Court of Appeal
Criminal Appeal No. 7 of 1997
27th October, 1997
TELEFORD GEORGES P.
HORACE WALWIN YOUNG J.A.
NICHOLAS J. O LIVERPOOL J.A.

APPEARANCES:

Mr. Gian Gandhi S.C., Solicitor General and
Mr. Adolph Lucas, Director of Public Prosecutions for Appellant.
Mr. Kirk Anderson for the Respondents.

Appeal against variation by Chief Justice, after review of case, of sentences imposed by Magistrate upon respondents after guilty plea to drug trafficking- Section 9, Act No. 26 of 1992 - mandatory minimum sentence of imprisonment of 3 years - preliminary objections - Order IV r. 6(2) - no notices served - no resulting prejudice to respondents -Sections 21(4) and (5) of Chapter 100 - sufficiency of complaint - original sentence imposed by Magistrate contrary to law - concurrent sentence in default of payment of fine made imposition of fine meaningless - sentence substituted by Chief Justice for that imposed by Magistrate also contrary to law - punishment by fine alone not permissible -appeal allowed - sentences set aside - sentences of 5 years imprisonment and a fine of $25,000.00 (in default a 5 year consecutive sentence) imposed.

J U D G M E N T

The four respondents on May 28, 1997 pleaded guilty before the Magistrate at Stann Creek to "Drug Trafficking contrary to sec 7(1)(4) Sec. 17(1) Misuse of Drugs Act #22 as amended by Act #6 of 1994." The amount of cocaine involved was some 1300 kilograms. Each was sentenced to 5 years imprisonment and a fine of $25,000.00 or a term of 5 years imprisonment. The fine was to be paid forthwith, and the term in default was to run concurrently with the term of peremptory imprisonment.

The Magistrate failed to forward the return of convictions for the month of May 1997 as mandated by section 55 of the Inferior Courts Act Ch. 77, but as a result of matters drawn to his attention, the Chief Justice called for return in the case. Thereafter having held meetings with the Director of Public Prosecutions, the -Head of Police Prosecutions and two attorneys - Messrs. Flowers and Anderson representing the respondents, he substituted a penalty of $50,000.00 and $5.00 costs in respect of each of the respondents. From this decision A.S.P. Henderson, the complainant (in the original complaint), has appealed.

In a letter to the Magistrate who had dealt with the charges the Chief Justice set out the events which led to his intervention and the reasons for the review he had carried out.

He noted that the sentences were not in keeping with the scheme for a mandatory minimum sentence effected by section 9 of Act 26 of 1992. This required a minimum term of imprisonment of 3 years and in addition a fine of $10,000.00. The effect of the concurrent sentence of imposed in default of payment of the fine would result in the "fine not being payable." As it was the State stood to lose all the fines imposed if the faulty sentence was allowed to stand. He also noted that no reference had been made in the charge to Act 26 of 1990 which introduced the mandatory custodial provisions and he -

"became convinced that somewhere along the course of the Judicial process the Guilty Plea by the defendants was entered on the belief that the payment of the fine was sufficient to effect his release. From the combination of defects, omissions and errors through apparent haste, Justice was not done neither to the convicted person nor to the State."

The grounds of appeal against that decision were as follows -

3. The appeal is brought under section 26(1)(a) of Court of Appeal Act upon the following grounds of law:-

(1) The learned Chief Justice erred in law in failing to give effect to the mandatory minimum sentence provisions of section 17(1) of the Misuse of Drugs Act, as amended by Act No. 26 of 1992.

(2) The learned Chief Justice erred in law in holding that the charge of drug trafficking as laid against the defendants was defective by reason of the omission of a reference therein to Act No. 26 of 1992.

(3) The learned Chief Justice erred in law in not taking judicial notice of Act No. 26 of 1992 as required by section 6 of the Evidence Act.

(4) The learned Chief Justice acted on wrong principles of law in setting aside the sentence passed by the Inferior Court.

(5) The learned Chief Justice misdirected himself in law by taking extraneous matter into consideration while substituting his own sentence for that of the learned Magistrate.

Mr. Anderson for the respondents advanced preliminary objections to the appeal. He submitted that in an appeal brought under section 26(l)(a) of the Court of Appeal Act there must be a notice of appeal in the form set out as No. 25 in Appendix C of the Court of Appeal Rules. He stated that the Notice of Appeal on the Record did not follow that form but was unable to identify any differences between the form appearing in the Appendix and that on the Record.

He pointed out correctly that Order IV r.6(2) applied to appeals under section 26 of the Court of Appeal Act. That rule required a prosecutor/Appellant to serve copies of any notices issued by him on the Respondents. No such copies had been served. The rule does not, however, provide any time limit for services of any such notice, nor does it provide a sanction for non-compliance. In this case the Respondents were well aware that the notice had been filed. The failure to serve has in no way prejudiced the Respondents and cannot be a basis for not allowing the appeal to proceed.

On the substance of the appeal it is apparent that the Chief Justice fell into error. Section 9 of Act 26 of 1992 requires that a mandatory term of at least 3 years imprisonment be imposed on an accused person convicted on the charge which the Respondents faced. This term was to be in addition to a fine. The effect of the review by the Chief Justice was to substitute merely a fine on payment of which the Respondents would be released.

Undoubtedly the sentence imposed by the magistrate was not according to law. By making the term of imprisonment in default of payment of the fine concurrent with the term of peremptory imprisonment he made the imposition of the fine meaningless. Whether the respondents paid the fine or not each would have to be released after serving the five year term.

The Chief Justice appears to justify his review on the ground that the Appellants may have pleaded guilty because the failure to refer to section 9 of Act 26 of 1992 in the information may have misled them into thinking that the penalty would be a fine on payment of which they would be released. There was no evidence of this.

We do not agree that the charge as laid was in any way defective. The Summary Jurisdiction (Procedure) Cap. 100 section 21 (4) and (5) prescribes that a complaint shall be sufficient.

"If it contains 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 charge."

The statement of offence must -

"describe the offence shortly in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by statute, shall contain a reference to the statute creating the offence."

There is no requirement that there should be a reference to any statute prescribing the punishment for the offence. There could thus be no basis for suggesting that the absence of the reference may have misled the respondents.

The third submission was that the power to review conferred by section 56 of the Inferior Courts Act did not envisage an appeal to the Court of Appeal from a review order by the judge exercising the power. Such an appeal was only possible where there was in the language of the section a "formal appeal."

The extraordinary nature of the power conferred on the reviewing judge was stressed. The reviewing judge could "without hearing argument" make any of the orders which the Supreme Court is authorized to make on an appeal from a decision of an inferior court.

A contrast was drawn between that method of the exercise of the power and the method outlined in section 57 under which the reviewing judge can order the magistrate to state a case for the consideration of the Supreme Court. Thereupon the Supreme Court has the power to decide the case in all respects as if an appeal had been entered by the person convicted under the appropriate provisions of the Supreme Court of Judicature Act.

The submission is, as we understand it, that the specific introduction of what could be called the traditional appellate procedure in section 57 and its omission from section 56(1) establishes that section 56(1) provides for an entirely administrative review not subject to appeal.

We are satisfied that this inference cannot be drawn from the language of the section. Section 56 provides that the return operates "as an appeal on behalf of every convicted person." Once that is the case, the consequences flowing from an order made on appeal from an inferior court by the Supreme Court would automatically follow.

Once the preliminary objections are overruled the appeal must inevitably be allowed. The sentence substituted for that imposed by the Magistrate is contrary to law. It does not provide for a mandatory term of imprisonment of at least 3 years as required by section 9 of Act 26 of 1992. Punishment by fine alone is not permissible.

Accordingly we allowed the appeal and set aside the sentences imposed on each of the respondents by the Chief Justice. We substituted a sentence of 5 years imprisonment on each of the respondents and in addition a fine of $25,000.00. In default of payment of the fine a term of 5 years imprisonment consecutive on the term of peremptory imprisonment.

In the event that any of the respondents elects to pay the fine the balance from the sum of $50,000.00 paid by each respondent, i.e. the sum of $25,000.00 be returned to each respondent. The time spent in custody by each of the respondents since the imposition of the sentences by the magistrate to count towards the sentence.

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