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Khan v State [2008] FJHC 267; HAA097.2008 (31 October 2008)

IN THE HIGHCOURT OF THE FIFJI ISLANDS
AT SUVA
APPELLATE JURISDICTION

CRIMIANL APPEAL CASE NO: HAA 097 OF 2008

BETWEEN:

FAIYAZ KHAN

AND:

THE STATE

Mr. Raman Singh for the Appellant
Ms. Wallen Goerge for the Respondent
Date of Ruling: 31 October 2008.

RULING

1 FAIYAZ KHAN s/o Mehboob Khan this is your appeal against your conviction and sentence. You were charged as follows:

Statement of Offence

Breach of Zero Alcohol Limit: contrary to section 105(2) and 114 of the Land Transport Act 1998

Particulars of Offence

FAIYAZ KHAN s/o Mehboob Khan on 21st June 2008 at Nasinu in the Central Division, being a holder of a driving licence, drove a motor vehicle registration number LT 661 on Omar Road, Narere, whilst there was present in 100 mililitres of his breadth a concentration of 26.4 milligrammes of alcohol which is breach of the zero alcohol limit.

2 You were charged on 2 July 2008 and you appeared in the Nasinu Magistrates Court on 15 July 2008. When the charge was read and explained to you, you told the court that you understood it. Your right to counsel was explained to you and you waived it. You entered a not guilty plea. You were bailed to appear in court again on 18 August 2008.

3 On that day the charges were put you again for a plea and you entered a guilty plea. The court was provided with a summary of facts which you admitted. You also stated that you admit driving a taxi when the level of alcohol in your blood was above the legal limit and that you were driving a taxi.

4 Your were sentenced by the learned Magistrate as a first offender to pay a fine of $100 and 12 months disqualification from holding or obtaining a drivers licence effective from 19 August 2008.

Appeal Grounds

5 On 17 September 2008, through counsel, and as part of your petition of appeal, you filed the following ground of appeal:

i) That the said disqualification of 12 months is harsh and excessive bearing in mind all the circumstances in the case.

ii) That the appellant reserve the right to add further grounds of appeal subsequent.

6 On 14 October 2008, through counsel, you filed the following additional ground:

(i) That the learned trial Magistrate erred in law and in fact in convicting the petitioner when the charge was defective in that the particulars of the offence failed to mention essential elements of the offence, in particular that your petitioner was a holder of a public service vehicle and was driving a public service vehicle.

7 With regard to the addition ground alleging that the charge was defective, Counsel for the appellant, submits as follows:

‘..the charge was defective in that the particulars of offence failed to mention essential elements of the offence, particularly that the appellant was a holder of a public service vehicle licence and was driving a public service vehicle.

8 The appellant relies on the English Court of Appeal decision in R v Mc Vitie (1960) 44 Cr App R 201 for the above proposition.

Respondent’s Submission

9 The State as respondent submits that on the basis of Turagatautoka v The State [2003] FJHC 237 and State v Jitesh Prasad [2003] FJHC 146, there is merit in the appeal against sentence of 12 months disqualification as harsh and excessive.

10 As regards the defective charge claim of the appellant, the State submits that an omission of an essential element alone is not fatal, rather the issue should be focus I whether the charge alleges an offence known to law. After referring to State v Brijan Singh [2007] FJCA 46, AAU 097 of 2005

Appeal Determination

11 I will first consider the submission that the charge laid against the appellant was defective in law. In this regard Mr.Singh for the appellant submits that the charge laid in the Magistrates Court did not refer to an essential element of the charge, namely, that the appellant was a holder of a public service licence and was driving a public service vehicle at the time of the alleged offence. He cites R v McVitie (1960) 44 Cr App R 2001.

12 The appellant was charged with the offence of Breach of Zero Alcohol Limit: contrary to section 105(2) of the Land Transport Act 1998 [LTA]. This statutory reference is incorrect; section 105(2) does not create any offence, the offence in set out in subsection (1) of that section. That mistake is not fatal because there is no prejudice to the appellant and it would be obvious to him and his legal advisers, that the section should have been section105(1). A typographical error perhaps.

13 Section 105(1) of LTA states:

‘No person who is a holder of a learner’s permit, provisional licence, heavy goods vehicle driver’s licence or public service vehicle driver’s licence shall, whilst the concentration of alcohol in the blood of that person is more than 0.00 grams per 100 millilitres of blood, drive or attempt to drive –

(a) in the case of a holder of a learner’s licence or provisional licence, any motor vehicle; or

(b) in the case of a holder of a heavy goods vehicle licence ro public service vehicle licence, a heavy goods vehicle or a public service vehicle.

14 From the above provision of section 105 (1) it is clear there are four category of drivers who are targeted and in specific situations. These are:

1. A person who holds a Learner’s Licence who drives or attempt to drive any motor vehicle, whilst the concentration of alcohol in the blood of that person exceeds 0.00 grams per 100 millilitres of blood;

2. A person who holds a Provisional Licence who drive ro attempt to drive any motor vehicle, whilst the concentration of alcohol in the blood of that person exceeds 0.00grams per 100 millilitres of blood;

3. A person who holds a Heavy Goods Vehicle Licence who drives a heavy goods vehicle, whilst the concentration of alcohol in his blood exceeds 0.00grams per 100 millilitres of blood;

4. A person who holds a Public Service Vehicle Licence who drives a public service vehicle, whilst the concentration of alcohol in his blood exceeds 0.00 grams per 100 millilittres of blood.

15 From the clear wording of section 105(1) of the LTA 1998 and on the basis the admited facts in this case, the offence charged should have been iv) above. The offence is a statutory offence, therefore the minimum requirement for the phrasing the particulars of the charge should satisfy section 119 CPC. That provision requires that a statement of the specific offence with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence: State v. Brijan Singh [2007] FJCA 46

16 In Vilikona Bukai v The State [1999] FJHC; HAA 040 of 1999, Mr. Justice Pathik stated the following statement of law which I accept.

‘The purpose of a charge is to tell an accused person as precisely and concisely as possible of the particulars of the offences with which he is charged and sections 119 and 122 of the Criminal Procedure Code give clear and explicit directions as to how, inter alia, a charge should be framed.

A charge must contain those particulars which give the accused an idea of the case which he has to meet. It may not contain elaborate details but there should be no doubt as to what is the case against and what allegations he has to meet.’

17 In reviewing the particulars of the offence in this case, which states:

‘ Faiyaz Khan s/o Mehboob Khan, on the 21 June 2008 at Nasinu in the Cenral Division, being a holder of a driving licence drove a motor vehicle registration number LT 661 on Omkar Rod, Nasinu, whilst there was present in 100 millilitres of his breath a concentration of 26.4 milligrammes of alcohol which was in breach of the Zero alcohol limit.’

18 It is clear that the above particulars alleges an offence against the appellant that is not covered by section 105(1)(b) of the LTA 1998. I have underlined to highlight that those elements are not relevant for an offence under section 105(1)(b) LTA. These omissions are incurable under section 122(1) of the CPC because there is fundamental error, namely, the failure to include the fact that the appellant was a holder of public service vehicle licence and that at the time of the alleged offence he was driving or attempting to drive a public service vehicle: R v. Nottingham Justices ex Parte Brown (1960) 3 All ER 625.

19 Secondly, section 105(1) LTA creats an offence against a person who holds one of the 4 categories of licence and drives or attempt to drives the relevant class of motor vehicle when the alcohol content in 100 millilitres of his blood excess 0.00 grams. But the particulars of the charge in this case, alleges that the appellant had 26.4 gram alcohol in 100 millilitres of breath, not blood.

20 I find that the charge in this case was not framed properly and hence it does not disclose an offence; it is therefore void ab initio and it cannot be cured by application of section 122 of the CPC: DPP v Solomone Tui (1975) 21 FLR 4.

21 What is clear is that the reference to ‘100 millilitres of breath’ in the particulars, must mean that they had in mind section 104 of the LTA, yet in the concluding words it refers to ‘in breach of the Zero alcohol limit’ which is relevant to section 105(1). The result is that the appellant is highly prejudiced by the manner of the wording of the charge.

22 Whether the appellant should be convicted of a lesser offence. I do not think so because the court in this instance did not have a trial because there was a guilty plea. There would be no evidential basis for an appellate court to find for a lesser offence. It is my view, that an appellant from the Magistrates Court should be able to appeal against the very offence of which he has been convicted and not some different offence: Garfield v Maddocks (1973) Cr App R 372

23 In conclusion, I am satisfied that the charge the appellant was faced with in the Magistrates Court was defective because it discloses no offence chargeable under section 105 of the LTA. I find that defect incurable.

24 The appeal against conviction succeeds. I therefore set aside the conviction and the sentence of the appellant. I am further satisfied that in this case the interest of justice does not require a retrial and I order accordingly.

25 It is not necessary to address the sentence submissions in the light of the above conclusion.

ORDERS

26 I make the following orders:

i) Appeal against conviction succeeds;

ii) The conviction and sentence of the appellant is set aside;

iii) There will be no order for retrial;

iv) If there has been any fine paid by the Appellant, it must be refunded.

Isikeli Mataitoga
JUDGE

At Suva
31 October 2008.