Ephraim Henderson Appellant v Licensing Authority Respondent [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: BYRON, C.J.,GEORGES, J.A. [AG.],Chief Justice,Sir Dennis Byron,Adrian Saunders,Justice of Appeal [Ag.],Ephraim Georges
• Judgment Date: 31 March 2003
• Judgment citation (vLex): [2003] ECSC J0331-5
• Court: Court of Appeal (Saint Kitts and Nevis)
• Docket Number: MAGISTERIAL CIVIL APPEAL NO.4 OF 2002
• Date: 31 March 2003

[2003] ECSC J0331-5

IN THE COURT OF APPEAL

Before:

The Hon. Sir Dennis Byron Chief Justice

The Hon. Mr. Ephraim Georges Justice of Appeal [Ag.]

The Hon. Mr. Adrian Saunders Justice of Appeal [Ag.]

MAGISTERIAL CIVIL APPEAL NO.4 OF 2002

Between:

Ephraim Henderson

Appellant

and

Licensing Authority

Respondent

Appearances:

Mr. Lindsay Grant for the Appellant

Mr. Dennis Merchant DPP with Mr Vernon Warner Crown Counsel for the Respondent

BYRON, C.J.

1 The Appellant had pleaded guilty to careless driving under section 53 of the Vehicles and Road Traffic Act Cap 270 of the revised edition 1961. In imposing sentence the Magistrate fined him $1000.00 and disqualified him from holding or obtaining a driver's license for three years. This appeal is against sentence only, on the ground that the period of disqualification was not authorized under the statute and alternatively it was excessive.

2 The background facts were that the Appellant was driving a passenger bus on the 14 ^th of May 2001 at about 3.45pm on a dry Sunday afternoon. While traveling around a corner the Appellant overtook the bus that was in front of him and collided head on with a jeep that was traveling in the opposite direction. The vehicles were extensively damaged and the passengers in both vehicles sustained extremely serious injuries. The Appellant had one previous conviction for dangerous driving just one year prior to the accident.

3 The Appellant contends that the learned Magistrate misapplied section 53 of the Vehicles and Road Traffic Act Cap 270 which prescribes that a person convicted of an offence under section 53:

"shall be liable on summary conviction … on a second or subsequent conviction for a like offence to be disqualified for holding or obtaining a driver's license for such period as the Court shall see fit".

The Appellant contended that the phrase "like offence" means an offence under section 53 and that the conviction for dangerous driving was an offence under section 52 and was not a "like offence". In the premises this was not a second or subsequent offence and the Magistrate exceeded her jurisdiction in imposing a period of disqualification.

4 The Appellant relied on the case of Josiah v Blaze [1961] 4 WIR p.536. In that case, the Appellant was convicted for careless driving under section 53 of the Vehicles and Road Traffic Act in Antigua. The provision was in the same terms as the provisions in the St. Kitts Act. Under that section a sentence for disqualification could only be imposed on the second or subsequent conviction. It had neither been proved nor admitted that the Appellant had been convicted before. The Magistrate imposed a sentence of disqualification by virtue of section 65 of the Act which states:

"The court before which a person is convicted of any offence in connection with the driving of a motor vehicle may, in addition to any other penalty provided for such offence, and shall, where so required by the provisions of this Ordinance, order that the offender be disqualified for a stated period or permanently from holding or obtaining a driver's licence either generally or limited to the driving of a motor vehicle of any particular class or description; and if the offender holds a driver's licence the court shall endorse upon the licence particulars of the conviction."

5 Lewis J giving the decision of the divisional court, which allowed the appeal, stated:

"The section under which the Appellant is charged provides its own punishment for the offence created thereby and it is clearly stated in this section that the penalty of disqualification can only be imposed on a second or subsequent conviction for the offence of careless driving. In our opinion it would be wrong to apply the general provision for disqualification on conviction of "any offence in connection with a driving of a motor vehicle" contained in s. 65[1] where a person is charged with an offence under s. 53, as this section provides a specific punishment which can only be applied where the condition precedent stated in the section is satisfied, viz., the existence of a second or subsequent conviction for careless driving against the offender. This condition precedent did not in fact exist and accordingly the Magistrate had no power to impose a sentence of disqualification on the Appellant."

6 Counsel for the Appellant argued that this decision was authority for the proposition that the words "like offence" referred to a second or subsequent conviction for careless driving. We do not agree with him. That was not the question which the court was determining in that case. The court was concerned with the question whether on a conviction for careless driving under section 53, the court could use the penal provisions in section 65 of the Act. There was no attempt to construe the meaning of section 53.

7 One of the aids to interpreting the meaning of a statutory provision is the context of the provision. The statutory context includes the Act as a whole. When one looks at the context in which this provision is made there are a number of sections, namely sections 51, to 54 all of which give power to the Magistrate to disqualify. Section 51 deals with the offence of driving under the influence of drink or drug. The section mandates a period of disqualification of one year. Section 52 deals with reckless or dangerous driving and mandates a period of disqualification of six months. Section 53 deals with careless driving and mandates that on a second or subsequent conviction of a 'like offence" the court shall disqualify for such period as the court shall see fit. Section 54 deals with racing and mandates disqualification for a period of twelve months. In each section the court has power to disqualify for periods in excess of the mandatory period. In my view all of these sections deal with "like offences".

8 In fact it would make the application of the law totally absurd if someone was convicted of dangerous driving and then was subsequently convicted of careless driving if the Magistrate could not impose a disqualification in those circumstances. One has to apply...