– Dismisses appeal, awards costs to respondent
THE Full Court of British Guiana in 1959 dismissed an appeal by a ‘bush rum’ dealer who had asked the Court to find that he was excessively sentenced for “throwing away spirits to avoid seizure.”
The appellant, who was represented by Mr. J.O.F. Haynes, S.C, had submitted that the magistrate, who had a duty under the law  to award a lesser penalty — one-fourth of that imposed by law — declined to do so.
Counsel for the appellant had complained that in a similar case, the conviction was upheld, with the appeal being dismissed and the fine being reduced to $25, with an alternative of three  months imprisonment with hard labour.
The facts relate to the case of Benjamin –v- D’ Anjou, which emerged from a magistrate’s  court for the Georgetown Judicial District.
The Full Court was constituted by Justices J.A. Luckhoo and Ronald Jailall.
Topics discussed included Criminal Law, Evidence, Analyst’s Certificate, No need for proof of analyst’s signature, Evidence Ordinance, Chapter 23, Section 43.
The charge was that of ‘throwing away spirits to prevent seizure’, the maximum sentence for which was fixed by statute –Whether a lower sentence could be ordered — Spirits Ordinance, Chapter 319, Section 118 (3).
It was pointed out that by virtue of the provisions of Section 43 of the Evidence Ordinance, Chapter 25, the certificate of the Government Analyst may be admitted in evidence without proof of his signature.
Section 118 (3) of the Spirits Ordinance, Chapter 319 provides as follows:-
“(3) In adjudicating on any charge or complaint  relating to a penalty, it shall not be competent for the magistrate, if he convicts  the defendant thereunder, to award a less penalty than one-fourth of that imposed by law.”
According to the Full Court, the maximum penalty prescribed by Section 90 of the Spirits Ordinance, Chapter 319 was $500.
Citing Wellington –v- Headly, 1916  L.R.B.G., 105, it also held that the court was not at liberty to impose a fine less than $125.00, and that as such the ‘bush rum’ dealer had no case.
Crown Counsel, Mr. G.  A. S.  Van Sertima represented the respondent.
According to Justice Luckhoo, who delivered the judgment in the matter at hand, “the appellant was on November 9, 1957, convicted by a magistrate of the Georgetown Judicial District on a charge of throwing away spirits to prevent seizure, contrary to Section 90 (1) (d) of the Spirits Ordinance, Chapter 319, and was fined the sum of $125.00 in default of two months imprisonment.  Benjamin appealed the Ruling.
“There was tendered in evidence before the magistrate a certificate purporting to be signed  by J. E. Ho-Yen, the Government Analyst.  No evidence was given to show that it was in fact signed by that person.
“It was submitted by counsel for the appellant that the certificate was not admissible in evidence, unless the signature thereon was first proved to be that of the Government Analyst.
“The same point was raised in the case of Ishmael –v- Pile (1959)… and for the said reasons as are stated in the decision of this court in that appeal, we held that the argument of counsel is not well founded. It was further submitted by counsel for the appellant that the sentence imposed by the magistrate was unduly severe.
“It is common ground that this was the minimum sentence which the magistrate, by virtue of the provisions of Section 118 (3) of the Spirits Ordinance, Chapter 319, could impose.”
That subsection, Justice Luckhoo said, “provides as follows:  (3)   In adjudicating  on any charge  or complaint  relating to penalty , it shall not be competent for the magistrate , if he convicts the defendant  thereunder, to award a less penalty than one-fourth of that imposed by law.    
“The maximum penalty prescribed  by Section 90, under which the  charge was brought, is $500.
“Counsel for the appellant referred us to the case, Wellington –v- Headley, 1916 L.R.B.G. 105, where Sir Charles Major C., sitting as single judge  in the appellate jurisdiction, reduced from $260  to $25 a fine imposed  by a magistrate on the appellant, in that case, who has been convicted on a charge of being in the unlawful possession  of ‘bush rum’.   The minimum penalty  which  the magistrate could have imposed was $125.
“On that point, all that is stated in the report  of the decision of Charles Major is as  follows:  ‘When we come to the facts, I think, under the circumstances, it was monstrous to put a fine of $260 on the appellant; it was futile because he could not pay.  The conviction is upheld  and the appeal dismissed,  the fine being reduced to  $25, or in the alternative three months’ imprisonment  with hard labour.’”
It is to be observed that the Solicitor General (Mr. Rees Davi) brought it to the attention of the Chief Justice during the course of the argument that the minimum fine which could be imposed by the magistrate was fixed by the Spirits Ordinance, 1905, and submitted that the court could not reduce the fine below that amount.
No authority or provision in the law was referred by the Chief Justice in support of his decision to reduce the fine  below the statute minimum  prescribed by the Spirits Ordinance.
A digest of that decision is reported at Page 161 of  Dalton’s  Dice of British Guiana Case Law as follows:-
“W. was convicted of contravening a provision of the Spirits Ordinance, 1905, and was fined $260.  The minimum penalty under this section was $125.
“On appeal, the conviction was affirmed, but under the powers purported to be given by Section 21 of the Magistrate’s Decision (Appeals) Ordinance, 1893, the fine was reduced to $25.”
Section 31 of the Magistrate’s Decision (Appeals) Ordinance, 1893, is now Section 21 of the Summary Jurisdiction (Appeals) Ordinance, Chapter 17.
We have examined the provisions of that section, but can find nothing which can be considered to empower a court on appeal from a magistrate’s decision  to reduce a penalty imposed by a magistrate below the statutory minimum prescribed by the Spirits Ordinance .
The use of the word ‘purported’  by the learned author of Dalton’s in his digest of that Case is perhaps significant.   We can  find no provision in the summary jurisdiction (Appeals) Ordinance empowering this court  to reduce the penalty below the  statutory  minimum prescribed by the Spirits Ordinance.
The appeal is dismissed. The conviction and sentence are affirmed, with costs $20 to the respondent, the judgment disclosed.