The State v Mohammed
| Jurisdiction | Trinidad & Tobago |
| Judge | St. Clair-Douglas, J. |
| Judgment Date | 09 January 2012 |
| Neutral Citation | TT 2012 HC 6 |
| Docket Number | Criminal 114 of 2010 |
| Court | High Court (Trinidad and Tobago) |
| Date | 09 January 2012 |
High Court
St. Clair-Douglas, J.
Criminal 114 of 2010
Ms. Anju Bhola for The State.
Mrs. Michelle S. Solomon and Ms. Suzanne Seepersad for the defendant.
Statutory Interpretation - Dangerous Drugs Act, s. 5(5) — Meaning of words “is liable” — Whether section was discretionary or mandatory — Whether Pepper v. Hart was applicable.
On November 2, 2011, Uraz Mohammed (the prisoner) was convicted by unanimous verdict of a jury of the offence of being in possession of a Dangerous Drug for the Purpose of Trafficking, contrary to section 5(4) of the Dangerous Drugs Act, (“the Drug Act”). The drug in question was cocaine. The weight of the substance, as attested to by a Certificate of Analysis tendered into evidence by the prosecution at trial, was 12.98 kg.
The offence of drug trafficking having been established by section 5(4) of the Drug Act, the penalty is set out in section 5(5) as follows:
5. (5) Subject to subsection (7), a person who commits the offence of trafficking in a dangerous drug or of being in possession of a dangerous drug for the purpose of trafficking is liable upon conviction on indictment to a fine of one hundred thousand dollars or, where there is evidence of the street value of the dangerous drug, three times the street value of the dangerous drug, whichever is greater, and to imprisonment for twenty-five years to life.
Before the plea in mitigation was presented on behalf of the prisoner, counsel for the State filed submissions on the interpretation of section 5(5) of the Dangerous Drugs Act. It is the State's contention that section 5(5) requires the mandatory imposition of a term of imprisonment of at least twenty-five years.
Counsel for the prisoner contends that the proper interpretation to be applied to the section is that the normal judicial discretion with regard to sentencing has not been taken away, and that the Court can impose any sentence, less than twenty-five years, that it is minded to.
The Dangerous Drugs Act was enacted by the Parliament of Trinidad & Tobago as in 1991. According to its long title, it was an Act to provide for the control of narcotic drugs and psychotropic substances and to make provision for the confiscation of the proceeds of drug trafficking and other provisions in connection with drug trafficking and matters connected therewith. The Act was intended to have effect despite being inconsistent with sections 4 & 5 of the Constitution of Trinidad & Tobago; in that regard, it was passed by a special majority in both Houses of Parliament.
In 1991 when the Drug Act was originally promulgated, the penalty for drug trafficking was set out at section 5(5) as follows:
5. (5) Subject to subsection (7) a person who commits the offence of trafficking in a dangerous drug or of being in possession of a dangerous drug for the purpose of trafficking is liable—
(b) upon conviction on indictment to imprisonment for life.
The Drug Act was amended by The Dangerous Drugs (Amendment) Act, 2000 (“the Amending Act”). The Amending Act also was intended to have effect despite being inconsistent with sections 4 & 5 of the Constitution of Trinidad & Tobago; and it too, was passed by a special majority in both Houses of Parliament. The Amending Act made significant changes to the original Act. Section 5(5), as set out at paragraph (6) above, was repealed and replaced by the same subsection, as set out at paragraph (2) above.
On the issue raised by the State, it is clear that the task is one of statutory interpretation that is to say, arriving at the proper construction of section 5(5). I understand the first step of that task to be to discern the meaning of the words used in the enactment. Bennion advocates a two-stage approach:
… ascertaining the legal meaning of an enactment requires two stages. What may be called the first stage interpretation arises when the enactment is first looked at. Here a provisional view may be formed, perhaps that the meaning is clear. Or it may appear at the first stage that the enactment is grammatically ambiguous or vitiated by semantic obscurity. In all three cases it is necessary to go on and apply the informed interpretation rule. Thereafter, at second stage interpretation, a final view on legal meaning is formed. (F A R Bennion, Bennion on Statutory Interpretation 5th edn, (LexisNexis 2008) 592)
Bennion suggests that after a provisional view has been formed, the interpreter next has to apply the informed interpretation rule: (Ibid 585, Section 201. Statement of the informed interpretation rule.)
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(1) It is a rule of law … that the person who construes an enactment must infer that the legislator, when settling its wording, intended it to be given a fully informed, rather than a purely literal, interpretation….
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(2) Accordingly, the court does not decide whether or not any real doubt exists as to the meaning of an enactment (and if so how to resolve it) until the court has first discerned and considered, in the light of the guides to legislative intention, the context of the enactment, including all such matters as may illumine the text and make clear the meaning intended by the legislator in the factual situation of the instant case.
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(3) For this purpose Parliament intends the court to permit the citation of any publicly-available material which, in accordance with the interpretative criteria, the court considers it proper to admit (whether unconditionally or de bene esse).
The House of Lords has described the same task in a slightly different manner:
Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the “intention of Parliament” is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such-and-such a meaning “cannot be what Parliament intended”; they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning. As Lord Reid said in Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg AG [1975] A.C. 591, 613: “We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used.”
In identifying the meaning of the words used, the courts employ accepted principles of interpretation as useful guides. For instance, an appropriate starting point is that language is to be taken to bear its ordinary meaning in the general context of the statute. ( R v. Secretary of State for the Environment, Transport and the Regions [2001] 2 A.C. 349, 397 (Lord Nichols))
For the purpose of discerning the meaning of the words used in section 5(5) I have found it helpful to reduce that subsection to the bare bones of its endoskeletal frame. The words that comprise that frame appear to be the following:
5. (5) … a person who commits the offence of trafficking in a dangerous drug … is liable…
It would appear therefore, that Parliament intended that a person who commits the offence of drug trafficking “is liable” to the penalties set out in section 5(5). The first task must therefore be to attempt to discern the meaning of the words “is liable”.
The various sections of the Dangerous Drugs Act, in both its original and amended forms, in providing for punishment, make use of the phrase “is liable”. Specifically, section 5(5), in both its original and amended versions, provides that a person convicted of drug trafficking “is liable” to the penalty specified therein.
In R v. Hughes [2002] 2 A.C. 259 the Privy Council had to determine whether the imposition of the penalty of death was mandatory or discretionary in Saint Lucia, and in doing so, the Board found it necessary to construe the phrase “liable to suffer death” as it appeared in the Criminal Code of that country (Section 178 of the Criminal Code of Saint Lucia provided: ‘Whoever commits murder is liable indictably to suffer death.”). In 1888, the Criminal Code was enacted, with section 252 providing for the penalty of death. The 1888 Code had been revised down the years, but the relevant section continued to stipulate the penalty of death for the crime of murder in precisely the same form.
In relation to the penalty, the respondent in Hughes contended that the relevant section did not make the imposition of the death penalty mandatory – that it did not provide for the death penalty to be imposed on all persons convicted of murder. In deciding this issue, the Privy Council looked at the state of affairs at the time, in 1888, when the Criminal Code was originally enacted. This was on the basis that, since the words of the section had not been changed since 1888, its intent should also have remained unchanged. The Privy Council reasoned that, since the death sentence was mandatory for all murders in the United Kingdom until 1957, it could not possibly be that the Criminal Code when it...
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