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Gold Hold Investment Pte Ltd v State [2023] FJHC 191; HAA019.2022 (31 March 2023)

IN THE HIGH COURT OF FIJI

AT LABASA

[CRIMINAL JURISDICTION]

CRIMINAL APPEAL NO. HAA 019 OF 2022

[Labasa Magistrates Court CF No: 566/20]

GOLD HOLD INVESTMENT PTE LIMITED

APPELLANT

V

STATE

RESPONDENT

Counsel: Ms A Sumer for the Appellant

Ms L Latu for the State

Date of Hearing: 28 February 2023
Date of Judgment: 31 March 2023

JUDGMENT

[1] The appellant is a limited liability private company involved in fisheries business. On 27 July 2020, an Authorized Fisheries Officer attended to a report of the appellant dealing with prohibited and endangered marine species at its warehouse located at 16 Zoing Place, Vakamasisuasua, Subdivision, Labasa. The officer found that the appellant was in possession of Hump Head Wrasses which is a protected species of fish under Regulations 5(1) and 5 (2) of the Offshore Fisheries Management Regulations 2014.

[2] The officer confiscated the protected fish and issued a Fixed Penalty Notice on the spot for the appellant to pay $20,000.00 penalty within 21 days or to face prosecution in court by appearing in court on 17 September 2020. The penalty was not paid and the appellant made no appearance in court on 17 September 2020. The case was adjourned for hearing on 9 October 2020.

[3] On 9 October 2020, the learned magistrate held the trial in absentia, and on 10 November 2020, pronounced judgment convicting the appellant of the charge.

[4] On 26 November 2020, the appellant was fined $22,000.00.

[5] On 31 December 2020, the appellant through counsel moved the Magistrates’ Court for an order to set aside the conviction pursuant to section 172 of the Criminal Procedure Act.

[6] On 29 July 2022, the learned magistrate dismissed the application to set aside the conviction saying that the court was functus officio after sentence was pronounced.

[7] On 12 August 2022, the appellant filed an appeal against the impugned ruling of the learned magistrate dismissing the application to set aside conviction pursuant to section 172 of the Criminal Procedure Act.

[8] The grounds of appeal are as follows:

1. The Learned Magistrate erred in law and in fact in holding that he did not have jurisdiction under Section 172 of the Criminal Procedure Decree [sic] to set aside the conviction when the facts proved that the conviction was entered in the absence of the accused who had no control over his absence, the fine imposed was unlawful and the proceedings had breached the Constitutional rights of the appellant.
   
2. The Learned Magistrate erred in law and in fact in holding that he could not set aside the conviction entered in the absence of the accused when he was sentenced and failed to determine the matter on merits.
   
3. The Learned Magistrate erred in going into the tariff and failed to hold that the service was a nullity and there which entitles the accused to make an application to set aside the conviction.
   
4. The Appellant reserves its rights to add or alter the Grounds of Appeal upon receipt of the copy record from the Magistrates Court.
   

[9] The third ground makes no sense. Two issues arise from the first two grounds.

Trial in absentia

[10] It is well settled that an accused has a constitutional right to be present at his or her trial unless that right is waived by him or her.

[11] Section 14 (2) (h) of the Constitution states:

Every person charged with an offence has the right – to be present when being tried, unless –

(i) The court is satisfied that the person has been served with a summons or similar process requiring his or her attendance at the trial, and has chosen not to attend; or

(ii) The conduct of the person is such that the continuation of the proceedings in his or her presence is impracticable and the court has ordered him or her to be removed and the trial to proceed in his or her absence.

[12] The latter circumstance to hold a trial in absentia is not relevant to this case. The trial could have proceeded in absentia only if the appellant had notice of the hearing and chose not to attend.

[13] Similarly, a trial for a summary offence punishable with imprisonment for a term not exceeding 12 months and/or a fine not exceeding 10 penalty units can proceed in absentia in the Magistrates’ Court pursuant to section 167 of the Criminal Procedure Act. However, this section did not apply in this case because the offence was punishable with a fine exceeding 10 penalty units (($10,000.00).

[14] In the judgment of conviction, the learned magistrate concluded that the appellant did not comply with the fixed penalty notice after it was duly served on them at its warehouse located at Lot 16 Zoing Place, Vakamasisuasua, Subdivision, Labasa on 2 August 2020 by an Authorized Fisheries Officer. This was the alleged place of the offence as well.

[15] The fixed penalty was not paid within the prescribed period of 21 days and the notice required the appellant to appear in court on 17 September 2020 to defend the charge.

[16] In the impugned ruling dismissing the application to set aside the conviction, the learned magistrate found that the appellant had notice of the proceeding and chose not to appear. The Fixed Penalty Notice was handed to an agent of the company at the warehouse where the offence allegedly took place. The fisheries officer who issued the notice filed an affidavit of service of notice on the appellant and also gave evidence to that effect. It was open on the evidence for the learned magistrate to come to the finding that the appellant was notified of the proceeding but chose not to attend. There is no reasonable ground to interfere with the learned magistrate’s discretion to hold the trial in absentia.

Discretion to set aside conviction

[17] Section 172 of the Criminal Procedure Act gives the Magistrates’ Court discretion to set aside a conviction for a summary offence entered in the absence of the accused. Section 172 states:

If the court convicts the accused person in his or her absence, it may set aside the conviction upon being satisfied that the absence was from causes over which he or she had no control, and that there is an arguable defence on the merits.

[18] In Ariana's Used Car and Spare Parts v Fijian Competition & Consumer Commission [2022] FJHC 40; HAA005.2021 (4 February 2022) the High Court held that the discretion provided by section 172 of the Criminal Procedure Act can only be exercised before sentence. Once the sentence is imposed, the court is functus officio.

[19] By the time the appellant applied to have the conviction set aside pursuant to section 172 of the Criminal Procedure Act, the learned magistrate had passed sentence in absentia. The learned magistrate held that he lacked jurisdiction and dismissed the application. He did not consider the merits of the application.

[20] This court is not convinced that the learned magistrate erred in law in dismissing the application for want of jurisdiction.

[21] Result

The grounds of appeal are not made out.

The appeal is dismissed.

. ...........................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
A K Singh Law for the Appellant