People v Chomba [1966] ZMHC 12 (19 October 1966)

THE PEOPLE v CHOMBA (1966) ZR 110 (HC) HIGH COURT EVANS J 19th OCTOBER 1966 Flynote and Headnote [1] Criminal procedure - Previous conviction - Dates of prior conviction and second offence control - Section 149A (4) of Roads and Road Traffic Ordinance construed. A person cannot be said to have a 'previous conviction' when the events leading to the 'second offence' occurred prior to conviction for the first offence (even if after the occurrence of the first offence). [2] Road traffic and roads - Previous conviction - Dates of prior conviction and second offence control - Section 149A (4) of Roads and Road Traffic Ordinance construed. See [1] above. Cases cited: (1) R v Kombi, 1 NRLR 160. (2) R v Smith, 1959 (1) R & N 94. (3) R v South Shields Licensing Justices [1911] 2 KB 1. Statute construed: The Roads and Road Traffic Ordinance (1959, Cap.173), s. 149A (1,2,4) Judgment Evans J: The above - named accused (hereinafter referred to as 'Chomba') was convicted on the 16th September, 1966, on his own confession, of a charge under the new s. 149A (1) of the Roads and Road Traffic Ordinance of using a vehicle as a public service vehicle for the carriage of persons for reward without there being in force in relation to the vehicle a road service licence authorising such use. The offence occurred in Chaplin Street, Mufulira, on the 2nd August 1966. On the 19th September, Chomba was sentenced to pay a fine of £100 (in default of payment three months' simple imprisonment) and, purporting to act under subsection (4) of the said section, the magistrate ordered the cancellation by a licensing officer of the licence issued under Part VI of the said Ordinance in respect of Chomba's vehicle and further ordered that the vehicle might not be licensed by any person for a period of six months. [1] [2] In sentencing Chomba and making the said orders, the magistrate erred in regarding the offence committed on the 2nd August as a second offence following a previous conviction under the section. In fact, Chomba committed a similar offence on the 31st July, 1966, but was not convicted of it until the 2nd September 1966, that is, after the commission of the offence on the 2nd August so he did not in law have a previous conviction, the meaning of which is explained on page 51 of the Magistrates' Handbook and in R v Kombi, 1 NRLR 160 [1]. (It is coincidental that the vehicle concerned in this case was a Volkswagen 'Kombi'). In law, therefore, the 1966 ZR p111 EVANS J magistrate was dealing with a first offender. Plainly, he was not empowered to make the above - mentioned orders, because the relevant part of the said subsection (4) reads: ' where any person is convicted of an offence under subsection (2) and the court is satisfied that such person has been previously convicted under that subsection within the twelve months immediately preceding the date on which such offence was committed, the court shall order - ... ' Chomba had not been previously convicted within the twelve months preceding the date of the instant offence, namely the 2nd August. When the magistrate imposed (as he thought he was obliged to do) a fine of £100, I think he was misled by the wording of the said subsection (2), which reads: ' Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence and shall be liable upon conviction in the case of a first offence to a fine not exceeding one hundred pounds and in the case of a second or subsequent offence to a fine of not less than one hundred pounds and not exceeding two hundred and fifty pounds.' The above is a form of wording often employed in statutes to provide for increased penalties in the case of second or subsequent offences, and the expression 'second or subsequent offence' means a second or subsequent offence committed after a previous conviction for an offence under the section. Therefore, the obligatory fine of not less than £100 was inapplicable here upon the conviction for the offence which was committed (on the 2nd August) before the conviction (on the 2nd September) for the first offence - see R v Smith [2] and the therein cited case of R v South Shields Licensing Justices [3] in which Lord Alverstone, CJ, in delivering the judgment of the court said, inter alia: ' It seems to me that it is quite impossible to give a reasonable construction to the various clauses of the section (s. 3 of the Licensing Act, 1872) unless the words "second offence" and "third and any subsequent offence" are read as meaning an offence after a previous conviction or convictions, as the case may be, for an offence under the section. The enactment aims at a persistent breach of the law after a previous conviction, and though the section does not in terms say that the offence to be punished with the heavier penalty must be one committed after a previous conviction for a similar offence, it is not reasonable to say that where a person commits three offences under the section on the same day a different penalty attaches to each of those offences . . . I have come to the conclusion that in this particular part of the section a "second offence" means an offence committed after a previous conviction for an offence under the section.' 1966 ZR p112 EVANS J The matter is referred to on page 344 of the 11th edition of Maxwell on the Interpretation of Statutes: ' When a "second offence" is subject to distinct punishment it is an offence committed after conviction of the first.' Chomba should have been dealt with in this case as a first offender. The said sentence and orders are quashed, and in substitution therefor I pass a sentence of a fine of £25, in default of payment fifty days' simple imprisonment. In fact, I understand that £50, part of the £100 fine, has been paid; if it has, then the sum of £25 is to be refunded to Chomba. Two further matters call for attention: (1) Chomba should have been charged not under subsection (1), but under subsection (2) (which creates the offence) of s.149A of the said Ordinance (see subsection (4)), but the error in the statement of offence had no prejudicial effect on Chomba and occasioned no miscarriage of justice, so I substitute a conviction under s. 149A (2) for the conviction under s.149A (1). (2) Nowhere in the statement of facts or otherwise on the record is mentioned the number of passengers illegally carried. This information should always be given, because it is relevant to sentence. Sentence and order quashed and a milder sentence substituted