Chang Y. Chi & 10 Others v Inspector-General of Police (MISC APP 4 of 2010) [2010] SLCA 26 (1 July 2010)

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2 a Misc, App. 4/2010 i IN THE COURT OF APPEAL OF SIERRA LEONE INTHE MATTER OF THE CONS 10K. NE SECTION E : ‘AND ORDER 52 OF THE HIGH COURT RULES. CONSTITUTIONAL INSTRUMEL'7 NO.8 OF 2007 + ‘AND OR 53 OF THE SUPREME COURT PRACTICE 1999

| AND | INTHE MATTER OF THE INSPECTOR-GENERAL OF POLICE VS. CHANG YUNG-CHLAND LO | OTHERS HAVING BEING CONVI B STRATE T | c GE OF:-

(1) UNLAWFUL EN iSHING WAT. CONTRARY TO SECTION 2(1) OF THE FISHERY (MANAGEMENT AND DEVELOPMENT) ACT 2008_(2) UNLAWFULLY USING A FOREIGN FISHING VESSEL FOR THE PURPOSE OF FISHING WITHIN THE FISHERY ‘WATERS OF SIERRA LEONE CONTRARY TO SECTION 21(1) SUB- SECTION 21(1)(6) OF THE FISHERY (MANAGEMENT AND DEVELOPMENT) ACT 2008 AND

(3) ILLEGAL) |GAGING IN FISHIN cE. RY WATERS Ct RY TO SECTION 21 SUB-SECTION Il OF THE FISHERY (MAN: NT DEVELOPMENT) ACT 2008. AND IN THE MATTER OF THE JUDGMENT CF THE MAGISTRATE COURT NO.1 PRESIDED OVER BY HIS WORSHIP MAGISTRATE SETVEN CONTEH IN WHICH ALL 11 ACCUSED PERSONS WERE FOUND GUILTY OF THE OFFENCES FOUNDED ON THEIR PLEA ‘OF GUILT TO THE OFFENCES (AS CHARGED THE SAID JUDGMENT WAS DELIV) ‘ON THE 4™ OF SEPTEMBER, 21 WITH A VARIATION OF THE FINES IMPOSED ON THE 9" OF SEPTEMBER, 2009 AND INTHE MATTER OF AN APPLICATION BY ORIGINATING NOTICE OF MOTION PURSUANT TO SECTION 134 OF THE CONSTITUTION OF SIERRA LEONE ACT NO. 6 OF 1991 AND ORDER 52 OF THE HIGH COURT RULES CONSTITUTIONAL INSTRUMENT NO. 8 OF 2007 AND ORDER 53 OF THE SUPREME COURT PRACTICE 1999 FOR AN APPLICATION BY THE APPLICANTS HEREIN ON NOTICE FOR AN ORDER OF CETIOR ARLAND MANDAMUS AND NY OTHER CONS TA) ER(S) AND DIRECTIONS TO ISSUE AGAINST HI {VORSHIP MAGISTRATE STEVEN CONTEH PRESIDING MAGISTR ATE IN THE TRIAL OF THE CASE OF INSPECTOR-GENERAL OF POLICE AGAINST CHANG Yt JNG CHI AND 10 OTHERS ‘AND THAT THE JUDGMENT AND SENTENCES FOLLOWING ‘THEREUNDER RESPECTIVELY DATED THE 4™ AND 9™ OF SEPTEMBER, 2009 ‘TO BE REMOVED FROM THE SAID MAGISTRATE COURT INTO THE HIGH COURT AND THERE JPON TO BE QUASHED ON THE GROUNDS THAT THE TRIAL WAS A NULLITY AS THE. CHARGES WERE UNKNOWN TO THE LAWS OF SIERRA LEONE CONTRARY TO SECTION 23(7) OF ‘THE CONSTITUTION OF SIERRA LEONE ACT NO.6 OF 1991 AND THAT THE PROCEEDINGS WERE. IN BREACH OF SECTION 53 OF THE CRIMINAL PROCEDURE ACT NO,32 OF 1965 BETWEEN: CHANG YUNG CHI & 10 OTHERS 7 APPLICANTS AND a! ‘THE INSPECTOR-GENERAL OF POLICE : RESPONDENT

; (bt an CORAM: HON. JUSTICE E.E. ROBERTS, J.A. HON. JUSTICE S.A. ADEMOSU, J.A. , HON. JUSTIGE:A..SHOWERS, J.A. ete + | S + JUDGME! VI DA’ BY HON. JUSTICE E.E. ROBERTS, J.A. The Appellants were jointly charged with several counts under the Fishery (Management and Development) Act 2008. On the 26" August 2009 in the Hl Magistrate Court, the charges were read to the appellants who all pleaded not guilty i and were duly remanded in custody, their application for bail having been refused. On the 4"" of September 2009 after the charges were re-read to them the Appellants ! pleaded guilty to all the charges and were accordingly sentenced to fines as stated in H pages 17-18 of the Records. | One the 9" of September 2009 the Appellants were again brought before the Magistrate Court to “correct certain administrative irregularities”. These proceedings i ended with the Magistrate varying the sentences already handed down and further ordering confiscation of the boat. | By letter dated 9" October 2009 addressed to the Chief Justice and written on behalf of the Appellants, an application was made pursuant to Cap. 17 of the Laws of | Sierra Leone 1960 for summary review of the magistrate’s action/decision which said | application was denied. The Appellants then filed an Originating Notice of Motion dated 17" November 2009 in the High court seeking and order of Certiorari to quash the varied sentences of the Appellants by the Magistrate. The Hon Justice N.C. Browne- Marke J.A by ruling darted 8" January 2010 refused the application for certiorari. The Appellants sought leave of the High court to appeal against the decision of 8" January 2010 and by order dated 1 1" February 2010 leave to appeal was refused. The Appellants then sought and obtained leave to appeal from this Court by order dated a" ¢ March 2010.The appellants then filed this appeal as amended. Counsel for the Appellants has also relied on synopsis filed on 3" May 2010.

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ae Counsel for the Respondent did not file any synopsis on behalf of the State Respondent but rather candidly and gracefully conceded to the appeal. Fi ->.-.. Ttis my view that the appeal has merit. The Learned trial Judge erred in + stating or suggesting that judicial review is a remedy of last resort or that the Appellants have the remedy of appeal open to them and so would not be granted judicial review. The learned judge in my view conceded this error in his ruling of 1" | February 2010 at page 97 of the Records. For the above reasons, the appeal therefore H succeeds. : | The Appellants however urges the court not to remit the application to the { High Court but to deal with same pursuant to Rule 32 of the Court of Appeal Rules i 1985. Counsel for the Appellants conceded that Rule 32 is under part 2 of the Court H of Appeal Rules which is headed Civil Appeals. I am inclined to agree with counsel that this rule applies to criminal appeals. Iam fortified in the view by the provisions of section 129 (3) of the Constitution of Sierra Leone 1991 which states. “For the purpose of hearing and determining any appeal within its jurisdiction and the amendment, execution or the enforcement of any judgment or order made on any such : Hl appeal and for the purposes of any other authority expressedly or by necessary 7 implication given to the Court of Appeal by the Constitution or any other law, the | Court of Appeal shall have all the powers, authority and jurisdiction vested in the Court from which the Appeal is brought.” It is my view therefore that the combined effect of Rule 32 of the Court of Appeal Rules and section 129 (3) of the Constitution is to vest this court with jurisdiction and authority to deal with this appeal and to grant such orders as in our view the High Court ought or could to have made. It is also my view that there is sufficient material before this court to do so. All the documents, the record of proceedings (including the judges notes) in the High court are contained in the Records now before us. Furthermore I have read the Appellants application for judicial review dated 17" November, 2009 particularly the “Statement accompanying i! Applicant’s case”. See page 26 of Records. I have noted the proceedings before the nvgistrate who after sentencing the Appellants by imposing fines which said fine

ghar: {64 were paid, proceeded on a subsequent date to entertained an application (by motion dated 8" September 2009) for the review of the fines and granting such review as wall

ri as the making further order(s} See pages 17 — 20 of Records.

#; J view the said application by the D.P.P. (contained in motion dated eh September 2009 as most unusual. And rather curiously, I cannot find any authority in the Record of proceedings cited or relied on in support of the said application.

| It is in my view most unfortunate that such an application was entertained by the Magistrate let alone granted.

This court has learnt that the fine imposed by the Magistrate in his sentence on | the same had already been paid by the Appellants and to later impose a higher revised j fine is to subject the appellants to double jeopardy. This is not only unfair but also

unsupportable in law. After imposing the first fines the magistrate was dearly functus | officio in so far as sentencing is concerned. The appellants having paid the first fines imposed by the Magistrate, it is therefore ordered that:

j 1; The order of the Magistrate made on the 9" September 2009 varying or

revising the fines already imposed is hereby quashed.

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2. The Appellants shall be released from detention or custody immediately.

| Be The boat belonging to the Appellants be released forthwith.

4. That all travel and other documents taken from the Appellants be returned to them immediately. HON. JUSTICE E.E. ROBERTS J.A. pipe JA. 7 HON. JUSTICE A. SHOWFPS JA