Hassan v Regina (Criminal Appeal No. 425 of 1953) [1953] EACA 38 (1 January 1953)

## APPELLATE CRIMINAL

### Before HEARNE. C. J.

### SULEMAN KASSAM HASSAN, Appellant

# REGINA. Respondent

### Criminal Appeal No. 425 of 1953

Criminal Law—Traffic Ordinance (Cap. 232)—Conviction for offence under section 19 (1)—Suspension of certificate of competency--Discretion of Court -Whether accused should be given opportunity to show cause-Whether Appeal Court can take into account facts not brought to notice of Trial Court.

The accused was convicted of an offence under section 19 (1) of the Traffic Ordinance (Cap. 232) on his own plea of guilty. In addition to imposing a fine the magistrate ordered that the accused's certificate of competency be suspended for one year. While the magistrate gave the accused an opportunity to address the Court in mitigation, he had not then disclosed his intention to suspend the certificate and the attention of the accused was not directed to this issue. The accused appealed.

Held $(25-9-53)$ .—(1) Where an accused person has pleaded guilty and the circumstances surrounding the charge have accordingly not come under the close examination of the Court, he should be given an opportunity of showing cause why his certificate of competency should not be suspended when the magistrate has made up his mind to take that course. It is advisable for a magistrate to call upon an accused person to show cause before the order in suspension is made.

(2) If this has not been done, an Appeal Court can take into account, in the appellant's favour, facts not brought to the notice of the Trial Court. There being such facts, the period of suspension was reduced.

Case followed: R. v. Alarakha Juma, Criminal Appeal No. 187 of 1947 (unreported, but the subject of Circular to Magistrates No. 15 of 1947, 22 K. L. R. 128).

#### Nowrojee for appellant.

Bechgaard, Crown Counsel, for the Crown.

**JUDGMENT.—The appellant was convicted of an offence** *contra* **section 19 (1)** of the Traffic Ordinance and was sentenced to pay a fine of Sh. 400 and it was ordered that his certificate of competency be suspended for one year.

It has been decided by this Court (see 22 K. L. R. 128) that where an accused has pleaded guilty, as the appellant did, and the circumstances surrounding the charge have not come under the close examination of the court, an accused person should be given an opportunity of showing cause why his certificate of competency should not be suspended when a magistrate has made up his mind to take that course. Especially as 1 am sitting alone I am bound by that decision. The appellant in the instant case was given an opportunity to address the magistrate in mitigation, but the case to which I have referred appears to lay it down that the accused must be called upon to show cause why an order of suspension should not be made. It would also appear that, if this is not done, the appeal court can take into account, in the appellant's favour, facts not brought to the notice of the trial court, as, e.g. that the appellant would be involved in a loss of livelihood, if his certificate was suspended. Having regard to the decision

of the court it is advisable for magistrates to call on the accused to show cause and to ask him to deal exhaustively with all he has to say in showing cause, so that no other matter can be brought forward on appeal. In the instant case I am informed that the appellant has held a driver's licence for over 10 years without any misnaps and \_that the retenfion of his employment requires that he should drive a Jorry for his employers. ·

Not without hesitation I reduce the period of suspension from one year to a period from 13th June, when he was convicted up to to-day's date. The appeal is otherwise dismissed.