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LAWS OF FIJI

Ed. 1978

(also in ed. 1985)

CHAPTER 17

PENAL CODE

ARRANGEMENT OF SECTIONS

SECTION

CHAPTER II-INTERPRETATION

CHAPTER III-TERRITORIAL APPLICATION OF THIS CODE

CHAPTER IV-GENERAL RULES AS TO CRIMINAL RESPONSIBILITY

CHAPTER V-PARTIES TO OFFENCES

CHAPTER VI-PUNISHMENTS

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PART II-CRIMES

Division I-Offences against Public Order

CHAPTER VII-TREASON AND OTHER OFFENCES AGAINST THE
SOVEREIGN'S AUTHORITY

CHAPTER VIII-GENOCIDE

CHAPTER IX-OFFENCES AFFECTING RELATIONS WITH FOREIGN STATES AND
EXTERNAL TRANQUILITY

CHAPTER X-UNLAWFUL ASSEMBLIES. RIOTS AND OTHER OFFENCES AGAINST PUBLIC TRANQUILITY

Division II-Offences Against the Administration of Lawful Authority

CHAPTER XI-CORRUPTION AND THE ABUSE OF OFFICE

CHAPTER XII-PERJURY AND FALSE STATEMENTS AND DECLARATIONS

CHAPTER XIII-OTHER OFFENCES RELATING TO THE
ADMINISTRATION OF JUSTICE

CHAPTER XIV-RESCUES AND ESCAPES AND OBSTRUCTING
OFFICERS OF COURT OF LAW

CHAPTER XV-MISCELLANEOUS OFFENCES AGAINST
PUBLIC AUTHORITY

Division III-Offences injurious to the public in general

CHAPTER XVI-OFFENCES RELATING TO RELIGION

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CHAPTER XVII-OFFENCES AGAINST MORALITY

CHAPTER XVIII-OFFENCES RELATING TO MARRIAGE

CHAPTER XIX-NUISANCES AND OTHER MISCELLANEOUS OFFENCES

Division IV-Offences against the person

CHAPTER XX-MURDER AND MANSLAUGHTER

CHAPTER XXI-DUTIES RELATING TO THE PRESERVATION
OF LIFE AND HEALTH

CHAPTER XXII-OFFENCES CONNECTED WITH MURDER AND SUICIDE

CHAPTER XXIII-OFFENCES ENDANGERING LIFE AND HEALTH

CHAPTER XXIV-CRIMINAL RECKLESSNESS AND NEGLIGENCE

CHAPTER XXV-ASSAULTS

CHAPTER XXVI-OFFENCES AGAINST LIBERTY

Division V-Offences relating to property

CHAPTER XXVII-LARCENY, EMBEZZLEMENT AND CONVERSION

CHAPTER XXVIII-STEALING AND DAMAGING TREES, FIXTURES, ETC.

CHAPTER XXIX-OTHER OFFENCES ALLIED TO STEALING

CHAPTER XXX-ROBBERY AND EXTORTION

CHAPTER XXXI-BURGLARY, HOUSEBREAKING AND SIMILAR OFFENCES

CHAPTER XXXII-FRAUDS BY TRUSTEES AND PERSONS IN A POSITION OF TRUST, AND FALSE ACCOUNTING

CHAPTER XXXIII-FALSE PRETENCES

CHAPTER XXXIV-RECEIVING PROPERTY STOLEN OR UNLAWFULLY OBTAINED AND LIKE OFFENCES

Division VI-Malicious Injuries to Property

CHAPTER XXXV-OFFENCES CAUSING INJURY TO PROPERTY

Division VII-Forgery, coining, counterfeiting and similar offences

CHAPTER XXXVI-INTERPRETATION

CHAPTER XXXVII-PUNISHMENT FOR FORGERY

CHAPTER XXXVIII-OFFENCES RELATING TO COIN,
AND BANK AND CURRENCY NOTES

CHAPTER XXXIX-PERSONATION

CHAPTER XL-SECRET COMMISSIONS AND CORRUPT PRACTICES

Division VIII-Attempts and conspiracies to Commit Crimes, and Accessories After the Fact

CHAPTER XLI-ATTEMPTS

CHAPTER XLII-CONSPIRACIES

CHAPTER XLIII-ACCESSORIES AFTER THE FACT

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AN ACT TO ESTABLISH A CODE OF CRIMINAL LAW

 * See Legal Notice No. 112 of 1970
† See Legal Notice No. 118 of 1970.

[l May 1945]

CHAPTER I-PRELIMINARY

Short title

1. This Act (hereinafter referred to as this Code) may be cited as the Penal Code.

Saving of certain laws

2. Except as hereinafter expressly provided nothing in this Code shall affect-

(a) the liability, trial or punishment of a person for an offence against the common law or against any other law in force in Fiji other than this Code; or

(b) the liability of a person to be tried or punished for an offence under the provisions of any law in force in Fiji relating to the jurisdiction of the courts of Fiji in respect of acts done beyond the ordinary jurisdiction of such courts; or

(Amended by Order* 7th October 1970.)

(c) the power of any court to punish a person for contempt of such court; or

(d) the liability or trial of a person, or the punishment of a person under any sentence passed or to be passed, in respect of any act done or commenced before the commencement of this Code; or

(e) any power of Her Majesty, or of the Governor-General as the representative of Her Majesty, to grant any pardon or to remit or commute in whole or in part or to respite the execution of any sentence passed or to be passed; or

(Amended by Order* 7th October 1970.)

(f) any of the Statutes, Acts, Regulations or Articles for the time being in force for the government of Her Majesty's military or naval or air forces, or the military or police forces of Fiji:

Provided that if a person does an act which is punishable under this Code and is also punishable under another Act or Statute of any of the kinds mentioned in this section, he shall not be punished for that act both under that Act or Statute and also under this Code.
* See Legal notice No. 112 of 1970
† See: Legal Notice No. 118 of 1970

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CHAPTER II - INTERPRETATION

General rule of construction

3. This Code shall be interpreted in accordance with the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and, except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.

Definition of certain expressions and terms

4. In this Code unless the context otherwise requires-

" court" means a court of competent jurisdiction;

"dangerous harm" means any harm endangering life;

"document of title to goods" includes any bill of lading, India warrant, dock warrant, warehousekeeper's certificate, warrant or order for the delivery or transfer of any goods or valuable thing, bought or sold note, or any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of such document to transfer or receive any goods thereby represented or therein mentioned or referred to;

"document of title to lands" includes any deed, map, roll, register, paper, or parchment, written or printed, or partly written and partly printed, being or containing evidence of the title, or any part of the title, to any real estate or to any interest in or out of any real estate and includes an instrument under the Land Transfer Act;
(Cap. 131)

"dwelling-house" includes any building or structure* or vessel or part of a building or structure* or vessel which is for the time being kept by the owner or occupier for the residence therein of himself, his family or servants or any of them, and it is immaterial that it is from time to time uninhabited; a building or structure adjacent to or occupied with a dwelling-house is deemed to be part of the dwelling-house if there is a communication between such building or structure and the dwelling-house, either immediate or by means of a covered and enclosed passage leading from the one to the other, but not otherwise;
*Inserted Act No. 15 of 1973.

"felony" means an offence which is declared by law to be a felony or, if not declared to be a misdemeanour, is punishable, without proof of previous conviction, with death, or with imprisonment for three years or more;

"grievous harm" means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense;

"harm" means any bodily hurt, disease or disorder whether permanent or temporary;

"judicial proceeding" includes any proceeding had or taken in or before any court, tribunal, commission of inquiry, or person, in which evidence may be taken on oath;

"knowingly" used in connection with any term denoting uttering or using, implies knowledge of the character of the thing uttered or used;

"local authority" means a local authority established under any* Act;
†Amended by Order 8th October, 1970.

"mail" includes every conveyance by which postal packets are carried, whether it be a vessel, car, coach, cart, horse or any other conveyance, and also a person employed in conveying or delivering postal packets, and also any vessel employed by or under the post office for the transmission of postal packets by contract. or otherwise in respect of postal packets transmitted by the vessel;

"mail bag" includes a bag, box, parcel or any other envelope or covering in which postal packets in course of transmission by post are conveyed, whether it does or does not contain any such packet;

"maim" means the destruction or permanent disabling of any external or internal organ, member or sense;

"misdemeanour" means any offence which is not treason or a felony;

"money" includes bank notes, bank drafts, cheques and any other orders, warrants or requests for the payment of money;

"night" or "night-time" means the interval between half-past six o'clock in the evening and half-past six o'clock in the morning;

"oath" includes affirmation or declaration and "swear" includes affirm or declare;

"offence" is an act, attempt or omission punishable by law;

"officer of the post office" includes the *Permanent Secretary for Posts and Telecommunications and any person employed in any business of the post office, whether employed by the *Permanent Secretary by any person under him or on behalf of the post office;
*Amended by Order 19^th November 1971.

"Person" and "owner", and other like terms, when used with reference to property, include corporations of all kinds and any other association of persons capable of owning property, and also when so used include Her Majesty;

"person employed in the public service" means any person holding any of the following offices or performing the duty hereof, whether as a deputy or otherwise, namely

(i) any civil office including the office of †Governor-General the power of appointing a person to which or of removing from which is vested in Her Majesty or in the †Governor-General in a †Minister or in any public Commission or Board; or
† Amended by Order 8th October, 1970 and by Act 14 of 1975.

(ii) any office to which a person is appointed or nominated under the provisions of any Act or by election; or

(iii) any civil office, the power of appointing to which or removing from which is vested in any person or persons holding an office of any kind included in either of paragraphs (i) or (ii); or

(iv) any office of arbitrator or umpire in any proceeding or matter submitted to arbitration by order or with the sanction of any court, or in pursuance of any Act;

and the said term further includes-

(i) a justice of the peace;

(ii) a member of a commission of inquiry appointed under or in pursuance of any Act;

(iii) any person employed to execute any process of a court;

(iv) all persons belonging to the military forces of Fiji;

(v) all persons in the employment of any government department;

(vi) all persons in the employ of the Fijian Affairs Board;

(vii) a person acting as a minister of religion of whatsoever denomination, in so far as he performs functions in respect of the notification of intending marriage or in respect of the solemnisation of marriage, or in respect of the making or keeping of any register or certificate of marriage, birth, baptism, death or burial, but not in any other respect;

(viii) a person in the employ of a local authority;

"possession"-

(a) "be in possession of" or "have in possession" includes not only having in one's own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person;

(b) if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them;

"postal packet" means a letter, postcard, lettercard, newspaper, book, packet, printed paper, pattern or sample packet, small packet or parcel and every other packet or article when in course of transmission by post and shall include a telegram when conveyed by post;

(Substituted by 37 of 1966, s. 5.)

"property" includes any description of real and personal property, money, debts and legacies, and all deeds and instruments relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods, and also includes not only such property as has been originally in the possession or under the control of any person, but also any property into or for which the same has been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise;

"public" refers not only to all persons within Fiji, but also to the persons inhabiting or using any particular place, or any number of such persons, and also to such indeterminate persons as may happen to be affected by the conduct in respect to which such expression is used;

"public way" includes any highway, market place, square, street, bridge or other way which is lawfully used by the public;

*"public place" or "public premises" means-

(a) any highway, public street, public road, public park or garden, sea beach, river, public bridge, wharf, jetty, lane, footway, square, court, alley or passage whether a thoroughfare or not; or

(b) any-

(i) land or open space, whether such land or space is closed or unenclosed; and

(ii) place or building of public resort, other than a dwelling house,

to which for the time being the public have or are permitted to have access whether on payment or otherwise;
*Replaced by Act No. 11 of 1971.

"publicly" when applied to acts done, means either-

(a) that they are so done in any public place as to be seen by any person whether such person be or be not in a public place; or

(b) that they are so done in any place not being a public place as to be likely to be seen by any person in a public place;

*"severe subnormality" means a state of arrested or incomplete development of mind which includes subnormality of intelligence and is of such a nature or degree that the patient is incapable of living an independent life or guarding himself against sources of exploitation or will be so incapable when of an age to do so;
*Inserted by Ordinance No. 12 of 1969.

"trustee" means a trustee on some express trust created by some deed, will, or instrument in writing, and includes the heir or personal representative of any such trustee, and any other person upon or to whom the duty of such trust shall have devolved or come, and also an executor and administrator, and an official receiver, assignee, liquidator or other like officer acting under any present or future †Act relating to companies or bankruptcy;
† Amended by Order 8th October, 1970.

"utter" includes using or dealing with and attempting to use or deal with and attempting to induce any person to use, deal with or act upon the thing in question;

"valuable security" includes any writing entitling or evidencing the title of any person to any share or interest in any public stock, annuity, fund or debt of any country or territory of the Commonwealth, or any territory which is under Her Majesty's protection or in respect of which a trusteeship agreement has been entered into by Her Majesty, or of any foreign state, or in any stock, annuity, fund or debt of any body corporate, company or society, whether within or without any country or territory of the Commonwealth, or any territory which is under Her Majesty's protection or in respect of which a trusteeship agreement has been entered into by Her Majesty, or to any deposit in any bank, and also includes any scrip, debenture, bill, note, warrant, order or other security for the payment of money, or any authority or request for the payment of money or for the delivery or transfer of goods or chattels, or any accountable receipt, release or discharge, or any receipt or other instrument evidencing the payment of money, or the delivery of any chattel personal, and any document of title to lands or goods;

(Amended by 37 of 1966, s. 5.)

"vessel" includes any ship, a boat and every other kind of vessel used in navigation either on the sea or in inland waters, and includes aircraft;

"wound" means any incision or puncture which divides or pierces any exterior membrane of the body, and any membrane is exterior for the purpose of this definition which can be touched without dividing or piercing any other membrane.

CHAPTER III-TERRITORIAL APPLICATION OF THIS CODE

Extent of jurisdiction of Fiji Courts

5. The jurisdiction of the courts of Fiji for the purposes of this Code extends to every place within Fiji or within *the internal waters, archipelagic waters and territorial seas thereof.
*Amended by 20 of 1977 s.2.

Offences committed partly within and partly beyond the jurisdiction

6. When an act which, if wholly done within the jurisdiction of the court, would be an offence against this Code, is done partly within and partly beyond the jurisdiction, every person who within the jurisdiction does or makes any part of such act may be tried and punished under this Code in the same manner as if such act had been done wholly within the jurisdiction.

CHAPTER IV-GENERAL RULES AS TO CRIMINAL RESPONSIBILITY

Ignorance of law

7. Ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence unless knowledge of the law by the offender is expressly declared to be an element of the offence.

Bona fide claim of right

8. A person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.

Intention and motive

9.-(1) Subject to the express provision of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

(3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention is immaterial so far as regards criminal responsibility.

Mistake of fact

10. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.

Presumption of sanity

11. Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.

Insanity

12. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or knowing that he ought not to do the act or make the omission.

But a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.

Intoxication

13.-(1) Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.

(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and-

(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or

(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.

(3) Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code relating to insanity shall apply.
(Cap. 21)

(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

(5) For the purpose of this section "intoxication" shall be deemed to include a state produced by narcotics or drugs.

Immature age

14.-(1) A person under the age of *ten years is not criminally responsible for any act or omission.
*Amended by Ordinance No. 12 of 1969.

(2) A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.

(3) A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.

Judicial officers

15. Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions, although the act done is in excess of his judicial authority or although he is bound to do the act omitted to be done.

(Amended by 9 of 1946, s. 2.)

Compulsion

16. A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do him grievous bodily. harm if he refuses; but threats of future injury do not excuse any offence.

Defence of person or property

17. Subject to any express provisions in this Code or any other law in operation in Fiji, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law.

Use of force in effecting arrest

18. Where any person is charged with a criminal offence arising out of the lawful arrest, or attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested, the court shall, in considering whether the means used were necessary, or the degree of force used was reasonable, for the apprehension of such person, have regard to the gravity of the offence which had been or was being committed by such person and the circumstances in which such offence had been or was being committed by such person.

Compulsion by husband

19. A married woman is not free from criminal responsibility of doing or omitting to do an act merely because the act or omission takes place in the presence of her husband; but, on a charge against a wife for any offence other than treason or murder, it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband.

Person not to be punished twice for same offence

20. A person cannot be punished twice either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing such death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.

CHAPTER V-PARTIES TO OFFENCES

Principal offenders

21.-(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-

(a) every person who actually does the act or makes the omission which constitutes the offences;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids or abets another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence.

In the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.

(2) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(3) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with doing the act or making the omission.

Offences committed by joint offenders in prosecution of common purpose

22. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

Counselling another to commit an offence.

23. When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.

In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him.

If the facts constituting the offence actually committed are not a probable consequence of carrying out the counsel, the person who gave the counsel is not deemed to be responsible.

CHAPTER VI-PUNISHMENTS

Sentence of death

*24.-(1) When any person is sentenced to death, the form of sentence shall be to the effect only that he is to -suffer death in the manner authorised by law".

(Substituted by 6 of 1959, s. 2.)

(2) A certificate under the hand of the Chief Registrar or other officer of the court that sentence of death has been passed, and naming the person condemned, shall be sufficient authority for the detention of such person.
*Sections 24, 25 and 27 and subsections (2) and (3) of section 26 substituted by Ordinance No. 21 of 1950.

Persons under 18 not to be sentenced to death

*25.-(1) Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of eighteen years, but in lieu thereof the court shall sentence such person to be detained during the †Governor-General's pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the †Governor-General may direct, and whilst so detained shall be deemed to be in legal custody.

(Amended by 24 of 1952, s. 2, 17 of 1966, s. 2, and 28 of 1972 s. 2.)

(2) When a person has been sentenced to be detained during the †Governor-General's pleasure under subsection (1) the presiding judge shall forward to the †Governor-General a copy of the notes of evidence taken on the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make.

(3) Any person so detained as aforesaid may at any time be discharged by the †Governor-General on licence. Such licence may be in such form and may contain such conditions as the †Governor-General may direct and may at any time be revoked or varied by the †Governor-General.

Where a licence has been revoked the person to whom the licence relates shall return to such place as the †Governor-General may direct and if he fails to do so may be apprehended without warrant and taken to that place.
*Sections 24, 25 and 27 and subsections (2) and (3) of section 26 substituted by Ordinance No. 21 of 1950.
†Amended by Order 8th October, 1970.

Record and report to be sent to Governor-General

26.-(1) As soon as possible after action has been taken in accordance with the provisions of subsection (6) of section 88 of the Constitution, the Commission on the Prerogative of Mercy shall communicate to the presiding judge or his successor in office the terms of any decision reached by the Governor- General under such provisions and such judge shall cause the tenor and substance thereof to be entered in the records of the Court.

*(2) The †Governor-General shall issue a death warrant, or an order for the sentence of death to be commuted, or a pardon, under his hand and the public seal of Fiji, to give effect to the said decision. If the sentence of death is to be carried out, the warrant shall state that the person to be executed shall be hanged by the neck until he is dead, and the place where and the time when the execution is to be had, and shall give directions as to the place of burial or cremation of the body of the person executed. If the sentence is commuted for any other punishment the order shall specify that punishment. If the person sentenced is pardoned, the pardon shall state whether it is free, or to what conditions, if any, it is subject:

(Amended by 6 of 1959, s. 3.)

Provided that the †Governor-General's warrant may direct that the execution shall take place at such time and at such place and that the body of the person executed shall be buried or cremated at such place, as shall be appointed by some officer specified in the warrant.

*(3) The warrant or order, or pardon of the †Governor-General shall be sufficient authority in law to all persons to whom the same is directed to execute the sentence of death or other punishment awarded, and to carry out the directions therein given in accordance with the terms thereof.
*Sections 24, 25 and 27 and subsections (2) and (3) of section 26 substituted by Ordinance No. 21 of 1950.
†Amended by Order 8th October, 1970.

Procedure where woman convicted of capital offence alleges she is pregnant

*27.-(1) Where a woman convicted of an offence punishable with death alleges that she is pregnant, or where the court before whom she is convicted thinks fit so to order, the question whether or not the woman is pregnant shall, before sentence is passed on her, be determined by the trial judge.

(2) The question whether the woman is pregnant or not shall be determined by the judge on such evidence as may be laid before him on the part of the woman or on the part of the Crown, and the judge shall find that the woman is not pregnant unless it is proved affirmatively to his satisfaction that she is pregnant.

(3) Where a woman convicted of an offence punishable with death is found in accordance with the preceding provisions of this section to be pregnant, the sentence to be passed on her shall be a sentence of imprisonment for life instead of sentence of death.
*Sections 24, 25 and 27 and subsections (2) and (3) of section 26 substituted by Ordinance No. 21 of 1950.

Imprisonment

28.-(1) No person shall be sentenced by a court to imprisonment with hard labour; and every enactment conferring power on a court to pass a sentence of imprisonment with hard labour in any case shall be construed as conferring power to pass a sentence of imprisonment for a term not exceeding the term for which a sentence of imprisonment with hard labour could have been passed immediately before the date of coming into force of this section; and so far as any enactment required or permits prisoners to be kept to hard labour it shall cease to have effect.

(Substituted by 25 of 1957, s. 3.)

(2) A person liable to imprisonment for life or any other period may be sentenced for any shorter term.

(3) A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or instead of imprisonment.

(4) Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence of imprisonment which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof:

Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence.

(5) A warrant under the hand of the judge or magistrate by whom any person is sentenced to imprisonment, ordering that the sentence be carried out in any prison within Fiji, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of such prison and to all other persons for carrying into effect the sentence described in such warrant, not being a sentence of death. Subject to the provisions of this section every sentence shall be deemed to commence from and to include the whole of the day on which it was pronounced except where otherwise provided in this Code or otherwise ordered by the court.

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*Suspended sentences of imprisonment

29.-(1) A court which passes a sentence of imprisonment for a term of not more than two years for an offence, may order that the sentence shall not take effect unless, during a period specified in the order, being not less than one year nor more than three years from the date of the order, the offender commits in Fiji another offence punishable with imprisonment and thereafter a court having power to do so orders under the provisions of section 30 that the original sentence shall take effect; and in this and in sections 30, 31 and 32 "operational period" in relation to a suspended sentence means the period so specified in the order.

(2) A court which passes a suspended sentence on any person for an offence shall not make a probation order in his case in respect of another offence of which he is convicted by or before the court or for which he is dealt with by the court.

(3) A court which passes a sentence of imprisonment for a term of not more than six months in respect of one offence shall not make an order under the provisions of subsection (1) where-

(a) the act or any of the acts constituting that offence consisted of an assault on or threat of violence to another person or of having or possessing a firearm, an imitation firearm, an explosive or an offensive weapon or of indecent conduct with or towards a person under the age of sixteen years;

(b) that offence is one in respect of which a probation order or order for conditional discharge was originally made or the offender was subject to such order at the time of committing the offence; or

(c) on the occasion on which a sentence is passed for that offence, the court passes or proposes to pass a sentence of immediate imprisonment on the offender for another offence which the court is not required to suspend.

(4) On passing a suspended sentence the court shall explain to the offender in ordinary language his liability under the provisions of section 30 if during the operational period he commits an offence punishable with imprisonment.

(5) Subject to any provision contained in any written law-

(a) a suspended sentence which has not taken effect under the provisions of section 30 shall be treated as a sentence of imprisonment for the purposes of any written law which provides for disqualification for or loss of office or forfeiture of office of persons sentenced to imprisonment; and

(b) where a suspended sentence has taken effect under the provisions of section 30, the offender shall be treated for the purpose of such written law as having been convicted on the ordinary date on which the period allowed for making an appeal against an order under that section expires or, if such an appeal is made, the date on which it is finally disposed of, or abandoned or fails for non-prosecution.
* Inserted by Ordinance No. 12 of 1969

*Power of court on conviction of further offence to deal with suspended sentence

30.-(1) Where an offender is convicted of an offence punishable with imprisonment committed during the operational period of a suspended sentence and either he was convicted by or before a court having power under the provisions of section 31 to deal with him in respect of the suspended sentence or who subsequently appears or is brought before a court, then, unless the sentence has already taken effect, that court shall consider his case and deal with him by one of the following methods-

(a) the court may order that the suspended sentence shall take effect with the original term unaltered;

(b) it may order that the sentence shall take effect with the substitution of a lesser term for the original term;

(c) it may by order vary the original order made under the provisions of subsection (1) of section 29 by substituting for the period specified therein a period expiring not later than three years from the date of the variation; or

(d) it may make any order with respect to the suspended sentence, and a court shall make an order under paragraph (a) unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent, offence and, where it is of that opinion, the court shall state its reasons.

(2) Where a court orders that a suspended sentence shall take effect with or without any variation of the original term, the court may order that that sentence shall take effect immediately or that the term thereof shall commence on the expiry of another term of imprisonment passed on the offender by that or any other court.

(3) For the purposes of any written law conferring rights of appeal in criminal cases, any order made by a court under the provisions of subsection (1) shall be treated as a sentence passed on the offender by that court for the offence for which the suspended sentence was passed.
* Inserted by Ordinance No. 12 of 1969

*Court by which suspended sentence is to be dealt with

31.-(1) An offender shall be dealt with in respect of a suspended sentence by the Supreme Court or, where the sentence was passed by a magistrate's court. by any magistrate's court before which he appears or is brought.

(2) Where an offender is convicted by a magistrate's court of an offence punishable with imprisonment and the court is satisfied that the offence was committed during the operational period of a suspended sentence passed by the Supreme Court-

(a) the court may, if it thinks fit, commit him in custody or on appeal to the Supreme Court; and

(b) if it does not, shall give written notice of the conviction to the Clerk of the Court by which the suspended sentence is passed.

(3) For the purposes of this and section 32 a suspended sentence passed on an offender on appeal shall be treated as having been passed by the court by which he was originally sentenced.
* Inserted by Ordinance No. 12 of 1969

*Discovery of further offences

32.-(1) If it appears to a judge or a magistrate on whom jurisdiction is conferred by subsection (2) that an offender has been convicted in Fiji of an offence punishable with imprisonment committed during the operational period of a suspended sentence and that it has not been dealt with in respect of this suspended sentence, the judge or magistrate may issue a summons requiring the offender to appear at the place and time specified therein or may issue a warrant for his arrest.

(2) The following persons shall have jurisdiction for the purpose of subsection (1):-

(a) if the suspended sentence was passed by the Supreme Court, a judge of that court;

(b) if the suspended sentence was passed by a magistrate's court, any magistrate.
* Inserted by Ordinance No. 12 of 1969

*Minimum period on sentence of imprisonment for life

33. Whenever a sentence of imprisonment for life is imposed on any convicted person the judge who imposes the sentence may recommend the minimum period which he considers the convicted person should serve.
*Inserted by Act No. 28 of 1972.

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Corporal punishment

†34.-(1) A sentence of corporal punishment shall be to suffer corporal punishment once only and shall specify the number of strokes which shall not exceed ‡twelve in any case.
‡Inserted by Ordinance No. 12 of 1969.

(2) No sentence of corporal punishment shall be carried out unless it has been confirmed by the Supreme Court, and no such sentence shall be executed publicly or by instalments.

(3) The following provisions shall govern the carrying out of a sentence of corporal punishment-

(a) where the person sentenced to corporal punishment signs a statement that he does not intend to appeal against conviction or sentence, §his right to appeal shall be deemed to have been abandoned and shall, notwithstanding the provisions of any other written law, thereon cease, and the sentence shall be carried out forthwith after it has been confirmed by the Supreme Court under the provisions of subsection (2);
§Inserted by Act No. 15 of 1973

(b) where the person so sentenced does not sign such a statement and does not appeal against his conviction or sentence within the period prescribed by law, such sentence shall be carried out forthwith after it has been confirmed by the Supreme Court under the provisions of subsection (2);

(c) where the person so sentenced appeals against conviction or sentence and such sentence is upheld on appeal, such sentence shall be carried out within fourteen days of the determination of the appeal;

(Amended by 37 of 1966, s. 5).

(d) the period of fourteen days prescribed in paragraph (c) may be extended by the Supreme Court if it is satisfied that the sentence of corporal punishment could not be carried out within such period owing to the accused's physical state or wilful act or omission;

(e) if there is an appeal in a case in which corporal punishment has been awarded, it shall be determined with as much expedition as practicable;

(f) In no circumstances whatsoever shall a sentence of corporal punishment be carried out after the expiration of whichever of the following periods from the date of passing sentence is applicable-

(i) where the sentence was passed by the Supreme Court, six months;

(ii) where the sentence was passed by a Magistrate's Court, three months.

(Subsection substituted by 16 of 1960, s. 2 and amended by 4 of 1976, s. 3 and 24 of 1976, s. 2.)

(4) No sentence of corporal punishment shall be passed upon any of the following persons:-

(a) females;

(b) males sentenced to death;

(c) males whom the court considers to be more than thirty-five years of age;

(d) persons under the age of seventeen years.

(Amended by 17 of 1966, s. 3, 12 of 1969, s. 5, and 28 of 1972, s. 2)

(5) Where a person is convicted at one trial of two or more distinct offences any two or more of which are punishable by corporal punishment under the provisions of this Code or any other Act, the combined sentences of corporal punishment awarded by the court shall not exceed, twelve strokes.

(Amended by Ordinance 12 of 1969, s. 5)

(6) In determining the age of an offender for the purposes of this section the court may in the absence of direct evidence or medical testimony of age adjudge such age according to the appearance of the offender.

(7) A sentence of corporal punishment shall not be carried out except in the presence of a medical officer or a duly qualified medical practitioner, nor before such medical officer or practitioner has after examination certified that in his opinion the prisoner is physically fit to undergo the sentence of corporal punishment about to be inflicted upon him.

(8) The medical officer or practitioner may at any time during the carrying out of the sentence of corporal punishment intervene and prohibit the remainder of the sentence from being carried out if in his opinion the prisoner is unable to bear such sentence without risk of grave or permanent injury.

(9) If any person has been sentenced to corporal punishment, and such sentence is, wholly or partially, prevented from being carried out, such person shall be kept in custody, and shall as soon as possible be taken before the court which passed the sentence of corporal punishment and such court shall either remit such sentence or substitute for such sentence, or the balance thereof, any sentence to which such person might have been liable.

(Amended by 16 of 1960, s. 2.)

(10) An offender sentenced to undergo corporal punishment may be detained in a prison or some other convenient place for such time as may be necessary for carrying the sentence into effect, or for ascertaining whether the same shall be carried into effect.

(11) A sentence of corporal punishment shall be carried out with an instrument of a size and pattern approved by the *Minister.
†Sections 34 to 39 substituted by Ordinance No, 21 of 1950.
* Amended by Order 8th October, 1970.

Fines

*35.-(1) Where a fine is imposed under any law, then in the absence of express provisions relating to such fine in such law the following provisions shall apply:

(a) Where no sum is expressed to which the fine may extend, the amount of the fine which may be imposed is unlimited, but shall not be excessive;

(b) Where the sum to which the fine may amount is expressed, any lesser fine may be imposed;

(c) In the case of an offence punishable with a fine or a term of imprisonment the imposition of a fine or a term of imprisonment shall be a matter for the discretion of the court;

(d) In the case of an offence punishable with imprisonment as well as a fine in which the offender is sentenced to a fine with or without imprisonment and in every case of an offence punishable with a fine only in which the offender is sentenced to a fine the court passing sentence may, in its discretion-

(i) direct by its sentence that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in addition to any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence; and also

(ii) issue a warrant for the levy of the amount on the immovable and movable property of the offender by distress and sale under warrant:

Provided that if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue a distress warrant.

(2) The term of imprisonment to which a person may be sentenced by a court in default of payment of a fine shall be such term as in the opinion of the court will satisfy the justice of the case but shall not exceed the maximum fixed by the following scale:-

†(3) Notwithstanding the provisions of subsection (5) of section 28 but subject to the provisions of subsection (4) of that section, the imprisonment which is imposed in default of payment of a fine shall commence on the day on which the person so in default was arrested by virtue of the sentence of the court and shall terminate whenever the fine and all expenses are either paid or levied by process of law.
*Sections 34 to 39 substituted by Ordinance No. 21 of 1950.
†Inserted by Ordinance No, 12 of 1969.

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Distress

*36.-(1) When a court orders money to be paid by an accused person or by a prosecutor or complainant for fine, penalty, compensation, costs, expenses or otherwise, the money may be levied on the †real and personal property by distress or sale under warrant. If he shows sufficient †personal property to satisfy the order his †real property shall not be sold.
†Inserted by Ordinance No. 12 of 1969.

(2) Such persons may pay or tender to the officer having the execution of the warrant the sum therein mentioned, together with the amount of the expenses of the distress up to the time of payment or tender, and thereupon the officer shall cease to execute the same.

†(3) A warrant under the provisions of this section may be executed anywhere in Fiji.
†Inserted by Ordinance No. 12 of 1969.

(4) Any person claiming to be entitled to or to have a legal or equitable interest in the whole or part of any property attached in execution of a warrant issued under this section may, at any time prior to the receipt by the court of the proceeds of sale of such property, give notice in writing to the court of his objection to the attachment of such property. Such notice shall set out shortly the nature of the claim which such person (hereinafter in this section referred to as the objector) makes to the whole or part of the property attached, and shall certify the value of the property claimed by him. Such value shall be deposed to upon affidavit which shall be filed with the notice.

(5) Upon receipt of a valid notice given under subsection (4), the court shall by an order in writing addressed to the officer having the execution of the warrant, direct the stay of the execution proceedings.

(6) Upon the issue of an order under subsection (5), the court shall, by notice in writing, direct the objector to appear before such court and establish his claim upon a date to be specified in the notice.

(7) A notice shall be served upon the person whose property was, by the warrant issued under subsection (1), directed to be attached, and, unless the property is to be applied to the payment of a fine, upon the person entitled to the proceeds of the sale of such property. Such notice shall specify the time and place fixed for the appearance of the objector and shall direct the person upon whom the notice is served to appear before the court at the same time and place if he wishes to be heard upon the hearing of the objection.

(8) Upon the date fixed for the hearing of the objection, the court shall investigate the claim and, for such purpose, may hear any evidence which the objector may give or adduce and any evidence given or adduced by any person served with a notice in accordance with the provisions of subsection (7).

(9) If, upon investigation of the claim, the court is satisfied that the property was not, when attached, in the possession of the person ordered to pay the money or of some person in trust for him or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the person ordered to pay the money at such time it was so in his possession not on his own account or as his own property but on account of or in trust for some other person or partly on his own account and partly on account of some other person, the court shall make an order releasing the property, wholly or to such extent as it thinks fit from attachment.

(10) If, upon the date fixed for his appearance, the objector fails to appear, or if, upon investigation of the claim in accordance with the provisions of subsection (8), the court is of opinion that the objector has failed to establish his claim, the court shall order the attachment and execution to proceed, and shall make such order as to cost as it deems fit.

(11) Nothing in this section shall be deemed to deprive a person who has failed to comply with the requirements of subsection (4) of the right to take any other proceedings which, apart from the provisions of this section, may lawfully be taken by a person claiming an interest in property attached under a warrant.

(12) No distress made under this section shall be deemed unlawful, nor shall any person making the same be deemed a trespasser, on account of any defect or want of form in the summons, conviction, warrant of distress or other proceedings relating thereto.
*Sections 34 to 39 substituted by Ordinance No. 21 of 1950.

Suspension of execution of sentence of imprisonment in default of fine

*37.-(1) When a convicted person has been sentenced to a fine only and to imprisonment in default of payment of a fine, and whether or not a warrant of distress has been issued under section 36 the court may make an order directing the fine to be paid on or before a specified date, not being more than thirty days from the date of the order, and in the event of the fine not being paid on or before that date may, subject to the other provisions of this section, forthwith issue a warrant of committal. The court may, before making such order, require the convicted person to execute a bond, with or without sureties, conditioned for his appearance before the court on the specified date if the fine be not in the meantime paid. Upon the making of an order under this subsection the sentence of imprisonment shall be deemed to be suspended and the convicted person shall be released from custody.

(2) In any case in which an order for the payment of money has been made, on non-recovery of which imprisonment may be awarded, and the money is not paid forthwith, the court may require the person ordered to make such payment to enter into a bond as prescribed in subsection (1), and in default of his so doing may at once pass sentence of imprisonment as if the money had not been recovered.

(3) The court may in its discretion direct that any money to which this section applied may be paid by instalments at such times and in such amounts as the court may deem fit; but so nevertheless that in default of payment of any such instalment as aforesaid the whole of the amount outstanding shall become and be immediately due and payable, and all the provisions of this Code applicable to a sentence of fine and to imprisonment in default of payment thereof shall apply to the same accordingly.

(4) A warrant of commitment to prison in respect of the non-payment of any sum of money by a person to whom time has been allowed for payment under the provisions of subsection (1), or who has been allowed to pay by instalments under the provisions of subsection (3), shall not be issued unless the court shall first make inquiry as to his means in his presence:

Provided that a court may issue such a warrant of commitment without any further inquiry as to means if it shall have made such inquiry in the presence of the convicted person at the time when the fine was imposed or at any subsequent time and the convicted person shall not before the expiration of the time for payment have notified the court of any change in his means or applied to the court for an extension of time to pay the fine.

(Proviso inserted by 25 of 1957, s. 7.)

(5) After making inquiry in accordance with the provisions of subsection (4), the court may, if it thinks fit, instead of issuing a warrant of commitment to prison, make an order extending the time allowed for payment or varying the amount of the instalments or the times at which the instalments were, by the previous order of the court, directed to be paid, as the case may be.

(6) For the purpose of enabling inquiry to be made under the provisions of subsection (4), the court may issue a summons to the person ordered to pay the money to appear before it and, if he does not appear in obedience to the summons, may issue a warrant for his arrest or, without issuing a summons, issue in the first instance a warrant for his arrest.
* Sections 34 to 39 substituted by Ordinance No. 21 of 1950.

Commitment in lieu of distress

*38.-(1) If the officer having the execution of a warrant of distress reports that he could find no property or not sufficient property whereon to levy the money mentioned in the warrant with expenses, the court may by the same or a subsequent warrant commit the person ordered to pay to prison for a time specified in the warrant, unless the money and all expenses of the distress, commitment and conveyance to prison, to be specified in the warrant, are sooner paid.

(2) When it appears to the court that distress and sale of property would be ruinous to the person ordered to pay the money or his family, or (by his confession or otherwise) that he has no property whereon the distress may be levied, or other sufficient reason appears to the court, the court may if it thinks fit, instead of or after issuing a warrant of distress, commit him to prison for a time specified in the warrant, unless the money and all expenses of the commitment and conveyance to prison, to be specified in the warrant, are sooner paid.

(3) The period for which a person may be committed to prison in default of or in lieu of distress under this section shall be-

(a) if the person has been sentenced to a term of imprisonment in default of payment of a fine, the period to which he was so sentenced;

(b) in other cases such period as the court considers reasonable subject to the maximum laid down in subsection (2) of section 30 relating to fines.
* Sections 34 to 39 substituted by Ordinance No. 21 of 1950.

Payment after commitment

*39.-(1) Any person committed for non-payment may pay the sum mentioned in the warrant, with the amount of expenses therein authorised (if any), to the person in whose custody he is, and that person shall thereupon discharge him if he is in custody for no other matter.

(2) If any person committed to prison for non-payment shall pay any sum in part satisfaction of the sum adjudged to be paid, the term of his imprisonment shall be reduced by a number of days bearing as nearly as possible the same proportion to the total number of days for which such person is committed, as the sum so paid bears to the sum for which he is liable. The calculation shall be made by the officer in charge of the prison in which such person is confined, who shall forthwith give notice in writing to such person and to the court which passed sentence on him, stating the sum paid and the number of days by which the term of imprisonment originally awarded is reduced. The reduction of sentence shall be as so notified unless the court otherwise orders.
* Sections 34 to 39 substituted by Ordinance No. 21 of 1950.

(Amended by 16 of 1960 s. 3.)

*Payment after issue of warrant but before commitment

40. Where a warrant has been issued under the provisions of this Code for non-payment of a fine, any payment made after the issue of such warrant but before the person in respect of whom the warrant has been issued has been taken into custody, being a payment insufficient to satisfy the sum mentioned in the warrant together with the amount of the expenses therein mentioned, shall be deemed to be appropriated primarily in satisfaction, or part satisfaction, of such expenses.
*Inserted by Ordinance No. 12 of 1969.

Security for keeping the peace

†41.-(1) A person convicted of an offence not punishable with death may, instead of or in addition to any punishment to which he is liable, be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks fit, conditioned that he shall keep the peace and be of good behaviour for a time to be fixed by the court, not exceeding two years, and may be ordered to be imprisoned until such recognizance, with sureties if so directed, is entered into; but so that the imprisonment for not entering into the recognizance shall not extend for a term longer than six months:

Provided that no order shall be made under this section where the person convicted has been sentenced to a term of imprisonment of more than six months.

(2) In addition to the powers conferred by sub-section (1), any magistrate shall have power in any trial before him, whether or not the complaint be dismissed, to bind both the complainant and defendant with or without sureties, to keep the peace and be of good behaviour for a period not exceeding one year and may order any person so bound, in default of compliance with the order, to be imprisoned for three months or until such earlier time as he so complies:

Provided that:

(a) a defendant who has been sentenced to more than six months' imprisonment shall not be bound over under this subsection;

(b) a complainant shall not be bound over under the powers contained in this subsection unless he shall have been given an opportunity to address the Court personally or by a barrister and solicitor as to why he should not be bound over.

(3) In this section "complainant" includes a person who makes complaint, or on behalf of whom complaint is made, to the police.
†Sections 41 to 43 substituted by Ordinance No. 21 of 1950.

(Section amended by 30 of 1958, s. 2.)

Security for coming up for judgment

†42.-(1) In any case in which a person is convicted before any court of any offence not punishable with death, if it appears to the court before which he is convicted that having regard to the circumstances, including the nature of the offence and the character of the accused, it is expedient to release the offender on probation, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, *for such period not exceeding two years as the court may order, to appear and receive sentence when called upon and, in the meantime, to keep the peace, to be of good behaviour and to comply with such conditions as the court may impose. *Inserted by Ordinance No. 12 of 1969.

(2) If at any time the court which convicted the offender is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.

(3) An offender when apprehended on any such warrant shall be brought forthwith before the court by which the warrant was issued and such court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned for his appearing for sentence. Such court may after hearing the case, pass sentence.

(4) Where an order under subsection (1) is made by a court, the order shall for the purpose of revesting or restoring stolen property and for the purpose of enabling the court to make any order under the provisions of sections 164 and 165 of the Criminal Procedure Code, have the like effect as a conviction.
(Cap. 21)
†Sections 41 to 43 substituted by Ordinance No. 21 of 1950.

Provisions of Criminal Procedure Code relating to recognizance to apply

*43. The provisions of sections 113,114 and 116 of the Criminal Procedure Code shall apply mutatis mutandis to recognisances taken under section 41 or section 42.
(Cap. 21)
*Sections 41 to 43 substituted by Ordinance No. 21 of 1950.

†Absolute and conditional discharge

44.-(1) Where a court by or before which a person is found guilty of an offence, not being an offence for which a fixed sentence is prescribed by law, is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Act is not appropriate, the court may, with or without proceeding to conviction, make an order discharging him absolutely, or, if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order, and subject to such other conditions, if any, ‡including the payment of costs or compensation, or the restitution of goods or the payment of money in lieu of goods, as may be specified in such order.
(Cap. 22)
‡Inserted by Act No. 15 of 1973.

(2) Before making an order discharging a person subject to the conditions referred to in subsection (1), the court shall explain to the offender in ordinary language that if during the period of conditional discharge he commits another offence or fails to comply with such conditions, if any, which may have been imposed he will be liable to be sentenced for the original offence.

(3) Where an order discharging an offender is made under the provisions of this section the court may