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Ministry of Health v Hussain [2013] FJMC 165; Criminal Case 04.2012 (9 April 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 4/2012

MINISTRY OF HEALTH

-v-

MOHAMMED INUS HUSSAIN

Mr. Waqa for the prosecution
The accused appeared in person

1] The accused with charged with following offence namely;

CHARGE:

Statement of Offence [a]

SMOKE IN A PUBLIC PLACE: Contrary to Section 19 (1) and 19 (2) of the Tobacco Control Decree 63/10.

Particulars of Offence [b]

MOHAMMED INUS HUSSAIN, on the 25th day of February, 2012 at South Point Nakasi in the Central Division did smoke in igniting tobacco product within a Public Service Vehicle Registration NO. LT 3394 whilst the said taxi is carrying passenger.

2] He pleaded not guilty to the charge and hearing was done on 11th January 2013.

3] The prosecution called Jone Radaniva to prove its charge. The witness said that he is a Authorized Officer in Fiji Trade and investment Board. His job is to go inspection and book offenders who breach Tobacco Control Decree. On 25th February 2012, he was in duty on Nasinu area. Around 5.30pm, he was standing near to the New World Super Market, Novolu with Akuila, SC 1799, Naitasiwai and driver Pranjeet Kumar. He saw one Indian man driving a taxi registration number LT 3394 smoking in the driving seat. He said "the taxi was coming through the driveway, it was stopped by one Indian man who got in and headed towards Nausori. That driver is present in court". He said when passenger got in, the acused was smoking and the witness was 5 metres away from and he saw the incident. The he gave a chase after 80 metres he managed to caught the taxi drive. There was no smoking notice in the vehicle's dash board. The accused was issued a TIN after that.

4] There was no cross examination.

5] Since there is a case to answer the accused was explained right to call defence. The accused opted to give sworn evidence. The accused Mohamed Inus Hussein said that on that day, he was waiting for passengers at Nakasi Car Park. He was not smoking when passenger got in. he denied the charge. "I admit that I was smoking at the car park, but no while driving" he further said.

6] In the cross examination the accused said that he is familiar with Drivers' Code of Ethics. He admitted he is not supposed to smoke in any public place, but he was smoking in the car park. The prosecution suggested that he was smoking when passenger got in, but the accused denied it.

6] The Section 19 of the Tobacco Control Decree 63/10 prohibits smoking in public places. It says;

"19. –(1) A person must not smoke any tobacco product in any of the following public places-

(a) amusement centre, theatre or sports stand;

(b) hospital or clinic;

(c) lifts;

(d) public service vehicle (within the meaning of the Land Transport Act 1998);

(e) airport terminal building except in duty free outlets and designated smoking area;

(f) prescribed smoke-free building or prescribed smoke-free area;

(g) eating-houses;

(h) bus stations except for a designated smoking area;

(i) internet shops;

(j) any water transport including ships, ferries or any other means which transports passengers by sea or river; and

(k) any other public place to which the public has access as the Minister may designate by way of a gazette notice.

(2) A person found to be contravening subsection (1) commits an offence and shall be liable to a fixed penalty in Schedule 7."

7] Further section 2 the interpretation section of said act interprets the public service vehicle.

"Public service vehicle" means a motor vehicle licensed under Part VI of the Land Transport Act 1998 for the purpose of carrying passengers for hire or reward;

8] The according to the schedule 7of the said Decree, the fixed penalty is 2 penalty points ($200).

8] The Ingredients of the charge are;

1. A person
2. Who smokes

100. In public place which is mentioned in section 19 of the said Decree
     

9] The accused admits that he did smoke in the vehicle which was in the car park. His defence was at that time there was no passenger. The witness said there was a passenger got in and he continued to do so. This is an eye witness that he has no reason to lie against the accused. Therefore, charge had been proved beyond reasonable doubt.

10] Whatever, taxi is a public transport vehicle and no one can smoke within the vehicle where there was passenger or not. It is a prohibited act. The accused himself admitted short before the detection he had smoked inside the vehicle in the car park. That itself construed the offence.

11] I convict the accused as charged. The accused shall pay 2 penalty ($200) units as fine. In default 20 days imprisonment imposed.

12] 28 days to appeal.

On 09th April 2013, at Nasinu, Fiji Islands

Sumudu Premachandra [Mr.]
Resident Magistrate-Nasinu