Dear Editor,
In the High Court, Singh, J. has ruled inter alia, that Magistrate Singh can sentence Samuel Hinds Jnr. for an offence for which he was convicted by former Magistrate Chandan-Edmond (reported in SN, Saturday, October 17th). In my respectful view, such a ruling is contrary to our statute law regarding magisterial jurisdiction over trials/hearings of criminal charges and raises a point of some considerable public interest to magistrate and defendant alike.
It appears to me that constitutional questions apart, the question of the sentencing jurisdiction of Magistrate Singh in this Hinds Jr. matter must necessarily be determined by a consideration of the relevant statutes bearing upon the jurisdiction of magistrates. Section 35(2) of the Summary Jurisdiction (Procedure) Act, cap 10:02; and 67 (2) of the Summary Jurisdiction (Magistrates) Act cap. 3:05 appears to me to be most relevant and applicable to the point. Section 35 (2) provides as follows – “where before the court gives decision the magistrate ceases … to hold office, it shall be lawful for him … to lodge with the clerk of the Court his written decision. The Court shall read the decision … and the decision when read, shall be deemed to be the decision of the Court”. And section 67 (2) is even more to the point, as the marginal note highlights “completion by magistrate of process begun by his predecessor”. Relevantly, it provides thus – “when a magistrate has completed hearing any proceeding or matter whether civil or criminal … and subsequently ceases to act as a magistrate … a judgement in the proceeding or matter written by him may be read by any other magistrate and entered in the minute book of the court”.
It is well established and settled by authority that a magistrate’s jurisdiction is generally (not exceptionally) limited by statute; it is not inherent. The question then to be determined is – does section 35 (2) and/or 67 (2) (or some other statute not mentioned here by me) confer on Magistrate Singh a jurisdiction to pass sentence on the defendant Hinds Jr. who was convicted by Magistrate Chandan-Edmond who wrote her memorandum of reasons for convicting him, but did not record or write any sentence? In my respectful view the answer is plain – No. Here are my considered reasons.
Firstly, as the case law shows, Magistrate Chandan-Edmond by not recording or writing her sentence never “completed” her hearing within the ambit of section 67 (2). So, Magistrate Singh has no jurisdiction under this provision to even read then Magistrate Chandan-Edmond’s written judgement, as per conviction much less pass sentence.
Secondly, again as the authorities shows, then Magistrate Chandan-Edmond by not writing her sentence (to be pronounced later) never became functus officio (i.e exhausted her power), so there was no conclusion, or “decision” or final disposal of the matter, capable of being read by Magistrate Singh within the ambit of section 35 (2).
Thirdly, the maxim expressio unius est exclusio alterius (i.e the expression of one right, excludes others not mentioned) applies. Having expressly given magistrates a right/power to only read, the statutes have by necessary implication excluded a power to intermeddle and pass some sentence not recorded or written by the predecessor magistrate.
Fourthly, the law is decidedly set against the unfairness or unjustness of passing of sentence by a magistrate (as distinct from reading a recorded sentence) who did not have the benefit or advantage of hearing and seeing the witnesses as to character, or, mitigating or aggravating evidence, for, or, against the defendant, “because it is a fundamental requirement of the fair administration of justice” to see and hear them, oneself. (Beswick v R [1987] 36 WIR 318,PC). Or, as Lord MacDermout puts it in Recorder of Manchester (1971) AC 481 at 493 B ‘The evidence relevant to the commission of an offence is generally relevant to the sentence’ (my emphasis).
My last proposition, is that both section 35(2) and 67 (2) encapsulates this ‘fundamental requirement’ when they limited the successor magistrate to only ‘read’ the predecessor’s written judgement/decision. Lord MacDermout in the Recorder of Manchester case pointedly recognised that conviction and sentence were not stages isolated and independent of the other and that ‘… the tenor of English law has been against erecting any barrier between these two parts or stages’ (see at page 493C; also Lord Morris at page 501H-502C).
Settled principles of sentencing apply a fortiori where the possibility of imprisonment exists. On what material, and by what authority would Magistrate Singh exercise some principled discretion as to whether the Hinds Jr. case is one for leniency, or severity of punishment on the merits of the case? She could not be well informed as she had not the benefit of seeing or hearing any witness, much less all. The mischief sections 35(2) and 67 (2) were concerned to remedy by providing as to “completed” judgement might easily happen. It is tempting to think that the emphasis placed by the Law Lords (especially Lords Reid, Mac Dermout, Morris of Borth-y-Gest) in the Recorder of Manchester case as to the long asserted “unity” or indivisibility between the two stages of conviction and sentencing in the Magistrate Court, (see at page 494F) cannot be disregarded as influence upon the legislating of section 67 (2). The point here, is that such “unity” is not consistent with a view that Parliament could have intended that two different magistrates can have jurisdiction – one over conviction; the other over sentencing, in a case; and, underscores why the successor magistrate (in the instant matter, magistrate Singh) is limited to only reading the decision or judgement of the predecessor one (i.e in the present case Chandan-Edmond).
The ruling of Singh, J. (“nor does there exist any legal barrier preventing Magistrate Singh proceeding to sentence”) creates a sentencing jurisdiction in a non-convicting magistrate. It is contrary to statute law. It is bad law. The ruling should, on appeal, be set aside to the extent of that part. It sets a bad precedent in the magistrate’s court.
Yours faithfully,
Maxwell E. Edwards
