Police v Shiuprasad [1945] FJLawRp 8; [1875-1946] 3 FLR 395 (6 October 1945)

[1875-1946] 3 FLR 395

SUPREME COURT OF FIJI

Appellate Jurisdiction

POLICE

ats

SHIUPRASAD

Seton, C.J.

October 6, 1945

Arms Ordinance, 1937, s. 2^[1] — Definition of "arm" — Includes unserviceable weapons - words of Ordinance should be followed in framing charges.

An appeal against the summary dismissal of a charge laid under s. 4 (1) of the Arms Ordinance 1937. At the trial before the Acting Chief Magistrate, Suva, evidence was led by the prosecution to the effect that the revolver which was the subject of the charge could not be fired in its present condition. Counsel for the respondent at once submitted that as this was not an "arm" within the definition of the Arms Ordinance s. 2 no conviction was possible. On this submission the Acting Chief Magistrate dismissed the charge.

HELD.— (Dissenting from Hakim Khan ats. Police [1943] 3 Fiji LR—) the revolver though unserviceable was an "arm" within the meaning of the Arms Ordinance 1937.

Cases referred to:—

(1) R. v. Johnson [1945] 173 LT 47.
(2) Hakim Khan ats. Police [1943] 3 Fiji LR
(3) Cafferata v. Wilson; Reeve v. Wilson [1936] 3 AER 149.

APPEAL by the prosecution from the judgment of the Acting Chief Magistrate, Suva dismissing a charge. The facts are fully set out in the judgment.

E. M. Prichard for the appellant.

R. Crompton for the respondent.

SETON, C. J. —The respondent was charged before the Magistrate with unlawfully having in his possession "certain firearms, to wit one .38 calibre revolver without a licence or permit" contrary to s. 4 (1) of the Arms Ordinance (No. 8 of 1937). "Certain arms" or "a certain arm" would have been a better way in which to express the charge since "arms" and "arm" are the words used in s. 4 and not "firearms"; for a recent case on the desirability of following the words used in the Statute, see R. v. Johnson, 173 LT 49.

Evidence was given that the revolver in question could not be fired in its then state because two of its springs were broken; these springs could be repaired or replaced by a person with fair mechanical knowledge and then the revolver could be fired. Counsel for the respondent, upon this evidence being given, submitted that no conviction was possible having regard to the decision of this Court in the case of Hakim Khan v. Charles Harvey Hunt^[2] which the Magistrate was bound to follow; but he brought to the notice of the Court the decisions of the English Divisional Court in Cafferata v. Wilson and Reeve v. Wilson [1936] 3 AER 149 which were in conflict with the decision in Hakim Khan v. Charles Harvey Hunt. The learned Magistrate agreed that he was bound by the decision of the Supreme Court in the last mentioned case notwithstanding the contrary decision in Cafferata v. Wilson and Reeve v. Wilson and he therefore dismissed the charge. The appellant appeals.

In Hakim Khan v. Charles Harvey Hunt,^[3] the appellant had been convicted (inter alia) of unlawfully having in his possession one automatic pistol and two revolvers without having a licence therefor contrary to the provision of s. 4 (1) of the Arms Ordinance and had appealed from the conviction to the Supreme Court; one of these three weapons was unserviceable. In the course of the judgment disposing of the appeal, the following statement appears:—

"... The finding that the weapon is unserviceable involves a finding that it is not an arm within the definition given in s. 2 of the Ordinance (i.e. the Arms Ordinance above mentioned). Hence, in respect of that weapon, the appellant should have been found 'not guilty'. The conviction, however, stands as regards the other two weapons."

So far as is known, there had been no argument in the course of the hearing of the appeal as to whether the fact that one of the weapons was unserviceable had any bearing on the charge in respect of that one weapon nor does it appear from the judgment, a portion of which has been quoted above, that the question had been raised. It must remain a mystery how the learned Chief Justice came to incorporate in his judgment the statement in regard to the unserviceability of the weapon in question because it is clear from s. 2 of the Arms Ordinance, which he mentions, that its serviceability or unserviceability is quite immaterial; it is sufficient to establish that the weapon named in the charge is a "component part" of an arm as therein defined, for it to come within the provisions of s. 4 (1) of the Ordinance.

It is clear that the decision in Hakim Khan v. Charles Harvey Hunt so far as it relates to the serviceability or unserviceability of an arm was given under some kind of misapprehension and cannot be supported.

The appeal will be allowed and the case must go back to the Magistrate for hearing upon its merits.

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^[1] Now Cap. 196.
^[2] Ibid
^[3] Reported sub nomine Hakim Khan ats. Police