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Ahopa v Maibuko [1999] PGNC 7; N1838 (1 March 1999)

Unreported National Court Decisions

N1838

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AP: 267/98
PAUL AHOPA
-APPELLANT-
-VS-
NOAH MAIBUKO
-RESPONDENT-

Popondetta

Vagi AJ
18 March 1999

Counsel

L. Siminji, for the Applicant

R. Auka, for the Respondent

18

VAGI AJ: This is a case where the appellant was convicted of being the driver of a motor vehicle, a Ford trregistration number P. 0538, upon a public street, Kokoda Roda Road, on the 11^th May 1998 in which he carried a greater number of passengers than the number specified in the licence issued in respect of that vehicle as a maximum number permitted to be carried, and he was fined the maximum amount of K100 under s. 33I of the motor Traffic Act. It was also ordered that his PMV permit be cancelled under s 36 (1) (a) (iii) of the Motor Traffic Act.

The appeal is against the severity of the sentence which is the maximum fine of K100 and the cancellation of the PMV permit for an unspecified period. My interpretation of cancellation is to render the PMV permit void.

The relevant provisions of the Motor Traffic Act are in these terms:

“331 where a c motor vehicle cale carries a greater number of passengers than the number specified in the licence issued in respect of that vehicle as maximum number permitted to be carried.

(a) &&#160 drieer ofer of that that vehicle; and

(b) ; the person whd hold the pthe public motor vehicle permit in respect of that veh

Penalty: A fi A fine ofne of not not less than K20 and not exceeding K100.

s. 36. Discretionary suspension, disqualification and etc.

(1) Subject to s 35, the Court that commits a person of an offence agathe Act may in addition to any other punishment to which the person is liable under this Acis Act in respect of the offence;

(60;&##160;; if he holds a ds a licenlicenlicence or permit under Section 11;

(i) sdspen lthencecer t oor suor such time as the Court thinks proper and, if the Court thinks fit, also directs that that no licence and no such permit be grano himng surther afte expin of the the licenlicence orce or perm permit asit as the the Court thinks proper; or

(ii) cancel the li enceerr p anit and, if the Court thinks fit, declare him to be disqualified from obtaining a licence or such permit fch ti the thinoper.

(b) d he noes notshold hold aold a li a licencecence or a or a permit under Section 11, directs that no licence or permit be granted to him during such time as the Court thinks proper.

(2) & A person whose licence orce or permit under Section 11 is suspended is during the period of suspension, disqualified from obtaining a licence or permit.”

Th permld byappellant allowed him to oper operate aate a PMV PMV trucktruck for purpose of carrying passengers as a business. The permit is still current until May 1999, but its cancellation has stopped the appellant from operating as a business apart from using it for any other purpose. This means to me the permit is in effect valueless, burnt up, never to be used or obliterate.

The appellant’s antecedent report shows that he was served with four Traffic Infringement Notices, all relating to carrying greater number of passengers than the maximum number specified in the permit.

Here is the report of the presiding magistrate. It reads:

Accordingly the Court found the defendant guilty as charged and after considering his antecedent report in particular the four traffic infringement notice issued to him for overloading and his statement on allocutus the Court convicted him and ordered to pay a fine of K100 forthwith and in default of payment of such fine he be imprisoned for a term of 3 months at Biru CIS.

The Court further ordered that his PMV permit be cancelled forthwith as applied for by the prosecution under s. 36 (i) (a) (ii) of the Motor Traffic Act.”

What appears, therefore, in such a case as this where the PMV permit was cancelled, the learned magistrate may well intended to prohibit the appellant from operating a PMV business indefinitely. Going back to s. 36 (I) (a) (ii) the Court may cancel the licencee or permit as an additional punishment to what penalty already imposed on him for an offence under the Act. The word “may” in s 36 (I) does not made it mandatory for suspension or disqualification. The power given to the Court is a discretionary one and must be exercised with caution.

The learned magistrate when cancelling the permit did not set a period of time the cancellation would run. The words “for such time” in s 36 (I) (a) (ii) clearly indicate that time limitation must be specified in the cancellation, suspension or disqualification order. The failure to specify time limitation would mean that such cancellation, suspension or disqualification was for life.

I would share the same views of the learned magistrate in so far as the cancellation of PMV permit is concern, but not with his failure to specify a time limitation. I would think any such additional penalty should only be considered for cases of reckless driving, or affected by liquor or putting lives at risk, so that such punishment can be a lesson to all who owe duty of care to the general public.

The appellant is a family man, married and has four children. Three of his children go to school. One goes to the Martyrs High School, another at Igara Top Up School and the third at Ajemota Training Centre. He is a self employed as a PMV Operator. I think these are circumstances special to him that ought to have been weighed in his favour.

The imposition of the maximum fine of K100 and cancellation of the PMV permit appears to be harsh on the appellant. He has not been operating his PMV truck to carry passengers since his conviction on 11^th May 1998. In view of not deriving any income from his operation and in view of no time limitation set for the cancellation of his permit I would take the past eleven months be a sufficient time for cancellation in pursuant to s. 36 (I) (a) (ii) of the Act. The maximum fine of K100 for this type of offence would be too excessive in the light of the appellant’s special circumstances.

I allow the appeal. I confirm the conviction and alter the penalties. I impose a fine of K40.00 instead and order that the cancellation of the permit be set aside. In the final analysis K60 as the balance of K100 be refunded as well as the cash bail of K100 to be refunded. The PMV permit cancelled be handed back to him forthwith.

Lawyer for the appellant: Public Soli

Lawyer wyer for the respondent: Public Prosecutor