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State v Narayan [2013] FJMC 413; Criminal Case 298.2009 (29 November 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case No: - 298/2009

STATE

V

SURESH KANT NARAYAN & ORS

For Prosecution : Mr. Shivendra Nath (DPP)
For all the Accused : Mr. Shelvin Singh

JUDGMENT

1. The accused have been charged with the following offence:
   

Statement of Offence

SUPPLY OF DANGEROUS GOODS AND SERVICES: contrary to Section 31(1), 50 and 56 of the Trade Standards and Quality Control Decree No. 24 of 1992.

Particulars of Offence

Suresh Kant Narayan s/o Hardip Narayan, Jai Anand Narayan s/o Hardip Narayan and Rajesh Kant Narayan s/o Hardip Narayan on the 9th of November 2007, Directors of a Company trading as Hanson Ltd, supplied dangerous goods namely 2160 pieces of Moon Traveller Fireworks in the Course of trade as Hanson Ltd.

2. All the accused pleaded not guilty for this offence and the trial was concluded on 26 August 2013. Both parties filed closing submissions and also opted to make oral submissions before me.
   
3. For the prosecution's case 2 witnesses were called and for the defence 03 witnesses gave sworn evidence.
   

SUMMARY OF EVIDENCE
PROSECUTION CASE

4. PW1 was Mr. Abi Ram, the acting registrar of companies. He said that Hanson Supermarket Ltd is a registered liability company and the accused are directors of that each holding 10,000 shares. The company registration certificate was tendered and marked as exhibit -01. In cross examination he said the company has a separate legal entity and answering to a question raised by the Court stated that the directors are making the decisions of the company.
   
5. With consent of both parties Box of fireworks, weight of fire crackers and the statement of Meenal Khan (PW2) were tendered and marked as Ex-02, Ex-03 and EX-04 respectively.
   
6. Last witness for the prosecution was Ian Fong. He said in 2007 he was the principle Inspector and Engineer at Mineral Resource Department and on 09 November 2007 conducted an inspection with Mr. Neil Prasad in Hanson Supermarket around 12.30pm. There was a table put away 10 feet from the cashier and on that there were fireworks like Roman Candle, Fountains and Rockets. Some consumers had taken these Rockets and some were even going towards the cashier with that. PW2 further said Rockets were non-permitted fireworks and through this witness Fiji Island Gazette No 45 of 2004 was tendered as Ex-05. He also identified Ex-02 as the one he seized that day. They removed the Fireworks (EX-02) and conducted a test to confirm that they were prohibited items. (Test result was marked as Ex-06). The test was carried out in 13 August 2008 at PWD Nasinu quarry. In cross examination PW2 said the items were on the table and they were put there for sale.
   
7. The prosecution closed the case after this and the defence made a 'no case to answer' submission. The court by ruling dated 04 October 2012 found that there was a case against the accused and gave them the rights as stipulated in section 179 of the Criminal Procedure Decree. The defence opted to call 03 witnesses to adduce evidence on behalf of the accused.
   

DEFENCE CASE

8. First witness was Mr. Abi Ram who was also PW1 for prosecution. In his evidence he tendered Certificate No. 15747 of Hanson Ltd as D-1 and list of directors of this company as D-02. He also said Hanson Ltd and Hanson Supermarket Ltd are separate entities and directors are also different. In cross examination Mr. Ram said Hanson Supermarket Ltd was established in 2007 and directors are the three accused in this case.
   
9. DW2 was Mr. Chand who was the branch manager of Hanson Supermarket Ltd in 2007. He said in 2007 Department of Fair Trades visited them and prohibited fireworks were not displayed for sale at that time. DW2 also said Mr. Neil came to the shop one day and tried to buy liquor and he reported only to the 1st Accused at that time. In cross examination Dw2 said the fireworks were not displayed and they were underneath the cartoon.
   
10. DW3 was Suresh Kant, the 1st accused in this case. He said that other two accused have nothing to do with Hanson Ltd and in 2007 Department of Fair Trades confiscated some fireworks from the supermarket. His manager told him they were not there to be sold and they were there by mistake. The defence also closed their case after leading the evidence of this witness.
    
11. Both parties filed the closing submission as well as made oral submission setting down their version of the event.
    
12. The defence in their written submission as well as oral submission pointed out that the charge was defective and also the prosecution failed to discharge the burden in this case. Also defence submitted that from the available evidence they can rely on the statuary defence in pursuant to section 56 of the Decree.
    
13. The State in the closing submission highlighted that they have managed to prove all the elements in this offence and if there was a defect in the charge that had not prejudiced the accused and they were not misled from that.
    
14. Having considered the evidence and closing submission of both parties now I would consider the applicable law in this case.
    

The LAW

15. The accused have been charged with one count of Supply of Dangerous Goods and Services contrary to section 31(1), 50 and 56 of the Trade Standards and Quality Control Decree no. 24 of 1992.
    
16. Section 31(1) of the Trade standards and Quality Control Decree provides:
    

"A person shall not, in the course of a trade or commerce, manufacture or supply dangerous goods."

Based on the above section the elements in this offence are :

1. A person
2. Shall not in the course of trade or commerce

100. Manufacture or Supply

4. Dangerous goods
   

17. Like in any criminal case the prosecution has the burden to prove this case. This was elaborated by Viscount Sankey in the landmark case of Woolmington v DPP (1935) AC 462 where it was held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law".
    

18. In State v RODNEY AUGUSTINE FONG HAC 300 OF 2011S His Lordship Justice Temo in his summing up defined the burden of proof and standard of proof in criminal trial as follows :-

"As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty."

19. In Miller v Minister Of Pension [1947] 2 AER Lord Denning explained the 'proof beyond reasonable doubt' as 'That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of the doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with the sentence "of course it is possible but not in the least probable", the case is proved beyond reasonable doubt, but nothing short of that will suffice.'

Analysis of the Evidence

20. In this case learned counsel for the accused took number of defences in the trial as well as in his closing submissions. I will address them one by one in my following paragraphs.
    
21. One of the defence taken by the accused is that the charge was defective. They took this position in 'no case to answer' submission also and the Court rejected that. In their closing submission again they have taken this issue.
    
22. One ground for that according to the learned defence counsel was that the charge was filed personally against the directors and not against the company. In oral submission also they argued that the charge should have been filed against the company instead of the directors. Therefore I would consider the amended charge filed in this case.
    
23. Particular of the offence in the charge says "Suresh Kant Narayan s/o Hardip Narayan, Jai Anand Narayan s/o Hardip Narayan and Rajesh Kant Narayan s/o Hardip Narayan on the 9th of November 2007, Directors of a Company trading as Hanson Ltd, supplied dangerous goods namely 2160 pieces of Moon Traveller Fireworks in the Course of trade as Hanson Ltd".
    
24. From the particulars it is clear that the State has opted to include the directors of the company in the charge instead of filing against the company alone. I do not see any wrong in that. They could have filed against the company alone and in pursuant to section 56 of the Decree the directors would have been liable. Instead of that they have also included the directors in the charge. I do not think by including these directors the charge would turn defective.
    
25. Second ground for defective charge was that the company mentioned in the charge was Hanson Ltd and evidence presented in the trial was against Hanson Supermarket Ltd. According to prosecution witnesses the prohibited fireworks were seized from Hanson Supermarket Ltd. Also PW1 revealed in his testimony that the three accused are directors of Hanson Supermarket Ltd and when called as a defence witness also submitted only the first accused was a director of Hanson Ltd.
    
26. When confronted with this the prosecution in their submission argued that word Supermarket has been missed when drafting the amended charge and the defence was not prejudiced from this.
    
27. Original charge was filed on 04 March 2009 against the three accused of the Hanson Supermarket Ltd. This was amended on 2009 and again was amended to present charge on 07 May 2012 where it is mentioned about Hanson Ltd.
    
28. This issue was dealt by RM Bandara (as he was then) by his ruling on 'no case to answer' on 04 October 2012. I would agree with that ruling. The original charge was against the Hanson Supermarket Ltd and only on the 2nd amendment this was dropped. All the accused knew from the beginning that they were charged for the prohibited fireworks found in Hanson Supermarket Ltd. Also evidence revealed in the trial disclosed this. They never objected to the amended charge which contained Hanson Ltd. Therefore I do not think they were prejudiced or misled by this slight ambiguity in the charge. Therefore I reject the defence argument about the defective charge in this case.
    
29. Another defence raised by the learned counsel for the accused was that the prosecution failed to prove essential elements in this offence. They submitted that there were no evidence that the fireworks was displayed there for sale and therefore there is no evidence about the supply in this offence.
    
30. Mr. Fong who was called by the prosecution said in his testimony that the customers were taking them to cashier. Also Section 04 of the Trade Standard and Quality Control Decree 1992 defines supply in any relation to any goods as "sell" or "agree to sell". Also Mr. Fong said these fireworks had been in display with other fireworks. This clearly shows that these items were displayed there for offer to sale which was on a Diwali day. Therefore I do not agree with the learned counsel for the accused in this point.
    
31. The defence also relied on a statutory defence under section 56 of the Decree. Section 56 provides that:
    

56. Offences of Bodies Corporate.

(1) Where a body corporate is guilty of an offence against this Decree, every director and other officer and the manager of the body corporate shall be guilty of an offence and liable to the same penalty as is prescribed for that offence unless he proves that he did not know and could not reasonably be expected to have known of the commission of the offence or that he exercised all due diligence to prevent the commission of the offence.(emphasis added)

32. When the defence is taking a statutory defence they have to prove this on balance of probabilities (section 61 of the Crimes Decree).
    
33. Lord Denning in Miller v Minister of Pensions [1947] 2ALL ER 372 at 374 described balance of probabilities as follows.
    

"It must carry a reasonable degree of probability, but not so high as required in a criminal case. If the evidence is such that the tribunal can say: We think it more probable than not, the burden is discharged, but if the probabilities are equal it is not".

34. Only one accused gave evidence and said the fireworks were there by mistake. He also said the responsibility of selling items were with the manager. I again do not agree with this. Even though the manager is responsible for day to day affairs the directors are ultimately responsible for the company. This was also confirmed by PW1 who said the directors were making decisions of the company. And in this case from the evidence and documents it is clear that all the accused were directors of this company. I am also not satisfied with the claim that the fireworks were there by mistake. Therefore the defence has failed to prove on balance of probabilities the statuary defence in this case.
    
35. Based on the reasons mentioned above as well as the evidence led in the trial I am satisfied that the prosecution has proved this charge beyond reasonable doubt.
    
36. Therefore I find all the accused guilty for this offence and convict them accordingly.
    
37. 28 days to appeal.
    

H.S.P.Somaratne
Resident Magistrate, Suva

29 November 2013