Rex v Habib (Confirmation, Case No. 1018 of 1947) [1947] EACA 59 (1 January 1947)

## CRIMINAL CONFIRMATION

### Before NIHILL, C. J., and COFFEY, Ag. J.

# REX. Prosecutor

v.

# GULAM HUSSEIN HASSAM HABIB, Accused

#### Confirmation Case No. 1018 of 1947

Criminal law and procedure-Liquor Ordinance, 1934-Arms and Ammunition Ordinance, 1925—Penalties.

The accused was convicted for the second time of an offence against section 44 of the Liquor Ordinance, 1934, and was fined Sh. 1,000. He was further convicted of an offence against section 12 (1) of the Arms and Ammunition Ordinance, 1925, and was fined Sh. 500 and the revolver was ordered to be destroyed.

Held (5-12-47).-(1) That as there was a previous conviction under section 44, Liquor Ordinance, 1934, the minimum fine must be Sh. 1,500.

(2) That the revolver should have been ordered to be forfeited to the Crown.

#### Maini for the Accused.

Modera for the Crown.

ORDER.—This is a case which comes before us for confirmation of sentence. The accused was convicted on three counts, one for an offence against section 44 of the Liquor Ordinance, 1934, and secondly for an offence against section 39 of the same Ordinance, and thirdly for an offence against section 12 (1) of the Arms and Ammunition Ordinance, 1925. In passing sentence on the first count the Magistrate overlooked that as the accused had a previous conviction for an offence under the section, it was obligatory on him to impose a fine of not less than $£75$ . The Magistrate actually imposed a fine of £50. On this count, therefore, we substitute a fine of $£75$ for the fine imposed.

On the second count the Magistrate imposed a fine of Sh. 1,000. In confirmation we reduce this fine to one of Sh. 500 in view of the fact that the Crown does not ask for any actual increase in the net amount of the fines imposed upon the accused. We confirm the sentence imposed upon the accused with regard to the third count.

Two other points have been raised at the hearing of this matter, one by the Crown and one by the counsel for the accused. The first point is that the Magistrate had no power to order the destruction of the revolver, which formed the subject of the third count. We agree that all that the Magistrate could do under the Arms Ordinance was to order its forfeiture from the accused; this he did. The disposal of a weapon after forfeiture is a matter solely within the discretion of the Crown. On the second point, counsel for the accused has asked us to make an order for the payment of the fines by instalments. This is not an order which we feel disposed to make in confirmation proceedings although we may have the power to do so.

In returning the record to the Magistrate, however, with this order, we direct him to hear an application from the accused and to make such order as he considers just,