016-NLR-NLR-V-51-WIJE-Appellantand-ABEYSUNDERA-Excisee-Inspector-Respondent.pdf
ORATIAEN J.—Wije v. Abeysundero (Baeise Inspector)
71
Present: Grati&en J.
WTJE, Appellant, and ABEYSUNDERA (Excise Inspector),Respondent
S.C. 095—M. C. Teldeniya, 6,379
Sentence—Imposition of fine without imprisonment—Means of accused shouldbe considered—Time should be given for payment—Payment of Fines(Courts of Summary Jurisdiction) Ordinance, No. 49 of 1933.
The terms of the Payment of Fines {Courts of Summary Jurisdiction)Ordinance are specially designed to give a convicted person, in caseswhero the imposition of a fine is thought to be appropriate, an oppor-tunity of paying within a reasonable time an amount which is fixed withreference to his means.
PEAL from a judgment of the Magistrate, Teldeniya-
T.B. Dissanayahe, with V. S. A. PuUenayagam, for the accusedappellant.
A. Mahendrarajah, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
September 14,1949. Geatiabn J.—
The accused in this appeal is 17 years old. He has been convicted oftwo offences punishable under the Excise Ordinance, namely of possessinga small quantity of fermented toddy in excess of the permitted amount,and of having been tempted to sell a part of it to a decoy for cents 25.He was sentenced on each count to pay a fine of Rs. 250 or in defaultto undergo a term of six weeks rigorous imprisonment to run consecutively.
On the merits I am satisfied that the charges have been clearly proved,and the conviotions must therefore be affirmed. The appeal againstthe sentences remains for consideration.
No previous convictions bad been recorded against the appellant,and having regard to his age, the learned Magistrate rightly decided thatthe imposition of a fine in lieu of a sentence of imprisonment would meet
1iGRATLAEN J.—Wijt v. Abeyanndera {Excise lnsjsctor)
the ends of justice. It is therefore unfortunate that before fixing theamount of the fine the salutary and indeed the imperative requirementsof the Payment of Fines (Courts of Summary Jurisdiction) Ordinance,No. 49 of 1938, were not consulted and applied. This Ordinance has beensubstantially taken over from the Criminal Justice Act, 1914 of England,and its terms are specially designed to give a convicted person, in caseswhere the imposition of a fine is thought to be appropriate, an oppor-tunity of paying within a reasonable time an amount which is fixed withreference to his means. The procedure prescribed enables the offenderto avoid the alternative sentence of imprisonment which has in all thecircumstance*? the eaee been regarded by the Magistrate to be less appro-priate. It is for this reason that section 2 requires that the means of theoffender among other factors shall be taken into consideration in fixingthe amount of the fine, and that section 3 makes it obligatory that timeshall be given for the payment of the fine (by instalments in suitablecases) unless the Court is satisfied that he has sufficient means to paythe amount forthwith or that he has no fixed abode or that other reasonsexist (the nature of which shall be recorded) why the time for paymentshould not be postponed. Section 8 lays down for very obvious reasonsspecial conditions to proteot youug persons in cases where fines are impos-ed, Indeed, the entire Ordinance abounds in beneficial provisions which,however irksome they may prove to those who officiate in a busy Court,should not be neglected or ignored if avoidance of the imprisonment offirst offenders and young delinquents in minor offences is recognized asone of the ends of justice.
In the present case the accused was ordered to pay a sum of Bs. 500forthwith by way of fine without any inquiry as to whether he possessedthe means to do so. On the failure of this young man to achieve theimpossible he was transported from Teldcniya to Kandy, and committed toprison. He filed an appeal against the convictions and sentences, butit took some dayB before his relations could find an accommodatingbailsman to procure, no doubt for a suitable consideration, his releasepending this appeal by furnishing security in the sum of Bs. 1,000 toabide the decision of this Court. In the result, the accused has alreadyspent a short and, I fear, unprofitable period as an inmate of an over-crowded prison. I do not therefore consider that any further punishmentis oalled for, and I accordingly set aside the order requiring him to paya fine of Bs. 500 as well.
I should like to be convinced that the provisions of the Paymentof Fines Ordinance of 1938 are as well known as they ought to be. Theamount of a fine must be fixed not only with reference to the gravityof the offence but to the ability of the offender to pay. Once the amountis fixed it is but right and it has now become an obligation imposed bylaw to give the offender sufficient time to make the payment. Otherwiseit might often happen that, as in this case, a man is unnecessarily sentto prison at the public expense without corresponding benefit to theindividual concerned.
Convictions affirmed.
Sentence of fine set aside.