Nathoo v. R. Crim. App 129-D-71; E.A.C.A. 14/12/71; Duffus, P.; Lutta, Mustafa, JJ. A.

 

Nathoo v. R. Crim. App 129-D-71; E.A.C.A. 14/12/71; Duffus, P.; Lutta, Mustafa, JJ. A.

The appellant was charged with the offence of corrupt transaction c/s 3(2) of the Prevention of Corruption Act 1971. He pleaded guilty but before sentence was passed there was argument as to whether the Minimum Sentences Act, Cap. 526 applied. The trial magistrate held that the Minimum Sentences Act was inapplicable. The Republic contended that the offence charged under Section 3(2) of the Prevention of Corruption Act 1971 was a scheduled offence under Cap. 526 and so the Minimum Sentences Act was applicable. The learned Chief Justice acting under Section 327 of the Criminal Procedure Code directed that a notice of enhancement should be issued to the appellant and exercising the powers of the High Court under section 329 of the Criminal Procedure Code held that the offence of corrupt transaction c/s 3(2) of the Prevention of Corruption Act 1971 fell under Cap. 526 and imposed the minimum sentence prescribed. See [1971] H.C.D. 371. The main issues for the E.A.C.A were first, whether or not the provisions of Cap. 526 apply to the Prevention of Corruption Act, 1971; and secondly, whether or not natural justice was done to the appellant since the judge who served notice of enhancement of sentence had already resolved the issue and therefore should not have heard the case himself.

            Held: (Majority judgment not signed by Lutta, J. A.); (1)”By section 327 of the Criminal Procedure

Code, power is conferred on the High Court to call for and examine the record of any criminal proceedings before any subordinate court in order to satisfy itself as to the legality, correctness or propriety of any sentence imposed on a person convicted of any offence. If after examining the record the High Court considers that the case is a proper on for revision under section 329 of the Criminal Procedure Code, it will cause a notice of enhancement of sentence to issue for that purpose. In exercising its powers on revision the High Court exercises powers conferred on it by section 329, 321 and 322 of the Criminal Procedure Code. The notice of enhancement of sentence was served on the appellant, who appeared and was represented by an advocate at the hearing. Although the notice of enhancement of sentence might have been differently worded we are satisfied that there was not breach of natural justice and that there was no failure of justice.” (2) “The provisions of section 10(1) of the Interpretation Act clearly apply to the Act. There would be no doubt about this but to make this very clear section 20(3) of the Act specifically states: ‘The provisions of’ sub-section (2) shall being addition to and not in substitution of the provisions of section 10 of the Interpretation and General clauses Ordinance.’ The Act must therefore be read as if there was a specific provision that the reference in paragraph 7 of Part 1 of the Schedule to Cap. 526 to the offence of taking part in a corrupt transaction contrary to section 3 of cap. 400, shall, unless the contrary intention appears, be a reference to the offence of taking part in a corrupt transaction contrary to section 3 of the Act. To decide this we have to consider the provisions of Cap. 526 and its purpose and intention. This Act was obviously brought in to ensure that the courts passed adequate sentences in the offence specified. This Statute was intended to remedy a social condition existing at the time in the community and was an Endeavour to at any rate lessen the prevalence of the offences set out in Cap. 526. Cap. 526 do not amend the scale of punishment but it does fix the minimum sentence. The new act re-enacts with modifications the scale of punishment, it fixes a higher scale but does not fix a minimum. We can find no conflict between the provisions of the Act and those of Cap. 526. The Act sets out the punishment for the offences but it does not fix the minimum and is in no way repugnant to the provisions of Cap. 526.” (3) Appeal dismissed.