is now before this Court for the substantive appeal.

4. Facts

The Appellant is a shop owner in Semo, Sigatoka running his business namely, Azad Mohammed & Sons Shop.On 26.04.2013, the Ministry of Health issued a Tobacco Control Fixed Penalty Notice on the Appellant for selling a roll of cigarette to one Anil Kumar. 

On 24.03.2014, trial began in the Sigatoka Magistrates Court.The Court, on the 25th of August 2014, found the Appellant guilty. The Appellant was accordingly fined FJD 1,000.00.

5. Grounds of Appeal

The Appellant appeals the conviction upon the following grounds:
 
I. THAT the Appellant attended Court despite knowing that he was not the person who was issued with the summons to attend Court. That the name and the address of the Appellant do not match with the name on the summons. The Appellant being a law abiding citizen attended Court as he was asked to, and tried to avoid unnecessary hassle with the law.

II. THAT the learned Magistrate failed to consider that the offence was not serious having regard to the criminal proceedings between the parties, rather caution the Appellant.

III. THAT the learned Magistrate failed to take into account that there was no direct evidence of the loose cigarette roll being sold to one Anil Kumar by the Appellant.

IV. THAT the learned Magistrate failed to give weight to the Appellant evidence although such evidence was given under oath of the Holy Koran.

V. THAT the learned Magistrate did not give a chance to the Appellant to call his witness for his defence although he had asked for his witness to be called, namely Varanisese, the Appellant's house-girl and shop assistant and Mr. Shameem Khan the Appellant's 3rd witness was labeled as a convicted person and his evidence was not considered at all.

VI. THAT the learned Magistrate failed to consider that at no time any of the Respondent's witnesses had stated in Court during the hearing that a single roll of cigarette was sold to Mr. Anil Kumar and that there was no cigarette roll present on the shop counter as evidence. But Panadol tablets were given as asked for. The Appellant has been a shop-keeper for his entire life and knows the difference between cigarette rolls and Panadol tablets. Further submit that no cigarette roll was tendered as exhibit before the Magistrate that it was sold.

VII. THATthe learned Magistrate allowed all the witnesses of the Respondent to give evidence and all their evidence was heavily considered, and that their previous convictions and criminal records were not disclosed as of Mr. Shameem Khan's (the Appellant's 3rd witness).

VIII. THAT the learned Magistrate failed to consider that Mr. Anil Kumar is not a residence of the Appellant's area or settlement and that the Appellant is at Semo Settlement from birth, and that he was framed by neighboring shop owners and Mr. Anil states that he walked 1 (one) kilometer to buy 1 roll of cigarette living on his way 7 (seven) different shops before coming to the Appellant's shop.

IX. THAT the learned Magistrate failed to discover that the Appellant was a victim of jealousy by the other shop owners of the area/settlement and the misunderstanding of the health enforcement officer of which resulted in the suffering of the Appellant in this case.

X. THAT the learned Magistrate failed to consider that the Appellant did not sell any cigarettes prior to the 30th day of June, 2013, because he had no license certificate to do so as the T.I.N. from the Health Department is dated 26th April, 2013. That without the said license the Appellant will not be supplied cigarettes (tobacco) from the Central Manufacturing Company (CMFL)Tobacco Company and wholesale agent.

XI. THAT the learned Magistrate had already decided to deliver his judgment against the Appellant rather being fair.

XII. THAT the learned Magistrate failed to give the Appellant a fair opportunity to defend his case and carefully examining the Respondent's evidence, which was baseless and fabricated.

XIII. THAT the learned Magistrate failed to recognize that name and address of the Appellant does not match with his business license and other official documents.

XIV. THAT the learned Magistrate approached the judgment exercise as if it was a mechanical process.

XV. THAT the learned Magistrate failed to deliver a fair and correct judgment as the judgment dated 25th August, 2014 speaks for itself that Appellant's witness and evidence was not considered at all.

XVI. THAT the learned Magistrate was biased and incorrect.

6. Both parties have filed written submissions. Having considered the submissions, I proceed to give my finding on each ground of appeal as follows;

7. The Appellant's first ground is based on the argument that his name is different from that of summons to attend Court and that it was a person of a different address. Appellant's name as per his affidavit is Azad Mohammed and his address is Semo Settlement, Sigatoka. Whereas in the Notice issued to him, his name is written as Asad Mohammed and the address as Semo, Sigatoka. There is only a slight difference. It is quite obvious from the Magistrates Court record that the Appellant was the person to whom the Fixed Penalty Noticehad been issued. The case before the Magistrate was based on the Fixed Penalty Notice issued to the Appellant. The appellant has not raised any preliminary objection before the Magistrate in this regard. The ground submitted does not have merit and it fails.

8. The Appellant, in his second ground of appeal, submits that the offence was not serious and a caution would have been sufficient. This is a case where the Magistrate is empowered to recover the fixed penalty imposed by an authorized officer under the Tobacco Control Decree 63/2010. The Magistrate's power to exercise his discretion in sentencing is limited. The Magistrate correctly followed the law and the Accused was dealt with according to the Tobacco Control Decree.

9. The Appellant in his third ground of appeal submits that there was no direct evidence that a roll of cigarette was sold to one Anil Kumar. According to the particulars of offence in the Fixed Penalty Notice issued to the Appellant, the name of the person to whom the roll of cigarette alleged to have been sold was Anil Kumar. The person who had given evidence in the Magistrate Court was Pranesh Chand, not Anil Kumar. Evidence had been led by the Prosecution on the basis that it was Pranesh Chand that had gone to buy the roll on the said day. Evidence was also adduced that the Appellant had sold a roll of cigarette to Pranesh Chand with the code of "Panadol". Praneshhad said that he paid $1.00 to the Appellant and identified the Appellant as standing in Court. No issue in respect of his identity had been raised by the Appellant at the trial. Appellant had not been embarrassed or prejudiced by the defect. 

10. In the case of State-v-David Charles JenkinsHAR 002 of 2011 (09.12.2011) Justice Goundar had noted the following:

 There is now a line of cases that has established that the failure to specify subsection of the offending statute or an essential element of the offence makes a charge defective but not bad in law (Skipper v. R [1979] FJC 6; Shekar & Shankar v. State Criminal Appeal No. AAU0056 of 2004; State v. Singh Criminal Appeal No.AAU0097 of 2005S and Mudaliar v. State Criminal Appeal No.AAU0032 of 2006). The question that should be asked is whether the Accused was embarrassed or prejudiced by the defect?

 In considering the question of embarrassment or prejudice, the timing of the objection to the defect is relevant. In the present case, the objection to the defect was taken by the Respondent after the close of the Prosecution case. There is no suggestion that any objection to the defect was taken before the commencement of trial. Clearly, counsel reserved the objection until the close of the Prosecution case, knowing the charge cannot be amended after the close of the Prosecution case (see, s.182 of the Criminal Procedure Code). While there is nothing improper for reserving objection to defect in the charge until after the close of the case for the Prosecution, by not raising an objection to the defect before commencement of trial, the Accused indicates to the Court that he or she have understood the charge and is prepared to defend the allegation. I find that to be the case with the Respondent. He engaged counsel to defend the charge and there is nothing in the learned Magistrate's ruling to suggest that counsel was embarrassed by the defect in defending the charge. If anything, the Respondent knew the allegation against him and his counsel knew the charge he was instructed to defend.

11. By not taking objection and by not challenging the identity when he cross-examined Pranesh Chand, the Appellant had conceded that it was Pranesh Chand who came to his shop that day. Appellant was not embarrassed or prejudiced and chose to defend the case by calling witnesses who did not dispute the identity of Pranesh Chand. There is no merit in this ground and it fails. 

12. The Appellant submits that the Magistrate failed to give weight to his evidence presented under oath as his fourth ground of appeal. It is apparent that the learned Magistrate had in fact considered the evidence of the Appellant and had given due weight to it. He had not believed the Appellant for reason. The learned Magistrate had doubted the need to call the wife of the Appellant when PW.1 wanted to buy a roll of cigarette. He had not seen any reason as to why PW.1 had to go out and run. The Magistrate had correctly noted that the evidence of the Appellant and that of his wife contradicted each other. There is no merit in this ground.

13. The Appellant also submits in his fifth ground of appeal that he was not given a chance to call his witnesses for his defence although he asked for a girl namely Varanisese. The Court Record does not reveal that he made such a request. There is no mention of Appellant making an application to the Court to call his house girl namely Varanisese. There is no merit in this ground and it fails.

14. The Appellant also submits on the same ground that Defence witness Mr.Shameem Khan was labeled by the Magistrate as a convicted person and his evidence had not been considered. The learned Magistrate had considered Shameem Khanas a convicted person with many previous convictions. However, he had apparently rejected to act upon Shameem Khan's evidence on the basis that his evidence was not consistent with that of the Appellant and evidence for the Prosecution. The Magistrate had however fallen into error when he considered the witness not credible, taking judicial notice of his previous convictions, which was not alluded to by the Prosecution during the trial. In any event, the evidence of Mr. Shameem Khan alone had not affected the conclusion of the Magistrate finding the Appellant guilty.

15. The Appellant submits in his sixth ground that there was no evidence of a cigarette roll being sold. Pranesh Chand and Waisale Nasedrahad been called to give evidence for the Prosecution. The main witness was Pranesh, an independent witness, who told Court that the roll was sold to him by the Appellant in this matter through the code name "Panadol". Waisale Nasedra's evidence was not inconsistent with that of Pranesh. The Magistrate had found them credible. I don't see any reason why the Magistrate should not have acted upon their evidence. There is no such rule that a roll be tendered as evidence. If the Magistrate had reason to believe the Persecution witnesses, failure to tender the cigarette roll as an exhibit is not material. The defence has not challenged the Prosecution witnesses on that point also. There is no merit in this ground and it fails.

16. The Appellant also submits that he was framed by other shop keepers and that the person that he sold the roll to was not a resident of Semo. The argument is without merit as there is no such evidence in the Court Record of such a defence. The issue of jealously as outlined by the Appellant is a non-issue for this appeal. There was no reason to disbelieve PW.1 for walking 1 km. to buy cigarettes from Appellant's shop. People addicted to cigarettes sometimes behave like that.

17. The Appellant also submits that without a license he did not sell the said roll. The Appellant had not produced any valid license as at 26th April 2014.He was caught selling a roll of cigarette. This was proved by the witnesses called by the Prosecution. There is no merit to grounds 7, 8, 9 and 10. 

18. The Appellant also submits that the Appellant was not given a fair opportunity to defend his case. A look through the Court Record would show that the Appellant was given the right to Counsel and right to cross examine the prosecution witnesses. He called two witnesses and gave evidence himself. The argument of him not being given a fair chance to defend his case has no merits.

19. The Appellant also submits that the name and the address of the Appellant do not match with his business license and other official documents. The Appellant had failed to highlight this ground to the learned Magistrate. The argument that the name does not match is not a considerable issue to allow the appeal. The name appears on the Fixed Penalty Noticeis Asad Mohammed when it should have been Azad Mohammed. The address also does not contain a significant error, the fact that the Appellant had been served with a notice was sufficient that he had been found selling roll on the said day.

20. The appellant has failed to substantiate the allegation of bias and prejudging on the part of the Magistrate. There is no merit to grounds 11, 14, 15,16.

Conclusion

21. There is no merit in any of the grounds of appeal and the appeal is therefore dismissed.

Aruna Aluthge
JUDGE

AT LAUTOKA
On 23rdJuly 2015

Solicitors: Office of the Director of Public Prosecution for the State
 Office of the Legal Aid Commission for the Accused