State v Chen [2014] FJMC 58; Criminal Case 1270.2011 (15 April 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case : 1270/2011

STATE

VS

BILLY CHEN

PC Josuha for the Prosecution
Ms. Fong (Chan Law) for the Accused

JUDGMENT

[1] The accused is charged in this Court for the following offences.

First Count
Unlawful Possession of Ammunition without a Licence contrary to Section 4 of the Arms and Ammunition Act 11 of 2003.

Billy Chen on the 30th day of July 2011 at Suva in the Central Division was found in possession of cartridge .22LR ball x 33 rounds, cartridge 357 magnum ball x 4 rounds, cartridge 12G short shel (saga 7 ½ ) x 01 rounds, cartridge .38 x 01 round and 6 empty shells without a licence.

Second Count
Unlawful Possession of Ammunition without a licence contrary to Section 4 of the Arms and Ammunition Act 11 of 2003.

Billy Chen on the 30th day of July 2011at Suva in the Central Division was found in possession of cartridge .22 LR ball (live) x 47 rounds, cartridge 12G short shell 7 / 12 (red) x 61 rounds, cartridge 12G short shell 7 ½ (blue) x 23 rounds, cartridge .38 special x 8 rounds, cartridge 9mm ball x 2 rounds without a licence.

[2] The accused pleaded not guilty for the charge and the hearing was conducted on 06th March 2014. Before the trial the accused had challenged the admissibility of his caution statement and in a voir dire hearing the Court found this statement to be inadmissible in the trial proper.

[3] For the prosecution side 03 witnesses were called and for the defence the accused gave sworn evidence. At the end of the hearing only the defence filed closing submission which I have also considered for my judgment.

SUMMARY OF EVIDENCE
THE PROSECUTION’S CASE

[4] PW1 was Amani Bosenawai who conducted the raid on 30th day of July 2011 on the Angel Club and the residence of the accused with some other police officers. The police found the ammunition in the office of the accused. The owner (Billy Chan) was present in the office and the police found the ammunition in his residence also. Billy Chan informed the police that he did not have a licence for the ammunitions. PW1 tendered the search warrant, search list and the ammunition packages seized from the office and the residence as exhibits P-01, P-02, P-03 and P-04 respectively.

[5] In cross- examination PW1 said he prepared the search warrant and when they entered the club they found people gambling downstairs. The police proceeded upstairs to the office where they found Billy Chan looking at TV monitors/screens. PW1 showed the search warrant to the accused and explained about that. The accused showed him the safe where they found the money and the gambling chips as well as the ammunition. Later the police went to the residence of the accused where they recovered ammunition also.

[6] PW2, ASP Aniruda Kumar who was on duty on 31st July 2011 in the Armoury Division in the Police HQ. He was called to identify and specify the ammunitions. The Armoury also keeps a record of licensed firearms and the accused’s name was not in the list.PW2 knew the accused as a member of the Shooting Association but his membership has expired at that time. PW2 also said members of the association are exempted from holding a license only at the venue. PW2 also identified the ammunitions recovered from the office and the residence of the accused. In cross –examination PW2 said he was not present at both raids. PW2 identified the accused in the Court.

[7] PW3 was David Evans the Armourer of the Shooting Association. He identified the accused as a member of the association but said presently he was not a member but later said he was not sure about the membership. PW3 also said the members can have the ammunitions in the range but they could not take them out. In cross- examination PW3 said there was a leaflet about the use of the ammunitions and all the members were given that. Also PW3 informed and explained the accused about the rules.
[8] The State closed their case after that and I found that there was a case against the accused. The accused was given his rights pursuant to section 179 of the Criminal Procedure Decree. The accused opted to give sworn evidence.

THE DEFENCE’S CASE
[9] The accused said on that day he was sleeping in his office when the police came there. The police did not show him any search warrant and did not explain about the raid. He was asked to open his safe and one of the officers also punched him and another punched the wall. The accused tendered the photographs of the damaged wall as exhibit D-01 and D-02. The police removed the items from the safe and later the accused signed the search list. The accused was taken to his residence without a search warrant and the police searched only his room. The accused also said he joined the Shooting Association and knew PW3 but he had never informed the accused about the rules in the range.

[10] In cross –examination the accused admitted the ammunitions need to be kept in a safe place and re- examination said he was no longer the President of the Club.

[11] The defence did not call any other witness and also closed their case and opted to file closing submission which was filed accordingly.

[12] In her closing submission learned counsel for the accused took number of objections. The defence argued that the State had failed to identify the accused, the searches conducted in the Club and the residence were illegal, unlawful arrest of the accused and he was assaulted by the police and was detained unlawfully. I would address these objections later in my judgment. But before that it would be pertain to briefly consider the relevant law in this case.

THE LAW
[13] In Woolmington v DPP [1935] AC 462 it was held that

“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained” (per Viscount Sankey L.C. at pp. 481-482).

[14] The standard of proof where the judge has to decide an issue of fact in a criminal case where the burden of proof is on the prosecution is proof beyond reasonable doubt (ARCHBOLD CRIMINAL PLEADING, EVIDENCE AND PRACTICE 2010 page 542).

[15] In STATE v Driti [2013] FJHC 644; Criminal Case005.2012 (26 November 2013) in his summing up His Lordship Justice Madigan defined Beyond reasonable doubt in the following manner:-

"The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you."

[16] Now I would consider the charge. The accused is charged with two counts of Unlawful Possession of Ammunition without a License contrary to section 4 of the Arms and Ammunition Act No 11 of 2003.

[17] Section 04 of the Act provides:

"A person who possesses, uses or carries any arms or&#16uniti6n without hout an arms licin re of t of the arms&#rms or ation&and in a in accordancrdance with the conditions of the licence imposed under this Act commi offeb>.."

[18] Thre thsecuteeds to prove thee the following elements beyond reasonablenable doub doubt :

[a] The accused

[c] Possessed mmuni

>

[c[c] Without an arms licence

OBJECTIONS RAISED BY THE DEFENCE
IDENTIFICATION OF THE ACCUSED

[19] The learned defence counsel submitted that there was no identification of the Accused in the Court by PW1 and there was no identification parade also.

[20] Normally in a Criminal Case the prosecution would invite their witnesses to identify the accused in the Court. In this case the prosecution failed to follow that step with regard to PW1. Based on that I find that the defence has raised this objection in their closing submission.

[21] But I believe the identity of the accused is not a disputed issue in this case. The defence never raised this objection during the trial. Nor did they dispute about the identity when the charge was first read to the accused in the Court.

[22] Also even though PW1 did not identify the accused in the dock throughout his evidence he mentioned Billy Chan the name of the accused as the person he arrested on that day. Therefore I do not think there is any merit in this objection.

LEGALITY OF THE SEARCH WARRANTS
[23] Another objection raised in the closing submission as well as the trial was that the search warrants were defective . The learned counsel argued that the search warrants were obtained to conduct a search about gambling and not for ammunitions.

[24] Before the trial the learned counsel raised this issue and wanted to have a voir dire to determine about that. This application was rejected by me and I said this issue with her other objections would be determined in the main trial and therefore I would address this issue now.

[25] The argument for the defence was that the search warrants were obtained by the police to conduct a raid about gambling and not for unlawful ammunitions. The police tendered as exhibit a search warrant issued to search the residence for gambling. This was marked as P-01.

[26] Armed with a search warrant for gambling (which was not tendered by both parties as exhibit) the police conducted the raid on the Angel Club and recovered some gambling chips in the safe of the accused. Also whilst searching they also found the ammunitions in the safe and sized them. According to PW1 the accused told him he did not have licence for them. I do not see any illegality on the part of the police in that. I would also consider the relevant provisions in the Criminal Procedure Decree with regard to search warrants.

[27] Part IX of the Criminal Procedure Decree deals with the search warrants and section 98(2) would be relevant for this objection. Section 98(2) states :

"If, during the authorised search —

(a) anything searched for is found; or

(b) any other thing reasonably suspected as having been stolen or unlawfully obtained is found –

the police officer or other person authorised by the search warrant may seize it and take it to the court issuing the warrant, or some other court, to be dealt with according to law."

[28] Based on a warrant issued for illegal gambling the police searched the club and recovered gambling chips and money in the accused's safe. Also they found ammunitions in the safe and they seized them. This is allowed under section 98(2) (b) of the Decree and I do not see any illegality on the police for that.

[29] The police also went to the residence of the accused with another search warrant for gambling and again recovered some ammunition. This was tendered by the prosecution as P-01. Again I do not see any fault in the police in that. Therefore again I find this is not a valid objection.

UNLAWFUL CONDUCT OF THE TWO RAIDS
[30] Another objection was that two raids on that day were illegal. This argument was based on because the accused was assaulted by the police officers, raid conducted on the residence was illegal because the warrant was for gambling and no proper search warrant was obtained to search the places. But as I have already discussed in the above paragraphs I do not see any fault with the police and dismiss this objection.

UNLAWFUL ARREST
[31] The learned counsel mentioned section 86 of the Criminal Procedure Decree and submitted that this was not followed and the accused was forcefully removed. Section 86 deals with the arrest of a person who failed to appear in the Court after summoned for an offence. In this case the accused was arrested by the police after they found ammunition in the club and the residence of the accused.

[32] Section 18 of the Criminal Procedure Decree deals with an arrest of a person by a police officer without a warrant. Section 18(d) of the Decree would be relevant which states that a police can arrest a person without a warrant in whose possession anything is found which may reasonably be suspected to be stolen property, or to have been used in the commission of an offence. Therefore there is no merit in this objection also.

ASSAULT OF THE ACCUSED/ BREACH OF THE COMMON LAW RIGHTS
[33] The defence submitted that the police assaulted the accused and he was kept in custody even after the Court granted bail. PW1 denied about the assault and I do not think these issues are relevant for this main trial.

AMENDMENT OF THE CHARGE
[34] The State made an application to amend the charge and the despite the objection raised by the defence the Court allowed that. This application was made pursuant to 182 of the Criminal Procedure Decree. Section 182 of the Decree allows the prosecution to amend the charge before the close of their case and based on the evidence I allowed the amendment .

IDENTIFICATIONOF THE ITEMES AND ADMISIBILTY OF THE PW3'S EVIDENCE
[35] These two objections were also raised in the closing submission and I would deal with these when I am going to analyze the evidence in this case.

ANALYSIS OF THE EVIDENCE
[36] PW1 who raided the Club and the residence of the accused found the ammunitions in the safe and the room of the accused. These were tendered as P-03 and P-04 and the witness identified them in the Court. PW1 further said the accused told him that he did not have licence for these ammunitions.

[37] PW2 who identified and specified the ammunitions also identified them again in the Court. Also based on his evidence the charge was amended. He also said the armoury keep a list of the people who can hold firearms and the accused name was not in the list.

[38] PW3 identified the accused as a member of the Shooting association but said they could not take the ammunitions out of the range. When questioned by the Court, PW3 identified the ammunitions as the type they use in the range for practice.

[39] The accused in his testimony never refused that the ammunitions were found from his office or from his residence. In his evidence he was mostly trying to blame the police for the raid. Only in the end of his evidence he mentioned that PW3 did not explain about the rules with regard to the ammunitions.

[40] From the evidence of PW1 and PW2 which were not denied by the accused I find that the police found the ammunitions in the accused's office and in his residence. These are sufficient to prove the first and the second elements of the offence beyond reasonable doubt. Therefore only issue I have to consider is whether the accused had a licence to keep them.

[41] Again I would turn to PW1's testimony where he said the accused admitted he had no licence for the ammunitions. PW2 corroborated this by saying the accused's name was not in the list. Also the accused did not produce any licence in this Court to show that he had any lawful authority to keep these ammunitions.

[42] The prosecution also called Mr. Evans as the third witness. The purpose for calling him was to show that the accused was a member of a Shooting Association. This witness said at the time of the raid the accused was not a member. And he admitted the ammunitions found with the accused were normally used in their association.

[43] If the accused was not a member of the Association at the time of the raid he had no authority to keep ammunitions in his possession in the first place. But even if he was a member at that time PW3 clearly said in the Court these ammunitions could not be taken out from the range. Therefore again I find that the accused had no authority to keep these ammunitions in his safe or residence.

[44] The accused is charged under section 4 of the Arms and Ammunition Act No 11 of 2003 which states :

"A person who possesses, uses or carries any arms o0;ammon&#16n without hout an arms licin e in respect of the arms or&#mmunition and in a in accordance the the conditions of the licence imposed this;Act&commits an offence."

[4

[45] Th5] The Act also exempted some people from from having licence. Section 05 deals with thatprovides:

". (1". (1) The following are exempted from the operation of sectiop>

(a) caa) carriers and their employees, authorised in writing by the Commissioner, having in their possession in the ordinary course of bus > the carriers aers and not for use arms #160; or;a160nition&tion for which a liceas been been issud is in force in respect of such;or ammunitmunition;only;

(b)

(c) resids theander-in-Chief;

(d) a member of the RepubRep&#&#16> of Fiji ary Forces o fore foreign armed forces lawfulawfully in the Fiji Islands, the Fiji Police Force (including the special constabulary) or the Fiji Prisovice spect160;of #160; any arms &ressed, used or carried ried in the course of his orlawful duty;

;

(e) the crew and passengers of assel or aircraft, oft, other than a vessel or air solegagedarryingrying goods or passengers within the Fiji Islands in respect of arof arms&#1ms or&#1munition <160;&#f&#1of #160;the ordinary arm of the vessel rcrait, or w or which are in or upon the vesr air and red for the service of it o>itept kor or r or on behalf of

(f) ablic er or class&#1b> of60;of public officermpted byed by the Minister by notice in the Gazette in respect of the arm0;oor am60;ammunition fieciin the exemption;

(g) a licensed arms of arms o#160;ammu;ammunitionitionition&#16n business of a licensedens&d&#16> arms dealer or mcnufar

(h) any member of; a theatrical or circucircus company while under interim import licence in respect of arms or ammuni#160;

(2) A person exempted under subsection (1)(b), (c), (d), (d), (f) and (g) must-

(a) sued a cerate of exemption by t byCohe Cohe Commissmmissioner in the prescribed form; and

(b) provide, annually in writing to the Commissioner, particulars of anys
m0; in his or her possession in respect of &#o&#1no licence is in f wce, with the name of o160;of <160; the<60;ar60;ny nuny numberumber or marked on the arms for purpo>&#; identifon.

(3) A person ted usubse (1)(e) must must, after declaring the arms&#1ms& or&# ammunition& with a Cust Customs Officer

(a) delivch arms; o/b> or a160;ammunition; to theo the Customs Officer who must hand such arms&#16> or nitio0;tio0; to a policpolice officer for storage at the nearest police station until the vessel ssel or aircraft leaves the Fiji Islands; or

(b) store the arms or;ammunimmunimmunition&tion e vessel or aircraft iaft in accordance with any conditions imposed by the Commissioner.

(4) A person who contravenes subsection (3) commits an offence.

[46] The only ory the accused falls in isin is member of a riffle club [Section 5(b)]. But Section 5(2) stipulates that they need to be issued with a certificate of exemption by the commissioner. This was also never produced by the accused to the Court.

[47] Also as mentioned above PW3 clearly said the ammunitions can be used only in the range and they could not be taken out from there.

[49] Therefore I find that at that time the accused did not have a licence to keep these ammunitions in his possession.

[50] Based on the reasons mentioned above I decide that the prosecution has proved beyond reasonable doubt that the accused committed these offences.

[51] I find the accused is guilty as charged and convict him accordingly.

[52] 28 days to appeal.

15th April 2014

H.S.P.Somaratne
Resident Magistrate, Suva