Jersey Unreported Judgments

2002/123

ROYAL COURT

(Samedi Division)

 

28^th June, 2002.

 

 

The Attorney General

-v-

Parvez Rashid Pirzada

 

First Indictment

 

3 counts of:

contravening Article 14(1)(a) of The Housing (Jersey) Law, 1949, by failing to comply with condition attaching to the Housing Committee's consent to 9 year lease of property, 115 Halkett Place, St Helier, namely that it shall not be let, unfurnished to, nor be occupied by persons other than those specified in Regulation 1(1)(a) to (h) of the Housing (General Provisions) (Jersey) Regulations, 1970 (counts 1 - 3).

 

Second Indictment

 

3 counts of:

contravening Article 14(1)(a) of The Housing (Jersey) Law, 1949, by failing to comply with condition attaching to the Housing Committee's consent to 9 year lease of property, 16 York Street, St Helier, namely that it shall not be let, unfurnished to, nor be occupied by persons other than those specified in Regulation 1(1)(a) to (h) of the Housing (General Provisions) (Jersey) Regulations, 1970 (counts 1 - 3).

 

Age:     57

 

Plea:    Facts admitted.

 

Details of Offence:

Re: Halkett Place:  Between February 2000 and September 2001 the defendant was lessee of 115 Halkett Place.  A fire broke out September 2001 and the Fire Service had to establish how many persons were resident with the Housing Department.  There was one "qualified" occupier and six illegal occupants.  The "qualified" resident did not know he was the landlord of the other occupiers, and even if he were, there was one in excess of the permitted five.  During the material period the defendant paid approximately £9,999 to the head lessor.  During the same period he received £34,450 in rental from the seven occupants, including the qualified tenant.

 

Re: York Street:  The defendant's company was landlord of the whole of 16 York Street.  The ground floor was commercial premises, Henley's Tea Room.  In 1997 the company sub-let residential accommodation on the upper floors to the defendant.  In January 2000 a residentially qualified female was looking for accommodation near the General Hospital.  She suffered severe kidney failure, needed dialysis three times per week and hence accommodation within walking distance.  She took a flat within 16 York Street but did not realise there were four other occupants already there.  A couple on the second floor had lived on the premises since June 1999 and in February 2002, two further unqualified persons moved into the property.  The qualified female did not know she was landlady of the other tenants.  At interview the defendant said that it was she who was responsible for the tenants.  From the female's statement it was apparent that the defendant had placed some pressure on her to support his story and cover up the true occupancy arrangements.  The defendant had committed infractions on charges 1 and 2, whilst knowing that he was being investigated and had been reported to the Attorney General in October, 2001, for offences at Halkett Place.  In respect of both prosecutions, he purported not to know the law.  He had however submitted a complex Affidavit of Means which demonstrated that he was not a simple man but a business man with several business interests.  Over the material period he had received a total rental of £19,552 from the illegal occupants.

 

Details of Mitigation:

Argued that he had not in fact made any "illicit" profit at all and that it was an administrative breach.  He suffered serious losses as a result of the fire.  At York Street, he supplied electricity free and thought that would suffice as a service.  He claimed to be in a very parlous financial situation.

 

Previous Convictions:

In 1998 he was prosecuted for similar offences arising from the illegal occupancy of the same premises in Halkett Place.

 

Conclusions:

First Indictment.

 

Count 1:	£4,000 fine or 12 months' imprisonment, in default of payment.
Count 2:	£4,000 fine or 12 months' imprisonment, in default of payment, default sentences concurrent.
Count 3:	£4,000 fine or 12 months' imprisonment, in default of payment, default sentences concurrent.

 

£1,000 costs.

 

Second Indictment

 

Count 1:	£6,000 fine or 12 months' imprisonment, in default of payment.
Count 2:	£6,000 fine or 12 months' imprisonment, in default of payment, default sentences concurrent.
Count 3:	£6,000 fine or 12 months' imprisonment, in default of payment, default sentences concurrent.

 

£1,000 costs.

 

Judicial hypothèque on all the immoveable property of Defendant until all fines and costs paid.

 

Sentence and Observations of Court:

First Indictment

 

Count 1:	£2,500 fine or 9 months' imprisonment in default of payment.
Count 2:	£2,500 fine or 9 months' imprisonment in default of payment, default sentences concurrent.
Count 3	£2,500 fine or 9 months' imprisonment in default of payment, default sentences concurrent.

 

£1,000 costs.

 

Second Indictment: conclusions granted.

 

Fines to be paid at rate of £500 per month for first 12 months, and at £1,000 per month thereafter.

 

Judicial hypothèque on all immoveable property of defendant until all fines and costs paid.

 

Mrs S Sharpe, Crown Advocate.

Advocate P.D. James for the defendant.

 

 

 

JUDGMENT

 

THE COMMISSIONER:

1.        There are two prosecutions before us this morning.  The facts surrounding 16 York Street came to light after a summons had been issued regarding the occupancy of 115 Halkett Place.  The prosecution involving 115 Halkett Place followed an investigation by the Housing Department, into the occupancy of 9 units of dwelling accommodation after a fire had destroyed the property on the 20^th September, 2001.

2.        After the fire it was clear, on any reading of the Housing Consent that was issued on 24^th   February, 2001, that only 1 person was legally entitled to occupy that property.  There were 6 occupants.  The defendant clearly knew that fact when interviewed by the Housing Officers.  He said that the legal occupant, a Mr Marett, had control of the occupiers, their rental and whether they stayed or left the premises.  On re-interview, this was flatly denied by Mr Marett.  Three of the occupants had no housing qualifications, and those three formed the basis of charges 1 to 3.  All indicated that they considered the defendant to be their landlord; the rent was paid in cash or by direct debit to him.  No services were supplied to them and no police register was kept. 

3.        The original lessee of that property was a Dr. Renouf.  The consent for the 9 year sub-lease from Dr Renouf to the defendant issued on 24^th February, 2000, could not be clearer.  The defendant paid £9,999 to Dr. Renouf and from the illegal occupants he collected £34,450.  That, of course, as Mr James has so clearly stated to us, is a gross sum and we have to bear in mind what this Court said in the case of A.G.-v-Muren and Peters (16^th August, 2000) Jersey Unreported, [2000/166]: 

"We agree with the Attorney General that to engage in mathematical calculations based upon hypothetical assessments of what might have been the fair rent if the property had been let lawfully, and thereby to calculate the illicit profit, is, other than in unusually straightforward circumstances, an inappropriate sentencing approach.  A proper approach, where the Court is satisfied that the defendant has made an illicit profit from the unlawful transaction, is to take that into account as a factor in the sentencing process.  The exact amount of the gain may be material if it is readily ascertainable.  If it is not readily ascertainable, the Court should not estimate the amount and impose a fine which removes that figure and adds some penalty, but the Court is entitled to take into account, without quantifying it, that there has been some profit from the unlawful activity."

4.        The unfortunate Mr Marett, who had no idea that he was technically the landlord - and even if he had been aware of it, there was still one in excess of the permitted five occupants - made no profit. Most of his belongings were lost in the fire and were uninsured.  The sole financial beneficiary from this illegal transaction was the defendant.

5.        As we said the York Street prosecution arose out of inquiries made after the fire at Halkett Place.  This is in fact the second prosecution which has arisen in relation to these premises.  When Ms Smith applied to lease 16 York Street for 9 years on the 4^th January, 1991, she received a standard housing consent.  She assigned the remaining proportion of her lease to the defendant company.  The existing unit was leased by the company to the defendant and the usual and clear terms applied.  It was in 2000 that a lady suffering from severe kidney failure and who required dialysis treatment three times a week from the General Hospital, went to an accommodation agency and was shown the flat by the defendant.  She saw no other part of the property.  The property served her purposes.  But it was only after she had moved in that she realised that four other rooms were occupied. 

6.        When interviewed the defendant claimed that the lady in question knew that the occupiers were her lodgers.  In her statement on 24^th May, 2002, the lady said this:

"Two weeks ago, Mr Pirzada asked me to collect the rents for the four rooms.  I was against this.  I do not want people knocking on my door due to my health.  He said that I had to; it was the law, or he suggested I open a joint bank account with him, to make payments into.  Other than that he wanted me to write a letter stating that I wanted Mr Pirzada to collect the rents on my behalf.  I replied that it's not on my behalf as the rent goes to you."

7.        Again we have details of the illegal occupants.  There were no services and no police register.  Indeed, one of the illegal lodgers, who paid £115 per week, did not even have a hot water facility.  Apart from the lady we mentioned, none of the occupants possessed residential qualifications.  All regarded the defendant as their landlord.  Some £315 per week was being taken illegally over the relevant period.  Some £19,552 was taken gross but, of course, we again bear in mind the caveat of which Advocate James has reminded us.

8.        It seems to us quite extraordinary that, having being fined £4,000 with costs on the 9^th October, 1998, for the property, 16 York Street - the very same property now being considered - the defendant, who is a business man, did not see fit to check out his legal liabilities under the Housing Law with the Housing Department, which is, after all, a short walking distance away.  Advocate James says that his client thought he understood the law.

9.        The consequences of his error, as Advocate James has so properly explained to us, have been serious.  Mr James has said all that he can, and has taken us through the whole scenario.  It seems to us now that there has, perhaps, not been as large a profit as the Crown, on the facts available to it, alleges.  We are prepared to vary the conclusions slightly on 115 Halkett Place on the basis that there was actually a legal tenant on the premises.

10.      So we are going to levy a fine on count 1, of £2,500 or 9 months' imprisonment in default; on count 2, £2,500 or 9 months' in default; on court 3, £2,500 or 9 months' in default, those default sentences being concurrent, making a total of £7,500 and with costs of £1,000.

11.      With regard to the York Street premises - and despite all that Mr James has said to us - we have a different set of circumstances.  The scenario is not one that allows any credit to the defendant, particularly when, under investigation in relation to Halkett Place, he was negotiating for this property. 

12.      On that basis we are going to follow the conclusions of the Crown.  On count 1, there is a fine of £6,000 or 12 months' imprisonment; count 2, £6,000 or 12 months' imprisonment; count 3,  £6,000 or 12 months' imprisonment.  The default sentences are concurrent.  That makes a fine of £18,000, and a total fine of £25,500 with £2,000 in costs (£1,000 for each indictment).

13.      Because the defendant has realisable property assets the fine will be paid at a minimum of £500 per month for the first 12 months, but this will increase to £1,000 per month thereafter.  To safeguard the position we also order an hypothèque judiciaire on the realty of the defendant until the fines are paid.

Authorities

A.G.-v- Pirzada (9^th October, 1998) Jersey Unreported; [1998/200].

A.G.-v- Muren & Peters (16 August, 2000) Jersey Unreported; [2000/166].

A.G.-v-Biggs (23^rd February, 2001) Jersey Unreported; [2001/50].