IN THE HIGH COURT OF FIJI
AT LABASA
APELLATE JURISDICTION

Traffic Appeal No. 14 of 2016

ABDUL KAMAL

v

LAND TRANSPORT AUTHORITY

Counsel	:	Ms. S. Devi (L.A.C.) for the Appellant
			Mr. R. Ratule for the LTA.

Date of Hearing		:  20 April 2017
Date of Judgment	:  02 May 2017

JUDGMENT

1.	On the 14th November 2016, in the Labasa Magistrates Court 	the Appellant was convicted of the traffic offence of carrying 	excess passengers, contrary to Regulations 39(1) and 87 of the 	Land Transport (Traffic) Regulations 2000. He was fined $170.

2.	He now appeals that conviction on the following grounds:

(i)	There was no evidence as to the number of excess passengers being carried. 
(ii)	The learned Magistrate erred in law in convicting him when there was no offence disclosed.

3.	The matter was dealt with by the Magistrate by way of formal 	proof.  

4.	The Appellant had been issued with a traffic infringement notice 	(“TIN”) on the 7th February 2014 and on first appearance he 	entered a plea of not guilty.

5.	On the date set for hearing of the matter the accused was not 	present and as a consequence the prosecution’s application to 	prove the matter by Formal Proof was allowed. One LTA officer 	gave sworn evidence that the appellant was stopped on 7th 	February 2014 because his single cab commercial vehicle was 	carrying 6 passengers, a number in excess to those he was 	permitted to carry.

6.	Counsel for the Appellant submits that the case was not proved 	to the requisite standard in that a certificate as to the number 	of passengers allowed to be carried was never produced in 	Court.

7.	The regulation purportedly offended reads:

            “39. No  person  may  drive  or  cause  or  permit  to be 		driven a motor vehicle  with passengers located in 		positions  other  than  positions  approved  by  the 		authority, the number of  which must be indicated 		on the certificate of registration, except as may be 		indicated on a current permit issued  pursuant  to 		this regulation  by  the  authority  and  subject  to  		the condition of the permit.”

8.	The appellant’s first ground of appeal is that the formal proof 	hearing must result in an acquittal because there is nothing in 	the record to show that the certificate of registration was 	produced in evidence. He submits that that is the only evidence 	that the Court could receive as to the allowed number of 	passengers against the actual number of passengers being 	carried.

9.	This ground of appeal however is misconceived. There must 	surely be evidence before the Court of the number of excess 	passengers on board, in excess of the authorized number, 	however there is nothing in the legislation that dictates that this 	evidence can only come before the Court by way of the 	Certificate of registration. On the contrary this evidence was 	before the Court and it was evidence given by the one 	prosecution witness, the LTA officer, Mr Kumar. As the officer 	who detected the offence on the 7th February 2014, in addition 	to being an authorized officer of the LTA, he was perfectly 	competent to give this evidence.

10.	The first ground of appeal is not made out.

11.	The second ground of appeal raises the issue that the 	particulars of the offence as charged do not state the number of 	excess passengers being carried at the time. And as a result the 	charge is defective in that they do not disclose any offence 	thereby offending against the provisions of section 58 (b) of the 	Criminal Procedure Decree 2009.

12.	The difficulties contained in this case have been caused by the 	lack of reference in the evidence in Court and in the judgment of 	the learned Magistrate to the true nature of the offending by the 	driver. A perusal of the disclosures reveal that the accused 	driver was stopped because he was carrying passengers in the 	tray of his vehicle.

13.	Transporting passengers in the open tray of a vehicle without 	authority is illegal in Fiji and such offenders are charged with 	an offence contrary to section 39 (supra). 

14	That is the offence that charges carrying passengers in 	“positions other than in positions authorized by the LTA” (i.e. on 	the back tray) and most unfortunately that particular offence is 	headed “Carrying of Excess Passengers”. 

15.	Carrying excess passengers and carrying passengers on the 	back tray are not necessarily the same thing. A driver may carry 	excess passengers in the cab and he may have one passenger 	on the tray (and none inside) and he certainly wouldn’t be 	carrying excess passengers.

16.	Despite the ambiguous title to section 39 the wording of the 	section is adequately reflected in the charge laid. The charge 	charges him with carrying passengers in a position (ie on the 	tray) that is not authorised by the LTA. The offence is clearly 	stated in satisfaction of s.58 (b) of the Criminal Procedure Code 	2009. 

17.	The appellant had been attending mentions of his matter on 	numerous occasions since February 2014 and not once is he 	recorded to have been confused by the charge nor has he ever 	asked for further and better particulars.

18.	The second ground of appeal has no merit.

19.	It is a written concern of the appellant that he was misled as to 	the venue of the hearing which explains his absence. He says 	that he was waiting in Magistrates Court No.3 when his case 	was called in Court No.1. 

20.	Court no. 3 has never been used for regular hearings since 	January 2015 and there is a notice there directing litigants and 	accused persons to Court No.1. He was present on the 1st 	March 2016 when the hearing was set down for hearing in 	Court No.1 on the 14th November 2016.

21.	I do not believe his reasons for absence. He was present at every 	other hearing of his case, electing to act for himself, and it just 	so happens that he has an excuse for not appearing on the day 	of hearing.

22.	This Court is satisfied that the conviction is founded on due 	process; the charge being apposite and the formal proof hearing 	satisfying all the elements of the offence.

23.	The appeal against conviction is dismissed and the appellant 	now has 14 days to pay the fine and if not to be imprisoned for 	14 days.

	P. K. Madigan
	Judge

At Labasa
02 May 2017